OVERVIEW OF THE PRIVACY ACT OF 1974

CONDITIONS OF DISCLOSURE TO THIRD PARTIES

B. Twelve Exceptions to the "No Disclosure Without Consent" Rule

2. 5 U.S.C.  552a(b)(2) (required FOIA disclosure)

"required under section 552 of this title."

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The point of this exception is that the Privacy Act never prohibits a disclosure that the Freedom of Information Act actually requires. See Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982) (subsection (b)(2) "represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access").

Thus, if an agency is in receipt of a FOIA request for information about an individual that is contained in a system of records and that is not properly withholdable under any FOIA exemption, then it follows that the agency is "required under Section 552 of this title" to disclose the information to the FOIA requester. This would be a permissible subsection (b)(2) disclosure. However, if a FOIA exemption--typically, Exemption 6 or Exemption 7(C)--applies to a Privacy Act-protected record, the Privacy Act prohibits an agency from making a "discretionary" FOIA release because that disclosure would not be "required" by the FOIA within the meaning of subsection (b)(2). See, e.g., DOD v. FLRA, 510 U.S. 487, 502 (1994); United States Dep't of the Navy v. FLRA, 975 F.2d 348, 354-56 (7th Cir. 1992); DOD v. FLRA, 964 F.2d 26, 30 n.6 (D.C. Cir. 1992); Andrews v. VA, 838 F.2d 418, 422-24 & n.8 (10th Cir. 1988); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 2-9 (N.D. Ga. Aug. 13, 1996), aff'd, No. 96-9000 (11th Cir. July 8, 1997); Kassel v. VA, 709 F. Supp. 1194, 1199-1200 (D.N.H. 1989); Howard v. Marsh, 654 F. Supp. 853, 855-56 (E.D. Mo. 1986); Florida Med. Ass'n v. HEW, 479 F. Supp. 1291, 1305-07 (M.D. Fla. 1979); Providence Journal Co. v. FBI, 460 F. Supp. 762, 767 (D.R.I. 1978), rev'd on other grounds, 602 F.2d 1010 (1st Cir. 1979); Philadelphia Newspapers, Inc. v. United States Dep't of Justice, 405 F. Supp. 8, 10 (E.D. Pa. 1975); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,954 (1975).

In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 762-75 (1989), the Supreme Court significantly expanded the breadths of FOIA Exemptions 6 and 7(C). The Court ruled that a privacy interest may exist in publicly available information--such as the criminal history records (rap sheets) there at issue--where the information is "practically obscure." Id. at 764-71. Even more significantly, the Court held that the identity of the FOIA requester, and any socially useful purpose for which the request was made, are not to be considered in evaluating whether the "public interest" would be served by disclosure. Id. at 771-75. The Court determined that the magnitude of the public interest side of the balancing process can be assessed only by reference to whether disclosure of the requested records directly advances the "core purpose" of the FOIA--to shed light on the operations and activities of the government. Id. at 774-75.

