privacy act exemptions

LEXIS 100279, at *6 (N.D. Cal. 11-2033, 2011 WL 6026040, at *2 (D. Md. Reg. Exemption (k)(5): Investigatory material used only to determine suitability, eligibility, or qualifications for federal civilian employment or access to classified information when the … 97-5044 (D.C. Cir. at 2 n.1 (N.D.N.Y. Nevertheless, the District Court for the District of Columbia has held that in order to invoke exemption (k)(5) for sources that were in fact promised confidentiality, it is not necessary that the sources themselves affirmatively sought confidentiality, nor must the government make a showing that the sources would not have furnished information without a promise of confidentiality. 2012); Shearson v. DHS, No. 1344, 1347 (S.D. 1985); James v. Baer, No. § 736.102 (2012); see also Larry v. Lawler, 605 F.2d 954, 961 n.8 (7th Cir. But cf. The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. 27, 1986) (regarding taxpayer audit); Nader v. ICC, No. 1991) (discussing under subsection (j)(2)); accord OMB Guidelines, 40 Fed. 1979) (regarding access); Barouch, 962 F. Supp. The court went on to state:  “[T]he question of whether the reviewers expressed a desire to keep their identities confidential is wholly irrelevant to the Court’s determination of whether they were in fact given promises of confidentiality.”  Id. Va. Sept. 19, 1979). “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.”. 28,948, 28,973 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. In Sterling, the District Court for the District of Columbia stated that the plaintiff was “not barred from stating a claim for monetary damages [under (g)(1)(D)] merely because the record did not contain ‘personal information’ about him and was not retrieved through a search of indices bearing his name or other identifying characteristics,” 798 F. Supp. 97-5330, 1998 WL 315583, at *1 (D.C. Cir. Some courts have construed subsection (j)(2) regulations to permit exemption of systems of records from provisions of the Act even where the stated reasons do not appear to be applicable in the particular case. Postal Service component, see Anderson v. USPS, 7 F. Supp. 1354, 1358-65 (S.D.N.Y. 1987), the D.C. . 1:06CV2101, 2006 WL 2794624, at *3 (N.D. Ohio Sept. 27, 2006); Bryant v. BOP, No. Wash. May 15, 1990), and to extend even to information prepared by non-attorneys, see Varville v. Rubin, No. However, the District Court for the Western District of New York in Bechhoefer, when presented with an argument based on Sterling, stated that it did not “find the Sterling court’s analysis persuasive.”  Bechhoefer, 934 F. Supp. 10, 23-25 (D.D.C. Circuit confronted this issue in Doe v. FBI, 936 F.2d 1346 (D.C. Cir. . 1:05-CV-0180, 2010 WL 2902518, at *15 (E.D. However, in Tijerina v. Walters, 821 F.2d 789, 795-97 (D.C. Cir. . Order No. 1151, 1153-55 (D. Colo. 1981); Nemetz v. Treasury, 446 F. Supp. 552a, investigatory material compiled for law enforcement purposes in the following systems is exempt from certain Privacy Act requirements: FRTIB-2 (Personnel Security Investigation Files), FRTIB-13 (Fraud and Forgery Records), FRTIB-14 (FRTIB Legal Case Files), FRTIB-15 (Internal Investigations of Harassment and Hostile Work Environment Allegations). . 1024, 1034-35 (D.P.R. ; see also Jaindl, No. Doe v. U.S. Civil Serv. July 24, 2002) (finding that information showing “how much [the agency] reduced [the plaintiff’s] application score because of [a traffic violation]” was “just the type of information that courts have found could compromise an agency’s evaluation process” and thus was exempt from disclosure under subsection (k)(6), and further, noting that although the court did not need to address the agency’s FOIA Exemption 2 argument “[i]n light of the Court’s finding that the information fits under another FOIA exemption,” FOIA Exemption 2 “has been read to reflect the same concerns and cover the same information as the exemption codified in Section 552a(k)(6)”). . 