B. Two General Exemptions--5 U.S.C.  552a(j)

"The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is--

(1) maintained by the Central Intelligence Agency; or

(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of

(A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;

(B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or

(C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section."

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For cases involving subsection (j)(1), see Alford v. CIA, 610 F.2d 348, 348-49 (5th Cir. 1980), Blazy v. Tenet, 979 F. Supp. 10, 23-25 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Hunsberger v. CIA, No. 92-2186, slip op. at 2-3 (D.D.C. Apr. 5, 1995); Wilson v. CIA, No. 89-3356, 1991 WL 226682, at *1 (D.D.C. Oct. 15, 1991), Bryant v. CIA, No. 90-1163, 1991 U.S. Dist. LEXIS 8964, at *2 (D.D.C. June 28, 1991), and Anthony v. CIA, 1 Gov't Disclosure Serv. (P-H)  79,196, at 79,371 (E.D. Va. Sept. 19, 1979).

Subsection (j)(2)'s threshold requirement is that the system of records be maintained by "an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws." This requirement is usually met by such obvious law enforcement components as the FBI, DEA, and ATF. In addition, Department of Justice components such as the Federal Bureau of Prisons, see, e.g., Kellett v. United States Bureau of Prisons, No. 94-1898, 1995 U.S. App. LEXIS 26746, at **10-11 (1st Cir. Sept. 18, 1995) (per curiam); Duffin v. Carlson, 636 F.2d 709, 711 (D.C. Cir. 1980), the United States Attorney's Office, see, e.g., Hatcher v. United States Dep't of Justice Office of Info. & Privacy Act, 910 F. Supp. 1, 2-3 (D.D.C. 1995), and the Office of the Pardon Attorney, see, e.g., Binion v. United States Dep't of Justice, 695 F.2d 1189, 1191 (9th Cir. 1983), as well as the United States Parole Commission, see, e.g., Fendler v. United States Parole Comm'n, 774 F.2d 975, 979 (9th Cir. 1985); James v. Baer, No. 89-2841, 1990 U.S. Dist. LEXIS 5702, at *2 (D.D.C. May 11, 1990), a United States Postal Service component, the Postal Inspection Service, see Anderson v. United States Postal Serv., 7 F. Supp. 2d 583, 586 n.3 (E.D. Pa. 1998), aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision); Dorman v. Mulligan, No. 92 C 3230 (N.D. Ill. Sept. 23, 1992), and the Air Force Office of Special Investigations, see, e.g., Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1189-90 (10th Cir.), cert. denied, 525 U.S. 1042 (1998); Butler v. Department of the Air Force, 888 F. Supp. 174, 179 (D.D.C. 1995), aff'd per curiam, No. 96-5111 (D.C. Cir. May 6, 1997), also qualify to use subsection (j)(2).

However, it has been held that the threshold requirement is not met where only one of the principal functions of the component maintaining the system is criminal law enforcement. See Alexander v. IRS, No. 86-0414, 1987 WL 13958, at *4 (D.D.C. June 30, 1987) (IRS Inspection Service's internal "conduct investigation" system); Anderson v. United States Dep't of the Treasury, No. 76-1404, slip op. at 6-7 (D.D.C. July 19, 1977) (same). Two courts have held that an Inspector General's Office qualifies as a "principal function" criminal law enforcement component. See Taylor v. United States Dep't of Educ., No. 91 N 837, slip op. at 5 (D. Colo. Feb. 25, 1994); Von Tempske v. HHS, 2 Gov't Disclosure Serv. (P-H)  82,091, at 82,385 (W.D. Mo. Nov. 11, 1981) (IG's office qualifies to use subsection (j)(2), but records at issue did not fall within subsection (j)(2)(B) as they were compiled for "administrative" rather than "criminal" investigative purpose).

