| 1997 Guide to the Freedom of Information Act |
105th Congress, 1st Session House Report 105 37
A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE
PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS
FIRST REPORT
by the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
[Graphic Image Not Available]
March 20, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN H. SCHIFF, New Mexico EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington, DC
THOMAS M. DAVIS, Virginia CHAKA FATTAH, Pennsylvania
DAVID M. McINTOSH, Indiana TIM HOLDEN, Pennsylvania
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida DENNIS KUCINICH, Ohio
JOHN SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio DANNY K. DAVIS, Illinois
MARSHALL SANFORD, South Carolina JOHN F. TIERNEY, Massachusetts
JOHN E. SUNUNU, New Hampshire JIM TURNER, Texas
PETE SESSIONS, Texas THOMAS H. ALLEN, Maine
MIKE PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont (Independent)
BOB BARR, Georgia
------ ------
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY SUBCOMMITTEE
STEPHEN HORN, California, Chairman
PETE SESSIONS, Texas CAROLYN MALONEY, New York
TOM DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania
JOE SCARBOROUGH, Florida MAJOR R. OWENS, New York
MARK SANFORD, South Carolina ROD R. BLAGOJEVICH, Illinois
JOHN E. SUNUNU, New Hampshire DANNY K. DAVIS, Illinois
------ ------
EX OFFICIO
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Counsel
Mark Uncapher, Counsel
Andrea Miller, Clerk
Dave McMillen, Minority Professional Staff
(II)
LETTER OF TRANSMITTAL
House of Representatives,
Washington, DC, March 20, 1997.
Hon. Newt Gingrich, Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker : By direction of the Committee on Government
Reform and Oversight, I submit herewith the committee's first report to
the 105th Congress. The committee's report is based on a study conducted
by its Subcommittee on Government Management, Information, and
Technology.
Dan Burton,
Chairman.
(iii)
CONTENTS
Page
Preface 1
Introduction 2
Recommendations 4
How to use this guide 5
Which act to use 5
The Freedom of Information Act 6
A. The scope of the Freedom of Information Act
6
B. What records can be requested under the FOIA?
6
C. Making a FOIA request
9
D. Fees and fee waivers
11
E. Requirements for agency responses
13
F. Reasons access may be denied under the FOIA
14
1. Exemption 1.--Classified documents
15
2. Exemption 2.--Internal personnel rules and practices
16
3. Exemption 3.--Information exempt under other laws
16
4. Exemption 4.--Confidential business information
16
5. Exemption 5.--Internal Government communications
17
6. Exemption 6.--Personal privacy
17
7. Exemption 7.--Law enforcement
18
8. Exemption 8.--Financial institutions
19
9. Exemption 9.--Geological information
19
G. FOIA exclusions
19
H. Administrative appeal procedures
20
I. Filing a judicial appeal
21
VII.
The Privacy Act of 1974
22
A. The scope of the Privacy Act of 1974
22
B. The Computer Matching and Privacy Protection Act
23
C. Locating records
24
D. Making a Privacy Act request for access
26
E. Fees
27
F. Requirements for agency responses
27
G. Reasons access may be denied under the Privacy Act
27
1. General exemptions
28
2. Specific exemptions
29
3. Medical records
30
4. Litigation records
30
H. Administrative appeal procedures for denial of access
31
I. Amending records under the Privacy Act
31
J. Appeals and requirements for agency responses
32
K. Filing for judicial appeal
33
APPENDIXES
Appendix 1.--Sample request and appeal letters
35
A. Freedom of Information Act request letter
35
B. Freedom of Information Act appeal letter
37
C. Privacy Act request for access letter
39
D. Privacy Act denial of access appeal
40
E. Privacy Act request to amend records
41
F. Privacy Act appeal of refusal to amend records
42
Appendix 2.--Bibliography of congressional publications on the
Freedom of Information Act
43
Appendix 3.--Bibliography of congressional publications on the
Privacy Act of 1974
47
Appendix 4.--Text of the Freedom of Information Act
50
Appendix 5.--Text of the Privacy Act of 1974
60
(V)
Union Calendar No. 25
105 th Congress
Report
HOUSE OF REPRESENTATIVES
1st Session
105 37
A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE
PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS
March 20, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Burton, from the Committee on Government Reform and Oversight,
submitted the following
FIRST REPORT
On March 12, 1997, the Committee on Government Reform and Oversight
approved and adopted a report entitled ``A Citizen's Guide on Using the
Freedom of Information Act and the Privacy Act of 1974 To Request
Government Records.'' The chairman was directed to transmit a copy to
the Speaker of the House.
I. PREFACE
In 1977, the House Committee on Government Operations issued the
first Citizen's Guide on how to request records from Federal
agencies.\1\
The original Guide was reprinted many times and widely distributed. The
Superintendent of Documents at the Government Printing Office reported
that almost 50,000 copies were sold between 1977 and 1986 when the Guide
went out of print. In addition, thousands of copies were distributed by
the House Committee on Government Operations, Members of Congress, the
Congressional Research Service, and other Federal agencies. The original
Citizen's Guide is one of the most widely read congressional committee
reports in history.
\1\ A Citizen's Guide on How to Use the Freedom of Information Act and
the Privacy Act in Requesting Government Documents, H. Rept. 95 796,
95th Cong., 1st sess. (1977).
In 1987, the committee issued a revised Citizen's Guide. \2\
The new edition was prepared to reflect changes to the Freedom of
Information Act made during 1986. As a result of special efforts by the
Superintendent of Documents at the Government Printing Office, the
availability of the new Guide was well publicized. The 1987 edition
appeared on GPO's ``Best Seller'' list in the months following its
issuance.
\2\ A Citizen's Guide on Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H. Rept. 100 199,
100th Cong., 1st sess. (1987).
During the 100th Congress, major amendments were made to the Privacy
Act of 1974. The Computer Matching and Privacy Protection Act of 1988\3\
added new provisions to the Privacy Act and changed several existing
requirements. None of the changes affects citizen's rights to request or
see records held by Federal agencies, but some of the information in the
1987 Guide became outdated as a result, and a third edition was issued
in 1989.\4\
\3\102 Stat. 2507.
\4\ A Citizen's Guide on Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H. Rept. 101 193,
101st Cong., 1st sess. (1989).
During the 101st Congress, the Privacy Act of 1974 was amended
through further adjustments to the Computer Matching and Privacy
Protection Act of 1988. The changes did not affect access rights. A
fourth edition of the Citizen's Guide reflected all changes to the FOIA
and Privacy Act made through the end of 1990.\5\
A fifth edition of the Guide, produced in 1993, included an expanded
bibliography and editorial changes.\6\
\5\ A Citizen's Guide on Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H. Rept. 102 146,
102d Cong., 1st sess. (1991).
\6\ A Citizen's Guide on Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H. Rept. 103 104,
103d Cong., 1st sess. (1993).
A sixth edition contained bibliography additions and editorial
changes and represented the first report issued by the new Government
Reform and Oversight Committee.\7\
\7\ A Citizen's Guide on Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H. Rept. 104 156,
104th Cong., 1st sess. (1995).
In the closing days of the 104th Congress, the Senate and the House
of Representatives completed action on the Electronic Freedom of
Information Act Amendments of 1996. The President signed this
legislation into law on October 2, 1996, when it became Public Law 104
231. With the exception of two sections, these amendments become
effective 180 days after enactment of the legislation. The other two
sections become effective 1 year after enactment. Because the 1996
amendments change some FOIA access rights, this seventh edition of the
Guide was prepared to reflect these modifications. It also contains
bibliography additions and editorial changes.\8\
\8\The committee wishes to acknowledge the assistance of Harold C.
Relyea, Specialist, American National Government, Government Division,
Congressional Research Service, in the preparation of this report.
II. INTRODUCTION
A popular Government without popular information or
the means of acquiring it, is but a Prologue to a Farce or a
Tragedy or perhaps both. Knowledge will forever govern
ignorance, and a people who mean to be their own Governors,
must arm themselves with the power knowledge gives.-- James
Madison\9\
\9\Letter to W.T. Barry, Aug. 4, 1822, in G.P. Hunt, ed., IX The
Writings of James Madison 103 (1910).
The Freedom of Information Act [FOIA] 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. This was not
always the approach to Federal information disclosure policy. Before
enactment of the FOIA in 1966, the burden was on the individual to
establish a right to examine these government records. There were no
statutory guidelines or procedures to help a person seeking information.
There were no judicial remedies for those denied access.
With the passage of the FOIA, the burden of proof shifted from the
individual to the government. Those seeking information are no longer
required to show a need for information. Instead, the ``need to know''
standard has been replaced by a ``right to know'' doctrine. The
government now has to justify the need for secrecy.
The FOIA sets standards for determining which records must be
disclosed and which records may be withheld. The law also provides
administrative and judicial remedies for those denied access to records.
Above all, the statute requires Federal agencies to provide the fullest
possible disclosure of information to the public.
The Privacy Act of 1974 is a companion to the FOIA. The Privacy Act
regulates Federal Government agency recordkeeping and disclosure
practices. The act allows most individuals to seek access to Federal
agency records about themselves. The act requires that personal
information in agency files be accurate, complete, relevant, and timely.
The subject of a record may challenge the accuracy of information. The
act requires that agencies obtain information directly from the subject
of the record and that information gathered for one purpose not be used
for another purpose. As with the FOIA, the Privacy Act provides civil
remedies for individuals whose rights may have been violated.
Another important feature of the Privacy Act is the requirement that
each Federal agency publish a description of each system of records
maintained by the agency that contains personal information. This
prevents agencies from keeping secret records.
The Privacy Act also restricts the disclosure of personally
identifiable information by Federal agencies. Together with the FOIA,
the Privacy Act permits disclosure of most personal files to the
individual who is the subject of the files. The two laws restrict
disclosure of personal information to others when disclosure would
violate privacy interests.
While both the FOIA and the Privacy Act support the disclosure of
agency records, both laws also recognize the legitimate need to restrict
disclosure of some information. For example, agencies may withhold
information properly classified in the interest of national defense or
foreign policy and criminal investigatory files. Other specifically
defined categories of information may also be withheld.
The essential feature of both laws is that they make Federal agencies
accountable for information disclosure policies and practices. While
neither law grants an absolute right to examine government documents,
both laws establish the right to request records and to receive a
response to the request. If a record cannot be released, the requester
is entitled to be told the reason for the denial. The requester also has
a right to appeal the denial and, if necessary, to challenge it in
court.
These procedural rights granted by the FOIA and the Privacy Act make
the laws valuable and workable. As a result, the disclosure of Federal
Government information cannot be controlled by arbitrary or unreviewable
actions.
III. RECOMMENDATIONS
The committee recommends that this Citizen's Guide be made widely
available at low cost to anyone who has an interest in obtaining
documents from the Federal Government. The Government Printing Office
and Federal agencies subject to the Freedom of Information Act and the
Privacy Act of 1974 should continue to distribute this report widely.
The committee also recommends that this Citizen's Guide be used by
Federal agencies in training programs for government employees who are
responsible for administering the Freedom of Information Act and the
Privacy Act of 1974. The Guide should also be used by those government
employees who only occasionally work with these two laws.
In following these recommendations, however, agencies are not
relieved of their obligation to comply with the provisions of the 1996
FOIA amendments requiring agencies to make publicly available, upon
request, reference material or an agency guide for requesting records or
information. This agency guide should include an index and description
of all major information systems of the agency, and guidance for
obtaining various types and categories of public information from the
agency.
The agency guide is intended to be a short and simple explanation for
the public of what the FOIA is designed to do, and how a member of the
public can use it to access government records. Each agency should
explain, in clear and simple language, the types of records that can be
obtained from the agency through FOIA requests; why some records cannot,
by law, be made available; and how the agency makes the determination of
whether or not a record can be released.
Each agency guide should explain how to make a FOIA request, and how
long a requester can expect to wait for a reply from the agency. In
addition, the guide should explain the requester's rights under the law
to appeal to the courts to rectify agency action. The guide should give
a brief history of recent litigation the agency has been involved in,
and the resolution of those cases. If an agency requires that certain
requests, such as applications for expedited access, be completed on
agency forms, then the forms should be part of the guide.
The agency guide is intended to supplement other information locator
systems, like the Government Information Locator System (GILS) mandated
by the Paperwork Reduction Act of 1995.\10\
Thus, the guide should reference systems and explain how a requester
can obtain more information about them. Any agency specific locator
systems should be similarly referenced in the guide.
\10\109 Stat. 163; 44 U.S.C. 3501 3520 (1995).
All agency guides should be available through electronic means, and
should be linked to agency annual reports on FOIA administration. A
citizen examining an agency guide should learn how to access the
agency's annual reports, and any potential requester reading an annual
report should learn about the agency guide, and how to access it.
IV. HOW TO USE THIS GUIDE
This report explains how to use the Freedom of Information Act and
the Privacy Act of 1974. It reflects all changes to the laws made since
1996. Major amendments to the Freedom of Information Act passed in 1974,
1986, and 1996. A major addition to the Privacy Act of 1974 was enacted
in 1988. Minor amendments to the Privacy Act were made in 1989 and 1990.
This Guide is intended to serve as a general introduction to the
Freedom of Information Act and the Privacy Act.\11\
It offers neither a comprehensive explanation of the details of these
acts nor an analysis of case law. The Guide will enable those who are
unfamiliar with the laws to understand the process and to make a
request. In addition, the complete text of each law is included in an
appendix.
\11\This Guide is primarily intended to help the general public. It
includes a complete explanation of the basics of the two laws. In the
interest of producing a guide that would be both simple and useful to
the intended audience, the committee deliberately avoided addressing
some of the issues that are highly controversial. The committee cautions
against treating the neutrally written descriptions contained in this
report as definitive expressions of the committee's views of the law or
congressional intent.
Readers should be aware that FOIA litigation is a complex area of
law. There are thousands of court decisions interpreting the FOIA.\12\
These decisions must be considered in order to develop a complete
understanding of the principles governing disclosure of government
information. Anyone requiring more details about the FOIA, its history,
or the case law should consult other sources. There has been less
controversy and less litigation over the Privacy Act, but there is,
nevertheless, a considerable body of case law for the Privacy Act as
well. There are also other sources of information on the Privacy Act.
\12\See, e.g., U.S. Department of Justice, Office of Information and
Privacy, Freedom of Information Case List (published biennially) and
Freedom of Information Act Guide & Privacy Act Overview (published
annually).
However, no one should be discouraged from making a request under
either law. No special expertise is required. Using the Freedom of
Information Act and the Privacy Act is as simple as writing a letter.
This Citizen's Guide explains the essentials.
V. WHICH ACT TO USE
The access provisions of the FOIA and the Privacy Act overlap in
part. The two laws have different procedures and different exemptions.
As a result, sometimes information exempt under one law will be
disclosable under the other.
In order to take maximum advantage of the laws, an individual seeking
information about himself or herself should ordinarily cite both laws.
Requests by an individual for information that does not relate solely to
himself or herself should be made only under the FOIA.
Congress intended that the two laws be considered together in the
processing of requests for information. Most government agencies will
automatically handle requests from individuals in a way that will
maximize the amount of information that is disclosable. However, a
requester should still make a request in a manner that is most
advantageous and that fully protects all available legal rights. A
requester who has any doubts about which law to use should always cite
both the FOIA and the Privacy Act when seeking documents from the
Federal Government.
VI. THE FREEDOM OF INFORMATION ACT
A. THE SCOPE OF THE FREEDOM OF INFORMATION ACT
The Federal Freedom of Information Act applies to documents held by
agencies of the executive branch of the Federal Government. The
executive branch includes cabinet departments, military departments,
government corporations, government controlled corporations, independent
regulatory agencies, and other establishments in the executive branch.
The FOIA does not apply to elected officials of the Federal
Government, including the President,\13\
Vice President, Senators, and Congressmen.\14\
The FOIA does not apply to the Federal judiciary. The FOIA does not
apply to private companies; persons who receive Federal contracts or
grants; private organizations; or State or local governments.
\13\The Presidential Records Act of 1978, 44 U.S.C. 2201 2207 (1982),
does make the documentary materials of former Presidents subject to the
FOIA in part. Presidential papers and documents generated after Jan. 20,
1981, will be available--subject to certain restrictions and
delays--under the general framework of the FOIA.
\14\Virtually all official records of the Congress are available to the
public. The Congressional Record, all bills introduced in the House and
the Senate, and all committee reports (except for those containing
classified information) are printed and disseminated. Most committee
hearings are also printed and available. Copies of most congressional
publications are available at Federal depository libraries throughout
the country. Historical records of the Congress are made available in
accordance with procedures established by House and Senate rules.
All States and some localities have passed laws like the FOIA that
allow people to request access to records. In addition, there are other
Federal and State laws that may permit access to documents held by
organizations not covered by the Federal FOIA.\15\
\15\See, e.g., the Federal Fair Credit Reporting Act, 15 U.S.C. 1681 et
seq. (1982) (providing for access to files of credit bureaus), the
Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C.
1232g (1982) (providing for access to records maintained by schools and
colleges). Some States have enacted laws allowing individuals to have
access to personnel records maintained by employers. See, e.g., Michigan
Compiled Laws Annotated 423.501.
B. WHAT RECORDS CAN BE REQUESTED UNDER THE FOIA?
The FOIA requires agencies to publish in the Federal Register
--thereby, under the Government Printing Office Electronic Information
Access Enhancement Act of 1993,\16\
making such information available online--(1) descriptions of agency
organization and office addresses; (2) statements of the general course
and method of agency operation; (3) rules of procedure and descriptions
of forms; and (4) substantive rules of general applicability and general
policy statements. The act also requires agencies to make available for
public inspection and copying: (1) final opinions made in the
adjudication of cases; (2) statements of policy and interpretations
adopted by an agency, but not published in the Federal Register; (3)
administrative staff manuals that affect the public; (4) copies of
records released in response to FOIA requests that an agency determines
have been or will likely be the subject of additional requests; and (5)
a general index of released records determined to have been or likely to
be the subject of additional requests.\17\
The 1996 FOIA amendments require that, within 1 year after their
enactment, these materials which an agency must make available for
inspection and copying without the formality of a FOIA request and which
are created on or after November 1, 1996, must be made available by
computer telecommunications and in hard copy.\18\
\16\44 U.S.C. 4101 (1993); the Government Printing Office Access website
may be accessed at
http://www.access.gpo.gov/su--docs/aces/aaces001.html.
