John DOE, Appellee, v. FEDERAL BUREAU OF INVESTIGATION, et al., Appellants. John DOE, Appellant, v. FEDERAL BUREAU OF INVESTIGATION, et al., Appellees.
Nos. 90-5037, 90-5038.
United States Court of Appeals, District of Columbia Circuit.
Argued April 2, 1991. Decided June 28, 1991.
941 F.2d 1346
William A. Isaacson, with whom Mitchell Rogovin and Denitta D. Ascue, were on the brief, Washington, D.C., for appellee in No. 90-5037 and appellant in No. 90-5038.
Before EDWARDS, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion concurring in part and dissenting in part filed by Circuit Judge SENTELLE.
HARRY T. EDWARDS, Circuit Judge:
This case involves a request under the Privacy Act for amendment of records compiled by the Federal Bureau of Investigation (“FBI“). After being denied appointment to a high-level federal position, appellant John Doe obtained access to a background report that had been prepared by the FBI and then used by Government officials in assessing Doe‘s qualifications for the job in question. Believing much of the information in the report to be inaccurate, Doe requested the FBI to expunge certain material. After the FBI denied his request, Doe brought a Privacy Act claim in District Court seeking monetary damages and expungement of both the report and the records in the FBI‘s investigatory files from which the objectionable information had been derived. The District Court ordered the FBI to expunge some of the challenged records, found expungement unwarranted with regard to others and rejected Doe‘s request for damages. Both parties now appeal those portions of the District Court‘s rulings adverse to them.1
We affirm the District Court‘s judgment in part, reverse it in part, and remand one aspect of the case to the District Court for further proceedings. The underlying investigatory records from which the FBI‘s background report was derived were compiled for “law enforcement purposes,” and thus fall within the scope of a FBI regulation exempting such records from the statute‘s amendment requirements. Accordingly, we affirm the District Court‘s judgment denying expungement of some of these records, and reverse its judgment ordering expungement of the rest.
As to the background report itself, we hold that this document, though not compiled for law enforcement purposes, will also qualify for exemption from the Act‘s amendment provisions as a law enforcement record if such treatment is justified by the interests underlying the FBI‘s exemption regulation. However, we are unable to make this determination on the present record; therefore, we remand the case to the District Court for further proceedings directed to this question.
I. BACKGROUND
A. Facts
In 1985, Doe, a physician, applied for a position with the Social Security Administration (“SSA“) as a Deputy Medical Officer. Doe was selected from among 12 applicants and his nomination was submitted to the Qualifications Review Board (“QRB“) of the Office of Personnel Management (“OPM“) for final approval. In the course of investigating Doe‘s background, the QRB submitted a name check request to the FBI. The FBI responded with a two-page Letter Head Memorandum (“LHM“) summarizing information derived from its Central Records System (“CRS“) 2 regarding Doe‘s background and political activities during the late 1960s and early 1970s.
Before any final determination had been
- A description of his arrest and conviction in 1973 on “bombing” charges: Doe pointed out that his arrest and conviction had been for possession of an explosive device and that no actual bombing had occurred; more generally, he objected that any reference to this incident was inappropriate because a Michigan state court had set aside the conviction in 1985 on the basis of Doe‘s rehabilitation and had ordered that all references thereto be expunged.
- A description of an address book seized from Doe‘s home as “containing the names of approximately 1,000 alleged radicals“: Doe maintained that this description mischaracterized the contents of the address book, which consisted of the names of relatives, neighbors, professional associates and individuals with whom he had had professional contacts.
- A report that Doe had appeared on a 1971 radio talk show and stated that he was a Communist who “approved of the overthrow of the government by whatever means necessary“: Doe denied that the alleged incident ever took place.
- A memorandum describing two activist political groups, the Movement for a Democratic Society (“MDS“) and the Students for a Democratic Society (“SDS“), attached to a reference to Doe‘s attendance at a 1969 rally sponsored by these groups: Doe claimed that the inclusion of the memorandum inaccurately implied that he was a member of these organizations.
