1:06 CV 1478, 2012 WL 398444, at *3 (N.D. Ohio Feb. 6, 2012) (finding, where published routine use required agency first to be “aware of an indication of a violation or potential violation of” law and individual alleged that she had no criminal record, plaintiff “fairly alleges that defendants did not meet the ‘routine use’ exception because the disclosing agency could not have been aware of any wrongful behavior”); Cooper v. FAA, No. (iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days; (H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information; (I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal; (J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency; (K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency; (L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days; (M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations; (N) the total amount of fees collected by the agency for processing requests; and. 619, 631 (E.D. 11, 1996); Ford Motor Co. v. United States, 825 F. Supp. Pontecorvo v. FBI, No. After DOJ v. Reporters Comm. 2017) (noting no allegation that disclosure occurred “for any reason unrelated to the agency’s security check and suitability determination”); Sutera v. TSA, 708 F. Supp. Osborne v. USPS, No. 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. 2d 115, 120-21 (D.D.C. 2002) (finding that in reverse FOIA lawsuit where information regarding government program for protection of livestock using livestock-protection collars already had been released, no personally identifying information about particular ranchers and farmers participating in program “could shed any further light on the workings of the [program],” that information thus was protected by FOIA Exemption 6, and disclosure was prohibited by Privacy Act), aff’d in part, rev’d in part, on other grounds, 380 F.3d 807 (5th Cir. The courts also have concluded that an agency employee has a “need to know” information that could affect national security. Pa. Jan. 20, 2006) (on motion to dismiss, disagreeing with plaintiff that “routine use” should be defined as “the disclosure of a record outside of [DOD]” and explaining that “the ‘routine use’ exception specifically states that disclosure is allowed ‘for a routine use as defined in subsection (a)(7) of [the Act]’”); cf. On the other hand, courts have found consent clauses with narrower terms than the eventual disclosure to be inadequate to authorize that disclosure. Question Description Research your state’s public information disclosure act. On a related point, the Ninth Circuit held in a subsection (b) case that the “single publication rule” applies to postings on an agency’s web site such that “the aggregate communication can give rise to only one cause of action.”  See Oja v. Army Corps of Eng’rs, 440 F.3d 1122, 1130-33 (9th Cir. pertaining to [plaintiff]” constituted consent for FBI to disclose “that it had records which were responsive to the request for records and that records were contained in the ‘PENTBOMB’ investigation”); United States v. Rogers, No. Rec. 1999) (unpublished table decision). 11-2017, 2013 WL 647300, at *5 (D. Kan. Feb. 21, 2013) (noting that Privacy Act was not intended to limit Federal Rules of Civil Procedure and stating “this court typically approves protective orders directing the release of information coming within the protections of the Privacy Act”); Nguyen v. Winter, 756 F. Supp. at 764-71. 13-CV-61411, 2016 WL 3646858, at *2-6 (S.D. 2000) (describing review of plaintiff’s personnel file by immediate supervisor in connection with supervisor’s “continuing duty to make sure that [plaintiff] was worthy of trust” because of “a need to examine the file in view of the doubts that had been raised in his mind about [plaintiff] and [plaintiff’s] access to the country’s top secrets”); Britt v. Naval Investigative Serv., 886 F.2d 544, 549 n.2 (3d Cir. Cf. Oct. 25, 2004) (concluding that “disclosure [by DOD investigator hired by EPA] of the plaintiff’s records concerning drug testing schedules and test results to AUSA . Reg. A. (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. The D.C. Id. 22, 1982) (discussing disclosure of questionable income tax returns prepared by professional tax preparer while he was IRS employee to IRS examiners for purpose of alerting them to possible irregularities);  Code v. Esper, 285 F. Supp. 1989); Howard v. Marsh, 654 F. Supp. Dec. 5, 1983) (addressing alternative argument, stating that:  “Implied consent is never enough” as the Act’s protections “would be seriously eroded if plaintiff’s written submission of [someone’s] name were construed as a voluntary written consent to the disclosure of her [medical] records to him”); cf. at 774-75. Reg. (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. at 