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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 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 ...

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