Complaint Exh. D. The FBI rejected Doe‘s request in a letter dated August 25, 1987. The FBI first noted that it had exempted its CRS by regulation from the Privacy Act‘s amendment provisions, but stated that its policy was to consider each amendment request on a case-by-case basis and to attempt “to reach an equitable determination consistent with the best interests of both the individual and the Government.” Complaint Exh. E at 1. Upon review of Doe‘s letter, the FBI found expungement unwarranted, concluding that Doe had not demonstrated that the LHM contained any factual errors. The FBI agreed, however, to place Doe‘s expungement request in its files and to include a copy of the Michigan state court order expunging Doe‘s explosives conviction within any file that referred to that conviction.
After unsuccessfully appealing the FBI‘s decision within the agency, Doe brought this action in District Court seeking monetary damages under the Privacy Act and expungement of the allegedly inaccurate records under the Act, the Fifth Amendment of the Constitution and common law equity principles.4 Following discovery, both sides moved for summary judgment.
In its decision on these motions, the District Court rejected the FBI‘s threshold argument that its regulation exempting the CRS from the Privacy Act‘s amendment requirements foreclosed Doe‘s expungement claim, holding that an agency exemption has no effect on the agency‘s civil liability for violating the Act. Doe v. FBI, 718 F. Supp. 90, 95 (D.D.C. 1989). On the merits of the amendment claim, the trial court found that both the FBI‘s description of the address book as containing the names of “approximately 1,000 alleged radicals” and its reference to Doe‘s alleged statements on the radio show were inaccu-
B. The Regulatory Framework
Like the pieces of a faulty jigsaw puzzle, the provisions of the Privacy Act frequently leave gaps at the points where they purport to connect; this can make interpretation of the Act a daunting task. Therefore, in order to avoid confusion with respect to the proper application of the statute in this case, we will attempt to set out those pieces of the puzzle relevant to the present dispute.
A principal function of the Act is to require agencies to keep accurate “systems of records.”5 The Act provides that an agency must maintain all records used by it in making determinations about individuals “with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.”
grants individuals the right to obtain access to agency records pertaining to them, and to request amendment of any records they believe to be inaccurate, irrelevant, untimely, or incomplete.
Subsection (g), the Act‘s civil remedies provision, provides an enforcement mechanism for individuals whose rights to accurate record-keeping under the Act allegedly have been violated. Subsection (g) authorizes a private right of action in federal court whenever any agency:
(A) makes a determination under subsection (d)(3) of this section not to amend an individual‘s record in accordance with his request, or fails to make such review in conformity with that subsection; [or]
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
demonstrate actual damages resulting
The obligations created by the Act are not absolute, however. The Act permits agencies to exempt certain systems of records from some of its requirements. Relevant to this case are subsection (j)(2)(B), which authorizes a law enforcement agency to exempt any system of records consisting of “information compiled for the purpose of a criminal investigation ... and associated with an identifiable individual,” and subsection (k)(2), which permits any agency to exempt a system of records containing “investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2).”
II. ANALYSIS
A. Doe‘s Subsection (g)(1)(A) Claim Seeking “Amendment”
Subsection (d), the provision of the Act requiring agencies, inter alia, to entertain and evaluate amendment requests, is one of the provisions from which certain systems of records may be exempted pursuant to subsections (j) and (k). Citing investigative and administrative interests, the FBI has promulgated a rule in accordance with the procedural requirements of subsections (j) and (k) that exempts its CRS to the fullest permissible extent from the requirements of subsection (d). See
1. The Effect of the FBI‘s Exemption Rule Upon Its Liability Under Subsection (g)(1)(A)
We first consider whether the FBI may be held liable for violating the amendment provisions of the Act where it has exempted its records from those provisions. The District Court answered this question in the affirmative, finding that, while “an agency could invoke the exemption to refuse a request for expungement,” it “could not do so if the requestor later brought suit and demonstrated that expungement was warranted.” 718 F. Supp. at 95 n.4. Because we conclude that the District Court‘s narrow construction of the scope of subsection (j) and (k) exemptions cannot be reconciled with the structure and language of the Act, we reverse its holding.
