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THE FREEDOM OF INFORMATION ACT
THE PRIVACY ACT OF 1974
As an investigator, you should familiarize yourself with the basic rules and
regulations that govern the Freedom of Information Act and the Privacy Act of 1974. These
rules and procedures are important for you in the performance of your job, and your
attention to the rights and restrictions governing disclosure under both acts is critical
to you in the performance of your investigation. In addition, your failure to comply with
these acts could result in Court initiated disciplinary action, as well as criminal and/or
civil penalties to you and/or your agency.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, gives the public a right
of access to records in the possession of Federal agencies, including the records and
files of your office. Each agency has its own FOIA procedures. Generally, they require
that requests for records be made in writing and include details that will reasonably
describe the document. The details would usually include the date or time period involved
and any other identifying details, like the names of principal persons or institutions
involved, or the subject matter of the file.
Records requested under FOIA may be withheld only by reason of one or more of the nine
exemptions in the law.(1) As a general rule,
agencies seek to protect many kinds of information they collect as long as the case
remains under investigation and/or in negotiations. If a request were made under FOIA for
records contained in a complaint file, your agency likely would use one of the following
exemptions if it wants to protect the records from disclosure:
Exemption 5 -- inter/intra-agency memoranda or letters that would not be available by
law to a party other than an agency in litigation with the agency.
Exemption 6 -- personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.
Exemption 7 -- investigatory files compiled for law enforcement purposes, to the extent
that the production of such records would:
(a) interfere with enforcement proceedings;
(b) deprive a person of the right to a fair trial;
(c) constitute an unwarranted invasion of personal privacy;
(d) disclose the identity of a confidential source; and
(e) disclose investigative techniques;... .
These exemptions may be used in the case of both open and closed complaints. However,
the exemption can not generally be used to deny access to an entire file; rather, those
parts of the file that will be withheld will be redacted, while other records or
"reasonably segregable" portions of records must be released. Even if you
have a Privacy Act Release Form (see discussion below), you should not in most instances
release the name of the complainant or other information that could identify him or her,
or would constitute an unwarranted invasion of his or her personal privacy, in response to
a FOIA request for a file.
The Privacy Act of 1974, 5 U.S.C. §552a, gives individuals the right of access
to records about themselves that are "name retrievable" and protects individuals
from misuse of personal information held by a Federal agency. The Privacy Act regulates
the collection, maintenance, use, and dissemination of certain personal information in
agency files. The law applies to records that are kept and that can be located by the
individual's name, social security number, or other system with a personal identification
system. The law applies to all such information, whether stored in computer systems
or within file jackets. Investigators, as agents of the government, are responsible for
knowing the provisions of the law and applying the law's safeguards in their everyday
Your agency should have a Privacy Act consent or release form that is provided to each
complainant for signature. (See sample release form at TAB ; the release form
should generally be attached to your complaint form.) If the complainant is not willing to
sign the release form and you must release his or her name to the recipient in
order to investigate the complaint, you should notify the complainant in writing that the
failure to sign the form will prevent you from investigating the complaint. Give the
complainant an additional time period (15 days) to return the form and, if it is not
received, close the complaint. In instances in which you are dealing with a problematic
complainant, you may wish to send the request for the signed consent form by certified
mail, return receipt requested.
You should keep the following guidelines in mind:
1) You may not release the name of the complainant to the recipient
unless you have a signed release form.
2) You should not release the name of the complainant(s) unless you need
to in order to conduct your investigation.
For example, if a complaint alleges that a recipient maintains a discriminatory policy
or procedure, it may not be necessary to release the name of the complainant in order to
conduct the investigation. You may only need to release his or her name in order to
provide relief for a violation you have found; at that point, the complainant may be among
a group of victims you have identified, so his or her identity can be protected.
3) You may not close a complaint, even though the complainant refuses to sign the
release form, unless the inability to release his or her name makes you unable to
investigate the complaint.
4) The complainant is not required by law to give confidential or personal information
about himself or herself to you. However, you may close the complaint if the failure of
the complainant to cooperate with you makes it impossible to investigate the complaint.
5) It is a good practice to also obtain a signed release from witnesses you interview.
6) Written permission of the subject of the file must be obtained prior to the release
of documents to a third party, even when the third person is a lawyer representing the
You should contact your agency's FOIA/Privacy Act office for questions concerning how
to comply with these two laws.
1. "Whenever . . . the court additionally issues a written
finding that the circumstances surrounding the withholding raise questions whether agency
personnel acted arbitrarily or capriciously . . . the Special Counsel shall promptly
initiate a proceeding to determine whether disciplinary action is warranted. . . ." 5
U.S.C. § 552(F). Under the Administrative Procedure Act, agency personnel act arbitrarily
if the agency does not follow its procedures. The potential for arbitrary action is the
greatest where unauthorized employees decide to send a determination of a denial of access
where the agency regulations give the denial authority to a particular office only.
2. The Act provides criminal and civil penalties for violations. For
example, it is a crime for a Federal employee:
- to disclose information, knowing that the disclosure is prohibited by the Act;
- to maintain willfully a secret system of records; and
- to request or obtain a record about another person under false pretenses.
An individual who violates the Act may be fined up to $5,000 for a violation. Civil
remedies are also included. The agency can be assessed damages, plus attorneys' fees and
other litigation costs, when it errs in its duty to provide access to a citizen who wants
to examine his/her file, or when it fails to accede to a request for amending the records.
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