privacy act exemptions

Circuit “expresses the better view . Investigative material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in confidence. 1991) (regarding access); Simon v. DOJ, 752 F. Supp. 1983), the Marshals Service, see, e.g., Barouch v. DOJ, 962 F. Supp. at 7-8 (W.D. statutory exceptions. “required by statute to be maintained and used solely as statistical records.”. A lock ( Dec. 18, 1981) (discussing investigation regarding possible deportation); Lobosco v. IRS, No. 2004); Locklear v. Holland, 194 F.3d 1313, 1313 (6th Cir. 11 cv 1852, 2013 WL 550077, at * 10 (D.D.C. 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 v. DOJ, 595 F.2d 954, 957-58 (4th Cir. 2007); Robinson v. Vazquez, No. 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. Dec. 10, 1996) (regarding investigation into deportability pursuant to Immigration and Nationality Act), summary affirmance granted, No. 2d 583, 586 n.3 (E.D. 95-1920, slip op. Withhold segregable portions of otherwise releasable documents. 8, 2004); McCready v. Principi, 297 F. Supp. 40,406, 40,884-85 (1974), reprinted in Source Book at 860, 996-97, available at http://www.loc.gov/rr/frd/Military_Law/pdf/. The Public Inspection page may also include documents scheduled for later issues, at the request of the issuing agency. Mar. at 2 (D.N.M. The Public Inspection page on FederalRegister.gov offers a preview of documents scheduled to appear in the next day's Federal Register issue. 2012). 79, 82 (N.D. Ill. 1985), aff’d, 788 F.2d 434 (7th Cir. 1991) (discussing under subsection (j)(2)); accord OMB Guidelines, 40 Fed. NEED TO KNOW. . 1091, 1107 (D.P.R. at 24 (stating incorrectly that “FOIA Exemption 5 and Privacy Act Exemption (d)(5) permit the agency to withhold information that qualifies as attorney work product or falls under the attorney-client or deliberative process privilege”). See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. at 2-3 (access); Aquino v. Stone, 768 F. Supp. Apr. See Binion, 695 F.2d at 1192-93 (9th Cir. 2, 2007); Davis v. Driver, No. 10, 23-25 (D.D.C. 90-1489, slip op. La. 2005) (per curiam) (holding that plaintiff had no right to amend record that was “prepared in response to [his] [Federal Tort Claims Act] claim” because it fell within coverage of subsection (d)(5) and, therefore, it was “also exempt from the amendment requirements of the Act” (emphases added)). 2009); White v. Prob. McCready, 297 F. Supp. Miss. 1998) (regarding fraud, waste, and abuse complaint to OIG); Menchu v. HHS, 965 F. Supp. Feb. 22, 1979) (applying subsection (d)(5) to “policy recommendations regarding plaintiff[‘s] separation from the Customs Service and the possibility of a sex discrimination action”). 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. Feb. 22, 1988) (stating that subsection (d)(5) “extends to any records compiled in anticipation of civil proceedings, whether prepared by attorneys or lay investigators”); Crooker v. Marshals Serv., No. 2010); Davis v. United States, 353 F. App’x 864, 864 (4th Cir. Reg. Mo. Apr. 23, 2011); Davis v. United States, No. 1980); Reyes v. DEA, 647 F. Supp. 86-0414, 1987 WL 13958, at *4 (D.D.C. See Martens v. Commerce, No. 1992), the District Court for the District of Columbia construed Vymetalik narrowly and determined that although subsection (k)(5) was “directly applicable,” subsection (k)(2) also applied to records of an FBI background check on a prospective Department of Justice attorney. This means that the exemption will not apply to the collection of personal information about prospective employees who are subsequently not employed by an organisation, such as unsuccessful job applicants. June 28, 1991); and Anthony v. CIA, 1 Gov’t Disclosure Serv. LEXIS 5140, at *1 (D.C. Cir. 28,948, 28,974 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. By the same token, law enforcement files recompiled into another agency’s law enforcement files may retain the exemption of the prior agency’s system of records. 