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141.

Privacy Act—Relation to Civil and Criminal Discovery

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;

  1. Disclosure to a government agency for a law enforcement purpose, 5 U.S.C. Sec. 552a(b)(7);

  2. Disclosure pursuant to a court order, 5 U.S.C. Sec. 552a(b)(11); and

  3. 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. 552a(b)(7).

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. 552a(b)(3).

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]