Privacy ActRelation to Civil and Criminal
The Privacy Act may be a direct bar to discovery under the
Federal Rules of Civil and Criminal Procedure. The following three
exceptions to the Act's general disclosure prohibition may often be
available in civil or criminal discovery;|
- Disclosure to a government agency for a law enforcement purpose, 5
U.S.C. Sec. 552a(b)(7);
- Disclosure pursuant to a court order, 5 U.S.C. Sec. 552a(b)(11); and
- Disclosure pursuant to a routine use as defined in writing by the
agency, 5 U.S.C. Sec. 552a(b)(3).
An agency may, upon receipt of a written request, disclose a record to
another agency or unit of state or local government for a civil or criminal
law enforcement activity without permission from the subject. The request
must specify the law enforcement purpose for which the record is requested
and the particular record requested; blanket requests for all records
pertaining to an individual are not permitted. See 5 U.S.C. Sec.
Disclosure demanded by an order from a court of competent jurisdiction
(5 U.S.C. Sec. 552a(b)(11)) or subpoena of an agency (5 U.S.C. Sec.
552a(e)(8)) is another exception from the permission requirement which may
be employed in responding to discovery in civil and criminal discovery.
Note that it is the Department's policy that the mere issuance in discovery
proceedings of a subpoena duces tecum which is always subject to the power
of the court to quash or limit, does not meet the standard of (b)(11). In
order to come within the Privacy Act exception permitting disclosure the
court must specifically direct that the specific records in question be
disclosed. See United States v. Brown, 453 F.Supp. 798 (1978).
Records may also be disclosed without the prior consent of the
individual for a "routine use" if that "routine use" has been specifically
described and printed in the Federal Register, 5 U.S.C. Sec.
A written accounting of the disclosure of records under subsections
(b)(11) and (b)(7) and "routine uses" (b)(3) must be kept even though
permission from the subject is not required. This includes both written and
oral disclosures. See 5 U.S.C. Sec. 552a(c).
[cited in USAM 3-17.220]