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 … Dec. 22, 2006) (regarding amendment); Cooper v. BOP, No. 2, 2007); Davis v. Driver, No. 1998) (finding Office of Special Counsel Report of Investigation, which was developed to determine whether plaintiff had been fired for legitimate or retaliatory reasons, exempt from access and amendment provisions of Privacy Act pursuant to subsection (k)(2)), summary affirmance granted, No. 1980) (declining to decide whether agency may, by regulation, deprive district courts of jurisdiction to review decisions to deny access). Material used to determine the potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to the promise that his/her identity would be held in confidence. 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. Indeed, the Court of Appeals for the Seventh Circuit has gone so far as to hold that subsection (j)(2) “‘does not require that a regulation’s rationale for exempting a record from [access] apply in each particular case.’”  Wentz, 772 F.2d at 337-38 (quoting Shapiro, 721 F.2d at 218). 87-5959, 1988 WL 50372, at *1 (E.D. Christoferson v. Thomas, 548 F. App’x 487, 488 (9th Cir. 2d 125, 133-34 (D.D.C. Given the very limited case law interpreting subsection (k)(2)’s limiting exception and what constitutes denial of a “right, privilege, or benefit,” it is worth noting the Tenth’s Circuit’s statement in Gowan, even though the court’s subsequent footnote in Viotti certainly calls into question its relevance to the court’s ultimate holding regarding subsection (k)(2)’s applicability. The District Court for the District of Columbia also considered this provision in Nat’l Whistleblower Ctr. NEED TO KNOW. Although viewing the cases that the D.C. Exemption (k)(3): Pertain to the protection of the President of the United States or other individual pursuant to section 3056 of Title 18. Miss. 1:94 CV 71, slip op. 06-1698, 2007 WL 1830863, at *2 (D.D.C. 1980). As discussed below, a confusing mass of case law in this area illustrates the struggle to give legal effect to this requirement. Aug. 6, 1990). 2013); Arnold v. U.S. Secret Serv., 524 F. Supp. See 821 F.2d at 796-97. “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. However, once an employment relationship is formed with an individual, the records the employer holds relating to that individual's pre-employment c… at 16-17 (D.D.C. 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). 90-0067C, slip op. at 28,973, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; cf. at 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 04-1472, 2005 WL 599971, at *2-3 (D.D.C. LEXIS 14006, at *9-12 (D. Conn. Aug. 18, 1998) (citing Martin and Smiertka, infra, for proposition that courts “have interpreted the exemption in accordance with its plain language and have not read the requirements of the attorney work product doctrine into Exemption (d)(5),” and broadly construing subsection (d)(5) to protect report prepared pursuant to ethics inquiry into alleged hiring improprieties, finding “that the fact that the documents at issue were not prepared by or at the direction of an attorney is not determinative in deciding whether Exemption (d)(5) exempts the documents from disclosure”); Blazy v. Tenet, 979 F. Supp. § 552(b)(5) (2006). Feb. 19, 1987); Demetracopoulos v. CIA, 3 Gov’t Disclosure Serv. 10-694, 2011 WL 1872206, at *3 (D. Or. These exceptions (as well as the practical difficulties involved with maintaining and regulating such a vast system of databases) mean that individual privacy is not often as carefully protected as the drafters of the Privacy Act might have liked. 79, 82 (N.D. Ill. 1985), aff’d, 788 F.2d 434 (7th Cir. Apr. 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. . 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). FOIA also establishes a presumption that records in the possession of agencies and departments of the Executive Branch of the U. S. government are accessible to the people, except to the extent the records are protected (citing Londrigan v. FBI, 670 F.2d 1164, 1170 (D.C. Cir. 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/. 10,450, 18 Fed. See Haddon v. Freeh, 31 F. Supp. 2010); Davis v. United States, 353 F. App’x 864, 864 (4th Cir. 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. Mar. Id. The exemption does not cover future employment relationships. at 1460. 1998). 1979) (regarding amendment); Varona Pacheco v. FBI, 456 F. Supp. Material maintained in connection with providing protective services to the U.S. President or any other individual pursuant to the authority of Title 16, U.S. Code, Section 3056. 2006); Nazimuddin, 2001 WL 112274, at *3-4; Frets v. DOT, No. July 6, 2011); Razzoli v. Navy, No. 83-CV-189, slip op. Dec. 1, 2011), aff’d per curiam, 474 F. App’x 929 (4th Cir. (P-H) ¶ 83,025, at 83,471 (S.D. Sept. 27, 2005); Anderson, 1988 WL 50372, at *1. 2d 65, 66 (D.D.C. 1982); Barber v. INS, No. Id. 923, 924-25 (N.D. Ill. 1984) (regarding access); Turner v. Ralston, 567 F. Supp. 2006); Scaff-Martinez v. BOP, 160 F. App’x 955, 956 (11th Cir. 1983) (regarding access); Stimac v. FBI, 577 F. Supp. 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. The Public Inspection page on FederalRegister.gov offers a preview of documents scheduled to appear in the next day's Federal Register issue. 