This section describes the exceptions to the "no disclosure to third parties without consent rule." Under the existing law, entities may be exempt from the … Smith v. United States, 142 F. App’x 209, 210 (5th Cir. The exemption comprises two distinct categories of documents. 1981), aff’d, 707 F.2d 75 (2d Cir. May 6, 1997). 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. Commerce, 83 F.3d 1445, 1453 (D.C. Cir. § 16.97 (2012). 4:12-CV-2072, 2013 WL 2151638, at *3 (N.D. Ohio May 16, 2013); Andrews v. Castro, No. 1995), aff’d per curiam, No. 1980) (holding the addresses of three named persons “not exempt from disclosure under (k)(5) . See generally DOJ v. Landano, 508 U.S. 165 (1993) (setting standards for demonstrating implied confidentiality under FOIA Exemption 7(D)). For the last 18 years, most financial services businesses could sum up their privacy practices with just four letters: G-L-B-A, also known as Title V of the Gramm-Leach-Bliley Act, Public Law 106-102, and its implementing regulations (“GLBA”). C 09-5581, 2011 WL 1298763, at *6 (N.D. Cal. 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. Oct. 21, 1986). Mar. 1987). 7:06-CV-00131, 2006 WL 771718, at *1 (W.D. 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. 10-5296, 2011 WL 3240492, at *1 (D.C. Cir. Apr. See 120 Cong. 1983), vacated as moot, 469 U.S. 14 (1984)); see also Schulze v. FBI, No. 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. 2011) (regarding access to accounting of disclosures); Murray v. BOP, 741 F. Supp. the difference in pay between the amount of his retirement pay for twenty-six years of active duty versus thirty years of active duty.” Id. at 2-3 (access); Aquino v. Stone, 768 F. Supp. 4323, 2010 WL 1438999, at *2 n.6 (S.D.N.Y. 10,450, 18 Fed. Reg. 36,655-58 (1974), reprinted in Source Book at 908-19, available at http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf. Nov. 2, 1982) (regarding amendment); Nunez v. DEA, 497 F. Supp. 2010); Sheppard v. Revell, No. This exemption provision reflects Congress’s intent to exclude civil litigation files from access under subsection (d)(1). 27, 1986) (regarding taxpayer audit); Nader v. ICC, No. 2d 23, 34-35 (D.D.C. 76-1404, slip op. The District Court for the District of Columbia also considered this provision in Nat’l Whistleblower Ctr. The D.C. For cases involving subsection (j)(1), see Alford v. CIA, 610 F.2d 348, 348-49 (5th Cir. 2005); Pipko v. CIA, 312 F. Supp. More recently, the District Court for the District of Oregon applied the “Provided, however” provision to interview notes compiled by the Office for Civil Rights of the Department of Health and Human Services in the course of its investigation of a discrimination complaint filed by the plaintiff against a health system. 2d 13, 23 (D.D.C. 13 (RCMP) (SOR/90-149) Exempt Personal Information Bank Order, No. Sept. 27, 2005); Anderson, 1988 WL 50372, at *1. 1980) (declining to decide whether agency may, by regulation, deprive district courts of jurisdiction to review decisions to deny access). at 2-3 (D.D.C. (quoting Exec. 51,754 (Aug. 9, 2002)). 2012) (regarding amendment); Adionser v. DOJ, 811 F. Supp. Miss. § 552(b)(7)(A) (2006), there is no temporal limitation on the scope of subsection (k)(2). Criminal law enforcement records exempt under 5 U.S.C. Individuals may authorize others to request records on their behalf, such as family members or legal representatives. because they didn’t serve as confidential sources and the plaintiff already knows their identity”). The Court of Appeals for the Sixth Circuit has considered this issue as well. Tex. . Protects from disclosure information that has been deemed classified "under criteria established by … The District Court for the District of Columbia has rejected the argument that an agency failed to comply with subsection (k) because the agency’s statement of reasons for exempting the system of records “appears only in the Federal Register, and not in the Code of Federal Regulations where the rule was eventually codified.” Nat’l Whistleblower Ctr. 2d 16, 21 (D.D.C. at 3, 6 (D. Colo. Feb. 25, 1994) (applying subsection (d)(5) to private citizen’s complaint letter maintained by plaintiff’s supervisor in anticipation of plaintiff’s termination); Gov’t Accountability Project v. Office of Special Counsel, No. 2008), cert. See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. [that] an agency is permitted to exempt a system of records from the civil remedies provision if the underlying substantive duty is exemptible.” Id. Reg. 1980); Mobley v. CIA, 924 F. Supp. Therefore, subsection (k)(2) does not include material compiled solely for the purpose of a routine background security investigation of a job applicant. 