\17\The 1996 amendments to the FOIA require that, by December 31, 1999,
this general index should be made available by computer
telecommunications. Since not all individuals have access to computer
networks or are near agency public reading rooms, requesters would still
be able to access previously released FOIA records through the normal
FOIA process. 110 Stat. 3049.
\18\110 Stat. 3049; the 1996 FOIA amendments were signed into law by the
President on October 2, 1996.
All other ``records'' of a Federal agency may be requested under the
FOIA. The form in which a record is maintained by an agency does not
affect its availability. A request may seek a printed or typed document,
tape recording, map, photograph, computer printout, computer tape or
disk, or a similar item. The 1996 FOIA amendments affirm the general
policy that any record, regardless of the form in which it is stored,
that is in the possession and control of a Federal agency is usually
considered to be an agency record under the FOIA. Although the FOIA
occasionally uses terms other than ``record,'' including ``information''
and ``matter,'' the definition of ``record'' made by the 1996 amendments
should leave no doubt about the breadth of the policy or the
interchangability of terms.
Of course, not all records that can be requested under the FOIA must
be disclosed. Information that is exempt from disclosure is described
below in the section entitled ``Reasons Access May Be Denied Under the
FOIA.''
The FOIA, it should be noted, provides that a requester may ask for
records rather than information. This means that an agency is only
required to look for an existing record or document in response to a
FOIA request. An agency is not obliged to create a new record to comply
with a request. An agency is neither required to collect information it
does not have, nor must an agency do research or analyze data for a
requester.\19\
\19\When records are maintained in a computer, an agency is required to
retrieve information in response to a FOIA request. The process of
retrieving the information may result in the creation of a new document
when the data is printed out on paper or written on computer tape or
disk. Since this may be the only way computerized data can be disclosed,
agencies are required to provide the data even if it means a new
document must be created.
Requesters must ask for existing records. Requests may have to be
carefully written in order to obtain the desired information. Sometimes,
an agency will help a requester identify a specific document that
contains the information being sought. Other times, a requester may need
to be creative when writing a FOIA request in order to identify an
existing document or set of documents containing the desired
information.
There is a second general limitation on FOIA requests. The law
requires that each request must reasonably describe the records being
sought. This means that a request must be specific enough to permit a
professional employee of the agency who is familiar with the subject
matter to locate the record in a reasonable period of time.
Because agencies organize and index records in different ways, one
agency may consider a request to be reasonably descriptive while another
agency may reject a similar request as too vague. For example, the
Federal Bureau of Investigation (FBI) has a central index for its
primary record system. As a result, the FBI is able to search for
records about a specific person. However, agencies that do not maintain
a central name index may be unable to conduct the same type of search.
These agencies may reject a similar request because the request does not
describe records that can be identified.
Requesters should make requests as specific as possible. If a
particular document is required, it should be identified precisely,
preferably by date and title. However, a request does not always have to
be that specific. A requester who cannot identify a specific record
should clearly explain his or her needs. A requester should make sure,
however, that a request is broad enough to include all desired
information.
For example, assume that a requester wants to obtain a list of toxic
waste sites near his home. A request to the Environmental Protection
Agency (EPA) for all records on toxic waste would cover many more
records than are needed. The fees for such a request might be very high,
and it is possible that the request might be rejected as too vague.
A request for all toxic waste sites within 3 miles of a particular
address is very specific. However, it is unlikely that the EPA would
have an existing record containing data organized in that fashion. As a
result, the request might be denied because there is no existing record
containing the information.
The requester might do better to ask for a list of toxic waste sites
in his city, county, or State. It is more likely that existing records
might contain this information. The requester might also want to tell
the agency in the request letter exactly what information is desired.
This additional explanation may help the agency to find a record that
meets the request.
Many people include their telephone number with their requests. Some
questions about the scope of a request can be resolved quickly when an
agency employee and the requester talk. This is an efficient way to
resolve questions that arise during the processing of FOIA requests.
It is to everyone's advantage if requests are as precise and as
narrow as possible. The requester benefits because the request can be
processed faster and cheaper. The agency benefits because it can do a
better job of responding to the request. The agency will also be able to
use its resources to respond to more requests. The FOIA works best when
both the requester and the agency act cooperatively.
C. MAKING A FOIA REQUEST
The first step in making a request under the FOIA is to identify the
agency that has the records. A FOIA request must be addressed to a
specific agency. There is no central government records office that
services FOIA requests.
Often, a requester knows beforehand which agency has the desired
records. If not, a requester can consult a government directory such as
the United States Government Manual. \20\
This manual has a complete list of all Federal agencies, a description
of agency functions, and the address of each agency. A requester who is
uncertain about which agency has the records that are needed can make
FOIA requests at more than one agency.
\20\The United States Government Manual is sold by the Superintendent of
Documents of the U.S. Government Printing Office. Virtually every public
library should have a copy on its shelves. An electronic version of the
Manual may be found on the Office of the Federal Register website at
http://nara.gov/nara/fedreg/fedreg.html#ep.
Agencies require that FOIA requests be in writing. Letters requesting
records under the FOIA can be short and simple. No one needs a lawyer to
make a FOIA request. Appendix 1 of this Guide contains a sample request
letter.
The request letter should be addressed to the agency's FOIA officer
or to the head of the agency. The envelope containing the written
request should be marked ``Freedom of Information Act Request'' in the
lower left-hand corner.\21\
\21\All agencies have issued FOIA regulations that describe the request
process in greater detail. For example, large agencies may have several
components each of which has its own FOIA rules. A requester who can
find agency FOIA regulations in the Code of Federal Regulations
(available in many libraries and an electronic version may be found on
the Office of the Federal Register website provided in note 20) might
find it useful to check these regulations before making a request. A
requester who follows the agency's specific procedures may receive a
faster response. However, the simple procedures suggested in this guide
will be adequate to meet the minimum requirements for a FOIA request.
There are three basic elements to a FOIA request letter. First, the
letter should state that the request is being made under the Freedom of
Information Act. Second, the request should identify the records that
are being sought as specifically as possible. Third, the name and
address of the requester must be included.
Under the 1986 amendments to the FOIA, fees chargeable vary with the
status or purpose of the requester. As a result, a requester may have to
provide additional information to permit the agency to determine the
appropriate fees. Different fees can be charged to commercial users,
representatives of the news media, educational or noncommercial
scientific institutions, and individuals. The next section explains the
fee structure in more detail.
There are several optional items that are often included in a FOIA
request. The first is the telephone number of the requester. This
permits an agency employee processing a request to speak with the
requester if necessary.
A second optional item is a limitation on the fees that the requester
is willing to pay. It is common for a requester to ask to be notified in
advance if the charges will exceed a fixed amount. This allows the
requester to modify or withdraw a request if the cost may be too high.
Also, by stating a willingness to pay a set amount of fees in the
original request letter, a requester may avoid the necessity of
additional correspondence and delay.
A third optional item sometimes included in a FOIA request is a
request for a waiver or reduction of fees. The 1986 amendments to the
FOIA changed the rules for fee waivers. Fees must be waived or reduced
if disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester. Decisions about granting fee
waivers are separate from and different than decisions about the amount
of fees that can be charged to a requester.
A fourth optional item is the specification of the form or format in
which the requested material is sought. This is an important
consideration if a requester desires the responsive information in a
particular format. For example, should information maintained by an
agency in an electronic form be provided in that same form (perhaps on a
disk or CD ROM) or in hardcopy (such as a paper printout)? The 1996
amendments to the FOIA require agencies to help requesters by providing
information in the form requested, including requests for the electronic
form of records, if the agency can readily reproduce it in that form.
Part of this helping effort includes informing requesters of costs and
delays that format preferences might engender.
A fifth optional consideration is seeking expedited processing of a
request by showing a ``compelling need'' for a speedy response. The 1996
amendments to the FOIA require the agencies to promulgate regulations
authorizing expedited access where a requester demonstrates a
``compelling need'' for quick response. These regulations are to become
operative 1 year after the enactment of the 1996 amendments.\22\
A ``compelling need'' warranting faster FOIA processing exists in two
categories of circumstances. In the first category, the failure to
obtain the records within an expedited deadline poses an imminent threat
to an individual's life or physical safety. The second category requires
a request by someone ``primarily engaged in disseminating information''
and ``urgency to inform the public concerning actual or alleged Federal
Government activity.'' Agencies may determine other cases in which they
will make provision in their regulations for expedited processing.
\22\The 1996 FOIA amendments were signed into law by the President on
October 2, 1996.
The specified categories for compelling need are intended to be
narrowly applied. A threat to an individual's life or physical safety
qualifying for expedited access should be imminent. A reasonable person
should be able to appreciate that a delay in obtaining the requested
information poses such a threat. A person ``primarily engaged in
disseminating information'' should not include individuals who are
engaged only incidentally in the dissemination of information. The
standard of ``primarily engaged'' requires that information
dissemination be the main activity of the requester, although it need
not be his or her sole occupation. A requester who only incidentally
engages in information dissemination, besides other activities, would
not satisfy this requirement.
The standard of ``urgency to inform'' requires that the information
requested should pertain to a matter constituting a current exigency for
the American public and that a reasonable person might conclude that the
consequences of delaying a response to a FOIA request would compromise a
significant recognized interest. The public's right to know, although a
significant and important value, would not by itself be sufficient to
satisfy this standard.
A requester should keep a copy of the request letter and related
correspondence until the request has been finally resolved.
D. FEES AND FEE WAIVERS
FOIA requesters may have to pay fees covering some or all of the
costs of processing their requests. As amended in 1986, the law
establishes three types of fees that may be charged. The 1986 law makes
the process of determining the applicable fees more complicated.
However, the 1986 rules reduce or eliminate entirely the cost for small,
noncommercial requests.
First, fees can be imposed to recover the cost of copying documents.
All agencies have a fixed price for making copies using copying
machines. A requester is usually charged the actual cost of copying
computer tapes, photographs, and other nonstandard documents.
Second, fees can also be imposed to recover the costs of searching
for documents. This includes the time spent looking for material
responsive to a request. The 1996 amendments to the FOIA define
``search'' as a ``review, manually or by automated means,'' of ``agency
records for the purpose of locating those records responsive to a
request.'' Under the FOIA, an agency need not create documents that do
not exist. Computer records found in a data base rather than a file
cabinet may require the application of codes or some form of programming
to retrieve the information. Under the definition of ``search'' in the
amendments, the review of computerized records would not amount to the
creation of records. Otherwise, it would be virtually impossible to get
records maintained completely in an electronic format, like computer
data base information, because some manipulation of the information
likely would be necessary to search the records. A requester can
minimize search charges by making clear, narrow requests for
identifiable documents whenever possible.
Third, fees can be charged to recover review costs. Review is the
process of examining documents to determine whether any portion is
exempt from disclosure. Before the 1986 amendments took effect, no
review costs were charged to any requester. Review costs may be charged
to commercial requesters only. Review charges only include costs
incurred during the initial examination of a document. An agency may not
charge for any costs incurred in resolving issues of law or policy that
may arise while processing a request.
Different fees apply to different requesters. There are three
categories of FOIA requesters. The first includes representatives of the
news media, and educational or noncommercial scientific institutions
whose purpose is scholarly or scientific research. A requester in this
category who is not seeking records for commercial use can only be
billed for reasonable standard document duplication charges. A request
for information from a representative of the news media is not
considered to be for commercial use if the request is in support of a
news gathering or dissemination function.
The second category includes FOIA requesters seeking records for
commercial use. Commercial use is not defined in the law, but it
generally includes profitmaking activities. A commercial user can be
charged reasonable standard charges for document duplication, search,
and review.
The third category of FOIA requesters includes everyone not in the
first two categories. People seeking information for personal use,
public interest groups, and nonprofit organizations are examples of
requesters who fall into the third group. Charges for these requesters
are limited to reasonable standard charges for document duplication and
search. Review costs may not be charged. The 1986 amendments did not
change the fees charged to these requesters.
Small requests are free for a requester in the first and third
categories. This includes all requesters except commercial users. There
is no charge for the first 2 hours of search time and for the first 100
pages of documents. A noncommercial requester who limits a request to a
small number of easily found records will not pay any fees at all.
In addition, the law also prevents agencies from charging fees if the
cost of collecting the fee would exceed the amount collected. This
limitation applies to all requests, including those seeking documents
for commercial use. Thus, if the allowable charges for any FOIA request
are small, no fees are imposed.
Each agency sets charges for duplication, search, and review based on
its own costs. The amount of these charges is listed in agency FOIA
regulations. Each agency also sets its own threshold for minimum
charges.
The 1986 FOIA amendments also changed the law on fee waivers. Fees
now must be waived or reduced if disclosure of the information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
The 1986 amendments on fees and fee waivers have created some
confusion. Determinations about fees are separate and distinct from
determinations about fee waivers. For example, a requester who can
demonstrate that he or she is a news reporter may only be charged
duplication fees. However, a requester found to be a reporter is not
automatically entitled to a waiver of those fees. A reporter who seeks a
waiver must demonstrate that the request also meets the standards for
waivers.
Normally, only after a requester has been categorized to determine
the applicable fees does the issue of a fee waiver arise. A requester
who seeks a fee waiver should ask for a waiver in the original request
letter. However, a request for a waiver can be made at a later time. The
requester should describe how disclosure will contribute to public
understanding of the operations or activities of the government. The
sample request letter in the appendix includes optional language asking
for a fee waiver.
Any requester may ask for a fee waiver. Some will find it easier to
qualify than others. A news reporter who is only charged duplication
costs may still ask that the charges be waived because of the public
benefits that will result from disclosure. A representative of the news
media, a scholar, or a public interest group are more likely to qualify
for a waiver of fees. A commercial user may find it difficult to qualify
for waivers.
The eligibility of other requesters will vary. A key element in
qualifying for a fee waiver is the relationship of the information to
public understanding of the operations or activities of government.
Another important factor is the ability of the requester to convey that
information to other interested members of the public. A requester is
not eligible for a fee waiver solely because of indigence.
E. REQUIREMENTS FOR AGENCY RESPONSES
Until the response requirements of the 1996 amendments to the FOIA
become fully effective in early October 1997, each agency is currently
required to determine within 10 days (excluding Saturdays, Sundays, and
legal holidays) after the receipt of a request whether to comply with
the request.\23\
The actual disclosure of documents is required to follow promptly
thereafter. If a request is denied in whole or in part, the agency must
tell the requester the reasons for the denial. The agency must also tell
the requester that there is a right to appeal any adverse determination
to the head of the agency or his or her designee.
\23\The new response requirements of the 1996 amendments to the FOIA
become effective 1 year after being signed into law by the President on
October 2, 1996.
The FOIA permits an agency to extend the time limits up to 10 days in
unusual circumstances. These circumstances include the need to collect
records from remote locations, review large numbers of records, and
consult with other agencies. The agency is supposed to notify the
requester whenever an extension is invoked.\24\
\24\Agencies that take more than 10 days to respond to a request do not
always notify each requester that an extension has been invoked.
The statutory time limits for responses are not always met. An agency
sometimes receives an unexpectedly large number of FOIA requests at one
time and is unable to meet the deadlines. Some agencies assign
inadequate resources to FOIA offices. Congress does not condone the
failure of any agency to meet the law's time limits. However, as a
practical matter, there is little that a requester can do about it. The
courts have been reluctant to provide relief solely because the FOIA's
time limits have not been met.
The best advice to requesters is to be patient. The law allows a
requester to consider that his or her request has been denied if it has
not been decided within the time limits. This permits the requester to
file an administrative appeal or file a lawsuit in Federal District
Court. However, this is not always the best course of action. The filing
of an administrative or judicial appeal will not necessarily result in
any faster processing of the request.
Each agency generally processes requests in the order of receipt.
Some agencies will expedite the processing of urgent requests. Anyone
with a pressing need for records should consult with the agency FOIA
officer about how to ask for expedited treatment of requests.
When the new response requirements of the 1996 amendments to the FOIA
become effective in early October 1997, several changes will occur. As
noted, agencies have long processed FOIA requests on a ``first in, first
out'' basis. Processing requests solely on this basis, however, has
resulted in lengthy delays for simple requests. The prior receipt and
processing of complex requests delays other requests, increasing agency
backlogs. To change this situation, the 1996 amendments to the FOIA
authorize agencies to promulgate regulations establishing multitrack
processing systems, and make clear that agencies should exercise due
diligence within each track. Under these new arrangements, agencies also
may give requesters the opportunity to limit the scope of their requests
to qualify for processing under a faster track.
The 1996 amendments also increase from 10 to 20 days (excluding
Saturdays, Sundays, and legal holidays) the time allowed for an agency,
after receiving a request, to determine whether to comply with the
request. Moreover, the amendments provide a mechanism to deal with
unusually burdensome requests which an agency would not be able to
process within prescribed timeframes, including an extra 10 days for
``unusual circumstances.'' For such requests, the 1996 amendments
require an agency to inform the requester that the request cannot be
processed within the statutory time limits and provide an opportunity
for the requester to limit the scope of the request so that it may be
processed within statutory time limits, and/or arrange with the agency a
negotiated deadline for processing the request. In the event the
requester refuses to reasonably limit the scope of the request or agree
upon a timeframe and then seeks judicial review, that refusal shall be
considered as a factor in determining whether ``exceptional
circum-stances'' exist for a judicial extension of processing time.
The FOIA currently provides that, in ``exceptional circumstances,'' a
court may extend the statutory time limits for an agency to respond to a
FOIA request, but does not specify what those circumstances are. The
1996 amendments clarify that routine, predictable agency backlogs for
FOIA requests do not constitute exceptional circumstances for purposes
of the act. Routine backlogs of requests for records under the FOIA do
not give agencies an automatic excuse to ignore the time limits. A court
shall consider an agency's efforts to reduce the number of pending
requests in determining whether exceptional circumstances exist.