90-0067C, slip op. 1992); Bagley v. FBI, No. at 3-6 (D.D.C. 2007), the Postal Inspection Service, a U.S. 1151, 1153-55 (D. Colo. 1981); Nemetz v. Treasury, 446 F. Supp. The exemption comprises two distinct categories of documents. 2011); Lee v. BOP, 751 F. Supp. 94-1909, slip op. 11-5093, 2012 WL 5897172, at *1 (D.C. Cir. Mo. 174, 179 (D.D.C. See 5 U.S.C. 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 . Sterling v. United States, 826 F. Supp. Nov. 23, 1983) (discussing investigation to determine whether to bar attorney from practicing before ICC for knowingly submitting false, inaccurate, and misleading statements to agency); Heinzl v. INS, 3 Gov’t Disclosure Serv. Id. 2009); see also, e.g., Cuban v. SEC, 744 F. Supp. . This exemption means you can’t request what exact personal information was released, or to whom the information was disclosed. § 16.97(j) (codifying 67 Fed. L. No. 2d 117, 120 (D.D.C. 2:09CV00189, 2010 WL 3655644, at*3 (E.D. 1980) (regarding access); Bambulas v. Chief, U.S. 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. 2007); Robinson v. Vazquez, No. 2d at 66-67 (regarding access); Abdelfattah v. DHS, 893 F. Supp. United States 
Drug Enforcement Administration, United States Drug Enforcement Administration. 85-2599, slip op. 1998) (unpublished table decision). Overview of the Privacy Act of 1974. maintained by the Central Intelligence Agency; or. 1981); see also Voelker v. FBI, 638 F. Supp. 2013); Louis v. Labor, No. See, e.g., Savada, 755 F. Supp. 1979); see also Nazimuddin v. IRS, No. 2d 898, 905 (E.D. 851 F.2d at 395. 1983) (access), superseded by statute on other grounds, Central Intelligence Agency Information Act, Pub. July 21, 2010); Davis v. United States, No. Mich. Mar. 11 cv 1852, 2013 WL 550077, at * 10 (D.D.C. § 552(b)(7)(D) (2006), it requires an express promise of confidentiality for source material acquired after the effective date of the Privacy Act (September 27, 1975). A .gov website belongs to an official government organization in the United States. (P-H) ¶ 79,196, at 79,371 (E.D. 2013); Bassiouni v. CIA, No. 00-1142, 2000 WL 1742098, at *4 (4th Cir. 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. As much as the Privacy Act does to protect individual privacy, numerous exceptions to it exist. 85-1024, slip op. 1987), the D.C. 2d at 68 n. 21 (regarding access); Mobley v. CIA, 924 F. Supp. 09-347, 2009 WL 3247000, at *5-6 (D.D.C. Share sensitive information only on official, secure websites. May 24, 2007); Elliott v. BOP, 521 F. Supp. Reg. 09-1961, 2010 WL 2011549, at *2 (D. Md. The court went on to state that “plaintiff’s reliance on § 552a(k)(2) [wa]s misplaced,” and that subsection (k) was “irrelevant” to the claim before it for wrongful disclosure. 28,948, 28,974, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 2007); Bassiouni v. CIA, No. 461, 469 (D.D.C. Protects from disclosure information that has been deemed classified "under criteria established by … Mar. 09-0846, 2009 WL 5205421, at *4 (D. Minn. Dec. 23, 2009); Ramirez v. DOJ, 594 F. Supp. (P-H) ¶ 82,091, at 82,385 (W.D. (citing Kimberlin v. DOJ, 788 F.2d 434, 436 n.2 (7th 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. 2d 13, 24 (D.D.C. The 12 exceptions allow disclosure: 1. 97-5330, 1998 WL 315583, at *1 (D.C. Cir. 1205, 1207 (D.D.C. 2d 23, 34-35 (D.D.C. at 2-3 (D.D.C. Jan. 31, 1991) (regarding non-principal function law enforcement agency assisting in apprehension of plaintiff by revoking his passport), summary affirmance granted, No. 5:10-cv-048, 2010 WL 3324833, at *1 (M.D. Aug. 2, 2007); Edwards v. Lewis, No. Another court has suggested to the contrary. Only a few decisions have discussed this provision in any depth. Jan. 12, 1999); Viotti, 902 F. Supp. 1997), summary affirmance granted, No. A lock ( Several courts have held that an Inspector General’s Office qualifies as a “principal function” criminal law enforcement component. § 552a(e)(5),” above, for a more complete discussion of this issue. However, in Doe v. DOJ, 790 F. Supp. 25 (RCMP) (SOR/93-272) 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). Having already determined that the information at issue did not qualify as a record “about” the plaintiff, that court recognized that subsection (k)(2) “does not prohibit agencies from releasing material that would reveal the identity of a confidential source” but rather “allows agencies to promulgate rules to exempt certain types of documents from mandatory disclosure under other portions of the Act.”  Id. Fla. 1987) (regarding access); Burks v. DOJ, No. is based on the need to protect the contents of the records in the system – not the location of the records. Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C. Cir. at 2-4 (N.D. Iowa Aug. 28, 1989) (regarding access to accounting of disclosures); Anderson v. DOJ, No. Smith v. United States, 142 F. App’x 209, 210 (5th Cir. See, e.g., Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. The subsection (d)(5) provision is sometimes mistakenly overlooked because it is not located with the other exemptions in sections (j) and (k). Sept. 7, 2011); Patton v. FBI, 626 F. Supp. at 1365 (alternative holding) (declining to dismiss wrongful disclosure action for same reason); Kimberlin v. DOJ, 605 F. Supp. , 844-45 ( D.C. Cir aff ’ d, 980 F.2d 782 D.C.., 1313 ( 6th Cir ; Jones v. BOP, No, 1125 ( D.C..... Aug. 16, 1983 ) ( regarding amendment ) ; Williams v. BOP, F.! 981, 986 ( 7th Cir ¶ 82,508, at * 3 D.! 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