Shapiro v. Drug Enforcement Admin., s. 82-2818
| Decision Date | 02 April 1984 |
| Docket Number | 82-2819,Nos. 82-2818,s. 82-2818 |
| Citation | 721 F.2d 215 |
| Parties | Alfred B. SHAPIRO and Gregory J. Wentz, Plaintiffs-Appellants, v. DRUG ENFORCEMENT ADMINISTRATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry Sullivan, Jenner & Block, Chicago, Ill., for plaintiffs-appellants.
Douglas Letter, Appellate Staff Atty., Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellee.
Before BAUER, WOOD, Circuit Judges, and NEAHER, * Senior District Judge.
Plaintiffs-appellants Shapiro and Wentz each were convicted in unrelated cases of violating 21 U.S.C. Sec. 841 (1980), and both currently are serving prison terms. Shapiro and Wentz filed separate requests with the Drug Enforcement Administration (DEA) seeking access to their DEA files pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (1976) (FOIA) and the Privacy Act, 5 U.S.C. Sec. 552a (1975) (Privacy Act). The district court denied their requests on the ground that the records are exempt under Privacy Act Section (j)(2) (Exemption (j)(2)) and FOIA Section (b)(3) (Exemption 3). We affirm.
In May 1981, Wentz filed a request with the DEA to obtain a copy of the DEA records pertaining to him; Shapiro made his request in October 1981. In April 1982, the DEA notified Wentz that all the documents he requested were in the DEA Investigative Reporting and Filing System and thus were exempt from access pursuant to Exemption (j)(2) of the Privacy Act and Exemption 3 of the FOIA. In June 1982, the DEA notified Shapiro that his request had been denied for the same reasons.
In March 1982, Wentz filed suit to compel release of the documents he had requested. Wentz later added a claim that the agency be required to correct allegedly inaccurate information in his files pursuant to the Privacy Act. Shapiro filed his suit in May 1982.
The district court consolidated the two cases because they raised identical issues. In October 1982, the district court granted the DEA's motions for summary judgment. The court held that the DEA had met the Privacy Act Exemption (j)(2) requirements by exempting these records from disclosure at 28 C.F.R. Sec. 16.98(c). The district court also held that because the Privacy Act is a statute that exempts this information from disclosure, the information is exempt under FOIA Exemption 3 as well. Finally, the court held that since Privacy Act Exemption (j)(2) applies to the Act's correction provisions, Wentz's request for correction of the allegedly inaccurate records also must be denied.
Congress enacted the Privacy Act in 1974. The Act guarantees individuals access to certain agency records about themselves, see 5 U.S.C. Sec. 552a(d), and prevents the release of such records to third parties without the consent of the individual except under specific instances, see 5 U.S.C. Sec. 552a(b). The Privacy Act applies only to agency "records," which the Act defines as agency files or documents about individuals, contained in a "system of records," which is a group of agency records from which an agency retrieves information using the name of the individual or some other personal identifier. See 5 U.S.C. Secs. 552a(a)(4) and (5).
An individual's right of access under the Privacy Act is not unlimited, however. Sections (j) and (k) of the Act give agencies the discretion to refuse to disclose certain records. Under (j)(2), the head of an agency whose principal function is law enforcement may promulgate rules exempting from access any system of records containing information compiled for the purpose of criminal investigation. 1
The DEA has promulgated a regulation pursuant to Exemption (j)(2) that exempts its Investigative Reporting and Filing System from access to individuals. 2 The regulation justifies the exemption on the ground that access to such records would alert a subject to the existence of an investigation and thereby impede law enforcement efforts. 3 As the district court held, this explanation is sufficiently specific to satisfy the (j)(2) requirement that the regulation include reasons why the system is to be exempted.
Appellants' argument that this explanation renders the exemption inapplicable to them because they currently are imprisoned is without merit. First, the fact that appellants already have been convicted does not mean that the DEA is no longer investigating them. Moreover, Exemption (j)(2) does not require that a regulation's rationale for exempting a record from disclosure apply in each particular case. It is sufficient that the system of records be exempted properly, as the DEA has done here.
