Greentree v. U.S. Customs Service

• Decision Date: 26 March 1982
• Docket Number: Nos. 81-1829,81-1830,s. 81-1829
• Citation: 674 F.2d 74,218 U.S.App.D.C. 231
• Parties: , 8 Media L. Rep. 1510 Frank Derek GREENTREE, Appellant, v. U. S. CUSTOMS SERVICE, et al. Frank Derek GREENTREE, Appellant, v. DRUG ENFORCEMENT ADMINISTRATION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 74

674 F.2d 74

218 U.S.App.D.C. 231, 8 Media L. Rep. 1510

Frank Derek GREENTREE, Appellant, v. U. S. CUSTOMS SERVICE, et al.

Frank Derek GREENTREE, Appellant, v. DRUG ENFORCEMENT ADMINISTRATION, et al.

Nos. 81-1829, 81-1830.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 22, 1982.

Decided March 26, 1982.

Cornish F. Hitchcock, Washington, D. C., with whom Richard Manning Ricks, Washington, D. C., was on the brief, for appellant.

Douglas Letter, Atty., Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the briefs were filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees. Kenneth M. Raisler and John C. Martin, Asst. U. S. Attys., Washington, D. C., also entered appearances, for appellees.

David C. Vladeck and Katherine A. Meyer, Washington, D. C., were on the brief, for amicus curiae, Freedom of Information Clearinghouse urging reversal.

Before BAZELON, Senior Circuit Judge, and WALD and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This is a case of first impression in this circuit. It questions whether the Privacy Act, 5 U.S.C. § 552a, is an exempting statute within the meaning of subsection (b)(3) ("Exemption 3") of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(3), which bars access under FOIA to information "specifically exempted from disclosure by (any other) statute." ¹ Although the government (assuming a position based upon a longstanding policy), as well as appellant Greentree, urged otherwise, see Joint Appendix (J.A.) at 29, 39, the district court held that criminal law enforcement information exempt from disclosure under section (j)(2) of the Privacy Act, see n.15 infra, is automatically exempt under Exemption 3 of FOIA. Greentree v. United States Customs Service, 515 F.Supp. 1145 (D.D.C.1981); J.A. 41. The government has now reversed its position and here supports the decision of the district court. Even so, we cannot accept the district court's interpretation. Our reading of the relevant statutes and their legislative history convinces us that material unavailable under the Privacy Act is not per se unavailable under FOIA. Therefore, we reverse the decision of the district court and remand so that the district court may consider appellant's FOIA request independently of the Privacy Act. ²

I. BACKGROUND

After being indicted and convicted in federal district court in Louisiana for attempting to import several tons of marijuana into the United States, appellant Greentree brought suit to enjoin state prosecution based upon the same events. Greentree sought to gather information relevant to his civil action by filing FOIA and Privacy Act requests with the Drug Enforcement Administration ("DEA") and the United States Customs Service ("Customs"). Relying upon specific exemptions both in FOIA (not including Exemption 3) and in the Privacy Act, DEA and Customs refused to release certain material. Pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552a(g)(1), Greentree sued in federal district court. Both agencies then moved for summary judgment. In the case against Customs, the district court, on its own initiative, requested briefs on the question of whether records protected from disclosure to the subject of the records (first party requester) under the Privacy Act are automatically exempt from disclosure to the same individual under FOIA Exemption 3. J.A. 28.

Both Greentree, J.A. 39, and the government, J.A. 29, argued to the district court that the Privacy Act was not an Exemption 3 statute. Nevertheless, the district court granted summary judgment to both DEA and Customs on the ground that the Privacy Act does qualify as a withholding statute. ³ In reaching this conclusion, the district court relied upon the statutory language and legislative history of the Privacy Act. Further, the district court's analysis was supported by decisions from the fifth ⁴ and seventh ⁵ circuits, and by dictum in an earlier opinion of this court. ⁶ Nevertheless, we cannot uphold the decision. The question presented is a difficult one, ⁷ but we believe that Congress did not intend the Privacy Act to bar disclosure under FOIA Exemption 3.