Agencies may also make a showing of exceptional circumstances based on
the amount of material classified, based upon the size and complexity of
other requests processed by the agency, based upon the resources being
devoted to the declassification of classified material of public
interest, or based upon the number of requests for records by courts or
administrative tribunals. A court also shall consider a requester's
unwillingness to reasonably limit the scope of his or her request or to
agree upon a processing timeframe prior to seeking judicial review.
As noted at the outset of this section, the new response requirements
of the 1996 amendments to the FOIA do not become effective until early
October 1997.
F. REASONS ACCESS MAY BE DENIED UNDER THE FOIA
An agency may refuse to disclose an agency record that falls within
any of the FOIA's nine statutory exemptions. The exemptions protect
against the disclosure of information that would harm national defense
or foreign policy, privacy of individuals, proprietary interests of
business, functioning of the government, and other important interests.
A document that does not qualify as an ``agency record'' may be denied
because only agency records are available under the FOIA. Personal notes
of agency employees may be denied on this basis. However, most records
in the possession of an agency are ``agency records'' within the meaning
of the FOIA.
An agency may withhold exempt information, but it is not always
required to do so. For example, an agency may disclose an exempt
internal memorandum because no harm would result from its disclosure.
However, an agency should not disclose an exempt document that is
classified or that contains a trade secret.
When a record contains some information that qualifies as exempt, the
entire record is not necessarily exempt. Instead, the FOIA specifically
provides that any reasonably segregable portions of a record must be
provided to a requester after the deletion of the portions that are
exempt. This is a very important requirement because it prevents an
agency from withholding an entire document simply because one line or
one page is exempt.
The ease with which in electronic form or format may be redacted
(deleting part of a record to prevent disclosure of material covered by
an exemption) makes the determination of whether a few words or 30 pages
have been withheld by an agency at times impossible. The 1996 amendments
to the FOIA require agencies to identify the location of deletions in
the released portion of the record and, where technologically feasible,
to show the deletion at the place on the record where the deletion was
made, unless including that indication would harm an interest protected
by an exemption.
1. Exemption 1.--Classified Documents
The first FOIA exemption permits the withholding of properly
classified documents. Information may be classified in the interest of
national defense or foreign policy.
The rules for classification are established by the President and not
the FOIA or other law. The FOIA provides that, if a document has been
properly classified under a Presidential Executive order, the document
can be withheld from disclosure.
Classified documents may be requested under the FOIA. An agency can
review the document to determine if it still requires protection. In
addition, the Executive order on security classification establishes a
special procedure for requesting the declassification of documents.\25\
If a requested document is declassified, it can be released in response
to a FOIA request. However, a document that is declassified may still be
exempt under other FOIA exemptions.
\25\At the time that this Guide was prepared, the current Executive
order on security classification was Executive Order 12958, which was
promulgated by President Clinton on Apr. 17, 1995. The text of the order
can be found at 60 Federal Register 19825 43 (Apr. 20, 1995); an
electronic version of the order may be found on the Office of the
Federal Register website provided at note 20. The rules for mandatory
review for declassification are in section 3.6 of the Executive order.
2. Exemption 2.--Internal Personnel Rules and Practices
The second FOIA exemption covers matters that are related solely to
an agency's internal personnel rules and practices. As interpreted by
the courts, there are two separate classes of documents that are
generally held to fall within exemption 2.
First, information relating to personnel rules or internal agency
practices is exempt if it is trivial administrative matter of no genuine
public interest. A rule governing lunch hours for agency employees is an
example.
Second, an internal administrative manual can be exempt if disclosure
would risk circumvention of law or agency regulations. In order to fall
into this category, the material will normally have to regulate internal
agency conduct rather than public behavior.
3. Exemption 3.--Information Exempt Under Other Laws
The third exemption incorporates into the FOIA other laws that
restrict the availability of information. To qualify under this
exemption, a statute must require that matters be withheld from the
public in such a manner as to leave no discretion to the agency.
Alternatively, the statute must establish particular criteria for
withholding or refer to particular types of matters to be withheld.
One example of a qualifying statute is the provision of the Tax Code
prohibiting the public disclosure of tax returns and tax return
information.\26\
Another qualifying exemption 3 statute is the law designating
identifiable census data as confidential.\27\
Whether a particular statute qualifies under exemption 3 can be a
difficult legal question.
\26\26 U.S.C. 6103 (1988).
\27\13 U.S.C. 9 (1988).
4. Exemption 4.--Confidential Business Information
The fourth exemption protects from public disclosure two types of
information: Trade secrets and confidential business information. A
trade secret is a commercially valuable plan, formula, process, or
device. This is a narrow category of information. An example of a trade
secret is the recipe for a commercial food product.
The second type of protected data is commercial or financial
information obtained from a person and privileged or confidential. The
courts have held that data qualifies for withholding if disclosure by
the government would be likely to harm the competitive position of the
person who submitted the information. Detailed information on a
company's marketing plans, profits, or costs can qualify as confidential
business information. Information may also be withheld if disclosure
would be likely to impair the government's ability to obtain similar
information in the future.
Only information obtained from a person other than a government
agency qualifies under the fourth exemption. A person is an individual,
a partnership, or a corporation. Information that an agency created on
its own cannot normally be withheld under exemption 4.
Although there is no formal requirement under the FOIA, many agencies
will notify a submitter of business information that disclosure of the
information is being considered.\28\
The submitter then has an opportunity to convince the agency that the
information qualifies for withholding. A submitter can also file suit to
block disclosure under the FOIA. Such lawsuits are generally referred to
as ``reverse'' FOIA lawsuits because the FOIA is being used in an
attempt to prevent rather than to require the disclosure of information.
A reverse FOIA lawsuit may be filed when the submitter of documents and
the government disagree whether the information is exempt.
\28\See Predisclosure Notification Procedures for Confidential
Commercial Information, Executive Order 12600, 3 C.F.R. 235 (1988).
5. Exemption 5.--Internal Government Communications
The FOIA's fifth exemption applies to internal government documents.
An example is a letter from one government department to another about a
joint decision that has not yet been made. Another example is a
memorandum from an agency employee to his supervisor describing options
for conducting the agency's business.
The purpose of the fifth exemption is to safeguard the deliberative
policymaking process of government. The exemption encourages frank
discussion of policy matters between agency officials by allowing
supporting documents to be withheld from public disclosure. The
exemption also protects against premature disclosure of policies before
final adoption.
While the policy behind the fifth exemption is well accepted, the
application of the exemption is complicated. The fifth exemption may be
the most difficult FOIA exemption to understand and apply. For example,
the exemption protects the policymaking process, but it does not protect
purely factual information related to the policy process. Factual
information must be disclosed unless it is inextricably intertwined with
protected information about an agency decision.
Protection for the decisionmaking process is appropriate only for the
period while decisions are being made. Thus, the fifth exemption has
been held to distinguish between documents that are pre-decisional and
therefore may be protected, and those which are post-decisional and
therefore not subject to protection. Once a policy is adopted, the
public has a greater interest in knowing the basis for the decision.
The exemption also incorporates some of the privileges that apply in
litigation involving the government. For example, papers prepared by the
government's lawyers can be withheld in the same way that papers
prepared by private lawyers for clients are not available through
discovery in civil litigation.
6. Exemption 6.--Personal Privacy
The sixth exemption covers personnel, medical, and similar files the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy. This exemption protects the privacy interests of
individuals by allowing an agency to withhold personal data kept in
government files. Only individuals have privacy interests. Corporations
and other legal persons have no privacy rights under the sixth
exemption.
The exemption requires agencies to strike a balance between an
individual's privacy interest and the public's right to know. However,
since only a clearly unwarranted invasion of privacy is a basis for
withholding, there is a perceptible tilt in favor of disclosure in the
exemption. Nevertheless, the sixth exemption makes it harder to obtain
information about another individual without the consent of that
individual.
The Privacy Act of 1974 also regulates the disclosure of personal
information about an individual. The FOIA and the Privacy Act overlap in
part, but there is no inconsistency. An individual seeking records about
himself or herself should cite both laws when making a request. This
ensures that the maximum amount of disclosable information will be
released. Records that can be denied to an individual under the Privacy
Act are not necessarily exempt under the FOIA.
7. Exemption 7.--Law Enforcement
The seventh exemption allows agencies to withhold law enforcement
records in order to protect the law enforcement process from
interference. The exemption was amended slightly in 1986, but it still
retains six specific subexemptions.
Exemption (7)(A) allows the withholding of a law enforcement record
that could reasonably be expected to interfere with enforcement
proceedings. This exemption protects an active law enforcement
investigation from interference through premature disclosure.
Exemption (7)(B) allows the withholding of information that would
deprive a person of a right to a fair trial or an impartial
adjudication. This exemption is rarely used.
Exemption (7)(C) recognizes that individuals have a privacy interest
in information maintained in law enforcement files. If the disclosure of
information could reasonably be expected to constitute an unwarranted
invasion of personal privacy, the information is exempt from disclosure.
The standards for privacy protection in exemption 6 and exemption (7)(C)
differ slightly. Exemption (7)(C) protects against an unwarranted
invasion of personal privacy while exemption 6 protects against a
clearly unwarranted invasion. Also, exemption (7)(C) allows the
withholding of information that ``could reasonably be expected to''
invade someone's privacy. Under exemption 6, information can be withheld
only if disclosure ``would'' invade someone's privacy.
Exemption (7)(D) protects the identity of confidential sources.
Information that could reasonably be expected to reveal the identity of
a confidential source is exempt. A confidential source can include a
State, local, or foreign agency or authority, or a private institution
that furnished information on a confidential basis. In addition, the
exemption protects information furnished by a confidential source if the
data was compiled by a criminal law enforcement authority during a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation.
Exemption (7)(E) protects from disclosure information that would
reveal techniques and procedures for law enforcement investigations or
prosecutions or that would disclose guidelines for law enforcement
investigations or prosecutions if disclosure of the information could
reasonably be expected to risk circumvention of the law.
Exemption (7)(F) protects law enforcement information that could
reasonably be expected to endanger the life or physical safety of any
individual.
8. Exemption 8.--Financial Institutions
The eighth exemption protects information that is contained in or
related to examination, operating, or condition reports prepared by or
for a bank supervisory agency such as the Federal Deposit Insurance
Corporation, the Federal Reserve, or similar agencies.
9. Exemption 9.--Geological Information
The ninth FOIA exemption covers geological and geophysical
information, data, and maps about wells. This exemption is rarely used.
G. FOIA EXCLUSIONS
The 1986 amendments to the FOIA gave limited authority to agencies to
respond to a request without confirming the existence of the requested
records. Ordinarily, any proper request must receive an answer stating
whether there is any responsive information, even if the requested
information is exempt from disclosure.
In some narrow circumstances, acknowledgement of the existence of a
record can produce consequences similar to those resulting from
disclosure of the record itself. In order to avoid this type of problem,
the 1986 amendments established three ``record exclusions.''
The exclusions allow an agency to treat certain exempt records as if
the records were not subject to the FOIA. An agency is not required to
confirm the existence of three specific categories of records. If these
records are requested, the agency may respond that there are no
disclosable records responsive to the request. However, these exclusions
do not broaden the authority of any agency to withhold documents from
the public. The exclusions are only applicable to information that is
otherwise exempt from disclosure.
The first exclusion may be used when a request seeks information that
is exempt because disclosure could reasonably be expected to interfere
with a current law enforcement investigation (exemption (7)(A)). There
are three specific prerequisites for the application of this exclusion.
First, the investigation in question must involve a possible violation
of criminal law. Second, there must be reason to believe that the
subject of the investigation is not already aware that the investigation
is underway. Third, disclosure of the existence of the records--as
distinguished from the contents of the records--could reasonably be
expected to interfere with enforcement proceedings.
When all of these conditions exist, an agency may respond to a FOIA
request for investigatory records as if the records are not subject to
the requirements of the FOIA. In other words, the agency's response does
not have to reveal that it is conducting an investigation.
The second exclusion applies to informant records maintained by a
criminal law enforcement agency under the informant's name or personal
identifier. The agency is not required to confirm the existence of these
records unless the informant's status has been officially confirmed.
This exclusion helps agencies to protect the identity of confidential
informants. Information that might identify informants has always been
exempt under the FOIA.
The third exclusion only applies to records maintained by the Federal
Bureau of Investigation which pertain to foreign intelligence,
counterintelligence, or international terrorism. When the existence of
these types of records is classified, the FBI may treat the records as
not subject to the requirements of FOIA.
This exclusion does not apply to all classified records on the
specific subjects. It only applies when the records are classified and
when the existence of the records is also classified. Since the
underlying records must be classified before the exclusion is relevant,
agencies have no new substantive withholding authority.
In enacting these exclusions, congressional sponsors stated that it
was their intent that agencies must inform FOIA requesters that these
exclusions are available for agency use. Requesters who believe that
records were improperly withheld because of the exclusions can seek
judicial review.
H. ADMINISTRATIVE APPEAL PROCEDURES
Whenever a FOIA request is denied, the agency must inform the
requester of the reasons for the denial and the requester's right to
appeal the denial to the head of the agency. A requester may appeal the
denial of a request for a document or for a fee waiver. A requester may
contest the type or amount of fees that were charged. A requester may
appeal any other type of adverse determination, including a rejection of
a request for failure to describe adequately the documents being
requested or a response indicating that no requested records were
located. A requester can also appeal because the agency failed to
conduct an adequate search for the documents that were requested.
A person whose request was granted in part and denied in part may
appeal the part that was denied. If an agency has agreed to disclose
some but not all requested documents, the filing of an appeal does not
affect the release of the documents that are disclosable. There is no
risk to the requester in filing an appeal.
The appeal to the head of the agency is a simple administrative
appeal. A lawyer can be helpful, but no one needs a lawyer to file an
appeal. Anyone who can write a letter can file an appeal. Appeals to the
head of the agency often result in the disclosure of some records that
had been withheld. A requester who is not convinced that the agency's
initial decision is correct should appeal. There is no charge for filing
an administrative appeal.
An appeal is filed by sending a letter to the head of the agency. The
letter must identify the FOIA request that is being appealed. The
envelope containing the letter of appeal should be marked in the lower
left hand corner with the words ``Freedom of Information Act
Appeal.''\29\
\29\Agency FOIA regulations will ordinarily describe the appeal
procedures and requirements with more specificity. At most agencies,
decisions on FOIA appeals have been delegated to other agency officials.
Requesters who have an opportunity to review agency regulations in the
Code of Federal Regulations (available in many libraries and on the
Office of the Federal Register website provided at note 20) may be able
to speed up the processing of the appeal. However, following the simple
procedures described in this Guide will be sufficient to maintain a
proper appeal.
Many agencies assign a number to all FOIA requests that are received.
The number should be included in the appeal letter, along with the name
and address of the requester. It is a common practice to include a copy
of the agency's initial decision letter as part of the appeal, but this
is not ordinarily required. It can also be helpful for the requester to
include a telephone number in the appeal letter.
An appeal will normally include the requester's arguments supporting
disclosure of the documents. A requester may include any facts or any
arguments supporting the case for reversing the initial decision.
However, an appeal letter does not have to contain any arguments at all.
It is sufficient to state that the agency's initial decision is being
appealed. Appendix 1 includes a sample appeal letter.
The FOIA does not set a time limit for filing an administrative
appeal of a FOIA denial. However, it is good practice to file an appeal
promptly. Some agency regulations establish a time limit for filing an
administrative appeal. A requester whose appeal is rejected by an agency
because it is too late may refile the original FOIA request and start
the process again.
A requester who delays filing an appeal runs the risk that the
documents could be destroyed. However, as long as an agency is
considering a request or an appeal, the agency must preserve the
documents.
An agency is required to make a decision on an appeal within 20 days
(excluding Saturdays, Sundays, and legal holidays). It is possible for
an agency to extend the time limits by an additional 10 days. Once the
time period has elapsed, a requester may consider that the appeal has
been denied and may proceed with a judicial appeal. However, unless
there is an urgent need for records, this may not be the best course of
action. The courts are not sympathetic to appeals based solely on an
agency's failure to comply with the FOIA's time limits.
I. FILING A JUDICIAL APPEAL
When an administrative appeal is denied, a requester has the right to
appeal the denial in court. A FOIA appeal lawsuit can be filed in the
U.S. District Court in the district where the requester lives. The
requester can also file suit in the district where the documents are
located or in the District of Columbia. When a requester goes to court,
the burden of justifying the withholding of documents is on the
government. This is a distinct advantage for the requester.
Requesters are sometimes successful when they go to court, but the
results vary considerably. Some requesters who file judicial appeals
find that an agency will disclose some documents previously withheld
rather than fight about disclosure in court. This does not always
happen, and there is no guarantee that the filing of a judicial appeal
will result in any additional disclosure.
Most requesters require the assistance of an attorney to file a
judicial appeal. A person who files a lawsuit and substantially prevails
may be awarded reasonable attorney fees and litigation costs reasonably
incurred. Some requesters may be able to handle their own case without
an attorney. Since this is not a litigation guide, details of the
judicial appeal process have not been included. Anyone considering
filing a FOIA lawsuit can begin by reading the provisions of the FOIA on
judicial review.\30\
\30\More information on judicial review under the FOIA and Privacy Act
can be found in Allan Adler, Litigation Under the Federal Open
Government Laws (American Civil Liberties Union Foundation) (last
published in 1995).
VII. THE PRIVACY ACT OF 1974
A. THE SCOPE OF THE PRIVACY ACT OF 1974
The Privacy Act of 1974 provides safeguards against an invasion of
privacy through the misuse of records by Federal agencies. In general,
the act allows a citizen to learn how records are collected, maintained,
used, and disseminated by the Federal Government. The act also permits
an individual to gain access to most personal information maintained by
Federal agencies and to seek amendment of any inaccurate, incomplete,
untimely, or irrelevant information.
The Privacy Act applies to personal information maintained by
agencies in the executive branch of the Federal Government. The
executive branch includes cabinet departments, military departments,
government corporations, government controlled corporations, independent
regulatory agencies, and other establishments in the executive branch.