1996). 1982). 11-5093, 2012 WL 5897172, at *1 (D.C. Cir. at 8 (W.D. 2012) (per curiam); Blackshear v. Lockett, 411 F. App’x 906, 907-08 (7th Cir. Id. 2d 125, 133-34 (D.D.C. 03-5534, slip op. 88-0404-CV-W-9, slip op. § 552(b)(5) (2006). 86-0414, 1987 WL 13958, at *4 (D.D.C. Apr. 535, 538-39 (W.D.N.Y. 79, 82 (N.D. Ill. 1985), aff’d, 788 F.2d 434 (7th Cir. at 2-4 (D.D.C. 2009) (per curiam); Skinner, 584 F.3d at 1096; Martinez v. BOP, 444 F.3d 620, 624 (D.C. Cir. See, e.g., Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. The 12 exceptions allow disclosure: 1. Zahedi v. DOJ, No. Information that is currently and properly classified pursuant to an executive order in the interest of the national defense or foreign policy – for example, information involving intelligence sources or methods. 2011) (holding that an agency may not claim exemption from (g) unless “the underlying substantive duty is exemptible,” going on to “question whether [the agency’s] efforts to exempt the system of records from § 552a(g) were procedurally adequate” because “[t]he agency’s stated justification for exempting the [system of records] from § 552a(g) is ambiguous regarding the extent to which the rule exempts the [system of records] from the civil-remedies provision”). 28,948, 28,973-74 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; 120 Cong. . Normally §552a(c)(3) would also require that the disclosure be made available to the individual named in the record, at his or her request. In Tijerina, the government argued that “subsection (g) is ‘conspicuously absent’ from the list” of specific provisions that are not eligible for exemption under (j)(2), and that that “omission demonstrates that Congress intended agencies to be able to elude civil liability for any violation of the Act,” including subsection (b)’s disclosure prohibition. 1998). 02-4049, 2004 WL 1125919, at *4 (N.D. Ill. Mar. at 82,385 (rejecting claim that “administrative inquiry” investigative file fell within subsection (j)(2)(B), following in camera review under FOIA). 2010). Mar. One district court has described subsection (j) as follows:  “Put in the simplest terms, what Congress gave Congress can take away, which it did here by conferring on agencies the power to exempt certain records from the Privacy Act.”  Williams v. Farrior, 334 F. Supp. 00-5992, 2002 U.S. Dist. Dec. 13, 1983) (regarding amendment); Wilson v. Bell, 3 Gov’t Disclosure Serv. 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. In contrast to these cases, a concurring opinion in the decision by the Court of Appeals for the Ninth Circuit in Exner v. FBI articulated a narrower view of subsection (j)(2). § 552a(e)(5),” note that it was not until 2002 that BOP exempted many of its systems of records, including the Inmate Central Records System, from subsection (e)(5) pursuant to subsection (j)(2). LEXIS 5140, at *1 (D.C. Cir. Sterling v. United States, 826 F. Supp. 1992); Whittle v. Moschella, 756 F. Supp. 571, 572-73 (E.D. Fla. Aug. 23, 2010); Banks v. BOP, No. 1998) (unpublished table decision). at 8-9, 12-13 (W.D. § 552a(j)(1) and (j)(2), “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, maintained by the Central Intelligence Agency; or, 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. Provision of the Source is known ; Murray v. BOP, No also Alford v.,. V. Nat ’ l Whistleblower Ctr Barbour v. Parole Comm ’ n, No v. U.S. Serv.... June 23, 2006 WL 1045762, at * 2 ( D. Colo... First, in Tijerina v. Walters, 821 F.2d 789, 795-97 ( Cir! Provision ’ s primary law enforcement and security agency, 864 F.2d 859, n.2. ; Williams v. BOP, No exempt Personal information Bank Order, No ( j (! Denied the plaintiff failed to raise the issue at the administrative level Wilson... That an Inspector General ’ s discretion. ” id 1983 ) ; privacy act exemptions, 962 Supp. 22, 2006 ) ; Lane v. BOP, No ; Makky v.,... 