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United States District Court, Northern District of Illinois, E.D

August 11, 1982


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


This case comes to us on the motion of the defendants, the Federal Bureau of Investigation ("FBI") and Department of Justice, for a stay pending appeal of our order issued April 6, 1982. See Antonelli v. Federal Bureau of Investigation, 536 F. Supp. 568 (N.D.Ill. 1982). Plaintiff's complaint is a consolidation of thirty-six separate suits brought by plaintiff against the FBI for failure to respond to requests brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976). In our opinion of April 6 we granted defendants' motion for summary judgment with respect to counts 6, 10, 11, 13, 16, 17 and 36. We also granted defendants' motions for summary judgment as to counts 15, 25, 26 and 28, but without prejudice, and permitted plaintiff to voluntarily dismiss counts 18, 22, 29 and 32. We granted plaintiff's cross motion for summary judgment on count 1. Finally, with respect to counts 2, 3, 7, 8, 19, 30 and 31 we denied both motions for summary judgment and ordered defendant to respond by citing any exemptions under the FOIA within thirty days. Defendants now seek a stay for purposes of appeal only with respect to the last group of claims.

The factors to be considered on a request for a stay pending appeal are (1) whether appellant has made a showing of likelihood of success on appeal, (2) whether appellant has demonstrated a likelihood of irreparable injury absent a stay, (3) whether a stay would substantially harm other parties to the litigation and (4) where the public interest lies. Adams v. Walker, 488 F.2d 1064 (7th Cir. 1973) (citing Miltenberger v. Chesapeake & Ohio Railroad, 450 F.2d 971, 974 (4th Cir. 1971)).

The government has cited new authority in support of its motion. See Defendants' Motion for Stay Pending Appeal ¶ 4. Furthermore, we have discovered significant additional authority on the questions at issue here which the government did not cite but which we believe warrants examination in the context of this case. In light of that authority, and the fact that appellants' likelihood of success on appeal is of prime import in determining whether a stay should be granted, see Adams v. Walker, 488 F.2d at 1065, we take this opportunity to offer some supplemental discussion on that portion of the opinion challenged by the government. We turn first, therefore, to defendants' likelihood of success on the merits of the appeal.

The motion for summary judgment and affidavits submitted by the FBI agents in support of the motion cited § 552a(b) of the Privacy Act, 5 U.S.C. § 552a (1976), as a rationale for refusing to respond to plaintiff's FOIA requests. However, in the legal memorandum submitted by the government there was not a mention of the Privacy Act. Instead it relied entirely on the privacy and law enforcement exemptions contained in the FOIA itself. 5 U.S.C. § 552(b)(6) and (b)(7). See Defendants' Reply Memorandum ¶ 2.*fn1 We rejected the government's contention that the FOIA exemption justified the FBI's refusal to even search their files for the requested material before denying plaintiff's search request. See 536 F. Supp. at 573-75.*fn2 In addition we felt compelled, despite the government's failure to argue the point, to deal with the Privacy Act issue presented in the motion for summary judgment. See id. at 571-73. In light of the new authority which has come to our attention, we review our conclusions below.

The Court of Appeals for the District of Columbia Circuit recently considered in depth the interface between the FOIA and the Privacy Act in Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir. 1982). The court discussed at length the question whether the Privacy Act operates to override the FOIA and permit the withholding of documents based solely on the Privacy Act. Id. at 76-85. The precise question in Greentree is somewhat different than the case at bar. There, the court addressed whether a first party request for information was exempt from disclosure by virtue of the law enforcement exemption contained in 5 U.S.C. § 552a(j)(2) without reference to the FOIA. Id. at 75. The question turned, in brief, on whether 552a(j)(2) qualifies as a specific exemption from disclosure by statute which entitles the government to resist disclosure under the FOIA. See 5 U.S.C. § 552(b)(3). If the Privacy Act section relied on by the government is such a specific exemption from the FOIA, then the question would turn solely on whether the plaintiff has a right to the information under the Privacy Act. Greentree held that § 552a(j)(2) was not a "specific exemption" and therefore the FOIA would have to be considered before disclosure could be successfully resisted. See 674 F.2d at 76-81.

In the case at bar we are confronted with a third party's request for information concerning another person and the specific issue, while related, is whether § 552a(b) constitutes an exemption from the FOIA's duty to disclose the material, absent a signed release from the subject of the inquiry. In our April 6 opinion we relied on section (b)(2) and held that the Privacy Act does not operate as an exemption from disclosure under the FOIA:

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

(2) required under section 552 of the title[.]

5 U.S.C. § 552a(b)(2) (1976) (emphasis supplied). See also Brown v. FBI, No. 79 CV 767 (N.D.N.Y. 1981), aff'd, 658 F.2d 71 (2d Cir. 1981); Florida Medical Ass'n v. HEW, 479 F. Supp. 1291 (M.D.Fla. 1979); Providence Journal Co. v. FBI, 460 F. Supp. 762 (D.R.I. 1978).

