OVERVIEW OF THE PRIVACY ACT OF 1974

TEN EXEMPTIONS

C. Seven Specific Exemptions--5 U.S.C.  552a(k)

2. 5 U.S.C.  552a(k)(2)

"investigatory material compiled for law enforcement pur-poses, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section [9-27-75], under an implied promise that the identity of the source would be held in confidence."

comment --

This exemption covers: (1) material compiled for criminal investigative law enforcement purposes, by nonprincipal function criminal law enforcement entities; and (2) material compiled for other investigative law enforcement purposes, by any agency.

The material must be compiled for some investigative "law enforcement" purpose, such as a civil investigation or a criminal investigation by a nonprincipal function criminal law enforcement agency. See, e.g., Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1188-89 (10th Cir.) (holding that fraud, waste, and abuse complaint to Inspector General is "the catalyst of the investigation and thus comes within the parameters of  552a(k)(2)"), cert. denied, 525 U.S. 1042 (1998); Melius v. National Indian Gaming Comm'n, No. 98-2210, 1999 U.S. Dist. LEXIS 17537, at **14-15, 18-19 (D.D.C. Nov. 3, 1999) (recognizing Vymetalik, infra, and determining that exemption (k)(2) properly applied to law enforcement investigation into suitability of person involved in gaming contracts); Shewchun v. INS, No. 95-1920, slip op. at 3, 8-9 (D.D.C. Dec. 10, 1996), summary affirmance granted, No. 97-5044 (D.C. Cir. June 5, 1997); Viotti v. United States Air Force, 902 F. Supp. 1331, 1335 (D. Colo. 1995), aff'd, 153 F.3d 730 (10th Cir. 1998) (unpublished table decision); Jaindl v. Department of State, No. 90-1489, slip op. at 3 (D.D.C. Jan. 31, 1991), summary affirmance granted, No. 91-5034 (D.C. Cir. Jan. 8, 1992); Barber v. INS, No. 90-0067C, slip op. at 6-9 (W.D. Wash. May 15, 1990); Culver v. IRS, Nos. 85-242, 85-243, slip op. at 1-2 (N.D. Iowa June 5, 1990); Welsh v. IRS, No. 85-1024, slip op. at 2-3 (D.N.M. Oct. 21, 1986); Spence v. IRS, No. 85-1076, slip op. at 2 (D.N.M. Mar. 27, 1986); Jones v. IRS, No. 85-0-736, slip op. at 2-3 (D. Neb. Mar. 3, 1986); Nader v. ICC, No. 82-1037, 1983 U.S. Dist. LEXIS 11380, at *14 (D.D.C. Nov. 23, 1983); Heinzl v. INS, 3 Gov't Disclosure Serv. (P-H)  83,121, at 83,725 (N.D. Cal. Dec. 18, 1981); Lobosco v. IRS, No. 77-1464, 1981 WL 1780, at *3 (E.D.N.Y. Jan. 14, 1981); Utah Gas & Oil, Inc. v. SEC, 1 Gov't Disclosure Serv. (P-H)  80,038, at 80,114 (D. Utah Jan. 9, 1980); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,972-73 (1975).