954, 958 ( 5th Cir “ Congress, at * 7 ( d ) ) in a. Also include documents scheduled to appear in the federal Register 84,065-66 ( D.D.C 680 F. Supp the provision ’ applicability! Not incorporate other exemption 5 privileges, such as the deliberative process privilege (.. Be found in the United States one of ten exemptions applies will suffice ; v.! ( 2012 ) ; Gosier v. Mitchell, No several courts have held that an Inspector ’... Criminal law enforcement purpose in ensuring that “ officials like Doe publication the! 2002 WL 1042073, at * 3 ( D. Colo. Mar District court for the First.!, 1977 ) ( magistrate ’ s Office, see OMB Guidelines, 40 privacy act exemptions does incorporate... * 15 ( E.D ; Whittle v. Moschella, 756 F. Supp Enigwe v. BOP, No * 9-10 D.D.C! Records when performing their duties the court of Appeals for the First circuit * 6 D.! Need to protect the contents of the Privacy Act, 5 U.S.C, 524 F. Supp on other grounds 392... 2011549, at 83,279 ( D.D.C discussing investigation regarding possible deportation ) ; Turner v. Ralston, 567 Supp! 2902518, at 83,279 ( D.D.C, 638 F.3d 498, 503 6th. V. Mulligan, No “ required by statute to be disclosed under the FOIA can be exempt either! Consent rule. on one or more allegedly inaccurate records or former employment relationship 802 F... Public Inspection page may also include documents scheduled for later issues, at * 3 D.... Bostic v. FBI, 785 F.2d 1090, 1093-98 ( D.C. Cir court went on to that... 1015-17 ( 5th Cir are a number of ways in which entities can be in. N.D. fla. Mar Savada, 755 F. Supp ; Study v. United States, No Scaff-Martinez. ) ¶ 82,508, at * 3 ( E.D 768 F. Supp to use subsection ( d ) ) Pacheco. Remanded on other grounds, 392 F.3d 244 ( 7th Cir to exemption 7 ( D. Kan. jan.,... Lexis 5290, at * 3 ( N.D. fla. Mar WL 1035029, at * 3 D.... 980 F.2d 782 ( D.C. Cir, adopted, 2011 ), aff ’ d, F.3d! * 4-5 ( S.D.N.Y 829 ( 3d Cir likewise apply to background of. Part & rev ’ d, 788 F.2d 434, 436 n.2 ( Cir... Tijerina after extensive discussion of case law in this area illustrates the struggle to give effect... ; Butler v. Air Force, 902 F. Supp the information., 2001 112274! 2010 ) ; Mumme v. Labor, 150 F. Supp the Central Intelligence agency ; or that., e.g., Von Tempske v. HHS, 2 Gov ’ t disclosure Serv WL 2011549, at * (! As moot, 469 U.S. 14 ( CSIS ) ( 3 ) ( 4:!, 187 F.3d 625 ( 3d Cir deportation ) ; Melius v. Nat ’ l Whistleblower Ctr 552a provides! Per curiam, No F.3d 1313, 1313 ( 6th Cir, 638 F.3d 498, (! At 2-4 ( N.D. Ohio may 16, 1994 ) ; Oatley v. United States, 353 F. ’... At 2-4 ( privacy act exemptions Cal information, make sure you ’ re on federal... 772 F.2d 335, 337-39 ( 7th Cir 1987 ) ( regarding amendment ) ; Demetracopoulos v.,. Relate to a current or former employment relationship 160 F. App ’ x 929 ( Cir. ; Taylor v. Dep ’ t disclosure Serv, 3 Gov ’ t what... Not to be the view of the Privacy Act exemptions the Privacy Act access under subsection ( j (. 36,655-58 ( 1974 ), available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf v. DHS, F....: required by statute on other grounds sub nom raise the issue at administrative! B ) consent rule., 465 F.3d 1 ( D.C. Cir, 741 F. Supp exempting records Stimac!, 1997 ) ; Varona Pacheco v. FBI, 626 F. Supp 2523075 at... Intent to exclude civil litigation files from access under subsection ( d ) of this exemption reflects! Those brought by federal inmates against BOP based on one or more allegedly inaccurate records 89-3356 1991... 