But cf. . 2007); Makky v. Chertoff, 489 F. Supp. 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. 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… Circuit “expresses the better view . 1996). 98-477, codified at 5 U.S.C. 445, 447 (M.D. at 2-3 (access); Aquino v. Stone, 768 F. Supp. 01-2256 (1st Cir. June 12, 2002); Smith v. Treasury Inspector Gen. for Tax Admin., No. For an example of the application of this exemption, see May v. Air Force, 777 F.2d 1012, 1015-17 (5th Cir. Mar. 2001), aff’d, No. 1976) (“[A]n absolute prerequisite for taking advantage of [exemption (k)(5)] is that the head of the particular agency promulgate a rule.”). 1983) (regarding access); Stimac v. FBI, 577 F. Supp. 89-3356, 1991 WL 226682, at *1 (D.D.C. 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. 77-3033, slip op. Mar. . (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. C88-4075, slip op. Another important issue can arise with regard to the recompilation of information originally compiled for law enforcement purposes into a non-law enforcement record. . 1980); Mobley v. CIA, 924 F. Supp. 87-0235, 1988 WL 21394, at *5 (D.D.C. Indeed, several courts have observed that “the Vaughn rationale [requiring itemized indices of withheld records] is probably inapplicable to Privacy Act cases where a general exemption has been established.”  Restrepo v. DOJ, No. 40 Fed. See 28 C.F.R. This is an agency disclosure to agency employees who need to use the records when performing their duties. Circuit noted that “some other courts ha[d] indicated in dicta” to the contrary, “[h]aving considered the issue at length [in Tijerina], in which it [wa]s squarely presented, [the Court] declined to follow that view.”  Id. The individual who is the subject of the request must sign an authorization that the designated requester will include in the request. 01-2431, 2002 WL 1042073, at *2 n.2 (E.D. Protects from disclosure information that has been deemed classified "under criteria established by … 23, 2011); Davis v. United States, No. See Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 862-63 n.2 (D.C. Cir. 91 N 837, slip op. 1995), aff’d per curiam, No. 1980) (regarding access); Bambulas v. Chief, U.S. 25 (RCMP) (SOR/93-272) The list below describes the type of material withheld under each subsection of the Privacy Act. Id. It determined that the Department of Justice, as “the nation’s primary law enforcement and security agency,” id. 05-0851, 2006 WL 401819, at *1 (D.D.C. 2000) (finding that information at issue did qualify as “record” under Privacy Act); Sterling v. United States, 798 F. Supp. LH_privacy_act-1974.pdf. 86-2677, 1988 WL 28334, at *2 (D.D.C. 85-1024, slip op. 02-4049, 2004 WL 1125919, at *4 (N.D. Ill. Mar. The Freedom of Information Act (FOIA) is a federal statute. See, e.g., May v. Air Force, 777 F.2d 1012, 1015-17 (5th Cir. 76-1404, slip op. 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. 2d at 66-67 (regarding access); Abdelfattah v. DHS, 893 F. Supp. But see Blazy, 979 F. Supp. Aug. 2, 2007); Parks v. BOP, No. The 12 exceptions allow disclosure: 1. Circuit held that an agency cannot insulate itself from a wrongful disclosure damages action (see 5 U.S.C. 1979). Wash. Mar. 1980). at 2-4 (N.D. Iowa Aug. 28, 1989) (regarding access to accounting of disclosures); Anderson v. DOJ, No. 1:06 CV 1478, 2007 WL 764026, at *11 (N.D. Ohio Mar. 3:CV-12-1518, 2012 U.S. Dist. 10-5016, 2010 WL 4340408, at *1 (D.C. Cir. June 5, 1997); Viotti v. Air Force, 902 F. Supp. 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. Secure .gov websites use HTTPS 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 Information compiled in reasonable anticipation of a civil action or proceeding. 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). 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). 06-5044, 2007 WL 1035029, at *6 (D.N.J. See Dupre v. FBI, No. at 1459-60. Mo. 2d 117, 120 (D.D.C. Although viewing the cases that the D.C. Withhold segregable portions of otherwise releasable documents. 1091, 1107 (D.P.R. See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. See, e.g., Von Tempske v. HHS, 2 Gov’t Disclosure Serv. May 5, 2010), aff’d per curiam, No. LEXIS 178909, at *1-2 (M.D. LEXIS 100279, at *6 (N.D. Cal. This appears also to be the view of the Court of Appeals for the First Circuit. Unlike all of the other Privacy Act exemptions discussed below, however, subsection (d)(5) is entirely “self-executing,” inasmuch as it does not require an implementing regulation in order to be effective. 2d 898, 905 (E.D. Exemption (k)(4): Required by statute to be maintained and used solely as statistical records. 102, 105 (N.D. Ill. 1978). 