10-11 (D.D.C. 1987) (noting the record lacked an indication that FBI, United States Probation Office, AUSA, and BOP made a written request for records); Stafford v. SSA, 437 F. Supp. . However, the Court of Appeals for the District of Columbia Circuit clarified that some disseminations of protected records to individuals with prior knowledge of their existence or contents are “disclosures” under the Privacy Act. and holding that individual clearly has protected privacy interest in avoiding disclosure of his whereabouts to third parties; disclosure of this information would not “contribute anything to the public’s understanding of the operations or activities of the government”; and thus any information was exempt from disclosure under FOIA Exemption 7(C) and does not fall within Privacy Act exception (b)(2)); FLRA v. Commerce, 962 F.2d 1055, 1059 (D.C. Cir. CA 10-0352, 2011 WL 1838882, at *3-5 (S.D. Further, a disclosure under the Privacy Act “may be either the transfer of a record or the granting of access to a record.”  OMB 1975 Guidelines, 40 Fed. . 36,967 (1974), reprinted in Source Book at 958, https://www.​justice.gov/opcl/paoverview_sourcebook (recognizing propriety of “need to know” disclosures between DOJ components); see also Dick v. Holder, 67 F. Supp. 548, which is classified principally to chapter 34 (§ 1311 et seq.) Co., No. . . 1, 8-9 (D.D.C. . Regarding actionability, however, the United States Court of Appeals for the District of Columbia Circuit has required that a record actually be retrieved. The court explained that “Congress enacted the Privacy Act as a limitation on the sharing of private information among government agencies to further what it determined was an important public policy” and stated that “[t]he Court cannot create an exception to a federal statute based on state policy.”  Id. 1:11cv46, 2011 WL 4478686, at *7 (E.D. 30, 2011); Mudd v. Army, 2007 WL 4358262, at *5 (finding no “disclosure” where, inter alia, agency had posted statement on its web site, newspapers had referred to letter, plaintiff had testified before Congress regarding letter, and the entire report had been released to the press and in a news conference by another agency); Smith v. Cont’l Assurance Co., No. Zahedi v. DOJ, No. FOIA Exemptions National Security: FOIA exemption (1) covers records which are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order. 1990) (per curiam); cf. Ala. May 13, 2011) (citing Laxalt in determining relevance of personnel files); Bosaw v. NTEU, 887 F. Supp. 762, 767 (D.R.I. App. Va. Sept. 23, 2011) (finding disclosure of personnel records about plaintiff, a nurse, to state nursing board, HHS, and other healthcare reporting entities fell within routine use); Alexander v. FBI, 691 F. Supp. 99-2725, slip op. A request for records under the subsection (b)(7) exception must be for civil or criminal law enforcement purposes. 1979); Harper v. United States, 423 F. Supp. Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. (D) The Chief FOIA Officer of each agency. 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. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. (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. The Court of Appeals for the Second Circuit in Devine v. United States, held that the unsolicited disclosure of an Inspector General letter to a congressional subcommittee chairman and member fell “squarely within the ambit of § 552a(b)(9),” and rejected the appellant’s argument that subsection (b)(9) should not apply if the government agency knew or should have known that the information would eventually be released to the public. 2009) (discussing disclosure of information regarding employee’s mental state, collected for purpose of coordinating his reasonable accommodation request, to state unemployment commission and to contractor to determine employee’s eligibility for benefits); Benham v. Rice, No. The court stated that “common usage” of the word would require simply that “a proposed disclosure would not actually frustrate the purposes for which the information was gathered.”  USPS, 9 F.3d at 144. 70.02.040. that disclosure constitutes a separate and distinct publication – one not foreclosed by the single publication rule – and [the agency] might be liable for a separate violation of the Privacy Act.”  Id. (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. La. . 2d 199, 207 (D.D.C. (See definition of “department” and “agency” in section 6 of this title.). 2013) (finding that plaintiff “adequately allege[d] that the disclosure regarding his EEO complaint was not on a ‘need to know’ basis for the employees to perform their duties”); Bigelow v. DOD, 217 F.3d 875, 879 (D.C. Cir. 612, 614 (“[It] has never been suggested that the Privacy Act was intended to serve as a limiting amendment to . 