FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1984

FOIA Update
Vol. V, No. 3
1984


FOIA Counselor: Questions & Answers

How does the D.C. Circuit's recent Bartel decision affect agency disclosure of personal information?

Unfortunately, at least for the time being, the D.C. Circuit's decision this year in Bartel v. Federal Aviation Administration, 725 F.2d 1403 (D.C. Cir.), reh'g en banc denied, No. 82-2473 (D.C. Cir. March 23, 1984), will have a considerable complicating effect on the disclosure of personal information -- even seemingly innocuous information -- maintained in individual files by federal agencies.

As is generally known, the Privacy Act of 1974, 5 U.S.C. § 552a, prohibits federal agencies from disclosing any Privacy Act-protected information -- defined as information derived from any "record" within a "system of records" retrieved by an individual's name or other personal identifier, 5 U.S.C. § 552a(a) -- except as permitted by one of the disclosure exceptions specified in the Privacy Act. See 5 U.S.C. § 552a(b). From time to time, particularly in the civil discovery context, all agencies must confront this disclosure prohibition and make sometimes difficult determinations as to whether any of the Privacy Act's exceptions permit a contemplated disclosure. Quite frequently, such determinations turn on whether the information in question is "required" to be disclosed under the Freedom of Information Act, which is logically one of the major disclosure exceptions permitted by the Privacy Act. See 5 U.S.C. § 552a(b)(2). That analysis usually involves the balancing of competing interests under FOIA Exemption 6. To aid agencies in applying the Privacy Act's FOIA exception, the Office of Information and Privacy published a "FOIA Counselor" discussion of this particularly complex subject more than two years ago. See FOIA Update, March 1982, at 3. This guidance advised agencies that, whether or not any of the Privacy Act's other disclosure exceptions might be applicable, the Privacy Act would not bar the disclosure of "[a]ny information determined not to be exempt from disclosure" under the FOIA -- regardless of whether a FOIA request for the information had actually been made. Id.

The Bartel decision, however, construed this FOIA disclosure exception in the Privacy Act very differently. Instead of interpreting the exception as logically permitting the free disclosure of any information that an agency could not withhold under the FOIA, the D.C. Circuit in Bartel appeared to hold that the exception applies "[o]nly when the agency is faced with a FOIA request." Such an interpretation, as the Government argued in its unsuccessful petition for rehearing in Bartel, effectively means that the Privacy Act disclosure prohibition "could turn on the wholly fortuitous circumstance of whether a FOIA request for records has been lodged." In other words, under Bartel, an agency's disclosure of any information in the absence of an actual FOIA request would violate the Privacy Act (assuming no other exception were applicable) even if the disclosed information were so innocuous that it would never be withheld in response to any FOIA request.

Notwithstanding the evident illogic of the Bartel interpretation of 5 U.S.C. § 552a(b)(2), however, it simply cannot be ignored. One reason for this is that the Privacy Act contains both civil and criminal penalties for violations such as prohibited agency disclosures. See 5 U.S.C. § 552a(g) (imposing civil liability against agencies); 5 U.S.C. § 552a(i) (imposing criminal penalties against agency employees). Also of great significance is the fact that the Privacy Act, like the FOIA, provides for "universal venue" in the United States District Court for the District of Columbia. See 5 U.S.C. § 552a(g)(5). This means that any individual complaining about an agency's disclosure of information from his file is free to institute an action in the District of Columbia to take advantage of the Bartel interpretation.

Consequently, the Office of Information and Privacy, in coordination with the Office of Management and Budget (which is the "lead agency" for the Privacy Act), now advises all federal agencies not to disclose any Privacy Act-protected information in reliance upon this FOIA disclosure exception -- regardless of how innocuous the information might be -- unless such disclosure is made in response to a specific FOIA request. The Office of Management and Budget is currently exploring whether there is a viable basis, as suggested in Bartel itself, for OMB to promulgate a revised Privacy Act guideline defining the types of information that are "traditionally released by an agency" that might properly be disclosed even in the absence of a FOIA request. See 725 F.2d at 1413. Such a guideline could greatly alleviate the difficulties posed by Bartel. For the present, however, the prudent course in light of Bartel is to disclose no Privacy Act-protected information unless in response to an actual FOIA request or unless one of the other disclosure exceptions applies.

When an agency cannot locate any record responsive to a FOIA request, must it advise the requester of a right to file an administrative appeal?

No. A specific provision in the FOIA, 5 U.S.C. § 552(a)(6)(A)(i), entitles a requester to an administrative appeal and requires that the requester expressly be so notified by the agency, but it does so only where there has been an "adverse determination" of the request. Because an agency is under no FOIA obligation with respect to any record that it does not have, cf. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 139 (1980), a "no records" response is not an "adverse determination" and therefore does not require such notification.

Can Exemption 7 continue to be applicable to an investigatory file even if the underlying investigation does not ultimately lead to an enforcement proceeding?

Yes. While Exemption 7(A) is generally limited to pending or prospective law enforcement proceedings, see FOIA Update, Spring 1984, at 6, the U.S. Court of Appeals for the D.C. Circuit has recently emphasized that an agency may claim the threshold "shelter" of Exemption 7 without the necessity of showing "that the investigation led to, or will lead to, adjudicative or enforcement proceedings." Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). See also Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982); Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981); Pope v. United States, 599 F.2d 1383, 1389 (5th Cir. 1979).

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