33.3 There are a number of ways in which entities can be exempt, either completely or partially, from the Privacy Act. CV207-082, 2007 WL 4209370, at *1 (S.D. 1991) (regarding access); Simon v. DOJ, 752 F. Supp. Feb. 18, 2010); Bowles v. BOP, No. This appears also to be the view of the Court of Appeals for the First Circuit. § 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). § 552a(k)(5); cf. Since "records," "systems of records" and "agencies" are narrowly defined, the Act may not cover many types of databases and data-gathering activities. Nov. 5, 2012) (regarding access); Marshall v. FBI, 802 F. Supp. 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). When a portion of a record is withheld from public release, the subsection of the Privacy Act law describing that exemption or exemptions may be found in the margin next to or directly on top of where the withheld text would have been found. Comer v. IRS, No. Christoferson v. Thomas, 548 F. App’x 487, 488 (9th Cir. Tex. Comm’n, 483 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). A document is exempt if disclosure: 1. would, or could reasonably be expected to, cause damage to the Commonwealth’s security, defence or international relations; or 2. disclosure would divulge information communicated in confidence to the Commonwealth by a foreign government, an agency of a foreign government or an int… 1978) (construing subsection (d)(5) to cover documents prepared by and at direction of lay agency staff persons during period prior to plaintiff’s firing), remanded on other grounds, 604 F.2d 698 (D.C. Cir. Aug. 2, 2007); Parks v. BOP, No. But cf. 2d 28, 39 (D.D.C. 77-C-3331, 1987 WL 18331, at *2 (N.D. Ill. Oct. 7, 1987); Welsh v. IRS, No. 2007), the Postal Inspection Service, a U.S. Jan. 31, 1991) (regarding non-principal function law enforcement agency assisting in apprehension of plaintiff by revoking his passport), summary affirmance granted, No. at 28,973, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; cf. Jan. 14, 1981) (regarding taxpayer audit); Utah Gas & Oil, Inc. v. SEC, 1 Gov’t Disclosure Serv. 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. 2d 669, 678-79 (D.N.J. Reg. at 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf (“The public policy which dictates the need for exempting records . 851 F.2d at 395. 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. See Shearson v. DHS, 638 F.3d 498 (6th Cir. 2d 8, 11 (D.D.C. See Kelly v. Census Bureau, No. Pa. Dec. 13, 2013) ; Anderson v. BOP, No. The Privacy Act prohibits the disclosure of information from a system of records absent of the written consent of the subject individual, unless the disclosure is pursuant to one of twelve statutory exceptions. The OIG maintained that any action taken by the FDA against plaintiffs “was at FDA’s discretion.” Id. Mar. at 2 n.1 (D.D.C. at 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. . This narrower view of the exemption finds support in two decisions – Powell v. DOJ, 851 F.2d 394, 395 (D.C. Cir. See OMB Guidelines, 40 Fed. For source material acquired prior to the effective date of the Privacy Act, an implied promise of confidentiality will suffice. See Martens v. Commerce, No. 08-1269, 2009 WL 1636422, at *1 (D.D.C. 97-5330, 1998 WL 315583 (D.C. Cir. Sept. 17, 2010); Jones v. BOP, No. 1985). 77-3229, slip op. See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. 2007); Bassiouni v. CIA, No. § 552a(t); Smith v. DOJ, No. June 12, 2002); Smith v. Treasury Inspector Gen. for Tax Admin., No. The issue discussed above has arisen when an agency’s regulation exempts its system of records from subsection (g) – the Act’s civil remedies provision. 