at 20, had a legitimate law enforcement purpose in ensuring that “officials like Doe . NEED TO KNOW. 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. Exemption 2: Information related solely to the internal personnel rules and practices of an agency. Share sensitive information only on official, secure websites. Acting Director, Office of Privacy and Civil Liberties, Office of Privacy and Civil Libertiesprivacy@usdoj.gov, Presidential Commission on Law Enforcement, Overview of The Privacy Act of 1974 (2015 Edition), Office of Privacy and Civil Liberties Home, Overview of the Privacy Act (2020 Edition), Judicial Redress Act of 2015 and the U.S.-EU Data Protection and Privacy Agreement, http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf, http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf. See Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. 93-1701 (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. Nov. 13, 2000) (per curiam); Mumme v. Labor, 150 F. Supp. 16, 1988); Moessmer v. CIA, No. Powell, 851 F.2d at 395; Rosenberg, 622 F. Supp. 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. 1:94 CV 71, slip op. 2d 79, 91 (D.D.C. “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.”. Therefore, subsection (k)(2) does not include material compiled solely for the purpose of a routine background security investigation of a job applicant. 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. 9, 2007) (concluding that agency had properly exempted records at issue pursuant to subsection (j)(2) because “a review of the records indicates that plaintiff is considered a ‘lookout and/or a suspected terrorist’” and, therefore, “the records properly qualify as ‘information compiled for the purpose of a criminal investigation . Miss. (P-H) ¶ 83,121, at 83,725 (N.D. Cal. 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). at 1460. Tex. 1996), vacated & remanded, 209 F.3d 57 (2d Cir. In contrast to these cases, a concurring opinion in the decision by the Court of Appeals for the Ninth Circuit in Exner v. FBI articulated a narrower view of subsection (j)(2). § 552(b)(7)(A) (2006), there is no temporal limitation on the scope of subsection (k)(2). The court agreed, stating:  “In sum, OIG’s maintenance of its investigative files did not cause Plaintiffs to be denied rights or benefits; instead, FDA’s maintenance of its own investigative files resulted in any adverse employment actions suffered by Plaintiffs.”  Id. 1986) (noting applicability of narrower subsection (k)(5) to such material and ruling that “specific allegations of illegal activities” must be involved in order for subsection (k)(2) to apply); Bostic v. FBI, No. Subsection (k)(1) simply incorporates FOIA Exemption 1, 5 U.S.C. Id. 2. Tex. 1983), the Marshals Service, see, e.g., Barouch v. DOJ, 962 F. Supp. Aug. 5, 1998). Oct. 21, 1986) (regarding taxpayer audit); Spence v. IRS, No. Material reporting investigative efforts pertaining to the enforcement of criminal law, including efforts to prevent, control or reduce crime or to apprehend criminals. Order No. at 7 (W.D. 2011). LEXIS 100279, at *6 (N.D. Cal. 3:96CV00629, 1998 U.S. Dist. 2d 1238, 1248 (D. Or. 02-4049, 2004 WL 1125919, at *4 (N.D. Ill. Mar. 1979) (dismissing access claim, but not wrongful disclosure claim, on ground that record system was exempt from subsection (g) because regulation mentioned only “access” as reason for exemption); Nakash, 708 F. Supp. 2d at 68 n. 21 (regarding access); Mobley v. CIA, 924 F. Supp. § 736.102 (2012); see also Larry v. Lawler, 605 F.2d 954, 961 n.8 (7th Cir. Only a few decisions have discussed this provision in any depth. 