*19-006 PDF*

2003\
108TH CONGRESS *1ST SESSION*\
HOUSE OF REPRESENTATIVES\
REPORT

108-172

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  **Union Calendar No. 87**                                           

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A CITIZEN\'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE
PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS

FIRST REPORT

by the

COMMITTEE ON GOVERNMENT REFORM

congress.#13

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

JUNE 23, 2003- Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

  -------------------------------- --------------------------------------
                                   **COMMITTEE ON GOVERNMENT REFORM**

  TOM DAVIS, Virginia, *Chairman*  

  DAN BURTON, Indiana\             HENRY A. WAXMAN, California\
  CHRISTOPHER SHAYS, Connecticut\  TOM LANTOS, California\
  ILEANA ROS-LEHTINEN, Florida\    MAJOR R. OWENS, New York\
  JOHN M. MCHUGH, New York\        EDOLPHUS TOWNS, New York\
  JOHN L. MICA, Florida\           PAUL E. KANJORSKI, Pennsylvania\
  MARK E. SOUDER, Indiana\         CAROLYN B. MALONEY, New York\
  STEVEN C. LATOURETTE, Ohio\      ELIJAH E. CUMMINGS, Maryland\
  DOUG OSE, California\            DENNIS J. KUCINICH, Ohio\
  RON LEWIS, Kentucky\             DANNY K. DAVIS, Illinois\
  JO ANN DAVIS, Virginia\          JOHN F. TIERNEY, Massachusetts\
  TODD RUSSELL PLATTS,             WM. LACY CLAY, Missouri\
  Pennsylvania\                    DIANE E. WATSON, California\
  CHRIS CANNON, Utah\              STEPHEN F. LYNCH, Massachusetts\
  ADAM H. PUTNAM, Florida\         CHRIS VAN HOLLEN, Maryland\
  EDWARD L. SCHROCK, Virginia\     LINDA T. SANCHEZ, California\
  JOHN J. DUNCAN, JR., Tennessee\  C.A. \`DUTCH\' RUPPERSBERGER,
  JOHN SULLIVAN, Oklahoma\         Maryland\
  NATHAN DEAL, Georgia\            ELEANOR HOLMES NORTON, District of
  CANDICE S. MILLER, Michigan\     Columbia\
  TIM MURPHY, Pennsylvania\        JIM COOPER, Tennessee\
  MICHAEL R. TURNER, Ohio\         CHRIS BELL, Texas\
  JOHN R. CARTER, Texas\           \-\-\-\-\--\
  WILLIAM J. JANKLOW, South        BERNARD SANDERS, Vermont (Independent)
  Dakota\                          
  MARSHA BLACKBURN, Tennessee      

  PETER SIRH, *STAFF DIRECTOR*     

  MELISSA WOJCIAK, *DEPUTY STAFF   
  DIRECTOR*                        

  ROBERT BORDEN, *PARLIAMENTARIAN* 

  TERESA AUSTIN, *CHIEF CLERK*     

  PHILIP M. SCHILIRO, *MINORITY    Subcommittee on Technology,
  STAFF DIRECTOR*                  Information Policy, Intergovernmental
                                   Relations and the Census

  ADAM H. PUTNAM, Florida,         
  *Chairman*                       

  CANDICE S. MILLER, Michigan\     WM. LACY CLAY, Missouri\
  DOUG OSE, California\            DIANE E. WATSON, California\
  TIM MURPHY, Pennsylvania\        STEPHEN F. LYNCH, Massachusetts
  MICHAEL R. TURNER, Ohio          

                                   **Ex Officio**

  TOM DAVIS, Virginia              HENRY A. WAXMAN, California

  BOB DIX, *STAFF DIRECTOR*        

  LORI MARTIN, *PROFESSIONAL STAFF 
  MEMBER*                          

  URSULA WOJCIECHOWSKI, *CLERK*    

  DAVID MCMILLEN, *MINORITY        
  PROFESSIONAL STAFF MEMBER*       
  -------------------------------- --------------------------------------

?

### LETTER OF TRANSMITTAL

**House of Representatives,**

**Washington, DC, June 23, 2003.**

Hon. J. DENNIS HASTERT,\
Speaker of the House of Representatives,\
Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform, I
submit herewith the committee\'s first report to the 108th Congress. The
committee\'s report is based on a study conducted by its Subcommittee on
Technology, Information Policy, Intergovernmental Relations and the
Census.

Tom Davis,

*Chairman.*

### (iii)

  ------- -------------------------------------------------------------- ----------
          ?                                                              

          **C O N T E N T S**                                            **Page**

  I.      Preface                                                        1

  II\.    Introduction                                                   2

  III\.   Recommendations                                                4

  IV\.    How to use this guide                                          5

  V.      Which act to use                                               6

  VI\.    The Freedom of Information Act                                 6

          A. The scope of the Freedom of Information Act                 6

          B. What records can be requested under the FOIA?               7

          C. Making a FOIA request                                       9

          D. Fees and fee waivers                                        11

          E. Requirements for agency responses                           13

          F. Reasons access may be denied under the FOIA                 15

          1\. Exemption 1- Classified documents                          15

          2\. Exemption 2- Internal personnel rules and practices        16

          3\. Exemption 3- Information exempt under other laws           16

          4\. Exemption 4- Confidential business information             16

          5\. Exemption 5- Internal Government communications            17

          6\. Exemption 6- Personal privacy                              18

          7\. Exemption 7- Law enforcement                               18

          8\. Exemption 8- Financial institutions                        19

          9\. Exemption 9- Geological information                        19

          G. FOIA exclusions                                             19

          H. Administrative appeal procedures                            20

          I. Filing a judicial appeal                                    21

  VII\.   The Privacy Act of 1974                                        22

          A. The scope of the Privacy Act of 1974                        22

          B. The Computer Matching and Privacy Protection Act            23

          C. Locating records                                            24

          D. Making a Privacy Act request for access                     26

          E. Fees                                                        27

          F. Requirements for agency responses                           27

          G. Reasons access may be denied under the Privacy Act          27

          1\. General exemptions                                         28

          2\. Specific exemptions                                        29

          3\. Medical records                                            30

          4\. Litigation records                                         30

          H. Administrative appeal procedures for denial of access       31

          I. Amending records under the Privacy Act                      31

          J. Appeals and requirements for agency responses               32

          K. Filing for judicial appeal                                  33

          **APPENDIXES**                                                 

          **Appendix 1- Sample request and appeal letters**              35

          A. Freedom of Information Act request letter                   35

          B. Freedom of Information Act appeal letter                    37

          C. Privacy Act request for access letter                       39

          D. Privacy Act denial of access appeal                         40

          E. Privacy Act request to amend records                        41

          F. Privacy Act appeal of refusal to amend records              42

          **(v)**                                                        

                                                                         

          ?                                                              

          **VI**                                                         

          **Appendix 2- Bibliography of congressional publications on    43
          the Freedom of Information Act**                               

          **Appendix 3- Bibliography of congressional publications on    48
          the Privacy Act of 1974**                                      

          **Appendix 4- Select bibliography on non-congressional         51
          materials on using the Freedom of Information Act and Privacy  
          Act of 1974**                                                  

          **Appendix 5- Text of the Freedom of Information Act**         52

          **Appendix 6- Text of the Privacy Act of 1974**                63
  ------- -------------------------------------------------------------- ----------

**Union Calendar No. 87**

**108TH CONGRESS**

*Report*

***HOUSE OF REPRESENTATIVES***

1st Session

108-172

*A CITIZEN\'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE
PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS*

JUNE 23, 2003- Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

*Mr. TOM DAVIS of Virginia, from the Committee on Government Reform,
submitted the following*

FIRST REPORT

On June 19, 2003, the Committee on Government Reform approved and
adopted a report entitled \`A Citizen\'s Guide on Using the Freedom of
Information Act and the Privacy Act of 1974 To Request Government
Records.\' The chairman was directed to transmit a copy to the Speaker
of the House.

### I. PREFACE

In 1977, the House Committee on Government Operations issued the first
*Citizen\'s Guide* on how to request records from Federal agencies. 1

\[Footnote\] The original *Guide* was reprinted many times and widely
distributed. The Superintendent of Documents at the Government Printing
Office reported that almost 50,000 copies were sold between 1977 and
1986 when the *Guide* went out of print. In addition, thousands of
copies were distributed by the House Committee on Government Operations,
Members of Congress, the Congressional Research Service, and other
Federal agencies. The original *Citizen\'s Guide* is one of the most
widely read congressional committee reports in history.

\[*Footnote 1:* *A Citizen\'s Guide on How to Use the Freedom of
Information Act and the Privacy Act in Requesting Government Documents,*
H. Rept. 95-796, 95th Cong., 1st sess. (1977).\]

In 1987, the committee issued a revised *Citizen\'s Guide.* 2

\[Footnote\] The new edition was prepared to reflect changes to the
Freedom of Information Act made during 1986. As a result of special
efforts by the Superintendent of Documents at the Government Printing
Office, the availability of the new *Guide* was well publicized. The
1987 edition appeared on GPO\'s \`Best Seller\' list in the months
following its issuance.

\[*Footnote 2:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
100-199, 100th Cong., 1st sess. (1987).\]

During the 100th Congress, major amendments were made to the Privacy Act
of 1974. The Computer Matching and Privacy Protection Act of 1988 3

\[Footnote\] added new provisions to the Privacy Act and changed several
existing requirements. None of the changes affected citizens\' rights to
request or see records held by Federal agencies, but some of the
information in the 1987 *Guide* became outdated as a result, and a third
edition was issued in 1989. 4

\[Footnote\]

\[*Footnote 3:* 102 Stat. 2507.\]

\[*Footnote 4:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
101-193, 101st Cong., 1st sess. (1989).\]

During the 101st Congress, the Privacy Act of 1974 was amended through
further adjustments to the Computer Matching and Privacy Protection Act
of 1988. The changes did not affect access rights. A fourth edition of
the *Citizen\'s Guide* reflected all changes to the FOIA and Privacy Act
made through the end of 1990. 5

\[Footnote\] A fifth edition of the *Guide,* produced in 1993, included
an expanded bibliography and editorial changes. 6

\[Footnote\]

\[*Footnote 5:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
102-146, 102d Cong., 1st sess. (1991).\]

\[*Footnote 6:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
103-104, 103d Cong., 1st sess. (1993).\]

A sixth edition contained bibliography additions and editorial changes
and represented the first report issued by the new Government Reform and
Oversight Committee. 7

\[Footnote\]

\[*Footnote 7:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
104-156, 104th Cong., 1st sess. (1995).\]

In the closing days of the 104th Congress, the Senate and the House of
Representatives completed action on the Electronic Freedom of
Information Act Amendments of 1996. The President signed this
legislation into law on October 2, 1996, when it became Public Law
104-231. With the exception of one provision pertaining to electronic
indexes, these amendments became effective at various times during 1997.
8

\[Footnote\] The 1996 amendments changed some FOIA access rights, and
the eighth edition of the *Guide* reflected these modifications. It also
contained bibliography additions and editorial changes. The 9th edition
reflected further bibliography additions and editorial changes, 9

\[Footnote\] as did the 10th edition. 10

\[Footnote\]

\[*Footnote 8:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
105-37, 105th Cong., 1st sess. (1997).\]

\[*Footnote 9:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
106-50, 106th Cong., 1st sess. (1999).\]

\[*Footnote 10:* *A Citizen\'s Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 To Request Government Records,* H. Rept.
107-371, 107th Cong., 2d sess. (2002).\]

### II. INTRODUCTION

A popular Government without popular information or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.
Knowledge will forever govern ignorance, and a people who mean to be
their own Governors, must arm themselves with the power knowledge gives-
JAMES MADISON 11

\[Footnote\]

\[*Footnote 11:* Letter to W.T. Barry, Aug. 4, 1822, in G.P. Hunt, ed.,
IX *The Writings of James Madison* 103 (1910).\]

The Freedom of Information Act (FOIA) establishes a presumption that
records in the possession of agencies and departments of the executive
branch of the U.S. Government are accessible to the people. This was not
always the approach to Federal information disclosure policy. Before
enactment of the FOIA in 1966, the burden was on the individual to
establish a right to examine these government records. There were no
statutory guidelines or procedures to help a person seeking information.
There were no judicial remedies for those denied access.

With the passage of the FOIA, the burden of proof shifted from the
individual to the government. Those seeking information are no longer
required to show a need for information. Instead, the \`need to know\'
standard has been replaced by a \`right to know\' doctrine. The
government now has to justify the need for secrecy.

The FOIA sets standards for determining which records must be disclosed
and which records may be withheld. The law also provides administrative
and judicial remedies for those denied access to records. Above all, the
statute requires Federal agencies to provide the fullest possible
disclosure of information to the public. The history of the act reflects
that it is a disclosure law. It presumes that requested records will be
disclosed, and the agency must make its case for withholding in terms of
the act\'s exemptions to the rule of disclosure. The application of the
act\'s exemptions is generally permissive\--to be done if information in
the requested records requires protection\--not mandatory. Thus, when
determining whether a document or set of documents should be withheld
under one of the FOIA exemptions, an agency should withhold those
documents only in those cases where the agency reasonably foresees that
disclosure would be harmful to an interest protected by the exemption.
Similarly, when a requestor asks for a set of documents, the agency
should release all documents, not a subset or selection of those
documents. Contrary to the instructions issued by the Department of
Justice on October 12, 2001, the standard should not be to allow the
withholding of information whenever there is merely a \`sound legal
basis\' for doing so.

The Privacy Act of 1974 is a companion to the FOIA. The Privacy Act
regulates Federal Government agency recordkeeping and disclosure
practices. The act allows most individuals to seek access to Federal
agency records about themselves. The act requires that personal
information in agency files be accurate, complete, relevant, and timely.
The subject of a record may challenge the accuracy of information. The
act requires that agencies obtain information directly from the subject
of the record and that information gathered for one purpose not be used
for another purpose. As with the FOIA, the Privacy Act provides civil
remedies for individuals whose rights may have been violated.

Another important feature of the Privacy Act is the requirement that
each Federal agency publish a description of each system of records
maintained by the agency that contains personal information. This
prevents agencies from keeping secret records.

The Privacy Act also restricts the disclosure of personally identifiable
information by Federal agencies. Together with the FOIA, the Privacy Act
permits disclosure of most personal files to the individual who is the
subject of the files. The two laws restrict disclosure of personal
information to others when disclosure would violate privacy interests.

While both the FOIA and the Privacy Act support the disclosure of agency
records, both laws also recognize the legitimate need to restrict
disclosure of some information. For example, agencies may withhold
information properly classified in the interest of national defense or
foreign policy and criminal investigatory files. Other specifically
defined categories of information may also be withheld.

The essential feature of both laws is that they make Federal agencies
accountable for information disclosure policies and practices. While
neither law grants an absolute right to examine government documents,
both laws establish the right to request records and to receive a
response to the request. If a record cannot be released, the requester
is entitled to be told the reason for the denial. The requester also has
a right to appeal the denial and, if necessary, to challenge it in
court.

These procedural rights granted by the FOIA and the Privacy Act make the
laws valuable and workable. As a result, the disclosure of Federal
Government information cannot be controlled by arbitrary or unreviewable
actions.

### III. RECOMMENDATIONS

The committee recommends that this *Citizen\'s Guide* be made widely
available at low cost to anyone who has an interest in obtaining
documents from the Federal Government. The Government Printing Office
and Federal agencies subject to the Freedom of Information Act and the
Privacy Act of 1974 should continue to distribute this report widely.

The committee also recommends that this *Citizen\'s Guide* be used by
Federal agencies in training programs for government employees who are
responsible for administering the Freedom of Information Act and the
Privacy Act of 1974. The *Guide* should also be used by those government
employees who only occasionally work with these two laws.

In following these recommendations, however, agencies are not relieved
of their obligation to comply with the provisions of the 1996 FOIA
amendments requiring agencies to make publicly available, upon request,
reference material or an agency guide for requesting records or
information. This agency guide should include an index and description
of all major information systems of the agency, and guidance for
obtaining various types and categories of public information from the
agency.

The agency guide is intended to be a short and simple explanation for
the public of what the FOIA is designed to do, and how a member of the
public can use it to access government records. Each agency should
explain, in clear and simple language, the types of records that can be
obtained from the agency through FOIA requests; why some records cannot,
by law, be made available; and how the agency makes the determination of
whether or not a record can be released.

Each agency guide should explain how to make a FOIA request, and how
long a requester can expect to wait for a reply from the agency. In
addition, the guide should explain the requester\'s rights under the law
to appeal to the courts to rectify agency action. The guide should give
a brief history of recent litigation the agency has been involved in,
and the resolution of those cases. If an agency requires that certain
requests, such as applications for expedited access, be completed on
agency forms, then the forms should be part of the guide.

The agency guide is intended to supplement other information locator
systems, like the Government Information Locator System (GILS) mandated
by the Paperwork Reduction Act of 1995. 12

\[Footnote\] Thus, the guide should reference systems and explain how a
requester can obtain more information about them. Any agency specific
locator systems should be similarly referenced in the guide.

\[*Footnote 12:* 109 Stat. 163; 44 U.S.C. Sec. 3501-3520 (1995).\]

All agency guides should be available through electronic means, and
should be linked to agency annual reports on FOIA administration. A
citizen examining an agency guide should learn how to access the
agency\'s annual reports, and any potential requester reading an annual
report should learn about the agency guide, and how to access it.

### IV. HOW TO USE THIS GUIDE

This report explains how to use the Freedom of Information Act and the
Privacy Act of 1974. It reflects all changes to the laws made since
1996. Major amendments to the Freedom of Information Act passed in 1974,
1986, and 1996. A major addition to the Privacy Act of 1974 was enacted
in 1988.

This *Guide* is intended to serve as a general introduction to the
Freedom of Information Act and the Privacy Act. 13

\[Footnote\] It offers neither a comprehensive explanation of the
details of these acts nor an analysis of case law. The *Guide* will
enable those who are unfamiliar with the laws to understand the process
and to make a request. In addition, the complete text of each law is
included in an appendix.

\[*Footnote 13:* This *Guide* is primarily intended to help the general
public. It includes a complete explanation of the basics of the two
laws. In the interest of producing a guide that would be both simple and
useful to the intended audience, the committee deliberately avoided
addressing some of the issues that are highly controversial. The
committee cautions against treating the neutrally written descriptions
contained in this report as definitive expressions of the committee\'s
views of the law or congressional intent.\]

The committee has expressed its views on some of these issues in other
reports. See, for example, *Security Classification Policy and Executive
Order 12356,* H. Rept. 97-731, 97th Cong. 2d sess. (1982); *Who Cares
About Privacy? Oversight of the Privacy Act of 1974 by the Office of
Management and Budget and by the Congress,* H. Rept. 98-455, 98th Cong.,
1st sess. (1983); *Electronic Collection and Dissemination of
Information by Federal Agencies: A Policy Overview,* H. Rept. 99-560,
99th Cong., 2d sess. (1986); *Freedom of Information Act Amendments of
1986,* H. Rept. 99-832, 99th Cong., 2d sess. (1986) (report to accompany
H.R. 4862). The latter report is a legislative report for a bill
reforming the business procedures of the FOIA. The bill did not become
law. The 1986 amendments to the FOIA were made by the Freedom of
Information Reform Act of 1986, Public Law 99-570. *The Electronic
Freedom of Information Act Amendments of 1996,* H. Rept. 104-795, 104th
Cong., 2d sess. (1996).

Readers should be aware that FOIA litigation is a complex area of law.
There are thousands of court decisions interpreting the FOIA. 14

\[Footnote\] These decisions must be considered in order to develop a
complete understanding of the principles governing disclosure of
government information. Anyone requiring more details about the FOIA,
its history, or the case law should consult other sources. There has
been less controversy and less litigation over the Privacy Act, but
there is, nevertheless, a considerable body of case law for the Privacy
Act as well. There are also other sources of information on the Privacy
Act.

\[*Footnote 14:* See, e.g., U.S. Department of Justice, Office of
Information and Privacy, *Freedom of Information Case List* (published
May 2002) and *Freedom of Information Act Guide & Privacy Act Overview*
(published May 2002).\]

However, no one should be discouraged from making a request under either
law. No special expertise is required. Using the Freedom of Information
Act and the Privacy Act is as simple as writing a letter. This
*Citizen\'s Guide* explains the essentials.

### V. WHICH ACT TO USE

The access provisions of the FOIA and the Privacy Act overlap in part.
The two laws have different procedures and different exemptions. As a
result, sometimes information exempt under one law will be disclosable
under the other.

In order to take maximum advantage of the laws, an individual seeking
information about himself or herself should ordinarily cite *both* laws.
Requests by an individual for information that does not relate solely to
himself or herself should be made only under the FOIA.

Congress intended that the two laws be considered together in the
processing of requests for information. Most government agencies will
automatically handle requests from individuals in a way that will
maximize the amount of information that is disclosable. However, a
requester should still make a request in a manner that is most
advantageous and that fully protects all available legal rights. A
requester who has any doubts about which law to use should always cite
both the FOIA *and* the Privacy Act when seeking documents from the
Federal Government.

### VI. THE FREEDOM OF INFORMATION ACT

## A. THE SCOPE OF THE FREEDOM OF INFORMATION ACT

The Federal Freedom of Information Act applies to documents held by
agencies of the executive branch of the Federal Government. The
executive branch includes cabinet departments, military departments,
government corporations, government controlled corporations, independent
regulatory agencies, and other establishments in the executive branch.