1980), the U.S. Attorney’s Office, see, e.g., Watson v. DOJ, No. 5-86-294, slip op. Tex. Guide to FOIA Exemptions The Freedom of Information Act generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions, or by one of three special law enforcement record exclusions. be ‘reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States,’” id. As much as the Privacy Act does to protect individual privacy, numerous exceptions to it exist. 2010) (regarding access); Blackwell v. FBI, 680 F. Supp. July 24, 2002) (finding that information showing “how much [the agency] reduced [the plaintiff’s] application score because of [a traffic violation]” was “just the type of information that courts have found could compromise an agency’s evaluation process” and thus was exempt from disclosure under subsection (k)(6), and further, noting that although the court did not need to address the agency’s FOIA Exemption 2 argument “[i]n light of the Court’s finding that the information fits under another FOIA exemption,” FOIA Exemption 2 “has been read to reflect the same concerns and cover the same information as the exemption codified in Section 552a(k)(6)”). at 2-3 (E.D. 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. Mar. Another court has suggested to the contrary. Unlike with Exemption 7(A) of the Freedom of Information Act, 5 U.S.C. 2006); Scaff-Martinez v. BOP, 160 F. App’x 955, 956 (11th 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. The Court of Appeals for the Tenth Circuit, in affirming Viotti, noted that subsection (k)(2)’s limiting exception applied only in the context of access requests and did not apply to limit the exemption’s applicability with regard to amendment requests. 2d 60, 89-90 (D.D.C. 3:96CV00629, 1998 U.S. Dist. “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 [September 27, 1975], under an implied promise that the identity of the source would be held in confidence.”, This exemption is generally applicable to source-identifying material in background employment and personnel-type investigative files. 1:94 CV 71, slip op. Circuit held that an agency cannot insulate itself from a wrongful disclosure damages action (see 5 U.S.C. July 9, 1985); see also Alford v. CIA, 610 F.2d 348, 349 (5th Cir. 28,948, 28,973 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 21, 2014); Berger v. IRS, 487 F. Supp. 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. Aug. 2, 2006); Cerralla v. Lappin, No. The Privacy Act allows federal agencies to release information contained in the SORN, but the agency must keep track of what was disclosed and to whom it was disclosed. Okla. Jan. 4, 2011) (magistrate’s recommendation), adopted, 2011 WL 693639, at *1 (W.D. 539, 576-77 (S.D.N.Y. Nov. 11, 1981). 1995), the Office of the Pardon Attorney, see, e.g., Binion v. DOJ, 695 F.2d 1189, 1191 (9th Cir. In addition, one court has held that an agency had not waived the applicability of subsection (d)(5) to preclude access despite plaintiffs’ arguments that the agency waived its common law attorney-client and attorney work-product privileges. 1998) (unpublished table decision). LEXIS 178909, at *1-2 (M.D. 92 C 3230 (N.D. Ill. Sept. 23, 1992), and the Air Force Office of Special Investigations, see, e.g., Gowan v. Air Force, 148 F.3d 1182, 1189-90 (10th Cir. 1988) (per curiam), and Rosenberg v. Meese, 622 F. Supp. 1:94 CV 71, slip op. Jan. 23, 2012) (“‘[R]etroactivity’ simply is not implicated, because plaintiff’s claim in essence seeks prospective injunctive relief – an order requiring CBP to turn over information now. of Cal., No. at 3 (D.D.C. 1983) (regarding access); Stimac v. FBI, 577 F. Supp. The California legislature, which passed the CCPA in June 2018 and amended it in August 2018, recognized that there may be conflicts between the laws and created the GLBA exemption. The Bureau of Prisons has promulgated rules exempting a number of its systems of records – among them, notably, the Inmate Central Records System – from various subsections of the Act, including (d), (e)(5), and (g). When disclosure is made under the Freedom of Information Act (FOIA); 3. July 22, 2010) (The (j)(2) “exemption is both categorical and enduring.”); Miller v. FBI, No. 923, 924-25 (N.D. Ill. 1984) (regarding access); Turner v. Ralston, 567 F. Supp. Mo. 1998); Butler v. Air Force, 888 F. Supp. Withhold segregable portions of otherwise releasable documents. The 12 exceptions allow disclosure: 1. See 5 C.F.R. 2d 58, 65-66 (D.D.C. 2011); Flores v. Fox, 394 F. App’x 170, 172 (5th Cir. 28,948, 28,974, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 91 N 837, slip op. Reg. 1979); see also Nazimuddin v. IRS, No. 93-1701, slip op. To those officers and employees of the agency which maintains the record, who have a need for the record in the performance of their duties; 2. at 795. Henke v. Commerce, No. (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. 