Agencies subject to the Freedom of Information Act are also subject to
the Privacy Act. The Privacy Act does not generally apply to records
maintained by State and local governments or private companies or
organizations.\31\
\31\The Privacy Act applies to some records that are not maintained by
an agency. Subsection (m) of the act provides that, when an agency
provides by contract for the operation of a system of records on its
behalf, the requirements of the Privacy Act apply to those records. As a
result, some records maintained outside of a Federal agency are subject
to the Privacy Act. Descriptions of these systems are published in the
Federal Register. However, most records maintained outside of Federal
agencies are not subject to the Privacy Act.
The Privacy Act only grants rights to U.S. citizens and to aliens
lawfully admitted for permanent residence. As a result, a nonresident
foreign national cannot use the act's provisions. However, a nonresident
foreign national may use the FOIA to request records about himself or
herself.
In general, the only records subject to the Privacy Act are records
that are maintained in a system of records. The idea of a ``system of
records'' is unique to the Privacy Act and requires explanation.
The act defines a ``record'' to include most personal information
maintained by an agency about an individual. A record contains
individually identifiable information, including but not limited to
information about education, financial transactions, medical history,
criminal history, or employment history. A ``system of records'' is a
group of records from which information is actually retrieved by name,
Social Security number, or other identifying symbol assigned to an
individual.
Some personal information is not kept in a system of records. This
information is not subject to the provisions of the Privacy Act,
although access may be requested under the FOIA. Most personal
information in government files is subject to the Privacy Act.
The Privacy Act also establishes general records management
requirements for Federal agencies. In summary, there are five basic
requirements that are most relevant to individuals.
First, each agency must establish procedures allowing individuals to
see and copy records about themselves. An individual may also seek to
amend any information that is not accurate, relevant, timely, or
complete. The rights to inspect and to correct records are the most
important provisions of the Privacy Act. This Guide explains in more
detail how an individual can exercise these rights.
Second, each agency must publish notices describing all systems of
records. The notices include a complete description of personal data
recordkeeping policies, practices, and systems. This requirement
prevents the maintenance of secret record systems.
Third, each agency must make reasonable efforts to maintain accurate,
relevant, timely, and complete records about individuals. Agencies are
prohibited from maintaining information about how individuals exercise
rights guaranteed by the first amendment to the U.S. Constitution unless
maintenance of the information is specifically authorized by statute or
by the individual or relates to an authorized law enforcement activity.
Fourth, the act establishes rules governing the use and disclosure of
personal information. The act specifies that information collected for
one purpose may not be used for another purpose without notice to or the
consent of the subject of the record. The act also requires that each
agency keep a record of some disclosures of personal information.
Fifth, the act provides legal remedies that permit an individual to
seek enforcement of the rights granted under the act. In addition,
Federal employees who fail to comply with the act's provisions may be
subjected to criminal penalties.
B. THE COMPUTER MATCHING AND PRIVACY PROTECTION ACT
The Computer Matching and Privacy Protection Act of 1988 amended the
Privacy Act by adding new provisions regulating the use of computer
matching. Records used during the conduct of a matching program are
subject to an additional set of requirements.
Computer matching is the computerized comparison of information about
individuals for the purpose of determining eligibility for Federal
benefit programs. A matching program can be subject to the requirements
of the Computer Matching Act if records from a Privacy Act system of
records are used during the program. If Federal Privacy Act records are
matched against State or local records, then the State or local matching
program can be subject to the new matching requirements.
In general, matching programs involving Federal records must be
conducted under a matching agreement between the source and recipient
agencies. The matching agreement describes the purpose and procedures of
the matching and establishes protections for matching records. The
agreement is subject to review and approval by a Data Integrity Board.
Each Federal agency involved in a matching activity must establish a
Data Integrity Board.
For an individual seeking access to or correction of records, the
computer matching legislation provides no special access rights. If
matching records are Federal records, then the access and correction
provisions of the Privacy Act apply. There is no general right of access
or correction for matching records of State and local agencies. It is
possible that rights are available under State or local laws. There is,
however, a requirement that an individual be notified of agency findings
prior to the taking of any adverse action as a result of a computer
matching program. An individual must also be given an opportunity to
contest such findings. The notice and opportunity-to-contest provisions
apply to matching records whether the matching was done by the Federal
Government or by a State or local government. Section 7201 of Public Law
101 508 modified the due process notice requirement to permit the use of
statutory or regulatory notice periods.
The matching provisions also require that any agency--Federal or
non-Federal--involved in computer matching must independently verify
information used to take adverse action against an individual. This
requirement was included in order to protect individuals from arbitrary
or unjustified denials of benefits. Independent verification includes
independent investigation and confirmation of information. Public Law
101 508 also modified the independent verification requirement in
circumstances in which it was unnecessary.
Most of the provisions of the Computer Matching and Privacy
Protection Act of 1988 were originally scheduled to become effective in
July 1989. Public Law 101 56 delayed the effective date for most
matching programs until January 1, 1990.
C. LOCATING RECORDS
There is no central index of Federal Government records about
individuals. An individual who wants to inspect records about himself or
herself must first identify which agency has the records. Often, this
will not be difficult. For example, an individual who was employed by
the Federal Government knows that the employing agency or the Office of
Personnel Management maintains personnel files.
Similarly, an individual who receives veterans' benefits will
normally find relevant records at the Department of Veterans Affairs or
at the Defense Department. Tax records are maintained by the Internal
Revenue Service, Social Security records by the Social Security
Administration, passport records by the State Department, etc.
For those who are uncertain about which agency has the records that
are needed, there are several sources of information. First, an
individual can ask an agency that might maintain the records. If that
agency does not have the records, it may be able to identify the proper
agency.
Second, a government directory such as the United States Government
Manual \32\
contains a complete list of all Federal agencies, a description of
agency functions, and the address of the agency and its field offices.
An agency responsible for operating a program normally maintains the
records related to that program.
\32\The United States Government Manual is sold by the Superintendent of
Documents of the U.S. Government Printing Office. Virtually every public
library should have a copy. An electronic version of the Manual may be
found on the Office of the Federal Register website provided at note 20.
Third, a Federal Information Center can help to identify government
agencies, their functions, and their records. These Centers, which are
operated by the General Services Administration, serve as clearinghouses
for information about the Federal Government. There are Federal
Information Centers throughout the country.
Fourth, every 2 years, the Office of the Federal Register publishes a
compilation of system of records notices for all agencies. These notices
contain a complete description of each record system maintained by each
agency. The compilation--which is published in five large volumes--is
the most complete reference for information about Federal agency
personal information practices.\33\
The information that appears in the compilation also appears in various
issues of the Federal Register. \34\
\33\Each system notice contains the name of the system; its location;
the categories of individuals covered by the system; the categories of
records in the system; the legal authority for maintenance of the
system; the routine disclosures that may be made for records in the
system; the policies and practices of storing, retrieving, accessing,
retaining, and disposing of records; the name and address of the manager
of the system; procedures for requesting access to the records;
procedures for requesting correction or amendment of the records; the
source of the information in the system; and a description of any
disclosure exemptions that may be applied to the records in the system.
\34\Agencies are required to publish in the Federal Register a
description of each system of records when the system is established or
amended. In the past, agencies were required to publish an annual
compilation in the Federal Register, but that requirement was eliminated
in 1982. As a result, it will be difficult to find a complete list of
all systems of records in the Federal Register. Some agencies do,
however, reprint all system notices from time to time. An agency's
Privacy Act/FOIA officer may be able to provide more information about
the agency's publication practices. An electronic version of a 1995
compilation of Privacy Act regulations and systems of records may be
found on the Office of the Federal Register website provided at note 20.
The compilation--formally called Privacy Act Issuances --may be
difficult to find and hard to use. It does not contain a comprehensive
index. Copies will be available in some Federal depository libraries and
possibly some other libraries as well as the website maintained by the
Office of the Federal Register (see note 20). Although the compilation
is the best single source of detailed information about personal records
maintained by Federal agencies, it is not necessary to consult the
compilation before making a Privacy Act request. A requester is not
required to identify the specific system of records that contains the
information being sought. It is sufficient to identify the agency that
has the records. Using information provided by the requester, the agency
will determine which system of records has the files that have been
requested.
Those who request records under the Privacy Act can help the agency
by identifying the type of records being sought. Large agencies maintain
hundreds of different record systems. A request can be processed faster
if the requester tells the agency that he or she was employed by the
agency, was the recipient of benefits under an agency program, or had
other specific contacts with the agency.
D. MAKING A PRIVACY ACT REQUEST FOR ACCESS
The fastest way to make a Privacy Act request is to identify the
specific system of records. The request can be addressed to the system
manager. Few people do this. Instead, most people address their requests
to the head of the agency that has the records or to the agency's
Privacy Act/FOIA officer. The envelope containing the written request
should be marked ``Privacy Act/FOIA Request'' in the bottom left-hand
corner.\35\
\35\All agencies have Privacy Act regulations that describe the request
process in greater detail. Large agencies may have several components,
each of which has its own Privacy Act rules. Requesters who can find
agency Privacy Act regulations in the Code of Federal Regulations
(available in many libraries and an electronic version may be found on
the Office of the Federal Register website provided in note 20) might
read these regulations before making a request. A requester who follows
the agency's specific procedures may receive a faster response. However,
the simple procedures suggested in this guide are adequate to meet the
minimum statutory requirements for a Privacy Act request.
There are three basic elements to a request for records under the
Privacy Act. First, the letter should state that the request is being
made under the Privacy Act. Second, the letter should include the name,
address, and signature of the requester. Third, the request should
describe the records as specifically as possible. Appendix 1 includes a
sample Privacy Act request letter.
It is a common practice for an individual seeking records about
himself or herself to make the request under both the Privacy Act of
1974 and the Freedom of Information Act. See the discussion in the front
of this Guide about which act to use.
A requester can describe the records by identifying a specific system
of records, by describing his or her contacts with an agency, or by
simply asking for all records about himself or herself. The broader and
less specific a request is, the longer it may take for an agency to
respond.
It is a good practice for a requester to describe the type of records
that he or she expects to find. For example, an individual seeking a
copy of his service record in the Army should state that he was in the
Army and include the approximate dates of service. This will help the
Defense Department narrow its search to record systems that are likely
to contain the information being sought. An individual seeking records
from the Federal Bureau of Investigation may ask that files in specific
field offices be searched in addition to the FBI's central office files.
The FBI does not routinely search field office records without a
specific request.
An agency will generally require a requester to provide some proof of
identity before records will be disclosed. Agencies may have different
requirements. Some agencies will accept a signature; others may require
certification of identity by a notarized signature or by a declaration
by the requester under penalty of perjury. If an individual goes to the
agency to inspect records, standard personal identification may be
acceptable. More stringent requirements may apply if the records being
sought are especially sensitive.
An agency will inform requesters of any special identification
requirements. Requesters who need records quickly should first consult
agency regulations or talk to the agency's Privacy Act/FOIA officer to
find out how to provide adequate identification.
An individual who visits an agency office to inspect a Privacy Act
record may bring along a friend or relative to review the record. When a
requester brings another person, the agency may ask the requester to
sign a written statement authorizing discussion of the record in the
presence of that person.
It is a crime to knowingly and willfully request or obtain records
under the Privacy Act under false pretenses. A request for access under
the Privacy Act can only be made by the subject of the record. An
individual cannot make a request under the Privacy Act for a record
about another person. The only exception is for a parent or legal
guardian who may request records on behalf of a minor or a person who
has been declared incompetent.
E. FEES
Under the Privacy Act, fees can only be charged for the cost of
copying records. No fees may be charged for the time it takes to search
for records or for the time it takes to review the records to determine
if any exemptions apply. This is a major difference from the FOIA. Under
the FOIA, fees can sometimes be charged to recover search costs and
review costs.\36\
The different fee structure in the two laws is one reason many
requesters seeking records about themselves cite both laws. This
minimizes allowable fees.
\36\An individual seeking records about himself or herself under the
FOIA should not be charged review charges. The only charges applicable
under the FOIA are search and copy charges.
Many agencies will not charge fees for making a copy of a Privacy Act
file, especially when the file is small. If paying the copying charges
is a problem, the requester should explain in the request letter. An
agency can waive fees under the Privacy Act.
F. REQUIREMENTS FOR AGENCY RESPONSES
Unlike the FOIA, there is no fixed time when an agency must respond
to a request for access to records under the Privacy Act. It is good
practice for an agency to acknowledge receipt of a Privacy Act request
within 10 days and to provide the requested records within 30 days.
At many agencies, FOIA and Privacy Act requests are processed by the
same personnel. When there is a backlog of requests, it takes longer to
receive a response. As a practical matter, there is little that a
requester can do when an agency response is delayed. Requesters should
be patient.
Agencies generally process requests in the order in which they were
received. Some agencies will expedite the processing of urgent requests.
Anyone with a pressing need for records should consult with the agency
Privacy Act/FOIA officer about how to ask for expedited treatment of
requests.
G. REASONS ACCESS MAY BE DENIED UNDER THE PRIVACY ACT
Not all records about an individual must be disclosed under the
Privacy Act. Some records may be withheld to protect important
government interests such as national security or law enforcement.
The Privacy Act exemptions are different than the exemptions of the
FOIA. Under the FOIA, any record may be withheld from disclosure if it
contains exempt information when a request is received. The decision to
apply a FOIA exemption is made only after a request has been made. In
contrast, Privacy Act exemptions apply not to a record but to a system
of records. Before an agency can apply a Privacy Act exemption, the
agency must first issue a regulation stating that there may be exempt
records in that system of records.
Without reviewing system notices or agency regulations, it is hard to
tell whether particular Privacy Act records are exempt from disclosure.
However, it is a safe assumption that any system of records that
qualifies for an exemption has been exempted by the agency.
Since most record systems are not exempt, the exemptions are not
relevant to most requests. Also, agencies do not always rely upon
available Privacy Act exemptions unless there is a specific reason to do
so. Thus, some records that could be withheld will nevertheless be
disclosed upon request.
Because Privacy Act exemptions are complex and used infrequently,
most requesters need not worry about them. The exemptions are discussed
here for those interested in the act's details and for reference when an
agency withholds records. Anyone needing more information about the
Privacy Act's exemptions can begin by reading the relevant sections of
the act. The complete text of the act is reprinted in an appendix to
this Guide. \37\
\37\In 1975, the Office of Management and Budget (OMB) issued guidance
to Federal agencies on the Privacy Act of 1974. Those guidelines are a
good source of commentary and explanation for many of the provisions of
the act. The OMB guidelines can be found at 40 Federal Register 28948
(July 9, 1975).
The Privacy Act's exemptions differ from those of the FOIA in another
important way. The FOIA is a disclosure law. Information exempt under
the FOIA is exempt from disclosure only. The Privacy Act, however,
imposes many separate requirements on personal records. Some systems of
records are exempt from the disclosure requirements, but no system is
exempt from all Privacy Act requirements.
For example, no system of records is ever exempt from the requirement
that a description of the system be published. No system of records can
be exempted from the limitations on disclosure of the records outside of
the agency. No system is exempt from the requirement to maintain an
accounting for disclosures. No system is exempt from the restriction
against the maintenance of unauthorized information on the exercise of
first amendment rights. All systems are subject to the requirement that
reasonable efforts be taken to ensure that records disclosed outside the
agency be accurate, complete, timely, and relevant. Each agency must
maintain proper administrative controls and security for all systems.
Finally, the Privacy Act's criminal penalties remain fully applicable to
each system of records.
1. General Exemptions
There are two general exemptions under the Privacy Act. The first
applies to all records maintained by the Central Intelligence Agency.
The second applies to selected records maintained by an agency or
component whose principal function is any activity pertaining to
criminal law enforcement. Records of criminal law enforcement agencies
can be exempt under the Privacy Act if the records consist of (A)
information compiled to identify individual criminal offenders and which
consists only of identifying data and notations of arrests, the nature
and disposition of criminal charges, sentencing, confinement, release,
and parole and probation status; (B) criminal investigatory records
associated with an identifiable individual; or (C) reports identifiable
to a particular individual compiled at any stage from arrest through
release from supervision.
Systems of records subject to the general exemptions may be exempted
from many of the Privacy Act's requirements. Exemption from the act's
access and correction provisions is the most important. An individual
has no right under the Privacy Act to ask for a copy of or to seek
correction of a record subject to the general exemptions.
In practice, these exemptions are not as expansive as they sound.
Most agencies that have exempt records will accept and process Privacy
Act requests. The records will be reviewed on a case-by-case basis.
Agencies will often disclose any information that does not require
protection. Agencies also tend to follow a similar policy for requests
for correction.
Individuals interested in obtaining records from the Central
Intelligence Agency or from law enforcement agencies should not be
discouraged from making requests for access. Even if the Privacy Act
access exemption is applied, portions of the record may still be
disclosable under the FOIA. This is a primary reason individuals should
cite both the Privacy Act and the FOIA when requesting records.
2. Specific Exemptions
There are seven specific Privacy Act exemptions that can be applied
to systems of records. Records subject to these exemptions are not
exempt from as many of the act's requirements as are the records subject
to the general exemptions. However, records exempt under the specific
exemptions are likely to be exempt from the Privacy Act's access and
correction provisions. Nevertheless, since the access and correction
exemptions are not always applied when available, those seeking records
should not be discouraged from making a request. Also, the FOIA can be
used to seek access to records exempt under the Privacy Act.
The first specific exemption covers record systems containing
information properly classified in the interest of national defense or
foreign policy. Classified information is also exempt from disclosure
under the FOIA and will normally be unavailable under both the FOIA and
Privacy Acts.
The second specific exemption applies to systems of records
containing investigatory material compiled for law enforcement purposes
other than material covered by the general law enforcement exemption.