II. ANALYSIS

A. The Statutory Scheme

Both FOIA and the Privacy Act evidence Congressional concern with open government, and especially, accessibility to government records. Each seeks in different ways to respond to the potential excesses of government. Each, therefore, has its own functions and limitations. 1 K. Davis, Administrative Law Treatise § 5:2 (1978 ed. Supp. 1980); R. Bouchard & J. Franklin, Guidebook to the Freedom of Information and Privacy Acts 21-22 (1980). While the Privacy Act was designed to provide individuals with more control over the gathering, dissemination, and accuracy of agency information about themselves, FOIA was intended to increase the public's access to governmental information. Id. The Privacy Act limits access to any "record" ⁸ contained in a "system of records" ⁹ without the consent of the individual to whom the record pertains unless disclosure is requested by Congress, ¹⁰ a court, ¹¹ an authorized agency, ¹² or certain specifically qualified persons, ¹³ or is required by FOIA. ¹⁴ Moreover, even first party access is limited under the Privacy Act for reasons of, inter alia, national security and law enforcement. ¹⁵ Similarly, public access to information under FOIA is also limited; excluded from FOIA's disclosure requirements are national security and internal agency matters, matters "specifically exempt" by other statutes, confidential business information, deliberative internal communications within the executive branch, information about individuals disclosure of which would constitute a "clearly unwarranted invasion of personal privacy," certain investigatory records compiled for law enforcement purposes, records relating to the examination of financial institutions and records containing oil well information. ¹⁶

It is readily apparent from the foregoing review that the Privacy Act and FOIA substantially overlap. However, it is apparent also that the two statutes are not completely coextensive; each provides or limits access to material not opened or closed by the other. For example, while both restrict access to investigatory material, they do so to a different degree and under different conditions. Compare 5 U.S.C. § 552(b)(7) with 5 U.S.C. §§ 552a(j)(2) and (k) (2) and (5).

The present case questions the relationship between section (j)(2) of the Privacy Act and Exemption 3 of FOIA. After holding that the material sought was unavailable to Greentree under section (j)(2) of the Privacy Act, the district court began its statutory analysis of this question by examining the language of section (b)(2) of the Privacy Act:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be-

....

(2) required under section 552 of this title (FOIA)

....

5 U.S.C. § 552a(b)(2). The court summarily rejected the argument that this provision indicated that the Privacy Act was not designed to affect obligations under FOIA, concluding that the notion merely "begs the question ... of whether information exempt under the Privacy Act can, in fact, be required to be disclosed under FOIA." Greentree, 515 F.Supp. at 1147. For the district court, that question was resolved by FOIA Exemption 3.

Since the Privacy Act does refer to particular types of matters to be withheld-all material generated by the exempt systems-the Privacy Act is, by the plain language of FOIA, within the (b)(3) statutory exemption.

Id. at 1147.

Our statutory analysis both begins at a different point and reaches a different conclusion. Under our analysis, there is no need to determine whether section (j)(2) of the Privacy Act meets any of the alternative qualifications of an Exemption 3 statute. ¹⁷ Further, we see no need to dwell long upon the apparent circularity of section (b)(2) of the Privacy Act in mandating disclosure of only that which is "required" by FOIA (including its Exemption 3). ¹⁸ Frankly, we are unimpressed with the discovery that section (b)(2) is somewhat circular. Why was that section inserted into the Privacy Act at all if that act were meant to be a FOIA 3 withholding statute? We must conclude, contrary to the district court, that section (b)(2) of the Privacy Act represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access.

The government acknowledges that section (b)(2) of the Privacy Act does safeguard FOIA access to the public, but it asks us to deny that access to first party requester. However, we are not at liberty to limit the safeguards of (b)(2), which extend to requests by "any person." Our understanding of the extent of (b)(2)'s coverage is reenforced by the very language of section (j) of the Privacy Act. The authority granted an agency head by that section is, with exceptions not relevant here, specifically limited to exempting "any system of records within the agency from part of this section ..." 5 U.S.C. § 552a(j) (emphasis added). In context, the words "this section" can only refer to section 552a, i.e., the Privacy Act. The specific exceptions to the general exemption, "subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), and (11), and (i) ...," are subsections of the Privacy Act. ¹⁹ This portion of the statute thus appears to be self-contained: the general exemptions, as well as the specific exceptions, limit only other provisions of the Privacy Act itself.

Further, were we to accept the government's argument, a so-called "third party anomaly"...