The FOIA does not apply to elected officials of the Federal Government,
including the President, 15

\[Footnote\] Vice President, Senators, and Representatives. 16

\[Footnote\] The FOIA does not apply to the Federal judiciary. The FOIA
does not apply to private companies; persons who receive Federal
contracts or grants 17

\[Footnote\] ; private organizations; or State or local governments.

\[*Footnote 15:* The Presidential Records Act of 1978, 44 U.S.C. Sec.
2201-2207 (1982), does make the documentary materials of former
Presidents subject to the FOIA in part. Presidential papers and
documents generated after Jan. 20, 1981, will be available\--subject to
certain restrictions and delays\--under the general framework of the
FOIA.\]

\[*Footnote 16:* Virtually all official records of the Congress are
available to the public. The *Congressional Record,* all bills
introduced in the House and the Senate, and all committee reports
(except for those containing classified information) are printed and
disseminated. Most committee hearings are also printed and available.
Copies of most congressional publications are available at Federal
depository libraries throughout the country. Historical records of the
Congress are made available in accordance with procedures established by
House and Senate rules.\]

In addition, almost all activities of the Congress take place in public.
The sessions of the House and Senate are normally open to the public and
televised. Most committee hearings and markups are open to the public,
and some are televised.

\[*Footnote 17:* Public Law 105-277 states, \`. . . Provided further,
That the Director of OMB amends Section\--.36 of OMB Circular A-110 to
require Federal awarding agencies to ensure that all data produced under
an award will be made available to the public through the procdedures
established under the Freedom of Information Act . . .\'.\]

All States and some localities have passed laws similar to the FOIA that
allow people to request access to records. In addition, there are other
Federal and State laws that may permit access to documents held by
organizations not covered by the Federal FOIA. 18

\[Footnote\]

\[*Footnote 18:* See, e.g., the Federal Fair Credit Reporting Act, 15
U.S.C. Sec. 1681 et seq. (1982) (providing for access to files of credit
bureaus), the Federal Family Educational Rights and Privacy Act of 1974,
20 U.S.C. 1232g (1982) (providing for access to records maintained by
schools and colleges). Some States have enacted laws allowing
individuals to have access to personnel records maintained by employers.
See, e.g., Michigan Compiled Laws Annotated 423.501.\]

## B. WHAT RECORDS CAN BE REQUESTED UNDER THE FOIA?

The FOIA requires agencies to publish in the *Federal
Register*\--thereby, under the Government Printing Office Electronic
Information Access Enhancement Act of 1993, 19

\[Footnote\] making such information available online\--(1) descriptions
of agency organization and office addresses; (2) statements of the
general course and method of agency operation; (3) rules of procedure
and descriptions of forms; and (4) substantive rules of general
applicability and general policy statements. The act also requires
agencies to make available for public inspection and copying: (1) final
opinions made in the adjudication of cases; (2) statements of policy and
interpretations adopted by an agency, but not published in the *Federal
Register;* (3) administrative staff manuals that affect the public; (4)
copies of records released in response to FOIA requests that an agency
determines have been or will likely be the subject of additional
requests; and (5) a general index of released records determined to have
been or likely to be the subject of additional requests. 20

\[Footnote\] The 1996 FOIA amendments require that these materials which
an agency must make available for inspection and copying without the
formality of a FOIA request and which are created on or after November
1, 1996, must be made available by computer telecommunications and in
hard copy. 21

\[Footnote\]

\[*Footnote 19:* 44 U.S.C. Sec. 4101 (2000); the Government Printing
Office Access Web site may be accessed at
*http://www.gpoaccess.gov/index.html.*\]

\[*Footnote 20:* The 1996 amendments to the FOIA require that this
general index be made available by computer telecommunications. Since
not all individuals have access to computer networks or are near agency
public reading rooms, requesters would still be able to access
previously released FOIA records through the normal FOIA process.\]

\[*Footnote 21:* The 1996 FOIA amendments were signed into law on
October 2, 1996.\]

All other \`records\' of a Federal agency may be requested under the
FOIA. The form in which a record is maintained by an agency does not
affect its availability. A request may seek a printed or typed document,
tape recording, map, photograph, computer printout, computer tape or
disk, or a similar item. The 1996 FOIA amendments affirm the general
policy that any record, regardless of the form in which it is stored,
that is in the possession and control of a Federal agency is usually
considered to be an agency record under the FOIA. Although the FOIA
occasionally uses terms other than \`record,\' including \`information\'
and \`matter,\' the definition of \`record\' made by the 1996 amendments
should leave no doubt about the breadth of the policy or the
interchangability of terms.

Of course, not all records that can be requested under the FOIA must be
disclosed. Information that is exempt from disclosure is described below
in the section entitled \`Reasons Access May Be Denied Under the FOIA.\'

The FOIA, it should be noted, provides that a requester may ask for
*records* rather than information. This means that an agency is only
required to look for an existing record or document in response to a
FOIA request. An agency is not obliged to create a new record to comply
with a request. An agency is neither required to collect information it
does not have, nor must an agency do research or analyze data for a
requester. 22

\[Footnote\]

\[*Footnote 22:* When records are maintained in a computer, an agency is
required to retrieve information in response to a FOIA request. The
process of retrieving the information may result in the creation of a
new document when the data is printed out on paper or written on
computer tape or disk. Since this may be the only way computerized data
can be disclosed, agencies are required to provide the data even if it
means a new document must be created.\]

Requesters must ask for existing records. Requests may have to be
carefully written in order to obtain the desired information. Sometimes,
an agency will help a requester identify a specific document that
contains the information being sought. Other times, a requester may need
to be creative when writing a FOIA request in order to identify an
existing document or set of documents containing the desired
information.

There is a second general limitation on FOIA requests. The law requires
that each request must *reasonably describe* the records being sought.
This means that a request must be specific enough to permit a
professional employee of the agency who is familiar with the subject
matter to locate the record in a reasonable period of time.

Because agencies organize and index records in different ways, one
agency may consider a request to be reasonably descriptive while another
agency may reject a similar request as too vague. For example, the
Federal Bureau of Investigation (FBI) has a central index for its
primary record system. As a result, the FBI is able to search for
records about a specific person. However, agencies that do not maintain
a central name index may be unable to conduct the same type of search.
These agencies may reject a similar request because the request does not
describe records that can be identified.

Requesters should make requests as specific as possible. If a particular
document is required, it should be identified precisely, preferably by
date and title. However, a request does *not* always have to be that
specific. A requester who cannot identify a specific record should
clearly explain his or her needs. A requester should make sure, however,
that a request is broad enough to include all desired information.

For example, assume that a requester wants to obtain a list of toxic
waste sites near his home. A request to the Environmental Protection
Agency (EPA) for all records on toxic waste would cover many more
records than are needed. The fees for such a request might be very high,
and it is possible that the request might be rejected as too vague.

A request for all toxic waste sites within 3 miles of a particular
address is very specific. However, it is unlikely that the EPA would
have an existing record containing data organized in that fashion. As a
result, the request might be denied because there is no existing record
containing the information.

The requester might do better to ask for a list of toxic waste sites in
his city, county, or State. It is more likely that existing records
might contain this information. The requester might also want to tell
the agency in the request letter exactly what information is desired.
This additional explanation may help the agency to find a record that
meets the request.

Many people include their telephone number with their requests. Some
questions about the scope of a request can be resolved quickly when an
agency employee and the requester talk. This is an efficient way to
resolve questions that arise during the processing of FOIA requests.

It is to everyone\'s advantage if requests are as precise and as narrow
as possible. The requester benefits because the request can be processed
faster and cheaper. The agency benefits because it can do a better job
of responding to the request. The agency will also be able to use its
resources to respond to more requests. The FOIA works best when both the
requester and the agency act cooperatively.

## C. MAKING A FOIA REQUEST

The first step in making a request under the FOIA is to identify the
agency that has the records. A FOIA request must be addressed to a
specific agency. There is no central government records office that
services FOIA requests.

Often, a requester knows beforehand which agency has the desired
records. If not, a requester can consult a government directory such as
the *United States Government Manual.* 23

\[Footnote\] This manual has a complete list of all Federal agencies, a
description of agency functions, and the address of each agency. A
requester who is uncertain about which agency has the records that are
needed can make FOIA requests at more than one agency.

\[*Footnote 23:* The *United States Government Manual* is sold by the
Superintendent of Documents of the U.S. Government Printing Office.
Virtually every public library should have a copy on its shelves. An
electronic version of the *Manual* may be found on the Office of the
Federal Register Web site at *http://www.access.gpo.gov/nara.*
Individual agency Web sites may also be consulted for useful FOIA
information.\]

Agencies require that FOIA requests be in writing. Letters requesting
records under the FOIA can be short and simple. No one needs a lawyer to
make a FOIA request. Appendix 1 of this *Guide* contains a sample
request letter.

The request letter should be addressed to the agency\'s FOIA officer or
to the head of the agency. The envelope containing the written request
should be marked \`Freedom of Information Act Request\' in the lower
left-hand corner. 24

\[Footnote\]

\[*Footnote 24:* All agencies have issued FOIA regulations that describe
the request process in greater detail. For example, large agencies may
have several components each of which has its own FOIA rules. A
requester who can find agency FOIA regulations in the *Code of Federal
Regulations* (available in many libraries and an electronic version may
be found on the Office of the Federal Register Web site provided in note
23) might find it useful to check these regulations before making a
request. A requester who follows the agency\'s specific procedures may
receive a faster response. However, the simple procedures suggested in
this guide will be adequate to meet the minimum requirements for a FOIA
request.\]

There are three basic elements to a FOIA request letter. First, the
letter should state that the request is being made under the Freedom of
Information Act. Second, the request should identify the records that
are being sought as specifically as possible. Third, the name and
address of the requester must be included.

Under the 1986 amendments to the FOIA the fees that may be charged vary
with the status or purpose of the requester. As a result, a requester
may have to provide additional information to permit the agency to
determine the appropriate fees. Different fees can be charged to
commercial users, representatives of the news media, educational or
noncommercial scientific institutions, and individuals. The next section
explains the fee structure in more detail.

There are several optional items that are often included in a FOIA
request. The first is the telephone number of the requester. This
permits an agency employee processing a request to speak with the
requester if necessary.

A second optional item is a limitation on the fees that the requester is
willing to pay. It is common for a requester to ask to be notified in
advance if the charges will exceed a fixed amount. This allows the
requester to modify or withdraw a request if the cost may be too high.
Also, by stating a willingness to pay a set amount of fees in the
original request letter, a requester may avoid the necessity of
additional correspondence and delay.

A third optional item sometimes included in a FOIA request is a request
for a waiver or reduction of fees. The 1986 amendments to the FOIA
changed the rules for fee waivers. Fees must be waived or reduced if
disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester. Decisions about granting fee
waivers are separate from and different than decisions about the amount
of fees that can be charged to a requester.

A fourth optional item is the specification of the form or format in
which the requested material is sought. This is an important
consideration if a requester desires the responsive information in a
particular format. For example, should information maintained by an
agency in an electronic form be provided in that same form (perhaps on a
disk or CD-ROM) or in hardcopy (such as a paper printout)? The 1996
amendments to the FOIA require agencies to help requesters by providing
information in the form requested, including requests for the electronic
form of records, if the agency can readily reproduce it in that form.
Part of this helping effort includes informing requesters of costs and
delays that format preferences might engender.

A fifth optional consideration is seeking expedited processing of a
request by showing a \`compelling need\' for a speedy response. The 1996
amendments to the FOIA require the agencies to promulgate regulations
authorizing expedited access where a requester demonstrates a
\`compelling need\' for quick response. A \`compelling need\' warranting
faster FOIA processing exists in two categories of circumstances. In the
first category, the failure to obtain the records within an expedited
deadline poses an imminent threat to an individual\'s life or physical
safety. The second category requires a request by someone \`primarily
engaged in disseminating information\' and \`urgency to inform the
public concerning actual or alleged Federal Government activity.\'
Agencies may determine other cases in which they will provide in their
regulations for expedited processing.

The specified categories for compelling need are intended to be narrowly
applied. A threat to an individual\'s life or physical safety qualifying
for expedited access should be imminent. A reasonable person should be
able to appreciate that a delay in obtaining the requested information
poses such a threat. A person \`primarily engaged in disseminating
information\' should not include individuals who are engaged only
incidentally in the dissemination of information. The standard of
\`primarily engaged\' requires that information dissemination be the
main activity of the requester, although it need not be his or her sole
occupation. A requester who only incidentally engages in information
dissemination, besides other activities, would not satisfy this
requirement.

The standard of \`urgency to inform\' requires that the information
requested should pertain to a matter constituting a current exigency for
the American public and that a reasonable person might conclude that the
consequences of delaying a response to a FOIA request would compromise a
significant recognized interest. The public\'s right to know, although a
significant and important value, would not by itself be sufficient to
satisfy this standard.

A requester should keep a copy of the request letter and related
correspondence until the request has been finally resolved.

## D. FEES AND FEE WAIVERS

FOIA requesters may have to pay fees covering some or all of the costs
of processing their requests. As amended in 1986, the law establishes
three types of fees that may be charged. The 1986 law makes the process
of determining the applicable fees more complicated. However, the 1986
rules reduce or eliminate entirely the cost for small, noncommercial
requests.

First, fees can be imposed to recover the cost of copying documents. All
agencies have a fixed price for making copies using copying machines. A
requester is usually charged the actual cost of copying computer tapes,
photographs, and other nonstandard documents.

Second, fees can also be imposed to recover the costs of searching for
documents. This includes the time spent looking for material responsive
to a request. The 1996 amendments to the FOIA define \`search\' as a
\`review, manually or by automated means,\' of \`agency records for the
purpose of locating those records responsive to a request.\' Under the
FOIA, an agency need not create documents that do not exist. Computer
records found in a database rather than a file cabinet may require the
application of codes or some form of programming to retrieve the
information. Under the definition of \`search\' in the amendments, the
review of computerized records would not amount to the creation of
records. Otherwise, it would be virtually impossible to get records
maintained completely in an electronic format, like computer database
information, because some manipulation of the information likely would
be necessary to search the records. A requester can minimize search
charges by making clear, narrow requests for identifiable documents
whenever possible.

Third, fees can be charged to recover review costs. Review is the
process of examining documents to determine whether any portion is
exempt from disclosure. Before the 1986 amendments took effect, no
review costs were charged to any requester. Review costs may be charged
to commercial requesters only. Review charges only include costs
incurred during the initial examination of a document. An agency may not
charge for any costs incurred in resolving issues of law or policy that
may arise while processing a request.

Different fees apply to different requesters. There are three categories
of FOIA requesters. The first includes representatives of the news
media, and educational or noncommercial scientific institutions whose
purpose is scholarly or scientific research. A requester in this
category who is not seeking records for commercial use can only be
billed for reasonable standard document duplication charges. A request
for information from a representative of the news media is not
considered to be for commercial use if the request is in support of a
news gathering or dissemination function.

The second category includes FOIA requesters seeking records for
commercial use. Commercial use is not defined in the law, but it
generally includes profitmaking activities. A commercial user can be
charged reasonable standard charges for document duplication, search,
and review.

The third category of FOIA requesters includes everyone not in the first
two categories. People seeking information for personal use, public
interest groups, and nonprofit organizations are examples of requesters
who fall into the third group. Charges for these requesters are limited
to reasonable standard charges for document duplication and search.
Review costs may not be charged. The 1986 amendments did not change the
fees charged to these requesters.

Small requests are free for a requester in the first and third
categories. This includes all requesters *except* commercial users.
There is no charge for the first 2 hours of search time and for the
first 100 pages of documents. A noncommercial requester who limits a
request to a small number of easily found records will not pay any fees
at all.

In addition, the law also prevents agencies from charging fees if the
cost of collecting the fee would exceed the amount collected. This
limitation applies to all requests, including those seeking documents
for commercial use. Thus, if the allowable charges for any FOIA request
are small, no fees are imposed.

Each agency sets charges for duplication, search, and review based on
its own costs. The amount of these charges is listed in agency FOIA
regulations. Each agency also sets its own threshold for minimum
charges.

The 1986 FOIA amendments also changed the law on fee waivers. Fees now
must be waived or reduced if disclosure of the information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.

The 1986 amendments on fees and fee waivers have created some confusion.
Determinations about fees are separate and distinct from determinations
about fee waivers. For example, a requester who can demonstrate that he
or she is a news reporter may only be charged duplication fees. However,
a requester found to be a reporter is not automatically entitled to a
waiver of those fees. A reporter who seeks a waiver must demonstrate
that the request also meets the standards for waivers.

Normally, only after a requester has been categorized to determine the
applicable fees does the issue of a fee waiver arise. A requester who
seeks a fee waiver should ask for a waiver in the original request
letter. However, a request for a waiver can be made at a later time. The
requester should describe how disclosure will contribute to public
understanding of the operations or activities of the government. The
sample request letter in the appendix includes optional language asking
for a fee waiver.

Any requester may ask for a fee waiver. Some will find it easier to
qualify than others. A news reporter who is only charged duplication
costs may still ask that the charges be waived because of the public
benefits that will result from disclosure. A representative of the news
media, a scholar, or a public interest group are more likely to qualify
for a waiver of fees. A commercial user may find it difficult to qualify
for waivers.

The eligibility of other requesters will vary. A key element in
qualifying for a fee waiver is the relationship of the information to
public understanding of the operations or activities of government.
Another important factor is the ability of the requester to convey that
information to other interested members of the public. A requester is
not eligible for a fee waiver solely because of indigence.

## E. REQUIREMENTS FOR AGENCY RESPONSES

Under the 1996 amendments to the FOIA, each agency is required to
determine within 20 days (excluding Saturdays, Sundays, and legal
holidays) after the receipt of a request whether to comply with the
request. 25

\[Footnote\] The actual disclosure of documents is required to follow
promptly thereafter. If a request is denied in whole or in part, the
agency must tell the requester the reasons for the denial. The agency
must also tell the requester that there is a right to appeal any adverse
determination to the head of the agency or his or her designee.

\[*Footnote 25:* The new response requirements of the 1996 amendments to
the FOIA became effective on October 2, 1997.\]

The FOIA permits an agency to extend the time limits up to 10 days in
unusual circumstances. These circumstances include the need to collect
records from remote locations, review large numbers of records, and
consult with other agencies. The agency is supposed to notify the
requester whenever an extension is invoked. 26

\[Footnote\]

\[*Footnote 26:* Agencies that take more than 20 days to respond to a
request do not always notify each requester that an extension has been
invoked.\]

The statutory time limits for responses are not always met. An agency
sometimes receives an unexpectedly large number of FOIA requests at one
time and is unable to meet the deadlines. Some agencies assign
inadequate resources to FOIA offices. Congress does not condone the
failure of any agency to meet the law\'s time limits. However, as a
practical matter, there is little that a requester can do about it. The
courts have been reluctant to provide relief solely because the FOIA\'s
time limits have not been met.

The best advice to requesters is to be patient. The law allows a
requester to consider that his or her request has been denied if it has
not been decided within the time limits. This permits the requester to
file an administrative appeal or file a lawsuit in Federal District
Court. However, this is not always the best course of action. The filing
of an administrative or judicial appeal will not necessarily result in
any faster processing of the request.

Each agency generally processes requests in the order of receipt. Some
agencies will expedite the processing of urgent requests. Anyone with a
pressing need for records should consult with the agency FOIA officer
about how to ask for expedited treatment of requests.

The 1996 amendments to the FOIA made several changes to the response
requirements. Agencies have long processed FOIA requests on a \`first
in, first out\' basis. Processing requests solely on this basis,
however, has resulted in lengthy delays for simple requests. The prior
receipt and processing of complex requests delays other requests,
increasing agency backlogs. To change this situation, the 1996
amendments to the FOIA authorize agencies to promulgate regulations
establishing multitrack processing systems, and make clear that agencies
should exercise due diligence within each track. Under these new
arrangements, agencies also may give requesters the opportunity to limit
the scope of their requests to qualify for processing under a faster
track.

As previously noted, the 1996 amendments also increase from 10 to 20
days (excluding Saturdays, Sundays, and legal holidays) the time allowed
for an agency, after receiving a request, to determine whether to comply
with the request. Moreover, the amendments provide a mechanism to deal
with unusually burdensome requests which an agency would not be able to
process within prescribed timeframes, including an extra 10 days for
\`unusual circumstances.\' For such requests, the 1996 amendments
require an agency to inform the requester that the request cannot be
processed within the statutory time limits and provide an opportunity
for the requester to limit the scope of the request so that it may be
processed within statutory time limits, and/or arrange with the agency a
negotiated deadline for processing the request. In the event the
requester refuses to reasonably limit the scope of the request or agree
upon a timeframe and then seeks judicial review, that refusal shall be
considered as a factor in determining whether \`exceptional
circum-stances\' exist for a judicial extension of processing time.

The FOIA formerly provided that, in \`exceptional circumstances,\' a
court may extend the statutory time limits for an agency to respond to a
FOIA request, but did not specify what those circumstances are. The 1996
amendments clarify that routine, predictable agency backlogs for FOIA
requests do not constitute exceptional circumstances for purposes of the
act. Routine backlogs of requests for records under the FOIA do not give
agencies an automatic excuse to ignore the time limits. A court shall
consider an agency\'s efforts to reduce the number of pending requests
in determining whether exceptional circumstances exist. Agencies may
also make a showing of exceptional circumstances based on the amount of
material classified, based upon the size and complexity of other
requests processed by the agency, based upon the resources being devoted
to the declassification of classified material of public interest, or
based upon the number of requests for records by courts or
administrative tribunals. A court also shall consider a requester\'s
unwillingness to reasonably limit the scope of his or her request or to
agree upon a processing timeframe prior to seeking judicial review.

## F. REASONS ACCESS MAY BE DENIED UNDER THE FOIA

An agency may refuse to disclose an agency record that falls within any
of the FOIA\'s nine statutory exemptions. The exemptions protect against
the disclosure of information that would harm national defense or
foreign policy, privacy of individuals, proprietary interests of
business, functioning of the government, and other important interests.
A document that does not qualify as an \`agency record\' may be denied
because only agency records are available under the FOIA. Personal notes
of agency employees may be denied on this basis. However, most records
in the possession of an agency are \`agency records\' within the meaning
of the FOIA.

An agency may withhold exempt information, but it is not always required
to do so. For example, an agency may disclose an exempt internal
memorandum because no harm would result from its disclosure. However, an
agency should not disclose an exempt document that is classified or that
contains a trade secret.

When a record contains some information that qualifies as exempt, the
entire record is not necessarily exempt. Instead, the FOIA specifically
provides that any reasonably segregable portions of a record must be
provided to a requester after the deletion of the portions that are
exempt. This is a very important requirement because it prevents an
agency from withholding an entire document simply because one line or
one page is exempt.

The ease with which in electronic form or format may be redacted
(deleting part of a record to prevent disclosure of material covered by
an exemption) makes the determination of whether a few words or 30 pages
have been withheld by an agency at times impossible. The 1996 amendments
to the FOIA require agencies to identify the location of deletions in
the released portion of the record and, where technologically feasible,
to show the deletion at the place on the record where the deletion was
made, unless including that indication would harm an interest protected
by an exemption.

*1. Exemption 1- Classified Documents*

The first FOIA exemption permits the withholding of properly classified
documents. Information may be classified in the interest of national
defense or foreign policy.

The rules for classification are established by the President and not
the FOIA or other law. The FOIA provides that, if a document has been
*properly* classified under a Presidential Executive order, the document
can be withheld from disclosure.

