The opinion of the court was delivered by: NEALON
Plaintiff, Robert T. Patton, Jr., after having been rejected for employment by the Federal Bureau of Investigation (FBI), on July 2, 1982, requested access to the file maintained by the FBI concerning his application. On November 24, 1982, the FBI released eighty-one pages of material in response to plaintiff's request but withheld approximately ten pages contending they were exempt from release under the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 and the Privacy Act, 5 U.S.C. § 552a. Plaintiff filed this action on April 9, 1984, alleging that he was entitled to the information under FOIA and the Privacy Act and asked the court to order such disclosure. On October 9, 1984, the defendants filed a motion for summary judgment, together with a personal public affidavit of James S. Tatman, in which he set forth the basis for nondisclosure based upon his review of the records. Subsequently, defendants filed three In Camera Declarations in support of their motion. The court has carefully reviewed the public documents, the In Camera Declarations, as well as the documents withheld from plaintiff, and will grant the defense Motion for Summary Judgment.
Defendants identify seven full pages and portions of three other pages of plaintiff's file that involve confidential source material for which exemption is sought under Section (k)(5) of the Privacy Act and Sections (7)(C) and (D) of FOIA. Exemption is also claimed for three and one-half pages of testing or examination material and related information allegedly exempt under Section (k)(6) of the Privacy Act and Section (b)(2) of FOIA. Finally, three lines of one document have been deleted as third-party information which may not be released under the Privacy Act without the consent of the third party and is exempt under Sections (6) and (7)(C) of FOIA because such release would constitute an unwarranted invasion of personal privacy. Defendants concede that the recently enacted Central Intelligence Information Act, Pub.L. No. 98-477, 98 Stat. 2209, (1984) amended the Privacy Act so that no agency can withhold from an individual any record to which he is entitled under FOIA. Consequently, defendants cannot withhold any information from plaintiff unless there is an applicable exemption provision in each statute.
5 U.S.C. § 552a(k)(6), the Privacy Act, specifically exempts from disclosure
"(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process."
Additionally, 5 U.S.C. § 552(b)(2) of FOIA states that the Act does not apply to matters that are
"(2) related solely to the internal personnel rules and practices of any agency;"
The testing material involved herein clearly satisfies the requirements of the Privacy Act. It implicates the applicant evaluation system and public notice of the details of the criteria utilized would give future applicants an unfair advantage and would impair the usefulness and value of the system. While there is commentary in the withheld material, it can be considered as a part and extension of the criteria and its release would reveal how the criteria is applied. Under these circumstances, it fits comfortably within the (k)(6) requirements.
The (b)(2) FOIA exemption is broader than that contained in the Privacy Act but it appears to encompass within its proscription the type of testing data utilized here. The rationale supporting the legitimacy of nondisclosure under the Privacy Act would be equally applicable under FOIA. Internal personnel rules and practices of the FBI would be seriously undermined if all the factors that go into internal ...