The Privacy Act expressly premises judicial review of amendment claims on agency action either under, or in violation of, subsection (d)(3), the provision of the Act requiring agencies to grant administrative review of their denials of amendment requests. Thus, subsection (g)(1)(A) authorizes civil actions only when an agency “makes a determination under subsection (d)(3) ... not to amend an individual‘s record in accordance with his request, or fails to make such review in conformity with that subsection.”
The District Court nonetheless found de novo consideration of Doe‘s amendment claim to be appropriate under our decision in Tijerina v. Walters, 821 F.2d 789 (D.C. Cir. 1987). In Tijerina, the appellant sued the Veterans Administration (“VA“) for violating provisions of the Act that restrict agencies’ authority to disclose personal information. The VA argued that it could not be held liable for its actions because it had exempted the system of records con-
The District Court erred in finding judicial review in this case to be justified by Tijerina. As the quoted language illustrates, Tijerina merely held that an agency cannot escape liability for violating non-exemptible Privacy Act obligations simply by exempting itself from the Act‘s remedial provisions. Our decision in Tijerina recognized that such purported exemptions would frustrate Congress’ intent that some of the Act‘s requirements constrain all agency record-keeping activity equally.
Considerations of legislative intent dictate a completely different outcome in this case, where the obligation at issue is one from which Congress expressly authorized agencies to exempt some systems of records. Thus, a determination that a civil claim for expungement may be foreclosed by an agency‘s exemption rule is not only consistent with, but necessary to effectuate, Congress’ intent that certain records systems may truly be sheltered from the Act‘s amendment procedures; an agency exemption from subsection (d) would serve little purpose, after all, if the agency were still fully answerable in court for not complying with the demands of that subsection. In sum, as both Tijerina and our decision today recognize, the touchstone for an agency‘s liability to suit under the Act is the substantive obligation underlying the plaintiff‘s claim.
Accordingly, we reverse the District Court and hold that a cause of action under subsection (g)(1)(A) for an agency‘s denial of an amendment request cannot lie with regard to records that the agency has properly exempted from the Act‘s amendment requirements.
2. “Law Enforcement Purpose”
Having concluded that an agency is not liable under subsection (g)(1)(A) for rejecting amendment requests concerning records exempted from subsection (d), we next consider whether the FBI‘s exemption applies to the particular records at issue in this case.
The Privacy Act authorizes agencies to exempt from its access and amendment provisions all systems of records consisting of “investigatory material compiled for law enforcement purposes.” Subsection (j)(2) empowers law enforcement agencies to exempt from subsection (d) certain types of criminal records systems, including those consisting of “information compiled for the purpose of a criminal investigation ... and associated with an identifiable individual,”
Although both subsections (j) and (k) refer to “systems of records,” we have previously held that
The District Court never purported to decide whether the records challenged by Doe qualify as law enforcement records; having erroneously ruled that the FBI‘s exemption regulation could not preclude it from considering the merits of Doe‘s amendment claim de novo, the court had no occasion to consider the possible application of that regulation to the records in this case. With regard to all but one of the challenged records, however, the record is complete and there are no material facts in dispute; we are therefore free to determine the applicability of the FBI‘s regulation to these documents. See Ryan v. Department of Justice, 617 F.2d 781, 789-91 (D.C. Cir. 1980) (appeal of summary judgment decision where, although district court had not decided issue, appellate court made legal conclusion on basis of undisputed facts that certain documents came within FOIA exemption).
