C. Seven Specific Exemptions--5 U.S.C.  552a(k)

5. 5 U.S.C.  552a(k)(5)

"investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section [9-27-75], under an implied promise that the identity of the source would be held in confidence."

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This exemption is generally applicable to source-identifying material in background employment and personnel-type investigative files. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,973-74 (1975); 120 Cong. Rec. 40,406, 40,884-85 (1974), reprinted in Source Book at 860, 996-97. The Court of Appeals for the District of Columbia Circuit has held that exemption (k)(5) is also applicable to source-identifying material compiled for determining eligibility for federal grants, stating that "the term 'Federal contracts' in Privacy Act exemption (k)(5) encompasses a federal grant agreement if the grant agreement includes the essential elements of a contract and establishes a contractual relationship between the government and the grantee." Henke v. United States Dep't of Commerce, 83 F.3d 1445, 1453 (D.C. Cir. 1996). In addition, exemption (k)(5) is applicable to information collected for continued as well as original employment. See Hernandez v. Alexander, 671 F.2d 402, 406 (10th Cir. 1982). In situations where "specific allegations of illegal activities" are being investigated, an agency may be able to invoke subsection (k)(2)--which is potentially broader in its coverage than subsection (k)(5). See, e.g., Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. 1986).

Subsection (k)(5)--known as the "Erlenborn Amendment"--was among the most hotly debated of any the Act's provisions because it provides for absolute protection to those who qualify as confidential sources, regardless of the adverse effect that the material they pro-vide may have on an individual. See 120 Cong. Rec. 36,655-58 (1974), reprinted in Source Book at 908-19.

That aside, though, subsection (k)(5) is still a narrow exemption in two respects. First, in contrast to Exemption 7(D) of the Freedom of Information Act, 5 U.S.C.  552(b)(7)(D) (1994 & Supp. IV 1998), it requires an express promise of confidentiality for source material acquired after the effective date of the Privacy Act (September 27, 1975). Cf. Viotti v. United States Air Force, 902 F. Supp. 1331, 1336 (D. Colo. 1995) (finding that "'express' promise requirement" of subsection (k)(2) was not satisfied when witness "merely expressed a 'fear of reprisal'"), aff'd, 153 F.3d 730 (10th Cir. 1998) (unpublished table decision). For source material acquired prior to the effective date of the Privacy Act, an implied promise of confidentiality will suffice. See 5 U.S.C.  552a(k)(5); cf. Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C. Cir. 1983) (no "automatic exemption" for FBI background interviews prior to effective date of Privacy Act; however, inference drawn that interviewees were impliedly promised confidentiality where FBI showed that it had pursued "policy of confidentiality" to which interviewing agents conformed their conduct). See generally United States Dep't of Justice v. Landano, 508 U.S. 165 (1993) (setting standards for demonstrating implied confidentiality under FOIA Exemption 7(D)). Second, in contrast to the second clause of FOIA Exemption 7(D), subsection (k)(5) protects only source-identifying material, not all source-supplied material. Of course, where source-identifying material is exempt from Privacy Act access under subsection (k)(5), it typically is exempt under the broader exemptions of the FOIA as well. See, e.g., Keenan v. Department of Justice, No. 94-1909, slip op. at 16-17 (D.D.C. Mar. 25, 1997), subsequent decision, slip op. at 5-7 (D.D.C. Dec. 16, 1997); Bostic v. FBI, No. 1:94 CV 71, slip op. at 8-9, 12-13 (W.D. Mich. Dec. 16, 1994); Miller v. United States, 630 F. Supp. 347, 348-49 (E.D.N.Y. 1986); Patton v. FBI, 626 F. Supp. 445, 446-47 (M.D. Pa. 1985), aff'd, 782 F.2d 1030 (3d Cir. 1986) (unpublished table decision); Diamond v. FBI, 532 F. Supp. 216, 232 (S.D.N.Y. 1981), aff'd, 707 F.2d 75 (2d Cir. 1983). One court has held that subsection (k)(5) protects source-identifying material even where the identity of the source is known. See Volz v. United States Dep't of Justice, 619 F.2d 49, 50 (10th Cir. 1980). Another court has suggested to the contrary. Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 576-77 (S.D.N.Y. 1980) (aberrational decision holding addresses of three named persons "not exempt from disclosure under (k)(5) . . . because they didn't serve as confidential sources and the plaintiff already knows their identity").