Classified documents may be requested under the FOIA. An agency can
review the document to determine if it still requires protection. In
addition, the Executive order on security classification establishes a
special procedure for requesting the declassification of documents. 27

\[Footnote\] If a requested document is declassified, it can be released
in response to a FOIA request. However, a document that is declassified
may still be exempt under other FOIA exemptions.

\[*Footnote 27:* At the time that this *Guide* was prepared, the current
Executive order on security classification was Executive Order 12958 (60
*Federal Register* 19825-43 (Apr. 20, 1995)), which was promulgated on
Apr. 17, 1995, as amended by Executive Order 13142 of Nov. 19, 1999 (64
*Federal Register* 66089-90 (Nov. 23, 1999)), and Executive Order 13292
of Mar. 25, 2003 (68 *Federal Register* 15315-34 (Mar. 28, 2003)). The
texts of these orders may be found in the *Federal Register* at the
provided citations, and electronic versions may be found on the Office
of the Federal Register Web site provided at note 23. The rules for
mandatory review for declassification are in section 3.5 of Executive
Order 12598, as amended.\]

*2. Exemption 2- Internal Personnel Rules and Practices*

The second FOIA exemption covers matters that are related solely to an
agency\'s internal personnel rules and practices. As interpreted by the
courts, there are two separate classes of documents that are generally
held to fall within exemption 2.

First, information relating to personnel rules or internal agency
practices is exempt if it is a trivial administrative matter of no
genuine public interest. A rule governing lunch hours for agency
employees is an example.

Second, an internal administrative manual can be exempt if disclosure
would risk circumvention of law or agency regulations. In order to fall
into this category, the material will normally have to regulate internal
agency conduct rather than public behavior.

*3. Exemption 3- Information Exempt Under Other Laws*

The third exemption incorporates into the FOIA other laws that restrict
the availability of information. To qualify under this exemption, a
statute must require that matters be withheld from the public in such a
manner as to leave no discretion to the agency. Alternatively, the
statute must establish particular criteria for withholding *or* refer to
particular types of matters to be withheld.

One example of a qualifying statute is the provision of the Internal
Revenue Code prohibiting the public disclosure of tax returns and tax
return information. 28

\[Footnote\] Another qualifying exemption 3 statute is the law
designating identifiable census data as confidential. 29

\[Footnote\] Whether a particular statute qualifies under exemption 3
can be a difficult legal question.

\[*Footnote 28:* 26 U.S.C. Sec. 6103 (2000).\]

\[*Footnote 29:* 13 U.S.C. Sec. 9 (2000).\]

*4. Exemption 4- Confidential Business Information*

The fourth exemption protects from public disclosure two types of
information: Trade secrets and confidential business information. A
trade secret is a commercially valuable plan, formula, process, or
device. This is a narrow category of information. An example of a trade
secret is the recipe for a commercial food product.

The second type of protected data is commercial or financial information
obtained from a person and privileged or confidential. The courts have
held that data qualifies for withholding if disclosure by the government
would be likely to harm the competitive position of the person who
submitted the information. Detailed information on a company\'s
marketing plans, profits, or costs can qualify as confidential business
information. Information may also be withheld if disclosure would be
likely to impair the government\'s ability to obtain similar information
in the future.

Only information obtained from a person other than a government agency
qualifies under the fourth exemption. A person is an individual, a
partnership, or a corporation. Information that an agency created on its
own cannot normally be withheld under exemption 4.

Although there is no formal requirement under the FOIA, many agencies
will notify a submitter of business information that disclosure of the
information is being considered. 30

\[Footnote\] The submitter then has an opportunity to convince the
agency that the information qualifies for withholding. A submitter can
also file suit to block disclosure under the FOIA. Such lawsuits are
generally referred to as \`reverse\' FOIA lawsuits because the FOIA is
being used in an attempt to *prevent* rather than to *require* the
disclosure of information. A reverse FOIA lawsuit may be filed when the
submitter of documents and the government disagree whether the
information is exempt.

\[*Footnote 30:* See *Predisclosure Notification Procedures for
Confidential Commercial Information,* Executive Order 12600, 3 C.F.R.
235 (1988).\]

*5. Exemption 5- Internal Government Communications*

The FOIA\'s fifth exemption applies to internal government documents. An
example is a letter from one government department to another about a
joint decision that has not yet been made. Another example is a
memorandum from an agency employee to his supervisor describing options
for conducting the agency\'s business.

The purpose of the fifth exemption is to safeguard the deliberative
policymaking process of government. The exemption encourages frank
discussion of policy matters between agency officials by allowing
supporting documents to be withheld from public disclosure. The
exemption also protects against premature disclosure of policies before
final adoption.

While the policy behind the fifth exemption is well accepted, the
application of the exemption is complicated. The fifth exemption may be
the most difficult FOIA exemption to understand and apply. For example,
the exemption protects the policymaking process, but it does not protect
purely factual information related to the policy process. Factual
information must be disclosed unless it is inextricably intertwined with
protected information about an agency decision.

Protection for the decisionmaking process is appropriate only for the
period while decisions are being made. Thus, the fifth exemption has
been held to distinguish between documents that are pre-decisional and
therefore may be protected, and those which are post-decisional and
therefore not subject to protection. Once a policy is adopted, the
public has a greater interest in knowing the basis for the decision.

The exemption also incorporates some of the privileges that apply in
litigation involving the government. For example, papers prepared by the
government\'s lawyers can be withheld in the same way that papers
prepared by private lawyers for clients are not available through
discovery in civil litigation.

*6. Exemption 6- Personal Privacy*

The sixth exemption covers personnel, medical, and similar files the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy. This exemption protects the privacy interests of
individuals by allowing an agency to withhold personal data kept in
government files. Only individuals have privacy interests. Corporations
and other legal persons have no privacy rights under the sixth
exemption.

The exemption requires agencies to strike a balance between an
individual\'s privacy interest and the public\'s right to know. However,
since only a *clearly* unwarranted invasion of privacy is a basis for
withholding, there is a perceptible tilt in favor of disclosure in the
exemption. Nevertheless, the sixth exemption makes it harder to obtain
information about another individual without the consent of that
individual.

The Privacy Act of 1974 also regulates the disclosure of personal
information about an individual. The FOIA and the Privacy Act overlap in
part, but there is no inconsistency. An individual seeking records about
himself or herself should cite both laws when making a request. This
ensures that the maximum amount of disclosable information will be
released. Records that can be denied to an individual under the Privacy
Act are not necessarily exempt under the FOIA.

*7. Exemption 7- Law Enforcement*

The seventh exemption allows agencies to withhold law enforcement
records in order to protect the law enforcement process from
interference. The exemption was amended slightly in 1986, but it still
retains six specific subexemptions.

Exemption (7)(A) allows the withholding of a law enforcement record that
could reasonably be expected to interfere with enforcement proceedings.
This exemption protects an active law enforcement investigation from
interference through premature disclosure.

Exemption (7)(B) allows the withholding of information that would
deprive a person of a right to a fair trial or an impartial
adjudication. This exemption is rarely used.

Exemption (7)(C) recognizes that individuals have a privacy interest in
information maintained in law enforcement files. If the disclosure of
information could reasonably be expected to constitute an unwarranted
invasion of personal privacy, the information is exempt from disclosure.
The standards for privacy protection in exemption 6 and exemption (7)(C)
differ slightly. Exemption (7)(C) protects against an unwarranted
invasion of personal privacy while exemption 6 protects against a
*clearly* unwarranted invasion. Also, exemption (7)(C) allows the
withholding of information that \`could reasonably be expected to\'
invade someone\'s privacy. Under exemption 6, information can be
withheld only if disclosure \`would\' invade someone\'s privacy.

Exemption (7)(D) protects the identity of confidential sources.
Information that could reasonably be expected to reveal the identity of
a confidential source is exempt. A confidential source can include a
State, local, or foreign agency or authority, or a private institution
that furnished information on a confidential basis. In addition, the
exemption protects information furnished by a confidential source if the
data was compiled by a criminal law enforcement authority during a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation.

Exemption (7)(E) protects from disclosure information that would reveal
techniques and procedures for law enforcement investigations or
prosecutions or that would disclose guidelines for law enforcement
investigations or prosecutions if disclosure of the information could
reasonably be expected to risk circumvention of the law.

Exemption (7)(F) protects law enforcement information that could
reasonably be expected to endanger the life or physical safety of any
individual.

*8. Exemption 8- Financial Institutions*

The eighth exemption protects information that is contained in or
related to examination, operating, or condition reports prepared by or
for a bank supervisory agency such as the Federal Deposit Insurance
Corporation, the Federal Reserve, or similar agencies.

*9. Exemption 9- Geological Information*

The ninth FOIA exemption covers geological and geophysical information,
data, and maps about wells. This exemption is rarely used.

## G. FOIA EXCLUSIONS

The 1986 amendments to the FOIA gave limited authority to agencies to
respond to a request without confirming the existence of the requested
records. Ordinarily, any proper request must receive an answer stating
whether there is any responsive information, even if the requested
information is exempt from disclosure.

In some narrow circumstances, acknowledgement of the *existence* of a
record can produce consequences similar to those resulting from
disclosure of the record itself. In order to avoid this type of problem,
the 1986 amendments established three \`record exclusions.\'

The exclusions allow an agency to treat certain exempt records as if the
records were not subject to the FOIA. An agency is not required to
confirm the existence of three specific categories of records. If these
records are requested, the agency may respond that there are no
disclosable records responsive to the request. However, these exclusions
do not broaden the authority of any agency to withhold documents from
the public. The exclusions are only applicable to information that is
otherwise exempt from disclosure.

The first exclusion may be used when a request seeks information that is
exempt because disclosure could reasonably be expected to interfere with
a current law enforcement investigation (exemption (7)(A)). There are
three specific prerequisites for the application of this exclusion.
First, the investigation in question must involve a possible violation
of criminal law. Second, there must be reason to believe that the
subject of the investigation is not already aware that the investigation
is underway. Third, disclosure of the *existence* of the records\--as
distinguished from the contents of the records\--could reasonably be
expected to interfere with enforcement proceedings.

When all of these conditions exist, an agency may respond to a FOIA
request for investigatory records as if the records are not subject to
the requirements of the FOIA. In other words, the agency\'s response
does not have to reveal that it is conducting an investigation.

The second exclusion applies to informant records maintained by a
criminal law enforcement agency under the informant\'s name or personal
identifier. The agency is not required to confirm the existence of these
records unless the informant\'s status has been officially confirmed.
This exclusion helps agencies to protect the identity of confidential
informants. Information that might identify informants has always been
exempt under the FOIA.

The third exclusion only applies to records maintained by the Federal
Bureau of Investigation which pertain to foreign intelligence,
counterintelligence, or international terrorism. When the *existence* of
these types of records is classified, the FBI may treat the records as
not subject to the requirements of FOIA.

This exclusion does not apply to all classified records on the specific
subjects. It only applies when the records are classified and when the
*existence* of the records is also classified. Since the underlying
records must be classified before the exclusion is relevant, agencies
have no new substantive withholding authority.

In enacting these exclusions, congressional sponsors stated that it was
their intent that agencies must inform FOIA requesters that these
exclusions are available for agency use. Requesters who believe that
records were improperly withheld because of the exclusions can seek
judicial review.

## H. ADMINISTRATIVE APPEAL PROCEDURES

Whenever a FOIA request is denied, the agency must inform the requester
of the reasons for the denial and the requester\'s right to appeal the
denial to the head of the agency. A requester may appeal the denial of a
request for a document or for a fee waiver. A requester may contest the
type or amount of fees that were charged. A requester may appeal any
other type of adverse determination, including a rejection of a request
for failure to describe adequately the documents being requested or a
response indicating that no requested records were located. A requester
can also appeal because the agency failed to conduct an adequate search
for the documents that were requested.

A person whose request was granted in part and denied in part may appeal
the part that was denied. If an agency has agreed to disclose some but
not all requested documents, the filing of an appeal does not affect the
release of the documents that are disclosable. There is no risk to the
requester in filing an appeal.

The appeal to the head of the agency is a simple administrative appeal.
A lawyer can be helpful, but no one needs a lawyer to file an appeal.
Anyone who can write a letter can file an appeal. Appeals to the head of
the agency often result in the disclosure of some records that had been
withheld. A requester who is not convinced that the agency\'s initial
decision is correct should appeal. There is no charge for filing an
administrative appeal.

An appeal is filed by sending a letter to the head of the agency. The
letter must identify the FOIA request that is being appealed. The
envelope containing the letter of appeal should be marked in the lower
left-hand corner with the words \`Freedom of Information Act Appeal.\'
31

\[Footnote\]

\[*Footnote 31:* Agency FOIA regulations will ordinarily describe the
appeal procedures and requirements with more specificity. At most
agencies, decisions on FOIA appeals have been delegated to other agency
officials. Requesters who have an opportunity to review agency
regulations in the *Code of Federal Regulations* (available in many
libraries and on the Office of the Federal Register Web site provided at
note 23) may be able to speed up the processing of the appeal. However,
following the simple procedures described in this *Guide* will be
sufficient to maintain a proper appeal.\]

Many agencies assign a number to all FOIA requests that are received.
The number should be included in the appeal letter, along with the name
and address of the requester. It is a common practice to include a copy
of the agency\'s initial decision letter as part of the appeal, but this
is not ordinarily required. It can also be helpful for the requester to
include a telephone number in the appeal letter.

An appeal will normally include the requester\'s arguments supporting
disclosure of the documents. A requester may include any facts or any
arguments supporting the case for reversing the initial decision.
However, an appeal letter does not have to contain any arguments at all.
It is sufficient to state that the agency\'s initial decision is being
appealed. Appendix 1 includes a sample appeal letter.

The FOIA does not set a time limit for filing an administrative appeal
of a FOIA denial. However, it is good practice to file an appeal
promptly. Some agency regulations establish a time limit for filing an
administrative appeal. A requester whose appeal is rejected by an agency
because it is too late may refile the original FOIA request and start
the process again.

An agency is required to make a decision on an appeal within 20 days
(excluding Saturdays, Sundays, and legal holidays). It is possible for
an agency to extend the time limits by an additional 10 days. Once the
time period has elapsed, a requester may consider that the appeal has
been denied and may proceed with a judicial appeal. However, unless
there is an urgent need for records, this may not be the best course of
action. The courts are not sympathetic to appeals based solely on an
agency\'s failure to comply with the FOIA\'s time limits.

## I. FILING A JUDICIAL APPEAL

When an administrative appeal is denied, a requester has the right to
appeal the denial in court. A FOIA appeal lawsuit can be filed in the
U.S. District Court in the district where the requester lives. The
requester can also file suit in the district where the documents are
located or in the District of Columbia. When a requester goes to court,
the burden of justifying the withholding of documents is on the
government. This is a distinct advantage for the requester.

Requesters are sometimes successful when they go to court, but the
results vary considerably. Some requesters who file judicial appeals
find that an agency will disclose some documents previously withheld
rather than fight about disclosure in court. This does not always
happen, and there is no guarantee that the filing of a judicial appeal
will result in any additional disclosure.

Most requesters require the assistance of an attorney to file a judicial
appeal. A person who files a lawsuit and substantially prevails may be
awarded reasonable attorney fees and litigation costs reasonably
incurred. Some requesters may be able to handle their own case without
an attorney. Since this is not a litigation guide, details of the
judicial appeal process have not been included. Anyone considering
filing a FOIA lawsuit can begin by reading the provisions of the FOIA on
judicial review. 32

\[Footnote\]

\[*Footnote 32:* More information on judicial review under the FOIA and
Privacy Act may be found in Harry A. Hammit, David L. Sobel, and Mark S.
Zaid, *Litigation Under the Federal Open Government Laws 2002*
(Electronic Privacy Information Center).\]

### VII. THE PRIVACY ACT OF 1974

## A. THE SCOPE OF THE PRIVACY ACT OF 1974

The Privacy Act of 1974 provides safeguards against an invasion of
privacy through the misuse of records by Federal agencies. In general,
the act allows a citizen to learn how records are collected, maintained,
used, and disseminated by the Federal Government. The act also permits
an individual to gain access to most personal information maintained by
Federal agencies and to seek amendment of any inaccurate, incomplete,
untimely, or irrelevant information.

The Privacy Act applies to personal information maintained by agencies
in the executive branch of the Federal Government. The executive branch
includes cabinet departments, military departments, government
corporations, government controlled corporations, independent regulatory
agencies, and other establishments in the executive branch. Agencies
subject to the Freedom of Information Act are also subject to the
Privacy Act. The Privacy Act does not generally apply to records
maintained by State and local governments or private companies or
organizations. 33

\[Footnote\]

\[*Footnote 33:* The Privacy Act applies to some records that are not
maintained by an agency. Subsection (m) of the act provides that, when
an agency provides by contract for the operation of a system of records
on its behalf, the requirements of the Privacy Act apply to those
records. As a result, some records maintained outside of a Federal
agency are subject to the Privacy Act. Descriptions of these systems are
published in the *Federal Register.* However, most records maintained
outside of Federal agencies are not subject to the Privacy Act.\]

The Privacy Act only grants rights to U.S. citizens and to aliens
lawfully admitted for permanent residence. As a result, a nonresident
foreign national cannot use the act\'s provisions. However, a
nonresident foreign national may use the FOIA to request records about
himself or herself.

In general, the only records subject to the Privacy Act are records that
are maintained in a system of records. The idea of a \`system of
records\' is unique to the Privacy Act and requires explanation.

The act defines a \`record\' to include most personal information
maintained by an agency about an individual. A record contains
individually identifiable information, including but not limited to
information about education, financial transactions, medical history,
criminal history, or employment history. A \`system of records\' is a
group of records from which information is actually retrieved by name,
Social Security number, or other identifying symbol assigned to an
individual.

Some personal information is not kept in a system of records. This
information is not subject to the provisions of the Privacy Act,
although access may be requested under the FOIA. Most personal
information in government files is subject to the Privacy Act.

The Privacy Act also establishes general records management requirements
for Federal agencies. In summary, there are five basic requirements that
are most relevant to individuals.

First, each agency must establish procedures allowing individuals to see
and copy records about themselves. An individual may also seek to amend
any information that is not accurate, relevant, timely, or complete. The
rights to inspect and to correct records are the most important
provisions of the Privacy Act. This *Guide* explains in more detail how
an individual can exercise these rights.

Second, each agency must publish notices describing all systems of
records. The notices include a complete description of personal data
recordkeeping policies, practices, and systems. This requirement
prevents the maintenance of secret record systems.

Third, each agency must make reasonable efforts to maintain accurate,
relevant, timely, and complete records about individuals. Agencies are
prohibited from maintaining information about how individuals exercise
rights guaranteed by the first amendment to the U.S. Constitution unless
maintenance of the information is specifically authorized by statute or
by the individual or relates to an authorized law enforcement activity.

Fourth, the act establishes rules governing the use and disclosure of
personal information. The act specifies that information collected for
one purpose may not be used for another purpose without notice to or the
consent of the subject of the record. The act also requires that each
agency keep a record of some disclosures of personal information.

Fifth, the act provides legal remedies that permit an individual to seek
enforcement of the rights granted under the act. In addition, Federal
employees who fail to comply with the act\'s provisions may be subjected
to criminal penalties.

## B. THE COMPUTER MATCHING AND PRIVACY PROTECTION ACT

The Computer Matching and Privacy Protection Act of 1988 amended the
Privacy Act by adding new provisions regulating the use of computer
matching. Records used during the conduct of a matching program are
subject to an additional set of requirements.

Computer matching is the computerized comparison of information about
individuals for the purpose of determining eligibility for Federal
benefit programs. A matching program can be subject to the requirements
of the Computer Matching Act if records from a Privacy Act system of
records are used during the program. If Federal Privacy Act records are
matched against State or local records, then the State or local matching
program can be subject to the new matching requirements.

In general, matching programs involving Federal records must be
conducted under a matching agreement between the source and recipient
agencies. The matching agreement describes the purpose and procedures of
the matching and establishes protections for matching records. The
agreement is subject to review and approval by a Data Integrity Board.
Each Federal agency involved in a matching activity must establish a
Data Integrity Board.

For an individual seeking access to or correction of records, the
computer matching legislation provides no special access rights. If
matching records are Federal records, then the access and correction
provisions of the Privacy Act apply. There is no general right of access
or correction for matching records of State and local agencies. It is
possible that rights are available under State or local laws. There is,
however, a requirement that an individual be notified of agency findings
prior to the taking of any adverse action as a result of a computer
matching program. An individual must also be given an opportunity to
contest such findings. The notice and opportunity-to-contest provisions
apply to matching records whether the matching was done by the Federal
Government or by a State or local government. Section 7201 of Public Law
101-508 modified the due process notice requirement to permit the use of
statutory or regulatory notice periods.

The matching provisions also require that any agency\--Federal or
non-Federal\--involved in computer matching must independently verify
information used to take adverse action against an individual. This
requirement was included in order to protect individuals from arbitrary
or unjustified denials of benefits. Independent verification includes
independent investigation and confirmation of information. Public Law
101-508 also modified the independent verification requirement in
circumstances in which it was unnecessary.

Most of the provisions of the Computer Matching and Privacy Protection
Act of 1988 were originally scheduled to become effective in July 1989.
Public Law 101-56 delayed the effective date for most matching programs
until January 1, 1990.

## C. LOCATING RECORDS

There is no central index of Federal Government records about
individuals. An individual who wants to inspect records about himself or
herself must first identify which agency has the records. Often, this
will not be difficult. For example, an individual who was employed by
the Federal Government knows that the employing agency or the Office of
Personnel Management maintains personnel files.

Similarly, an individual who receives veterans\' benefits will normally
find relevant records at the Department of Veterans Affairs or at the
Defense Department. Tax records are maintained by the Internal Revenue
Service, Social Security records by the Social Security Administration,
passport records by the State Department, etc.

For those who are uncertain about which agency has the records that are
needed, there are several sources of information. First, an individual
can ask an agency that might maintain the records. If that agency does
not have the records, it may be able to identify the proper agency.

Second, a government directory such as the *United States Government
Manual* 34

\[Footnote\] contains a complete list of all Federal agencies, a
description of agency functions, and the address of the agency and its
field offices. An agency responsible for operating a program normally
maintains the records related to that program.

\[*Footnote 34:* The *United States Government Manual* is sold by the
Superintendent of Documents of the U.S. Government Printing Office.
Virtually every public library should have a copy. An electronic version
of the *Manual* may be found on the Office of the Federal Register Web
site provided at note 23.\]

Third, a Federal Information Center can help to identify government
agencies, their functions, and their records. These Centers, which are
operated by the General Services Administration, serve as clearinghouses
for information about the Federal Government. There are Federal
Information Centers throughout the country.