In making this determination, we shall borrow the test for “law enforcement purpose” that we devised in Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982), to evaluate the applicability of Exemption 7 of the Freedom of Information Act (“FOIA“),
Under the Pratt test, records kept by a law enforcement agency must meet two criteria in order to qualify as law enforcement records. First, “the agency‘s investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security.” Pratt, 673 F.2d at 420 (emphasis removed). An agency does not satisfy this requirement when “merely engaging in a general monitoring of private individuals’ activities“; rather, the agency must demonstrate a connection between its investigation and the existence of a “possible security risk or violation of federal law.” Id.; cf. Shaw v. FBI, 749 F.2d 58, 64-65 (D.C. Cir. 1984) (Scalia, J.) (exemption extends to investigation, conducted for “federally authorized purpose,” of non-federal crime).
Second, “the nexus between the investigation and one of the agency‘s law enforcement duties must be based on information sufficient to support at least ‘a colorable claim’ of its rationality.” Id. at 421 (emphasis removed). This second requirement is “deferential to the particular problems of a criminal law enforcement agency“; while it is not met where the agency offers a “pretextual or wholly unbelievable” basis for a claim that its investigation was rationally related to its law enforcement duty, a reviewing court “should be hesitant to second-guess a law enforcement agen-
When an agency meets both prongs of the Pratt test, the burden shifts to the plaintiff to produce evidence that the asserted law enforcement rationale for an investigation was in fact pretextual. See Shaw, 749 F.2d at 63-64. If the plaintiff fails to rebut the showing of law enforcement purpose, the agency is entitled to summary judgment. See King v. United States Department of Justice, 830 F.2d 210, 231-32 (D.C. Cir. 1987). We shall divide the FBI records at issue in this case into three categories for purposes of our analysis: the investigatory records compiled after Doe‘s arrest in 1973 on the explosives charge; those compiled prior to that arrest; and the LHM prepared pursuant to OPM‘s name check request.
a. The Post-Arrest Records
The records compiled after Doe‘s arrest, which include the records of his arrest and conviction and a document in the FBI‘s files describing his address book as “containing the names of approximately 1,000 alleged radicals,” clearly constitute law enforcement records for purposes of the Act. These documents were placed in the CRS pursuant to a FBI investigation of Doe‘s unauthorized possession of an explosive device. As Doe concedes, his “commission of [this] crime was a legitimate impetus for an investigation of [his] possible involvement with [the federal crimes of] insurrection, seditious conspiracy and the possession of explosives.”9 Brief for Appellee/Cross-Appellant at 26-27. Thus, the post-arrest records meet the first prong of the Pratt test, because the “investigatory activities that gave rise to the documents” were “related to the enforcement of federal laws.” Pratt, 673 F.2d at 420.
In addition, we find that the FBI possessed a “colorable claim” of rationality for its investigation, thereby satisfying Pratt‘s second prong. Certain materials seized from Doe‘s residence following his arrest resembled those used in recent unsolved bombing incidents in Michigan and neighboring states. Although FBI investigators ultimately concluded that no association could be made between the materials found at Doe‘s residence and those involved in these bombings, Doe‘s unlawful possession of explosives clearly justified the agency‘s investigation of possible further criminal involvement on his part, including the inquiry into his contacts and acquaintances that led to the agency record describing Doe‘s address book. As Doe has failed to point to any evidence that would suggest that the FBI was motivated by anything other than legitimate investigatory concerns, we conclude that the FBI‘s actions leading to the post-arrest records were reasonably related to a “law enforcement purpose.” Consequently, the FBI‘s exemption applies and Doe cannot maintain a subsection (g)(1)(A) action seeking the expungement of these records.