1980); Garraway v. Ciufo, No. (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. (Afrikaans text signed by the State President.) Okla. Sept. 12, 2007) (dismissing claim of improper disclosure under subsection (b) in spite of evidence suggesting agency’s employee had unauthorized access to plaintiff’s personnel file, because agency had complied with all safeguards of Privacy Act, and had not acted intentionally or willfully to disclose, defined as “to ‘open up,’ ‘to expose to view,’ or ‘to make known, . (6) Not less frequently than annually, the Office of Government Information Services shall conduct a meeting that is open to the public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements at the meeting. June 6, 2017); Meyer v. United States, No. 2003), the district court looked to subsection (b)(11) and held that State Farm “properly obtained” an order from the state court for release of plaintiff’s medical records where “plaintiff’s medical condition was relevant to the litigation.”  The court upheld the Department of Veterans Affairs’ “determination that plaintiff’s records were subject to release based on the court order.”  In upholding the district court’s decision, the Court of Appeals for the Fifth Circuit specifically stated that the medical records were “released pursuant to the exception for orders of a court of competent jurisdiction contained in 5 U.S.C. 1986); FDIC v. Dye, 642 F.2d 833, 836 (5th Cir. In Krohn, the court invalidated an FBI routine use allowing for “dissemination [of records] during appropriate legal proceedings,” finding that such a routine use was impermissibly “vague” and was “capable of being construed so broadly as to encompass all legal proceedings.”  In response to Krohn, OMB issued guidance to agencies in which it suggested a model routine use – employing a “relevant and necessary to the litigation” standard – to permit the public filing of protected records with a court. Cal. 1992) (asserting that Privacy Act prohibits disclosure of identities of individuals who received outstanding or commendable personnel evaluations, as such information falls within FOIA Exemption 6); Doe v. Veneman, 230 F. Supp. La. Mar. . See OMB 1975 Guidelines, 40 Fed. 19-mc-91091, 2019 WL 6117145 (D. Mass. 3d 342, 347 (D.D.C. See Laningham v. Navy, No. . Mar. 2d 1113, 1121 (N.D. Cal. According to OMB 1975 Guidelines, the individual about whom records are disclosed “need not necessarily be the individual whose health or safety is at peril; e.g., release of dental records on several individuals in order to identify an individual who was injured in an accident.”  40 Fed. Although initially agencies published broad routine uses, they have been narrowed since the District Court for the District of Columbia issued its decision in Krohn v. DOJ, No. Dec. 7, 2015) (discussing disclosure of report containing allegations about plaintiff by SSA employee who had duty “to ‘report threats and harassment against the agency’” to DHS), adopted by 2016 WL 81577 (E.D. 2d 141, 155 (D.D.C. However, there are … 2d at 318 (concluding, despite plaintiff’s assertion that agency’s “statement that he failed a drug test violated the Privacy Act,” that “[TSA Disciplinary Review Board] officials, the Medical Review Officer, and the deciding official are all agency employees responsible for making employment decisions regarding plaintiff” and “[t]heir communications are within the Privacy Act’s ‘need-to-know’ exception”); Thompson v. State, 400 F. Supp. 1985) (finding routine use exception applied to disclosure of criminal investigative records to judicial committee investigating judge); United States v. Miller, 643 F.2d 713, 715 (10th Cir. Sch. 83-0389, 1983 U.S. Dist. § 552a(b)(6) - National Archives, 7. . Yet, the Plaintiff supplied his SSN. See Sheetz v. Marti, No. Write a 1-2 page paper comparing your states public information disclosure act to the freedom of information act. Some, but not all, courts of appeals have required agencies to invoke the routine use disclosure exception to disclose certain records to unions. 19, 2013) (ordering disclosure under protective order and stating that “government may redact documents only to remove information relating to third parties who are private individuals and who are unrelated to plaintiff and her claims (relating to her challenge of being placed on government watch lists”). at 1545. at 2-3 (N.D. Ohio Dec. 14, 1979). 2d 113, 123-24 (D.D.C. L. 107–347, set out as an Effective Date note under section 3601 of Title 44, Public Printing and Documents. Assented to 2015-06-18. Pa. 2018); Ala. & Gulf Coast Ry. 725 F.2d at 1413 (dictum). . 