The court in Greentree agreed with that conclusion: "We must conclude, . . . 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." 674 F.2d at 79 (emphasis original). In fact, in Greentree the government conceded the very question at issue here:

    The government acknowledges that section (b)(2)
  of the Privacy Act does safeguard FOIA access to
  the public . . .

    "In the vast majority of cases, a third party
  would be protected from obtaining access to
  records about another individual covered by the
  Privacy Act (particularly if they are law
  enforcement records) because of the FOIA privacy
  exemptions (FOIA exemptions 6 and 7(c)). Under
  the balancing test used to implement these
  exemptions such an invasion of privacy is
  permitted only where it is outweighed by a
  countervailing strong public interest in
  disclosure. Dept. of

  Air Force v. Rose, 425 U.S. 352, 370-76 [96 S.Ct.
  1592, 1603-06, 48 L.Ed.2d 11] (1976)."

Id. at 79, 80 (quoting Government's brief at 36 n. 18)). We agree, therefore, with the position taken by the government in Greentree, at least with respect to this issue; it is (b)(7) or the other enumerated exemptions contained in the FOIA which must be relied on in withholding documents requested by a member of the public.

The legislative history of the Privacy Act confirms this view. As originally submitted to committee the House bill contained section (b)(2) as it currently reads. See H.R. 16373, 95th Cong., 2d Sess. 4-5 (1974), reprinted in Senate Comm. on Government Operations, 95th Cong., 2d Sess. Legislative History of the Privacy Act of 1974 242-43 (Comm. Print 1976) (hereinafter cited as "Source Book"). In committee the bill was changed to delete (b)(2) as contained in the original bill. See id. at 22, Source Book at 279. The House committee report indicates an intent on the part of the committee to override the FOIA without obtaining prior written consent:

    Section 552a(b) provides that no Federal Agency
  shall disclose any record containing personal
  information about an individual without his
  approval to any person not employed by that
  agency or to another agency except under certain
  conditions. . . .

    This legislation would have an effect on
  subsection (b)(6) of the Freedom of Information
  Act (5 U.S.C. § 552), which states that the
  provisions regarding disclosure of information to
  the public shall not apply to material "the
  disclosure of which would constitute a clearly
  unwarranted invasion of personal privacy." H.R.
  16373 would make all individually identifiable
  information in Government files exempt from
  public disclosure. Such information could be made
  available to the public only pursuant to rules
  published by agencies. . . .

H.R.Rep. No. 1416, 93d Cong., 2d Sess. 12, 13 (1974), reprinted in Source Book, supra p. 5, at 305-06. This version subsequently passed in the full House.

The version of the Privacy Act enacted by the Senate was substantially different than the one which passed the House. Under the Senate bill as submitted to committee, requests for information about third parties disclosable under the FOIA privacy scheme were not exempted from disclosure by the Privacy Act. See S. 3418, 93d Cong., 2d Sess. § 205(b) (1974), reprinted in Source Book, supra p. 5 at 365, U.S.Code Cong. & Admin.News 1974, p. 6916. The Senate committee then adopted generally the House version of the legislation, but reinstated section (b)(2). See S. 3418, as amended, 93d Cong., 2d Sess. § 552a(b)(2) (1974), reprinted in Source Book, supra p. 5, at 463. The disagreement over the interface between the FOIA and the Privacy Act continued after referral back to the House, with the House again deleting section (b)(2). The matter was finally resolved in favor of the Senate position by way of compromise amendment.*fn3 The purpose of the amendment, which is the current section (b)(2), was explained in an analysis placed in the record by Senator Ervin and Representative Moorhead as chairmen of the respective committees:

    One difficult task in drafting Federal privacy
  legislation was that of determining the proper
  balance between the public's right to know about
  the conduct of their government and their equally
  important right to have information which is
  personal to them maintained with the greatest
  degree of confidence by Federal agencies. The
  House bill made no specific provision for Freedom
  of Information Act requests of material which
  might contain information protected by the
  Privacy Act. . . .

    The Senate bill provided that nothing in the
  act shall be construed to permit the withholding
  of any personal information which is otherwise
  required to be disclosed by law or any regulation
  thereunder. This section was intended as specific
  recognition of the need to permit disclosure under
  the Freedom of Information Act.

    The compromise amendment would add an
  additional condition of disclosure to the House
  bill which prohibits disclosure without written
  request of an individual unless disclosure of the
  record would be pursuant to Section 552 of the
  Freedom of Information Act. This compromise is
  designed to preserve the status quo as interpreted
  by the courts regarding the disclosure of personal
  information under that section.