b. The Pre-Arrest Records
The records pertaining to Doe that were compiled prior to his explosives arrest, including references to his attendance at the SDS/MDS-sponsored meeting and the hearsay statement that Doe had admitted to being a Communist who advocated overthrow of the Government by whatever means necessary, were collected pursuant to the FBI‘s Administrative Index (“ADEX“), described by the agency as a “program for identifying individuals who might pose a danger to national security.”10 One of the functions of this highly controversial and now-defunct program was to safeguard the national security from attempts forcibly to overthrow the Government. While the FBI‘s use of the ADEX program in the late 1960s to target those individuals whose political orientation the agency deemed “radical” was misguid-
ed, there can be no denying that the national security interests underlying the ADEX program were within the scope of the FBI‘s law enforcement mission. See Pratt, 673 F.2d at 422 (“whatever we may think of the FBI‘s methods, we cannot conclude therefrom that ... [its] activities ... lacked any law enforcement purpose“). Accordingly, the FBI‘s investigation of Doe satisfies the first prong of the Pratt test, since the “investigatory activities” leading to the creation of the relevant records were directly linked to “the maintenance of national security.”11
As we recognized in Pratt, a law enforcement agency “often must act upon unverified tips and suspicions based upon mere tidbits of information.” 673 F.2d at 421. Although the evidence prompting the FBI‘s investigation of Doe was sketchy at best, Doe has not cited any tangible evidence to indicate that, at the time the FBI included the pre-arrest records in the CRS, its investigation was motivated by anything other than a genuine concern about the national security. Given Pratt‘s deferential standard, we cannot deem the relationship between the investigatory activities leading up to these records and legitimate security concerns to be so tenuous as to render pretextual the FBI‘s assertion of law enforcement purpose. Accordingly, we find that these records are also exempted from subsection (d) pursuant to the FBI‘s exemption regulation, and that Doe may not seek their expungement under subsection (g)(1)(A).
c. The LHM
The final record is the LHM that the FBI prepared for OPM. This document was not created pursuant to a law enforcement investigation; rather, it was prepared to assist the Government in assessing Doe‘s employment application. Doe accordingly argues that the LHM was not “compiled for law enforcement purposes” and is thus subject to the amendment provisions of the Act. Doe claims that such a result is compelled by our holding in Vymetalik that records generated solely as part of routine FBI security checks of federal employment applicants would not qualify for exemption under
Despite Doe‘s assertions, Vymetalik does not resolve the question before us. In that case, the record indicated that the information in the disputed documents had been gathered exclusively for the employment review and not for reasons of law enforcement. The court thus found that the only exemption that appeared applicable to the challenged records was that created by
While the LHM was created solely for employment review, the investigatory material it contained was originally gathered for law enforcement, not employment, purposes. The critical question, then, is whether the FBI‘s investigatory information on Doe lost its exempt status when it was subsequently used, in altered form, for a non-law enforcement purpose.
The Supreme Court confronted a similar issue in the context of a FOIA Exemption 7 claim in FBI v. Abramson, 456 U.S. 615 (1982). In Abramson, the Court held that information contained in records originally compiled for law enforcement purposes does not lose its exempt status under Exemption 7 when later summarized in records compiled for non-law enforcement purposes. To hold otherwise, the Court stated, would be to treat the “originally compiled record and the derivative summary ... completely differently although the content of the information is the same and although the reasons for maintaining its confidentiality remain equally strong.” Id. at 625. The Court deemed it unnecessary to reach this anomalous result, finding the statutory language of FOIA Exemption 7 “reasonably construable to protect that part of an otherwise non-exempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses.” Id. This interpretation, the Court stated, “more accurately reflects the intention of Congress, is more consistent with the structure of the Act, and more fully serves the purposes of the statute.” Id.
