1989) (“Unlike Vymetalik, this case involves not a job applicant undergoing a routine check of his background and his ability to perform the job, but an existing agency employee investigated for violating national security regulations.”); Cohen v. FBI, No. Indeed, the Court of Appeals for the Seventh Circuit has gone so far as to hold that subsection (j)(2) “‘does not require that a regulation’s rationale for exempting a record from [access] apply in each particular case.’” Wentz, 772 F.2d at 337-38 (quoting Shapiro, 721 F.2d at 218). § 552a), https://www.justice.gov/opcl/ten-exemptions. 12-1478, 2012 U.S. Dist. See 5 U.S.C. However, the agency’s regulation failed to specifically state any reason for exempting the system from amendment and its reasons for exempting the system from access were limited. Consistent with the OMB Guidelines, the Office of Personnel Management has promulgated regulations establishing procedures for determining when a pledge of confidentiality is appropriate. Only a few decisions have discussed this provision in any depth. at 4-6 (D.D.C. LEXIS 17537, at *14-15, 18-19 (D.D.C. 8, 2004); McCready v. Principi, 297 F. Supp. Dec. 14, 1988); see also OMB Guidelines, 40 Fed. Also, the exemption’s applicability is not diminished by the age of the source-identifying material. 1998) (unpublished table decision); Jaindl v. State, No. See, e.g., Fisher v. BOP, No. Before sharing sensitive information, make sure you’re on a federal government site. The .gov means it’s official. Nevertheless, the District Court found subsection (k)(2) to be applicable to one document in the background investigation file because that document was “withheld out of a legitimate concern for national security” and it “satisfie[d] the standards set forth in Vymetalik,” which recognized that “‘[i]f specific allegations of illegal activities were involved, then th[e] investigation might well be characterized as a law enforcement investigation’” and that “‘[s]o long as the investigation was “realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached” the records may be considered law enforcement records.’” Cohen, No. Mar. It construed subsection (j) to permit an agency to exempt only a system of records – and not the agency itself – from other provisions of the Act. Mar. 2011), aff’d per curiam, No. Aug. 2, 2007); Edwards v. Lewis, No. Dec. 22, 2006) (regarding amendment); Cooper v. BOP, No. 23, 2011); Davis v. United States, No. See Vymetalik, 785 F.2d at 1096-98; see also Doe v. FBI, 936 F.2d at 1356 n.12 (noting that subsection (k)(5) would not apply where FBI refused to amend information that had already been disclosed to individual seeking amendment); Bostic, No. In the context of a subsection (g)(1)(B) access claim, the District Court for the Northern District of California has ruled that an agency “is entitled to rely on exemptions promulgated after the dates on which [the plaintiff] made his Privacy Act requests.” Hasbrouck v. Customs & Border Prot., No. Oct. 12, 2009); Foster v. EOUSA, No. Aug. 19, 2010) (magistrate’s recommendation), adopted, 2010 WL 3767112, at *1 (S.D. Doe v. U.S. Civil Serv. 2006); Scaff-Martinez v. BOP, 160 F. App’x 955, 956 (11th Cir. Id. 1979) (regarding access); Barouch, 962 F. Supp. Oct. 15, 1991); Bryant v. CIA, No. . Aug. 19, 1994). 2d 41, 56 (D.D.C. It has also been held that the exemption is not limited to information that would reveal the identity of the source in statements made by those confidential sources, but also protects information that would reveal the source’s identity in statements provided by third parties. Reg. 28,948, 28,974 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 4, 2010) (regarding amendment); Holt v. DOJ, 734 F. Supp. (citing Kimberlin v. DOJ, 788 F.2d 434, 436 n.2 (7th Cir. 2. Protects from disclosure information that has been deemed classified "under criteria established by … 1982))); see also Nazimuddin v. IRS, No. (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. The court concluded that “§ 553(c) is satisfied when a statement of the rule’s basis and purpose is included in the preamble to the Final Rule appearing in the Federal Register.” Id. 29, 2011) (regarding amendment), aff’d, 507 F. App’x 649 (9th Cir. ; accord OMB Guidelines, 40 Fed. Tex. 94-1898, 1995 U.S. App. For source material acquired prior to the effective date of the Privacy Act, an implied promise of confidentiality will suffice. LEXIS 14006, at *9-12 (D. Conn. Aug. 18, 1998) (citing Martin and Smiertka, infra, for proposition that courts “have interpreted the exemption in accordance with its plain language and have not read the requirements of the attorney work product doctrine into Exemption (d)(5),” and broadly construing subsection (d)(5) to protect report prepared pursuant to ethics inquiry into alleged hiring improprieties, finding “that the fact that the documents at issue were not prepared by or at the direction of an attorney is not determinative in deciding whether Exemption (d)(5) exempts the documents from disclosure”); Blazy v. Tenet, 979 F. Supp. 91-5034 (D.C. Cir. 1091, 1107 (D.P.R. 47, 49 (D.D.C. at 2-3 (D.D.C. 2010) (regarding access); Jordan v. DOJ, No. Fla. Aug. 23, 2010); Banks v. BOP, No. 10-5296, 2011 WL 3240492, at *1 (D.C. Cir. Jan. 23, 2012) (“‘[R]etroactivity’ simply is not implicated, because plaintiff’s claim in essence seeks prospective injunctive relief – an order requiring CBP to turn over information now. McCready v. Nicholson, 465 F.3d 1. 10-694, 2011 WL 1872206, at *3 (D. Or. 2d 65, 66 (D.D.C. at 1460. 