FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY M. LOUIS, DPM,
Plaintiff-Appellant,
No. 04-35389
v.
U.S. DEPARTMENT OF LABOR, an D.C. No.
CV-03-05534-FDB
executive department of the
OPINION
United States,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
February 16, 2005—Seattle, Washington
Filed August 15, 2005
Before: Betty B. Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge B. Fletcher
10601
10604 LOUIS v. U.S. DEP’T OF LABOR
COUNSEL
Kenneth G. Kieffer, Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, LLP, Tacoma, Washington, for the
appellant.
Peter A. Winn, Assistant United States Attorney, Seattle,
Washington, for the appellee.
LOUIS v. U.S. DEP’T OF LABOR 10605
OPINION
B. FLETCHER, Circuit Judge:
Plaintiff Jeffrey Louis appeals from the district court’s
grant of summary judgment on his claims for disclosure of
documents by the Department of Labor (“Department”) under
the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Infor-
mation Act (“FOIA”), 5 U.S.C. § 552.1 Louis contends a sys-
tem of records from which he sought information about
himself was improperly exempted by the Department pursu-
ant to subsection (k)(2) of the Privacy Act, 5 U.S.C.
§ 552a(k)(2), because the Department did not comply with the
rulemaking procedures of the Administrative Procedure Act
(“APA”) in exempting the system. Louis further contends that
the Department’s belated reliance on subsection (d)(5) of the
Privacy Act, 5 U.S.C. § 552a(d)(5), which exempts from dis-
closure “any information compiled in reasonable anticipation
of a civil action or proceeding,” is improper “post-hoc ratio-
nalization” for the Department’s decision to withhold infor-
mation because it did not assert this exemption during the
administrative proceedings.
We hold that the Department failed to follow the APA’s
rulemaking procedures for designating its system of records
as exempt, and therefore cannot rely on this exemption to
withhold documents from Louis. However, because an agen-
cy’s withholding of information under the Privacy Act is
reviewed de novo by the district court, we hold that the
Department may rely on § 552a(d)(5) to withhold documents
that were compiled in anticipation of litigation, even though
it raised this provision for the first time before the district
court. Because the Department’s description of the withheld
documents demonstrates that each falls within the scope of
1
In this opinion, we address only Louis’ Privacy Act claims. The FOIA
claims are addressed in a separate disposition. We refer to the FOIA
claims as necessary to provide context.
10606 LOUIS v. U.S. DEP’T OF LABOR
subsection (d)(5), we affirm the judgment of the district court
as to Louis’ Privacy Act claims.
I.
From 1986 to 1988, Dr. Jeffrey Louis was employed as a
podiatric surgeon with the Department of Veterans Affairs.
He claims to have become disabled as a result of his employ-
ment, and thus filed for disability workers’ compensation in
1993. For reasons not completely explained in the record and
beyond the scope of the current appeal, that claim is still
pending before the Office of Workers’ Compensation Pro-
grams (“OWCP”) within the Department of Labor.2
After a series of agency decisions and appeals, one of
which was to this court,3 Louis made a series of Privacy Act
requests to the Department of Labor between August 7, 2002,
and October 27, 2002. The Department eventually denied
access to the records in a letter decision, stating that all of the
requested records were exempt from disclosure under the Pri-
vacy Act, indirectly relying on 5 U.S.C. § 552a(k)(2) as
grounds for exemption of the system of records in which the
documents were located. The agency then released some doc-
uments under FOIA, but continued to assert that a subset of
the documents were exempt from disclosure under Exemption
5 of FOIA, which covers privileged and attorney work-
product materials. The parties agree that this letter constitutes
the agency’s original partial denial of Louis’ requests.
Louis appealed this initial decision to the Solicitor of
2
Although Louis was employed by the Department of Veterans Affairs,
workers’ compensation claims are handled by the OWCP.
3
See Louis v. Dep’t. of Labor, No. 99-36092, 2001 WL 804102 (9th Cir.
July 17, 2001) (unpublished disposition) (awarding statutory damages and
attorney fees in favor of Louis for Department of Labor’s failure to main-
tain appropriate records and its “attempts to circumvent the protections of
the Privacy Act”).