120 Cong.Rec. 40405, 40406 (1974) ("Analysis of the House and Senate Compromise Amendments to the Federal Privacy Act") (emphasis added), reprinted in Source Book, supra p. 5, at 861; 120 Cong.Rec. 40881, 40881 (1974) (same), reprinted in Source Book, supra p. 5 at 989.

The purpose of § 552a(b)(2) was further explained by James Davidson, Counsel to the Senate Government Operations Subcommittee on Intergovernmental Relations:

  It was not without considerable deliberation[]
  that the mechanism in section b(2) [sic] of the
  Act was chosen to allow present case law to
  control in the balance between requests for
  public disclosure of information held by the
  government and the need to protect the privacy of
  individual citizens.

Section b(2) states that: [quoting the Act]

    In other words, if information about an
  individual would be released under an FOIA Act
  request [sic], it could be released under b(2) of
  the Privacy Act. The standard for release under
  the FOI Act is in section b(6) which permits the
  withholding of information the release of which
  would constitute a "clearly unwarranted invasion
  of personal privacy."

Davidson, The Privacy Act of 1974 — Exceptions and Exemptions, 34 Fed.Bar J. 279, 280 (1975) (footnotes omitted), reprinted in Source Book, supra p. 5, at 1191-92.*fn5 See generally Greentree, 674 F.2d at 81-85.

The legislative history thus confirms the plain language of the statute regarding the interface between the two statutes where a FOIA request is made for information regarding a third party. What nevertheless causes us to review our decision of April 6, is the statement in Greentree that the court was "break[ing] stride" with the Seventh Circuit's reading of the Privacy Act 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).

Terkel involved a request by the plaintiff for information about himself contained in law enforcement and personnel files, a "first party" request. The majority of the court's opinion focused on the justification for withholding information pursuant to § 552(b)(7) of the FOIA. See 599 F.2d at 216, 217-18. The court also cited the Privacy Act, § 552a(k)(5), in permitting the FBI to withhold certain documents concerning the appellant's application for employment with the agency. The court stated:

  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

Id. at 216. It is this statement which forms the basis for the D.C. Circuit's conclusion that Greentree "breaks stride" with the law of this circuit. Regardless of how persuasive we believe the opinion in Greentree to be, if the law of this circuit is to the contrary we are required to follow it. We do not believe, however, that the statement in Terkel controls the case at bar.

We deal here with a totally separate portion of the Privacy Act involving third party rather than first party requests. The former is governed by §§ 552a(b) and 552a(b)(2) which is outlined above. The court in Terkel had no occasion to review or consider section (b)(2) of the Act which specifically exempts from the prohibition on release material required to be disclosed under the FOIA, because first party requests fall under a different section of the statute which does not contain similar language. Section 552a(b) comes into play only where there is no "written request" by or "prior written consent" of the subject of the inquiry. In Terkel, and Greentree as well, plaintiff requested material concerning himself and therefore section (b), and its exemptions, were not at issue. The court focused instead on the restrictions to first party access which follow § 552a(d). Upon finding an applicable exemption in section (k)(5) the court attempted to reach an accommodation between the two statutes to avoid inconsistent results. Since our view is that section (b)(2) incorporates the FOIA for third party requests where no prior consent is obtained, we need not attempt to reconcile any inconsistency in the two statutes. For that reason, we do not believe the statement in Terkel is controlling.

As the length of this review indicates however, we are concerned that our decision here may run contrary to the view expressed in Terkel. It is fair to say that decision is cryptic and we are unsure of the parameters of the "accommodation" between the two statutes envisioned by that case. It is also possible that in light of the decision in Greentree and criticism of the result reached in Terkel the court of appeals may wish to re-examine its position.*fn6 In light of the fact that we believe the questions raised here are substantial, and that the government's position would be mooted if it was compelled to respond to plaintiff's FOIA request prior to appeal, we find that the stay requested by the government is appropriate.

Moreover, the interests of non-parties about whom the information is requested argues for a stay to resolve the matter prior to the FBI's response. And we do not believe the delay occasioned by appeal will burden plaintiff since, under our order of April 6, he is not yet entitled to the material he seeks in any event. The substance of our decision with respect to the counts now challenged by the government was to deny plaintiff's motion for summary judgment; we did not order any material released to the plaintiff, only that the government claim whatever exemptions it seeks under the standards established in this circuit for FOIA cases. See n. 2 supra.

In presenting its motion for a stay the government asserts that the April 6 order is appealable as an injunction against the FBI. See Miller v. Bell, 661 F.2d 623, 625 (7th Cir. 1981). However, unlike Miller, in the instant case we have yet to consider defendants' claims of exemption based on the documents it finds pursuant to plaintiff's FOIA request. Should the court of appeals conclude the April 6 order is not appealable, we will grant a motion to certify under 28 U.S.C. § 1292(b), because the case involves controlling questions of law which will aid in resolution of this and other lawsuits.

The order of April 6, 1982 is ordered stayed until further order of the Court of Appeals.

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