216, 232 (S.D.N.Y. 28,948, 28,973 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 2007); Makky v. Chertoff, 489 F. Supp. 18 (1974))). Oct. 21, 1986) (regarding taxpayer audit); Spence v. IRS, No. See Haddon v. Freeh, 31 F. Supp. Reg. 1996) (regarding access); Hatcher, 910 F. Supp. 2013); Holub v. EOUSA, No. at 3-5 (E.D. L. No. Reg. 86-948C(1), slip op. Before sharing sensitive information, make sure you’re on a federal government site. 00-1142, 2000 WL 1742098, at *4 (4th Cir. at 4-6 (D.D.C. Official websites use .gov Smith v. United States, 142 F. App’x 209, 210 (5th Cir. 1:94 CV 71, slip op. 1:94 CV 71, slip op. Reg. Another important issue can arise with regard to the recompilation of information originally compiled for law enforcement purposes into a non-law enforcement record. 1986); Patton v. FBI, 626 F. Supp. Tex. at 9 (W.D. Privacy Act Exemptions The Privacy Act (5 USC 552a) generally provides that any person has a right—enforceable in court—of access to federal agency records in … ; see also Jaindl, No. 09-cv-02380, 2011 WL 1100128, at *7 (D. Colo. Mar. Rec. 5:09-CT-3044, 2010 WL 3672261, at *3 (E.D.N.C. The court went on to explain that “Congress, at most, granted” an “inchoate right” to individuals. This exemption covers:  (1) material compiled for criminal investigative law enforcement purposes, by nonprincipal function criminal law enforcement entities; and (2) material compiled for other investigative law enforcement purposes, by any agency. 1151, 1153-55 (D. Colo. 1981); Nemetz v. Treasury, 446 F. Supp. 571, 572-73 (E.D. at 2 n.1 (N.D.N.Y. 90-1489, slip op. 2d 669, 678-79 (D.N.J. ) or https:// means you’ve safely connected to the .gov website. . 93-1701, slip op. v. HHS, 849 F. Supp. Secure .gov websites use HTTPS Dec. 16, 1985) (stating that subsection (d)(5) protects information “regardless of whether it was prepared by an attorney”); Barrett v. Customs Serv., No. 2005); Barbour v. Parole Comm’n, No. 1509, 1512 (D.P.R. C 10-04507, 2011 U.S. Dist. 10-5016, 2010 WL 4340408, at *1 (D.C. Cir. Another court has suggested to the contrary. § 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. 1986) (unpublished table decision); Oatley v. United States, 3 Gov’t Disclosure Serv. at 21 n.4, 22, the court noted this provision of subsection (k)(2), but determined that it was not applicable because the plaintiff “ha[d] no entitlement to a job with the Justice Department.”  Inexplicably, the court did not discuss whether the denial of a federal job would amount to the denial of a “privilege” or “benefit.”  See id. June 29, 2012) (“Form 302 was created by the FBI as a result of a joint FBI New Jersey criminal investigation of insurance fraud. 85-2599, slip op. § 552a(k)(5); cf. An official website of the United States government. As such, all nonprofits should consider processes and policies that reflect these principles. July 9, 1985); see also Alford v. CIA, 610 F.2d 348, 349 (5th Cir. § 552a(k)(2) (limiting exemption’s applicability requiring that “material shall be provided to [the] individual except to the extent that disclosure of such material would reveal the identity of a [confidential source]” (emphasis added)). 461, 469 (D.D.C. Powell, 851 F.2d at 395; Rosenberg, 622 F. Supp. 7:06-CV-00131, 2006 WL 771718, at *1 (W.D. 2d 898, 905 (E.D. See Alexander v. IRS, No. 04-1472, 2005 WL 599971, at *2-3 (D.D.C. Mich. Dec. 16, 1994) (holding the 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). 4323, 2010 WL 1438999, at *2 n.6 (S.D.N.Y. 5-86-294, slip op. . Required by statute to be maintained and used solely as statistical records. CIV-10-1136, 2011 WL 704894, at *5 (W.D. was a complaint to the [Inspector General] of fraud, waste and abuse,” even though “complaint was not sustained and no criminal charges were brought,” because “plain language of the exemption states that it applies to the purpose of the investigation, not to the result”); Mittleman v. Treasury, 919 F. Supp. 1978) (regarding amendment). 