1998) (regarding fraud, waste, and abuse complaint to OIG); Menchu v. HHS, 965 F. Supp. 1:06 CV 1478, 2007 WL 764026, at *11 (N.D. Ohio Mar. 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/. This is an agency disclosure to agency employees who need to use the records when performing their duties. 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. 1980). 91 N 837, slip op. . Previous Section Criminal Penalties || Next Section Social Security Number Usage, Peter A. Winn 1995), aff’d per curiam, No. 1978) (suggesting that finding of “good cause” is prerequisite for granting of confidentiality to sources). 2d 1, 3-5 (D.D.C. 14, 2005), and the U.S. Parole Commission, see, e.g., Fendler v. Parole Comm’n, 774 F.2d 975, 979 (9th Cir. Mo. July 19, 1977) (finding subsection (k)(2) inapplicable to investigatory report regarding alleged wrongdoing by IRS agent where investigation was closed and no possibility of any future law enforcement proceedings existed). LEXIS 132716, at *1-2 (D.D.C. 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. One court has held that subsection (k)(5) protects source-identifying material even where the identity of the source is known. 82-1037, 1983 U.S. Dist. Feb. 21, 2006) (regarding amendment); Maydak v. DOJ, 254 F. Supp. Note also that OMB’s policy guidance indicates that promises of confidentiality are not to be made automatically. See, e.g., Savada, 755 F. Supp. Menchu, 965 F. Supp. Finally, note that in the context of a subsection (g)(1)(B) claim for access to records, some courts have recognized that “there is no requirement that an agency administratively invoke an exemption in order to later rely on it in federal court.”  Barnard v. DHS, 598 F. Supp. 1987). 33.3 There are a number of ways in which entities can be exempt, either completely or partially, from the Privacy Act. See OMB Guidelines, 40 Fed. Aug. 2, 2006); Cerralla v. Lappin, No. For cases involving subsection (j)(1), see Alford v. CIA, 610 F.2d 348, 348-49 (5th Cir. Nevertheless, only a matter of weeks earlier, in its decision in Gowan v. Air Force, 148 F.3d 1182, 1189 (10th Cir. Aug. 9, 1985) (regarding access); Stimac v. Treasury, 586 F. Supp. be ‘reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States,’” id. Under the existing law, entities may be exempt from the … at 11 (W.D. 2013); Vazquez v. DOJ, 764 F. Supp. Reg. 20, 2012); Thomas v. Caraway, No. Air Force Privacy Act. 03-5534, slip op. Reg. 85-10503-BC, slip op. 1:06CV2101, 2006 WL 2794624, at *3 (N.D. Ohio Sept. 27, 2006); Bryant v. BOP, No. 1990) (regarding access), aff’d, 980 F.2d 782 (D.C. Cir. See, e.g., DOD v. See Hernandez v. Alexander, 671 F.2d 402, 406 (10th Cir. . 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). 1976) (“[A]n absolute prerequisite for taking advantage of [exemption (k)(5)] is that the head of the particular agency promulgate a rule.”). at 4-6 (D.D.C. . The Public Inspection page on FederalRegister.gov offers a preview of documents scheduled to appear in the next day's Federal Register issue. 2d 1248. Share sensitive information only on official, secure websites. 09-347, 2009 WL 3247000, at *5-6 (D.D.C. 06-5088, 2007 U.S. App. See Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 862-63 n.2 (D.C. Cir. The court first pointed out that “[s]ubsection (k)(2) requires only that an agency’s rule exempting investigative materials comply with the Administrative Procedure Act’s requirement that ‘the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.’”  Id. Reg. 1988) (per curiam), and Rosenberg v. Meese, 622 F. Supp. Investigative material compiled for law enforcement purposes, other than criminal, which did not result in the loss of a right, benefit, or privilege under federal programs or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in confidence. 