Abramson, however, did not involve a Privacy Act exemption claim; therefore, it does not directly control our disposition of this case. Nonetheless, as we have already noted, law enforcement records under the Privacy Act are defined in essentially identical terms as under FOIA: both statutes permit exemption of “investigatory” material “compiled for law enforcement purposes.”13 Given this congruence of the relevant statutory language, we believe that the Court‘s holding in Abramson cannot be ignored in the Privacy Act context. We recognize that a FOIA exemption protects against the disclosure of information, while a Privacy Act exemption of the sort here in issue protects against the amendment or expungement of information that has been disclosed. Thus, the precise concerns motivating the Court‘s decision in Abramson are not present in a Privacy Act case like this one. Nonetheless, in both contexts, there is a threshold inquiry as to whether disputed material is properly characterized as “compiled for law enforcement purposes.” The Court in Abramson said that recompilation does not change the nature of the material, and we do not see how we can avoid this definitional principle in this case. Accordingly, we hold that information contained in a document qualifying for subsection (j) or (k) exemption as a law enforcement record does not lose its exempt status when recompiled in a non-law enforcement record if the purposes underlying the exemption of the original document pertain to the recompilation as well.
Our next task, then, is to determine whether shielding the LHM from the Privacy Act‘s amendment provisions would serve the interests underlying the agency‘s ex-
In contrast, the proper analysis of recompiled records under the Privacy Act requires an additional layer of analysis. In creating subsections (j) and (k) of the Privacy Act, Congress did not delineate the agency interests justifying exemption as it had in FOIA. Instead, with one exception,14 Congress granted agencies broad discretion to exempt all law enforcement records systems from the Act‘s access and amendment provisions, provided that the agencies promulgate their exemption rules in accordance with the rulemaking provisions of the APA, and provide in those rules statements of the reasons for the exemptions. Thus, in determining whether treatment of the LHM as a law enforcement record would promote the purposes underlying the law enforcement exemption, we must look to the reasons that the FBI itself has given for promulgating that exemption.
The FBI‘s exemption regulation provides two justifications for immunizing the CRS from the access and amendment provisions of subsection (d). The first, mirroring Exemption 7 of FOIA, recites the adverse effects that disclosure of investigative records would have upon law enforcement. See
The FBI‘s second reason for exemption applies specifically to the Act‘s amendment provision, subsection (d)(2), and states that exemption from that subsection is appropriate because
to require the FBI to amend information thought to be incorrect, irrelevant or untimely, because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative and investigative burden by forcing the agency to continuously retrograde its investigations attempting to resolve questions of accuracy, etc.
It is quite probable that, given the unsubstantiated nature of the information providing the grist for most law enforcement investigations and the lengthy periods of time that such investigations may cover, subjecting the entire CRS to the amendment requirements of the Act would “create an impossible administrative and investigative burden” for the FBI.15 How-
Subjecting these particular records to the Act‘s amendment requirements is not as clearly necessary to effectuate the purposes behind the agency‘s exemption from these requirements. The District Court noted, see 718 F. Supp. at 108, and the FBI reiterated at oral argument, that the FBI received approximately 2.3 million name check requests in 1985. It appears, however, that only a small fraction of these requests were submitted for non-law enforcement purposes. The Annual Report of the Attorney General for 1985 indicates that the FBI performed only 4,171 employment background checks, and 615 “expanded” name checks, for other agencies;16 the other 2.295 million name checks presumably were conducted for genuine law enforcement purposes, and hence would qualify for subsection (j) or (k) exemption on their own terms.
Accordingly, we cannot conclude on the present record that employment-related FBI name checks should be accorded exempt status under the Privacy Act in order to further the interests underlying the FBI‘s exemption from subsection (d)(2). Instead, we remand this portion of the case to the District Court for further development of the record and a determination as to whether the likely burden to the FBI from processing amendment requests involving non-law enforcement records containing law enforcement information is sufficient to justify exempting such documents from the Act‘s amendment provisions. In other words, the trial court must assess whether exempting these records is justified by the asserted interests underlying the FBI‘s exemption regulations.17
Relevant to this inquiry would be recent statistics on the number of non-law enforcement records containing law enforcement information that the FBI creates for other agencies, as well as the number of amendment requests that the agency receives with regard to such records.
