Release Of Information Under the Freedom of Information and Privacy Acts (FOIA)

The Freedom of Information Act.  The Freedom of Information Act (FOIA) provides that any person has a right of access to federal agency records, except to the extent that such records are protected from disclosure by specific, enumerated exemptions.

Enacted in 1966, the FOIA established for the first time an effective right, based in statute (5 U.S.C. § 552), of access to government information.  Principles of government openness and accountability underlie the FOIA.  As stated by the Supreme Court:

    “The basic purpose of FOIA is to ensure an informed citizenry, vital
     to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

Society’s strong interest in an open government can conflict with other important interests of the general public -- such as the public’s interest in the effective and efficient operations of government; in the prudent governmental use of limited resources; and in the preservation of the confidentiality of sensitive personal, commercial, and governmental information.  The FOIA attempts to balance these interests, and allows federal agencies to exempt from disclosure:

1. National security information which is properly classified;

1. Certain internal personnel rules, the disclosure of which would risk

circumvention of a legal requirement;

1. Matters specifically exempted by other statute;

1. Trade secrets and confidential commercial or financial information

obtained from other persons;

1. Certain pre-decisional documents, or ones protected under attorney-

client privilege or as attorney-client work product;

1. Records which, if released, would constitute a clearly unwarranted

invasion of personal privacy; and

1. Certain records compiled for law enforcement purposes.

Federal agencies are required to publish rules of procedure to assist the public in making FOIA requests.  Generally, a FOIA request must be in writing, cite to FOIA as authority for the request, reasonably describe the record sought, and indicate either a willingness to pay processing/duplication fees or an explanation as to why a fee waiver would be appropriate.  FOIA requests should be sent to the agency or organization believed to be in possession of the record.  The FOIA provides federal agencies 20 working days in which to respond to requests, however due to the complexity of certain requests or a backlog of FOIA requests within certain agencies, final release determinations are sometimes delayed past this time period.  Adverse release determinations may be appealed.

More detailed guidance on submitting FOIA requests to the Department of Defense or the military services can be found at:

    Department of Defense:  Title 32, Code of Federal Regulations, Parts 285, 286

    Department of the Army:  Title 32, Code of Federal Regulations, Part 518

    Department of the Navy:  Title 32, Code of Federal Regulations, Part 701

    Department of the Air Force:  Title 32, Code of Federal Regulations, Part 806

Most federal agencies now maintain FOIA information on public web sites (for DoD and the military services, see www.defenselink.mil).

The Privacy Act.  The Privacy Act (PA)  of 1974 (5 U.S.C. §552a)  regulates the collection, maintenance, use, and dissemination of personal information held by federal agencies.

The purpose of the PA is to balance:

    Government’s bona fide need                                           The rights of individuals to be
    to maintain certain personal                       versus             protected against unwarranted
    information about individuals                                           invasions of privacy

 The PA focuses on 4 basic objectives:

    1.  To establish a code of “fair information practices.”    The PA requires that
     federal agencies only maintain such information about an individual as is
     relevant and necessary to accomplish an authorized agency purpose.  Each
     individual who is asked to provide personal information must, in writing, be
     informed of:

1. The legal authority the agency relies upon in requesting personal information;

1. The principal purpose for which the information is intended to be used;

1. The routine uses which may be made of such information; and

1. Whether providing information is mandatory or voluntary and the effects, if any, of not providing the information requested. 

2.  To grant individuals the right to access to agency records maintained on
      themselves.  If an agency maintains a “system of records” in which personal
      information is maintained and accessible through use of a personal identifier
      (e.g., name or social security number), notice of the system must be published
      in the Federal Register.   In this notice, agencies describe the categories of
      individuals who may have personal information contained therein, the types
      of records that may be present, as well as the purpose and routine uses of
      system files.  Notices also contain procedures on how individuals request
      copies of, or access to, any files about themselves.  Certain exemptions may
      apply (e.g., law enforcement records may not be accessible).  In addition to
      periodic publication in the Federal Register, the National Archives and
                  Records Administration (NARA) maintains a compilation of agency PA
                  issuance at www.nara.gov.

3.  To grant individuals the right to seek amendment of agency records
     maintained on themselves.  If an individual believes that information is not
     accurate, relevant, timely, or complete, he/she may request amendment of
     his/her own record.  The agency must either make any requested correction
     or inform the individual of its refusal and procedures for appeal.

4.  To restrict disclosures of personal information to third parties.   Generally,
     federal agencies may not release personal information contained or originating
     from its records to anyone besides the individual to whom the record relates,
     unless that individual provides prior written consent.  The PA does allow
     certain nonconsensual disclosures to third parties in limited circumstances,
     including:

1. Intra-agency disclosures to employees who have a “need to know”;

1. Where required by the Freedom of Information Act (and only after an appropriate balancing of the individual’s privacy interest vs. public interest);

1. Disclosures made in accordance with published “routine uses” of the record;

1. In response to proper law enforcement requests;

1. In compelling circumstances to protect the health and safety of an individual;

1. To Congress, Bureau of Census, National Archives, or GAO; and

1. In response to a court order.

            The PA requires agencies to maintain an accurate accounting for each of the above  
    disclosures (except intra-agency releases), a copy of which may be requested by the
    individual to whom the record relates.