2, at 1, https://www.justice.gov/oip/blog/foia-update-president-issues-privacy-act-related-memorandum-all-federal-agencies (providing summary of executive memorandum). . 16-2411, 2017 WL 735750, at *4 (D. Kan. Feb. 24, 2017) (citing Laxalt and noting that requested information “is not only relevant to this action, it is potentially essential” and thereby, required to be disclosed, but parties were encouraged to address further privacy issues through protective order); Jackson v. Safeco Insurance Co. of Ill, No. L. 96–349 provided for punishment and removal from office of an agent of the Department of Justice as defined in the Antitrust Civil Process Act for disclosure of confidential information. Information Regulations explain that public authorities are obliged to publish certain information about their activities and members of the public are also entitled to request information from public authorities. 06-00545, 2013 WL 1703367, at 6 (N.D. Cal. (even where it believes that disclosure would be in furtherance of good public policy generally), it may not balance in favor of disclosure under the FOIA and therefore disclosure will be prohibited under the Privacy Act – unless authorized by another Privacy Act exception or by written consent. § 552(b)(3); Trade secrets and commercial or financial information obtained from a person and privileged or confidential, 5 U.S.C § 552(b)(4); Nov. 28, 2006) (finding plaintiff’s argument alleging improper access of information irrelevant to (b)(1) analysis; “What matters then is the ‘need to know’ of the agency official who received the disclosure, not the authority of the agency official who made the disclosure.”); Gill v. DOD, 92 M.S.P.R. at 7 (C.D. § 552a(b)(10) - Government Accountability Office, https://www.justice.gov/opcl/paoverview​_sourcebook, https://www.justice.gov/​paoverview_omb-83-dca. Oct. 25, 2004) (finding that disclosure of plaintiffs’ drug testing schedules and results by EPA OIG to an EPA-hired DOD investigator did not violate Privacy Act because “according to the OMB 1975 Guidelines, an agency that hires a member of another agency to serve in a temporary task force or similar, cross-designated function can share otherwise protected information with that hired person and still satisfy exception (b)(1)”); OMB 1975 Guidelines, 40 Fed. Va. 1981); cf. 192, 197 (D.S.C. § 552a(b)(4). Pa. Apr. 2. Policy: Disclosure of Records and Freedom of Information Act (FOIA) PURPOSE. 1977) (suggesting that state court can order state prosecutor to subpoena federal records for purpose of disclosing them to criminal defendant in discovery). For a discussion of this provision, see OMB 1975 Guidelines, 40 Fed. (B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3). . This (b)(11) court order exception – like the subsection (b)(3) routine use exception – has generated a great deal of uncertainty due to its lack of guidance on what constitutes an “order of a court” and a “court of competent jurisdiction.”  Unfortunately, neither the Act’s legislative history nor the OMB 1975 Guidelines shed light on either of these meanings or illuminate whether there are specific requirements one must meet to rely on this exception. 1986) (applying doctrine of “equitable estoppel” to bar individual from complaining of disclosure of his record to congressmen “when he requested their assistance in gathering such information”) (distinguished in Swenson v. USPS, 890 F.2d 1075, 1077-78 (9th Cir. 2000) (recognizing superiority of First Amendment rights and observing that there is “critical distinction between disclosures in the attorney-client context and public disclosures,” and pointing to attorney’s “willingness to enter into a protective order” as relevant to balancing of “the employee’s interests in communication with the government’s interests in preventing communication” where information that employee wished to disclose to his private attorney was covered by Privacy Act). . Secure .gov websites use HTTPS This book contains: - The complete text of the Disclosure of Records or Information (US Administrative Conference of the United States Regulation) (ACUS) (2018 Edition) - A table of contents with the page number of each section 2d 1325 (M.D. 1989) (noting propriety of disclosure of investigative report to commanding officer “since the Reserves might need to reevaluate Britt’s access to sensitive information or the level of responsibility he was accorded”); Williams v. Reilly, 743 F. Supp. § 552a(b)(7). SUGGESTIONS FOR DISSEMINATION . But cf. (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), if that statute--, (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or, (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and. . 