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April 6, 1982


The opinion of the court was delivered by: Marshall, District Judge.


In this thirty-seven count complaint plaintiff Michael C. Antonelli seeks information from the Federal Bureau of Investigation ("FBI") concerning himself and several third parties under the Freedom of Information Act, 5 U.S.C. § 552 (1976) ("FOIA").*fn1 Defendants have moved for summary judgment on twenty of the counts. The summary judgment motion can be dealt with most effectively by breaking it down into six subparts: on seven counts defendants refuse to confirm or deny the existence of any files concerning the subjects of the inquiries, relying on the privacy interests of the third parties;*fn2 on four counts defendants allege that a search of the central files of the FBI failed to reveal any request for the information by the plaintiff and therefore no further search was conducted*fn3; on one count defendants admit receiving plaintiff's request and the written consent of the subject of the inquiry but allege that there are "doubts about the authenticity" of the consent and that it has now been revoked and accordingly, refuse any production*fn4; on one count defendants allege that a search was conducted and no files were found under the name submitted by the plaintiff*fn5; and on another count defendants allege that they are unable to conduct a search because the request by the plaintiff does not correspond to any classification index used by the FBI.*fn6 Defendants have produced a substantial amount of material pursuant to all or part of five of plaintiff's requests, but plaintiff challenges the sufficiency of the production and the exemptions relied on by the FBI in deleting portions of the documents.*fn7 Finally, defendants have offered to produce the requested material for two counts of the complaint if plaintiff tenders the 10¢ per page copying fee, or plaintiff's representatives can examine the material free of charge in the FOIA reading room at the FBI headquarters in Washington, D.C.*fn8 Plaintiff has responded with a cross motion for summary judgment asserting that defendants' response to the complaint is generally inadequate.

The purpose and function of the FOIA are, by now, well known in this circuit and the court sees no need to review them in detail here. See Stein v. Department of Justice and Federal Bureau of Investigation, 662 F.2d 1245 (7th Cir. 1981); Miller v. Bell, 661 F.2d 623 (7th Cir. 1981); 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); Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979); Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977). See also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The Act requires that an initial request to the agency for the release of information be acted upon in ten days and that any denial of release may be administratively appealed and the appeal decided within twenty days. 5 U.S.C. § 552(a)(6)(A)(i) and (ii). See generally Stein, 662 F.2d at 1252. In order to withhold information requested the agency must rely on the specific exemptions set out in § 552(b) of the Act. The agency has the burden of sustaining its claim of exemption and the exemptions are to be narrowly construed in order to further the policy of disclosure which is at the heart of the statute. Department of Air Force v. Rose, 425 U.S. 352, 360-70, 96 S.Ct. 1592, 1598-03, 48 L.Ed.2d 11 (1976); Vaughn v. Rosen, 484 F.2d at 823; Soucie v. David, 448 F.2d 1067, 1080 (D.C. Cir. 1971). This burden can be met if the agency submits affidavits that

  (1) describe the withheld documents and the
  justifications for non-disclosure with reasonably
  specific detail, (2) demonstrate that the
  information withheld falls logically within the
  claimed exemption, and (3) are not controverted
  by either contrary evidence in the record or by
  evidence of agency bad faith. Military Audit
  Project v. Casey, 656 F.2d 724 (1981); Lesar v.
  Dep't. of Justice, 636 F.2d 472 (D.C. Cir. 1980);
  Hayden v. National Security Agency/Central Security
  Serv., 608 F.2d 1381 (D.C. Cir. 1979), cert.
  denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d
  790 (1980); Terkel v. Kelly, 599 F.2d 214. Stein
  v. Dep't. of Justice and FBI, 662 F.2d at 1253.

In conducting its de novo review the district court has discretion to conduct an in camera review of the documents if the public record does not provide a sufficient basis for analyzing the claimed exemption. 5 U.S.C. § 552(a)(4)(B). See Stein, 662 F.2d at 1253. In certain limited situations involving sensitive issues of national security the affidavits themselves may be filed in camera, see Phillipi v. Central Intelligence Agency, 546 F.2d 1009, 1011-13 (D.C. Cir. 1976); Hayden v. National Security Agency/Central Security Service, 608 F.2d at 1384-86, but the general rule is that the affidavits must be filed publicly and the opposing party given the opportunity to criticize and contest the claimed exemptions. Id.