Once the threshold requirement is satisfied, it must be shown that the system of records at issue consists of information compiled for one of the criminal law enforcement purposes listed in subsection (j)(2)(A)-(C). Given the breadth of this exemption, an agency's burden of proof is generally less stringent than under the FOIA, at least in the access context. Indeed, several courts have observed that "the Vaughn rationale [requiring itemized indices of withheld records] is probably inapplicable to Privacy Act cases where a general exemption has been established." Restrepo v. United States Dep't of Justice, No. 5-86-294, slip op. at 6 (D. Minn. June 23, 1987) (citing Shapiro v. DEA, 721 F.2d 215, 218 (7th Cir. 1983), vacated as moot, 469 U.S. 14 (1984)); see also Miller v. Director of FBI, No. 77-C-3331, 1987 WL 18331, at *2 (N.D. Ill. Oct. 7, 1987); Welsh v. IRS, No. 85-1024, slip op. at 3-4 (D.N.M. Oct. 21, 1986). Moreover, in access cases the Act does not grant courts the authority to review the information at issue in camera to determine whether subsection (j)(2)(A)-(C) is applicable. See 5 U.S.C.  552a(g)(3)(A) (in camera review only where subsection (k) exemptions are invoked); see also Exner v. FBI, 612 F.2d 1202, 1206 (9th Cir. 1980); Reyes v. Supervisor of DEA, 647 F. Supp. 1509, 1512 (D.P.R. 1986), vacated & remanded on other grounds, 834 F.2d 1093 (1st Cir. 1987). However, this may be a rather academic point in light of the FOIA's grant of in camera review authority under 5 U.S.C.  552(a)(4)(B). See, e.g., Von Tempske v. HHS, 2 Gov't Disclosure Serv. at 82,385 (rejecting claim that "administrative inquiry" investigative file fell within subsection (j)(2)(B), following in camera review under FOIA).

An important requirement of subsection (j) is that an agency must state in the Federal Register "the reasons why the system of records is to be exempted" from a particular subsection of the Act. 5 U.S.C.  552a(j) (final sentence); see also 5 U.S.C.  552a(k) (final sentence). It is unclear whether an agency's stated reasons for exemption--typically, a list of the adverse effects that would occur if the exemption were not available--limit the scope of the exemption when it is applied to specific records in the exempt system in particular cases. See Exner, 612 F.2d at 1206 (framing issue but declining to decide it). As discussed below, a confusing mass of case law in this area illustrates the struggle to give legal effect to this requirement.

Most courts have permitted agencies to claim subsection (j)(2) as a defense in access and/or amendment cases--usually without regard to the specific records at issue or the regulation's stated reasons for the exemption. See, e.g., Castaneda v. Henman, 914 F.2d 981, 986 (7th Cir. 1990) (amendment); Wentz v. Department of Justice, 772 F.2d 335, 337-39 (7th Cir. 1985) (amendment); Fendler, 774 F.2d at 979 (amendment); Shapiro, 721 F.2d at 217-18 (access and amendment); Binion, 695 F.2d at 1192-93 (access); Duffin, 636 F.2d at 711 (access); Exner, 612 F.2d at 1204-07 (access); Ryan v. Department of Justice, 595 F.2d 954, 956-57 (4th Cir. 1979) (access); Anderson v. United States Marshals Serv., 943 F. Supp. 37, 39-40 (D.D.C. 1996) (access); Hatcher, 910 F. Supp. at 2-3 (access); Aquino v. Stone, 768 F. Supp. 529, 530-31 (E.D. Va. 1991) (amendment), aff'd, 957 F.2d 139 (4th Cir. 1992); Whittle v. Moschella, 756 F. Supp. 589, 595-96 (D.D.C. 1991) (access); Simon v. United States Dep't of Justice, 752 F. Supp. 14, 23 (D.D.C. 1990) (access), aff'd, 980 F.2d 782 (D.C. Cir. 1992); Bagley v. FBI, No. C88-4075, slip op. at 2-4 (N.D. Iowa Aug. 28, 1989) (access to accounting of disclosures); Anderson v. Department of Justice, No. 87-5959, 1988 WL 50372, at *1 (E.D. Pa. May 16, 1988) (amendment); Yon v. IRS, 671 F. Supp. 1344, 1347 (S.D. Fla. 1987) (access); Burks v. United States Dep't of Justice, No. 83-CV-189, slip op. at 2 n.1 (N.D.N.Y. Aug. 9, 1985) (access); Stimac v. Department of the Treasury, 586 F. Supp. 34, 35-37 (N.D. Ill. 1984) (access); Cooper v. Department of Justice (FBI), 578 F. Supp. 546, 547 (D.D.C. 1983) (access); Stimac v. FBI, 577 F. Supp. 923, 924-25 (N.D. Ill. 1984) (access); Turner v. Ralston, 567 F. Supp. 606, 607-08 (W.D. Mo. 1983) (access); Smith v. United States Dep't of Justice, No. 81-CV-813, 1983 U.S. Dist. Lexis 10878, at **15-20 (N.D.N.Y. Dec. 13, 1983) (amendment); Wilson v. Bell, 3 Gov't Disclosure Serv. (P-H)  83,025, at 83,471 (S.D. Tex. Nov. 2, 1982) (amendment); Nunez v. DEA, 497 F. Supp. 209, 211 (S.D.N.Y. 1980) (access); Bambulas v. Chief, United States Marshal, No. 77-3229, slip op. at 2 (D. Kan. Jan. 3, 1979) (amendment); Pacheco v. FBI, 470 F. Supp. 1091, 1107 (D.P.R. 1979) (amendment); Varona Pacheco v. FBI, 456 F. Supp. 1024, 1034-35 (D.P.R. 1978) (amendment). But cf. Mittleman v. United States Dep't of the Treasury, 919 F. Supp. 461, 469 (D.D.C. 1995) (finding subsection (k)(2) applicable and citing regulation's stated reasons for exemption of Department of Treasury Inspector General system of records from accounting of disclosures provision pursuant to subsections (j) and (k)(2)), aff'd in part & remanded in part on other grounds, 104 F.3d 410 (D.C. Cir. 1997).

