OIP Guidance

Privacy Protection Considerations

Although determinations made under the Freedom of Information Act of the extent to which personal privacy can be protected generally require an individualized case-bycase analysis, there are two particular types of requests for personal information which can consistently be handled according to general guidelines. Both such types of requests for personnel information regarding federal employees and for the current home addresses of private citizens can be made of virtually every federal agency.

As all agencies maintain personal information about their employees in personnel files, the need to make consistent disclosure determinations with respect to such information is universal. Under Office of Personnel Management regulations, certain basic information on most federal employees must routinely be made available to the public: (1) name; (2) present and past position titles; (3) present and past grades; (4) present and past salaries; and (5) present and past duty stations, including specific location details such as room number. See 5 C.F.R. §294.702(a)(1982). (OPM will soon propose, in a new Part 293, slight revisions of two of these basic items and the addition of an item covering position descriptions and performance elements and standards.)

Further, it is the policy of the Department of Justice, in light of prevailing FOIA case law, to release additional items of information in personnel files, particularly pertaining to the professional qualifications of federal employees. Such information generally disclosed includes post-graduate or technical education in preparation for the employee's profession; all prior employment in State or Federal Government positions; prior employment in the private sector related to an employee's duties; awards and honors received; and membership in professional groups.

The Department of Justice further endorses release of the fact of recommendations for promotions, appointments or reassignments; letters of commendation from professional associates and colleagues; appointment affidavits and oaths of office; and creditable service for leave purposes.

Information which should be withheld from third parties pursuant to Exemption 6 generally pertains to an employee's personal life and family status. Matters capable of causing embarrassment and/or harassment and which are not pertinent to the employee's duties should also be protected under Exemption 6. Such privacy interests specifically include, but are not limited to, place and date of birth; age; marital status; home address and telephone number; medical records; details of health and insurance benefits; the substance of promotion recommendations; supervisory assessments of professional conduct and ability; information concerning or provided by relatives and references; prior employment not related to the employee's occupation; primary, secondary and collegiate education; allegations of misconduct or arrests; and military service number and Social Security number.

Such delineations are based upon the principle that the public is entitled to information that generally pertains to the qualifications for and the performance of federal employment, but that federal employees are as fundamentally entitled to privacy protection as are members of the public. They are recommended for all federal agencies.

Requests for access to agency records reflecting the current home addresses or whereabouts of third parties are frequently made by estranged family members or local authorities who need to locate people urgently. (See, e.g., "FOIA Focus," page 7.) In responding to such requests, a number of factors should be taken into consideration.

First, the way in which the address was obtained and the form in which it is maintained must be considered. Either

may trigger the application of a particular statute precluding the release of the information under Exemption 3 of the FOIA. For example, if the address originated as IRS information it likely would have been taken from the individual's tax return and would be prohibited from disclosure under the Tax Reform Act of 1976, 26 U.S.C. §6103. Another example is an address derived from a claim for veteran's benefits; access to such information is restricted by 38 U.S.C. §3301. (It is important to note, however, that both statutes provide for release of personal information to local courts or other authorities in certain situations, such as child support cases. See, e.g., 26 U.S.C. §6103(1)(6); 38 U.S.C. §3301(b), (f)).

Traditionally, third party requests for access to addresses have been denied on the basis of FOIA Exemption 6. However, Exemption 6, perhaps more than any other FOIA exemption, permits agencies broad discretion in determining whether access is appropriate. After discerning the magnitude of the invasion of privacy which would be expected to result from a requested disclosure, a determination of any possible public benefit must be made. In this context, for example, there is a high degree of public interest in cases in which requesters seek information for child support purposes, in that the public will be benefited overall if parents support their children. Likewise, of course, agencies should be as responsive as possible to particularly urgent requests received from police or hospital authorities. Requests based upon assertions of this type of critical need, when accompanied by showings sufficient to enable agency employees to verify them, should be honored as a matter of policy.

Moreover, even where release of an address is prohibited by statute or outweighed by privacy interests, a letter or some similar type of notification to the individual sought may satisfactorily resolve the request. Some agencies routinely forward such request letters, while others send letters of their own. Under either procedure, an agency can give persons sought an opportunity to contact the requesters, while still affording them continued freedom from unwanted intrusions on their privacy.

(cont'd from page 3)

by disclosure. Such interests of course include any commercial interest, as well as the interests of first-party requesters in records pertaining to themselves and the interests of parties seeking records for use in litigation. See, e.g., Dorta v. Federal Bureau of Investigation, 3 GDS ¶82,349 (D.D.C. 1982). It is necessary to assess the magnitude of any such personal interest, and then to compare it with that of any discernible public benefit, because a fee waiver or reduction is appropriate under the statute only where the benefit to the general public is primary. See Eudey v. Central Intelligence Agency, 478 F. Supp. 1175, 1177 (D.D.C. 1979); Rizzo v.

FOIA Counselor

Tyler, 438 F. Supp. at 900.