The specific law enforcement exemption is limited when--as a result of
the maintenance of the records--an individual is denied any right,
privilege, or benefit to which he or she would be entitled by Federal
law or for which he or she would otherwise be entitled. In such a case,
disclosure is required except where disclosure would reveal the identity
of a confidential source who furnished information to the government
under an express promise that the identity of the source would be held
in confidence. If the information was collected from a confidential
source before the effective date of the Privacy Act (September 27,
1975), an implied promise of confidentiality is sufficient to permit
withholding of the identity of the source.\38\
\38\This distinction between express and implied promises of
confidentiality is repeated throughout the specific exemptions of the
Privacy Act.
The third specific exemption applies to systems of records maintained
in connection with providing protective services to the President of the
United States or other individuals who receive protection from the
Secret Service.
The fourth specific exemption applies to systems of records required
by statute to be maintained and used solely as statistical records.
The fifth specific exemption covers investigatory material compiled
solely to determine suitability, eligibility, or qualifications for
Federal civilian employment, military service, Federal contracts, or
access to classified information. However, this exemption applies only
to the extent that disclosure of information would reveal the identity
of a confidential source who provided the information under a promise of
confidentiality.
The sixth specific exemption applies to systems of records that
contain testing or examination material used solely to determine
individual qualifications for appointment or promotion in Federal
service, but only when disclosure would compromise the objectivity or
fairness of the testing or examination process. Effectively, this
exemption permits withholding of questions used in employment tests.
The seventh specific exemption covers evaluation material used to
determine potential for promotion in the armed services. The material is
only exempt to the extent that disclosure would reveal the identity of a
confidential source who provided the information under a promise of
confidentiality.
3. Medical Records
Medical records maintained by Federal agencies--for example, records
at Veterans Administration hospitals--are not formally exempt from the
Privacy Act's access provisions. However, the Privacy Act authorizes a
special procedure for medical records that operates, at least in part,
like an exemption.
Agencies may deny individuals direct access to medical records,
including psychological records, if the agency deems it necessary. An
agency normally reviews medical records requested by an individual. If
the agency determines that direct disclosure is unwise, it can arrange
for disclosure to a physician selected by the individual or possibly to
another person chosen by the individual.
4. Litigation Records
The Privacy Act's access provisions include a general limitation on
access to civil litigation records. The act does not require an agency
to disclose to an individual any information compiled in reasonable
anticipation of a civil action or proceeding. This limitation operates
like an exemption, although there is no requirement that the exemption
be applied by regulation to a system of records before it can be used.
H. ADMINISTRATIVE APPEAL PROCEDURES FOR DENIAL OF ACCESS
Unlike the FOIA, the Privacy Act does not provide for an
administrative appeal of the denial of access. However, many agencies
have established procedures that will allow Privacy Act requesters to
appeal a denial of access without going to court. An administrative
appeal is often allowed under the Privacy Act, even though it is not
required, because many individuals cite both the FOIA and Privacy Act
when making a request. The FOIA provides specifically for an
administrative appeal, and agencies are required to consider an appeal
under the FOIA.
When a Privacy Act request for access is denied, agencies usually
inform the requester of any appeal rights that are available. If no
information on appeal rights is included in the denial letter, the
requester should ask the Privacy Act/FOIA officer. Unless an agency has
established an alternative procedure, it is possible that an appeal
filed directly with the head of the agency will be considered by the
agency.
When a request for access is denied under the Privacy Act, the agency
explains the reason for the denial. The explanation must name the system
of records and explain which exemption is applicable to the system. An
appeal may be made on the basis that the record is not exempt, that the
system of records has not been properly exempted, or that the record is
exempt but no harm to an important interest will result if the record is
disclosed.
There are three basic elements to a Privacy Act appeal letter. First,
the letter should state that the appeal is being made under the Privacy
Act of 1974. If the FOIA was cited when the request for access was made,
the letter should state that the appeal is also being made under the
FOIA. This is important because the FOIA grants requesters statutory
appeal rights.
Second, a Privacy Act appeal letter should identify the denial that
is being appealed and the records that were withheld. The appeal letter
should also explain why the denial of access was improper or
unnecessary.
Third, the appeal should include the requester's name and address. It
is a good practice for a requester to also include a telephone number
when making an appeal.
Appendix 1 includes a sample letter of appeal.
I. AMENDING RECORDS UNDER THE PRIVACY ACT
The Privacy Act grants an important right in addition to the ability
to inspect records. The act permits an individual to request a
correction of a record that is not accurate, relevant, timely, or
complete. This remedy allows an individual to correct errors and to
prevent incorrect information from being disseminated by the agency or
used unfairly against the individual.
The right to seek a correction extends only to records subject to the
Privacy Act. Also, an individual can only correct errors contained in a
record that pertains to himself or herself. Records disclosed under the
FOIA cannot be amended through the Privacy Act unless the records are
also subject to the Privacy Act. Records about unrelated events or about
other people cannot be amended unless the records are in a Privacy Act
file maintained under the name of the individual who is seeking to make
the correction.
A request to amend a record should be in writing. Agency regulations
explain the procedure in greater detail, but the process is not
complicated. A letter requesting an amendment of a record will normally
be addressed to the Privacy Act/FOIA officer of the agency or to the
agency official responsible for the maintenance of the record system
containing the erroneous information. The envelope containing the
request should be marked ``Privacy Act Amendment Request'' on the lower
left corner.
There are five basic elements to a request for amending a Privacy Act
record.
First, the letter should state that it is a request to amend a record
under the Privacy Act of 1974.
Second, the request should identify the specific record and the
specific information in the record for which an amendment is being
sought. Copies of the records sought to be amended may be included.
Third, the request should state why the information is not accurate,
relevant, timely, or complete. Supporting evidence may be included with
the request.
Fourth, the request should state what new or additional information,
if any, should be included in place of the erroneous information.
Evidence of the validity of the new or additional information should be
included. If the information in the file is wrong and needs to be
removed rather than supplemented or corrected, the request should make
this clear.
Fifth, the request should include the name and address of the
requester. It is a good idea for a requester to include a telephone
number.
Appendix 1 includes a sample letter requesting amendment of a Privacy
Act record.
J. APPEALS AND REQUIREMENTS FOR AGENCY RESPONSES
An agency that receives a request for amendment under the Privacy Act
must acknowledge receipt of the request within 10 days (not including
Saturdays, Sundays, and legal holidays). The agency must promptly rule
on the request.
The agency may make the amendment requested. If so, the agency must
notify any person or agency to which the record had previously been
disclosed of the correction.
If the agency refuses to make the change requested, the agency must
inform the requester of: (1) the agency's refusal to amend the record;
(2) the reason for refusing to amend the request; and (3) the procedures
for requesting a review of the denial. The agency must provide the name
and business address of the official responsible for conducting the
review.
An agency must decide an appeal of a denial of a request for
amendment within 30 days (excluding Saturdays, Sundays, and legal
holidays), unless the time period is extended by the agency for good
cause. If the appeal is granted, the record will be corrected.
If the appeal is denied, the agency must inform the requester of the
right to judicial review. In addition, a requester whose appeal has been
denied also has the right to place in the agency file a concise
statement of disagreement with the information that was the subject of
the request for amendment.
When a statement of disagreement has been filed and an agency is
disclosing the disputed information, the agency must mark the
information and provide copies of the statement of disagreement. The
agency may also include a concise statement of its reasons for not
making the requested amendments. The agency must also give a copy of the
statement of disagreement to any person or agency to whom the record had
previously been disclosed.
K. FILING FOR JUDICIAL APPEAL
The Privacy Act provides a civil remedy whenever an agency denies
access to a record or refuses to amend a record. An individual may sue
an agency if the agency fails to maintain records with accuracy,
relevance, timeliness, and completeness as is necessary to assure
fairness in any agency determination and the agency makes a
determination that is adverse to the individual. An individual may also
sue an agency if the agency fails to comply with any other Privacy Act
provision in a manner that has an adverse effect on the individual.
The Privacy Act protects a wide range of rights about personal
records maintained by Federal agencies. The most important are the right
to inspect records and the right to seek correction of records. Other
rights have also been mentioned here, and still others can be found in
the text of the act. Most of these rights can become the subject of
litigation.
An individual may file a lawsuit against an agency in the Federal
District Court in which the individual lives, in which the records are
situated, or in the District of Columbia. A lawsuit must be filed within
2 years from the date on which the basis for the lawsuit arose.
Most individuals require the assistance of an attorney to file a
lawsuit. An individual who files a lawsuit and substantially prevails
may be awarded reasonable attorney fees and litigation costs reasonably
incurred. Some requesters may be able to handle their own case without
an attorney. Since this is not a litigation guide, details about the
judicial appeal process have not been included. Anyone considering
filing a Privacy Act lawsuit can begin by reviewing the provisions of
the Privacy Act on civil remedies.\39\
\39\See note 30.
A P P E N D I X E S
APPENDIX 1.-- SAMPLE REQUEST AND APPEAL LETTERS
A. Freedom of Information Act Request Letter
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear :
This is a request under the Freedom of Information Act.
I request that a copy of the following documents [or documents
containing the following information] be provided to me: [identify the
documents or information as specifically as possible].
In order to help to determine my status for purposes of determining
the applicability of any fees, you should know that I am (insert a
suitable description of the requester and the purpose of the request).
[Sample requester descriptions:
a representative of the news media affiliated with the XXXX newspaper
(magazine, television station, etc.), and this request is made as part
of news gathering and not for a commercial use.
affiliated with an educational or noncommercial scientific
institution, and this request is made for a scholarly or scientific
purpose and not for a commercial use.
an individual seeking information for personal use and not for a
commercial use.
affiliated with a private corporation and am seeking information for
use in the company's business.]
[Optional] I am willing to pay fees for this request up to a maximum
of $ XX. If you estimate that the fees will exceed this limit, please
inform me first.
[Optional] I request a waiver of all fees for this request.
Disclosure of the requested information to me is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in my commercial interest. [Include specific details, including how the
requested information will be disseminated by the requester for public
benefit.]
[Optional] I request that the information I seek be provided in
electronic format, and I would like to receive it on a personal computer
disk [or a CD ROM].
[Optional] I ask that my request receive expedited processing because
XXXX. [Include specific details concerning your ``compelling need,''
such as being someone ``primarily engaged in disseminating information''
and specifics concerning your ``urgency to inform the public concerning
actual or alleged Federal Government activity.'']
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any aspect
of my request.
Thank you for your consideration of this request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
B. Freedom of Information Act Appeal Letter
Agency Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Appeal
Dear :
This is an appeal under the Freedom of Information Act.
On (date), I requested documents under the Freedom of Information
Act. My request was assigned the following identification number: XXXX.
On (date), I received a response to my request in a letter signed by
(name of official). I appeal the denial of my request.
[Optional] The documents that were withheld must be disclosed under
the FOIA because . . . .
[Optional] I appeal the decision to deny my request for a waiver of
fees. I believe that I am entitled to a waiver of fees. Disclosure of
the documents I requested is in the public interest because it is likely
to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in my commercial
interest. (Provide details)
[Optional] I appeal the decision to require me to pay review costs
for this request. I am not seeking the documents for a commercial use.
(Provide details)
[Optional] I appeal the decision to require me to pay search and/or
review charges for this request. I am a representative of the news media
seeking information as part of news gathering and not for commercial
use.
[Optional] I appeal the decision to require me to pay search and/or
review charges for this request. I am a representative of an educational
institution seeking information for a scholarly purpose.
[Optional] I appeal the decision to require me to accept the
information I seek in a paper or hardcopy format. I requested this
information, which the agency maintains in an electronic form, in an
electronic format, specifically on a personal computer disk [or a CD
ROM].
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any
aspect of my appeal.
Thank you for your consideration of this appeal.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
C. Privacy Act Request for Access Letter
Privacy Act or Freedom of Information Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Privacy Act and Freedom of Information Act Request for Access
Dear :
This is a request under the Privacy Act of 1974 and the Freedom of
Information Act.
I request a copy of any records [or specifically named records] about
me maintained at your agency.
[Optional] To help you to locate my records, I have had the following
contacts with your agency: [mention job applications, periods of
employment, loans or agency programs applied for, etc.].
[Optional] I am willing to pay fees for this request up to a maximum
of $ XX. If you estimate that the fees will exceed this limit please
inform me first.
[Optional] Enclosed is [a notarized signature or other identifying
document] that will verify my identity.
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any aspect
of my request.
Thank you for your consideration of this request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
D. Privacy Act Denial of Access Appeal
Agency Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Appeal of Denial of Privacy Act and Freedom of Information Act
Access Request
Dear :
This is an appeal under the Privacy Act and the Freedom of
Information Act of the denial of my request for access to records.
On (date), I requested access to records under the Privacy Act of
1974. My request was assigned the following identification number: XXXX.
On (date), I received a response to my request in a letter signed by
(name of official). I appeal the denial of my request.
[Optional] The records that were withheld should be disclosed to me
because . . . .
[Optional] Please consider that this appeal is also made under the
Freedom of Information Act. Please provide any additional information
that may be available under the FOIA.
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any aspect
of my appeal.
Thank you for your consideration of this appeal.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
E. Privacy Act Request to Amend Records
Privacy Act and Freedom of Information Act Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Privacy Act Request to Amend Records
Dear :
This is a request under the Privacy Act to amend records about myself
maintained by your agency.
I believe that the following is not correct: [Describe the incorrect
information as specifically as possible].
The information is not (accurate) (relevant) (timely) (complete)
because . . . .
[Optional] Enclosed are copies of documents that show that the
information is incorrect.
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any aspect
of my request.
I request that the information be [deleted] [changed to read:].
Thank you for your consideration of this request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
F. Privacy Act Appeal of Refusal to Amend Records
Agency Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Privacy Act Appeal of Refusal to Amend Records
Dear :
This is an appeal under the Privacy Act of the refusal of your agency
to amend records as I requested.
On (date), I requested that records about me be amended. My request
was assigned the following identification number XXXX. On (date), I was
informed by (name of official) that my request was rejected. I appeal
the rejection of my request.
The rejection of my request for amendment was wrong because . . . .
[Optional] I enclose additional evidence that shows that the records
are incorrect and that the amendment I requested is appropriate.
[Optional] I also include a telephone number at which I can be
contacted during the hours of XXXX, if necessary, to discuss any aspect
of my appeal.
Thank you for your consideration of this appeal.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [Optional]
APPENDIX 2.-- BIBLIOGRAPHY OF CONGRESSIONAL PUBLICATIONS ON THE FREEDOM
OF INFORMATION ACT
CONGRESSIONAL HEARINGS, REPORTS, DOCUMENTS, AND PRINTS
(LISTED CHRONOLOGICALLY BY PUBLICATION DATE)
Note on availability: Most of these publications are out of print.
Copies of all congressional publications should be available at Federal
Depository Libraries located throughout the country.
1964
Senate Committee on the Judiciary. Clarifying and Protecting the
Right of the Public to Information and for Other Purposes. S. Rept.
1219, 88th Congress, 2d Session. 1964.
Senate Committee on the Judiciary. Freedom of Information. Hearings,
98th Congress, 1st Session. 1964.
1965
House Committee on Government Operations. Federal Public Records Law.
Hearings, 89th Congress, 2d Session. 1965.
Senate Committee on the Judiciary. Administrative Procedure Act.
Hearings, 89th Congress, 1st Session. 1965.
Senate Committee on the Judiciary. Clarifying and Protecting the
Right of the Public to Information, and for Other Purposes. S. Rept.
813, 89th Congress, 1st Session. 1965.
1966
House Committee on Government Operations. Clarifying and Protecting
the Right of the Public to Information. H. Rept. 1497, 89th Congress, 2d
Session. 1966.
1967
House Committee on the Judiciary. Codification of Public Law 89 487.
H. Rept. 125, 90th Congress, 1st Session. 1967.
Senate Committee on the Judiciary. Amending Section 552 of Title 5,
United States Code. S. Rept. 248, 90th Congress, 1st Session. 1967.
1968
House Committee on Government Operations. Freedom of Information Act
(Compilation and Analysis of Departmental Regulations Implementing 5
U.S.C. 552). Committee print, 90th Congress, 2d Session. 1968.
Senate Committee on the Judiciary. The Freedom of Information Act
(Ten Months Review). Committee print, 90th Congress, 2d Session. 1968.
1972
House Committee on Government Operations. Administration of the
Freedom of Information Act. H. Rept. 92 1419, 92nd Congress, 2d Session.
1972.
House Committee on Government Operations. Sale or Distribution of
Mailing Lists By Federal Agencies. Hearings, 92nd Congress, 2d Session.
1972.
House Committee on Government Operations. U.S. Government Information
Policies and Practices--Administration and Operation of the Freedom of
Information Act. (Parts 4 6). Hearings, 92nd Congress, 2d Session. 1972.
House Committee on Government Operations. U.S. Government Information
Policies and Practices--Security Classification Problems Involving
Subsection (b)(1) of the Freedom of Information Act. (Part 7). Hearings,
92nd Congress, 2d Session. 1972.
1973
House Committee on Government Operations. Availability of Information
to Congress. Hearings, 93rd Congress, 1st Session. 1973.
House Committee on Government Operations. Executive Classification of
Information--Security Classification Problems Involving Exemption (b)(1)
of the Freedom of Information Act (5 U.S.C. 552). H. Rept. 93 221, 93rd
Congress, 1st Session. 1973.
House Committee on Government Operations. The Freedom of Information
Act. Hearings, 93rd Congress, 1st Session. 1973.
Senate Committee on Government Operations and Committee on the
Judiciary. Executive Privilege, Secrecy in Government, Freedom of
Information. Hearings, 93rd Congress, 1st Session. 1973.
1974
House Committee on Government Operations. Amending Section 552 of
Title 5, United States Code, Known as the Freedom of Information Act. H.
Rept. 93 876, 93rd Congress, 2d Session. 1974.
House Committee on Government Operations. Amending the Freedom of
Information Act to Require that Information Be Made Available to
Congress. H. Rept. 93 990, 93rd Congress, 2d Session. 1974.
House Committee on Government Operations. Security Classification
Reform. Hearings, 93rd Congress, 2d Session. 1974.
House of Representatives. Message from the President of the United
States. Vetoing H.R. 12471, Amend Freedom of Information Act. H. Doc. 93
383. 93rd Congress, 2d Session. 1974.