Therefore, subsection (k)(2) does not include material compiled solely for the purpose of a routine background security investigation of a job applicant. See Vymetalik v. FBI, 785 F.2d 1090, 1093-98 (D.C. Cir. 1986) (noting applicability of narrower subsection (k)(5) to such material and ruling that "specific allegations of illegal activities" must be involved in order for subsection (k)(2) to apply); Bostic v. FBI, No. 1:94 CV 71, slip op. at 7-8 (W.D. Mich. Dec. 16, 1994) (following Vymetalik). However, material compiled for the purpose of investigating agency employees for suspected violations of law can fall within subsection (k)(2). See Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 862-63 n.2 (D.C. Cir. 1989) ("Unlike Vymetalik, this case involves not a job applicant undergoing a routine check of his background and his ability to perform the job, but an existing agency employee investigated for violating national security regulations."); Cohen v. FBI, No. 93-1701, slip op. at 4-6 (D.D.C. Oct. 3, 1995) (applying Vymetalik and finding that particular information within background investigation file qualified as "law enforcement" information "withheld out of a legitimate concern for national security," thus "satisf[ying] the standards set forth in Vymetalik," which recognized that "'[i]f specific allegations of illegal activities were involved, then th[e] investigation might well be characterized as a law enforcement investigation'" and that "'[s]o long as the investigation was "realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached" the records may be considered law enforcement records'" (quoting Vymetalik, 785 F.2d at 1098, in turn quoting Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982))); see also Croskey v. United States Office of Special Counsel, 9 F. Supp. 2d 8, 11 (D.D.C. 1998) (finding Office of Special Counsel Report of Investigation, which was developed to determine whether plaintiff had been fired for legitimate or retaliatory reasons, exempt from access and amendment provisions of Privacy Act pursuant to subsection (k)(2)), summary affirmance granted, No. 98-5346, 1999 WL 58614 (D.C. Cir. Jan. 12, 1999); Viotti, 902 F. Supp. at 1335 (concluding, "as a matter of law, that [Report of Inquiry] was compiled for a law enforcement purpose as stated in 5 U.S.C.  552a(k)(2)" where "original purpose of the investigation . . . was a complaint to the [Inspector General] of fraud, waste and abuse," even though "complaint was not sustained and no criminal charges were brought," because "plain language of the exemption states that it applies to the purpose of the investigation, not to the result"); Mittleman v. United States Dep't of the Treasury, 919 F. Supp. 461, 469 (D.D.C. 1995) (finding that Inspector General's report "pertain[ing] to plaintiff's grievance against Treasury officials and related matters . . . falls squarely within the reach of exemption (k)(2)"), aff'd in part & remanded in part on other grounds, 104 F.3d 410 (D.C. Cir. 1997); Martens v. United States Dep't of Commerce, No. 88-3334, 1990 U.S. Dist. LEXIS 10351, at **18-20 (D.D.C. Aug. 6, 1990); Fausto v. Watt, 3 Gov't Disclosure Serv. (P-H)  83,217, at 83,929-30 (4th Cir. June 7, 1983); Frank v. United States Dep't of Justice, 480 F. Supp. 596, 597 (D.D.C. 1979).

However, in Doe v. United States Department of Justice, 790 F. Supp. 17, 19-21 (D.D.C. 1992), the District Court for the District of Columbia construed Vymetalik narrowly and determined that although subsection (k)(5) was "directly applicable," subsection (k)(2) also applied to records of an FBI background check on a prospective Department of Justice attorney. It determined that the Department of Justice, as "the nation's primary law enforcement and security agency," id. at 20, had a legitimate law enforcement purpose in ensuring that "officials like Doe . . . be 'reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States,'" id. (quoting Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 29, 1953)). It seems to follow that subsection (k)(2) would likewise apply to background investigations of prospective FBI/DEA special agents. See Putnam v. United States Dep't of Justice, 873 F. Supp. 705, 717 (D.D.C. 1995) (finding subsection (k)(2) properly invoked to withhold information that would reveal identities of individuals who provided information in connection with former FBI agent's preemployment investigation).

More recently, though, the District Court for the District of Columbia, when faced with the same issue concerning subsection (k)(2)/(k)(5) applicability, relied entirely on the D.C. Circuit's opinion in Vymetalik, with no mention whatsoever of Doe v. United States Dep't of Justice. Cohen v. FBI, No. 93-1701 (D.D.C. Oct. 3, 1995). Nevertheless, the District Court found subsection (k)(2) to be applicable to one document in the background investigation file because that document was "withheld out of a legitimate concern for national security," and "satisfie[d] the standards set forth in Vymetalik," which recognized that "'[i]f specific allegations of illegal activities were involved, then th[e] investigation might well be characterized as a law enforcement investigation'" and that "'[s]o long as the investigation was "realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached" the records may be considered law enforcement records.'" Cohen, No. 93-1701, slip op. at 3-6 (D.D.C. Oct. 3, 1995) (quoting Vymetalik, 785 F.2d at 1098, in turn quoting Pratt, 673 F.2d at 421). Another district court rejected Doe and, following the rationale in Vymetalik, held that "'law enforcement purposes' as that term is utilized in [subsection (k)(2) of] the Privacy Act, does not apply to documents and information gathered during a[n FBI agent applicant's] pre-employment background investigation." Bostic, No. 1:94 CV 71, slip op. at 7-8 (W.D. Mich. Dec. 16, 1994).