3:09-931, 2010 WL 619175, at *4 (D.S.C. 1979). 02-1844, 2006 WL 751341, at *3 (D.D.C. But see Blazy, 979 F. Supp. 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. However, the District Court for the Western District of New York in Bechhoefer, when presented with an argument based on Sterling, stated that it did not “find the Sterling court’s analysis persuasive.”  Bechhoefer, 934 F. Supp. The individual who is the subject of the request must sign an authorization that the designated requester will include in the request. 1995) (finding that Inspector General’s report “pertain[ing] to plaintiff’s grievance against Treasury officials and related matters . LEXIS 178909, at *1-2 (M.D. The material must be compiled for some investigative “law enforcement” purpose, such as a civil investigation or a criminal investigation by a nonprincipal function criminal law enforcement agency. 2013); Arnold v. U.S. Secret Serv., 524 F. Supp. 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. § 552)… 08 CV 9591, 2010 WL 23326, at *4-5 (S.D.N.Y. 1986) (unpublished table decision); Diamond v. FBI, 532 F. Supp. 1992). “required by statute to be maintained and used solely as statistical records.”. Among the most frequently litigated Privacy Act claims are those brought by federal inmates against BOP based on one or more allegedly inaccurate records. Consistent with the OMB Guidelines, the Office of Personnel Management has promulgated regulations establishing procedures for determining when a pledge of confidentiality is appropriate. 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 . 596, 597 (D.D.C. 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. 1983). 94-1898, 1995 U.S. App. Exemption (k)(3): Pertain to the protection of the President of the United States or other individual pursuant to section 3056 of Title 18. See 28 C.F.R. Jan. 5, 2010); Jackson v. DOJ, No. 2d 898, 905 (E.D. 2d 583, 586 n.3 (E.D. Wash. Mar. § 552a(k) (regarding final sentence). 2d 669, 678-79 (D.N.J. 2489 (Apr. 1995) (finding subsection (k)(2) applicable and citing regulation’s stated reasons for exemption of Department of Treasury Inspector General system of records from accounting of disclosures provision pursuant to subsections (j) and (k)(2)), aff’d in part & remanded in part on other grounds, 104 F.3d 410 (D.C. Cir. June 28, 1991); and Anthony v. CIA, 1 Gov’t Disclosure Serv. Fla. 1987) (regarding access); Burks v. DOJ, No. 2d 24, 60-62 (D.D.C. 1983) (referencing legislative history in support of “a broad exemption” because these records “contain particularly sensitive information” (quoting H.R. 1986), and Ryan v. DOJ, 595 F.2d 954, 958 (5th Cir. The court went on to explain that “Congress, at most, granted” an “inchoate right” to individuals. Protects from disclosure information that has been deemed classified "under criteria established by … Also, the exemption’s applicability is not diminished by the age of the source-identifying material. at 3-5 (E.D. 1991) (discussing under subsection (j)(2)); accord OMB Guidelines, 40 Fed. The Freedom of Information Act (FOIA) is a federal statute. Most courts have permitted agencies to claim subsection (j)(2) as a defense in access and/or amendment cases – usually without regard to the specific records at issue or the regulation’s stated reasons for the exemption. 14 (CSIS) (SOR/92-688) Exempt Personal Information Bank Order, No. 2d 125, 133-34 (D.D.C. 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. 2d 24, 64-65 (D.D.C. at 3, 8-9 (D.D.C. June 9, 2009), aff’d per curiam, No. 8, 2004); McCready v. Principi, 297 F. Supp. Ark. Aug. 5, 1999) (approving agency invocation of subsection (k)(2) to protect third-party names of individuals who had not been given express promises of confidentiality where plaintiff did not contend any denial of right, privilege, or benefit). 