The DEA supported its motion for summary judgment in each case with an affidavit by Russ Arslan, the chief of the DEA's Freedom of Information Division. The affidavits stated that all references to Wentz and Shapiro are contained in criminal investigatory files that have been exempted according to published regulations. 4
Wentz and Shapiro argue that the Arslan affidavits are insufficient. They contend that this court should require the DEA to prepare a Vaughn index of the requested documents, which would oblige the agency to "specify in detail which portions of the document are disclosable and which exempt." Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1977).
While courts mandate Vaughn indexing where an agency relies solely on an FOIA exemption to withhold information, the procedure does not apply to Exemption (j) of the Privacy Act. The FOIA exemptions are "specific" exemptions that apply only to individual documents; thus, courts require an indexed listing of the requested documents because "[w]hen the Government makes a general allegation of exemption, the court may not know if the allegation applies to all or only a part of the information." Id. at 825. In contrast, Privacy Act Exemption (j) applies to whole systems of records. The only requirements are that the agency's principal function be law enforcement, that the system of records be compiled for the purpose of criminal investigation, and that the agency promulgate regulations exempting the system of records. As already noted, the DEA has met these requirements here. The Privacy Act requires nothing more from an agency seeking the (j)(2) exemption. 5 The district court thus properly held that the requested documents are exempt under the Privacy Act.
Appellants Wentz and Shapiro next argue that they may obtain the requested records under the FOIA. Because their position conflicts with both the statutory language and legislative history of the FOIA and the Privacy Act, we affirm the district court's denial of access under the FOIA as well.
Congress enacted the FOIA in 1966. The Act is a general disclosure statute whose purpose is to promote public access to federal government records. Just as the Privacy Act does not allow unlimited access to agency records, the FOIA contains exemptions that allow an agency to withhold records under certain circumstances; these nine "specific" exemptions are listed at 5 U.S.C. Sec. 552(b).
Exemption 3, 5 U.S.C. Sec. 552(b)(3), provides that the FOIA does not apply to information "specifically exempted" by other statutes. 6 The DEA has relied on Exemption 3 to deny appellants' request. It reasons that because the requested information is exempted from disclosure by the Privacy Act, the information also is unavailable under the FOIA. Wentz and Shapiro contend that the Privacy Act is not an Exemption 3 "statute," and thus the DEA may not use Exemption 3 to deny their request.
The district court held that the Privacy Act is an FOIA Exemption 3 statute. This holding is supported by our decision in Terkel v. Kelly, 599 F.2d 214 (7th Cir.1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980). In Terkel, we held that the FBI was not required to disclose documents under the FOIA that were exempt from release under Privacy Act Exemption (k): "Although the Freedom of Information Act does not contain a comparable exemption, we agree with the lower court that the two statutes must be read together, and that the Freedom of Information Act cannot compel the disclosure of information that the Privacy Act clearly contemplates to be exempt." Id. at 216.
The Fifth Circuit also has held that requesters may not use the FOIA to avoid the Privacy Act nondisclosure provisions. In Painter v. FBI, 615 F.2d 689 (5th Cir.1980), the court specifically held that the Privacy Act is an FOIA Exemption 3 statute. Several recent district court decisions also have held that an agency may not be compelled to disclose information under the FOIA if that information is exempt from disclosure under the Privacy Act. See Martin v. FBI, No. 83 C 123, (N.D.Ill. Sept. 30, 1983); Rachel v. Department of Justice, No. 83 C 0434' (N.D.Ill. Aug. 1, 1983); Turner v. Ralston, 567 F.Supp. 606 (W.D.Mo.1983); Anderson v. Huff, No. 3-82-52 (D.Minn. June 8, 1982); Heinzl v. Immigration and Naturalization Service, No. C-80-1210 (N.D.Cal. Dec. 17, 1981).
On the other hand, two circuit courts recently have held that the Privacy Act is not an FOIA Exemption 3 statute. See Porter v. Department of Justice, 717 F.2d 787 (3rd Cir.1983); Provenzano v. Department of Justice, 717 F.2d 799 (3rd Cir.1983); Greentree v. U.S. Customs Service, 674 F.2d 74 (D.C.Cir.1982).
Appellants urge us to reconsider our holding in Terkel v. Kelly, supra. Upon close examination of both the statutory language and relevant legislative history, we are persuaded to reaffirm our earlier decision. We hold that the district court correctly decided that the Privacy Act's nondisclosure provisions apply to FOIA requests under FOIA Exemption 3.
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