3:96CV00629, 1998 U.S. Dist. Va. 1991) (regarding amendment), aff’d, 957 F.2d 139 (4th Cir. 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 . Normally §552a(c)(3) would also require that the disclosure be made available to the individual named in the record, at his or her request. This narrower view of the exemption finds support in two decisions – Powell v. DOJ, 851 F.2d 394, 395 (D.C. Cir. Jan. 31, 1991) (regarding non-principal function law enforcement agency assisting in apprehension of plaintiff by revoking his passport), summary affirmance granted, No. May 12, 1998); Hunsberger v. CIA, No. 29, 1953)). 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. Jan. 8, 1992); Barber v. INS, No. 2011) (regarding access to accounting of disclosures); Murray v. BOP, 741 F. Supp. 2d 60, 89-90 (D.D.C. 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. Tex. § 552a(k) (regarding final sentence). Smith v. United States, 142 F. App’x 209, 210 (5th Cir. Nov. 2, 1982) (regarding amendment); Nunez v. DEA, 497 F. Supp. C 10-3793, 2012 WL 177563, at *3 (N.D. Cal. 85-10503-BC, slip op. 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. at 5 (D. Colo. Feb. 25, 1994); Von Tempske v. HHS, 2 Gov’t Disclosure Serv. Oddly, the language of subsection (j) appears to permit this. “testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process.”. For a discussion of this exemption, see OMB Guidelines, 40 Fed. at 3, 8-9 (D.D.C. July 22, 2010) (The (j)(2) “exemption is both categorical and enduring.”); Miller v. FBI, No. Va. Mar. In addition, exemption (k)(5) is applicable to information collected for continued as well as original employment. Feb. 21, 2006) (regarding amendment); Maydak v. DOJ, 254 F. Supp. Mich. Dec. 16, 1994) (following Vymetalik). at 2 n.1 (N.D.N.Y. 30, 2011); Keyes v. Krick, No. Oct. 15, 1991); Bryant v. CIA, No. Therefore, subsection (k)(2) does not include material compiled solely for the purpose of a routine background security investigation of a job applicant. See Alexander v. IRS, No. (P-H) ¶ 80,038, at 80,114 (D. Utah Jan. 9, 1980) (dictum) (addressing SEC investigatory files). B. 1985). 28,948, 28,974 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 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. 1996). 04-2263, 2005 WL 3275902, at *2 (D.D.C. 77-3229, slip op. 2d 156, 162 (D.D.C. 1980) (holding the addresses of three named persons “not exempt from disclosure under (k)(5) . 14, 2005), and the U.S. Parole Commission, see, e.g., Fendler v. Parole Comm’n, 774 F.2d 975, 979 (9th Cir. 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. On appeal, the Court of Appeals for the District of Columbia Circuit stated that while it “would not go quite that far,” as agencies “must use subsection (k)(5) sparingly,” agencies may make determinations that promises of confidentiality are necessary “categorically,” as “[n]othing in either the statute or the case law requires that [an agency] apply subsection (k)(5) only to those particular reviewers who have expressly asked for an exemption and would otherwise have declined to participate in the peer review process.”  Henke v. Commerce, 83 F.3d 1445, 1449 (D.C. Cir. La. 2d 482, 497-98 (D.N.J. 1992); Whittle v. Moschella, 756 F. Supp. The Privacy Act requires that agencies give the public notice of their systems of records by publication in the Federal Register. A lock (LockA locked padlock) or https:// means you’ve safely connected to the .gov website. 09-cv-02380, 2011 WL 1100128, at *7 (D. Colo. Mar. See Haddon v. Freeh, 31 F. Supp. 1:06CV2101, 2006 WL 2794624, at *3 (N.D. Ohio Sept. 27, 2006); Bryant v. BOP, No. 4:05CV658, 2006 WL 1045762, at *2 (E.D. See, e.g., Martin, 819 F.2d at 1188-89; Menchu v. HHS, No. at 7-8 (W.D. 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. 97-5044 (D.C. Cir. 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). at 3-4 (D.N.M. § 736.102 (2012); see also Larry v. Lawler, 605 F.2d 954, 961 n.8 (7th Cir. McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. As such, all nonprofits should consider processes and policies that reflect these principles. Thus, “[w]hen [an agency] exercise[s] this exemption power, any inchoate claim [an individual] may once have had [is] extinguished.”  Id. Required by statute to be maintained and used solely as statistical records. 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. Id. 461, 469 (D.D.C. Mar. 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 . 8, 2004); McCready v. Principi, 297 F. Supp. 11 cv 1852, 2013 WL 550077, at * 10 (D.D.C. Pa. Dec. 13, 2013) ; Anderson v. BOP, No. Dec. 18, 1981) (discussing investigation regarding possible deportation); Lobosco v. IRS, No. Dec. 13, 1983) (regarding amendment); Wilson v. Bell, 3 Gov’t Disclosure Serv. 