Fourth, every 2 years, the Office of the Federal Register publishes a
compilation of system of records notices for all agencies. These notices
contain a complete description of each record system maintained by each
agency. The compilation is the most complete reference for information
about Federal agency personal information practices. 35

\[Footnote\] The information that appears in the compilation also
appears in various issues of the *Federal Register.* 36

\[Footnote\]

\[*Footnote 35:* Each system notice contains the name of the system; its
location; the categories of individuals covered by the system; the
categories of records in the system; the legal authority for maintenance
of the system; the routine disclosures that may be made for records in
the system; the policies and practices of storing, retrieving,
accessing, retaining, and disposing of records; the name and address of
the manager of the system; procedures for requesting access to the
records; procedures for requesting correction or amendment of the
records; the source of the information in the system; and a description
of any disclosure exemptions that may be applied to the records in the
system.\]

\[*Footnote 36:* Agencies are required to publish in the *Federal
Register* a description of each system of records when the system is
established or amended. In the past, agencies were required to publish
an annual compilation in the *Federal Register,* but that requirement
was eliminated in 1982. As a result, it will be difficult to find a
complete list of all systems of records in the *Federal Register.* Some
agencies do, however, reprint all system notices from time to time. An
agency\'s Privacy Act/FOIA officer may be able to provide more
information about the agency\'s publication practices. An electronic
version of the most recent compilation of Privacy Act regulations and
systems of records may be found on the Office of the Federal Register
Web site provided at note 23.\]

The compilation\--formally called *Privacy Act Issuances*\--may be
difficult to find and hard to use. It does not contain a comprehensive
index. Copies will be available in some Federal depository libraries and
possibly some other libraries as well as the Web site maintained by the
Office of the Federal Register (see note 22). Although the compilation
is the best single source of detailed information about personal records
maintained by Federal agencies, it is not necessary to consult the
compilation before making a Privacy Act request. A requester is not
required to identify the specific system of records that contains the
information being sought. It is sufficient to identify the agency that
has the records. Using information provided by the requester, the agency
will determine which system of records has the files that have been
requested.

Those who request records under the Privacy Act can help the agency by
identifying the type of records being sought. Large agencies maintain
hundreds of different record systems. A request can be processed faster
if the requester tells the agency that he or she was employed by the
agency, was the recipient of benefits under an agency program, or had
other specific contacts with the agency.

## D. MAKING A PRIVACY ACT REQUEST FOR ACCESS

The fastest way to make a Privacy Act request is to identify the
specific system of records. The request can be addressed to the system
manager. Few people do this. Instead, most people address their requests
to the head of the agency that has the records or to the agency\'s
Privacy Act/FOIA officer. The envelope containing the written request
should be marked \`Privacy Act/FOIA Request\' in the bottom left-hand
corner. 37

\[Footnote\]

\[*Footnote 37:* All agencies have Privacy Act regulations that describe
the request process in greater detail. Large agencies may have several
components, each of which has its own Privacy Act rules. Requesters who
can find agency Privacy Act regulations in the *Code of Federal
Regulations* (available in many libraries and an electronic version may
be found on the Office of the Federal Register Web site provided in note
23) might read these regulations before making a request. A requester
who follows the agency\'s specific procedures may receive a faster
response. However, the simple procedures suggested in this guide are
adequate to meet the minimum statutory requirements for a Privacy Act
request.\]

There are three basic elements to a request for records under the
Privacy Act. First, the letter should state that the request is being
made under the Privacy Act. Second, the letter should include the name,
address, and signature of the requester. Third, the request should
describe the records as specifically as possible. Appendix 1 includes a
sample Privacy Act request letter.

It is a common practice for an individual seeking records about himself
or herself to make the request under *both* the Privacy Act of 1974 and
the Freedom of Information Act. See the discussion in the front of this
*Guide* about which act to use.

A requester can describe the records by identifying a specific system of
records, by describing his or her contacts with an agency, or by simply
asking for all records about himself or herself. The broader and less
specific a request is, the longer it may take for an agency to respond.

It is a good practice for a requester to describe the type of records
that he or she expects to find. For example, an individual seeking a
copy of his service record in the Army should state that he was in the
Army and include the approximate dates of service. This will help the
Defense Department narrow its search to record systems that are likely
to contain the information being sought. An individual seeking records
from the Federal Bureau of Investigation (FBI) may ask that files in
specific field offices be searched in addition to the FBI\'s central
office files. The FBI does not routinely search field office records
without a specific request.

An agency will generally require a requester to provide some proof of
identity before records will be disclosed. Agencies may have different
requirements. Some agencies will accept a signature; others may require
certification of identity by a notarized signature or by a declaration
by the requester under penalty of perjury. If an individual goes to the
agency to inspect records, standard personal identification may be
acceptable. More stringent requirements may apply if the records being
sought are especially sensitive.

An agency will inform requesters of any special identification
requirements. Requesters who need records quickly should first consult
agency regulations or talk to the agency\'s Privacy Act/FOIA officer to
find out how to provide adequate identification.

An individual who visits an agency office to inspect a Privacy Act
record may bring along a friend or relative to review the record. When a
requester brings another person, the agency may ask the requester to
sign a written statement authorizing discussion of the record in the
presence of that person.

It is a crime to knowingly and willfully request or obtain records under
the Privacy Act under false pretenses. A request for access under the
Privacy Act can only be made by the subject of the record. An individual
cannot make a request under the Privacy Act for a record about another
person. The only exception is for a parent or legal guardian who may
request records on behalf of a minor or a person who has been declared
incompetent.

## E. FEES

Under the Privacy Act, fees can only be charged for the cost of copying
records. No fees may be charged for the time it takes to search for
records or for the time it takes to review the records to determine if
any exemptions apply. This is a major difference from the FOIA. Under
the FOIA, fees can sometimes be charged to recover search costs and
review costs. 38

\[Footnote\] The different fee structure in the two laws is one reason
many requesters seeking records about themselves cite both laws. This
minimizes allowable fees.

\[*Footnote 38:* An individual seeking records about himself or herself
under the FOIA should not be charged review charges. The only charges
applicable under the FOIA are search and copy charges.\]

Many agencies will not charge fees for making a copy of a Privacy Act
file, especially when the file is small. If paying the copying charges
is a problem, the requester should explain in the request letter. An
agency can waive fees under the Privacy Act.

## F. REQUIREMENTS FOR AGENCY RESPONSES

Unlike the FOIA, there is no fixed time when an agency must respond to a
request for access to records under the Privacy Act. It is good practice
for an agency to acknowledge receipt of a Privacy Act request within 10
days and to provide the requested records within 30 days.

At many agencies, FOIA and Privacy Act requests are processed by the
same personnel. When there is a backlog of requests, it takes longer to
receive a response. As a practical matter, there is little that a
requester can do when an agency response is delayed. Requesters should
be patient.

Agencies generally process requests in the order in which they were
received. Some agencies will expedite the processing of urgent requests.
Anyone with a pressing need for records should consult with the agency
Privacy Act/FOIA officer about how to ask for expedited treatment of
requests.

## G. REASONS ACCESS MAY BE DENIED UNDER THE PRIVACY ACT

Not all records about an individual must be disclosed under the Privacy
Act. Some records may be withheld to protect important government
interests such as national security or law enforcement.

The Privacy Act exemptions are different than the exemptions of the
FOIA. Under the FOIA, any record may be withheld from disclosure if it
contains exempt information when a request is received. The decision to
apply a FOIA exemption is made only after a request has been made. In
contrast, Privacy Act exemptions apply not to a record but to a system
of records. Before an agency can apply a Privacy Act exemption, the
agency must first issue a regulation stating that there may be exempt
records in that system of records.

Without reviewing system notices or agency regulations, it is hard to
tell whether particular Privacy Act records are exempt from disclosure.
However, it is a safe assumption that any system of records that
qualifies for an exemption has been exempted by the agency.

Since most record systems are not exempt, the exemptions are not
relevant to most requests. Also, agencies do not always rely upon
available Privacy Act exemptions unless there is a specific reason to do
so. Thus, some records that could be withheld will nevertheless be
disclosed upon request.

Because Privacy Act exemptions are complex and used infrequently, most
requesters need not worry about them. The exemptions are discussed here
for those interested in the act\'s details and for reference when an
agency withholds records. Anyone needing more information about the
Privacy Act\'s exemptions can begin by reading the relevant sections of
the act. The complete text of the act is reprinted in an appendix to
this *Guide.* 39

\[Footnote\]

\[*Footnote 39:* In 1975, the Office of Management and Budget (OMB)
issued guidance to Federal agencies on the Privacy Act of 1974. Those
guidelines are a good source of commentary and explanation for many of
the provisions of the act. The OMB guidelines can be found at 40
*Federal Register* 28948 (July 9, 1975).\]

The Privacy Act\'s exemptions differ from those of the FOIA in another
important way. The FOIA is a disclosure law. Information exempt under
the FOIA is exempt from disclosure only. The Privacy Act, however,
imposes many separate requirements on personal records. Some systems of
records are exempt from the disclosure requirements, but no system is
exempt from all Privacy Act requirements.

For example, no system of records is ever exempt from the requirement
that a description of the system be published. No system of records can
be exempted from the limitations on disclosure of the records outside of
the agency. No system is exempt from the requirement to maintain an
accounting for disclosures. No system is exempt from the restriction
against the maintenance of unauthorized information on the exercise of
first amendment rights. All systems are subject to the requirement that
reasonable efforts be taken to ensure that records disclosed outside the
agency be accurate, complete, timely, and relevant. Each agency must
maintain proper administrative controls and security for all systems.
Finally, the Privacy Act\'s criminal penalties remain fully applicable
to each system of records.

*1. General Exemptions*

There are two general exemptions under the Privacy Act. The first
applies to all records maintained by the Central Intelligence Agency.
The second applies to selected records maintained by an agency or
component whose principal function is any activity pertaining to
criminal law enforcement. Records of criminal law enforcement agencies
can be exempt under the Privacy Act if the records consist of (A)
information compiled to identify individual criminal offenders and which
consists only of identifying data and notations of arrests, the nature
and disposition of criminal charges, sentencing, confinement, release,
and parole and probation status; (B) criminal investigatory records
associated with an identifiable individual; or (C) reports identifiable
to a particular individual compiled at any stage from arrest through
release from supervision.

Systems of records subject to the general exemptions may be exempted
from many of the Privacy Act\'s requirements. Exemption from the act\'s
access and correction provisions is the most important. An individual
has no right under the Privacy Act to ask for a copy of or to seek
correction of a record subject to the general exemptions.

In practice, these exemptions are not as expansive as they sound. Most
agencies that have exempt records will accept and process Privacy Act
requests. The records will be reviewed on a case-by-case basis. Agencies
will often disclose any information that does not require protection.
Agencies also tend to follow a similar policy for requests for
correction.

Individuals interested in obtaining records from the Central
Intelligence Agency or from law enforcement agencies should not be
discouraged from making requests for access. Even if the Privacy Act
access exemption is applied, portions of the record may still be
disclosable under the FOIA. This is a primary reason individuals should
cite both the Privacy Act and the FOIA when requesting records.

*2. Specific Exemptions*

There are seven specific Privacy Act exemptions that can be applied to
systems of records. Records subject to these exemptions are not exempt
from as many of the act\'s requirements as are the records subject to
the general exemptions. However, records exempt under the specific
exemptions are likely to be exempt from the Privacy Act\'s access and
correction provisions. Nevertheless, since the access and correction
exemptions are not always applied when available, those seeking records
should not be discouraged from making a request. Also, the FOIA can be
used to seek access to records exempt under the Privacy Act.

The first specific exemption covers record systems containing
information properly classified in the interest of national defense or
foreign policy. Classified information is also exempt from disclosure
under the FOIA and will normally be unavailable under both the FOIA and
Privacy Acts.

The second specific exemption applies to systems of records containing
investigatory material compiled for law enforcement purposes *other
than* material covered by the general law enforcement exemption. The
specific law enforcement exemption is limited when\--as a result of the
maintenance of the records\--an individual is denied any right,
privilege, or benefit to which he or she would be entitled by Federal
law or for which he or she would otherwise be entitled. In such a case,
disclosure is required except where disclosure would reveal the identity
of a confidential source who furnished information to the government
under an express promise that the identity of the source would be held
in confidence. If the information was collected from a confidential
source before the effective date of the Privacy Act (September 27,
1975), an implied promise of confidentiality is sufficient to permit
withholding of the identity of the source. 40

\[Footnote\]

\[*Footnote 40:* This distinction between express and implied promises
of confidentiality is repeated throughout the specific exemptions of the
Privacy Act.\]

The third specific exemption applies to systems of records maintained in
connection with providing protective services to the President of the
United States or other individuals who receive protection from the
Secret Service.

The fourth specific exemption applies to systems of records required by
statute to be maintained and used *solely* as statistical records.

The fifth specific exemption covers investigatory material compiled
*solely* to determine suitability, eligibility, or qualifications for
Federal civilian employment, military service, Federal contracts, or
access to classified information. However, this exemption applies only
to the extent that disclosure of information would reveal the identity
of a confidential source who provided the information under a promise of
confidentiality.

The sixth specific exemption applies to systems of records that contain
testing or examination material used *solely* to determine individual
qualifications for appointment or promotion in Federal service, but only
when disclosure would compromise the objectivity or fairness of the
testing or examination process. Effectively, this exemption permits
withholding of questions used in employment tests.

The seventh specific exemption covers evaluation material used to
determine potential for promotion in the armed services. The material is
only exempt to the extent that disclosure would reveal the identity of a
confidential source who provided the information under a promise of
confidentiality.

*3. Medical Records*

Medical records maintained by Federal agencies\--for example, records at
Veterans Administration hospitals\--are not formally exempt from the
Privacy Act\'s access provisions. However, the Privacy Act authorizes a
special procedure for medical records that operates, at least in part,
like an exemption.

Agencies may deny individuals direct access to medical records,
including psychological records, if the agency deems it necessary. An
agency normally reviews medical records requested by an individual. If
the agency determines that direct disclosure is unwise, it can arrange
for disclosure to a physician selected by the individual or possibly to
another person chosen by the individual.

*4. Litigation Records*

The Privacy Act\'s access provisions include a general limitation on
access to civil litigation records. The act does not require an agency
to disclose to an individual any information compiled in reasonable
anticipation of a civil action or proceeding. This limitation operates
like an exemption, although there is no requirement that the exemption
be applied by regulation to a system of records before it can be used.

## H. ADMINISTRATIVE APPEAL PROCEDURES FOR DENIAL OF ACCESS

Unlike the FOIA, the Privacy Act does not provide for an administrative
appeal of the denial of access. However, many agencies have established
procedures that will allow Privacy Act requesters to appeal a denial of
access without going to court. An administrative appeal is often allowed
under the Privacy Act, even though it is not required, because many
individuals cite both the FOIA and Privacy Act when making a request.
The FOIA provides specifically for an administrative appeal, and
agencies are required to consider an appeal under the FOIA.

When a Privacy Act request for access is denied, agencies usually inform
the requester of any appeal rights that are available. If no information
on appeal rights is included in the denial letter, the requester should
ask the Privacy Act/FOIA officer. Unless an agency has established an
alternative procedure, it is possible that an appeal filed directly with
the head of the agency will be considered by the agency.

When a request for access is denied under the Privacy Act, the agency
explains the reason for the denial. The explanation must name the system
of records and explain which exemption is applicable to the system. An
appeal may be made on the basis that the record is not exempt, that the
system of records has not been properly exempted, or that the record is
exempt but no harm to an important interest will result if the record is
disclosed.

There are three basic elements to a Privacy Act appeal letter. First,
the letter should state that the appeal is being made under the Privacy
Act of 1974. If the FOIA was cited when the request for access was made,
the letter should state that the appeal is also being made under the
FOIA. This is important because the FOIA grants requesters statutory
appeal rights.

Second, a Privacy Act appeal letter should identify the denial that is
being appealed and the records that were withheld. The appeal letter
should also explain why the denial of access was improper or
unnecessary.

Third, the appeal should include the requester\'s name and address. It
is a good practice for a requester to also include a telephone number
when making an appeal.

Appendix 1 includes a sample letter of appeal.

## I. AMENDING RECORDS UNDER THE PRIVACY ACT

The Privacy Act grants an important right in addition to the ability to
inspect records. The act permits an individual to request a correction
of a record that is not accurate, relevant, timely, or complete. This
remedy allows an individual to correct errors and to prevent incorrect
information from being disseminated by the agency or used unfairly
against the individual.

The right to seek a correction extends only to records subject to the
Privacy Act. Also, an individual can only correct errors contained in a
record that pertains to himself or herself. Records disclosed under the
FOIA cannot be amended through the Privacy Act unless the records are
also subject to the Privacy Act. Records about unrelated events or about
other people cannot be amended unless the records are in a Privacy Act
file maintained under the name of the individual who is seeking to make
the correction.

A request to amend a record should be in writing. Agency regulations
explain the procedure in greater detail, but the process is not
complicated. A letter requesting an amendment of a record will normally
be addressed to the Privacy Act/FOIA officer of the agency or to the
agency official responsible for the maintenance of the record system
containing the erroneous information. The envelope containing the
request should be marked \`Privacy Act Amendment Request\' on the lower
left corner.

There are five basic elements to a request for amending a Privacy Act
record.

First, the letter should state that it is a request to amend a record
under the Privacy Act of 1974.

Second, the request should identify the specific record and the specific
information in the record for which an amendment is being sought. Copies
of the records sought to be amended may be included.

Third, the request should state why the information is not accurate,
relevant, timely, or complete. Supporting evidence may be included with
the request.

Fourth, the request should state what new or additional information, if
any, should be included in place of the erroneous information. Evidence
of the validity of the new or additional information should be included.
If the information in the file is wrong and needs to be removed rather
than supplemented or corrected, the request should make this clear.

Fifth, the request should include the name and address of the requester.
It is a good idea for a requester to include a telephone number.

Appendix 1 includes a sample letter requesting amendment of a Privacy
Act record.

## J. APPEALS AND REQUIREMENTS FOR AGENCY RESPONSES

An agency that receives a request for amendment under the Privacy Act
must acknowledge receipt of the request within 10 days (not including
Saturdays, Sundays, and legal holidays). The agency must promptly rule
on the request.

The agency may make the amendment requested. If so, the agency must
notify any person or agency to which the record had previously been
disclosed of the correction.

If the agency refuses to make the change requested, the agency must
inform the requester of: (1) the agency\'s refusal to amend the record;
(2) the reason for refusing to amend the request; and (3) the procedures
for requesting a review of the denial. The agency must provide the name
and business address of the official responsible for conducting the
review.

An agency must decide an appeal of a denial of a request for amendment
within 30 days (excluding Saturdays, Sundays, and legal holidays),
unless the time period is extended by the agency for good cause. If the
appeal is granted, the record will be corrected.

If the appeal is denied, the agency must inform the requester of the
right to judicial review. In addition, a requester whose appeal has been
denied also has the right to place in the agency file a concise
statement of disagreement with the information that was the subject of
the request for amendment.

When a statement of disagreement has been filed and an agency is
disclosing the disputed information, the agency must mark the
information and provide copies of the statement of disagreement. The
agency may also include a concise statement of its reasons for not
making the requested amendments. The agency must also give a copy of the
statement of disagreement to any person or agency to whom the record had
previously been disclosed.

## K. FILING FOR JUDICIAL APPEAL

The Privacy Act provides a civil remedy whenever an agency denies access
to a record or refuses to amend a record. An individual may sue an
agency if the agency fails to maintain records with accuracy, relevance,
timeliness, and completeness as is necessary to assure fairness in any
agency determination *and* the agency makes a determination that is
adverse to the individual. An individual may also sue an agency if the
agency fails to comply with any other Privacy Act provision in a manner
that has an adverse effect on the individual.

The Privacy Act protects a wide range of rights about personal records
maintained by Federal agencies. The most important are the right to
inspect records and the right to seek correction of records. Other
rights have also been mentioned here, and still others can be found in
the text of the act. Most of these rights can become the subject of
litigation.

An individual may file a lawsuit against an agency in the Federal
District Court in which the individual lives, in which the records are
situated, or in the District of Columbia. A lawsuit must be filed within
2 years from the date on which the basis for the lawsuit arose.

Most individuals require the assistance of an attorney to file a
lawsuit. An individual who files a lawsuit and substantially prevails
may be awarded reasonable attorney fees and litigation costs reasonably
incurred. Some requesters may be able to handle their own case without
an attorney. Since this is not a litigation guide, details about the
judicial appeal process have not been included. Anyone considering
filing a Privacy Act lawsuit can begin by reviewing the provisions of
the Privacy Act on civil remedies. 41

\[Footnote\]

\[*Footnote 41:* See note 32.\]

## *A P P E N D I X E S*

### APPENDIX 1- SAMPLE REQUEST AND APPEAL LETTERS

## A. FREEDOM OF INFORMATION ACT REQUEST LETTER

> Agency Head \[or Freedom of Information Act Officer\]
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Freedom of Information Act Request
>
> Dear :

This is a request under the Freedom of Information Act.

I request that a copy of the following documents \[or documents
containing the following information\] be provided to me: \[identify the
documents or information as specifically as possible\].

In order to help to determine my status for purposes of determining the
applicability of any fees, you should know that I am (insert a suitable
description of the requester and the purpose of the request).

> \[Sample requester descriptions:
>
> a representative of the news media affiliated with the **XXXX**
> newspaper (magazine, television station, etc.), and this request is
> made as part of news gathering and not for a commercial use.
>
> affiliated with an educational or noncommercial scientific
> institution, and this request is made for a scholarly or scientific
> purpose and not for a commercial use.
>
> an individual seeking information for personal use and not for a
> commercial use.
>
> affiliated with a private corporation and am seeking information for
> use in the company\'s business.\]

\[Optional\] I am willing to pay fees for this request up to a maximum
of \$**XX**. If you estimate that the fees will exceed this limit,
please inform me first.

\[Optional\] I request a waiver of all fees for this request. Disclosure
of the requested information to me is in the public interest because it
is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in my
commercial interest. \[Include specific details, including how the
requested information will be disseminated by the requester for public
benefit.\]

\[Optional\] I request that the information I seek be provided in
electronic format, and I would like to receive it on a personal computer
disk \[or a CD-ROM\].

\[Optional\] I ask that my request receive expedited processing because
**XXXX**. \[Include specific details concerning your \`compelling
need,\' such as being someone \`primarily engaged in disseminating
information\' and specifics concerning your \`urgency to inform the
public concerning actual or alleged Federal Government activity.\'\]

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my request.