In light of Reporters Committee, personal information of the sort protected by the Privacy Act is less likely to be "required" to be disclosed under the FOIA, within the meaning of subsection (b)(2). Specifically, where an agency determines that the only "public interest" that would be furthered by a disclosure is a nonqualifying one under Reporters Committee (even where it believes that disclosure would be in furtherance of good public policy generally), it no longer may balance in favor of disclosure under the FOIA and therefore disclosure will be prohibited under the Privacy Act--unless authorized by another Privacy Act exception or by written consent. See, e.g., DOD v. FLRA, 510 U.S. at 497-502 (declining to "import the policy considerations that are made explicit in the Labor Statute into the FOIA Exemption 6 balancing analysis" and, following the principles of Reporters Committee, holding that home addresses of bargaining unit employees are covered by FOIA Exemption 6 and thus that Privacy Act "prohibits their release to the unions"); Schwarz v. Interpol, No. 94-4111, 1995 U.S. App. LEXIS 3987, at **4-7 & n.2 (10th Cir. Feb. 28, 1995) (balancing under Reporters Committee and holding that individual clearly has protected privacy interest in avoiding disclosure of his whereabouts to third parties; disclosure of this information would not "contribute anything to the public's understanding of the operations or activities of the government"; and thus any information was exempt from disclosure under FOIA Exemption 7(C) and does not fall within Privacy Act exception (b)(2)); FLRA v. United States Dep't of Commerce, 962 F.2d 1055, 1059 (D.C. Cir. 1992) (Privacy Act prohibits disclosure of identities of individuals who received outstanding or commendable personnel evaluations, as such information falls within FOIA Exemption 6); Burke v. United States Dep't of Justice, No. 96-1739, 1999 WL 1032814, at **3-5 (D.D.C. Sept. 30, 1999) (stating that the "Privacy Act prohibits the FBI from disclosing information about a living third party without a written privacy waiver, unless FOIA requires disclosure," and upholding the FBI's refusal to confirm or deny the existence of investigative records related to third parties in response to a FOIA request); see also FOIA Update, Vol. X, No. 2, at 6. As a result of Reporters Committee, agencies depend more on the subsection (b)(3) routine use exception to make compatible disclosures of records that are no longer required by the FOIA to be disclosed. See, e.g., USDA v. FLRA, 876 F.2d 50, 51 (8th Cir. 1989); see also FLRA v. United States Dep't of the Treasury, 884 F.2d 1446, 1450 & n.2 (D.C. Cir. 1989).

The Court of Appeals for the District of Columbia Circuit significantly limited the utility of subsection (b)(2) in Bartel v. FAA, 725 F.2d 1402 (D.C. Cir. 1984). In Bartel, the D.C. Circuit held that subsection (b)(2) cannot be invoked unless an agency actually has a FOIA request in hand. 725 F.2d at 1411-13. The D.C. Circuit's approach in Bartel has not been taken by other courts. See Cochran v. United States, 770 F.2d 949, 957-58 & n.14 (11th Cir. 1985) (applying subsection (b)(2)--in absence of written FOIA request--because requested records would not be withholdable under any FOIA exemption); Jafari v. Department of the Navy, 728 F.2d 247, 249-50 (4th Cir. 1984) (same); see also Florida Med. Ass'n, 479 F. Supp. at 1301, 1305-07. However, because the D.C. Circuit is the jurisdiction of "universal venue" under the Privacy Act (which means that any Privacy Act lawsuit for wrongful disclosure could be filed within that judicial circuit), see 5 U.S.C.  552a(g)(5), its holding in Bartel is of paramount importance. See FOIA Update, Vol. V, No. 3, at 2.

Note, though, that the Bartel decision left open the possibility that certain types of information "traditionally released by an agency to the public" might properly be disclosed even in the absence of an actual FOIA request. 725 F.2d at 1413 (dictum). Reacting to Bartel, OMB issued guidance indicating that records that have "traditionally" been considered to be in the public domain, and those that are required to be disclosed to the public--such as final opinions of agencies and press releases--can be released without waiting for an actual FOIA request. OMB Guidelines, 52 Fed. Reg. 12,990, 12,992-93 (1987) (discussing Bartel, in context of guidance on "call detail" programs, and referring to OMB Memorandum For The Senior Agency Officials For Information Resources Management (May 24, 1985) at 4-6 (unpublished)). At least one pre-Bartel case appears to support this idea. Owens v. MSPB, No. 3-83-0449-R, slip op. at 3 (N.D. Tex. Sept. 14, 1983) (release of agency's final decision is public information that "simply cannot be an unlawful disclosure under the Privacy Act"). But see Zeller v. United States, 467 F. Supp. 487, 503 (E.D.N.Y. 1979) (subsection (b)(2) inapplicable to press release as "nothing in the FOIA appears to require such information to be released in the absence of a request therefor").


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