House/Senate Committee of Conference. Freedom of Information Act
Amendments. H. Rept. 93 1380 or S. Rept. 93 1200, 93rd Congress, 2d
Session. 1974.
Senate Committee on the Judiciary. Amending the Freedom of
Information Act. S. Rept. 93 854, 93rd Congress, 2d Session. 1974.
Senate Committee on the Judiciary. Freedom of Information Act Source
Book: Legislative Materials, Cases, Articles. S. Doc. 93 82, 93rd
Congress. 2d Session. 1974.
1975
House Committee on Government Operations and Senate Committee on the
Judiciary. Freedom of Information Act and Amendments of 1974 (Public Law
93 502). Source Book: Legislative History, Texts, and Other Documents.
Joint committee print, 94th Congress, 1st Session. 1975.
1977
House Committee on Government Operations. Business Record Exemption
of the Freedom of Information Act. Hearings, 95th Congress, 1st Session.
1977.
Senate Committee on the Judiciary. Freedom of Information Act.
Hearings, 95th Congress, 1st Session. 1977.
1978
House Committee on Government Operations. FBI Compliance with the
Freedom of Information Act. Hearing, 95th Congress, 2d Session. 1978.
House Committee on Government Operations. Freedom of Information Act
Requests for Business Data and Reverse-FOIA Lawsuits. H. Rept. 95 1382,
95th Congress, 2d Session. 1978.
Senate Committee on the Judiciary. The Erosion of Law Enforcement
Intelligence and Its Impact on the Public Security. Committee print,
95th Congress, 2d Session. 1978.
Senate Committee on the Judiciary. The Erosion of Law Enforcement
Intelligence and Its Impact on the Public Security. Hearings, 95th
Congress, 1st and 2d Sessions. 1977 1978.
1979
House Committee on Government Operations. Security Classification
Exemption to the Freedom of Information Act. Hearing, 95th Congress, 1st
Session. 1979.
1980
House Permanent Select Committee on Intelligence. Impact of the
Freedom of Information Act and the Privacy Act on Intelligence
Activities. Hearing, 96th Congress, 1st Session. 1980.
Senate Committee on Governmental Affairs. Oversight of the
Administration of the Federal Freedom of Information Act. Hearings, 96th
Congress, 2d Session. 1980.
Senate Committee on the Judiciary. Agency Implementation of the 1974
Amendments to the Freedom of Information Act. Committee print, 95th
Congress, 2d Session. 1980.
1981
House Committee on Government Operations. Freedom of Information Act
Oversight. Hearings, 97th Congress, 1st Session. 1981.
House Committee on Government Operations. The Freedom of Information
Act: Central Intelligence Agency Exemptions. Hearings, 96th Congress, 2d
Session. 1981.
House Committee on Government Operations. The Freedom of Information
Act: Federal Law Enforcement Implementation. Hearing, 96th Congress, 1st
Session. 1981.
1982
Senate Committee on the Judiciary. Freedom of Information Act.
Hearings, 97th Congress, 1st Session. 1982.
Senate Committee on the Judiciary. The Freedom of Information Reform
Act. S. Rept. 97 690, 97th Congress, 2d Session. 1982.
1983
Senate Committee on the Judiciary. Freedom of Information Reform Act.
S. Rept. 98 221, 98th Congress, 1st Session. 1983.
1984
Senate Committee on the Judiciary. Freedom of Information Reform Act.
Hearings, 98th Congress, 1st Session. 1984.
1985
House Committee on Government Operations. The Freedom of Information
Reform Act. Hearings, 98th Congress, 2d Session. 1985.
Senate Committee on the Judiciary. Amendments to the Freedom of
Information Act. Hearing, 98th Congress, 2d Session. 1985.
1986
House Committee on Government Operations. Freedom of Information Act
Amendments of 1986. Hearing, 99th Congress, 2d Session. 1986.
House Committee on Government Operations. Freedom of Information Act
Amendments of 1986. H. Rept. 99 832, 99th Congress, 2d Session. 1986.
1988
House Committee on Government Operations. FOIA: Alternate Dispute
Resolution Proposals. Hearings, 100th Congress, 1st Session. 1988.
1989
Senate Committee on the Judiciary. The Freedom of Information Act.
Hearing, 100th Congress, 2d Session. 1989.
1990
House Committee on Government Operations. Federal Information
Dissemination Policies and Practices. Hearings, 101st Congress, 1st
Session. 1990.
House Committee on Government Operations. Paperwork Reduction and
Federal Information Resources Management Act of 1990. H. Rept. 101 927,
101st Congress, 2d Session. 1990.
1991
House Committee on Government Operations, Creative Ways of Using and
Disseminating Federal Information. Hearings, 102d Congress, 1st and 2d
Sessions. 1991, 1992.
1992
House Committee on Government Operations. Assassination Materials
Disclosure Act of 1992. H. Rept. 102 624 Part 1, 102d Congress, 2d
Session. 1992.
House Committee on the Judiciary. Assassination Materials Disclosure
Act of 1992. Hearing, 102d Congress, 2d Session. 1992.
House Committee on the Judiciary. Assassination Materials Disclosure
Act of 1992. H. Rept. 102 624 Part 2, 102d Congress, 2d Session. 1992.
Senate Committee on Governmental Affairs. The Assassination Materials
Disclosure Act of 1992. Hearing, 102d Congress, 2d Session. 1992.
Senate Committee on Governmental Affairs. Assassination Materials
Disclosure Act of 1992. S. Rept. 102 328, 102d Congress, 2d Session.
1992.
1993
House Committee on Government Operations. Assassination Materials
Disclosure Act of 1992. Hearings, 103d Congress, 2d Session. 1993.
Senate Committee on the Judiciary. The Electronic Freedom of
Information Improvement Act. Hearing, 103d Congress, 2d Session. 1993.
1994
House Committee on Government Operations. The Effectiveness of Public
Law 102 526, The President John F. Kennedy Assassination Records
Collection Act of 1992. Hearing, 103d Congress, 1st Session. 1994.
Senate Committee on the Judiciary. Electronic Freedom of Information
Improvement Act of 1994. S. Rept. 103 365, 103d Congress, 2d Session.
1994.
1996
Senate Committee on the Judiciary. Electronic Freedom of Information
Improvement Act of 1995. S. Rept. 104 272, 104th Congress, 2d Session.
1996.
House Committee on Government Reform and Oversight. Electronic
Freedom of Information Amendments of 1996. H. Rept. 104 795, 104th
Congress, 2d Session. 1996.
APPENDIX 3.-- BIBLIOGRAPHY OF CONGRESSIONAL PUBLICATIONS ON THE PRIVACY
ACT OF 1974
CONGRESSIONAL HEARINGS, REPORTS, DOCUMENTS, AND PRINTS
(LISTED CHRONOLOGICALLY BY PUBLICATION DATE)
Note on availability: Most of these publications are out of print.
Copies of all congressional publications should be available at Federal
Depository Libraries located throughout the country.
1972
House Committee on Government Operations. Records Maintained By
Government Agencies. Hearings, 92nd Congress, 2d Session. 1972.
1974
House Committee on Government Operations. Access to Records.
Hearings, 93rd Congress, 2d Session. 1974.
House Committee on Government Operations. Federal Information Systems
and Plans--Federal Use and Development of Advanced Information
Technology. Hearings, 93rd Congress, 1st and 2d Sessions. 1973 1974.
House Committee on Government Operations. Privacy Act of 1974. H.
Rept. 93 1416, 93rd Congress, 2d Session. 1974.
Senate Committee on Government Operations. Protecting Individual
Privacy in Federal Gathering, Use and Disclosure of Information. S.
Rept. 93 1183, 93rd Congress, 2d Session. 1974.
Senate Committee on Government Operations. Materials Pertaining to S.
3418 and Protecting Individual Privacy in Federal Gathering, Use and
Disclosure of Information. Committee print, 93rd Congress, 2d Session.
1974.
Senate Committee on Government Operations and Committee on the
Judiciary. Privacy: The Collection, Use, and Computerization of Personal
Data. Joint hearings, 93rd Congress, 2d Session. 1974.
Senate Committee on the Judiciary. Federal Data Banks and
Constitutional Rights. [Summary.] Committee print, 93rd Congress, 2d
Session. 1974.
Senate Committee on the Judiciary. Federal Data Banks and
Constitutional Rights. Committee print, 93rd Congress, 2d Session. 1974.
6 v.
1975
House Committee on Government Operations. Central Intelligence Agency
Exemption in the Privacy Act of 1974. Hearings, 94th Congress, 1st
Session. 1975.
House Committee on Government Operations. Implementation of the
Privacy Act of 1974: Data Banks. Hearing, 94th Congress, 1st Session.
1975.
1976
House Committee on Government Operations. Notification to Victims of
Improper Intelligence Agency Activities. Hearings, 94th Congress, 2d
Session. 1976.
Senate Committee on Government Operations and House Committee on
Government Operations. Legislative History of the Privacy Act of 1974,
S. 3418 (Public Law 93 579): Source Book on Privacy. Joint committee
print, 94th Congress, 2d Session. 1976.
1977
Senate Committee on Governmental Affairs and House Committee on
Government Operations. Final Report of the Privacy Protection Study
Commission. Joint hearing, 95th Congress, 1st Session. 1977.
1978
House Committee on Government Operations. Privacy and Confidentiality
Report and Final Recommendations of the Commission on Federal Paperwork.
Hearing, 95th Congress, 1st Session. 1978.
House Committee on Government Operations. Right to Privacy Proposals
of the Privacy Protection Study Commission. Hearings, 95th Congress, 2d
Session. 1978.
1980
House Committee on Government Operations. Federal Privacy of Medical
Information Act. H. Rept 96 832 Part 1, 96th Congress, 2d Session. 1980.
House Committee on Government Operations. Privacy of Medical Records.
Hearings, 96th Congress, 1st Session. 1980.
House Committee on Government Operations. Public Reaction to Privacy
Issues. Hearing, 96th Congress, 1st Session. 1980.
House Committee on Interstate and Foreign Commerce. Federal Privacy
of Medical Information Act. H. Rept 96 832 Part 2, 96th Congress, 2d
Session. 1980.
House Committee on Ways and Means. Description and Brief Analysis of
H.R. 5935, Federal Privacy of Medical Information Act. Committee print,
96th Congress, 2d Session. 1980.
House Committee on Ways and Means. Federal Privacy of Medical
Information Act. Hearing, 96th Congress, 2d Session. 1980.
House Committee on Ways and Means. Federal Privacy of Medical
Information Act, H.R. 5935. Committee print, 96th Congress, 2d Session.
1980.
1981
House Committee on Government Operations. Confidentiality of
Insurance Records. Hearings, 96th Congress, 1st and 2d Sessions. 1981.
House Committee on Government Operations. Debt Collection Act of
1981. Hearing, 97th Congress, 1st Session. 1981.
House Committee on Government Operations. Privacy Act Amendments. H.
Rept. 97 147 Part 1, 97th Congress, 1st Session. 1981.
1983
House Committee on Government Operations. Oversight of the Privacy
Act of 1974. Hearings, 98th Congress, 1st Session. 1983.
House Committee on Government Operations. Who Cares About Privacy?
Oversight of the Privacy Act of 1974 by the Office of Management and
Budget and by the Congress. H. Rept. 98 455, 98th Congress, 1st Session.
1983.
Senate Committee on Governmental Affairs. Oversight of Computer
Matching to Detect Fraud and Mismanagement in Government Programs.
Hearings, 97th Congress, 2d Session. 1983.
1984
House Committee on Government Operations. Privacy and 1984: Public
Opinions on Privacy Issues. Hearing, 98th Congress, 1st Session. 1984.
Senate Committee on Governmental Affairs. Computer Matching: Taxpayer
Records. Hearing, 98th Congress, 2d Session. 1984.
1986
Senate Committee on Governmental Affairs. Computer Matching and
Privacy Protection Act of 1986. Hearing, 99th Congress, 2d Session.
1986.
1987
House Committee on Government Operations. Computer Matching and
Privacy Protection Act of 1987. Hearing, 100th Congress, 1st Session.
1987.
1988
House Committee on Government Operations. Computer Matching and
Privacy Protection Act of 1988. H. Rept. 100 802, 100th Congress, 2d
Session. 1988.
1990
House Committee on Government Operations. Computer Matching and
Privacy Protection Amendments of 1990. Hearing, 101st Congress, 2d
Session. 1990.
House Committee on Government Operations. Computer Matching and
Privacy Protection Amendments of 1990. H. Rept. 101 768, 101st Congress,
2d Session. 1990.
House Committee on Government Operations. Data Protection, Computers,
and Changing Information Practices. Hearing, 101st Congress, 2d Session.
1990.
1991
House Committee on Government Operations. Domestic and International
Data Protection Issues. Hearing, 102d Congress, 1st Session. 1991.
1992
House Committee on Government Operations. Designing Genetic
Information Policy: The Need for an Independent Policy Review of the
Ethical, Legal, and Social Implications of the Human Genome Project. H.
Rept. 102 478, 102d Congress, 2d Session. 1992.
APPENDIX 4 .--TEXT OF THE FREEDOM OF INFORMATION ACT
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE
* * * * * * *
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE
* * * * * * *
552. Public information; agency rules, opinions, orders,
records, and proceedings
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public--
(A) descriptions of its central and field organization and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may obtain information, make submittals or requests, or obtain
decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the
terms thereof, a person may not in any manner be required to resort to,
or be adversely affected by, a matter required to be published in the
Federal Register and not so published. For the purpose of this
paragraph, matter reasonably available to the class of persons affected
thereby is deemed published in the Federal Register when incorporated by
reference therein with the approval of the Director of the Federal
Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying--
(A) final opinions, including concurring and dissenting opinions, as
well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that
affect a member of the public;
(D) copies of all records, regardless of form or format, which have
been released to any person under paragraph (3) and which, because of
the nature of their subject matter, the agency determines have become or
are likely to become the subject of subsequent requests for
substantially the same records; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for
sale. For records created on or after November 1, 1996, within one year
after such date, each agency shall make such records available,
including by computer telecommunications or, if computer
telecommunications means have not been established by the agency, by
other electronic means. To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, staff manual, instruction, or
copies of records referred to in subparagraph (D). However, in each case
the justification for the deletion shall be explained fully in writing,
and the extent of such deletion shall be indicated on the portion of the
record which is made available or published, unless including that
indication would harm an interest protected by the exemption in
subsection (b) under which the deletion is made. If technically
feasible, the extent of the deletion shall be indicated at the place in
the record where the deletion was made. Each agency shall also maintain
and make available for public inspection and copying current indexes
providing identifying information for the public as to any matter
issued, adopted, or promulgated after July 4, 1967, and required by this
paragraph to be made available or published. Each agency shall promptly
publish, quarterly or more frequently, and distribute (by sale or
otherwise) copies of each index or supplements thereto unless it
determines by order published in the Federal Register that the
publication would be unnecessary and impracticable, in which case the
agency shall nonetheless provide copies of such index on request at a
cost not to exceed the direct cost of duplication. Each agency shall
make the index referred to in subparagraph (E) available by computer
telecommunications by December 31, 1999. A final order, opinion,
statement of policy, interpretation, or staff manual or instruction that
affects a member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency only if--
(i) it has been indexed and either made available or published as
provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made
in accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records promptly
available to any person.
(B) In making any record available to a person under this paragraph,
an agency shall provide the record in any form or format requested by
the person if the record is readily reproducible by the agency in that
form or format. Each agency shall make reasonable efforts to maintain
its records in forms or formats that are reproducible for purposes of
this section.
(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the agency's automated information
system.
(D) For purposes of this paragraph, the term ``search'' means to
review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.
(4)(A)(i) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests under this section and establishing procedures
and guidelines for determining when such fees should be waived or
reduced. Such schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment, by the
Director of the Office of Management and Budget and which shall provide
for a uniform schedule of fees for all agencies.
(ii) Such agency regulations shall provide that--
(I) fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are requested for
commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for commercial use and
the request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search and
duplication.
(iii) Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of
the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct
costs of search, duplication, or review. Review costs shall include only
the direct costs incurred during the initial examination of a document
for the purposes of determining whether the documents must be disclosed
under this section and for the purposes of withholding any portions
exempt from disclosure under this section. Review costs may not include
any costs incurred in resolving issues of law or policy that may be
raised in the course of processing a request under this section. No fee
may be charged by any agency under this section--
(I) if the costs of routine collection and processing of the fee are
likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii) (II) or (III) of this
subparagraph for the first two hours of search time or for the first one
hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of fees for
particular types of records.
(vii) In any action by a requester regarding the waiver of fees under
this section, the court shall determine the matter de novo: Provided,
That the court's review of the matter shall be limited to the record
before the agency.
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case the
court shall determine the matter de novo, and may examine the contents
of such agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the agency to
sustain its action. In addition to any other matters to which a court
accords substantial weight, a court shall accord substantial weight to
an affidavit of an agency concerning the agency's determination as to
technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall
serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the defendant of the
pleading in which such complaint is made, unless the court otherwise
directs for good cause shown.
(D) [Repealed.]
(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the
court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or employee
who was primarily responsible for the withholding. The Special Counsel,
after investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the findings and
recommendations to the officer or employee or his representative. The
administrative authority shall take the corrective action that the
Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the
district court may punish for contempt the responsible employee, and in
the case of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make
available for public inspection a record of the final votes of each
member in every agency proceeding.
(6)(A) Each agency, upon any request for records made under paragraph
(1), (2), or (3) of this subsection, shall--
(i) determine within ten days\1\
(excepting Saturdays, Sundays, and legal public holidays) after the
receipt of any such request whether to comply with such request and
shall immediately notify the person making such request of such
determination and the reasons therefor, and of the right of such person
to appeal to the head of the agency any adverse determination; and
\1\Under section 12(b) of the Electronic Freedom of Information Act
Amendments of 1996 (Pub. L. 104 231; 110 Stat. 3054), the amendment made
by section 8(b) of such Act striking ``ten days'' and inserting ``20
days'' shall take effect on October 3, 1997.
(ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If on appeal the denial of the request for
records is in whole or in part upheld, the agency shall notify the
person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(B)\2\
In unusual circumstances as specified in this subparagraph, the time
limits prescribed in either clause (i) or clause (ii) of subparagraph
(A) may be extended by written notice to the person making such request
setting forth the reasons for such extension and the date on which a
determination is expected to be dispatched. No such notice shall specify
a date that would result in an extension for more than ten working days.
As used in this subparagraph, ``unusual circumstances'' means, but only
to the extent reasonably necessary to the proper processing of the
particular request--
\2\Under section 12(b) of the Electronic Freedom of Information Act
Amendments of 1996 (Pub. L. 104 231; 110 Stat. 3054), the amendment made
by section 7(b) of such Act striking subparagraph (B) and inserting a
new subparagraph (B) shall take effect on October 3, 1997. As a result
of that amendment, upon that date subparagraph (B) will read as follows:
(I) the need to search for and collect the requested records
from field facilities or other establishments that are separate from the
office processing the request;
(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct records which are
demanded in a single request; or
(III) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more
components of the agency having substantial subject-matter interest
therein.
(i) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) the need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) the need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
(C) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if
the agency fails to comply with the applicable time limit provisions of
this paragraph. If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence in responding to
the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records. Upon any
determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such
request. Any notification of denial of any request for records under
this subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.\1\
\1\Under section 12(b) of the Electronic Freedom of Information Act
Amendments of 1996 (Pub. L. 104 231; 110 Stat. 3054), the amendments
made by section 7(c) of such Act inserting ``(i)'' after ``(C)'' and
adding at the end new clauses (ii) and (iii), shall take effect on
October 3, 1997. As a result of those amendments, upon that date clauses
(ii) and (iii) will read as follows:
(I) in cases in which the person requesting the records
demonstrates a compelling need; and
(II) in other cases determined by the agency.
(I) that a determination of whether to provide expedited
processing shall be made, and notice of the determination shall be
provided to the person making the request, within 10 days after the date
of the request; and
(II) expeditious consideration of administrative appeals of
such determinations of whether to provide expedited processing.
(I) that a failure to obtain requested records on an
expedited basis under this paragraph could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual;
or
(II) with respect to a request made by a person primarily
engaged in disseminating information, urgency to inform the public
concerning actual or alleged Federal Government activity.
(b) This section does not apply to matters that are--
(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified pursuant to such
Executive order;
(2) related solely to the internal personnel rules and practices of
an agency;
(3) specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere
with enforcement proceedings, (B) would deprive a person of a right to a
fair trial or an impartial adjudication, (C) could reasonably be
expected to constitute an unwarranted invasion of personal privacy, (D)
could reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any
private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law, or (F) could reasonably be
expected to endanger the life or physical safety of any individual;
(8) contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) geological and geophysical information and data, including maps,
concerning wells.
Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are
exempt under this subsection. The amount of information deleted shall be
indicated on the released portion of the record, unless including that
indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible,
the amount of the information deleted shall be indicated at the place in
the record where such deletion is made.
(c)(1) Whenever a request is made which involves access to records
described in subsection (b)(7)(A) and--
(A) the investigation or proceeding involves a possible violation of
criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and (ii)
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues,
treat the records as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the agency may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
subsection (b)(1), the Bureau may, as long as the existence of the
records remains classified information, treat the records as not subject
to the requirements of this section.
(d) This section does not authorize withholding of information or
limit the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold
information from Congress.
(e)(1) On or before February 1 of each year, each agency shall submit
to the Attorney General of the United States a report which shall cover
the preceding fiscal year and which shall include--
(A) the number of determinations made by the agency not to comply
with requests for records made to such agency under subsection (a) and
the reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action upon
each appeal that results in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under subsection (b)(3), a
description of whether a court has upheld the decision of the agency to
withhold information under each such statute, and a concise description
of the scope of any information withheld;
(C) the number of requests for records pending before the agency as
of September 30 of the preceding year, and the median number of days
that such requests had been pending before the agency as of that date;
(D) the number of requests for records received by the agency and
the number of requests which the agency processed;
(E) the median number of days taken by the agency to process
different types of requests;
(F) the total amount of fees collected by the agency for processing
requests; and
(G) the number of full-time staff of the agency devoted to
processing requests for records under this section, and the total amount
expended by the agency for processing such requests.
(2) Each agency shall make each such report available to the public
including by computer telecommunications, or if computer
telecommunications means have not been established by the agency, by
other electronic means.
(3) The Attorney General of the United States shall make each report
which has been made available by electronic means available at a single
electronic access point. The Attorney General of the United States shall
notify the Chairman and ranking minority member of the Committee on
Government Reform and Oversight of the House of Representatives and the
Chairman and ranking minority member of the Committees on Governmental
Affairs and the Judiciary of the Senate, no later than April 1 of the
year in which each such report is issued, that such reports are
available by electronic means.
(4) The Attorney General of the United States, in consultation with
the Director of the Office of Management and Budget, shall develop
reporting and performance guidelines in connection with reports required
by this subsection by October 1, 1997, and may establish additional
requirements for such reports as the Attorney General determines may be
useful.
(5) The Attorney General of the United States shall submit an annual
report on or before April 1 of each calendar year which shall include
for the prior calendar year a listing of the number of cases arising
under this section, the exemption involved in each case, the disposition
of such case, and the cost, fees, and penalties assessed under
subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall
also include a description of the efforts undertaken by the Department
of Justice to encourage agency compliance with this section.
(f) For purposes of this section, the term--
(1) ``agency'' as defined in section 551(1) of this title includes
any executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office of
the President), or any independent regulatory agency; and
(2) ``record'' and any other term used in this section in reference
to information includes any information that would be an agency record
subject to the requirements of this section when maintained by an agency
in any format, including an electronic format.
(g) The head of each agency shall prepare and make publicly available
upon request, reference material or a guide for requesting records or
information from the agency, subject to the exemptions in subsection
(b), including--
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems
maintained by the agency; and
(3) a handbook for obtaining various types and categories of public
information from the agency pursuant to chapter 35 of title 44, and
under this section.
APPENDIX 5.-- TEXT OF THE PRIVACY ACT OF 1974
552a. Records maintained on individuals
(a) Definitions.-- For purposes of this section--
(1) the term ``agency'' means agency as defined in section 552(e)\1\
of this title;
\1\Reference probably should be to ``552(f)''. Section 1802(b) of Public
Law 99 570 redesignated subsection (e) as (f) of section 552.
(2) the term ``individual'' means a citizen of the United States or
an alien lawfully admitted for permanent residence;
(3) the term ``maintain'' includes maintain, collect, use, or
disseminate;
(4) the term ``record'' means any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his education, financial transactions,
medical history, and criminal or employment history and that contains
his name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print
or a photograph;
(5) the term ``system of records'' means a group of any records
under the control of any agency from which information is retrieved by
the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual;
(6) the term ``statistical record'' means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or in part in making any determination about an
identifiable individual, except as provided by section 8 of title 13;
(7) the term ``routine use'' means, with respect to the disclosure
of a record, the use of such record for a purpose which is compatible
with the purpose for which it was collected;
(8) the term ``matching program''--
(A) means any computerized comparison of--
(i) two or more automated systems of records or a system of records
with non-Federal records for the purpose of--
(I) establishing or verifying the eligibility of, or continuing
compliance with statutory and regulatory requirements by, applicants
for, recipients or beneficiaries of, participants in, or providers of
services with respect to, cash or in-kind assistance or payments under
Federal benefit programs, or
(II) recouping payments or delinquent debts under such Federal
benefit programs, or
(ii) two or more automated Federal personnel or payroll systems of
records or a system of Federal personnel or payroll records with
non-Federal records,
(B) but does not include--
(i) matches performed to produce aggregate statistical data without
any personal identifiers;
(ii) matches performed to support any research or statistical
project, the specific data of which may not be used to make decisions
concerning the rights, benefits, or privileges of specific individuals;
(iii) matches performed, by an agency (or component thereof) which
performs as its principal function any activity pertaining to the
enforcement of criminal laws, subsequent to the initiation of a specific
criminal or civil law enforcement investigation of a named person or
persons for the purpose of gathering evidence against such person or
persons;
(iv) matches of tax information (I) pursuant to section 6103(d) of
the Internal Revenue Code of 1986, (II) for purposes of tax
administration as defined in section 6103(b)(4) of such Code, (III) for
the purpose of intercepting a tax refund due an individual under
authority granted by section 464 or 1137 of the Social Security Act; or
(IV) for the purpose of intercepting a tax refund due an individual
under any other tax refund intercept program authorized by statute which
has been determined by the Director of the Office of Management and
Budget to contain verification, notice, and hearing requirements that
are substantially similar to the procedures in section 1137 of the
Social Security Act;
(v) matches--
(I) using records predominantly relating to Federal personnel, that
are performed for routine administrative purposes (subject to guidance
provided by the Director of the Office of Management and Budget pursuant
to subsection (v)); or
(II) conducted by an agency using only records from systems of
records maintained by that agency;
if the purpose of the match is not to take any adverse financial,
personnel, disciplinary, or other adverse action against Federal
personnel\2\
\2\So in original. The amendment made by Public Law 103 66 (107 Stat.
611, sec. 13581(c)(1)) struck ``; or''. It did not put back any
punctuation.
(vi) matches performed for foreign counterintelligence purposes or
to produce background checks for security clearances of Federal
personnel or Federal contractor personnel;
(9) the term ``recipient agency'' means any agency, or contractor
thereof, receiving records contained in a system of records from a
source agency for use in a matching program;
(10) the term ``non-Federal agency'' means any State or local
government, or agency thereof, which receives records contained in a
system of records from a source agency for use in a matching program;
(11) the term ``source agency'' means any agency which discloses
records contained in a system of records to be used in a matching
program, or any State or local government, or agency thereof, which
discloses records to be used in a matching program;
(12) the term ``Federal benefit program'' means any program
administered or funded by the Federal Government, or by any agent or
State on behalf of the Federal Government, providing cash or in-kind
assistance in the form of payments, grants, loans, or loan guarantees to
individuals; and
(13) the term ``Federal personnel'' means officers and employees of
the Government of the United States, members of the uniformed services
(including members of the Reserve Components), individuals entitled to
receive immediate or deferred retirement benefits under any retirement
program of the Government of the United States (including survivor
benefits).
(b) Conditions of Disclosure.-- No agency shall disclose any record
which is contained in a system of records by any means of communication
to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom
the record pertains, unless disclosure of the record would be--
(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) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this
section and described under subsection (e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
title 13;
(5) to a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(6) to the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States or the designee of the Archivist to
determine whether the record has such value;
(7) to another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) to a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) to either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(10) to the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(11) pursuant to the order of a court of competent jurisdiction; and
(12) to a consumer reporting agency in accordance with section
3711(e) of title 31.
(c) Accounting of Certain Disclosures.-- Each agency, with respect to
each system of records under its control shall--
(1) except for disclosures made under subsections (b)(1) or (b)(2)
of this section, keep an accurate accounting of--
(A) the date, nature, and purpose of each disclosure of a record to
any person or to another agency made under subsection (b) of this
section; and
(B) the name and address of the person or agency to whom the
disclosure is made;
(2) retain the accounting made under paragraph (1) of this
subsection for at least five years or the life of the record, whichever
is longer, after the disclosure for which the accounting is made;
(3) except for disclosures made under subsection (b)(7) of this
section, make the accounting made under paragraph (1) of this subsection
available to the individual named in the record at his request; and
(4) inform any person or other agency about any correction or
notation of dispute made by the agency in accordance with subsection (d)
of this section of any record that has been disclosed to the person or
agency if an accounting of the disclosure was made.
(d) Access to Records.-- Each agency that maintains a system of
records shall--
(1) upon request by any individual to gain access to his record or
to any information pertaining to him which is contained in the system,
permit him and upon his request, a person of his own choosing to
accompany him, to review the record and have a copy made of all or any
portion thereof in a form comprehensible to him, except that the agency
may require the individual to furnish a written statement authorizing
discussion of that individual's record in the accompanying person's
presence;
(2) permit the individual to request amendment of a record
pertaining to him and--
(A) not later than 10 days (excluding Saturdays, Sundays, and legal
public holidays) after the date of receipt of such request, acknowledge
in writing such receipt; and
(B) promptly, either--
(i) make any correction of any portion thereof which the individual
believes is not accurate, relevant, timely, or complete; or
(ii) inform the individual of its refusal to amend the record in
accordance with his request, the reason for the refusal, the procedures
established by the agency for the individual to request a review of that
refusal by the head of the agency or an officer designated by the head
of the agency, and the name and business address of that official;
(3) permit the individual who disagrees with the refusal of the
agency to amend his record to request a review of such refusal, and not
later than 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual requests such review,
complete such review and make a final determination unless, for good
cause shown, the head of the agency extends such 30-day period; and if,
after his review, the reviewing official also refuses to amend the
record in accordance with the request, permit the individual to file
with the agency a concise statement setting forth the reasons for his
disagreement with the refusal of the agency, and notify the individual
of the provisions for judicial review of the reviewing official's
determination under subsection (g)(1)(A) of this section;
(4) in any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after the
filing of the statement under paragraph (3) of this subsection, clearly
note any portion of the record which is disputed and provide copies of
the statement and, if the agency deems it appropriate, copies of a
concise statement of the reasons of the agency for not making the
amendments requested, to persons or other agencies to whom the disputed
record has been disclosed; and
(5) nothing in this section shall allow an individual access to any
information compiled in reasonable anticipation of a civil action or
proceeding.
(e) Agency Requirements.-- Each agency that maintains a system of
records shall--
(1) maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency required to be accomplished by statute or by executive order of
the President;
(2) collect information to the greatest extent practicable directly
from the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, and privileges
under Federal programs;
(3) inform each individual whom it asks to supply information, on
the form which it uses to collect the information or on a separate form
that can be retained by the individual--
(A) the authority (whether granted by statute, or by executive order
of the President) which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
(B) the principal purpose or purposes for which the information is
intended to be used;
(C) the routine uses which may be made of the information, as
published pursuant to paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not providing all or any part of
the requested information;
(4) subject to the provisions of paragraph (11) of this subsection,
publish in the Federal Register upon establishment or revision a notice
of the existence and character of the system of records, which notice
shall include--
(A) the name and location of the system;
(B) the categories of individuals on whom records are maintained in
the system;
(C) the categories of records maintained in the system;
(D) each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(E) the policies and practices of the agency regarding storage,
retrievability, access controls, retention, and disposal of the records;
(F) the title and business address of the agency official who is
responsible for the system of records;
(G) the agency procedures whereby an individual can be notified at
his request if the system of records contains a record pertaining to
him;
(H) the agency procedures whereby an individual can be notified at
his request how he can gain access to any record pertaining to him
contained in the system of records, and how he can contest its content;
and
(I) the categories of sources of records in the system;
(5) maintain all records which are used by the agency in making any
determination about any individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination;
(6) prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to subsection (b)(2) of this section, make reasonable efforts to assure
that such records are accurate, complete, timely, and relevant for
agency purposes;
(7) maintain no record describing how any individual exercises
rights guaranteed by the first amendment unless expressly authorized by
statute or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law
enforcement activity;
(8) make reasonable efforts to serve notice on an individual when
any record on such individual is made available to any person under
compulsory legal process when such process becomes a matter of public
record;
(9) establish rules of conduct for persons involved in the design,
development, operation, or maintenance of any system of records, or in
maintaining any record, and instruct each such person with respect to
such rules and the requirements of this section, including any other
rules and procedures adopted pursuant to this section and the penalties
for noncompliance;
(10) establish appropriate administrative, technical, and physical
safeguards to insure the security and confidentiality of records and to
protect against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness to any individual on whom information is
maintained;
(11) at least 30 days prior to publication of information under
paragraph (4)(D) of this subsection, publish in the Federal Register
notice of any new use or intended use of the information in the system,
and provide an opportunity for interested persons to submit written
data, views, or arguments to the agency; and
(12) if such agency is a recipient agency or a source agency in a
matching program with a non-Federal agency, with respect to any
establishment or revision of a matching program, at least 30 days prior
to conducting such program, publish in the Federal Register notice of
such establishment or revision.
(f) Agency Rules.-- In order to carry out the provisions of this
section, each agency that maintains a system of records shall promulgate
rules, in accordance with the requirements (including general notice) of
section 553 of this title, which shall--
(1) establish procedures whereby an individual can be notified in
response to his request if any system of records named by the individual
contains a record pertaining to him;
(2) define reasonable times, places, and requirements for
identifying an individual who requests his record or information
pertaining to him before the agency shall make the record or information
available to the individual;
(3) establish procedures for the disclosure to an individual upon
his request of his record or information pertaining to him, including
special procedure, if deemed necessary, for the disclosure to an
individual of medical records, including psychological records
pertaining to him;
(4) establish procedures for reviewing a request from an individual
concerning the amendment of any record or information pertaining to the
individual, for making a determination on the request, for an appeal
within the agency of an initial adverse agency determination, and for
whatever additional means may be necessary for each individual to be
able to exercise fully his rights under this section; and
(5) establish fees to be charged, if any, to any individual for
making copies of his record, excluding the cost of any search for and
review of the record.
The Office of the Federal Register shall biennially compile and
publish the rules promulgated under this subsection and agency notices
published under subsection (e)(4) of this section in a form available to
the public at low cost.
(g)(1) Civil Remedies. --Whenever any agency--
(A) makes a determination under subsection (d)(3) of this section
not to amend an individual's record in accordance with his request, or
fails to make such review in conformity with that subsection;
(B) refuses to comply with an individual request under subsection
(d)(1) of this section;
(C) fails to maintain any record concerning any individual with such
accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to the individual
that may be made on the basis of such record, and consequently a
determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any
rule promulgated thereunder, in such a way as to have an adverse effect
on an individual,
the individual may bring a civil action against the agency, and the
district courts of the United States shall have jurisdiction in the
matters under the provisions of this subsection.
