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,” 5 U.S.C. § 552a(j)(2)(B), and those systems containing “investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2),” 5 U.S.C. § 552a(k)(2). In accordance with these provisions, the FBI passed regulations exempting its Central Records System (“CRS”) from subsection (d), under which appellant presently seeks to amend his file and the LHM. 28 C.F.R. § 16.96(a)(1).
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 *1362a summary of law enforcement materials found to be non-exempt.
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 28 C.F.R. § 16.96(b)(2)(iii).
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. 5 U.S.C. § 706. Cf. also Transcanada Pipelines Ltd. v. FERC, 878 F.2d 401, 411 (D.C.Cir.*13631989) (“this court is obliged to give considerable deference to the agency’s interpretation of its own regulation, according it controlling weight unless it is plainly erroneous or inconsistent with the regulation”). While the majority clearly believes amendment of over 4,000 non-law enforcement name check requests per year does not pose an administrative or investigatory burden, we cannot say that the agency’s decision to the contrary 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 FBI acted reasonably in exempting the LHM given its perception of the administrative and investigatory burdens that would ensue were the LHM not exempt. For this reason, I would depart from the decision of the majority to remand this issue to the District Court.