In conclusion, we again urge agencies to conduct thorough reviews of all fee waiver requests, on a case-by-case basis, and to grant waivers or reductions only in those cases in which the requester establishes that the disclosure of the information will primarily benefit the general public. Only then can the public be assured that government agencies are honoring the Congressional mandate to disclose records at reduced or no charge where their release primarily benefits the general public, while in other cases preventing "a drain upon agency appropriations that Congress never intended." Blakey v. Department of Justice, 549 F. Supp. at 365.

Fee Waiver Procedural Considerations

The above fee waiver policy statement by Assistant Attorney General Rose sets forth the substantive criteria according to which agencies should make fee waiver decisions under the Freedom of Information Act. The development and application of a comprehensive fee waiver policy requires that attention be given to a number of related procedural considerations as well.

Fee Reductions-First and foremost, agencies must remember that the statutory fee waiver language speaks of the "waiver or reduction" of fees. 5 U.S.C. §552(a)(4)(A). Accordingly, an agency may in some instances determine that a complete fee waiver is not appropriate and may grant a reduction of fees instead. For example, a requested file may contain information which is only partly of interest and value to the general public. In such a case, rather than deny a fee waiver, the agency may grant a fee reduction in an amount commensurate to the valuable portion of the file. Agencies have broad discretion to grant percentage fee reductions where there is substantial, but not total, satisfaction of the first four substantive criteria. It should be remembered, however, that the fifth criterion is absolute: neither a waiver nor a reduction is appropriate unless the primary benefit from disclosure is to the general public (ie. the public benefit must outweigh any personal benefit). Multiple Requests-Because of the broad discretionary authority vested in agencies in this area, as well as the differences among records and requesters, a decision to waive or reduce fees for records pertaining to a particular subject area should not necessarily establish a precedent for future fee waiver requests. For example, an agency may grant a fee waiver for certain records, but if this waiver is followed by a request for other documents which the requester claims will be used for the same research, the initial determination that the research subject was of legitimate public interest does not mandate an automatic fee waiver for the follow-up request. Rather, the documents sought in subsequent requests must be subjected to the same scrutiny as the records for which a waiver was granted. A similar approach is appropriate when a requester seeks related records from several different agencies; although one agency may grant a fee waiver, the records of another agency may not necessarily be of sufficient character to warrant a waiver.

On occasion, requesters seek fee waivers for records which were disclosed in response to a prior request. However, the public benefit to be gained through release to a second requester may be significantly diminished by the fact that the records are already in the public domain as a result

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of the previous disclosure. Should the records pertain to a subject of significant and continuing interest, an agency may elect to make such records available in its public reading room. Similarly, where there are simultaneous requests for records of public interest, agencies have the option of making the records available to all requesters for inspection and copying rather than giving any one requester his own copy of the records at no cost.

Search Fees When a waiver of search fees is sought, an agency should consider the request according to the five criteria outlined above. In many cases, however, an agency will be unable to determine the extent to which responsive records exist, or their substantive value, until a search is completed. Therefore, in evaluating applications for waivers of search fees, the likelihood that no disclosable records of value will be found-resulting in no benefit to the general public-should be factored into the determination.

Administrative Appeal - While the FOIA does not specifically provide for administrative appeals of denials of requests for fee waivers, many agencies, either by regulation or by practice, appropriately consider appeals of such actions. The standard of review on administrative appeal should be that of de novo review: the request should be re-examined in the light of criteria described above. When an agency at the initial level has denied a request for the waiver of fees, it usually does not commence the search for or processing of documents until it receives payment or a promise to pay. In such instances, however, a requester may make the required payment while still preserving his right to administratively appeal the fee waiver denial. If a requester ultimately prevails in his administrative appeal, fees previously paid will be reimbursed.

Administrative Record-When a fee waiver issue is brought to court, it is reviewed on the administrative record according to whether the agency's denial was "arbitrary and capricious." It is therefore imperative that agencies maintain complete administrative records of all full and partial fee waiver denials, which should include all relevant memoranda and correspondence. The primary focus of any judicial review will of course be the agency's final denial letter, which should state with specificity the reasons for the denial.

In sum, an agency which applies the substantive criteria of the Department of Justice's fee waiver policy statement, together with the procedural guidance highlighted here, can be confident that its overall fee waiver policy is in conformity both with the statute and with sound administrative practice.

FOIA UPDATE

January 1983

OIP Guidance

The Privacy Act and FOIA Exemption 3

Perhaps one of the most controversial and certainly one of the most difficult issues to arise under the Freedom of Information Act in recent years is whether the Privacy Act of 1974, 5 U.S.C. §552a, can serve as a nondisclosure statute under Exemption 3 of the FOIA.