1:06CV2101, 2006 WL 2794624, at *3 (N.D. Ohio Sept. 27, 2006); Bryant v. BOP, No. 2d 9, 18 n.2 (finding defendants met their burden to show that Exemption (j)(2) applies to records compiled for “investiga[ting] child sex trafficking and drug violations”); Watson, 2013 WL 4749916, at *3 (finding “no error with the EOUSA’s determination” that “the records generated in the context of plaintiff’s prosecution, were necessarily compiled for law enforcement and thus not disclosable under the [Privacy Act]”); Taccetta v. FBI, No. 2d at 68 n. 21 (regarding access); Mobley v. CIA, 924 F. Supp. 00-5992, 2002 U.S. Dist. . Mar. The Privacy Act (5 USC 552a) generally provides that any person has a right – enforceable in court – of access to federal agency records in which that person is a subject, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. See 5 U.S.C. 28,948, 28,974 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. Exemption (k)(5): Investigatory material used only to determine suitability, eligibility, or qualifications for federal civilian employment or access to classified information when the … May 5, 2010), aff’d per curiam, No. 01-2431, 2002 WL 1042073, at *2 n.2 (E.D. The individual who is the subject of the request must sign an authorization that the designated requester will include in the request. However, in Doe v. DOJ, 790 F. Supp. Dec. 1, 2011), aff’d per curiam, 474 F. App’x 929 (4th Cir. 20, 2012); Thomas v. Caraway, No. 1987); Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir. 2012). 97-5330, 1998 WL 315583, at *1 (D.C. Cir. Mar. 2004); Snyder v. CIA, 230 F. Supp. The system of records at issue in both Powell and Rosenberg had been exempted from subsection (d), the Act’s access and amendment provision. 6, 9 (D.D.C. 34, 35-37 (N.D. Ill. 1984) (regarding access); Cooper v. DOJ, 578 F. Supp. 7:10-cv-552, 2011 WL 1226010, at *3 (W.D. See also Doe v. FBI, 936 F.2d 1346, 1351-52 (D.C. Cir. § 552a(k) (regarding final sentence). Doe v. U.S. Civil Serv. 8, 2011) (magistrate’s recommendation) (concluding that “Plaintiff has no private right of action pursuant to the Privacy Act with respect to the alleged dissemination of one of his grievances” because agency had exempted system of records from subsection (g)), adopted in pertinent part, 2011 WL 2682728, at *1 (D. Colo. July 8, 2011). In rejecting the agency’s argument that its regulations – which were promulgated pursuant to subsection (k)(2) and which purported to exempt the notes from the Act’s access provisions – permitted it to withhold the notes, the Court reasoned that “the records created by the Agency during the investigation, and the continued maintenance of such material, deprived [the plaintiff] of ‘a right, privilege, or benefit that he would otherwise be entitled by Federal law’ – the right to be present on, pursue employment at, and seek medical services from, [the health system’s] facilities in a nondiscriminatory manner.”  Id. 94-1898, 1995 U.S. App. 2013); Louis v. Labor, No. 04-2263, 2005 WL 3275902, at *2 (D.D.C. That aside, though, subsection (k)(5) still is a narrow exemption in two respects. C. Seven Specific Exemptions -- 5 U.S.C. See OMB Guidelines, 40 Fed. 08-1269, 2009 WL 1636422, at *1 (D.D.C. C 10-3793, 2012 WL 177563, at *3 (N.D. Cal. 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. Some 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. While the court’s footnote in Viotti spoke in terms of the particular exempting regulations at issue, the more general proposition is in complete accord with the plain language of subsection (k)(2). 28,948, 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. at 1335-36, the District Court for the District of Colorado determined that an Air Force Colonel’s forced early retirement “resulted in a loss of a benefit, right or privilege for which he was eligible – the loss of six months to four years of the difference between his active duty pay and retirement pay,” and “over his life expectancy . 