ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: GIBBONS and HUNTER, Circuit Judges, and MANSMANN,*fn* District Judge
Judith R. Porter and Gerald J. Porter of Ardmore, Pennsylvania, appeal from a summary judgment in favor of the Department of Justice in their suit under the Freedom of Information Act, 5 U.S.C. § 552 (1982), to compel disclosure of information about them in the files of the Federal Bureau of Investigation. The trial court granted summary judgment on two grounds: that the Privacy Act, 5 U.S.C. § 552a (1982), is a nondisclosure statute within the meaning of the Freedom of Information Act; and that in any event the material sought is exempt from disclosure under the Freedom of Information Act. We reverse, and remand for further proceedings.
In March of 1981 Mr. Porter wrote to the FBI Freedom of Information Act Director requesting copies of any files kept on him or his wife. The letter indicated that it was his understanding that the FBI investigated them in 1972. On May 11, 1981, the Chief of the FBI Records Management Division informed them that the central records system at FBI Headquarters in Washington revealed no information indicating that they had ever been subject to investigation by the Bureau. The request was forwarded to the Bureau's Philadelphia Office. On June 4, 1981, that office informed the Porters that a "main" file concerning Judith R. Porter had been located, and that this file contained a reference to Gerald.
The file was referred to FBI Headquarters, which on June 18, 1981, informed the Porters that Judith R. Porter was the subject of a limited security investigation, initiated to determine if any activity on her part constituted a risk to national security. They were also informed that the investigation was closed after it was determined that no such risk existed, and that the file contained a reference to Gerald. Finally, they were told that the file consisted of five pages, all of which was classified pursuant to the national defense and foreign policy exemption to the Freedom of Information Act.*fn1
The Porters filed an administrative appeal to the Office of Privacy and Information Appeals of the Department of Justice, pointing out that it was a total mystery to them what activity they had engaged in could have prompted an investigation of their risk to national security. They requested that if their appeal be denied, the government inform them:
1. On what date was the investigation of Judith R. Porter begun and when was it concluded;
2. What activity or activities of Judith R. Porter prompted the investigation;
3. Do the five pages of classified information contain letters written by Judith R. Porter, transcripts of public statements made by Judith R. Porter, or newspaper reports of her activities;
4. Do the references to Gerald J. Porter pertain to activities in which he engaged or are they simply a mention of the fact that he is the spouse of Judith R. Porter; and
5. At what future date is it anticipated that the file will be declassified?
On September 30, 1981, the Activity Director of the Office of Privacy and Information appeals ruled:
After careful consideration of your appeal, I have decided to affirm the initial action in this case. The material pertaining to you is classified and I am affirming the denial of access to it on the basis of 5 U.S.C. [ § ] 552(b)(1). This material, along with a copy of your appeal letter, is being referred to the Department Review Committee to determine whether it warrants continued classification under Executive Order 12065. You will be notified of the Committee's final decision results in the declassification of any information. . . .
The September 30, 1981 letter advised the Porters of their right to seek judicial review of the ruling, and on June 18, 1982 they filed their complaint in this action.
In answer to the complaint the Department of Justice contended for the first time that the Freedom of Information Act did not afford the Porters a remedy, but that the Privacy Act of 1974, 5 U.S.C. § 552a (1982), is their exclusive remedy. The Department contended, as well, that under the Privacy Act the materials sought were exempt from disclosure. Moreover, according to the Justice Department, even if the Freedom of Information Act were to apply to the Porters, the materials would be exempt under 5 U.S.C. § 552(b)(3) (1982), which provides that the Act does not apply to matters
(3) specifically exempted from disclosure by statute . . ., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
According to the Justice Department, section (j)(2) of the Privacy Act, 5 U.S.C. § 552a(j)(2) (1982), is such an exemption statute.
The Porters served interrogatories seeking to learn the basis for the Justice Department's claim of exemption. These the Department refused to answer. Instead it moved for a protective order on which the trial court never ruled. While the motion was pending the Department moved for summary judgment, relying on the affidavit of Special Agent Douglass Ogden. This affidavit was served on the Porters.
The Ogden affidavit recounted the administrative history of Porter's information request and described generally the manner in which the five page file was retrieved. As to the file's contents, Ogden stated:
One FBIHQ "main" file containing the results of the Philadelphia FBI investigation was located wherein Judith R. Porter was the subject. This file reflected a preliminary investigation initiated to determine if a specific activity of Judith R. Porter constituted a risk to national security. The investigation was predicated upon possible violations of Federal law, including, but not limited to, Title 18, U.S.C. Sections 792 et seq. (Espionage); 2152 et seq. (Sabotage); Title 22, U.S.C., Section 611 et seq. (Foreign Agent Registration Act); and Title 50, U.S.C., Section 401 et seq. (National Security Act of 1947). The investigation was closed after it was determined that no violation of Federal law had occurred and that Judith R. Porter constituted no risk to the national security.
Ogden also stated that the requested records were maintained in the Bureau's Central Record System which has by regulation been exempted from access pursuant to exemption (j)(2) of the Privacy Act, 5 U.S.C. § 552a(j)(2)(1982). He stated further that the file fell within Freedom of Information Act exemption 1, covering national defense and foreign policy materials. Finally, Ogden noted that after the lawsuit began the Bureau had reviewed the file and declassified "a small amount of material." The declassified material was not revealed, however, because in the Department's view the entire file, even though party declassified, was still covered by Privacy Act exemption (j)(2).
The Porters attempted to depose Agent Ogden, but the Department moved for a protective order, which on October 13, 1982, the trial court granted, ...