2005); Pipko v. CIA, 312 F. Supp. 1995) (finding that Inspector General’s report “pertain[ing] to plaintiff’s grievance against Treasury officials and related matters . 1986); Patton v. FBI, 626 F. Supp. See, e.g., Kates v. King, 487 F. App’x 704, 706 (3d Cir. See Hernandez v. Alexander, 671 F.2d 402, 406 (10th Cir. Contact the Webmaster to submit comments. 93-1701, slip op. Unlike all of the other Privacy Act exemptions discussed below, however, subsection (d)(5) is entirely “self-executing,” inasmuch as it does not require an implementing regulation in order to be effective. Share sensitive information only on official, secure websites. Federal government websites often end in .gov or .mil. See also Doe v. FBI, 936 F.2d 1346, 1351-52 (D.C. Cir. 86-0414, 1987 WL 13958, at *4 (D.D.C. Aug. 2, 2006); Cerralla v. Lappin, No. 1:06 CV 1478, 2007 WL 764026, at *11 (N.D. Ohio Mar. 1995), the Office of the Pardon Attorney, see, e.g., Binion v. DOJ, 695 F.2d 1189, 1191 (9th Cir. 28,948, 28,973 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. 00-5992, 2002 U.S. Dist. 02-4049, 2004 WL 1125919, at *4 (N.D. Ill. Mar. § 552a(j) (regarding final sentence); see also 5 U.S.C. at 16-17 (D.D.C. An important requirement of subsection (j) is that an agency must state in the Federal Register “the reasons why the system of records is to be exempted” from a particular subsection of the Act. 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)”). 2012) (per curiam); Blackshear v. Lockett, 411 F. App’x 906, 907-08 (7th Cir. This exemption covers: (1) material compiled for criminal investigative law enforcement purposes, by nonprincipal function criminal law enforcement entities; and (2) material compiled for other investigative law enforcement purposes, by any agency. 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. 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. 2010) (regarding access); Blackwell v. FBI, 680 F. Supp. 1982). § 552a(d)(5), “nothing in this [Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.”. As much as the Privacy Act does to protect individual privacy, numerous exceptions to it exist. 1416, 93d Cong., 2d Sess. Aug. 9, 1985) (regarding access); Stimac v. Treasury, 586 F. Supp. 2012) (per curiam) (“Indeed, the BOP has exempted its central record system, where an inmate’s PSI is located,” which was used in plaintiff’s sentencing). at 1241. Circuit noted that “some other courts ha[d] indicated in dicta” to the contrary, “[h]aving considered the issue at length [in Tijerina], in which it [wa]s squarely presented, [the Court] declined to follow that view.” Id. 2012) (regarding amendment); Adionser v. DOJ, 811 F. Supp. 1988) (agreeing with Tijerina after extensive discussion of case law and legislative history). . See Shearson v. DHS, 638 F.3d 498 (6th Cir. 1986) (unpublished table decision); Diamond v. FBI, 532 F. Supp. 2d at 189-90 (concluding that “[s]ubsection (d)(5) states that ‘nothing in this section shall allow’ access to information compiled in anticipation of a civil action” and that “[s]ince ‘shall’ is a mandatory word,” the agency had not waived its right to invoke subsection (d)(5)), aff’d in part & rev’d in part on other grounds sub nom. Official websites use .gov Exemption 1: Information that is classified to protect national security. Previous Section Criminal Penalties || Next Section Social Security Number Usage, Peter A. Winn If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed. . 2007) (discussing civil trust fund recovery penalty investigation), aff’d 288 F. App’x 829 (3d Cir. 36,959-60 (1974), reprinted in Source Book at 936-38, available at http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf. Rep. No. 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. Although the issue has not been the subject of much significant case law, the OMB Guidelines explain that the “Provided, however” provision of subsection (k)(2) means that “[t]o the extent that such an investigatory record is used as a basis for denying an individual any right, privilege, or benefit to which the individual would be entitled in the absence of that record, the individual must be granted access to that record except to the extent that access would reveal the identity of a confidential source.” OMB Guidelines, 40 Fed. 77-3033, slip op. Once the threshold requirement is satisfied, it must be shown that the system of records at issue consists of information compiled for one of the criminal law enforcement purposes listed in subsection (j)(2)(A)-(C). In Rosenberg, a district court ordered access to a sentencing transcript contained in the same exempt system of records on the ground that the “proffered reasons are simply inapplicable when the particular document requested is a matter of public record.” 622 F. Supp. To appear in the federal Register 958 ( 5th Cir 353 F. App ’ x 209 210! 18331, at * 3 ( E.D.N.C ( see 5 U.S.C, 734 F. Supp that reflect these principles,... Ga. nov. 26, 2007 WL 1035029, at * 5 ( S.D ; Snyder CIA... Vacated as moot, 469 U.S. 14 ( CSIS ) ( SOR/93-272 ) the Act or practice directly! X 648 ( 10th Cir D. Colo. feb. 25, 1997 ) ; Laroque v. DOJ No... It is an agency disclosure to third parties without consent rule. information collected for continued as well 13. ) appears to permit this superseded by statute to be made automatically F.2d! 436 n.2 ( D.C. Cir required to be maintained and used solely as statistical records list below describes type... 394 F. App ’ x 170, 172 ( 5th Cir 1164, (... ; Makky v. 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