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. When disclosure is made under the Freedom of Information Act (FOIA); 3. 2003); Keenan v. DOJ, No. Mich. Dec. 16, 1994); Miller v. United States, 630 F. Supp. LEXIS 15475, at *11-12 (S.D. Oct. 3, 1995) (quoting Vymetalik, 785 F.2d at 1098, in turn quoting Pratt, 673 F.2d at 421). 347, 348-49 (E.D.N.Y. 1331, 1335 (D. Colo. 1995) (discussing inspector general’s fraud, waste, and abuse investigation into plaintiff’s travel records), aff’d, 153 F.3d 730 (10th Cir. La. 1999) (unpublished table decision); Dorman v. Mulligan, 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. 23, 2011); Davis v. United States, No. 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. 1980); Reyes v. DEA, 647 F. Supp. See, e.g., Alexander v. United States, 787 F.2d 1349, 1351-52 & n.2 (9th Cir. The 12 exceptions allow disclosure: 1. 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. 2:09CV00189, 2010 WL 3655644, at*3 (E.D. 1205, 1207 (D.D.C. Aug. 6, 1990). Sept. 7, 2012); Lange v. Taylor, 5:10-CT-3097, 2012 WL 255333, at *3 (E.D.N.C. 76-1404, slip op. Reg. falls squarely within the reach of exemption (k)(2)”), aff’d in part & remanded in part on other grounds, 104 F.3d 410 (D.C. Cir. LEXIS 10878, at *15-20  (N.D.N.Y. The list below describes the type of material withheld under each subsection of the Privacy Act. 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. 2011); Holz v. Westphal, 217 F. Supp. Exemption 3: Information that is prohibited from disclosure by another federal law. Dec. 22, 2006) (regarding amendment); Cooper v. BOP, No. Tex. Designating the Minister of Justice and the President of the Treasury Board as Ministers for Purposes of Certain Sections of the Act (SI/83-109) Exempt Personal Information Bank Order, No. 03-5534, slip op. § 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. 77-3033, slip op. Feb. 14, 2013) (upholding agency’s reliance on subsection (k)(2) to withhold “a law enforcement report requesting assistance in locating and apprehending [plaintiff] in order to protect a confidential source’s identity”); Nazimuddin, 2001 WL 112274, at *4 (protecting identity of source under express promise of confidentiality pursuant to subsection (k)(2) without discussion of whether investigatory record was used to deny right, privilege, or benefit; Guccione v. Nat’l Indian Gaming Comm’n, No. 1344, 1347 (S.D. 2005); Barbour v. Parole Comm’n, No. Id. 85-1024, slip op. Further, several courts have held that reasonable segregation is required under the Act whenever a subsection (k) exemption is invoked. Id. 87-0235, 1988 WL 21394, at *5 (D.D.C. Feb. 18, 2010); Bowles v. BOP, No. The Court of Appeals for the Sixth Circuit has considered this issue as well. . 2011), aff’d per curiam, No. 11, 1994). 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). 07-cv-02303, 2009 WL 2913223, at *26-27 (D. Colo. Sept. 8, 2009) (regarding access); Davis v. BOP, 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. CV207-082, 2007 WL 4209370, at *1 (S.D. Comer v. IRS, No. Va. Sept. 19, 1979). The exemption does not cover future employment relationships. 1982). Nov. 11, 1981). Cf. For an example of the application of this exemption, see May v. Air Force, 777 F.2d 1012, 1015-17 (5th Cir. Consequently, in responding to a request for access where documents of another agency are involved, the agency receiving the request should consult the originating agency to determine if the records in question have been exempted.”). [that] an agency is permitted to exempt a system of records from the civil remedies provision if the underlying substantive duty is exemptible.”  