Thank you for your consideration of this request.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

## B. FREEDOM OF INFORMATION ACT APPEAL LETTER

> Agency Head or Appeal Officer
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Freedom of Information Act Appeal
>
> Dear :

This is an appeal under the Freedom of Information Act.

On (date), I requested documents under the Freedom of Information Act.
My request was assigned the following identification number: **XXXX**.
On (date), I received a response to my request in a letter signed by
(name of official). I appeal the denial of my request.

\[Optional\] I enclose a copy of that response letter.

\[Optional\] The documents that were withheld must be disclosed under
the FOIA because (provide details you would want an agency head or
appeal officer to consider when deciding your appeal.)

\[Optional\] I appeal the decision to deny my request for a waiver of
fees. I believe that I am entitled to a waiver of fees. Disclosure of
the documents I requested is in the public interest because it is likely
to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in my commercial
interest. (Provide details)

\[Optional\] I appeal the decision to require me to pay review costs for
this request. I am not seeking the documents for a commercial use.
(Provide details)

\[Optional\] I appeal the decision to require me to pay search and/or
review charges for this request. I am a representative of the news media
seeking information as part of news gathering and not for commercial
use.

\[Optional\] I appeal the decision to require me to pay search and/or
review charges for this request. I am a representative of an educational
institution seeking information for a scholarly purpose.

\[Optional\] I appeal the decision to require me to accept the
information I seek in a paper or hardcopy format. I requested this
information, which the agency maintains in an electronic form, in an
electronic format, specifically on a personal computer disk \[or a
CD-ROM\].

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my appeal.

Thank you for your consideration of this appeal.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

## C. PRIVACY ACT REQUEST FOR ACCESS LETTER

> Privacy Act or Freedom of Information Officer
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Privacy Act and Freedom of Information Act Request for Access
>
> Dear :

This is a request under the Privacy Act of 1974 and the Freedom of
Information Act.

I request a copy of any records \[or specifically named records\] about
me maintained at your agency.

\[Optional\] To help you to locate my records, I have had the following
contacts with your agency: \[mention job applications, periods of
employment, loans or agency programs applied for, etc.\].

\[Optional\] I am willing to pay fees for this request up to a maximum
of \$**XX**. If you estimate that the fees will exceed this limit please
inform me first.

\[Optional\] Enclosed is \[a notarized signature or other identifying
document\] that will verify my identity.

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my request.

Thank you for your consideration of this request.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

## D. PRIVACY ACT DENIAL OF ACCESS APPEAL

> Agency Head or Appeal Officer
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Appeal of Denial of Privacy Act and Freedom of Information Act
> Access Request
>
> Dear :

This is an appeal under the Privacy Act and the Freedom of Information
Act of the denial of my request for access to records.

On (date), I requested access to records under the Privacy Act of 1974.
My request was assigned the following identification number: **XXXX**.
On (date), I received a response to my request in a letter signed by
(name of official). I appeal the denial of my request.

\[Optional\] I enclose a copy of the response letter.

\[Optional\] The records that were withheld should be disclosed to me
because (provide details you would want an agency head or appeal officer
to consider when deciding your appeal.)

\[Optional\] Please consider that this appeal is also made under the
Freedom of Information Act. Please provide any additional information
that may be available under the FOIA.

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my appeal.

Thank you for your consideration of this appeal.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

## E. PRIVACY ACT REQUEST TO AMEND RECORDS

> Privacy Act and Freedom of Information Act Officer
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Privacy Act Request to Amend Records
>
> Dear :

This is a request under the Privacy Act to amend records about myself
maintained by your agency.

I believe that the following is not correct: \[Describe the incorrect
information as specifically as possible\].

The information is not (accurate) (relevant) (timely) (complete) because
(provide details you would want an agency official to consider when
reviewing your request.)

\[Optional\] Enclosed are copies of documents that show that the
information is incorrect.

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my request.

I request that the information be \[deleted\] \[changed to read:\].

Thank you for your consideration of this request.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

## F. PRIVACY ACT APPEAL OF REFUSAL TO AMEND RECORDS

> Agency Head or Appeal Officer
>
> Name of Agency
>
> Address of Agency
>
> City, State, Zip Code
>
> Re: Privacy Act Appeal of Refusal to Amend Records
>
> Dear :

This is an appeal under the Privacy Act of the refusal of your agency to
amend records as I requested.

On (date), I requested that records about me be amended. My request was
assigned the following identification number **XXXX**. On (date), I was
informed by (name of official) that my request was rejected. I appeal
the rejection of my request.

The rejection of my request for amendment was wrong because (provide
details you would want an agency head or appeal officer to consider when
deciding your appeal.)

\[Optional\] I enclose additional evidence that shows that the records
are incorrect and that the amendment I requested is appropriate.

\[Optional\] I also include a telephone number at which I can be
contacted during the hours of **XXXX**, if necessary, to discuss any
aspect of my appeal.

Thank you for your consideration of this appeal.

*Sincerely,*

*Name*

*Address*

*City, State, Zip Code*

*Telephone number \[Optional\]*

### APPENDIX 2- BIBLIOGRAPHY OF CONGRESSIONAL PUBLICATIONS ON THE FREEDOM OF INFORMATION ACT

### CONGRESSIONAL HEARINGS, REPORTS, DOCUMENTS, AND PRINTS

### (LISTED CHRONOLOGICALLY BY PUBLICATION DATE)

Note on availability: Most of these publications are out of print.
Copies of all congressional publications should be available at Federal
Depository Libraries located throughout the country.

> **1964**

Senate Committee on the Judiciary. *Clarifying and Protecting the Right
of the Public to Information and for Other Purposes.* S. Rept. 1219,
88th Congress, 2d Session. 1964.

Senate Committee on the Judiciary. *Freedom of Information.* Hearings,
98th Congress, 1st Session. 1964.

> **1965**

House Committee on Government Operations. *Federal Public Records Law.*
Hearings, 89th Congress, 2d Session. 1965.

Senate Committee on the Judiciary. *Administrative Procedure Act.*
Hearings, 89th Congress, 1st Session. 1965.

Senate Committee on the Judiciary. *Clarifying and Protecting the Right
of the Public to Information, and for Other Purposes.* S. Rept. 813,
89th Congress, 1st Session. 1965.

> **1966**

House Committee on Government Operations. *Clarifying and Protecting the
Right of the Public to Information.* H. Rept. 1497, 89th Congress, 2d
Session. 1966.

> **1967**

House Committee on the Judiciary. *Codification of Public Law 89-487.*
H. Rept. 125, 90th Congress, 1st Session. 1967.

Senate Committee on the Judiciary. *Amending Section 552 of Title 5,
United States Code.* S. Rept. 248, 90th Congress, 1st Session. 1967.

> **1968**

House Committee on Government Operations. *Freedom of Information Act
(Compilation and Analysis of Departmental Regulations Implementing 5
U.S.C. 552).* Committee print, 90th Congress, 2d Session. 1968.

Senate Committee on the Judiciary. *The Freedom of Information Act (Ten
Months Review).* Committee print, 90th Congress, 2d Session. 1968.

> **1972**

House Committee on Government Operations. *Administration of the Freedom
of Information Act.* H. Rept. 92-1419, 92nd Congress, 2d Session. 1972.

House Committee on Government Operations. *Sale or Distribution of
Mailing Lists By Federal Agencies.* Hearings, 92nd Congress, 2d Session.
1972.

House Committee on Government Operations. *U.S. Government Information
Policies and Practices\--Administration and Operation of the Freedom of
Information Act.* (Parts 4-6). Hearings, 92nd Congress, 2d Session.
1972.

House Committee on Government Operations. *U.S. Government Information
Policies and Practices\--Security Classification Problems Involving
Subsection (b)(1) of the Freedom of Information Act.* (Part 7).
Hearings, 92nd Congress, 2d Session. 1972.

> **1973**

House Committee on Government Operations. *Availability of Information
to Congress.* Hearings, 93rd Congress, 1st Session. 1973.

House Committee on Government Operations. *Executive Classification of
Information\--Security Classification Problems Involving Exemption
(b)(1) of the Freedom of Information Act (5 U.S.C. 552).* H. Rept.
93-221, 93rd Congress, 1st Session. 1973.

House Committee on Government Operations. *The Freedom of Information
Act.* Hearings, 93rd Congress, 1st Session. 1973.

Senate Committee on Government Operations and Committee on the
Judiciary. *Executive Privilege, Secrecy in Government, Freedom of
Information.* Hearings, 93rd Congress, 1st Session. 1973.

> **1974**

House Committee on Government Operations. *Amending Section 552 of Title
5, United States Code, Known as the Freedom of Information Act.* H.
Rept. 93-876, 93rd Congress, 2d Session. 1974.

House Committee on Government Operations. *Amending the Freedom of
Information Act to Require that Information Be Made Available to
Congress.* H. Rept. 93-990, 93rd Congress, 2d Session. 1974.

House Committee on Government Operations. *Security Classification
Reform.* Hearings, 93rd Congress, 2d Session. 1974.

House of Representatives. Message from the President of the United
States. *Vetoing H.R. 12471, Amend Freedom of Information Act.* H. Doc.
93-383. 93rd Congress, 2d Session. 1974.

House/Senate Committee of Conference. *Freedom of Information Act
Amendments.* H. Rept. 93-1380 or S. Rept. 93-1200, 93rd Congress, 2d
Session. 1974.

Senate Committee on the Judiciary. *Amending the Freedom of Information
Act.* S. Rept. 93-854, 93rd Congress, 2d Session. 1974.

Senate Committee on the Judiciary. *Freedom of Information Act Source
Book: Legislative Materials, Cases, Articles.* S. Doc. 93-82, 93rd
Congress. 2d Session. 1974.

> **1975**

House Committee on Government Operations and Senate Committee on the
Judiciary. *Freedom of Information Act and Amendments of 1974 (Public
Law 93-502). Source Book: Legislative History, Texts, and Other
Documents.* Joint committee print, 94th Congress, 1st Session. 1975.

> **1977**

House Committee on Government Operations. *Business Record Exemption of
the Freedom of Information Act.* Hearings, 95th Congress, 1st Session.
1977.

Senate Committee on the Judiciary. *Freedom of Information Act.*
Hearings, 95th Congress, 1st Session. 1977.

> **1978**

House Committee on Government Operations. *FBI Compliance with the
Freedom of Information Act.* Hearing, 95th Congress, 2d Session. 1978.

House Committee on Government Operations. *Freedom of Information Act
Requests for Business Data and Reverse-FOIA Lawsuits.* H. Rept. 95-1382,
95th Congress, 2d Session. 1978.

Senate Committee on the Judiciary. *The Erosion of Law Enforcement
Intelligence and Its Impact on the Public Security.* Committee print,
95th Congress, 2d Session. 1978.

Senate Committee on the Judiciary. *The Erosion of Law Enforcement
Intelligence and Its Impact on the Public Security.* Hearings, 95th
Congress, 1st and 2d Sessions. 1977-1978.

> **1979**

House Committee on Government Operations. *Security Classification
Exemption to the Freedom of Information Act.* Hearing, 95th Congress,
1st Session. 1979.

> **1980**

House Permanent Select Committee on Intelligence. *Impact of the Freedom
of Information Act and the Privacy Act on Intelligence Activities.*
Hearing, 96th Congress, 1st Session. 1980.

Senate Committee on Governmental Affairs. *Oversight of the
Administration of the Federal Freedom of Information Act.* Hearings,
96th Congress, 2d Session. 1980.

Senate Committee on the Judiciary. *Agency Implementation of the 1974
Amendments to the Freedom of Information Act.* Committee print, 95th
Congress, 2d Session. 1980.

> **1981**

House Committee on Government Operations. *Freedom of Information Act
Oversight.* Hearings, 97th Congress, 1st Session. 1981.

House Committee on Government Operations. *The Freedom of Information
Act: Central Intelligence Agency Exemptions.* Hearings, 96th Congress,
2d Session. 1981.

House Committee on Government Operations. *The Freedom of Information
Act: Federal Law Enforcement Implementation.* Hearing, 96th Congress,
1st Session. 1981.

> **1982**

Senate Committee on the Judiciary. *Freedom of Information Act.*
Hearings, 97th Congress, 1st Session. 1982.

Senate Committee on the Judiciary. *The Freedom of Information Reform
Act.* S. Rept. 97-690, 97th Congress, 2d Session. 1982.

> **1983**

Senate Committee on the Judiciary. *Freedom of Information Reform Act.*
S. Rept. 98-221, 98th Congress, 1st Session. 1983.

> **1984**

Senate Committee on the Judiciary. *Freedom of Information Reform Act.*
Hearings, 98th Congress, 1st Session. 1984.

> **1985**

House Committee on Government Operations. *The Freedom of Information
Reform Act.* Hearings, 98th Congress, 2d Session. 1985.

Senate Committee on the Judiciary. *Amendments to the Freedom of
Information Act.* Hearing, 98th Congress, 2d Session. 1985.

> **1986**

House Committee on Government Operations. *Freedom of Information Act
Amendments of 1986.* Hearing, 99th Congress, 2d Session. 1986.

House Committee on Government Operations. *Freedom of Information Act
Amendments of 1986.* H. Rept. 99-832, 99th Congress, 2d Session. 1986.

> **1988**

House Committee on Government Operations. *FOIA: Alternate Dispute
Resolution Proposals.* Hearings, 100th Congress, 1st Session. 1988.

> **1989**

Senate Committee on the Judiciary. *The Freedom of Information Act.*
Hearing, 100th Congress, 2d Session. 1989.

> **1990**

House Committee on Government Operations. *Federal Information
Dissemination Policies and Practices.* Hearings, 101st Congress, 1st
Session. 1990.

House Committee on Government Operations. *Paperwork Reduction and
Federal Information Resources Management Act of 1990.* H. Rept. 101-927,
101st Congress, 2d Session. 1990.

> **1991**

House Committee on Government Operations, *Creative Ways of Using and
Disseminating Federal Information.* Hearings, 102d Congress, 1st and 2d
Sessions. 1991, 1992.

> **1992**

House Committee on Government Operations. *Assassination Materials
Disclosure Act of 1992.* H. Rept. 102-624 Part 1, 102d Congress, 2d
Session. 1992.

House Committee on the Judiciary. *Assassination Materials Disclosure
Act of 1992.* Hearing, 102d Congress, 2d Session. 1992.

House Committee on the Judiciary. *Assassination Materials Disclosure
Act of 1992.* H. Rept. 102-624 Part 2, 102d Congress, 2d Session. 1992.

Senate Committee on Governmental Affairs. *The Assassination Materials
Disclosure Act of 1992.* Hearing, 102d Congress, 2d Session. 1992.

Senate Committee on Governmental Affairs. *Assassination Materials
Disclosure Act of 1992.* S. Rept. 102-328, 102d Congress, 2d Session.
1992.

> **1993**

House Committee on Government Operations. *Assassination Materials
Disclosure Act of 1992.* Hearings, 103d Congress, 2d Session. 1993.

Senate Committee on the Judiciary. *The Electronic Freedom of
Information Improvement Act.* Hearing, 103d Congress, 2d Session. 1993.

> **1994**

House Committee on Government Operations. *The Effectiveness of Public
Law 102-526, The President John F. Kennedy Assassination Records
Collection Act of 1992.* Hearing, 103d Congress, 1st Session. 1994.

Senate Committee on the Judiciary. *Electronic Freedom of Information
Improvement Act of 1994.* S. Rept. 103-365, 103d Congress, 2d Session.
1994.

> **1996**

Senate Committee on the Judiciary. *Electronic Freedom of Information
Improvement Act of 1995.* S. Rept. 104-272, 104th Congress, 2d Session.
1996.

House Committee on Government Reform and Oversight. *Electronic Freedom
of Information Amendments of 1996.* H. Rept. 104-795, 104th Congress, 2d
Session. 1996.

> **1998**

House Committee on Government Reform and Oversight. *Implementation of
the Electronic Freedom of Information Act Amendments of 1996: Is Access
to Government Information Improving?* Hearing, 105th Congress, 2d
Session. 1998.

> **1999**

House Committee on Government Reform. *H.R. 88, Regarding Research Data
Available Under the Freedom of Information Act.* Hearing, 106th
Congress, 1st Session. 1999.

> **2000**

House Committee on Government Reform. *Agency Response to the Electronic
Freedom of Information Act.* Hearing, 106th Congress, 2d Session. 2000.

### APPENDIX 3- BIBLIOGRAPHY OF CONGRESSIONAL PUBLICATIONS ON THE PRIVACY ACT OF 1974

### CONGRESSIONAL HEARINGS, REPORTS, DOCUMENTS, AND PRINTS

### (LISTED CHRONOLOGICALLY BY PUBLICATION DATE)

Note on availability: Most of these publications are out of print.
Copies of all congressional publications should be available at Federal
Depository Libraries located throughout the country.

> **1972**

House Committee on Government Operations. *Records Maintained By
Government Agencies.* Hearings, 92nd Congress, 2d Session. 1972.

> **1974**

House Committee on Government Operations. *Access to Records.* Hearings,
93rd Congress, 2d Session. 1974.

House Committee on Government Operations. *Federal Information Systems
and Plans\--Federal Use and Development of Advanced Information
Technology.* Hearings, 93rd Congress, 1st and 2d Sessions. 1973-1974.

House Committee on Government Operations. *Privacy Act of 1974.* H.
Rept. 93-1416, 93rd Congress, 2d Session. 1974.

Senate Committee on Government Operations. *Protecting Individual
Privacy in Federal Gathering, Use and Disclosure of Information.* S.
Rept. 93-1183, 93rd Congress, 2d Session. 1974.

Senate Committee on Government Operations. *Materials Pertaining to S.
3418 and Protecting Individual Privacy in Federal Gathering, Use and
Disclosure of Information.* Committee print, 93rd Congress, 2d Session.
1974.

Senate Committee on Government Operations and Committee on the
Judiciary. *Privacy: The Collection, Use, and Computerization of
Personal Data.* Joint hearings, 93rd Congress, 2d Session. 1974.

Senate Committee on the Judiciary. *Federal Data Banks and
Constitutional Rights.* \[Summary.\] Committee print, 93rd Congress, 2d
Session. 1974.

Senate Committee on the Judiciary. *Federal Data Banks and
Constitutional Rights.* Committee print, 93rd Congress, 2d Session.
1974. 6 v.

> **1975**

House Committee on Government Operations. *Central Intelligence Agency
Exemption in the Privacy Act of 1974.* Hearings, 94th Congress, 1st
Session. 1975.

House Committee on Government Operations. *Implementation of the Privacy
Act of 1974: Data Banks.* Hearing, 94th Congress, 1st Session. 1975.

> **1976**

House Committee on Government Operations. *Notification to Victims of
Improper Intelligence Agency Activities.* Hearings, 94th Congress, 2d
Session. 1976.

Senate Committee on Government Operations and House Committee on
Government Operations. *Legislative History of the Privacy Act of 1974,
S. 3418 (Public Law 93-579): Source Book on Privacy.* Joint committee
print, 94th Congress, 2d Session. 1976.

> **1977**

Senate Committee on Governmental Affairs and House Committee on
Government Operations. *Final Report of the Privacy Protection Study
Commission.* Joint hearing, 95th Congress, 1st Session. 1977.

> **1978**

House Committee on Government Operations. *Privacy and Confidentiality
Report and Final Recommendations of the Commission on Federal
Paperwork.* Hearing, 95th Congress, 1st Session. 1978.

House Committee on Government Operations. *Right to Privacy Proposals of
the Privacy Protection Study Commission.* Hearings, 95th Congress, 2d
Session. 1978.

> **1980**

House Committee on Government Operations. *Federal Privacy of Medical
Information Act.* H. Rept 96-832 Part 1, 96th Congress, 2d Session.
1980.

House Committee on Government Operations. *Privacy of Medical Records.*
Hearings, 96th Congress, 1st Session. 1980.

House Committee on Government Operations. *Public Reaction to Privacy
Issues.* Hearing, 96th Congress, 1st Session. 1980.

House Committee on Interstate and Foreign Commerce. *Federal Privacy of
Medical Information Act.* H. Rept 96-832 Part 2, 96th Congress, 2d
Session. 1980.

House Committee on Ways and Means. *Description and Brief Analysis of
H.R. 5935, Federal Privacy of Medical Information Act.* Committee print,
96th Congress, 2d Session. 1980.

House Committee on Ways and Means. *Federal Privacy of Medical
Information Act.* Hearing, 96th Congress, 2d Session. 1980.

House Committee on Ways and Means. *Federal Privacy of Medical
Information Act, H.R. 5935.* Committee print, 96th Congress, 2d Session.
1980.

> **1981**

House Committee on Government Operations. *Confidentiality of Insurance
Records.* Hearings, 96th Congress, 1st and 2d Sessions. 1981.

House Committee on Government Operations. *Debt Collection Act of 1981.*
Hearing, 97th Congress, 1st Session. 1981.

House Committee on Government Operations. *Privacy Act Amendments.* H.
Rept. 97-147 Part 1, 97th Congress, 1st Session. 1981.

> **1983**

House Committee on Government Operations. *Oversight of the Privacy Act
of 1974.* Hearings, 98th Congress, 1st Session. 1983.

House Committee on Government Operations. *Who Cares About Privacy?
Oversight of the Privacy Act of 1974 by the Office of Management and
Budget and by the Congress.* H. Rept. 98-455, 98th Congress, 1st
Session. 1983.

Senate Committee on Governmental Affairs. *Oversight of Computer
Matching to Detect Fraud and Mismanagement in Government Programs.*
Hearings, 97th Congress, 2d Session. 1983.

> **1984**

House Committee on Government Operations. *Privacy and 1984: Public
Opinions on Privacy Issues.* Hearing, 98th Congress, 1st Session. 1984.

Senate Committee on Governmental Affairs. *Computer Matching: Taxpayer
Records.* Hearing, 98th Congress, 2d Session. 1984.

> **1986**

Senate Committee on Governmental Affairs. *Computer Matching and Privacy
Protection Act of 1986.* Hearing, 99th Congress, 2d Session. 1986.