2d 169, 187 (E.D.N.Y. Tex. See generally U.S. Dep’t of Justice, Off. . does not provide information shedding light on how the BIA is performing its duties,” and that “[h]aving determined that disclosure of the information is not required by FOIA . See the additional discussion under “5 U.S.C. . Ill. July 16, 1990) (holding disclosure of investigative report to persons at arbitration hearing is proper under routine use permitting disclosure of “record relating to a case or matter” in “hearing in accordance with the procedures governing such proceeding or hearing”). Thompson v. State, 400 F. Supp. 809 F.2d at 888-90; see also, e.g., Pa. v. Navient Corp., 348 F. Supp. See 120 Cong. 4:12-cv-00628, 2013 WL 5816632, at *2 (D. Idaho Oct. 28, 2013) (finding that either standard of “relevancy” or standard “balancing the need for the disclosure against the potential harm to the subject of the disclosure” was met and that harm to third-parties is limited since request is “narrowly circumscribed to involve only their performance reviews and documents pertaining to any investigation surrounding their termination” and that protective order would ensure confidentiality of information); Hall v. Hous. Consumer Coverage Disclosure Act Information: (312) 793-2800 Contact email – DOL.ConsumerCoverageDisclosure@illinois.gov. 1992) (alternative holding) (en banc) (holding that release to union of home addresses of bargaining unit employees pursuant to routine use was required under Federal Service Labor-Management Relations Act). The Department of Justice has delegated record-requesting authority to the “head of a component or a United States Attorney, or either’s designee.”  28 C.F.R. Courts generally have held that routine use disclosures to further an investigation or enabled the receiving or disclosing agency to fulfill its mission are “compatible” disclosures under the routine use disclosure exception. 16, 2020) (records that might otherwise be protected by the Act may still be discovered through litigation if ordered by a court); Lightsey v. Potter, No. Va. July 24, 2000), aff’d in part, rev’d in part & remanded, on other grounds sub nom. 1987); Citizens Bureau of Investigation v. FBI, No. Where the routine use exception is unavailable, an agency should obtain a subsection (b)(11) court order permitting such public filing. For further discussion of the meaning of “disclosure” of records, see the “Definitions, Systems of Records and Disclosures under Subsection (b)” section above. 1988) (discussed in detail above under exception, “5 U.S.C. The most appropriate method of disclosure in this situation may be pursuant to a subsection (b)(11) court order. § 552, a disclosure statute, provides that every person has the right to request access to federal agency records or information. Lohrenz v. Donnelly, 187 F.R.D. Recognizing this difficulty, the OMB 1975 Guidelines advise that “disclosures, which are in effect congressionally mandated ‘routine uses,’” should be deemed “routine uses” under subsections (e)(11) and (e)(4)(D). Courts have held that a protective order limiting discovery under the Federal Rules of Civil Procedure is a proper procedural device for protecting records under the court order disclosure exception. (5) 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. (D) Except as provided in subsection (b), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available. Based on section 176b of title 15, U.S.C., 1940 ed., Commerce and Trade; section 216 of title 18, U.S.C., 1940 ed. Confidentiality - The obligation to protect identity and privacy . (A) without charge, license, or registration requirement; (B) in an aggregated, searchable format; and. Modern Select Ins. Section 24 in The Right To Information Act, 2005 5. denied sub nom. 2007) (agreeing with Quinn and concluding that “the unqualified language of the Privacy Act,” which protects individual’s “criminal . Cal. of Info. Wis. 2003) (“defin[ing] the term ‘disclose’ to mean the placing into the view of another information which was previously unknown”); Barry v. DOJ, 63 F. Supp. Implied consent, however, is insufficient. Patient authorization of disclosure — Health care information — Requirement to provide free copy to patient appealing denial of social security benefits. 91-C-0963, 1991 WL 164348, at *5 (N.D. Ill. Aug. 22, 1991); King, 471 F. Supp. 730, 736-39 (E.D. Tex. 552a(b)(3) - Routine Uses”). ..... 27 53. 15, 2010) (finding that even though records were maintained by Veterans Administration (“VA”), where plaintiff had been ordered in discovery to produce her mental health records in her emotional distress suit, there would be no improper disclosure to an ‘unauthorized party’ because “the VA will disclose Plaintiff’s mental health records to her, so that she can transmit copies of them to defense counsel”).

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