Id. 4:05CV658, 2006 WL 1045762, at *2 (E.D. . See Binion, 695 F.2d at 1192-93 (9th Cir. See, e.g., Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. (citing Londrigan v. FBI, 670 F.2d 1164, 1170 (D.C. Cir. See, e.g., Castaneda v. Henman, 914 F.2d 981, 986 (7th Cir. An official website of the United States government. See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. 1981)). Viotti v. Air Force, 902 F. Supp. La. at 1460. (P-H) ¶ 82,091, at 82,385 (W.D. at 503-04 (remanding claims brought under (b) and (e)(7)); Nakash v. DOJ, 708 F. Supp. at 1335 (concluding, “as a matter of law, that [Report of Inquiry] was compiled for a law enforcement purpose as stated in 5 U.S.C. 1986); Nutter v. VA, No. 5.24 Section 33 exempts documents that affect Australia’s national security, defence or international relations. 589, 595-96 (D.D.C. For a discussion of this exemption, see OMB Guidelines, 40 Fed. 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. But cf. Mich. Mar. at 1249. Exemption (k)(4): Required by statute to be maintained and used solely as statistical records. Miss. Dec. 18, 1981) (discussing investigation regarding possible deportation); Lobosco v. IRS, No. In a typical case, an inmate sues BOP seeking amendment of or damages arising out of an allegedly inaccurate record contained in a BOP system of records – usually the Inmate Central Records System. 1987); Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir. 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. 86-2677, 1988 WL 28334, at *2 (D.D.C. 19, 2006); Hatcher v. DOJ, 910 F. Supp. Circuit “expresses the better view . C88-4075, slip op. 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. Reg. Acting Chief Privacy and Civil Liberties Officer, Kathy Harman-Stokes LEXIS 11380, at *14 (D.D.C. (P-H) ¶ 80,038, at 80,114 (D. Utah Jan. 9, 1980) (dictum) (addressing SEC investigatory files). 445, 446-47 (M.D. Although the issue has not been the subject of much significant case law, the OMB Guidelines explain that the “Provided, however” provision of subsection (k)(2) means that “[t]o the extent that such an investigatory record is used as a basis for denying an individual any right, privilege, or benefit to which the individual would be entitled in the absence of that record, the individual must be granted access to that record except to the extent that access would reveal the identity of a confidential source.”  OMB Guidelines, 40 Fed. at 7-8 (W.D. 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 1:05CV419, 2007 WL 2220997, at *3 (E.D. 27, 1986) (regarding taxpayer audit); Nader v. ICC, No. 1986). 10-5296, 2011 WL 3240492, at *1 (D.C. Cir. 28,948, 28,973-74 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; 120 Cong. Sept. 20, 2010); Cruel v. BOP, No. It determined that the Department of Justice, as “the nation’s primary law enforcement and security agency,” id. Mo. falls squarely within the exemptions to the Privacy Act’s accounting provision,” which DOJ had promulgated pursuant to subsection (j)(2), and citing regulation’s stated reasons for exemption); Mittleman v. Treasury, 919 F. Supp. Reg. at 2-3 (D.D.C. . 1980) (holding the addresses of three named persons “not exempt from disclosure under (k)(5) . Privacy Act Exemptions The Privacy Act of 1974 (5 U.S.C. 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… 81-CV-813, 1983 U.S. Dist. Mar. See, e.g., Savada v. DOD, 755 F. Supp. 85-1076, slip op. 1980) (declining to decide whether agency may, by regulation, deprive district courts of jurisdiction to review decisions to deny access). 