> **1987**

House Committee on Government Operations. *Computer Matching and Privacy
Protection Act of 1987.* Hearing, 100th Congress, 1st Session. 1987.

> **1988**

House Committee on Government Operations. *Computer Matching and Privacy
Protection Act of 1988.* H. Rept. 100-802, 100th Congress, 2d Session.
1988.

> **1990**

House Committee on Government Operations. *Computer Matching and Privacy
Protection Amendments of 1990.* Hearing, 101st Congress, 2d Session.
1990.

House Committee on Government Operations. *Computer Matching and Privacy
Protection Amendments of 1990.* H. Rept. 101-768, 101st Congress, 2d
Session. 1990.

House Committee on Government Operations. *Data Protection, Computers,
and Changing Information Practices.* Hearing, 101st Congress, 2d
Session. 1990.

> **1991**

House Committee on Government Operations. *Domestic and International
Data Protection Issues.* Hearing, 102d Congress, 1st Session. 1991.

> **1992**

House Committee on Government Operations. *Designing Genetic Information
Policy: The Need for an Independent Policy Review of the Ethical, Legal,
and Social Implications of the Human Genome Project.* H. Rept. 102-478,
102d Congress, 2d Session. 1992.

> **2000**

House Committee on Government Reform. *H.R. 4049, To Establish the
Commission for the Comprehensive Study of Privacy Protection.* Hearing,
106th Congress, 2d Session. 2000.

House Committee on Government Reform. *H.R. 220, The Freedom and Privacy
Restoration Act.* Hearing, 106th Congress, 2d Session. 2000.

House Committee on Government Reform. *The Privacy Act and the
Presidency.* Hearing, 106th Congress, 2d Session. 2000.

### APPENDIX 4- SELECT BIBLIOGRAPHY OF NON-CONGRESSIONAL MATERIALS ON USING THE FREEDOM OF INFORMATION ACT AND PRIVACY ACT OF 1974

Note on availability: These material are periodically updated and issued
in revised versions. The versions listed here were available at the time
that this *Guide* was prepared. Some are available from Web sites; some
are available for purchase from their publisher or, in the case of
Department of Justice documents, from the Superintendent of Documents at
the Government Printing Office.

Burt A. Braverman, Frances J. Chetwynd, and Harry A. Hammitt, *Getting
and Protecting Competitive Business Information: A Business Guide to
Using the Freedom of Information Act* (Management Concepts, Inc., 1997);
purchase and other information available at *http://www.crblaw.com.*

Harry A. Hammitt, David L. Sobel, and Mark S. Zaid, eds, *Litigation
Under the Federal Open Government Laws 2002* (Electronic Privacy
Information Center, 2002).

National Security Archive, \`How to Make a FOIA Request,\' available at
*http://www.gwu.edu/***›**nsarchiv/nsa/foia/howtofoia.html.

James T. O\'Reilly, *Federal Information Disclosure, 3d edition, 2 vols.
(West Group, 2000 with pocket updates).*

Public Citizen, Freedom of Information Clearinghouse, \`Introduction to
the Freedom of Information Act\' and other resources, available at
*http://www.citizen.org/litigation/free***\--**info/.

Reporters Committee for Freedom of the Press, *How to Use the Federal
FOI Act* (March 1998 edition); purchase and other information available
at *http://www.rcfp.org/foi.html.*

U.S. Department of Justice, \`Department of Justice Freedom of
Information Act Reference Guide\' (December 2002 edition), available at
*http://www.usdoj.gov/04foia/refereceguidemay99.html.*

U.S. Department of Justice, Office of Information and Privacy, *Freedom
of Information Case List* (May 2002 edition), available at
*http://www.usdoj.gov/04foia/cl-tofc.html.*

U.S. Department of Justice, Office of Information and Privacy, *Freedom
of Information Act Guide and Privacy Act Overview* (May 2002 edition),
*Guide* available at *http://usdoj.gov/oip/foiact.htm* and *Overview*
available at *http://usdoj.gov/04foia/04***\--**7**\--**1.html.

### APPENDIX 5- TEXT OF THE FREEDOM OF INFORMATION ACT

### TITLE 5, UNITED STATES CODE

\* \* \* \* \* \* \*

## *PART I\--THE AGENCIES GENERALLY*

\* \* \* \* \* \* \*

### CHAPTER 5\--ADMINISTRATIVE

\* \* \* \* \* \* \*

### SUBCHAPTER II\--ADMINISTRATIVE PROCEDURE

\* \* \* \* \* \* \*

#### Sec. 552. Public information; agency rules, opinions, orders, records, and proceedings

> \(a\) Each agency shall make available to the public information as
> follows:
>
> \(1\) Each agency shall separately state and currently publish in the
> Federal Register for the guidance of the public\--
>
> \(A\) descriptions of its central and field organization and the
> established places at which, the employees (and in the case of a
> uniformed service, the members) from whom, and the methods whereby,
> the public may obtain information, make submittals or requests, or
> obtain decisions;
>
> \(B\) statements of the general course and method by which its
> functions are channeled and determined, including the nature and
> requirements of all formal and informal procedures available;
>
> \(C\) rules of procedure, descriptions of forms available or the
> places at which forms may be obtained, and instructions as to the
> scope and contents of all papers, reports, or examinations;
>
> \(D\) substantive rules of general applicability adopted as authorized
> by law, and statements of general policy or interpretations of general
> applicability formulated and adopted by the agency; and
>
> \(E\) each amendment, revision, or repeal of the foregoing.
>
> Except to the extent that a person has actual and timely notice of the
> terms thereof, a person may not in any manner be required to resort
> to, or be adversely affected by, a matter required to be published in
> the Federal Register and not so published. For the purpose of this
> paragraph, matter reasonably available to the class of persons
> affected thereby is deemed published in the Federal Register when
> incorporated by reference therein with the approval of the Director of
> the Federal Register.
>
> \(2\) Each agency, in accordance with published rules, shall make
> available for public inspection and copying\--
>
> \(A\) final opinions, including concurring and dissenting opinions, as
> well as orders, made in the adjudication of cases;
>
> \(B\) those statements of policy and interpretations which have been
> adopted by the agency and are not published in the Federal Register;
>
> \(C\) administrative staff manuals and instructions to staff that
> affect a member of the public;
>
> \(D\) copies of all records, regardless of form or format, which have
> been released to any person under paragraph (3) and which, because of
> the nature of their subject matter, the agency determines have become
> or are likely to become the subject of subsequent requests for
> substantially the same records; and
>
> \(E\) a general index of the records referred to under subparagraph
> (D);
>
> unless the materials are promptly published and copies offered for
> sale. For records created on or after November 1, 1996, within one
> year after such date, each agency shall make such records available,
> including by computer telecommunications or, if computer
> telecommunications means have not been established by the agency, by
> other electronic means. To the extent required to prevent a clearly
> unwarranted invasion of personal privacy, an agency may delete
> identifying details when it makes available or publishes an opinion,
> statement of policy, interpretation, staff manual, instruction, or
> copies of records referred to in subparagraph (D). However, in each
> case the justification for the deletion shall be explained fully in
> writing, and the extent of such deletion shall be indicated on the
> portion of the record which is made available or published, unless
> including that indication would harm an interest protected by the
> exemption in subsection (b) under which the deletion is made. If
> technically feasible, the extent of the deletion shall be indicated at
> the place in the record where the deletion was made. Each agency shall
> also maintain and make available for public inspection and copying
> current indexes providing identifying information for the public as to
> any matter issued, adopted, or promulgated after July 4, 1967, and
> required by this paragraph to be made available or published. Each
> agency shall promptly publish, quarterly or more frequently, and
> distribute (by sale or otherwise) copies of each index or supplements
> thereto unless it determines by order published in the Federal
> Register that the publication would be unnecessary and impracticable,
> in which case the agency shall nonetheless provide copies of such
> index on request at a cost not to exceed the direct cost of
> duplication. Each agency shall make the index referred to in
> subparagraph (E) available by computer telecommunications by December
> 31, 1999. A final order, opinion, statement of policy, interpretation,
> or staff manual or instruction that affects a member of the public may
> be relied on, used, or cited as precedent by an agency against a party
> other than an agency only if\--
>
> \(i\) it has been indexed and either made available or published as
> provided by this paragraph; or
>
> \(ii\) the party has actual and timely notice of the terms thereof.
>
> (3)(A) Except with respect to the records made available under
> paragraphs (1) and (2) of this subsection, and except as provided in
> subparagraph (E), each agency, upon any request for records which (i)
> reasonably describes such records and (ii) is made in accordance with
> published rules stating the time, place, fees (if any), and procedures
> to be followed, shall make the records promptly available to any
> person.
>
> \(B\) In making any record available to a person under this paragraph,
> an agency shall provide the record in any form or format requested by
> the person if the record is readily reproducible by the agency in that
> form or format. Each agency shall make reasonable efforts to maintain
> its records in forms or formats that are reproducible for purposes of
> this section.
>
> \(C\) In responding under this paragraph to a request for records, an
> agency shall make reasonable efforts to search for the records in
> electronic form or format, except when such efforts would
> significantly interfere with the operation of the agency\'s automated
> information system.
>
> \(D\) For purposes of this paragraph, the term \`search\' means to
> review, manually or by automated means, agency records for the purpose
> of locating those records which are responsive to a request.
>
> \(E\) An agency, or part of an agency, that is an element of the
> intelligence community (as that term is defined in section 3(4) of the
> National Security Act of 1947 (50 U.S.C. 401a(4))) shall not make any
> record available under this paragraph to\--
>
> \(i\) any government entity, other than a State, territory,
> commonwealth, or district of the United States, or any subdivision
> thereof; or
>
> \(ii\) a representative of a government entity described in clause
> (i).
>
> (4)(A)(i) In order to carry out the provisions of this section, each
> agency shall promulgate regulations, pursuant to notice and receipt of
> public comment, specifying the schedule of fees applicable to the
> processing of requests under this section and establishing procedures
> and guidelines for determining when such fees should be waived or
> reduced. Such schedule shall conform to the guidelines which shall be
> promulgated, pursuant to notice and receipt of public comment, by the
> Director of the Office of Management and Budget and which shall
> provide for a uniform schedule of fees for all agencies.
>
> \(ii\) Such agency regulations shall provide that\--
>
> \(I\) fees shall be limited to reasonable standard charges for
> document search, duplication, and review, when records are requested
> for commercial use;
>
> \(II\) fees shall be limited to reasonable standard charges for
> document duplication when records are not sought for commercial use
> and the request is made by an educational or noncommercial scientific
> institution, whose purpose is scholarly or scientific research; or a
> representative of the news media; and
>
> \(III\) for any request not described in (I) or (II), fees shall be
> limited to reasonable standard charges for document search and
> duplication.
>
> \(iii\) Documents shall be furnished without any charge or at a charge
> reduced below the fees established under clause (ii) if disclosure of
> the information is in the public interest because it is likely to
> contribute significantly to public understanding of the operations or
> activities of the government and is not primarily in the commercial
> interest of the requester.
>
> \(iv\) Fee schedules shall provide for the recovery of only the direct
> costs of search, duplication, or review. Review costs shall include
> only the direct costs incurred during the initial examination of a
> document for the purposes of determining whether the documents must be
> disclosed under this section and for the purposes of withholding any
> portions exempt from disclosure under this section. Review costs may
> not include any costs incurred in resolving issues of law or policy
> that may be raised in the course of processing a request under this
> section. No fee may be charged by any agency under this section\--
>
> \(I\) if the costs of routine collection and processing of the fee are
> likely to equal or exceed the amount of the fee; or
>
> \(II\) for any request described in clause (ii) (II) or (III) of this
> subparagraph for the first two hours of search time or for the first
> one hundred pages of duplication.
>
> \(v\) No agency may require advance payment of any fee unless the
> requester has previously failed to pay fees in a timely fashion, or
> the agency has determined that the fee will exceed \$250.
>
> \(vi\) Nothing in this subparagraph shall supersede fees chargeable
> under a statute specifically providing for setting the level of fees
> for particular types of records.
>
> \(vii\) In any action by a requester regarding the waiver of fees
> under this section, the court shall determine the matter de novo:
> *Provided,* That the court\'s review of the matter shall be limited to
> the record before the agency.
>
> \(B\) On complaint, the district court of the United States in the
> district in which the complainant resides, or has his principal place
> of business, or in which the agency records are situated, or in the
> District of Columbia, has jurisdiction to enjoin the agency from
> withholding agency records and to order the production of any agency
> records improperly withheld from the complainant. In such a case the
> court shall determine the matter de novo, and may examine the contents
> of such agency records in camera to determine whether such records or
> any part thereof shall be withheld under any of the exemptions set
> forth in subsection (b) of this section, and the burden is on the
> agency to sustain its action. In addition to any other matters to
> which a court accords substantial weight, a court shall accord
> substantial weight to an affidavit of an agency concerning the
> agency\'s determination as to technical feasibility under paragraph
> (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).
>
> \(C\) Notwithstanding any other provision of law, the defendant shall
> serve an answer or otherwise plead to any complaint made under this
> subsection within thirty days after service upon the defendant of the
> pleading in which such complaint is made, unless the court otherwise
> directs for good cause shown.
>
> \[(D) Repealed.\]
>
> \(E\) The court may assess against the United States reasonable
> attorney fees and other litigation costs reasonably incurred in any
> case under this section in which the complainant has substantially
> prevailed.
>
> \(F\) Whenever the court orders the production of any agency records
> improperly withheld from the complainant and assesses against the
> United States reasonable attorney fees and other litigation costs, and
> the court additionally issues a written finding that the circumstances
> surrounding the withholding raise questions whether agency personnel
> acted arbitrarily or capriciously with respect to the withholding, the
> Special Counsel shall promptly initiate a proceeding to determine
> whether disciplinary action is warranted against the officer or
> employee who was primarily responsible for the withholding. The
> Special Counsel, after investigation and consideration of the evidence
> submitted, shall submit his findings and recommendations to the
> administrative authority of the agency concerned and shall send copies
> of the findings and recommendations to the officer or employee or his
> representative. The administrative authority shall take the corrective
> action that the Special Counsel recommends.
>
> \(G\) In the event of noncompliance with the order of the court, the
> district court may punish for contempt the responsible employee, and
> in the case of a uniformed service, the responsible member.
>
> \(5\) Each agency having more than one member shall maintain and make
> available for public inspection a record of the final votes of each
> member in every agency proceeding.
>
> (6)(A) Each agency, upon any request for records made under paragraph
> (1), (2), or (3) of this subsection, shall\--
>
> \(i\) determine within 20 days (excepting Saturdays, Sundays, and
> legal public holidays) after the receipt of any such request whether
> to comply with such request and shall immediately notify the person
> making such request of such determination and the reasons therefor,
> and of the right of such person to appeal to the head of the agency
> any adverse determination; and
>
> \(ii\) make a determination with respect to any appeal within twenty
> days (excepting Saturdays, Sundays, and legal public holidays) after
> the receipt of such appeal. If on appeal the denial of the request for
> records is in whole or in part upheld, the agency shall notify the
> person making such request of the provisions for judicial review of
> that determination under paragraph (4) of this subsection.
>
> (B)(i) In unusual circumstances as specified in this subparagraph, the
> time limits prescribed in either clause (i) or clause (ii) of
> subparagraph (A) may be extended by written notice to the person
> making such request setting forth the unusual circumstances for such
> extension and the date on which a determination is expected to be
> dispatched. No such notice shall specify a date that would result in
> an extension for more than ten working days, except as provided in
> clause (ii) of this subparagraph.
>
> \(ii\) With respect to a request for which a written notice under
> clause (i) extends the time limits prescribed under clause (i) of
> subparagraph (A), the agency shall notify the person making the
> request if the request cannot be processed within the time limit
> specified in that clause and shall provide the person an opportunity
> to limit the scope of the request so that it may be processed within
> that time limit or an opportunity to arrange with the agency an
> alternative time frame for processing the request or a modified
> request. Refusal by the person to reasonably modify the request or
> arrange such an alternative time frame shall be considered as a factor
> in determining whether exceptional circumstances exist for purposes of
> subparagraph (C).
>
> \(iii\) As used in this subparagraph, \`unusual circumstances\' means,
> but only to the extent reasonably necessary to the proper processing
> of the particular requests\--
>
> \(I\) the need to search for and collect the requested records from
> field facilities or other establishments that are separate from the
> office processing the request;
>
> \(II\) the need to search for, collect, and appropriately examine a
> voluminous amount of separate and distinct records which are demanded
> in a single request; or
>
> \(III\) the need for consultation, which shall be conducted with all
> practicable speed, with another agency having a substantial interest
> in the determination of the request or among two or more components of
> the agency having substantial subject-matter interest therein.
>
> \(iv\) Each agency may promulgate regulations, pursuant to notice and
> receipt of public comment, providing for the aggregation of certain
> requests by the same requestor, or by a group of requestors acting in
> concert, if the agency reasonably believes that such requests actually
> constitute a single request, which would otherwise satisfy the unusual
> circumstances specified in this subparagraph, and the requests involve
> clearly related matters. Multiple requests involving unrelated matters
> shall not be aggregated.
>
> (C)(i) Any person making a request to any agency for records under
> paragraph (1), (2), or (3) of this subsection shall be deemed to have
> exhausted his administrative remedies with respect to such request if
> the agency fails to comply with the applicable time limit provisions
> of this paragraph. If the Government can show exceptional
> circumstances exist and that the agency is exercising due diligence in
> responding to the request, the court may retain jurisdiction and allow
> the agency additional time to complete its review of the records. Upon
> any determination by an agency to comply with a request for records,
> the records shall be made promptly available to such person making
> such request. Any notification of denial of any request for records
> under this subsection shall set forth the names and titles or
> positions of each person responsible for the denial of such request.
>
> \(ii\) For purposes of this subparagraph, the term \`exceptional
> circumstances\' does not include a delay that results from a
> predictable agency workload of requests under this section, unless the
> agency demonstrates reasonable progress in reducing its backlog of
> pending requests.
>
> \(iii\) Refusal by a person to reasonably modify the scope of a
> request or arrange an alternative time frame for processing a request
> (or a modified request) under clause (ii) after being given an
> opportunity to do so by the agency to whom the person made the request
> shall be considered as a factor in determining whether exceptional
> circumstances exist for purposes of this subparagraph.
>
> (D)(i) Each agency may promulgate regulations, pursuant to notice and
> receipt of public comment, providing for multitrack processing of
> requests for records based on the amount of work or time (or both)
> involved in processing requests.
>
> \(ii\) Regulations under this subparagraph may provide a person making
> a request that does not qualify for the fastest multitrack processing
> an opportunity to limit the scope of the request in order to qualify
> for faster processing.
>
> \(iii\) This subparagraph shall not be considered to affect the
> requirement under subparagraph (C) to exercise due diligence.
>
> (E)(i) Each agency shall promulgate regulations, pursuant to notice
> and receipt of public comment, providing for expedited processing of
> requests for records\--
>
> \(I\) in cases in which the person requesting the records demonstrates
> a compelling need; and
>
> \(II\) in other cases determined by the agency.
>
> \(ii\) Notwithstanding clause (i), regulations under this subparagraph
> must ensure\--
>
> \(I\) that a determination of whether to provide expedited processing
> shall be made, and notice of the determination shall be provided to
> the person making the request, within 10 days after the date of the
> request; and
>
> \(II\) expeditious consideration of administrative appeals of such
> determinations of whether to provide expedited processing.
>
> \(iii\) An agency shall process as soon as practicable any request for
> records to which the agency has granted expedited processing under
> this subparagraph. Agency action to deny or affirm denial of a request
> for expedited processing pursuant to this subparagraph, and failure by
> an agency to respond in a timely manner to such a request shall be
> subject to judicial review under paragraph (4), except that the
> judicial review shall be based on the record before the agency at the
> time of the determination.
>
> \(iv\) A district court of the United States shall not have
> jurisdiction to review an agency denial of expedited processing of a
> request for records after the agency has provided a complete response
> to the request.
>
> \(v\) For purposes of this subparagraph, the term \`compelling need\'
> means\--
>
> \(I\) that a failure to obtain requested records on an expedited basis
> under this paragraph could reasonably be expected to pose an imminent
> threat to the life or physical safety of an individual; or
>
> \(II\) with respect to a request made by a person primarily engaged in
> disseminating information, urgency to inform the public concerning
> actual or alleged Federal Government activity.
>
> \(vi\) A demonstration of a compelling need by a person making a
> request for expedited processing shall be made by a statement
> certified by such person to be true and correct to the best of such
> person\'s knowledge and belief.
>
> \(F\) In denying a request for records, in whole or in part, an agency
> shall make a reasonable effort to estimate the volume of any requested
> matter the provision of which is denied, and shall provide any such
> estimate to the person making the request, unless providing such
> estimate would harm an interest protected by the exemption in
> subsection (b) pursuant to which the denial is made.
>
> \(b\) This section does not apply to matters that are\--
>
> (1)(A) specifically authorized under criteria established by an
> Executive order to be kept secret in the interest of national defense
> or foreign policy and (B) are in fact properly classified pursuant to
> such Executive order;
>
> \(2\) related solely to the internal personnel rules and practices of
> an agency;
>
> \(3\) specifically exempted from disclosure by statute (other than
> section 552b of this title), provided that such statute (A) requires
> that the matters be withheld from the public in such a manner as to
> leave no discretion on the issue, or (B) establishes particular
> criteria for withholding or refers to particular types of matters to
> be withheld;
>
> \(4\) trade secrets and commercial or financial information obtained
> from a person and privileged or confidential;
>
> \(5\) inter-agency or intra-agency memorandums or letters which would
> not be available by law to a party other than an agency in litigation
> with the agency;
>
> \(6\) personnel and medical files and similar files the disclosure of
> which would constitute a clearly unwarranted invasion of personal
> privacy;
>
> \(7\) records or information compiled for law enforcement purposes,
> but only to the extent that the production of such law enforcement
> records or information (A) could reasonably be expected to interfere
> with enforcement proceedings, (B) would deprive a person of a right to
> a fair trial or an impartial adjudication, (C) could reasonably be
> expected to constitute an unwarranted invasion of personal privacy,
> (D) could reasonably be expected to disclose the identity of a
> confidential source, including a State, local, or foreign agency or
> authority or any private institution which furnished information on a
> confidential basis, and, in the case of a record or information
> compiled by criminal law enforcement authority in the course of a
> criminal investigation or by an agency conducting a lawful national
> security intelligence investigation, information furnished by a
> confidential source, (E) would disclose techniques and procedures for
> law enforcement investigations or prosecutions, or would disclose
> guidelines for law enforcement investigations or prosecutions if such
> disclosure could reasonably be expected to risk circumvention of the
> law, or (F) could reasonably be expected to endanger the life or
> physical safety of any individual;
>
> \(8\) contained in or related to examination, operating, or condition
> reports prepared by, on behalf of, or for the use of an agency
> responsible for the regulation or supervision of financial
> institutions; or
>
> \(9\) geological and geophysical information and data, including maps,
> concerning wells.
>
> Any reasonably segregable portion of a record shall be provided to any
> person requesting such record after deletion of the portions which are
> exempt under this subsection. The amount of information deleted shall
> be indicated on the released portion of the record, unless including
> that indication would harm an interest protected by the exemption in
> this subsection under which the deletion is made. If technically
> feasible, the amount of the information deleted shall be indicated at
> the place in the record where such deletion is made.
>
> (c)(1) Whenever a request is made which involves access to records
> described in subsection (b)(7)(A) and\--
>
> \(A\) the investigation or proceeding involves a possible violation of
> criminal law; and
>
> \(B\) there is reason to believe that (i) the subject of the
> investigation or proceeding is not aware of its pendency, and (ii)
> disclosure of the existence of the records could reasonably be
> expected to interfere with enforcement proceedings,
>
> the agency may, during only such time as that circumstance continues,
> treat the records as not subject to the requirements of this section.
>
> \(2\) Whenever informant records maintained by a criminal law
> enforcement agency under an informant\'s name or personal identifier
> are requested by a third party according to the informant\'s name or
> personal identifier, the agency may treat the records as not subject
> to the requirements of this section unless the informant\'s status as
> an informant has been officially confirmed.
>
> \(3\) Whenever a request is made which involves access to records
> maintained by the Federal Bureau of Investigation pertaining to
> foreign intelligence or counterintelligence, or international
> terrorism, and the existence of the records is classified information
> as provided in subsection (b)(1), the Bureau may, as long as the
> existence of the records remains classified information, treat the
> records as not subject to the requirements of this section.
>
> \(d\) This section does not authorize withholding of information or
> limit the availability of records to the public, except as
> specifically stated in this section. This section is not authority to
> withhold information from Congress.
>
> (e)(1) On or before February 1 of each year, each agency shall submit
> to the Attorney General of the United States a report which shall
> cover the preceding fiscal year and which shall include\--
>
> \(A\) the number of determinations made by the agency not to comply
> with requests for records made to such agency under subsection (a) and
> the reasons for each such determination;
>
> (B)(i) the number of appeals made by persons under subsection (a)(6),
> the result of such appeals, and the reason for the action upon each
> appeal that results in a denial of information; and
>
> \(ii\) a complete list of all statutes that the agency relies upon to
> authorize the agency to withhold information under subsection (b)(3),
> a description of whether a court has upheld the decision of the agency
> to withhold information under each such statute, and a concise
> description of the scope of any information withheld;
>
> \(C\) the number of requests for records pending before the agency as
> of September 30 of the preceding year, and the median number of days
> that such requests had been pending before the agency as of that date;
>
> \(D\) the number of requests for records received by the agency and
> the number of requests which the agency processed;
>
> \(E\) the median number of days taken by the agency to process
> different types of requests;
>
> \(F\) the total amount of fees collected by the agency for processing
> requests; and
>
> \(G\) the number of full-time staff of the agency devoted to
> processing requests for records under this section, and the total
> amount expended by the agency for processing such requests.
>
> \(2\) Each agency shall make each such report available to the public
> including by computer telecommunications, or if computer
> telecommunications means have not been established by the agency, by
> other electronic means.
>
> \(3\) The Attorney General of the United States shall make each report
> which has been made available by electronic means available at a
> single electronic access point. The Attorney General of the United
> States shall notify the Chairman and ranking minority member of the
> Committee on Government Reform and Oversight of the House of
> Representatives and the Chairman and ranking minority member of the
> Committees on Governmental Affairs and the Judiciary of the Senate, no
> later than April 1 of the year in which each such report is issued,
> that such reports are available by electronic means.
>
> \(4\) The Attorney General of the United States, in consultation with
> the Director of the Office of Management and Budget, shall develop
> reporting and performance guidelines in connection with reports
> required by this subsection by October 1, 1997, and may establish
> additional requirements for such reports as the Attorney General
> determines may be useful.
>
> \(5\) The Attorney General of the United States shall submit an annual
> report on or before April 1 of each calendar year which shall include
> for the prior calendar year a listing of the number of cases arising
> under this section, the exemption involved in each case, the
> disposition of such case, and the cost, fees, and penalties assessed
> under subparagraphs (E), (F), and (G) of subsection (a)(4). Such
> report shall also include a description of the efforts undertaken by
> the Department of Justice to encourage agency compliance with this
> section.
>
> \(f\) For purposes of this section, the term\--
>
> \(1\) \`agency\' as defined in section 551(1) of this title includes
> any executive department, military department, Government corporation,
> Government controlled corporation, or other establishment in the
> executive branch of the Government (including the Executive Office of
> the President), or any independent regulatory agency; and
>
> \(2\) \`record\' and any other term used in this section in reference
> to information includes any information that would be an agency record
> subject to the requirements of this section when maintained by an
> agency in any format, including an electronic format.
>
> \(g\) The head of each agency shall prepare and make publicly
> available upon request, reference material or a guide for requesting
> records or information from the agency, subject to the exemptions in
> subsection (b), including\--
>
> \(1\) an index of all major information systems of the agency;
>
> \(2\) a description of major information and record locator systems
> maintained by the agency; and
>
> \(3\) a handbook for obtaining various types and categories of public
> information from the agency pursuant to chapter 35 of title 44, and
> under this section.