(2)(A) In any suit brought under the provisions of subsection
(g)(1)(A) of this section, the court may order the agency to amend the
individual's record in accordance with his request or in such other way
as the court may direct. In such a case the court shall determine the
matter de novo.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this paragraph in which the complainant has substantially
prevailed.
(3)(A) In any suit brought under the provisions of subsection
(g)(1)(B) of this section, the court may enjoin the agency from
withholding the records and order the production to the complainant of
any agency records improperly withheld from him. In such a case the
court shall determine the matter de novo, and may examine the contents
of any agency records in camera to determine whether the records or any
portion thereof may be withheld under any of the exemptions set forth in
subsection (k) of this section, and the burden is on the agency to
sustain its action.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this paragraph in which the complainant has substantially
prevailed.
(4) In any suit brought under the provisions of subsection (g)(1)(C)
or (D) of this section in which the court determines that the agency
acted in a manner which was intentional or willful, the United States
shall be liable to the individual in an amount equal to the sum of--
(A) actual damages sustained by the individual as a result of the
refusal or failure, but in no case shall a person entitled to recovery
receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees
as determined by the court.
(5) An action to enforce any liability created under this section may
be brought in the district court of the United States in the district in
which the complainant resides, or has his principal place of business,
or in which the agency records are situated, or in the District of
Columbia, without regard to the amount in controversy, within two years
from the date on which the cause of action arises, except that where an
agency has materially and willfully misrepresented any information
required under this section to be disclosed to an individual and the
information so misrepresented is material to establishment of the
liability of the agency to the individual under this section, the action
may be brought at any time within two years after discovery by the
individual of the misrepresentation. Nothing in this section shall be
construed to authorize any civil action by reason of any injury
sustained as the result of a disclosure of a record prior to September
27, 1975.
(h) Rights of Legal Guardians.-- For the purposes of this section,
the parent of any minor, or the legal guardian of any individual who has
been declared to be incompetent due to physical or mental incapacity or
age by a court of competent jurisdiction, may act on behalf of the
individual.
(i)(1) Criminal Penalties.-- Any officer or employee of an agency,
who by virtue of his employment or official position, has possession of,
or access to, agency records which contain individually identifiable
information the disclosure of which is prohibited by this section or by
rules or regulations established thereunder, and who knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to receive it, shall be guilty of a misdemeanor and fined not
more than $5,000.
(2) Any officer or employee of any agency who willfully maintains a
system of records without meeting the notice requirements of subsection
(e)(4) of this section shall be guilty of a misdemeanor and fined not
more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.
(j) General Exemptions.-- The head of any agency may promulgate
rules, in accordance with the requirements (including general notice) of
sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt
any system of records within the agency from any part of this section
except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),
(7), (9), (10), and (11), and (i) if the system of records is--
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs as
its principal function any activity pertaining to the enforcement of
criminal laws, including police efforts to prevent, control, or reduce
crime or to apprehend criminals, and the activities of prosecutors,
courts, correctional, probation, pardon, or parole authorities, and
which consists of (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 (C)
reports identifiable to an individual compiled at any stage of the
process of enforcement of the criminal laws from arrest or indictment
through release from supervision.
At the time rules are adopted under this subsection, the agency shall
include in the statement required under section 553(c) of this title,
the reasons why the system of records is to be exempted from a provision
of this section.
(k) Specific Exemptions. --The head of any agency may promulgate
rules, in accordance with the requirements (including general notice) of
sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt
any system of records within the agency from subsections (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of
records is--
(1) subject to the provisions of section 552(b)(1) of this title;
(2) 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, under an implied promise that the identity of the source would
be held in confidence;
(3) maintained in connection with providing protective services to
the President of the United States or other individuals pursuant to
section 3056 of title 18;
(4) required by statute to be maintained and used solely as
statistical records;
(5) 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, under an implied promise that the identity of the
source would be held in confidence;
(6) 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; or
(7) evaluation material used to determine potential for promotion in
the armed services, 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, under an implied promise that the identity of the source
would be held in confidence.
At the time rules are adopted under this subsection, the agency shall
include in the statement required under section 553(c) of this title,
the reasons why the system of records is to be exempted from a provision
of this section.
(l)(1) Archival Records.-- Each agency record which is accepted by
the Archivist of the United States for storage, processing, and
servicing in accordance with section 3103 of title 44 shall, for the
purposes of this section, be considered to be maintained by the agency
which deposited the record and shall be subject to the provisions of
this section. The Archivist of the United States shall not disclose the
record except to the agency which maintains the record, or under rules
established by that agency which are not inconsistent with the
provisions of this section.
(2) Each agency record pertaining to an identifiable individual which
was transferred to the National Archives of the United States as a
record which has sufficient historical or other value to warrant its
continued preservation by the United States Government, prior to the
effective date of this section, shall, for the purposes of this section,
be considered to be maintained by the National Archives and shall not be
subject to the provisions of this section, except that a statement
generally describing such records (modeled after the requirements
relating to records subject to subsections (e)(4)(A) through (G) of this
section) shall be published in the Federal Register.
(3) Each agency record pertaining to an identifiable individual which
is transferred to the National Archives of the United States as a record
which has sufficient historical or other value to warrant its continued
preservation by the United States Government, on or after the effective
date of this section, shall, for the purposes of this section, be
considered to be maintained by the National Archives and shall be exempt
from the requirements of this section except subsections (e)(4)(A)
through (G) and (e)(9) of this section.
(m) Government Contractors.-- (1) When an agency provides by a
contract for the operation by or on behalf of the agency of a system of
records to accomplish an agency function, the agency shall, consistent
with its authority, cause the requirements of this section to be applied
to such system. For purposes of subsection (i) of this section any such
contractor and any employee of such contractor, if such contract is
agreed to on or after the effective date of this section, shall be
considered to be an employee of an agency.
(2) A consumer reporting agency to which a record is disclosed under
section 3711(e) of title 31 shall not be considered a contractor for the
purposes of this section.
(n) Mailing Lists.-- An individual's name and address may not be sold
or rented by an agency unless such action is specifically authorized by
law. This provision shall not be construed to require the withholding of
names and addresses otherwise permitted to be made public.
(o) Matching Agreements .--(1) No record which is contained in a
system of records may be disclosed to a recipient agency or non-Federal
agency for use in a computer matching program except pursuant to a
written agreement between the source agency and the recipient agency or
non-Federal agency specifying--
(A) the purpose and legal authority for conducting the program;
(B) the justification for the program and the anticipated results,
including a specific estimate of any savings;
(C) a description of the records that will be matched, including
each data element that will be used, the approximate number of records
that will be matched, and the projected starting and completion dates of
the matching program;
(D) procedures for providing individualized notice at the time of
application, and notice periodically thereafter as directed by the Data
Integrity Board of such agency (subject to guidance provided by the
Director of the Office of Management and Budget pursuant to subsection
(v)), to--
(i) applicants for and recipients of financed assistance or payments
under Federal benefit programs, and
(ii) applicants for and holders of positions as Federal personnel,
that any information provided by such applicants, recipients,
holders, and individuals may be subject to verification through matching
programs;
(E) procedures for verifying information produced in such matching
program as required by subsection (p);
(F) procedures for the retention and timely destruction of
identifiable records created by a recipient agency or non-Federal agency
in such matching program;
(G) procedures for ensuring the administrative, technical, and
physical security of the records matched and the results of such
programs;
(H) prohibitions on duplication and redisclosure of records provided
by the source agency within or outside the recipient agency or the
non-Federal agency, except where required by law or essential to the
conduct of the matching program;
(I) procedures governing the use by a recipient agency or
non-Federal agency of records provided in a matching program by a source
agency, including procedures governing return of the records to the
source agency or destruction of records used in such program;
(J) information on assessments that have been made on the accuracy
of the records that will be used in such matching program; and
(K) that the Comptroller General may have access to all records of a
recipient agency or a non-Federal agency that the Comptroller General
deems necessary in order to monitor or verify compliance with the
agreement.
(2)(A) A copy of each agreement entered into pursuant to paragraph
(1) shall--
(i) be transmitted to the Committee on Governmental Affairs of the
Senate and the Committee on Government Operations of the House of
Representatives; and
(ii) be available upon request to the public.
(B) No such agreement shall be effective until 30 days after the date
on which such a copy is transmitted pursuant to subparagraph (A)(i).
(C) Such an agreement shall remain in effect only for such period,
not to exceed 18 months, as the Data Integrity Board of the agency
determines is appropriate in light of the purposes, and length of time
necessary for the conduct, of the matching program.
(D) Within 3 months prior to the expiration of such an agreement
pursuant to subparagraph (C), the Data Integrity Board of the agency
may, without additional review, renew the matching agreement for a
current, ongoing matching program for not more than one additional year
if--
(i) such program will be conducted without any change; and
(ii) each party to the agreement certifies to the Board in writing
that the program has been conducted in compliance with the agreement.
(p) Verification and Opportunity to Contest Findings.-- (1) In order
to protect any individual whose records are used in a matching program,
no recipient agency, non-Federal agency, or source agency may suspend,
terminate, reduce, or make a final denial of any financial assistance or
payment under a Federal benefit program to such individual, or take
other adverse action against such individual, as a result of information
produced by such matching program, until--
(A)(i) the agency has independently verified the information; or
(ii) the Data Integrity Board of the agency, or in the case of a
non-Federal agency the Data Integrity Board of the source agency,
determines in accordance with guidance issued by the Director of the
Office of Management and Budget that--
(I) the information is limited to identification and amount of
benefits paid by the source agency under a Federal benefit program; and
(II) there is a high degree of confidence that the information
provided to the recipient agency is accurate;
(B) the individual receives a notice from the agency containing a
statement of its findings and informing the individual of the
opportunity to contest such findings; and
(C)(i) the expiration of any time period established for the program
by statue or regulation for the individual to respond to that notice; or
(ii) in the case of a program for which no such period is
established, the end of the 30-day period beginning on the date on which
notice under subparagraph (B) is mailed or otherwise provided to the
individual.
(2) Independent verification referred to in paragraph (1) requires
investigation and confirmation of specific information relating to an
individual that is used as a basis for an adverse action against the
individual, including where applicable investigation and confirmation
of--
(A) the amount of any asset or income involved;
(B) whether such individual actually has or had access to such asset
or income for such individual's own use; and
(C) the period or periods when the individual actually had such
asset or income.
(3) Notwithstanding paragraph (1), an agency may take any appropriate
action otherwise prohibited by such paragraph if the agency determines
that the public health or public safety may be adversely affected or
significantly threatened during any notice period required by such
paragraph.
(q) Sanctions.-- (1) Notwithstanding any other provision of law, no
source agency may disclose any record with is contained in a system of
records to a recipient agency or non-Federal agency for a matching
program if such source agency has reason to believe that the
requirements of subsection (p), or any matching agreement entered into
pursuant to subsection (o), or both, are not being met by such recipient
agency.
(2) No source agency may renew a matching agreement unless--
(A) the recipient agency or non-Federal agency has certified that it
has complied with the provisions of that agreement; and
(B) the source agency has no reason to believe that the
certification is inaccurate.
(r) Report on New Systems and Matching Programs.-- Each agency that
proposes to establish or make a significant change in a system of
records or a matching program shall provide adequate advance notice of
any such proposal (in duplicate) to the Committee on Government
Operations of the House of Representatives, the Committee on
Governmental Affairs of the Senate, and the Office of Management and
Budget in order to permit an evaluation of the probable or potential
effect of such proposal on the privacy or other rights of individuals.
(s) Biennial Report.-- The President shall biennially submit to the
Speaker of the House of Representatives and the President pro tempore of
the Senate a report--
(1) describing the actions of the Director of the Office of
Management and Budget pursuant to section 6 of the Privacy Act of 1974
during the preceding 2 years;
(2) describing the exercise of individual rights of access and
amendment under this section during such years;
(3) identifying changes in or additions to systems of records;
(4) containing such other information concerning administration of
this section as may be necessary or useful to the Congress in reviewing
the effectiveness of this section in carrying out the purposes of the
Privacy Act of 1974.
(t)(1) Effect of Other Laws.-- No agency shall rely on any exemption
contained in section 552 of this title to withhold from an individual
any record which is otherwise accessible to such individual under the
provisions of this section.
(2) No agency shall rely on any exemption in this section to withhold
from an individual any record which is otherwise accessible to such
individual under the provisions of section 552 of this title.
(u) Data Integrity Boards.-- (1) Every agency conducting or
participating in a matching program shall establish a Data Integrity
Board to oversee and coordinate among the various components of such
agency the agency's implementation of this section.
(2) Each Data Integrity Board shall consist of senior officials
designated by the head of the agency, and shall include any senior
official designated by the head of the agency as responsible for
implementation of this section, and the inspector general of the agency,
if any. The inspector general shall not serve as chairman of the Data
Integrity Board.
(3) Each Data Integrity Board--
(A) shall review, approve, and maintain all written agreements for
receipt or disclosure of agency records for matching programs to ensure
compliance with subsection (o), and all relevant statutes, regulations,
and guidelines;
(B) shall review all matching programs in which the agency has
participated during the year, either as a source agency or recipient
agency, determine compliance with applicable laws, regulations,
guidelines, and agency agreements, and assess the costs and benefits of
such programs;
(C) shall review all recurring matching programs in which the agency
has participated during the year, either as a source agency or recipient
agency, for continued justification for such disclosures;
(D) shall compile an annual report, which shall be submitted to the
head of the agency and the Office of Management and Budget and made
available to the public on request, describing the matching activities
of the agency, including--
(i) matching programs in which the agency has participated as a
source agency or recipient agency;
(ii) matching agreements proposed under subsection (o) that were
disapproved by the Board;
(iii) any changes in membership to structure of the Board in the
preceding year;
(iv) the reasons for any waiver of the requirement in paragraph (4)
of this section for completion and submission of a cost-benefit analysis
prior to the approval of a matching program;
(v) any violations of matching agreements that have been alleged or
identified and any corrective action taken; and
(vi) any other information required by the Director of the Office of
Management and Budget to be included in such report;
(E) shall serve as a clearinghouse for receiving and providing
information on the accuracy, completeness, and reliability of records
used in matching programs;
(F) shall provide interpretation and guidance to agency components
and personnel on the requirements of this section for matching programs;
(G) shall review agency recordkeeping and disposal policies and
practices for matching programs to assure compliance with this section;
and
(H) may review and report on any agency matching activities that are
not matching programs.
(4)(A) Except as provided in subparagraphs (B) and (C), a Data
Integrity Board shall not approve any written agreement for a matching
program unless the agency has completed and submitted to such Board a
cost-benefit analysis of the proposed program and such analysis
demonstrates that the program is likely to be cost effective.
(B) The Board may waive the requirements of subparagraph (A) of this
paragraph if it determines in writing, in accordance with guidelines
prescribed by the Director of the Office of Management and Budget, that
a cost-benefit analysis is not required.
(C) A cost-benefit analysis shall not be required under subparagraph
(A) prior to the initial approval of a written agreement for a matching
program that is specifically required by statute. Any subsequent written
agreement for such a program shall not be approved by the Data Integrity
Board unless the agency has submitted a cost-benefit analysis of the
program as conducted under the preceding approval of such agreement.
(5)(A) If a matching agreement is disapproved by a Data Integrity
Board, any party to such agreement may appeal the disapproval to the
Director of the Office of Management and Budget. Timely notice of the
filing of such an appeal shall be provided by the Director of the Office
of Management and Budget to the Committee on Governmental Affairs of the
Senate and the Committee on Government Operations of the House of
Representatives.
(B) The Director of the Office of Management and Budget may approve a
matching agreement notwithstanding the disapproval of a Data Integrity
Board if the Director determines that--
(i) the matching program will be consistent with all applicable
legal, regulatory, and policy requirements;
(ii) there is adequate evidence that the matching agreement will be
cost-effective; and
(iii) the matching program is in the public interest.
(C) The decision of the Director to approve a matching agreement
shall not take effect until 30 days after it is reported to committees
described in subparagraph (A).
(D) If the Data Integrity Board and the Director of the Office of
Management and Budget disapprove a matching program proposed by the
inspector general of an agency, the inspector general may report the
disapproval to the head of the agency and to the Congress.
(6) The Director of the Office of Management and Budget shall,
annually during the first 3 years after the date of enactment of this
subsection and biennially thereafter, consolidate in a report to the
Congress the information contained in the reports from the various Data
Integrity Boards under paragraph (3)(D). Such report shall include
detailed information about costs and benefits of matching programs that
are conducted during the period covered by such consolidated report, and
shall identify each waiver granted by a Data Integrity Board of the
requirement for completion and submission of a cost-benefit analysis and
the reasons for granting the waiver.
(7) In the reports required by paragraphs (3)(D) and (6), agency
matching activities that are not matching programs may be reported on an
aggregate basis, if and to the extent necessary to protect ongoing law
enforcement or counterintelligence investigations.
(v) Office of Management and Budget Responsibilities.-- The Director
of the Office of Management and Budget shall--
(1) develop and, after notice and opportunity for public comment,
prescribe guidelines and regulations for the use of agencies in
implementing the provisions of this section; and
(2) provide continuing assistance to an oversight of the
implementation of this section by agencies.
(Added Public Law 93 579, 3, Dec. 31, 1974, 88 Stat. 1897, and amended
Public Law 94 183, 2(2), Dec. 31, 1975, 89 Stat. 1057; Public Law 97
365, 2, Oct. 25, 1982, 96 Stat. 1749; Public Law 97 375, title II,
201(a), (b), Dec. 21, 1982, 96 Stat. 1821; Public Law 97 452, 2(a)(1),
Jan. 12, 1983, 96 Stat. 2478; Public Law 98 477, 2(c), Oct. 15, 1984, 98
Stat. 2211; Public Law 98 497, title I, 107(g), Oct. 19, 1984, 98 Stat.
2292; Public Law 100 503, 2 6(a), 7, 8, Oct. 18, 1988, 102 Stat. 2507
2514; Public Law 101 508, title VII, 7201(b)(1), Nov. 5, 1990, 104 Stat.
1388 334; Public Law 103 66, title XIII, 13581(c), Aug. 10, 1993, 107
Stat. 611.)