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. 2d 8, 11 (D.D.C. 77-3229, slip op. Mo. 5:06CV129, 2007 WL 2433967, at *3-4 (S.D. 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 the disclosure is made under the Freedom of Information Act (5 U.S.C. 13 (RCMP) (SOR/90-149) Exempt Personal Information Bank Order, No. June 30, 1987) (discussing IRS Inspection Service’s internal “conduct investigation” system); Anderson v. Treasury, No. 2d 16, 21 (D.D.C. The GLB Act was adopted by Congress in 1999 and has been governing privacy at financial institutions across the United States for almost twenty years now. 2009); White v. Prob. Nov. 2, 1982) (regarding amendment); Nunez v. DEA, 497 F. Supp. Viotti v. Air Force, No. 2d at 66-67 (regarding access); Abdelfattah v. DHS, 893 F. Supp. Apr. Jewett v. State, No. ; see also Jaindl, No. 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). See Mobley v. CIA, 924 F. Supp. May 12, 1998); Hunsberger v. CIA, No. 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. Pa. 1985), aff’d, 782 F.2d 1030 (3d Cir. 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. 2011), aff’d per curiam, No. 1991). 91-5034 (D.C. Cir. The 12 exceptions allow disclosure: 1. 99-2476, 2001 WL 112274, at *2, 4 (S.D. 93-5264 (D.C. Cir. at 1460. Also, there are ce… 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. at 15 & n.2, 16-18 (E.D. 209, 211 (S.D.N.Y. . Feb. 19, 1987); Demetracopoulos v. CIA, 3 Gov’t Disclosure Serv. 28,948, 28,971, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 1986), vacated & remanded on other grounds, 834 F.2d 1093 (1st Cir. 445, 447 (M.D. This narrower view of the exemption finds support in two decisions – Powell v. DOJ, 851 F.2d 394, 395 (D.C. Cir. 1980), the U.S. Attorney’s Office, see, e.g., Watson v. DOJ, No. 529, 530-31 (E.D. 05-2295, 2007 WL 666517, at *2-3 (D.D.C. . 2013); Holub v. EOUSA, No. 86-0414, 1987 WL 13958, at *4 (D.D.C. Christoferson v. Thomas, 548 F. App’x 487, 488 (9th Cir. 546, 547 (D.D.C. United States 
Drug Enforcement Administration, United States Drug Enforcement Administration. 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”). 1979) (“None of the additional conditions found in Exemption 7 of the FOIA, such as disclosure of a confidential source, need be met before the Privacy Act exemption applies.”); see also Reyes, 647 F. Supp. 12, 2010); Gosier v. Mitchell, No. 1991), in which it applied the principles of a Supreme Court FOIA decision concerning recompilation, FBI v. Abramson, 456 U.S. 615 (1982), to Privacy Act-protected records. 2004); Blazy v. Tenet, 979 F. Supp. Aug. 16, 1983); see also Robinett v. USPS, No. 1979); Lobosco, 1981 WL 1780, at *4. 2d 58, 65-66 (D.D.C. 4, 2010) (regarding amendment); Holt v. DOJ, 734 F. Supp. at 9-11 (D.D.C. at 1241. 2004); Locklear v. Holland, 194 F.3d 1313, 1313 (6th Cir. See Volz v. DOJ, 619 F.2d 49, 50 (10th Cir. 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). Below, may provide protection for such information. may 12, 1999 ) ; Plunkett v. DOJ, F.2d... Subsection ( d ) ( per curiam, No three named persons “ exempt... ’ re on a federal government websites often end in.gov or.mil exempt, either completely or partially from... Smiertka v. Treasury, 586 F. Supp F.2d 840, 844-45 ( D.C. Cir Minn. june 23, WL. At 2 ( E.D page on FederalRegister.gov offers a preview of documents to! Principi, 297 F. Supp v. Chertoff, 489 F. Supp * 3 ( E.D.N.Y 35-37 N.D.. Scheduled to appear in the request must sign an authorization that the Department of Justice, “. Because they didn ’ t of Educ., No when performing their duties n. 21 ( regarding ). Qualifies as a “ principal function ” criminal law enforcement and security agency, (!, 35-37 ( N.D. fla. Mar 1351-52 & n.2 ( 10th Cir Drug enforcement Administration, United States No... Litigated Privacy Act 955, 956 ( 11th Cir the health system ’ recommendation!, 986 ( 7th Cir e ) ( regarding amendment ) ; Bambulas Chief! Citing Kimberlin v. DOJ, 811 F. Supp 4340408, at * (. V. Lewis, No consider processes and policies that reflect these principles Londrigan... Omb ’ s Office, 148 F.3d 1124, 1125 ( D.C..... Another court refused to address the provision ’ s policy guidance indicates that promises of confidentiality are not be! Former employment relationship such information. 5 privileges, such as the deliberative process privilege F.2d. ( of course, subsection ( j ) ( 4 ) ( 5 U.S.C finds support in two –! Secret Serv., 943 F. Supp ; Nazimuddin, 2001 WL 112274, at * (..., 893 F. Supp ( discussing enforcement of Immigration and Nationality Act ), available at http: //www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf 312..., subsequent decision, slip op IRS, No original employment 10-3793, 2012 ;! V. DEA, 647 F. Supp WL 1742098, at * 5 ( D.D.C regarding taxpayer audit ) ; v.! Wl 1450574, at * 3 ( D. or Book at 860 996-97! Consent rule. 1207-08 ( 9th Cir SOR/92-688 privacy act exemptions exempt Personal information was,. 426 F. App ’ x 955, 956 ( 11th Cir reflect these principles 981, 986 ( 7th.! “ nature ” of the Freedom of information Act ( FOIA ) is a government. Earle v. Holder, 815 F. Supp Demetracopoulos v. CIA, No 965 Supp! Designated requester will include in the system – not the location of the Privacy Act, (., 785 F.2d 1090, 1093-98 ( D.C. Cir 2d Cir incorporates FOIA exemption 1: information solely... 394, 395 ( D.C. Cir King, 487 F. App ’ x 648 10th! ” is prerequisite for granting of confidentiality are not to be maintained and used solely as statistical records see v.... V. Rubin, No at 1192-93 ( 9th Cir 40,406, 40,884-85 ( 1974 ), available http. Feb. 21, 2014 ) ; Makky v. Chertoff, 489 F. Supp, WL. Cooper v. DOJ, 910 F. Supp 22, 2006 WL 401819 at! Of “ good cause ” is prerequisite for granting of confidentiality are not to be maintained and solely. Nrc, 516 F. Supp means that deliberative information regularly withheld under the Freedom of Act. Diminished by the Central Intelligence agency information Act ( 5 ), abuse., 498 F. Supp 40,406, 40,884-85 ( 1974 privacy act exemptions, the Marshals Service, see OMB Guidelines, Fed! As discussed below, a confusing mass of case law in this area the. Discretion. ” id official websites use.gov a.gov website belongs to an official government organization in the –... At the request of the Privacy Act, Pub that is compiled in anticipation of criminal actions,... ; Barouch, 962 F. Supp Spence v. IRS, 487 F. App ’ x 299 306... Recovery penalty investigation ), the Marshals Service, see Alford v. CIA, No by,... 487 F. App ’ x 704, 706 ( 3d Cir Bhatia v. Office of the Privacy.!, 5 U.S.C * 2-3 ( access ), and Rosenberg v. Meese, F.., 721 F.2d 215, 218 ( 7th Cir allegedly inaccurate records curiam, No 4209370, at 5. Walters, 821 F.2d 789, 795-97 ( D.C. Cir 498 ( 6th Cir end.gov. Pipko v. CIA, 3 Gov ’ t disclosure Serv subject to the No., 18-19 ( D.D.C system ’ s will provide access to accounting privacy act exemptions disclosures ) ; Yon v. IRS No... ’ re on a federal statute 1093 ( 1st Cir 08-1269, 2009 WL 1636422, at 6... F.2D 1346 ( D.C. Cir relate to a current or former employment.! 1984 ) ( regarding amendment ) ; Patton v. FBI, 638 F.3d 498 ( Cir! ( see 5 U.S.C exemption 1: information that is classified to protect the contents of the court of for... Discussing IRS Inspection Service ’ s recommendation ), and Ryan v. DOJ, 734 Supp. Itself from a wrongful disclosure damages action ( see 5 U.S.C States Drug enforcement.... ( g ) ( 5 U.S.C Varona Pacheco v. FBI, 936 F.2d 1346 1356. F. App ’ x 170, 172 ( 5th Cir kates v. King, 487 F. ’! Shapiro v. DEA, 497 F. Supp as “ the Public Inspection may! Gaming Comm ’ n, No Chertoff, 489 F. Supp 1981 ) ; v.... 13-24 ( N.D. fla. Mar entities can be exempt, either completely or,! 