### APPENDIX 6- TEXT OF THE PRIVACY ACT OF 1974

#### Sec. 552a. Records maintained on individuals

> \(a\) DEFINITIONS- For purposes of this section\--
>
> \(1\) the term \`agency\' means agency as defined in section 552(e) 42

\[Footnote\] of this title;

\[*Footnote 42:* Reference probably should be to \`552(f)\'. Section
1802(b) of Public Law 99-570 (100 Stat. 3207-49) redesignated subsection
(e) of section 552 as (f).\]

> \(2\) the term \`individual\' means a citizen of the United States or
> an alien lawfully admitted for permanent residence;
>
> \(3\) the term \`maintain\' includes maintain, collect, use, or
> disseminate;
>
> \(4\) the term \`record\' means any item, collection, or grouping of
> information about an individual that is maintained by an agency,
> including, but not limited to, his education, financial transactions,
> medical history, and criminal or employment history and that contains
> his name, or the identifying number, symbol, or other identifying
> particular assigned to the individual, such as a finger or voice print
> or a photograph;
>
> \(5\) the term \`system of records\' means a group of any records
> under the control of any agency from which information is retrieved by
> the name of the individual or by some identifying number, symbol, or
> other identifying particular assigned to the individual;
>
> \(6\) the term \`statistical record\' means a record in a system of
> records maintained for statistical research or reporting purposes only
> and not used in whole or in part in making any determination about an
> identifiable individual, except as provided by section 8 of title 13;
>
> \(7\) the term \`routine use\' means, with respect to the disclosure
> of a record, the use of such record for a purpose which is compatible
> with the purpose for which it was collected;
>
> \(8\) the term \`matching program\'\--
>
> \(A\) means any computerized comparison of\--
>
> \(i\) two or more automated systems of records or a system of records
> with non-Federal records for the purpose of\--
>
> \(I\) establishing or verifying the eligibility of, or continuing
> compliance with statutory and regulatory requirements by, applicants
> for, recipients or beneficiaries of, participants in, or providers of
> services with respect to, cash or in-kind assistance or payments under
> Federal benefit programs, or
>
> \(II\) recouping payments or delinquent debts under such Federal
> benefit programs, or
>
> \(ii\) two or more automated Federal personnel or payroll systems of
> records or a system of Federal personnel or payroll records with
> non-Federal records,
>
> \(B\) but does not include\--
>
> \(i\) matches performed to produce aggregate statistical data without
> any personal identifiers;
>
> \(ii\) matches performed to support any research or statistical
> project, the specific data of which may not be used to make decisions
> concerning the rights, benefits, or privileges of specific
> individuals;
>
> \(iii\) matches performed, by an agency (or component thereof) which
> performs as its principal function any activity pertaining to the
> enforcement of criminal laws, subsequent to the initiation of a
> specific criminal or civil law enforcement investigation of a named
> person or persons for the purpose of gathering evidence against such
> person or persons;
>
> \(iv\) matches of tax information (I) pursuant to section 6103(d) of
> the Internal Revenue Code of 1986, (II) for purposes of tax
> administration as defined in section 6103(b)(4) of such Code, (III)
> for the purpose of intercepting a tax refund due an individual under
> authority granted by section 404(e), 464, or 1137 of the Social
> Security Act; or (IV) for the purpose of intercepting a tax refund due
> an individual under any other tax refund intercept program authorized
> by statute which has been determined by the Director of the Office of
> Management and Budget to contain verification, notice, and hearing
> requirements that are substantially similar to the procedures in
> section 1137 of the Social Security Act;
>
> \(v\) matches\--
>
> \(I\) using records predominantly relating to Federal personnel, that
> are performed for routine administrative purposes (subject to guidance
> provided by the Director of the Office of Management and Budget
> pursuant to subsection (v)); or
>
> \(II\) conducted by an agency using only records from systems of
> records maintained by that agency;
>
> if the purpose of the match is not to take any adverse financial,
> personnel, disciplinary, or other adverse action against Federal
> personnel;
>
> \(vi\) matches performed for foreign counterintelligence purposes or
> to produce background checks for security clearances of Federal
> personnel or Federal contractor personnel;
>
> \(vii\) matches performed incident to a levy described in section
> 6103(k)(8) of the Internal Revenue Code of 1986; or
>
> \(viii\) matches performed pursuant to section 202(x)(3) or 1611(e)(1)
> of the Social Security Act (42 U.S.C. 402(x)(3), 1382(e)(1));
>
> \(9\) the term \`recipient agency\' means any agency, or contractor
> thereof, receiving records contained in a system of records from a
> source agency for use in a matching program;
>
> \(10\) the term \`non-Federal agency\' means any State or local
> government, or agency thereof, which receives records contained in a
> system of records from a source agency for use in a matching program;
>
> \(11\) the term \`source agency\' means any agency which discloses
> records contained in a system of records to be used in a matching
> program, or any State or local government, or agency thereof, which
> discloses records to be used in a matching program;
>
> \(12\) the term \`Federal benefit program\' means any program
> administered or funded by the Federal Government, or by any agent or
> State on behalf of the Federal Government, providing cash or in-kind
> assistance in the form of payments, grants, loans, or loan guarantees
> to individuals; and
>
> \(13\) the term \`Federal personnel\' means officers and employees of
> the Government of the United States, members of the uniformed services
> (including members of the Reserve Components), individuals entitled to
> receive immediate or deferred retirement benefits under any retirement
> program of the Government of the United States (including survivor
> benefits).
>
> \(b\) CONDITIONS OF DISCLOSURE- No agency shall disclose any record
> which is contained in a system of records by any means of
> communication to any person, or to another agency, except pursuant to
> a written request by, or with the prior written consent of, the
> individual to whom the record pertains, unless disclosure of the
> record would be\--
>
> \(1\) to those officers and employees of the agency which maintains
> the record who have a need for the record in the performance of their
> duties;
>
> \(2\) required under section 552 of this title;
>
> \(3\) for a routine use as defined in subsection (a)(7) of this
> section and described under subsection (e)(4)(D) of this section;
>
> \(4\) to the Bureau of the Census for purposes of planning or carrying
> out a census or survey or related activity pursuant to the provisions
> of title 13;
>
> \(5\) to a recipient who has provided the agency with advance adequate
> written assurance that the record will be used solely as a statistical
> research or reporting record, and the record is to be transferred in a
> form that is not individually identifiable;
>
> \(6\) to the National Archives and Records Administration as a record
> which has sufficient historical or other value to warrant its
> continued preservation by the United States Government, or for
> evaluation by the Archivist of the United States or the designee of
> the Archivist to determine whether the record has such value;
>
> \(7\) to another agency or to an instrumentality of any governmental
> jurisdiction within or under the control of the United States for a
> civil or criminal law enforcement activity if the activity is
> authorized by law, and if the head of the agency or instrumentality
> has made a written request to the agency which maintains the record
> specifying the particular portion desired and the law enforcement
> activity for which the record is sought;
>
> \(8\) to a person pursuant to a showing of compelling circumstances
> affecting the health or safety of an individual if upon such
> disclosure notification is transmitted to the last known address of
> such individual;
>
> \(9\) to either House of Congress, or, to the extent of matter within
> its jurisdiction, any committee or subcommittee thereof, 43

\[Footnote\] any joint committee of Congress or subcommittee of any such
joint committee;

\[*Footnote 43:* So in law; \`thereof,\' should probably be \`thereof
or\'.\]

> \(10\) to the Comptroller General, or any of his authorized
> representatives, in the course of the performance of the duties of the
> General Accounting Office;
>
> \(11\) pursuant to the order of a court of competent jurisdiction; and
> 44

\[Footnote\]

\[*Footnote 44:* So in law. Probably should be \`; or\'.\]

> \(12\) to a consumer reporting agency in accordance with section
> 3711(e) of title 31.
>
> \(c\) ACCOUNTING OF CERTAIN DISCLOSURES- Each agency, with respect to
> each system of records under its control shall\--
>
> \(1\) except for disclosures made under subsections (b)(1) or (b)(2)
> of this section, keep an accurate accounting of\--
>
> \(A\) the date, nature, and purpose of each disclosure of a record to
> any person or to another agency made under subsection (b) of this
> section; and
>
> \(B\) the name and address of the person or agency to whom the
> disclosure is made;
>
> \(2\) retain the accounting made under paragraph (1) of this
> subsection for at least five years or the life of the record,
> whichever is longer, after the disclosure for which the accounting is
> made;
>
> \(3\) except for disclosures made under subsection (b)(7) of this
> section, make the accounting made under paragraph (1) of this
> subsection available to the individual named in the record at his
> request; and
>
> \(4\) inform any person or other agency about any correction or
> notation of dispute made by the agency in accordance with subsection
> (d) of this section of any record that has been disclosed to the
> person or agency if an accounting of the disclosure was made.
>
> \(d\) ACCESS TO RECORDS- Each agency that maintains a system of
> records shall\--
>
> \(1\) upon request by any individual to gain access to his record or
> to any information pertaining to him which is contained in the system,
> permit him and upon his request, a person of his own choosing to
> accompany him, to review the record and have a copy made of all or any
> portion thereof in a form comprehensible to him, except that the
> agency may require the individual to furnish a written statement
> authorizing discussion of that individual\'s record in the
> accompanying person\'s presence;
>
> \(2\) permit the individual to request amendment of a record
> pertaining to him and\--
>
> \(A\) not later than 10 days (excluding Saturdays, Sundays, and legal
> public holidays) after the date of receipt of such request,
> acknowledge in writing such receipt; and
>
> \(B\) promptly, either\--
>
> \(i\) make any correction of any portion thereof which the individual
> believes is not accurate, relevant, timely, or complete; or
>
> \(ii\) inform the individual of its refusal to amend the record in
> accordance with his request, the reason for the refusal, the
> procedures established by the agency for the individual to request a
> review of that refusal by the head of the agency or an officer
> designated by the head of the agency, and the name and business
> address of that official;
>
> \(3\) permit the individual who disagrees with the refusal of the
> agency to amend his record to request a review of such refusal, and
> not later than 30 days (excluding Saturdays, Sundays, and legal public
> holidays) from the date on which the individual requests such review,
> complete such review and make a final determination unless, for good
> cause shown, the head of the agency extends such 30-day period; and
> if, after his review, the reviewing official also refuses to amend the
> record in accordance with the request, permit the individual to file
> with the agency a concise statement setting forth the reasons for his
> disagreement with the refusal of the agency, and notify the individual
> of the provisions for judicial review of the reviewing official\'s
> determination under subsection (g)(1)(A) of this section;
>
> \(4\) in any disclosure, containing information about which the
> individual has filed a statement of disagreement, occurring after the
> filing of the statement under paragraph (3) of this subsection,
> clearly note any portion of the record which is disputed and provide
> copies of the statement and, if the agency deems it appropriate,
> copies of a concise statement of the reasons of the agency for not
> making the amendments requested, to persons or other agencies to whom
> the disputed record has been disclosed; and
>
> \(5\) nothing in this section shall allow an individual access to any
> information compiled in reasonable anticipation of a civil action or
> proceeding. 45

\[Footnote\]

\[*Footnote 45:* So in law. Paragraph (5) should probably be a separate
sentence.\]