LOUIS v. U.S. DEP’T OF LABOR 10607
Labor. The reviewing officer again determined that all of the
information sought by Louis was contained in the “DOL/
SOL-15” system of records, a system which had been desig-
nated as an “exempt system” under 5 U.S.C. § 552a(k)(2).
Specifically, the reviewing officer explained that the system
of records had been properly exempted from disclosure by the
agency, citing to the Federal Register, in which the Depart-
ment purportedly gave notice of the exemption. See Notices,
67 Fed. Reg. 16816, 16941 (April 8, 2002). The officer fur-
ther explained that because the records sought by Louis were
located in “SOL files maintained for the purposes of defend-
ing the Department of Labor in law suits and claims filed
against it,” they “were prepared for a law enforcement pur-
pose,” and were therefore exempt from disclosure. The
reviewing officer went on to determine that some additional
documents should be disclosed under FOIA, but still withheld
certain groups of documents under Exemptions 2 (internal
procedures) and 5 (privilege and work product) of FOIA. 5
U.S.C. §§ 552(b)(2) & (b)(5).
Louis then filed a complaint in district court challenging
the agency’s reliance on the (k)(2) exemption of the Privacy
Act and Exemptions 2 and 5 of FOIA. When the plaintiff
began serving discovery requests on the Department, the
Department moved for a protective order. Louis moved to
compel the requested discovery, seeking to obtain discovery
related to the designation of the DOL/SOL-15 database as an
“exempt system” and the Department’s methodology in
searching for responsive documents. During the pendency of
these motions, the Department filed its motion for summary
judgment, arguing that the DOL/SOL-15 database had been
properly exempted from disclosure under the Privacy Act by
promulgation of an agency rule. In the alternative, the Depart-
ment argued for the first time that the requested information
was properly withheld pursuant to § 552a(d)(5). In his cross-
motion for summary judgment, Louis submitted a list specifi-
cally identifying fifteen documents sought under the Privacy
Act. The district court granted the Department’s motion for a
10608 LOUIS v. U.S. DEP’T OF LABOR
protective order, thereby prohibiting any discovery, and
directed the parties to proceed with briefing the cross-motions
for summary judgment.
Louis filed a motion for a continuance under Federal Rule
of Civil Procedure 56(f), seeking much of the same discovery
he had moved for in his motion to compel. The district court
denied the Rule 56(f) motion and granted the Department’s
motion for summary judgment. The court held both that the
system of records in which the requested information was
located had been properly exempted from disclosure under the
Privacy Act by administrative rule, and that disclosure of the
records was barred under subsection (d)(5) of the Privacy Act.4
The court specifically found that the “rule” promulgated by
the Department was valid.
Because Louis brought this suit under the Privacy Act and
the Freedom of Information Act, 5 U.S.C. §§ 552a and 552,
respectively, jurisdiction was proper in the district court pur-
suant to 28 U.S.C. § 1331. We have jurisdiction under 28
U.S.C. § 1291 over this direct appeal of a final judgment of
the district court. Our review of the district court’s grant of
summary judgment under the Privacy Act is de novo. Rose v.
United States, 905 F.2d 1257, 1259 (9th Cir. 1990); see also
5 U.S.C. § 552a(g). We also review de novo determinations
regarding the scope of the notice-and-comment and publica-
tion requirements of the APA. Natural Res. Def. Council, Inc.
v. Evans, 316 F.3d 904, 910 (9th Cir. 2003).
II.
The Privacy Act of 1974 requires each agency that main-
tains a “system of records” to provide access to an individu-
4
The court also held that the documents were properly withheld under
Exemption 5 of FOIA, and we review that determination in our concur-
rently filed memorandum disposition. The Department no longer relies on
Exemption 2 as a basis for withholding.
LOUIS v. U.S. DEP’T OF LABOR 10609
al’s “record or to any information pertaining to him” by that
individual. 5 U.S.C. § 552a(d)(1). However, the Act specifi-
cally provides that “nothing in this section shall allow an indi-
vidual access to any information compiled in reasonable
anticipation of a civil action or proceeding.” Id. § 552a(d)(5).