Unlike with Exemption 7(A) of the Freedom of Information Act, 5 U.S.C.  552(b)(7)(A) (1994 & Supp. IV 1998), there is no temporal limitation on the scope of subsection (k)(2). See Irons v. Bell, 596 F.2d 468, 471 (1st Cir. 1979). But see Anderson v. United States Dep't of the Treasury, No. 76-1404, slip op. at 9-11 (D.D.C. July 19, 1977) (subsection (k)(2) inapplicable to investigatory report regarding alleged wrongdoing by IRS agent where investigation was closed and no possibility of any future law enforcement proceedings existed).

Although the issue has not been the subject of much significant case law, the OMB Guidelines explain that the "Provided, however" provision of subsection (k)(2) means that "[t]o the ex-tent that such an investigatory record is used as a basis for denying an individual any right, privilege, or benefit to which the individual would be entitled in the absence of that record, the individual must be granted access to that record except to the extent that access would reveal the identity of a confidential source." OMB Guidelines, 40 Fed. Reg. at 28,973; cf. Guccione v. National Indian Gaming Comm'n, No. 98-CV-164, 1999 U.S. Dist. LEXIS 15475, at **11-12 (S.D. Cal. Aug. 5, 1999) (approving agency invocation of subsection (k)(2) to protect third-party names of individuals who had not been given express promises of confidentiality where plaintiff did not contend any denial of right, privilege, or benefit). The only decision that has discussed this provision in any depth is Viotti v. United States Air Force, 902 F. Supp. at 1335-36, in which the District Court for the District of Colorado determined that an Air Force Colonel's forced early retirement "resulted in a loss of a benefit, right or privilege for which he was eligible--the loss of six months to four years of the difference between his active duty pay and retirement pay," and "over his life expectancy . . . the difference in pay between the amount of his retirement pay for twenty-six years of active duty versus thirty years of active duty." Id. The court found that "as a matter of law, based on [a report of inquiry, plaintiff] lost benefits, rights, and privileges for which he was eligible" and thus he was entitled to an unredacted copy of the report "despite the fact that [it] was prepared pursuant to a law enforcement investigation." Id. It went on to find that "the 'express' promise requirement" of (k)(2) was not satisfied where a witness "merely expressed a 'fear of reprisal.'" Id. (citing Londrigan v. FBI, 670 F.2d 1164, 1170 (D.C. Cir. 1981)).

The Court of Appeals for the Tenth Circuit in affirming Viotti noted that subsection (k)(2)'s limiting exception applied only in the context of access requests and did not apply to limit the exemption's applicability with regard to amendment requests. Viotti v. United States Air Force, No. 97-1371, 1998 WL 453670, at *2 n.2 (10th Cir. Aug. 5, 1998). While the court's footnote in Viotti spoke in terms of the particular exempting regulations at issue, the more general proposition is in complete accord with the plain language of subsection (k)(2). See 5 U.S.C.  552a(k)(2) (in provision limiting exemption's applicability requiring that "material shall be provided to [the] individual except to the extent that disclosure of such material would reveal the identity of a [confidential source]" (emphasis added)). Nevertheless, only a matter of weeks earlier, in its decision in Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1189 (10th Cir.), cert. denied, 525 U.S. 1042 (1998), the Tenth Circuit, citing the Viotti district court decision in comparison, went through the exercise of determining whether the limiting exception applied in the context of the amendment claims before it. The Tenth Circuit stated that subsection (k)(2)'s limiting exception was inapplicable to an Inspector General complaint because "the charges contained in the complaint were deemed unworthy of further action." Gowan, 148 F.3d at 1189. Given the very limited case law interpreting subsection (k)(2)'s limiting exception and what constitutes denial of a "right, privilege, or benefit," it is worth noting the Tenth's Circuit's statement in Gowan, even though the court's subsequent footnote in Viotti certainly calls into question its relevance to the court's ultimate holding regarding subsection (k)(2)'s applicability.