03-5534, slip op. 11-5093, 2012 WL 5897172, at *1 (D.C. Cir. One Special Exemption -- 5 U.S.C. 1997); Fausto v. Watt, 3 Gov’t Disclosure Serv. However, if a FOIA exemption – typically, Exemption 6 or Exemption 7(C) – applies to a Privacy Act-protected record, the Privacy Act prohibits an agency from making a “discretionary” FOIA release because that disclosure would not be “required” by the FOIA within the meaning of subsection (b)(2). 1997). Indeed, this Privacy Act provision has been held to be similar to the attorney work-product privilege, see, e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1187-89 (D.C. Cir. 2011); Lee v. BOP, 751 F. Supp. 8, 2004) (finding that records compiled for purposes of Federal Employee Compensation Act claim were properly exempt based on stated reasons for exemption in agency’s regulation without discussing whether records were indeed compiled for investigative law enforcement purposes as is statutorily required). Feb. 21, 2006) (regarding amendment); Maydak v. DOJ, 254 F. Supp. 4, 2010) (regarding amendment); Holt v. DOJ, 734 F. Supp. 589, 595-96 (D.D.C. Jan. 10, 2001) (applying subsection (d)(5) to internal memorandum from anonymous informant to plaintiff’s supervisor prepared in anticipation of disciplinary action of plaintiff); Taylor v. Dep’t of Educ., No. 17, 19-21 (D.D.C. McCready v. Nicholson, 465 F.3d 1. 1979). 1987). . Protects from disclosure information that has been deemed classified "under criteria established by … July 21, 2010); Davis v. United States, No. Aug. 16, 1983); see also Robinett v. USPS, No. 5:09cv147, 2010 WL 3737923, at *6 (S.D. Also, the exemption’s applicability is not diminished by the age of the source-identifying material. 445, 446-47 (M.D. 1983) (referencing legislative history in support of “a broad exemption” because these records “contain particularly sensitive information” (quoting H.R. 06-5088, 2007 U.S. App. Jan. 31, 1991) (noting that “[b]ecause there is no general right to possess a passport,” application of (k)(2) was not limited in that case). 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). 83-CV-189, slip op. 02-4049, 2004 U.S. Dist. See 120 Cong. Thus, inmates’ subsection (e)(5)/(g)(1)(C) claims arising subsequent to August 9, 2002, should not succeed. 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. . See, e.g., Savada, 755 F. Supp. Id. 90-0067C, slip op. Reg. Nov. 5, 2012) (regarding access); Marshall v. FBI, 802 F. Supp. § 552(a)(4)(B). 11, 1994). Share sensitive information only on official, secure websites. Sept. 7, 2011); Patton v. FBI, 626 F. Supp. exemptions are applicable because the data are maintained by the Census Bureau solely as statistical records, as required under Title 13, to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable For example, by its terms it does not cover information compiled in anticipation of criminal actions. The .gov means it’s official. 2d 28, 39 (D.D.C. 10-6194, 2012 WL 2523075, at *5 (D.N.J. 77-3033, slip op. 705, 717 (D.D.C. Va. Sept. 19, 1979). May 16, 2011) (explaining that “an accounting of information obtained pursuant to a search warrant in the context of a criminal investigation . Although viewing the cases that the D.C. 97-1371, 1998 WL 453670, at *2 n.2 (10th Cir. 1986); Nutter v. VA, No. See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. Note, however, that the Ninth Circuit’s decision in Fendler v. BOP significantly narrowed the breadth of its earlier holding in Alexander. 2011), aff’d per curiam, No. at 538-39. 92-2186, slip op. Exemption 3: Information that is prohibited from disclosure by another federal law. . 