Nemetz v. Department of Treasury, 77 C 574.
| Decision Date | 16 February 1978 |
| Docket Number | No. 77 C 574.,77 C 574. |
| Citation | 446 F. Supp. 102 |
| Parties | Paul NEMETZ, Plaintiff, v. DEPARTMENT OF the TREASURY, Michael Blumenthal and United States Secret Service, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Mary-Jeanne Bates, Chicago, Ill., for plaintiff.
Thomas P. Sullivan, U. S. Atty., A. J. Curiel, Asst. U. S. Atty., Chicago, Ill., for defendants.
Plaintiff brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking access to background investigation information obtained by the Secret Service pursuant to plaintiff's application for employment. Mr. Nemetz also seeks to amend any inaccurate or incomplete portions of the requested documents pursuant to 5 U.S.C. § 552a(d). The defendants have withheld all or part of six pages of material pertaining to the plaintiff based on a claim of exemption under Section 552a(k)(5) of the Privacy Act. Defendants have moved for summary judgment based on the claimed exemption as supported by the affidavit of Lilburn Boggs, Deputy Director of the Secret Service. Plaintiff has moved for partial summary judgment concerning information withheld on a claim that Mr. Edwin Packer is a confidential source. For the following reasons, both motions are denied.
Defendants argue that the withheld materials are exempt under Section 552a(k)(5) of the Privacy Act which provides in relevant part:
Regulations have been promulgated exempting the system of records involved in plaintiff's request. Secret Service Non-Criminal Investigation Information System, 31 C.F.R. § 1.36 (pp. 80-82) (1976).
It is clear on the face of the statute that only information which would identify the source of confidential information may be exempted by agency regulation.1 Thus, the government's argument that all information received under a promise of confidentiality is exempt must be rejected at the outset. To the extent Section 552a(k)(5) applies, it exempts only information which would reveal the identity of the source.
Defendants also argue that the identities of the individual sources are protected by the "privacy" exemptions of the FOIA. 5 U.S.C. § 552(b)(6) and (b)(7)(C). Under the FOIA, a balancing test is to be applied "between an individual's right of privacy and the preservation of the public's right to government information." Campbell v. United States Civil Service Commission, 539 F.2d 58, 61 (10th Cir. 1976). However, Section 552a(q) of the Privacy Act specifically directs that "no agency shall rely on any exemption contained in section 552 FOIA of this title to withhold from an individual any record which is otherwise accessible to such individual under the provisions of this section." In light of this statutory directive, to justify withholding information identifying the sources, defendants must meet the requirements of the Privacy Act exemption, Section 552a(k)(5).
To fall within the protection of Section 552a(k)(5), the government must demonstrate that the information was furnished under a promise that the identity of the source would be held in confidence.2 Seeking to comply with this requirement, the defendants have provided the affidavit of Lilburn Boggs, which states generally that the information withheld was obtained pursuant to an implied promise of confidentiality, that the information was obtained as part of investigatory material compiled solely for the purpose of investigating an applicant for federal employment, and that the system of records was exempted by 31 C.F.R. § 1.36. In response to plaintiff's Interrogatory No. 2 requesting facts supporting the individual grants of confidentiality, Mr. Robert O. Goff stated that "prior to the effective date of the Privacy Act, it was the policy of the Secret Service to assure individuals interviewed concerning applicants for employment of the confidentiality of their responses." No more specific evidence has been presented.
We find that the defendants' general averments of promises of confidentiality are insufficient to support an award of summary judgment on their behalf. To fulfill the Privacy Act's purpose of granting access to an individual's government records, and the FOIA's goal of full disclosure, any exemptions must be narrowly construed and the requirements strictly met. In cases where exemption is sought under Section 552a(k)(5), this standard requires finding a promise of confidentiality as to each source sought to be withheld. General allegations concerning "policy" are insufficient.3 Evidence must be presented based on personal knowledge that an express or implied promise of confidentiality was given to each source sought to be exempted under this provision. We will give the defendants an opportunity to file supplemental affidavits stating the facts in support of their claim of exemption as to each person involved before deciding whether to release this information.
Even if the defendants are able to support a claim of exemption for information which would identify the furnishing source, they still must produce information about the plaintiff which does not disclose the source. The government has withheld entire documents on the strength of a Section 552a(k)(5) exemption. As previously noted, the exemption is a limited one, and the government has an obligation to disclose reasonably segregable portions of the documents which do not fall within the exemption. Therefore, even if new affidavits satisfy us that promises of confidentiality were made, we will order in camera inspection of those documents to determine whether the agency should have provided portions of the documents pertaining to the plaintiff which did not identify the individuals furnishing the information. 5 U.S.C. § 552a(g)(3)(A).
The government also argues that the plaintiff's allegations are too speculative to support a right to amend or correct his records. This argument is premature. Plaintiff cannot be barred from amending his records before the question of his right to access is decided, and before he has had an opportunity to examine the documents to which he is entitled.
Defendant Blumenthal has moved for dismissal as an improper party defendant. Blumenthal, Secretary of the Treasury, "is sued in his official capacity as custodian of the requested documents, and as head of defendant Department of the Treasury, in which requested documents are located." He is named as a defendant because he is the individual responsible for the policy and decisions of the Department and the final authority on the administration of the Privacy Act and the FOIA within the Department. We see no reason to dismiss him from the action, and will follow those courts which have sustained cases under these statutes against heads of departments. Hamlin v. Kelley, 433 F.Supp. 180 (N.D.Ill.1977).
Plaintiff has moved for partial summary judgment with respect to information provided by Edwin Packer, claiming that Mr. Packer waived any grant of confidentiality by discussing the content of his Secret Service interview with plaintiff's attorney. We disagree and deny the motion. If an individual is to waive the express protections of Section 552a(k)(5), it must be unequivocal. Mr. Packer may have revealed a large portion of the contents of his interview to plaintiff's attorney, but he expressly refused to give a written authorization for release. Affidavit of Mary-Jeanne Bates, ¶ 6. In light of this refusal, it cannot be assumed that he waived a grant of confidentiality by discussing the interview.
We reject plaintiff's argument that each claimed promise of confidentiality should be tested by the standards established for the FOIA trade secrets exemption, 5 U.S.C. § 552(b)(4)....
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