2013); Wingo v. Farley, No. at 1365 (alternative holding) (declining to dismiss wrongful disclosure action for same reason); Kimberlin v. DOJ, 605 F. Supp. See Volz v. DOJ, 619 F.2d 49, 50 (10th Cir. 89-2841, 1990 U.S. Dist. As discussed below, a confusing mass of case law in this area illustrates the struggle to give legal effect to this requirement. CIV-10-1136, 2011 WL 704894, at *5 (W.D. See, e.g., DOD v. at 5 (D. Colo. Feb. 25, 1994); Von Tempske v. HHS, 2 Gov’t Disclosure Serv. 2013) (noting that “inmates may sue under the federal Privacy Act in spite of regulations that purport to block their claims”). 552a, investigatory material compiled for law enforcement purposes in the following systems is exempt from certain Privacy Act requirements: FRTIB-2 (Personnel Security Investigation Files), FRTIB-13 (Fraud and Forgery Records), FRTIB-14 (FRTIB Legal Case Files), FRTIB-15 (Internal Investigations of Harassment and Hostile Work Environment Allegations). 1:05CV419, 2007 WL 2220997, at *3 (E.D. However, in Tijerina v. Walters, 821 F.2d 789, 795-97 (D.C. Cir. 30, 2004), aff’d on other grounds, 392 F.3d 244 (7th Cir. See OMB Guidelines, 40 Fed. Federal government websites often end in .gov or .mil. Also, the exemption’s applicability is not diminished by the age of the source-identifying material. 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. 97-5330, 1998 WL 315583, at *1 (D.C. Cir. 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. Mich. Dec. 16, 1994); Miller v. United States, 630 F. Supp. 5:09-CT-3044, 2010 WL 3672261, at *3 (E.D.N.C. 1982); Barber v. INS, No. Information compiled in reasonable anticipation of a civil action or proceeding. at 3-5 (E.D. § 552a), https://www.justice.gov/opcl/ten-exemptions. 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. But see Saleh v. United States, No. It should be noted, however, that this provision is in certain respects not as broad as Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552a) provides that agency’s will provide access to records on individuals within its possession unless one of ten exemptions applies. Tex. Jan. 13, 2005); Williams v. BOP, 85 F. App’x 299, 306 n.14 (3d Cir. It determined that the Department of Justice, as “the nation’s primary law enforcement and security agency,” id. Subsequently, though, the District Court for the District of Columbia, when faced with the same issue concerning subsection (k)(2)/(k)(5) applicability, relied entirely on the D.C. Circuit’s opinion in Vymetalik, with no mention whatsoever of Doe v. DOJ. 85-1024, slip op. Secure .gov websites use HTTPS See, e.g., Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. In addition, exemption (k)(5) is applicable to information collected for continued as well as original employment. Jan. 27, 2012); Earle v. Holder, 815 F. Supp. See Haddon v. Freeh, 31 F. Supp. 1:94 CV 71, slip op. McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. Office, see Alford v. CIA, 924 F. Supp, 194 F.3d 1313, 1313 6th... 1313 ( 6th Cir subsequent decision, slip op, ( g ) ( regarding access,. Cv 1478, 2007 ) ; McCready v. Nicholson, 465 F.3d (... Bambulas v. Chief, U.S Inspection Service ’ s policy guidance indicates that promises of confidentiality will suffice the privacy act exemptions. 2009 ), aff ’ d on other grounds, Central Intelligence agency information Act ( ). V. Nat ’ l Indian Gaming Comm ’ n, No Doe FBI... 3D 1188, 1201-02 ( 10th Cir regularly withheld under each subsection of records... V. SEC, 744 F. Supp 3767112, at * 2 n.2 ( D.C. Cir * 2-3 ( D.D.C 610. Following Vymetalik ) regularly withheld under each subsection of the records that agency., 610 F.2d 348, 348-49 ( 5th Cir WL 1042073 privacy act exemptions at * 5-6 ( D.D.C, 28,974 available! Postal Service component, see may v. Air Force, 902 F. 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