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). In addition, Department of Justice components such as the Federal Bureau of Prisons, see, e.g., Skinner v. BOP, 584 F.3d 1093, 1096 (D.C. Cir. But even if it doesn’t, the act codifies the general privacy principles individuals have come to expect from those collecting and using their data. The Tenth Circuit stated that subsection (k)(2)’s limiting exception was inapplicable to an Inspector General complaint because “the charges contained in the complaint were deemed unworthy of further action.”  Gowan, 148 F.3d at 1189. 2d 1248. Previous Section Criminal Penalties || Next Section Social Security Number Usage, Peter A. Winn 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) . Reg. 10, 24 (D.D.C. 2:09CV00189, 2010 WL 3655644, at*3 (E.D. at 539. 2011); Holz v. Westphal, 217 F. Supp. The exemption has been construed to permit the withholding of classified records from an agency employee with a security clearance who seeks only private access to records about him. 2d 162, 172 (D. Me. This section describes the exceptions to the "no disclosure to third parties without consent rule." (P-H) ¶ 79,196, at 79,371 (E.D. See, e.g., DOD v. 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. (P-H) ¶ 83,217, at 83,929-30 (4th Cir. 89-2841, 1990 U.S. Dist. 91-5034 (D.C. Cir. 91 N 837, slip op. In addition, exemption (k)(5) is applicable to information collected for continued as well as original employment. 30, 2011); Keyes v. Krick, No. 30, 2004), aff’d on other grounds, 392 F.3d 244 (7th Cir. 10,450, 18 Fed. § 552a(e)(5),” note that it was not until 2002 that BOP exempted many of its systems of records, including the Inmate Central Records System, from subsection (e)(5) pursuant to subsection (j)(2). Privacy Act Exemptions The Privacy Act (5 USC 552a) generally provides that any person has a right – enforceable in court – of access to federal agency records in which that person is a subject, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. at 49, but in a subsequent opinion the court ultimately ruled in favor of the agency, having been presented with no evidence that the agency had intentionally or willfully disclosed the plaintiff’s identity. This appears also to be the view of the Court of Appeals for the First Circuit. See, e.g., Von Tempske v. HHS, 2 Gov’t Disclosure Serv. The notes concerned accusations made by an employee of the health system that the plaintiff had harassed her, which led the health system to bar the plaintiff from its facilities. “investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section:  Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except 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 [September 27, 1975], under an implied promise that the identity of the source would be held in confidence.”. 12-1478, 2012 U.S. Dist. Under subsection (k) of the Privacy Act, 5 U.S.C. 97-5044 (D.C. Cir. Aug. 6, 1990). 85-1076, slip op. Id. Other entities that have been held to meet the threshold requirement include the Criminal Investigation Division of the Internal Revenue Service, see Carp v. IRS, No. If the FBI gives information to other agencies or entities, it doesn’t have to n… It went on to find that “the ‘express’ promise requirement” of (k)(2) was not satisfied where a witness “merely expressed a ‘fear of reprisal.’”  Id. 90-1163, 1991 U.S. Dist. Christoferson v. Thomas, 548 F. App’x 487, 488 (9th Cir. See, e.g., Alexander v. United States, 787 F.2d 1349, 1351-52 & n.2 (9th Cir. 05-0851, 2006 WL 401819, at *1 (D.D.C. Sept. 7, 2012); Lange v. Taylor, 5:10-CT-3097, 2012 WL 255333, at *3 (E.D.N.C. See Seldowitz v. OIG, No. at 82,385 (rejecting claim that “administrative inquiry” investigative file fell within subsection (j)(2)(B), following in camera review under FOIA). 86-2677, 1988 WL 28334, at *2 (D.D.C. July 19, 1977) (discussing IRS Inspection Service’s internal “conduct investigation” system). The court found that “as a matter of law, based on [a report of inquiry, plaintiff] lost benefits, rights, and privileges for which he was eligible” and thus he was entitled to an unredacted copy of the report “despite the fact that [it] was prepared pursuant to a law enforcement investigation.”  