Indeed, the Court of Appeals for the Seventh Circuit has gone so far as to hold that subsection (j)(2) "'does not require that a regulation's rationale for exempting a record from [access] apply in each particular case.'" Wentz, 772 F.2d at 337-38 (quoting Shapiro, 721 F.2d at 218). This appears also to be the view of the Court of Appeals for the First Circuit. See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. 1979) ("None of the additional conditions found in Exemption 7 of the FOIA, such as disclosure of a confidential source, need be met before the Privacy Act exemption applies."); see also Reyes, 647 F. Supp. at 1512 (noting that "justification need not apply to every record and every piece of a record as long as the system is properly exempted" and that "[t]he general exemption applies to the whole system regardless of the content of individual records within it").

In contrast to these cases, a concurring opinion in the decision by the Court of Appeals for the Ninth Circuit in Exner v. FBI articulated a narrower view of subsection (j)(2). See 612 F.2d 1202, 1207-08 (9th Cir. 1980) (construing subsection (j)(2)(B) as "coextensive" with FOIA Exemption 7 and noting that "reason for withholding the document must be consistent with at least one of the adverse effects listed in the [regulation]"). This narrower view of the exemption finds support in two decisions--Powell v. United States Dep't of Justice, 851 F.2d 394, 395 (D.C. Cir. 1988) (per curiam), and Rosenberg v. Meese, 622 F. Supp. 1451, 1460 (S.D.N.Y. 1985). In Powell, the Court of Appeals for the District of Columbia Circuit ruled that "no legitimate reason" can exist for an agency to refuse to amend a record (in an exempt system of records) already made public with regard only to the requester's correct residence address, and that subsection (j)(2) does not permit an agency to refuse "disclosure or amendment of objective, noncontroversial information" such as race, sex, and correct addresses). 851 F.2d at 395. In Rosenberg, a district court ordered access to a sentencing transcript contained in the same exempt system of records on the ground that the "proffered reasons are simply inapplicable when the particular document requested is a matter of public record." 622 F. Supp. at 1460. The system of records at issue in both Powell and Rosenberg had been exempted from subsection (d), the Act's access and amendment provision. Powell, 851 F.2d at 395; Rosenberg, 622 F. Supp. at 1459-60. However, the agency's regulation failed to specifically state any reason for exempting the system from amendment and its reasons for exempting the system from access were limited. Powell, 851 F.2d at 395; Rosenberg, 622 F. Supp. at 1460. Apparently, because the contents of the particular records at issue were viewed as innocuous--i.e., they had previously been made public--each court found that the agency had lost its exemption (j)(2) claim. Powell, 851 F.2d at 395; Rosenberg, 622 F. Supp. at 1460.