In addition, the Act provides a mechanism by which an
agency may promulgate rules in accordance with the APA in
order “to exempt [certain] system[s] of records within the
agency” from disclosure. Id. § 552a(k). Relevant to the pres-
ent appeal, agencies may under most circumstances exempt
systems that consist of “investigatory material compiled for
law enforcement purposes.” Id. § 552a(k)(2).
Louis argues that the Department’s “rule” exempting the
DOL/SOL-15 system of records did not follow the APA’s
procedures and is therefore invalid, and that the DOL cannot
rely on § 552a(d)(5) because the final agency determination
did not rely on this section. We address each of these argu-
ments in turn.
A. Exemption by Rule pursuant to § 552a(k)(2)
Louis argues that the agency never properly invoked sub-
section (k)(2) because it did not appropriately give notice of
a proposed rulemaking in accordance with the requirements of
the APA, 5 U.S.C. § 553, as incorporated at 5 U.S.C.
§ 552(a)(k). Specifically, Louis argues that the Department
did not properly publish a notice of proposed rulemaking in
accordance with 5 U.S.C. § 553(b), and did not properly
solicit public comment in accordance with 5 U.S.C. § 553(c).
[1] Section (b) of the APA requires a notice of proposed
rulemaking to include:
(1) a statement of the time, place, and nature of
public rulemaking proceedings;
(2) reference to the legal authority under which the
rule is proposed; and
10610 LOUIS v. U.S. DEP’T OF LABOR
(3) either the terms or the substance of the pro-
posed rule or a description of the subjects and
issues involved.
5 U.S.C. § 553(b). In turn, Section (c) requires in pertinent
part:
After notice required by this section, the agency
shall give interested persons an opportunity to partic-
ipate in the rule making through submission of writ-
ten data, views, or arguments with or without
opportunity for oral presentation. After consideration
of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general
statement of their basis and purpose.
5 U.S.C. § 553(c).
1. Sufficiency of the Department’s Notice
[2] Subsection (e)(4) of the Privacy Act requires each
agency that maintains a system of records to publish informa-
tion pertaining to each system, including: the system’s name,
the categories of individuals covered by the system, the cate-
gories of records contained within the system, routine uses for
the records, and policies and practices regarding storage,
retrieval and access to records. Id. § 552a(e)(4)(A)-(I). Sub-
section (e)(4) does not require or suggest that the agency
include in its notice whether a particular system of records is
exempt from disclosure.
In April of 2002, the Department published an updated
notice of all systems of records entitled “Publication in Full
of All Notices of Systems of Records Including Several New
Systems; Publication of Proposed Routine Uses.” 67 Fed.
Reg. at 16816. That notice, which unequivocally states that it
was published in accordance with subsection (e)(4) of the Pri-
vacy Act, contained the required information for scores of
LOUIS v. U.S. DEP’T OF LABOR 10611
systems of records maintained by the Department. Id. at
16816-16948. Yet nowhere in its introductory section does
the notice mention that the agency is proposing to exempt cer-
tain systems from disclosure. Id. at 16816. Instead, in the
description of certain individual systems, the Department
included a statement that the system was exempt from disclo-
sure under the Privacy Act, citing the statutory provision
relied upon and giving a justification for the exemption. For
example, with respect to the DOL/SOL-15 database at issue
in the present appeal, the agency stated:
SYSTEM EXEMPTED FROM CERTAIN PROVI-
SION OF THE ACT:
Under the specific exemption authority provided
by 5 U.S.C. 552a(k)(2), this system is exempt from
the following provisions of the Privacy Act : 5
U.S.C. § 552a . . . (d) . . . . Disclosure of information
could enable the subject of the record to take action
to escape prosecution and could avail the subject
greater access to information than that already pro-
vided under rules of discovery. In addition, disclo-
sure of information might lead to intimidation of
witnesses, informants, or their families, and impair
future investigations by making it more difficult to
collect similar information.