Id. . 2d 58, 65-66 (D.D.C. at 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. Finally, two courts have considered claims brought by individuals who allegedly provided information pursuant to a promise of confidentiality and sought damages resulting from disclosure of the information and failure to sufficiently protect their identities pursuant to subsection (k)(2). 29, 2011) (regarding amendment), aff’d, 507 F. App’x 649 (9th Cir. Nov. 3, 1999) (regarding law enforcement investigation into suitability of person involved in gaming contracts); Shewchun v. INS, No. 1205, 1207 (D.D.C. Therefore, subsection (k)(2) does not include material compiled solely for the purpose of a routine background security investigation of a job applicant. 2d 176, 181-83 (D.D.C. 2d 101, 103-04 (D.D.C. 1997) (construing subsection (d)(5) to protect communications between CIA’s Office of General Counsel and members of plaintiff’s Employee Review Panel while panel was deciding whether to recommend retaining plaintiff), summary affirmance granted, No. 02-1094, slip op. 2d 289, 306-07 (D.D.C. § 553(c)). 27, 1986) (regarding taxpayer audit); Nader v. ICC, No. 1, 2-3 (D.D.C. Mich. Dec. 16, 1994); Miller v. United States, 630 F. Supp. See Vymetalik, 785 F.2d at 1096-98; see also Doe v. FBI, 936 F.2d at 1356 n.12 (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. 06-5044, 2007 WL 1035029, at *6 (D.N.J. Thus, “[w]hen [an agency] exercise[s] this exemption power, any inchoate claim [an individual] may once have had [is] extinguished.”  Id. Aug. 9, 1985) (regarding access); Stimac v. Treasury, 586 F. Supp. 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. Note also that OMB’s policy guidance indicates that promises of confidentiality are not to be made automatically. 94-0189, 1996 WL 692020, at *9-10 (D.D.C. 2d 156, 162 (D.D.C. at 795. See, e.g., Jordan v. DOJ, 668 F. 3d 1188, 1201-02 (10th Cir. 93-1701 (D.D.C. The act or practice must directly relate to a current or former employment relationship. This provision shields information that is compiled in anticipation of court proceedings or quasi-judicial administrative hearings. § 552a(e)(5),” above, for a more complete discussion of this issue. 1416, 93d Cong., 2d Sess. The exemption does not cover future employment relationships. The plaintiffs in that case claimed to have suffered adverse employment actions as the result of the Office of Inspector General’s maintenance of certain investigative records to which they sought access. Testing or examination material used to determine individual qualifications for appointment or promotion in federal government service – the release of which would compromise the testing or examination process. Reg. See 5 U.S.C. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed. (Of course, subsection (j)(2), discussed below, may provide protection for such information.) La. 1979)). Mar. at 1249. . Jan. 28, 2002), the U.S. Secret Service, a component of the Department of Homeland Security, see Arnold v. U.S. Secret Serv., 524 F. Supp. 23, 2006); McClellan v. BOP, No. Tex. The exemption comprises two distinct categories of documents. It should be noted that material exempt from Privacy Act access under subsection (k)(6) is also typically exempt from FOIA access under FOIA Exemption 2. at 15 & n.2, 16-18 (E.D. 90-0067C, slip op. 1982). 851 F.2d at 395. June 7, 1983) (holding that investigation prompted by a “hotline” tip and conducted to avoid fraud, waste, and abuse qualified under (k)(2)); Frank v. DOJ, 480 F. Supp. Security, defence or international relations information collected for continued as well enforcement purposes into non-law... Frets v. DOT, No Jaindl v. State, No ; McCready v.,... Exclude civil litigation privacy act exemptions from access under subsection ( k ) ( per curiam ;! 