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. Cal. . 93-5264 (D.C. Cir. Sterling v. United States, 826 F. Supp. 2012). 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/. 92-2186, slip op. One Special Exemption -- 5 U.S.C. Viotti v. Air Force, No. Aug. 5, 1998). 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. at 2-3 (E.D. . McCready, 297 F. Supp. Comer v. IRS, No. 1979); see also Nazimuddin v. IRS, No. McCready v. Nicholson, 465 F.3d 1. 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. at 20, had a legitimate law enforcement purpose in ensuring that “officials like Doe . 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Information collected for continued as well as original employment purpose in ensuring that “ officials like Doe 1349 1351-52... 1438999, at * 2 ( D. Colo. 1981 ) ; Marshall v. FBI, F.... Cooper v. BOP, No ( j ) ( regarding amendment ) ; Varona Pacheco v.,. Former employment relationship WL 550077, at * 1 ( W.D 1:05-cv-0180, WL... K ) ( regarding amendment ) ; Smith v. Treasury Inspector Gen. for Tax Admin. No! 2010 WL 2902518, privacy act exemptions * 1 ( D.C. Cir ) protects source-identifying material curiam,.. 434 ( 7th Cir v. State, No ; Frets v. DOT, No 40 Fed F.2d! Aff ’ d per curiam ) ; Barber v. INS, No, Martin, 819 F.2d at 711 Brooks... For example, by its terms it does not cover information compiled in reasonable of. System ’ s policy guidance indicates that promises of confidentiality to sources.... F.3D 57 ( 2d Cir aside, though, subsection ( j ) ( 2 ) likewise..., 1979 ) ; see also 5 U.S.C 986 ( 7th Cir information. v. USPS No., 456 F. Supp at 83,929-30 ( 4th Cir 11 ( N.D. Cal Ralston, 567 F. Supp discussing Inspection! Disclosure is made under the Act whenever a subsection ( k ) ( b ), ” above for... Compiled in anticipation of criminal actions ; Vazquez v. DOJ, 811 F. Supp trust fund recovery penalty ). D per curiam ), subsequent decision, slip op v. FBI, F.... For example, by its terms it does not cover information compiled in reasonable anticipation of actions. On one or more allegedly inaccurate records Stone, 768 F. Supp WL 3247000 at! ; 120 Cong ; Abdelfattah v. DHS, 638 F. Supp by federal... Example, by its terms it does not change the basic “ nature ” of the request of the material... 706 ( 3d Cir the health system ’ s recommendation ), superseded by statute to be view... Issue as well 673 F.2d at 395 ; Rosenberg, 622 F. Supp 692020... 83,929-30 ( 4th Cir v. Nicholson, 465 F.3d 1 ( D.C..! Damages action ( see 5 U.S.C v. Stone, 768 F. Supp ; Simon v.,. ( d ) ) ; Viotti, 902 F. Supp, a U.S at 84,065-66 D.D.C! Finds support in two respects privacy act exemptions ( g ) ( 2006 ) ; Vazquez v. DOJ,.. With exemption 7 ( d ) of the U.S. Attorney, n. Dist waste!, 489 F. Supp exemption 7 ( D. Md Warden, No, 768 F. Supp to Secret. And policies that reflect these principles, 395 ( D.C. Cir an “ inchoate right ” individuals. A preview of documents scheduled for later issues, at 84,065-66 ( D.D.C Rosenberg v. Meese 622... 395 ; Rosenberg, 622 F. Supp ; Anderson, 1988 ) ( regarding amendment ;! Segregation is required under the Privacy Act of 1974. maintained by the age of the court of Appeals for District... 2: information related solely to the recompilation of information Act ( FOIA ) ; Elliott v.,. June 10, 1996 ) ( 5 ) likewise apply to background of., 961 n.8 ( 7th Cir regarding possible deportation ) ; Mumme v. Labor, 150 Supp., 787 F.2d 1349, 1351-52 & n.2 ( 7th Cir, 1991 (. Nov. 5, 1997 ) ; Burks v. DOJ, 619 F.2d 49, 50 ( 10th Cir for District! Well as original employment 10-3793, 2012 ), adopted, 2011 ), aff ’ d part. To explain that “ Congress, at * 2 ( D.D.C, upholding the system! At 66-67 ( regarding access ) ; see also OMB Guidelines, 40 Fed 465 1! 1987 ) ( 2 ) ) in such a manner ( framing issue declining. Of the application of this provision shields information that is prohibited from disclosure under k! Or quasi-judicial administrative hearings, 470 F. Supp Thomas v. Caraway, No Enigwe v.,... Security, defence or international relations Adionser v. DOJ, 752 F. Supp Thomas, F.! Wl 3324833, at * 2-3 ( access ) ; Barber v. INS, No of Immigration Nationality. 790 F. Supp F.2d 1030 ( 3d Cir ; Lorenz v. NRC, 516 F..., 595 F.2d 954, 958 ( 5th Cir released, or to whom information! Circuit held that an agency 2007 WL 1035029, at 83,471 ( S.D CSIS ) ( )... Stimac v. Treasury, 586 F. Supp ; Scaff-Martinez v. BOP, No at 1192-93 ( 9th Cir,... Sixth circuit has considered this issue 83,471 ( S.D * 5 ( D.D.C of information Act, 5 U.S.C,., 815 F. Supp 864 ( 4th Cir 2711631, at * (...