67 Fed. Reg. at 16942.
[3] In general, the notice and comment provisions of the
APA require an agency to publish a notice of “proposed” rule-
making, then allow for comment before publishing a “final”
rule that includes a discussion of the comments received. See
Nat’l Tour Brokers v. United States, 591 F.2d 896, 901-902
(D.C. Cir. 1978) (rejecting procedure of publishing final rule
with opportunity for reconsideration). “Th[e] requirement is
designed to give interested persons, through written submis-
sions and oral presentations, an opportunity to participate in
10612 LOUIS v. U.S. DEP’T OF LABOR
the rulemaking process.” Erringer v. Thompson, 371 F.3d
625, 629 (9th Cir. 2004) (quoting Chief Prob. Officers of Cal.
v. Shalala, 118 F.3d 1327, 1329 (9th Cir. 1997). The test for
sufficiency of the notice is whether the notice “fairly
apprise[s] interested persons of the subjects and issues before
the Agency.” Natural Res. Def. Council v. EPA, 279 F.3d
1180, 1186 (9th Cir. 2002) (quoting Natural Res. Def. Coun-
cil v. EPA, 863 F.2d 1420, 1429 (9th Cir. 1988). “[A]n inter-
ested member of the public should be able to read the
published notice of an application and understand the ‘essen-
tial attributes’ of that application. . . . [and] should not have
to guess the [agency’s] ‘true intent.’ ” State of California ex
rel. Lockyer v. FERC, 329 F.3d 700, 706-07 (9th Cir. 2003)
(noting connection between Due Process Clause and notice
provisions).
[4] With these basic principles in mind, we conclude that
the notice in this case was insufficient. While it is true that
each of the components of section 553(b) are technically pres-
ent in the Federal Register notice published by the Depart-
ment, the presentation of the information obscures the intent
of the agency and allows for broad exemption of records sys-
tems through the back door. Rather than a “notice of proposed
rule,” the Department’s notice was simply entitled “Notices,”
with a subtitle reading, “Privacy Act of 1974; Publication in
Full of All Notices of Systems of Records Including Several
New Systems; Publication of Proposed Routine Uses.” See 67
Fed. Reg. at 16816. Everything about the title and introduc-
tory paragraphs of the notice indicates that the Department is
simply complying with subsection (e)(4) of the Privacy Act.5
5
The opening paragraphs of the Department’s notice contain a section
labeled “ACTION” and a section labeled “SUMMARY.” The described
agency “action” involves publication of notices of systems including sev-
eral new systems, publication of “a new universal routine use for all sys-
tems,” publication of several “proposed system specific routine uses,” and
some “substantive amendments.” The “summary” expands on this infor-
mation only slightly, and notes that thirty-one systems will be deleted.
Additional sections called “Background” and “The Current Action”
explain more specifically the information contained in the notice, but none
of these sections includes the word “exempt.”
LOUIS v. U.S. DEP’T OF LABOR 10613
Id. Nothing in those sections indicates that the agency pro-
poses to exempt systems from access. This omission allows
potentially controversial subject matter — exemption of entire
systems of records from public disclosure laws — to go unno-
ticed buried deep in a non-controversial publication generally
describing existing systems and their contents. We cannot say
that an “interested member of the public [would] be able to
read the published notice” and “understand [its] ‘essential
attributes.’ ” See State of California ex rel. Lockyer, 329 F.3d
at 707. Indeed, a member of the public would likely read the
first few pages of this document and conclude that this was
a simple disclosure made by the Department pursuant to
(e)(4), not a proposed rule exempting certain records systems
from disclosure.
While we have yet to address the sufficiency of a notice of
proposed rulemaking in a factual context substantially similar
to that presented in the present case, we note that cases from
at least two other circuits are instructive to our analysis and
support our view. In McLouth Steel Products Corp. v.
