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:
- National security information which is properly classified;
- Certain internal personnel rules, the disclosure of which would risk
circumvention of a legal requirement;
- Matters specifically exempted by other statute;
- Trade secrets and confidential commercial or financial information
obtained from other persons;
- Certain pre-decisional documents, or ones protected under attorney-
client privilege or as attorney-client work product;
- Records which, if released, would constitute a clearly unwarranted
invasion of personal privacy; and
- 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 to maintain certain personal information about individuals
The rights of individuals to be protected against unwarranted 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:
- The legal authority the agency relies upon in requesting personal information;
- The principal purpose for which the information is intended to be used;
- The routine uses which may be made of such information; and
- 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:
- Intra-agency disclosures to employees who have a “need to know”;
- Where required by the Freedom of Information Act (and only after an appropriate balancing of the individual’s privacy interest vs. public interest);
- Disclosures made in accordance with published “routine uses” of the record;
- In response to proper law enforcement requests;
- In compelling circumstances to protect the health and safety of an individual;
- To Congress, Bureau of Census, National Archives, or GAO; and
- 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.