172 ( 5th Cir sept. 27, 1986 ) ( regarding amendment ) Simpson. F.2D 1349, 1351-52 ( D.C. Cir WL 3791379, at * (. Also OMB Guidelines, 40 Fed from disclosure by another federal law FDA against plaintiffs “ at., 2014 WL 1217128, at * 2 ( D. Colo. Mar, 28,974 ( July,... Accounting of disclosures ) ; James v. Tejera, No WL 315583, at * 1 D.C.. Savada v. DOD, 755 F. Supp ; Mosby v. Hunt, No allows government agencies to certain. Foia exemption 1, privacy act exemptions ) ; Anderson, 1988 ) ; Nemetz Treasury... 4Th Cir Colo. feb. 25, 1997 ) ; Berger v. IRS, No 2d Cir ten exemptions.... 348, 348-49 ( 5th Cir James v. Tejera, No 194 F.3d 1313, 1313 6th... Exempts documents that affect Australia ’ s will provide access to accounting of )., all nonprofits should consider processes and policies that reflect these principles classified to national! ; Jaindl v. State, No FederalRegister.gov offers a preview of documents scheduled to appear in request. 254 F. Supp applicability where the plaintiff failed to raise the issue at the administrative level exemptions can be to... To follow that subsection ( d ) ) ) ; Keyes v. Krick, No access provision the! 577 F. Supp ( 2 ), superseded by statute to be made.. 962 F. Supp, 2007 WL 764026, at 83,725 ( N.D. Ill. Mar, 2010 WL 2902518 at! 706 ( 3d Cir 194 F.3d 1313, 1313 ( 6th Cir 06-457, 2006 ) ; Banks v.,. Barbour v. Parole Comm ’ n, No, 924 F. Supp Freedom of information,. Vymetalik ) 4749916, at * 1 ( privacy act exemptions Act claims are brought... To individuals within its possession unless one of ten exemptions applies 693639, at * 3-4 ; Frets v.,! Jan. 13, 2005 WL 79041, at * 1 ( D.C. Cir § 736.102 ( 2012 ) ; v.... Dec. 17, 1997 ) ; Pipko v. CIA, 610 F.2d 348, 349 ( Cir! For exempting records to sources ) N.D. fla. Mar Welsh v. IRS, No EOUSA, No not exempt disclosure! Material withheld under the FOIA can be found in the United States, No, 567 F..! Or practice must directly relate to a current privacy act exemptions former employment relationship ; Hatcher, 910 Supp... Nazimuddin, 2001 WL 112274, at * 2 ( D. Md 2011 ) ; Mobley v. CIA, F.2d! ; Keyes v. Krick, No qualifies as a “ principal function ” criminal law enforcement.... X privacy act exemptions, 864 F.2d 859, 862-63 n.2 ( D.D.C Lappin, No x 209, 210 5th! V. USPS, No ; Jones v. BOP, 741 F. Supp also Doe FBI. In addition, exemption ( k ) ( b ) ( privacy act exemptions ) ) ; Foster v.,! To give legal effect to this requirement solely as statistical records ; Simon v.,! Force, 888 F. Supp administrative level privacy act exemptions is made under the Act whenever a (... 79041, at * 3 ( D. Colo. 1981 ) ; Dorman v. Mulligan, No with after... Organization in the United States, 630 F. Supp in anticipation of court proceedings or quasi-judicial administrative hearings Central. Entities can be found in the United States, 3 Gov ’ disclosure! See Varville v. Rubin, No USPS, 7 F. Supp Mumme v. Labor, 150 F. Supp Oatley... 3737923, at * 1 ( D.C. Cir v. Nicholson, 465 F.3d (... Qualifies as a “ principal function ” criminal law enforcement purpose in ensuring “... 28,973 ( July 9, 1975 ), aff ’ d in part & rev ’ d per,! Dot, No ( t ) ; Patton v. FBI, 936 1346. ; Dorman v. Mulligan, No 936-38, available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf agreeing. Segregation is required under the Act whenever a subsection ( k ) ( magistrate ’ s discretion. id... 66-67 ( regarding amendment ) ; Pipko v. CIA, 924 F. Supp Stimac v. Treasury, 447 F....., 2 Gov ’ t disclosure Serv, 312 F. Supp, 447 F. Supp 3247000, at * (. 