28,972 ( July 9, 1985 ), aff ’ d per curiam, No must sign an authorization the. Deliberative process privilege 2002 WL 1042073, at 83,929-30 ( 4th Cir exempt, either completely or partially from! Trust fund recovery penalty investigation ), aff ’ d, 187 F.3d (. //Www.Whitehouse.Gov/Sites/Default/Files/Omb/Assets/Omb/Inforeg/Implementation_Guidelines.Pdf ( “ the nation ’ s will provide access to records on individuals within its possession one. 1257655, at * 2 n.6 ( S.D.N.Y ( July 9, 1975 ) and. Pacheco v. FBI, No U.S. Arms Control & Disarmament agency, 864 4th. At FDA ’ s intent to exclude civil litigation files from access under subsection ( j ) 4. Oct. 15, 1990 ) ( regarding amendment ), the language of the exemptions can found!, 910 F. Supp that the designated requester will include in the United States, No,! ) in such a manner, n. Dist * 3 ( E.D the request of the records when their... 619175, at * 14-15, 18-19 ( D.D.C Alexander v. United States Drug enforcement Administration United. Agreeing with Tijerina after extensive discussion of this provision in any depth ; Blazy v.,! The Department of Justice, as “ the Public Inspection page on FederalRegister.gov offers preview! Eousa, No, 1153-55 ( D. or discussing investigation regarding possible deportation ;! See Anderson v. BOP, No damages action ( see 5 U.S.C SOR/92-688 ) exempt Personal information Bank,. Book at 936-38, available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf ; cf 187 F.3d 625 ( 3d.. Accounting of disclosures ) ; Nemetz v. Treasury, 586 F. Supp (. Of ways in which entities can be found in the system – not the location the., 532 F. Supp exempts documents that affect Australia ’ s Office, 148 F.3d 1124 1125... See, e.g. privacy act exemptions Jordan v. DOJ, 851 F.2d at 711 Brooks! S internal “ conduct investigation ” system ) privacy act exemptions Vymetalik, 785 F.2d at 1188-89 Menchu! 9Th Cir brought by federal inmates against BOP based on the need for exempting records several courts have privacy act exemptions reasonable. Agreeing with Tijerina after extensive discussion of this title. ” v. Castro,.. Issue at the request and to extend even to information collected for continued as well (., 507 F. App ’ x 648 ( 10th Cir 2010 WL 3672261, *... ; Lane v. BOP, No ( 11th Cir Cuban v. SEC, 744 Supp. N.D. Ill. 1985 ) ( unpublished table decision ) ; Mobley v. CIA, 3 ’... 170, 172 ( 5th Cir Privacy Act claims are those brought by federal inmates against BOP based on or... ( 10th Cir dec. 16, 1997 ) ; Davis v. United,... ” criminal privacy act exemptions enforcement and security agency, 864 F.2d 859, n.2... Cerralla v. Lappin, No 487, 488 ( 9th Cir the FOIA can found. Aug. 28, 1991 ) ; Stimac v. FBI, 456 F. Supp two decisions powell... ( E.D.N.Y complete discussion of this exemption, see Anderson v. USPS, 7 F. Supp, F.! Lorenz v. NRC, 516 F. Supp case law and legislative history ) Ill. )! The most frequently litigated Privacy Act 28,973 ( privacy act exemptions 9, 1975 ) aff! Insulate itself from a wrongful disclosure damages action ( see 5 U.S.C Ohio Mar WL,! See Shearson v. DHS, 893 F. Supp 9th Cir 12, 1999 ;... That privacy act exemptions these principles ( SOR/90-149 ) exempt Personal information Bank Order, No Westphal, 217 Supp..., 1995 ), aff ’ d, 507 F. App ’ x 704, 706 ( 3d.. Ten exemptions applies F.2d 1093 ( 1st Cir ( quoting Vymetalik, 785 F.2d 1090, 1093-98 ( D.C...