Subsection (k)(5) is not limited to those sources who provide derogatory comments, see Londrigan v. FBI, 670 F.2d 1164, 1170 (D.C. Cir. 1981); see also Voelker v. FBI, 638 F. Supp. 571, 572-73 (E.D. Mo. 1986). It has also been held that the exemption is not limited to information that would reveal the identity of the source in statements made by those confidential sources, but also protects information that would reveal the source's identity in statements provided by third parties. See Haddon v. Freeh, 31 F. Supp. 2d 16, 21 (D.D.C. 1998). Also, the exemption's applicability is not diminished by the age of the source-identifying material. See Diamond, 532 F. Supp. at 232-33.

However, an agency cannot rely upon subsection (k)(5) to bar a requester's amendment request, as the exemption applies only to the extent that disclosure of information would reveal the identity of a confidential source. See Vymetalik, 785 F.2d at 1096-98; see also Doe v. FBI, 936 F.2d at 1356 n.12 (although documents at issue were not limited to exemption pursuant to subsection (k)(5), noting that subsection (k)(5) would not apply where FBI refused to amend information that had already been disclosed to individual seeking amendment); Bostic, No. 1:94 CV 71, slip op. at 9 (W.D. Mich. Dec. 16, 1994) (application of exemption (k)(5) in this access case is not contrary to, but rather consistent with, Vymetalik and Doe because in those cases exemption (k)(5) did not apply because relief sought was amendment of records).

Note also that OMB's policy guidance indicates that promises of confidentiality are not to be made automatically. 40 Fed. Reg. 28,948, 28,974 (1975). Consistent with the OMB Guidelines, the Office of Personnel Management has promulgated regulations establishing procedures for determining when a pledge of confidentiality is appropriate. See 5 C.F.R.  736.102 (1999); see also Larry v. Lawler, 605 F.2d 954, 961 n.8 (7th Cir. 1978) (suggesting that finding of "good cause" is prerequisite for granting of confidentiality to sources).

Nevertheless, the District Court for the District of Columbia has held that in order to invoke exemption (k)(5) for sources that were in fact promised confidentiality, it is not necessary that the sources themselves affirmatively sought confidentiality, nor must the government make a showing that the sources would not have furnished information without a promise of confidentiality. Henke v. United States Dep't of Commerce, No. 94-0189, 1996 WL 692020, at **9-10 (D.D.C. Aug. 19, 1994). The court went on to state: "[T]he question of whether the reviewers expressed a desire to keep their identities confidential is wholly irrelevant to the Court's determination of whether they were in fact given promises of confidentiality." Id. at *10. On appeal, the Court of Appeals for the District of Columbia Circuit stated that while it "would not go quite that far," as agencies "must use subsection (k)(5) sparingly," agencies may make determinations that promises of confidentiality are necessary "categorically," as "[n]othing in either the statute or the case law requires that [an agency] apply subsection (k)(5) only to those particular reviewers who have expressly asked for an exemption and would otherwise have declined to participate in the peer review process." Henke v. United States Dep't of Commerce, 83 F.3d 1445, 1449 (D.C. Cir. 1996).

Finally, it should be noted that information that originally qualifies for subsection (k)(5) protection should retain that protection even if it subsequently is recompiled into a non-law enforcement record. See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. 1991) (discussed under subsection (j)(2), above); accord OMB Guidelines, 40 Fed. Reg. at 28,971 (same).

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