Thomas, 838 F.2d 1317 (D.C. Cir. 1988), the D.C. Circuit
stressed the importance of a notice’s heading and summary in
“alert[ing] a reader to the stakes.” Id. at 1322-23. In that case,
the court held that the EPA’s failure to mention its use of a
particular diagnostic model to evaluate potentially hazardous
wastes in the summary of the proposed rule rendered its
notice inadequate as to its use of that model. Id.; see also
AFL-CIO v. Donovan, 757 F.2d 330, 339 (D.C. Cir. 1985)
(holding rule invalid where no notice given of an important
change between proposed and final rule; some changes to rule
were highlighted in the notice of proposed rulemaking, giving
impression that only highlighted portions had been selected
for change).
Similarly, in American Iron and Steel Institute v. EPA, 568
F.2d 284 (3d Cir. 1977), the Third Circuit declared a rule
invalid where the notice of proposed rulemaking failed to
indicate that the proposed rule would apply to steelmaking, as
10614 LOUIS v. U.S. DEP’T OF LABOR
opposed to other processes involved in iron and steel manu-
facturing. Id. at 291. The court specifically determined that
such a defect in the notice of proposed rulemaking rendered
it ineffective at enabling an “interested person . . . to make
comments which could assist the [agency] in formulating
[the] regulations.” Id.
[5] Again, in the present case the Department’s notice only
indicates that it is publishing information about hundreds of
pre-existing systems of records, with a few additions and
deletions. The introductory sections of the notice speak of
compliance with subsection (e)(4) of the Privacy Act, and
indicate that there have been changes to the universe of sys-
tems, but do not refer to subsection (k)(2) and do not mention
“exemptions” at all. Under these circumstances, we conclude
that the Department’s notice was insufficient in that it does
not “fairly apprise interested persons of the subjects and
issues before the Agency.” See Natural Res. Def. Council,
279 F.3d at 1186.
2. Comment Period Requirement
[6] Louis next argues that the Department failed to comply
with the requirements of § 553(c) of the APA because the
notice failed to give a meaningful opportunity to comment on
the exemption of records systems. 5 U.S.C. § 553(c). This
argument flows directly from the improper notice given by
the agency. Although the notice invited comment “on newly
published systems and on the proposed routine uses, both uni-
versal and specific,” 67 Fed. Reg. at 16816, there was no spe-
cific invitation to comment on the exemption of systems from
disclosure. The Department thus never afforded itself the
opportunity “to educate itself on the full range of interests the
rule affects” with respect to the exempted systems. See
Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984); see also
Pac. Coast European Conference v. United States, 350 F.2d
197, 205 (9th Cir. 1965). In short, the Department did not
comply with the comment provision of the APA.
LOUIS v. U.S. DEP’T OF LABOR 10615
[7] In summary, subsection (k)(2) of the Privacy Act by its
text requires that a rule be promulgated in accordance with the
notice and comment provisions of the APA. We hold that
mere notice of an agency’s invocation of subsection (k)(2) to
exempt information from the Act’s disclosure requirements,
when published under headings indicating that the purpose of
the publication is compliance with a routine reporting require-
ment of the statute, is insufficient to constitute the kind of
notice of proposed rulemaking and invitation to comment
required by the APA. Exemption from the Privacy Act’s fun-
damental requirement that an individual have access to an
individual’s “record or to any information pertaining to him”
collected by the government is a serious matter requiring the
strictest compliance with the APA’s rulemaking procedures.
The Department may not withhold documents contained in
the DOL/SOL-15 system of records on the basis of the (k)(2)
exemption.
B. Bar to Access pursuant to 5 U.S.C. § 552a(d)(5)
Although the Department’s “rule” exempting the DOL/
SOL-15 system of records is invalid, the requested documents
may be withheld if they fall within the scope of subsection
(d)(5) of the Privacy Act, even though the Department relied
on this subsection for the first time during the district court
proceedings. Louis argues that the district court’s alternative
holding that subsection (d)(5) barred access to certain docu-
ments was improper because the agency never relied on this
exception when it issued its final disclosure determination.
Specifically, Louis asserts that the Department’s belated reli-
ance on subsection (d)(5) is a post-hoc rationalization prohib-
ited by SEC v. Chenery Corp., 318 U.S. 80 (1943) (“Chenery
I”) and its progeny.