The Privacy Act was passed in 1974 in part to promote greater respect for the privacy of citizens by government and prohibit unnecessary and excessive exchange of personal information within the government and to outside individuals. See S.Rep. 93-1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916; see also Florida Medical Ass'n v. Department of Health, Education & Welfare (HEW), 479 F. Supp. 1291, 1305-07 (M.D. Fla. 1979); Local 2047, American Federation of Government Employees v. Defense General Supply Center, 423 F. Supp. 481, 483-86 n. 9-10 (E.D.Va. 1976).

The FBI's position on the impact of the Privacy Act is set out in the detailed affidavit of agent Donald Smith. (Hereinafter "Smith Aff."). In essence the Bureau is of the opinion that the Privacy Act overrides the FOIA and prohibits the disclosure of any "personal" information about a third party without their notarized authorization. Smith Aff. ¶ 68. Moreover, "[t]he FBI has further advised [plaintiff] that to confirm or deny investigative interest in the individual identified by plaintiff would, of itself, reveal personal information concerning a third party." Id.

The defendants' position was expressly rejected by Congress in drafting the Privacy Act and, so far as we have been able to discover,*fn* every court that has considered it. The Act itself states:

    (b) Conditions of disclosure. — 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 the disclosure of the record would
  be —
    (2) required under section 552 of this title;
  5 U.S.C. § 552a(b)(2) (1976) (emphasis supplied).

Thus, the Privacy Act was not intended to override the FOIA and in operation only prohibits the release of information not covered by the FOIA or the discretionary release of material which, while exempt from the FOIA, the agency might have previously chosen to release. See Providence Journal Cov. F.B.I., 460 F. Supp. 762, 767 (D.R.I. 1978). If a request is made of an agency under the FOIA, disclosure is mandatory unless one of the enumerated exemptions applies. See Florida Medical Association v. HEW, 470 F. Supp. at 1306 ("Thus, since the Privacy Act expressly defers to the mandatory disclosure provisions of the FOIA, . . . ., information which is not exempt under Exemption 6 from disclosure would receive no Privacy Act protection."). See also Brown v. FBI, No. 79 CV 767, slip op. at 10 (N.D.N.Y. 1981) ("In considering the federal Privacy Act disclosure exemptions alone, it is apparent that plaintiff is barred under it from obtaining the records requested unless disclosure is required under the FOIA. . . . Since disclosure may be warranted under the FOIA, as provided for in 5 U.S.C. § 552, the Court must examine the FOIA exemptions to determine whether the[y] are applicable here.") (emphasis supplied), aff'd, 658 F.2d 71, 76 (2d Cir. 1981) ("[T]he decision to disclose or withhold the requested information depends entirely on the interpretation and applications of the claimed [FOIA] exemptions."); Providence Journal Co. v. F.B.I., 460 F. Supp. 762, 767 (D.R.I. 1978) ("Thus an agency which is required to disclose material under FOIA (that is material not covered by a FOIA exemption) can release it without bringing into play the requirement of § 552a(b) that permission first be obtained."). The position of the defendants in this litigation that they are prohibited by the Privacy Act from even searching for files under the names submitted by plaintiff absent prior written authorization is clearly erroneous. The only way defendants can resist plaintiff's FOIA requests is to rely on one of the enumerated exemptions in the Act and meet their burden of establishing that the exemption applies to those records. Defendants have failed to meet their burden in this case.*fn9

In their brief and the affidavit of agent Smith defendants rely on the exemptions provided by § 552(b)(6), (7)(C) and (7)(D). Those provisions permit the agency to withhold "personnel and medical files and similar files" and/or "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records" constitutes a "clearly unwarranted invasion of personal privacy" or would disclose the identity of a confidential source.*fn10 Smith Aff. ΒΆΒΆ 71, 74-79. Defendants do not, however, apply the exemptions to particular files because, as we indicated earlier, ...

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