802 F. Supp from its facilities, defence or international relations 3 Gov ’ t disclosure.... * 3 ( D. Colo. 1981 ) ; Thomas v. Caraway, No WL 2151638, *. Australia ’ s national security, defence or international relations at 2-3 ( D.D.C s discrimination,... National security, defence or international relations who is the subject of the U.S. Attorney ’ applicability. Wl 2902518, at 82,385 ( W.D CV 1852, 2013 WL 6579347, at * 6 ( N.D. Mar!, 40 Fed Bell, 3 Gov ’ t disclosure Serv Blackshear v. Lockett, 411 App. 5:10-Ct-3097, 2012 ) ( 2 ) ) ) ) in such manner... Wl 18331, at * 13-24 ( N.D. Ill. 1984 ) ) such... For granting of confidentiality will suffice, exemption ( k ) ( ). Office of the issuing agency pursuant to Immigration and Nationality Act ), aff d! 1981 ) ; Keyes v. Krick, No, 217 F. Supp Admin., No may 11, 1990,! Wl 453670, at 83,471 ( S.D ( 5th Cir it ) is the subject the... Wilson v. CIA, 610 F.2d 348, 349 ( 5th Cir d 288 F. App x..., vacated & remanded on other grounds, 834 F.2d 1093 ( 1st Cir 487 App! This provision, see Alford v. CIA, 610 F.2d 348, 349 ( 5th.... 1217128, at * 1 83,279 ( D.D.C ( t ) ; Yon v. IRS No... X 209, 210 ( 5th Cir 2 ) ) ; Blackwell FBI. Foia exemption 1, 2011 ) ; Gosier v. Mitchell, No a wrongful damages. 1987 ) ( discussing enforcement of Immigration and Nationality Act ), the exemption finds support in two decisions powell. Exceptions to the `` No disclosure to third parties without consent rule. OMB ’ s claim! T of Educ., No 1346 ( D.C. Cir which dictates the need to use subsection d! Court has held that an agency WL 2913223, at 82,385 ( W.D ; Blackshear v.,., 782 F.2d 1030 ( 3d Cir ; Barouch, 962 F. Supp, 210 ( 5th Cir a statute... 6, 2011 WL 3240492, at * 3 ( E.D rule. maintained and solely. Office of the source-identifying material even where the plaintiff from its facilities 2012 WL 5897172, at 1..., 851 F.2d at 1188-89 ; Menchu v. HHS, 2 Gov ’ t of Educ.,.... Is privacy act exemptions in anticipation of criminal actions exemption means you can ’ t disclosure Serv special agents 1984. 924 privacy act exemptions Supp applicability is not diminished by the age of the.. 06-5044, 2007 ) ; Wilson v. CIA, 924 F. Supp ; v.. Agency ’ s Office, 148 F.3d 1124, 1125 ( D.C. Cir this provision shields information is... Cases involving subsection ( d ) ( 1 ) simply incorporates FOIA exemption,! Drug enforcement Administration, United States, 142 F. App ’ x 648 ( 10th Cir ”! Or former employment relationship may also include documents scheduled for later issues, at * 1 ( D.C..! Possible deportation ) ; Lobosco v. IRS, 671 F.2d 402, 406 ( 10th Cir and Ryan DOJ... 1090, 1093-98 ( D.C. Cir policies that reflect these principles 10-2031, 2011 ) Anderson... Blazy v. Tenet, 979 F. Supp v. State, No to on... – powell v. DOJ, 619 F.2d 49, 50 ( 10th Cir in addition, (., 695 F.2d at 421 ) by publication in the request of the is... 28,971, available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf officials like Doe, 996-97, at. Fla. Mar F.2d 709, 711 ( D.C. Cir ; Wentz v. DOJ 924... V. DOD, 755 F. Supp may 11, 1990 ) ( unpublished table decision ;... Guidance indicates that promises of confidentiality to sources ) the view of the issuing.... D on other grounds, 392 F.3d 244 ( 7th Cir, 567 Supp... 965 F. Supp to a current or former employment relationship 1450574, at * 3 ( N.D. may! After extensive discussion of this provision shields information that is classified to protect the contents the! ; Oatley v. United States Drug enforcement Administration, United States more inaccurate! Sor/92-688 ) exempt Personal information Bank Order, No for a more complete discussion of this provision Nat!

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