This argument fails for two reasons. First, review of agency
access decisions under FOIA and the Privacy Act is de novo,
requiring no deference to the agency’s determination or ratio-
nale regarding disclosures. Second, the text and structure of
10616 LOUIS v. U.S. DEP’T OF LABOR
the statute lead us to conclude that because Louis never had
a right to access individual records prepared in anticipation of
litigation, he cannot now claim access to them on a theory that
the agency passively waived this exception.
[8] Subsection 552a(g)(3)(A) of the Privacy Act provides
that where a suit is brought under subsection (g)(1)(B) for
failure to comply with a records request (as is the present
case), “the court shall determine the matter de novo . . . and
the burden is on the agency to sustain its action.” 5 U.S.C.
§ 552a(g)(3)(A). The Supreme Court has recently noted that
this provision means that no deference is due the agency’s
determination of which records to disclose and which are
exempt. Doe v. Chao, 540 U.S. 614, 618-19 (2004) (distin-
guishing de novo review from “any form of deferential
review”).
The rationale behind the Chenery I Court’s refusal to
accept belated justifications for agency action not previously
asserted during the agency’s own proceedings does not apply
in this case. Chenery I was premised on the policy that courts
should not substitute their judgment for that of the agency
when reviewing a “determination of policy or judgment which
the agency alone is authorized to make and which it has not
made.” 318 U.S. at 88. “[A]n appellate court cannot intrude
upon the domain which Congress has exclusively entrusted to
an administrative agency. Id. In the present case, review of
documents for disclosure under the Privacy Act is not an
action that is within the particular expertise of any agency,
and Congress has expressly instructed courts to review such
actions de novo. 5 U.S.C. § 552a(g)(3)(A). As such, judicial
review is not limited to the justification for withholding of
documents originally relied upon by the agency. Cf. SEC v.
Chenery Corp., 332 U.S. 194, 196-97 (1947) (“Chenery II”)
(“[A] reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized
to make, must judge the propriety of such action solely by the
grounds invoked by the agency.”).
LOUIS v. U.S. DEP’T OF LABOR 10617
Our opinion in Friends of the Coast Fork v. United States
Department of the Interior, 110 F.3d 53, 55 (9th Cir. 1997),
is distinguishable in that it discussed post-hoc rationalization
under FOIA’s fee waiver provision, which specifically pro-
vides that although review of agency determinations on such
waivers is de novo, “the court’s review of the matter shall be
limited to the record before the agency.” 5 U.S.C.
§ 552(a)(4)(A)(vii). The judicial review provision relevant to
this case contains no such limiting language. See 5 U.S.C.
§ 552a(g)(3)(A).6
[9] We note that in the FOIA context,7 at least one other
circuit has concluded that an agency does not waive exemp-
tions prior to litigation in the district court.8 Young v. CIA,
972 F.2d 536, 538-39 (4th Cir. 1992) (“[A]n agency does not
waive FOIA exemptions by not raising them during the
administrative process. . . . [W]aiver is inappropriate because
6
Nor, for that matter, does the general judicial review provision under
FOIA. See U.S.C. § 552(a)(4)(B).
7
The scope of the exception to disclosure under subsection (d)(5) of the
Privacy Act is somewhat different than that of Exemption 5 of FOIA in
that it does not incorporate civil discovery privileges. Martin v. Office of
Special Counsel, 819 F.2d 1181, 1187-88 (D.C. Cir. 1987). Instead, it
refers to all “information” rather than communications or facts. This dis-
tinction, while important, does not affect our analysis here.
8
The instant case should be distinguished from cases involving rational-
izations or new arguments made for the first time on appeal from the dis-
trict court to the circuit court. See, e.g., Jordan v. United States Dep’t of
Justice, 591 F.2d 753, 779-80 (D.C. Cir. 1978), overruled on other
grounds by Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d
1051 (D.C. Cir. 1981) (holding that although government could rely on an
exemption it raised for the first time in the district court, it could not do
so for the first time in the appellate court because otherwise there would
be prejudice to requesting party who had had no opportunity to challenge
and test the agency’s evidence with respect to the applicability of the
exemption). Here, we address only the issue of whether, under the de novo
review provided for in the Privacy Act, a district court may consider and
rely on an agency’s assertion of a different rationale for non-disclosure in
district court than the agency originally proffered during the administra-
tive proceedings.