Finally, we reject Doe‘s broader contention that exemption from subsection (d)(2) would be appropriate only if the FBI could demonstrate that complying with the Act‘s amendment procedures with regard to the particular records at issue in this case would impose an “impossible administrative and investigative burden.” The FBI‘s exemption regulation clearly refers to the cumulative burden that the FBI would face were it required to undergo a thorough review of the merits of every amendment request that it received, and to amend each of those records that it determined to be inaccurate or outdated. No single amendment request is ever likely to pose an “impossible administrative and investigatory burden“; rather, it is the processing of a myriad of such requests that might prove onerous and that arguably provides the justification for the agency‘s exemption regulation.18 Accordingly, the District Court should consider upon remand whether the cumulative burden that the FBI would face from having to evaluate and respond to amendment requests involving records in its files compiled for non-law enforcement purposes justifies the exemption of such records as a class from the Act‘s amendment provisions.19
B. The Availability of Relief under Subsection (e)(5)
Doe argues in the alternative that, even if the FBI‘s exemption rule deprives him of a cause of action under subsection
maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.
Doe essentially asks us to fashion an end-run around the Privacy Act‘s specific remedial provisions. The Act provides two avenues of redress for violations of subsection (e)(5). Where an agency has rejected an individual‘s request that it amend its records so as to bring them into compliance with the strictures of this subsection, the individual normally may bring suit under subsection (g)(1)(A). As noted above, however, with the possible exception of the LHM, the FBI‘s exemption from the Act‘s amendment requirements foreclosed subsection (g)(1)(A) review in this case. The other means of redress contemplated by the Act is provided by subsection (g)(1)(C), which authorizes an individual to bring an action whenever an agency
fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
Where Congress has provided specific channels for redressing statutory violations, we must assume that Congress intended those channels to be the exclusive remedies available to claimants. We therefore decline Doe‘s invitation to bypass the prerequisites to liability created by the Act and to recognize an entirely separate remedy arising directly under subsection (e)(5).
C. The Availability of Relief under Subsection (e)(7)
Lastly, Doe argues that, under subsection (e)(7), he was entitled to a declaratory judgment requiring expungement of the records relating to the talk show and the SDS/MDS meeting and the references thereto in the LHM. Subsection (e)(7) provides that an agency shall
maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
III. CONCLUSION
For the foregoing reasons, the District Court‘s judgment is affirmed in part and reversed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
SENTELLE, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority‘s holdings in this case, with the exception of the majority‘s decision to remand to the District Court the question of whether the FBI may exempt its Letterhead Memorandum (“LHM“) from the requirements of the Privacy Act under subsections (j) and (k). Because that question is one of law, rather than fact, I believe it is the role of this Court to determine whether the LHM is exemptible under the statute, and whether the FBI acted reasonably in exempting the LHM given the rationales it has provided. Moreover, upon addressing these questions, I believe the LHM is exemptible, and was properly exempted by the FBI under its existing regulations.
As the majority discusses, the Privacy Act gives an agency the authority to pass regulations exempting a system of records from various provisions of the Act — including, inter alia, those record systems consisting of “information compiled for the purpose of a criminal investigation ... and associated with an identifiable individual,”
As this Court has held previously, an agency may exempt its records from the Privacy Act only if those materials are made exemptible by the statute. Vymetalik v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986). Thus, we must determine whether the LHM is in fact exemptible under subsections (j) and (k). In making this determination, I believe we are guided by the Supreme Court‘s decision in FBI v. Abramson, 456 U.S. 615, 102 S. Ct. 2054, 72 L. Ed. 2d 376 (1982). As the majority notes, that case held that Exemption 7 of the Freedom of Information Act (“FOIA“), exempting from disclosure requirements material compiled for law enforcement purposes, “is reasonably construable to protect that part of an otherwise non-exempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses.” 456 U.S. at 625, 102 S. Ct. at 2061. I believe this conclusion is equally valid with regard to the exemptions from the Privacy Act provided for in subsections (j) and (k).