The issue discussed above frequently arises when an agency's regulation exempts its system of records from subsection (g)--the Act's civil remedies provision. Oddly, the language of subsection (j) appears to permit this. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,971 (1975). However, in Tijerina v. Walters, 821 F.2d 789, 795-97 (D.C. Cir. 1987), the D.C. Circuit held that an agency cannot insulate itself from a wrongful disclosure damages action (see 5 U.S.C.  552a(b), (g)(1)(D)) in such a manner. It construed subsection (j) to permit an agency to exempt only a system of records--and not the agency itself--from other provisions of the Act. See 821 F.2d at 796-97. The result in Tijerina was heavily and understandably influenced by the fact that subsection (j) by its terms does not permit exemption from the subsection (b) restriction-on-disclosure provision. Id.; see also Nakash v. United States Dep't of Justice, 708 F. Supp. 1354, 1358-65 (S.D.N.Y. 1988) (agreeing with Tijerina after extensive discussion of case law and legislative history).

Other courts have indicated that agencies may employ subsection (j)(2) to exempt their systems of records from the subsection (g) civil remedies provision. However, all of these cases suggest that the regulation's statement of reasons for such exemption itself constitutes a limitation on the scope of the exemption. See Fendler, 846 F.2d at 553-54 & n.3 (declining to dismiss subsection (g)(1)(C) damages action--alleging violation of subsection (e)(5)--on ground that agency's "stated justification for exemption from subsection (g) bears no relation to subsection (e)(5)"); Ryan, 595 F.2d at 957-58 (dismissing access claim, but not wrongful disclosure claim, on ground that record system was exempt from subsection (g) because regulation mentioned only "access" as reason for exemption); Nakash, 708 F. Supp. at 1365 (declining to dismiss wrongful disclosure action for same reason) (alternative holding); Kimberlin v. United States Dep't of Justice, 605 F. Supp. 79, 82 (N.D. Ill. 1985) (same), aff'd, 788 F.2d 434 (7th Cir. 1986); Nutter v. VA, No. 84-2392, slip op. at 2-4 (D.D.C. July 9, 1985) (same); see also Alford, 610 F.2d at 349 (declining to decide whether agency may, by regulation, deprive district courts of jurisdiction to review decisions to deny access).

In contrast to the approach taken in these cases (and in Tijerina), other courts have construed subsection (j)(2) regulations to permit exemption of systems of records from provisions of the Act even where the stated reasons do not appear to be applicable in the particular case. See, e.g., Alexander v. United States, 787 F.2d 1349, 1351-52 & n.2 (9th Cir. 1986) (dismissing subsection (g)(1)(C) damages action--alleging violation of subsection (e)(5)--on ground that system of records was exempt from subsection (g) even though implementing regulation mentioned only "access" as rationale for exemption); Wentz, 772 F.2d at 336-39 (dismissing amendment action on ground that system of records was exempt from subsection (d) even though implementing regulation mentioned only "access" as rationale for exemption and record at issue had been disclosed to plaintiff). Note, however, that the Ninth Circuit's decision in Fendler v. United States Bureau of Prisons significantly narrowed the breadth of its earlier holding in Alexander. See 846 F.2d at 554 n.3 (observing that agency in Alexander "had clearly and expressly exempted its system of records from both subsection (e)(5) and subsection (g) . . . [but that for] some unexplained reason, the Bureau of Prisons, unlike the agency involved in Alexander, did not exempt itself from [subsection] (e)(5)").

Another important issue can arise with regard to the recompilation of information originally compiled for law enforcement purposes into a non-law enforcement record. The D.C. Circuit confronted this issue in Doe v. FBI, 936 F.2d 1346 (D.C. Cir. 1991), in which it applied the principles of a Supreme Court FOIA decision concerning recompilation, FBI v. Abramson, 456 U.S. 615 (1982), to Privacy Act-protected records. It held 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." Doe, 936 F.2d at 1356. As was held in Abramson, the D.C. Circuit determined that recompilation does not change the basic "nature" of the information. Id.; accord OMB Guidelines, 40 Fed. Reg. at 28,971 ("The public policy which dictates the need for exempting records . . . is based on the need to protect the contents of the records in the system--not the location of the records. Consequently, in responding to a request for access where documents of another agency are involved, the agency receiving the request should consult the originating agency to determine if the records in question have been exempted.").

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