10618 LOUIS v. U.S. DEP’T OF LABOR
[inter alia] FOIA provides for de novo judicial review.”); see
also Ryan v. Dep’t. of Justice, 617 F.2d 781, 792 (D.C. Cir.
1980) (“This court has held that an agency must identify the
specific statutory exemptions relied upon, and do so at least
by the time of the district court proceedings.” (emphasis
added) (citing Jordan v. United States Dep’t of Justice, 591
F.2d 753, 779-80 (D.C. Cir. 1978), overruled on other
grounds by Crooker v. Bureau of Alcohol, Tobacco & Fire-
arms, 670 F.2d 1051 (D.C. Cir. 1981))).
[10] The text and structure of the statute also suggest that
passive waiver of the (d)(5) exception is inappropriate, at least
until the parties reach the district court. While subsection
(d)(1) requires that agencies “upon request by any individual
to gain access to his record or to any information pertaining
to him . . . permit him . . . to review the record and have a
copy made,” subsection (d)(5) states that “nothing in this sec-
tion shall allow an individual access to any information com-
piled in reasonable anticipation of a civil action or
proceeding.” Unlike the section (k) exemptions, which require
an agency to exempt a system from access through rulemak-
ing, subsection (d)(5) is a self-executing exception to the gen-
eral access granted to individuals in subsection (d)(1). Put
another way, the right to access granted by subsection (d)(1)
is expressly qualified by subsection (d)(5). Because an indi-
vidual has no right to even demand such information, there
would be no need for the agency to actively assert (d)(5) as
an applicable exception to disclosure. Louis never had a right
to access records prepared in reasonable anticipation of litiga-
tion. Thus, he cannot now claim a right to access simply
because the Department did not specifically rely on that spe-
cific exemption when it made its initial determination.
[11] For the above-stated reasons, it was entirely proper for
the district court to consider the Department’s argument that
the documents sought were barred from disclosure by subsec-
tion (d)(5). Turning now to the merits, we conclude that the
descriptions of the documents sufficiently indicate that each
LOUIS v. U.S. DEP’T OF LABOR 10619
is a communication or writing specifically related to the ongo-
ing agency proceeding and eventual litigation with Louis.
Each document therefore falls within the scope of (d)(5)’s
intended protection against disclosure of any “information”
compiled in anticipation of a civil action or proceeding.9
III.
In sum, we conclude that the Department failed to comply
with the notice and comment provisions of the Administrative
Procedure Act in its attempt to exempt the DOL/SOL-15 sys-
tem of records from access under Privacy Act subsection
(k)(2). However, we also conclude that the district court’s
reliance on the Privacy Act’s litigation exception to access as
prescribed by subsection (d)(5) of the Act was proper.
Because review of information for disclosure is not a task that
has been entrusted to the Department of Labor, and because
the statute specifically provides for de novo review by the
courts, we refuse to apply the general bar against post-hoc
rationalization by an agency originally set forth in Chenery I.
On the merits, we find the descriptions of the documents
sought sufficient to conclude that each falls within the (d)(5)
exception.10
AFFIRMED IN PART.
9
Louis does not seriously challenge the designation under the Privacy
Act of the described documents as having been compiled in anticipation
of civil proceedings, instead confining his arguments to the post-hoc ratio-
nalization aspect of the invocation of the exception. Nevertheless, we took
the extraordinary step of requiring that the documents be submitted to the
court under seal for in camera inspection. We have examined each docu-
ment, and have concluded that each falls within the (d)(5) exemption.
10
Because we ultimately determine that the documents were withheld
appropriately, we need not address whether the district court abused its
discretion in refusing to allow the plaintiff discovery into the Depart-
ment’s decision to designate the DOL/SOL-15 database as an exempt sys-
tem.