The Privacy Act authorizes an individual to obtain access to those federal records maintained and retrievable under the individual's name or personal identifier, subject to certain broad, system-wide exemptions. See, e.g., Privacy Act Exemption (j)(2), 5 U.S.C. §552a(j)(2) (criminal law enforcement file system exemption). If such a systemic exemption in the Privacy Act is regarded as an Exemption 3 statute, records exempt from disclosure to first-party requesters under the Privacy Act are also categorically exempt to them under the FOIA. If it is not, then requesters would be able to obtain information on themselves under the FOIA despite the fact that such information is exempt from disclosure to them under the Privacy Act.

Pre-1981 Law and Practice

Over the past several years, the federal courts, as well as the Department of Justice, have struggled with this difficult issue. Initially, the Department of Justice did not advocate the Privacy Act as an Exemption 3 statute. However, during 1979-1980, three circuit courts of appeals indicated with varying degrees of authoritativeness that the Privacy Act should be regarded as such in the context of a first-person request. See Duffin v. Carlson, 636 F.2d 709, 711 (D.C. Cir. 1980) (dictum); Painter v. Federal Bureau of Investigation, 615 F.2d 689, 690-91 (5th Cir. 1980); Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied sub nom. Terkel v. Webster, 444 U.S. 1013 (1980). Stated another way, this position is that the Privacy Act is intended to be the exclusive vehicle for first-person access to federal records retrievable under an individual's name. Of course, any information not exempt under the Privacy Act would not be affected by this position.

The Greentree Case

In 1981, in Greentree v. United States Customs Service, 515 F. Supp. 1145, 1147-49 (D.D.C. 1981), District Court Judge John Lewis Smith, Jr., of the United States District Court for the District of Columbia, ruled squarely that Privacy Act Exemption (j)(2) triggers FOIA Exemption 3, even though that position was not advocated by the Department of Justice. After a thorough reexamination of the issue, the Department of Justice reversed its position on the Privacy Act/Exemption 3 defense, observing that its adoption could yield considerable administrative savings to agencies maintaining criminal law enforcement records, and it defended Judge Smith's decision on appeal.

However, last year the U.S. Court of Appeals for the District of Columbia Circuit reversed that decision, holding that the Privacy Act does not qualify as an Exemption 3 statute, Greentree v. United States Customs Service, 674 F.2d 74, 89 (D.C. Cir. 1982). Rather than seek further

Spring 1983

review of the D.C. Circuit's decision in Greentree, the Solicitor General instead determined to await further development of the issue in the eleven other judicial circuits. See FOIA Update, June 1982, at 8.

The Developing Law

Indeed, the law on this issue is now developing well in other circuits, where every court to rule on the issue has concluded, contrary to the D.C. Circuit's decision in Greentree, that the Privacy Act is an Exemption 3 statute. See Porter v. United States Department of Justice, 551 F. Supp. 595, 597-98 (E.D. Pa. 1982) (appeal docketed, No. 82-1822, 3d Cir.); Provenzano v. United States Department of Justice, 3 GDS 1183,125 at 83,731 (D.N.J. 1982) (appeal docketed, No. 82-5681, 3d Cir.); Wentz v. Drug Enforcement Administration/ Shapiro v. Drug Enforcement Administration, 3 GDS 183,122 at 83,727 (W.D. Wis. 1982) (consolidated) (appeals docketed, Nos. 82-2818/822819, 7th Cir.); Anderson v. Huff, 3 GDS 1183,124 at 83,729 (D. Minn. 1982); Heinzl v. Immigration & Naturalization Service, 3 GDS 1183,121 at 83,725 (N.D. Cal. 1981). A major point in the development of this case law outside of the D.C. Circuit will be the first post-Greentree appellate court consideration of the issue, probably by the Third Circuit in the Provenzano or Porter cases, which are expected to be argued within the next few months.

Current Practice

At this time, however, the law of the D.C. Circuit, through its decision in Greentree, is contrary to the Department of Justice's position that the Privacy Act can serve as an Exemption 3 statute. That remains particularly significant because the FIA's statutory language permits any dissatisfied FOIA requester to challenge agency withholding in the United States District Court for the District of Columbia. See 5 U.S.C. §552(a)(4)(B). Consequently, any application of the Privacy Act/ Exemption 3 position by an agency at the administrative level would run the unacceptable risk that the requester would file suit in the United States District Court for the District of Columbia, which would inescapably result in a judicial finding of improper withholding, not to mention vulnerability under the FOIA's attorney's fees and administrative sanctions provisions, 5 U.S.C. §552(a)(4)(E)-(F).

Therefore, while the Department of Justice adheres to the position that the Privacy Act qualifies as an Exemption 3 statute in the context of a first-person access request, agencies should not apply this new position at the administrative level prior to the commencement of a lawsuit. Once a suit is brought within a judicial circuit other than the D.C. Circuit, though, the Department of Justice will be free to advocate this position vigorously. In time, there will doubtless be a definitive resolution of this complex issue; until such umie, nowever, agencies must take care to apply the Privacy Act as an Exemption 3 statute only as set forth above.

FOIA UPDATE

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