In Doe v. United States Dep't of Justice, 790 F. Supp. at 21 n.4, 22, the court noted this provision of subsection (k)(2), but determined that it was not applicable because the plaintiff "ha[d] no entitlement to a job with the Justice Department." Inexplicably, the court did not discuss whether the denial of a federal job would amount to the denial of a "privilege" or "benefit." See id.; see also Jaindl, No. 90-1489, slip op. at 2 n.1 (D.D.C. Jan. 31, 1991) (noting that "[b]ecause there is no general right to possess a passport," application of (k)(2) was not limited in that case). Another court refused to address the provision's applicability where the plaintiff failed to raise the issue at the administrative level. Comer v. IRS, No. 85-10503-BC, slip op. at 3-5 (E.D. Mich. Mar. 27, 1986), aff'd, 831 F.2d 294 (6th Cir. 1987) (unpublished table decision).

It should be noted that information that originally qualifies for subsection (k)(2) protection should retain that protection even if it subsequently is recompiled into a non-law enforcement record. See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. 1991) (discussed under subsection (j)(2), above); accord OMB Guidelines, 40 Fed. Reg. at 28,971 (same).

Finally, two courts have considered claims brought by individuals who allegedly provided information pursuant to a promise of confidentiality and sought damages resulting from disclosure of the information and failure to sufficiently protect their identities pursuant to subsection (k)(2). Bechhoefer v. United States Dep't of Justice, 934 F. Supp. 535, 538-39 (W.D.N.Y. 1996), vacated & remanded sub nom. Bechhoefer v. United States Dep't of Justice Drug Enforcement Admin., 209 F.3d 57 (2d Cir. 2000) (finding that information at issue did qualify as "record" under Privacy Act); Sterling v. United States, 798 F. Supp. 47, 49 (D.D.C. 1992). In Sterling, the District Court for the District of Columbia stated that the plaintiff was "not barred from stating a claim for monetary damages [under (g)(1)(D)] merely because the record did not contain 'personal information' about him and was not retrieved through a search of indices bearing his name or other identifying characteristics," 798 F. Supp. at 49, but in a subsequent opinion the court ultimately ruled in favor of the agency, having been presented with no evidence that the agency had intentionally or willfully disclosed the plaintiff's identity. Sterling v. United States, 826 F. Supp. 570, 571-72 (D.D.C. 1993), summary affirmance granted, No. 93-5264 (D.C. Cir. Mar. 11, 1994). However, the District Court for the Western District of New York in Bechhoefer, when presented with an argument based on Sterling, stated that it did not "find the Sterling court's analysis persuasive." Bechhoefer, 934 F. Supp. at 538-39. Having already determined that the information at issue did not qualify as a record "about" the plaintiff, that court recognized that subsection (k)(2) "does not prohibit agencies from releasing material that would reveal the identity of a confidential source" but rather "allows agencies to promulgate rules to exempt certain types of documents from mandatory disclosure under other portions of the Act." Id. The court went on to state that "plaintiff's reliance on  552a(k)(2) [wa]s misplaced," and that subsection (k) was "irrelevant" to the claim before it for wrongful disclosure. Id. at 539.


Go to Table of Contents || Previous Section Ten Exemptions: 5 U.S.C. 552a(k)(1) || Next Section Ten Exemptions: 5 U.S.C. 552a(k)(3)