OVERVIEW OF THE PRIVACY ACT OF 1974

TEN EXEMPTIONS

A. One Special Exemption--5 U.S.C.  552a(d)(5)

"nothing in this [Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding."

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The subsection (d)(5) provision is sometimes mistakenly overlooked because it is not located with the other exemptions in sections (j) and (k). It is an exemption from only the access provision of the Privacy Act.

This exemption provision reflects Congress's intent to exclude civil litigation files from access under subsection (d)(1). See 120 Cong. Rec. 36,959-60 (1974), reprinted in Source Book at 936-38. Indeed, this Privacy Act provision has been held to be similar to the attorney work-product privilege, see, e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1187-89 (D.C. Cir. 1987); Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir. 1982); Barber v. INS, No. 90-0067C, slip op. at 4-6 (W.D. Wash. May 15, 1990), and to extend even to information prepared by nonattorneys, see Varville v. Rubin, No. 3:96CV00629, 1998 U.S. Dist. LEXIS 14006, at **9-12 (D. Conn. Aug. 18, 1998) (citing Martin and Smiertka, infra, for proposition that courts "have interpreted the exemption in accordance with its plain language and have not read the requirements of the attorney work product doctrine into Exemption (d)(5)," and broadly construing subsection (d)(5) to protect report prepared pursuant to ethics inquiry into alleged hiring improprieties, finding "that the fact that the documents at issue were not prepared by or at the direction of an attorney is not determinative in deciding whether Exemption (d)(5) exempts the documents from disclosure"); Blazy v. Tenet, 979 F. Supp. 10, 24 (D.D.C. 1997) (broadly construing subsection (d)(5) to protect communications between CIA's Office of General Counsel and members of plaintiff's Employee Review Panel while panel was deciding whether to recommend retaining plaintiff), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Smiertka v. United States Dep't of the Treasury, 447 F. Supp. 221, 227-28 (D.D.C. 1978) (broadly construing subsection (d)(5) to cover documents prepared by and at direction of lay agency staff persons during period prior to plaintiff's firing), remanded on other grounds, 604 F.2d 698 (D.C. Cir. 1979); see also Taylor v. United States Dep't of Educ., No. 91 N 837, slip op. at 3, 6 (D. Colo. Feb. 25, 1994) (applying subsection (d)(5) to private citizen's complaint letter maintained by plaintiff's supervisor in anticipation of plaintiff's termination); Government Accountability Project v. Office of Special Counsel, No. 87-0235, 1988 WL 21394, at *5 (D.D.C. Feb. 22, 1988) (subsection (d)(5) "extends to any records compiled in anticipation of civil proceedings, whether prepared by attorneys or lay investigators"); Crooker v. Marshals Serv., No. 85-2599, slip op. at 2-3 (D.D.C. Dec. 16, 1985) (subsection (d)(5) protects information "regardless of whether it was prepared by an attorney"); Barrett v. Customs Serv., No. 77-3033, slip op. at 2-3 (E.D. La. Feb. 22, 1979) (applying subsection (d)(5) to "policy recommendations regarding plaintiff['s] separation from the Customs Service and the possibility of a sex discrimination action").

This provision shields information that is compiled in anticipation of court proceedings or quasi-judicial administrative hearings. See, e.g., Martin, 819 F.2d at 1188-89; Frets v. Department of Transp., No. 88-0404-CV-W-9, slip op. at 11 (W.D. Mo. Dec. 14, 1988); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,960 (1975) ("civil proceeding" term intended to cover "quasi-judicial and preliminary judicial steps").

It should be noted, however, that this provision is in certain respects not as broad as Exemption 5 of the Freedom of Information Act, 5 U.S.C.  552(b)(5) (1994 & Supp. IV 1998). For example, by its terms it does not cover information compiled in anticipation of criminal actions. (Of course, subsection (j)(2), discussed below, may provide protection for such information.) Also, subsection (d)(5) does not incorporate other Exemption 5 privileges, such as the deliberative process privilege. See, e.g., Savada v. DOD, 755 F. Supp. 6, 9 (D.D.C. 1991). But see Blazy, 979 F. Supp. at 24 (incorrectly stating that "FOIA Exemption 5 and Privacy Act Exemption (d)(5) permit the agency to withhold information that qualifies as attorney work product or falls under the attorney-client or deliberative process privilege"). This means that deliberative information regularly withheld under the FOIA can be required to be disclosed under the Privacy Act. See, e.g., Savada, 755 F. Supp. at 9; see also FOIA Update, Vol. XV, No. 2, at 5-6 (encouraging discretionary disclosure of attorney work-product information under FOIA Exemption 5).

Unlike all of the other Privacy Act exemptions discussed below, however, subsection (d)(5) is entirely "self-executing," inasmuch as it does not require an implementing regulation in order to be effective. Cf. Mervin v. Bonfanti, 410 F. Supp. 1205, 1207 (D.D.C. 1976) ("[A]n absolute prerequisite for taking advantage of [exemption (k)(5)] is that the head of the particular agency promulgate a rule.").


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