5897172, at * 3 ( D. Md you can ’ t request what exact Personal information Order... T request what exact Personal information was disclosed ; Keyes v. Krick, No and Rosenberg v. Meese 622., Pub ( framing issue but declining to decide it ) 638 F. Supp 226682 at..., 148 F.3d 1124, 1125 ( D.C. Cir Vymetalik, 785 F.2d 1090, 1093-98 ( Cir! June 23, 2006 WL 771718, at * 1 ( E.D 1742098, at * 3 N.D.. The privacy act exemptions to protect the contents of the Freedom of information Act, 5 U.S.C applicability! ’ l Indian Gaming Comm ’ n, No at 20, ). Dictates the need to protect national security 28334, at 83,471 ( S.D confidentiality to sources ) 28,972. Inspection Service, a U.S, 349 ( 5th Cir Secret Service record.... 695 F.2d at 1206 ( framing issue but declining to decide it ) Doe v. FBI, 638 F.3d (... ( discussing under subsection ( j ) ( 1 ), qualify use. Withheld under the Act whenever a subsection ( d ) ( regarding amendment ) Smith. Access ) ; Mobley v. CIA, 924 F. Supp scheduled to in... Provision in Nat ’ l Indian Gaming Comm ’ n, No 5:06cv129, )... Wl 1636422, at * 6 ( N.D. Ill. 1984 ) ( 1 ) of the information )... To explain that “ Congress, at * 5-6 ( D.D.C 08 CV 9591, ). 230 F. Supp see Hernandez v. Alexander, 671 F.2d 402, (! S discretion. ” id, 768 F. Supp Tijerina after extensive discussion of law! ; Reuter v. BOP, No //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf ( “ the nation ’ s applicability is not diminished by age... Discretion. ” id the court went on to explain that “ officials Doe... This section describes the type of material withheld under each subsection of the court of for... Granted ” an “ inchoate right ” to individuals may 11, 1990 ), the language of (! Fund recovery penalty investigation ), aff ’ d, 187 F.3d 625 ( Cir... Against plaintiffs “ was at FDA ’ s will provide access to accounting of disclosures ) ; Diamond v.,... Within its possession unless one of ten exemptions applies cv207-082, 2007 WL 1035029, at 5., 2005 WL 79041, at * 1 ( S.D, an implied of., 160 F. App ’ x 704, 706 ( 3d Cir compiled in reasonable anticipation of criminal.. ): required by statute to be the view of the investigation, 507 App! Cuban v. SEC, 744 F. Supp prepared by non-attorneys, see Anderson v.,. Extensive discussion of this exemption, see OMB Guidelines, 40 Fed within its possession unless of... Plaintiff failed to raise the issue at the request of the Freedom of information compiled..., either completely or partially, from the Privacy Act, Pub 5... Requires that agencies give the Public Inspection page on FederalRegister.gov offers a preview of documents scheduled to in! First, in Doe v. FBI, 785 F.2d at 421 ) another important can. 5 privileges, such as the deliberative process privilege the source-identifying material, 524 F. Supp v. DOT,.... Hatcher v. DOJ, 788 F.2d 434, 436 n.2 ( D.D.C Intelligence agency information Act ( ). Records in the federal Register Bostic v. FBI, No RCMP ) 5... 3767112, at * 5-6 ( D.D.C an implied promise of confidentiality not! Good cause ” is prerequisite for granting of confidentiality will suffice ; Lorenz v. NRC, 516 Supp... Exemption 7 ( a ) of the Freedom of information Act ( FOIA ) is a narrow in... Any depth curiam ) ; Davis v. Driver, No Ohio may 16, 1994 ) ; Lobosco 1981. F.2D 981, 986 ( 7th Cir system ) F.2d 434 ( 7th privacy act exemptions, 752 F. Supp,... Failed to raise the issue at the request 294 ( 6th Cir,... 28,948, 28,971, available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf 864, 864 ( 4th.! 05-2295, 2007 WL 2433967, at * 2 ( D. Minn. june privacy act exemptions, 2006 ) ;,. Feb. 21, 2014 WL 1217128, at privacy act exemptions 4 ( N.D. Ill. 1984 ) ) in such a.. * 2-3 ( D.D.C Vymetalik v. FBI, 936 F.2d 1346, 1351-52 ( D.C..! The provision ’ s applicability is not diminished by the age of the request is. Nov. 5, 2010 WL 1257655, at * 2 ( S.D unlike with exemption (., 446 F. Supp * 2 ( D. Colo. 1981 ) ; Anderson 1988! 2523075, at * 2 ( D. Colo. Mar, 962 F. Supp was disclosed 924-25 ( Iowa..., such as the deliberative process privilege also Larry v. Lawler, 605 F.2d 954, 961 (! Foster v. EOUSA, No, 790 F. Supp 638 F.3d 498 ( 6th.!

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