The majority interprets Abramson as standing for the proposition that “information contained in a document qualifying for subsection (j) or (k) exemption as a law enforcement record does not lose its exempt status when recompiled in a non-law enforcement record if the purposes underlying the exemption of the original document pertain to the recompilation as well.” Maj. Op. at 1356. In Abramson, the majority explains, the purpose of FOIA was to protect the confidentiality necessary for effective law enforcement, while providing public access to government documents. In the context of a FOIA request, any confidentiality would be defeated were
Although the majority believes the same rationale underscored the Privacy Act exemptions at issue here, it argues that the rationale does not apply in the present case, as the material has already been disclosed. Thus, it relies instead on the FBI‘s rationale for exempting the CRS — that a continual obligation to revisit and amend records poses an “impossible administrative and investigative burden.” Maj. Op. at 1357, quoting
The majority argues that this rationale is an insufficient justification for exempting the LHM, citing the FBI figures indicating that, of 2.3 million name check requests processed in 1985, only 4,786 were made for non-law enforcement purposes. Maj. Op. at 1358, citing OFFICE OF THE ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, ANNUAL REPORT OF THE ATTORNEY GENERAL OF THE UNITED STATES, 1985, at 51 (1986). Given this information, the majority concludes that the record is insufficient to allow us to conclude that the LHM is exempt under subsections (j) and (k). Accordingly, the majority remands the issue for the District Court to determine “whether the likely burden to the FBI from processing amendment requests involving non-law enforcement records containing law enforcement information is sufficient to justify exempting such documents from the Act‘s amendment provisions.” Maj. Op. at 1358 (emphasis in original).
Interestingly, the majority goes on to note, in rejecting appellant‘s contention that the FBI must look to the administrative and investigatory burden posed by each individual amendment request, that “[t]he FBI‘s exemption regulation clearly refers to the cumulative burden that the FBI would face were it required to undergo a thorough review of the merits of every amendment request that it received, and to amend each of those records that it determined to be inaccurate or outdated.” Maj. Op. at 1359 (emphasis in original). Thus, the majority on the one hand recognizes that the FBI must generalize in order to function, but on the other defines “non-law enforcement records containing law enforcement information” as a discrete group of records requiring a separate justification in order to warrant exemption.
I believe this approach is inconsistent with the deference this Court shows both to Congress and to an administrative agency‘s application of its regulations. Because Congress left open the purposes and means of exemption by delegating the process of exemption to the agency, the majority imputes the agency‘s justification for exemption to Congress. See Maj. Op. at 1357. Given this justification, it appears to be a reasonable interpretation of the statute to find that amendment of summarizations of exempt materials would be burdensome in the same way as would be amendment of the exempt materials themselves. Indeed, were we to hold otherwise, we would risk creating a means of circumventing the exemption; a name check request could create an opportunity for amendment that would otherwise remain unavailable. Moreover, the majority points to no statutory authority indicating that we must look to the administrative and investigatory burden caused by non-law enforcement name checks alone. Rather, we need only find, as did the Abramson Court, that the exemptions at issue here are “reasonably construable” to include the LHM. Given the FBI‘s justification for the exemption, I believe they are.
The majority would have us base an issue of statutory interpretation on the FBI‘s 1985 figures for name check requests. Were that the case, our holding would be dependant on yearly FBI statistics; for example, were the number of employment-related name checks to increase rapidly in future years, the FBI could argue that our holding was no longer valid. As I believe the LHM is exemptible under the statute, I find the FBI‘s 1985 figures relevant only to determining whether the FBI was reasonable in actually exempting the LHM. An agency‘s application of its own regulations is reviewable under the Administrative Procedure Act only if it is arbitrary, capricious, or an abuse of discretion.
I therefore would find that the LHM is exemptible as a matter of law, and that the