> \(e\) AGENCY REQUIREMENTS- Each agency that maintains a system of
> records shall\--
>
> \(1\) maintain in its records only such information about an
> individual as is relevant and necessary to accomplish a purpose of the
> agency required to be accomplished by statute or by executive order of
> the President;
>
> \(2\) collect information to the greatest extent practicable directly
> from the subject individual when the information may result in adverse
> determinations about an individual\'s rights, benefits, and privileges
> under Federal programs;
>
> \(3\) inform each individual whom it asks to supply information, on
> the form which it uses to collect the information or on a separate
> form that can be retained by the individual\--
>
> \(A\) the authority (whether granted by statute, or by executive order
> of the President) which authorizes the solicitation of the information
> and whether disclosure of such information is mandatory or voluntary;
>
> \(B\) the principal purpose or purposes for which the information is
> intended to be used;
>
> \(C\) the routine uses which may be made of the information, as
> published pursuant to paragraph (4)(D) of this subsection; and
>
> \(D\) the effects on him, if any, of not providing all or any part of
> the requested information;
>
> \(4\) subject to the provisions of paragraph (11) of this subsection,
> publish in the Federal Register upon establishment or revision a
> notice of the existence and character of the system of records, which
> notice shall include\--
>
> \(A\) the name and location of the system;
>
> \(B\) the categories of individuals on whom records are maintained in
> the system;
>
> \(C\) the categories of records maintained in the system;
>
> \(D\) each routine use of the records contained in the system,
> including the categories of users and the purpose of such use;
>
> \(E\) the policies and practices of the agency regarding storage,
> retrievability, access controls, retention, and disposal of the
> records;
>
> \(F\) the title and business address of the agency official who is
> responsible for the system of records;
>
> \(G\) the agency procedures whereby an individual can be notified at
> his request if the system of records contains a record pertaining to
> him;
>
> \(H\) the agency procedures whereby an individual can be notified at
> his request how he can gain access to any record pertaining to him
> contained in the system of records, and how he can contest its
> content; and
>
> \(I\) the categories of sources of records in the system;
>
> \(5\) maintain all records which are used by the agency in making any
> determination about any individual with such accuracy, relevance,
> timeliness, and completeness as is reasonably necessary to assure
> fairness to the individual in the determination;
>
> \(6\) prior to disseminating any record about an individual to any
> person other than an agency, unless the dissemination is made pursuant
> to subsection (b)(2) of this section, make reasonable efforts to
> assure that such records are accurate, complete, timely, and relevant
> for agency purposes;
>
> \(7\) maintain no record describing how any individual exercises
> rights guaranteed by the First Amendment unless expressly authorized
> by statute or by the individual about whom the record is maintained or
> unless pertinent to and within the scope of an authorized law
> enforcement activity;
>
> \(8\) make reasonable efforts to serve notice on an individual when
> any record on such individual is made available to any person under
> compulsory legal process when such process becomes a matter of public
> record;
>
> \(9\) establish rules of conduct for persons involved in the design,
> development, operation, or maintenance of any system of records, or in
> maintaining any record, and instruct each such person with respect to
> such rules and the requirements of this section, including any other
> rules and procedures adopted pursuant to this section and the
> penalties for noncompliance;
>
> \(10\) establish appropriate administrative, technical, and physical
> safeguards to insure the security and confidentiality of records and
> to protect against any anticipated threats or hazards to their
> security or integrity which could result in substantial harm,
> embarrassment, inconvenience, or unfairness to any individual on whom
> information is maintained;
>
> \(11\) at least 30 days prior to publication of information under
> paragraph (4)(D) of this subsection, publish in the Federal Register
> notice of any new use or intended use of the information in the
> system, and provide an opportunity for interested persons to submit
> written data, views, or arguments to the agency; and
>
> \(12\) if such agency is a recipient agency or a source agency in a
> matching program with a non-Federal agency, with respect to any
> establishment or revision of a matching program, at least 30 days
> prior to conducting such program, publish in the Federal Register
> notice of such establishment or revision.
>
> \(f\) AGENCY RULES- In order to carry out the provisions of this
> section, each agency that maintains a system of records shall
> promulgate rules, in accordance with the requirements (including
> general notice) of section 553 of this title, which shall\--
>
> \(1\) establish procedures whereby an individual can be notified in
> response to his request if any system of records named by the
> individual contains a record pertaining to him;
>
> \(2\) define reasonable times, places, and requirements for
> identifying an individual who requests his record or information
> pertaining to him before the agency shall make the record or
> information available to the individual;
>
> \(3\) establish procedures for the disclosure to an individual upon
> his request of his record or information pertaining to him, including
> special procedure, if deemed necessary, for the disclosure to an
> individual of medical records, including psychological records
> pertaining to him;
>
> \(4\) establish procedures for reviewing a request from an individual
> concerning the amendment of any record or information pertaining to
> the individual, for making a determination on the request, for an
> appeal within the agency of an initial adverse agency determination,
> and for whatever additional means may be necessary for each individual
> to be able to exercise fully his rights under this section; and
>
> \(5\) establish fees to be charged, if any, to any individual for
> making copies of his record, excluding the cost of any search for and
> review of the record.
>
> The Office of the Federal Register shall biennially compile and
> publish the rules promulgated under this subsection and agency notices
> published under subsection (e)(4) of this section in a form available
> to the public at low cost.
>
> (g)(1) CIVIL REMEDIES- Whenever any agency\--
>
> \(A\) makes a determination under subsection (d)(3) of this section
> not to amend an individual\'s record in accordance with his request,
> or fails to make such review in conformity with that subsection;
>
> \(B\) refuses to comply with an individual request under subsection
> (d)(1) of this section;
>
> \(C\) fails to maintain any record concerning any individual with such
> accuracy, relevance, timeliness, and completeness as is necessary to
> assure fairness in any determination relating to the qualifications,
> character, rights, or opportunities of, or benefits to the individual
> that may be made on the basis of such record, and consequently a
> determination is made which is adverse to the individual; or
>
> \(D\) fails to comply with any other provision of this section, or any
> rule promulgated thereunder, in such a way as to have an adverse
> effect on an individual,
>
> the individual may bring a civil action against the agency, and the
> district courts of the United States shall have jurisdiction in the
> matters under the provisions of this subsection.
>
> (2)(A) In any suit brought under the provisions of subsection
> (g)(1)(A) of this section, the court may order the agency to amend the
> individual\'s record in accordance with his request or in such other
> way as the court may direct. In such a case the court shall determine
> the matter de novo.
>
> \(B\) The court may assess against the United States reasonable
> attorney fees and other litigation costs reasonably incurred in any
> case under this paragraph in which the complainant has substantially
> prevailed.
>
> (3)(A) In any suit brought under the provisions of subsection
> (g)(1)(B) of this section, the court may enjoin the agency from
> withholding the records and order the production to the complainant of
> any agency records improperly withheld from him. In such a case the
> court shall determine the matter de novo, and may examine the contents
> of any agency records in camera to determine whether the records or
> any portion thereof may be withheld under any of the exemptions set
> forth in subsection (k) of this section, and the burden is on the
> agency to sustain its action.
>
> \(B\) The court may assess against the United States reasonable
> attorney fees and other litigation costs reasonably incurred in any
> case under this paragraph in which the complainant has substantially
> prevailed.
>
> \(4\) In any suit brought under the provisions of subsection (g)(1)(C)
> or (D) of this section in which the court determines that the agency
> acted in a manner which was intentional or willful, the United States
> shall be liable to the individual in an amount equal to the sum of\--
>
> \(A\) actual damages sustained by the individual as a result of the
> refusal or failure, but in no case shall a person entitled to recovery
> receive less than the sum of \$1,000; and
>
> \(B\) the costs of the action together with reasonable attorney fees
> as determined by the court.
>
> \(5\) An action to enforce any liability created under this section
> may be brought in the district court of the United States in the
> district in which the complainant resides, or has his principal place
> of business, or in which the agency records are situated, or in the
> District of Columbia, without regard to the amount in controversy,
> within two years from the date on which the cause of action arises,
> except that where an agency has materially and willfully
> misrepresented any information required under this section to be
> disclosed to an individual and the information so misrepresented is
> material to establishment of the liability of the agency to the
> individual under this section, the action may be brought at any time
> within two years after discovery by the individual of the
> misrepresentation. Nothing in this section shall be construed to
> authorize any civil action by reason of any injury sustained as the
> result of a disclosure of a record prior to September 27, 1975.
>
> \(h\) RIGHTS OF LEGAL GUARDIANS- For the purposes of this section, the
> parent of any minor, or the legal guardian of any individual who has
> been declared to be incompetent due to physical or mental incapacity
> or age by a court of competent jurisdiction, may act on behalf of the
> individual.
>
> (i)(1) CRIMINAL PENALTIES- Any officer or employee of an agency, who
> by virtue of his employment or official position, has possession of,
> or access to, agency records which contain individually identifiable
> information the disclosure of which is prohibited by this section or
> by rules or regulations established thereunder, and who knowing that
> disclosure of the specific material is so prohibited, willfully
> discloses the material in any manner to any person or agency not
> entitled to receive it, shall be guilty of a misdemeanor and fined not
> more than \$5,000.
>
> \(2\) Any officer or employee of any agency who willfully maintains a
> system of records without meeting the notice requirements of
> subsection (e)(4) of this section shall be guilty of a misdemeanor and
> fined not more than \$5,000.
>
> \(3\) Any person who knowingly and willfully requests or obtains any
> record concerning an individual from an agency under false pretenses
> shall be guilty of a misdemeanor and fined not more than \$5,000.
>
> \(j\) GENERAL EXEMPTIONS- The head of any agency may promulgate rules,
> in accordance with the requirements (including general notice) of
> sections 553(b)(1), (2), and (3), (c), and (e) of this title, to
> exempt any system of records within the agency from any part of this
> section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F),
> (e)(6), (7), (9), (10), and (11), and (i) if the system of records
> is\--
>
> \(1\) maintained by the Central Intelligence Agency; or
>
> \(2\) maintained by an agency or component thereof which performs as
> its principal function any activity pertaining to the enforcement of
> criminal laws, including police efforts to prevent, control, or reduce
> crime or to apprehend criminals, and the activities of prosecutors,
> courts, correctional, probation, pardon, or parole authorities, and
> which consists of (A) information compiled for the purpose of
> identifying individual criminal offenders and alleged offenders and
> consisting only of identifying data and notations of arrests, the
> nature and disposition of criminal charges, sentencing, confinement,
> release, and parole and probation status; (B) information compiled for
> the purpose of a criminal investigation, including reports of
> informants and investigators, and associated with an identifiable
> individual; or (C) reports identifiable to an individual compiled at
> any stage of the process of enforcement of the criminal laws from
> arrest or indictment through release from supervision.
>
> At the time rules are adopted under this subsection, the agency shall
> include in the statement required under section 553(c) of this title,
> the reasons why the system of records is to be exempted from a
> provision of this section.
>
> \(k\) SPECIFIC EXEMPTIONS- The head of any agency may promulgate
> rules, in accordance with the requirements (including general notice)
> of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to
> exempt any system of records within the agency from subsections
> (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section
> if the system of records is\--
>
> \(1\) subject to the provisions of section 552(b)(1) of this title;
>
> \(2\) investigatory material compiled for law enforcement purposes,
> 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, under an implied promise that the
> identity of the source would be held in confidence;
>
> \(3\) maintained in connection with providing protective services to
> the President of the United States or other individuals pursuant to
> section 3056 of title 18;
>
> \(4\) required by statute to be maintained and used solely as
> statistical records;
>
> \(5\) investigatory material compiled solely for the purpose of
> determining suitability, eligibility, or qualifications for Federal
> civilian employment, military service, Federal contracts, or access to
> classified information, but only 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, under an implied promise that the
> identity of the source would be held in confidence;
>
> \(6\) testing or examination material used solely to determine
> individual qualifications for appointment or promotion in the Federal
> service the disclosure of which would compromise the objectivity or
> fairness of the testing or examination process; or
>
> \(7\) evaluation material used to determine potential for promotion in
> the armed services, but only 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, under an implied promise that the
> identity of the source would be held in confidence.
>
> At the time rules are adopted under this subsection, the agency shall
> include in the statement required under section 553(c) of this title,
> the reasons why the system of records is to be exempted from a
> provision of this section.
>
> (l)(1) ARCHIVAL RECORDS- Each agency record which is accepted by the
> Archivist of the United States for storage, processing, and servicing
> in accordance with section 3103 of title 44 shall, for the purposes of
> this section, be considered to be maintained by the agency which
> deposited the record and shall be subject to the provisions of this
> section. The Archivist of the United States shall not disclose the
> record except to the agency which maintains the record, or under rules
> established by that agency which are not inconsistent with the
> provisions of this section.
>
> \(2\) Each agency record pertaining to an identifiable individual
> which was transferred to the National Archives of the United States as
> a record which has sufficient historical or other value to warrant its
> continued preservation by the United States Government, prior to the
> effective date of this section, shall, for the purposes of this
> section, be considered to be maintained by the National Archives and
> shall not be subject to the provisions of this section, except that a
> statement generally describing such records (modeled after the
> requirements relating to records subject to subsections (e)(4)(A)
> through (G) of this section) shall be published in the Federal
> Register.
>
> \(3\) Each agency record pertaining to an identifiable individual
> which is transferred to the National Archives of the United States as
> a record which has sufficient historical or other value to warrant its
> continued preservation by the United States Government, on or after
> the effective date of this section, shall, for the purposes of this
> section, be considered to be maintained by the National Archives and
> shall be exempt from the requirements of this section except
> subsections (e)(4)(A) through (G) and (e)(9) of this section.
>
> \(m\) GOVERNMENT CONTRACTORS- (1) When an agency provides by a
> contract for the operation by or on behalf of the agency of a system
> of records to accomplish an agency function, the agency shall,
> consistent with its authority, cause the requirements of this section
> to be applied to such system. For purposes of subsection (i) of this
> section any such contractor and any employee of such contractor, if
> such contract is agreed to on or after the effective date of this
> section, shall be considered to be an employee of an agency.
>
> \(2\) A consumer reporting agency to which a record is disclosed under
> section 3711(e) of title 31 shall not be considered a contractor for
> the purposes of this section.
>
> \(n\) MAILING LISTS- An individual\'s name and address may not be sold
> or rented by an agency unless such action is specifically authorized
> by law. This provision shall not be construed to require the
> withholding of names and addresses otherwise permitted to be made
> public.
>
> \(o\) MATCHING AGREEMENTS- (1) No record which is contained in a
> system of records may be disclosed to a recipient agency or
> non-Federal agency for use in a computer matching program except
> pursuant to a written agreement between the source agency and the
> recipient agency or non-Federal agency specifying\--
>
> \(A\) the purpose and legal authority for conducting the program;
>
> \(B\) the justification for the program and the anticipated results,
> including a specific estimate of any savings;
>
> \(C\) a description of the records that will be matched, including
> each data element that will be used, the approximate number of records
> that will be matched, and the projected starting and completion dates
> of the matching program;
>
> \(D\) procedures for providing individualized notice at the time of
> application, and notice periodically thereafter as directed by the
> Data Integrity Board of such agency (subject to guidance provided by
> the Director of the Office of Management and Budget pursuant to
> subsection (v)), to\--
>
> \(i\) applicants for and recipients of financed assistance or payments
> under Federal benefit programs, and
>
> \(ii\) applicants for and holders of positions as Federal personnel,
>
> that any information provided by such applicants, recipients, holders,
> and individuals may be subject to verification through matching
> programs;
>
> \(E\) procedures for verifying information produced in such matching
> program as required by subsection (p);
>
> \(F\) procedures for the retention and timely destruction of
> identifiable records created by a recipient agency or non-Federal
> agency in such matching program;
>
> \(G\) procedures for ensuring the administrative, technical, and
> physical security of the records matched and the results of such
> programs;
>
> \(H\) prohibitions on duplication and redisclosure of records provided
> by the source agency within or outside the recipient agency or the
> non-Federal agency, except where required by law or essential to the
> conduct of the matching program;
>
> \(I\) procedures governing the use by a recipient agency or
> non-Federal agency of records provided in a matching program by a
> source agency, including procedures governing return of the records to
> the source agency or destruction of records used in such program;
>
> \(J\) information on assessments that have been made on the accuracy
> of the records that will be used in such matching program; and
>
> \(K\) that the Comptroller General may have access to all records of a
> recipient agency or a non-Federal agency that the Comptroller General
> deems necessary in order to monitor or verify compliance with the
> agreement.
>
> (2)(A) A copy of each agreement entered into pursuant to paragraph (1)
> shall\--
>
> \(i\) be transmitted to the Committee on Governmental Affairs of the
> Senate and the Committee on Government Operations 46

\[Footnote\] of the House of Representatives; and

\[*Footnote 46:* The Committee on Government Operations was renamed to
the Committee on Government Reform and Oversight by H. Res. 6 in the
104th Congress, and renamed the Committee on Government Reform by H.
Res. 5 in the 106th Congress.\]

> \(ii\) be available upon request to the public.
>
> \(B\) No such agreement shall be effective until 30 days after the
> date on which such a copy is transmitted pursuant to subparagraph
> (A)(i).
>
> \(C\) Such an agreement shall remain in effect only for such period,
> not to exceed 18 months, as the Data Integrity Board of the agency
> determines is appropriate in light of the purposes, and length of time
> necessary for the conduct, of the matching program.
>
> \(D\) Within 3 months prior to the expiration of such an agreement
> pursuant to subparagraph (C), the Data Integrity Board of the agency
> may, without additional review, renew the matching agreement for a
> current, ongoing matching program for not more than one additional
> year if\--
>
> \(i\) such program will be conducted without any change; and
>
> \(ii\) each party to the agreement certifies to the Board in writing
> that the program has been conducted in compliance with the agreement.
>
> \(p\) VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS- (1) In order
> to protect any individual whose records are used in a matching
> program, no recipient agency, non-Federal agency, or source agency may
> suspend, terminate, reduce, or make a final denial of any financial
> assistance or payment under a Federal benefit program to such
> individual, or take other adverse action against such individual, as a
> result of information produced by such matching program, until\--
>
> (A)(i) the agency has independently verified the information; or
>
> \(ii\) the Data Integrity Board of the agency, or in the case of a
> non-Federal agency the Data Integrity Board of the source agency,
> determines in accordance with guidance issued by the Director of the
> Office of Management and Budget that\--
>
> \(I\) the information is limited to identification and amount of
> benefits paid by the source agency under a Federal benefit program;
> and
>
> \(II\) there is a high degree of confidence that the information
> provided to the recipient agency is accurate;
>
> \(B\) the individual receives a notice from the agency containing a
> statement of its findings and informing the individual of the
> opportunity to contest such findings; and
>
> (C)(i) the expiration of any time period established for the program
> by statue or regulation for the individual to respond to that notice;
> or
>
> \(ii\) in the case of a program for which no such period is
> established, the end of the 30-day period beginning on the date on
> which notice under subparagraph (B) is mailed or otherwise provided to
> the individual.
>
> \(2\) Independent verification referred to in paragraph (1) requires
> investigation and confirmation of specific information relating to an
> individual that is used as a basis for an adverse action against the
> individual, including where applicable investigation and confirmation
> of\--
>
> \(A\) the amount of any asset or income involved;
>
> \(B\) whether such individual actually has or had access to such asset
> or income for such individual\'s own use; and
>
> \(C\) the period or periods when the individual actually had such
> asset or income.
>
> \(3\) Notwithstanding paragraph (1), an agency may take any
> appropriate action otherwise prohibited by such paragraph if the
> agency determines that the public health or public safety may be
> adversely affected or significantly threatened during any notice
> period required by such paragraph.
>
> \(q\) SANCTIONS- (1) Notwithstanding any other provision of law, no
> source agency may disclose any record with is contained in a system of
> records to a recipient agency or non-Federal agency for a matching
> program if such source agency has reason to believe that the
> requirements of subsection (p), or any matching agreement entered into
> pursuant to subsection (o), or both, are not being met by such
> recipient agency.
>
> \(2\) No source agency may renew a matching agreement unless\--
>
> \(A\) the recipient agency or non-Federal agency has certified that it
> has complied with the provisions of that agreement; and
>
> \(B\) the source agency has no reason to believe that the
> certification is inaccurate.
>
> \(r\) REPORT ON NEW SYSTEMS AND MATCHING PROGRAMS- Each agency that
> proposes to establish or make a significant change in a system of
> records or a matching program shall provide adequate advance notice of
> any such proposal (in duplicate) to the Committee on Government
> Operations 47

\[Footnote\] of the House of Representatives, the Committee on
Governmental Affairs of the Senate, and the Office of Management and
Budget in order to permit an evaluation of the probable or potential
effect of such proposal on the privacy or other rights of individuals.

\[*Footnote 47:* The Committee on Government Operations was renamed to
the Committee on Government Reform and Oversight by H. Res. 6 in the
104th Congress, and renamed the Committee on Government Reform by H.
Res. 5 in the 106th Congress.\]

> \(s\) BIENNIAL REPORT- The President shall biennially submit to the
> Speaker of the House of Representatives and the President pro tempore
> of the Senate a report\--
>
> \(1\) describing the actions of the Director of the Office of
> Management and Budget pursuant to section 6 of the Privacy Act of 1974
> during the preceding 2 years;
>
> \(2\) describing the exercise of individual rights of access and
> amendment under this section during such years;
>
> \(3\) identifying changes in or additions to systems of records;
>
> \(4\) containing such other information concerning administration of
> this section as may be necessary or useful to the Congress in
> reviewing the effectiveness of this section in carrying out the
> purposes of the Privacy Act of 1974.
>
> (t)(1) EFFECT OF OTHER LAWS- No agency shall rely on any exemption
> contained in section 552 of this title to withhold from an individual
> any record which is otherwise accessible to such individual under the
> provisions of this section.
>
> \(2\) No agency shall rely on any exemption in this section to
> withhold from an individual any record which is otherwise accessible
> to such individual under the provisions of section 552 of this title.
>
> \(u\) DATA INTEGRITY BOARDS- (1) Every agency conducting or
> participating in a matching program shall establish a Data Integrity
> Board to oversee and coordinate among the various components of such
> agency the agency\'s implementation of this section.
>
> \(2\) Each Data Integrity Board shall consist of senior officials
> designated by the head of the agency, and shall include any senior
> official designated by the head of the agency as responsible for
> implementation of this section, and the inspector general of the
> agency, if any. The inspector general shall not serve as chairman of
> the Data Integrity Board.
>
> \(3\) Each Data Integrity Board\--
>
> \(A\) shall review, approve, and maintain all written agreements for
> receipt or disclosure of agency records for matching programs to
> ensure compliance with subsection (o), and all relevant statutes,
> regulations, and guidelines;
>
> \(B\) shall review all matching programs in which the agency has
> participated during the year, either as a source agency or recipient
> agency, determine compliance with applicable laws, regulations,
> guidelines, and agency agreements, and assess the costs and benefits
> of such programs;
>
> \(C\) shall review all recurring matching programs in which the agency
> has participated during the year, either as a source agency or
> recipient agency, for continued justification for such disclosures;
>
> \(D\) shall compile an annual report, which shall be submitted to the
> head of the agency and the Office of Management and Budget and made
> available to the public on request, describing the matching activities
> of the agency, including\--
>
> \(i\) matching programs in which the agency has participated as a
> source agency or recipient agency;
>
> \(ii\) matching agreements proposed under subsection (o) that were
> disapproved by the Board;
>
> \(iii\) any changes in membership to structure of the Board in the
> preceding year;
>
> \(iv\) the reasons for any waiver of the requirement in paragraph (4)
> of this section for completion and submission of a cost-benefit
> analysis prior to the approval of a matching program;
>
> \(v\) any violations of matching agreements that have been alleged or
> identified and any corrective action taken; and
>
> \(vi\) any other information required by the Director of the Office of
> Management and Budget to be included in such report;
>
> \(E\) shall serve as a clearinghouse for receiving and providing
> information on the accuracy, completeness, and reliability of records
> used in matching programs;
>
> \(F\) shall provide interpretation and guidance to agency components
> and personnel on the requirements of this section for matching
> programs;
>
> \(G\) shall review agency recordkeeping and disposal policies and
> practices for matching programs to assure compliance with this
> section; and
>
> \(H\) may review and report on any agency matching activities that are
> not matching programs.
>
> (4)(A) Except as provided in subparagraphs (B) and (C), a Data
> Integrity Board shall not approve any written agreement for a matching
> program unless the agency has completed and submitted to such Board a
> cost-benefit analysis of the proposed program and such analysis
> demonstrates that the program is likely to be cost effective.
>
> \(B\) The Board may waive the requirements of subparagraph (A) of this
> paragraph if it determines in writing, in accordance with guidelines
> prescribed by the Director of the Office of Management and Budget,
> that a cost-benefit analysis is not required.
>
> \(C\) A cost-benefit analysis shall not be required under subparagraph
> (A) prior to the initial approval of a written agreement for a
> matching program that is specifically required by statute. Any
> subsequent written agreement for such a program shall not be approved
> by the Data Integrity Board unless the agency has submitted a
> cost-benefit analysis of the program as conducted under the preceding
> approval of such agreement.
>
> (5)(A) If a matching agreement is disapproved by a Data Integrity
> Board, any party to such agreement may appeal the disapproval to the
> Director of the Office of Management and Budget. Timely notice of the
> filing of such an appeal shall be provided by the Director of the
> Office of Management and Budget to the Committee on Governmental
> Affairs of the Senate and the Committee on Government Operations 48

\[Footnote\] of the House of Representatives.

\[*Footnote 48:* The Committee on Government Operations was renamed to
the Committee on Government Reform and Oversight by H. Res. 6 in the
104th Congress, and renamed the Committee on Government Reform by H.
Res. 5 in the 106th Congress.\]

> \(B\) The Director of the Office of Management and Budget may approve
> a matching agreement notwithstanding the disapproval of a Data
> Integrity Board if the Director determines that\--
>
> \(i\) the matching program will be consistent with all applicable
> legal, regulatory, and policy requirements;
>
> \(ii\) there is adequate evidence that the matching agreement will be
> cost-effective; and
>
> \(iii\) the matching program is in the public interest.
>
> \(C\) The decision of the Director to approve a matching agreement
> shall not take effect until 30 days after it is reported to committees
> described in subparagraph (A).
>
> \(D\) If the Data Integrity Board and the Director of the Office of
> Management and Budget disapprove a matching program proposed by the
> inspector general of an agency, the inspector general may report the
> disapproval to the head of the agency and to the Congress.
>
> \(6\) In the reports required by paragraph (3)(D), agency matching
> activities that are not matching programs may be reported on an
> aggregate basis, if and to the extent necessary to protect ongoing law
> enforcement or counterintelligence investigations.
>
> \(v\) OFFICE OF MANAGEMENT AND BUDGET RESPONSIBILITIES- The Director
> of the Office of Management and Budget shall\--
>
> \(1\) develop and, after notice and opportunity for public comment,
> prescribe guidelines and regulations for the use of agencies in
> implementing the provisions of this section; and
>
> \(2\) provide continuing assistance to an oversight of the
> implementation of this section by agencies.
>
> (Added Public Law 93-579, Sec. 3, Dec. 31, 1974, 88 Stat. 1897, and
> amended Public Law 94-183, 2(2), Dec. 31, 1975, 89 Stat. 1057; Public
> Law 97-365, 2, Oct. 25, 1982, 96 Stat. 1749; Public Law 97-375, title
> II, 201(a), (b), Dec. 21, 1982, 96 Stat. 1821; Public Law 97-452,
> 2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Public Law 98-477, 2(c), Oct.
> 15, 1984, 98 Stat. 2211; Public Law 98-497, title I, 107(g), Oct. 19,
> 1984, 98 Stat. 2292; Public Law 100-503, 2-6(a), 7, 8, Oct. 18, 1988,
> 102 Stat. 2507-2514; Public Law 101-508, title VII, 7201(b)(1), Nov.
> 5, 1990, 104 Stat. 1388-334; Public Law 103-66, title XIII, 13581(c),
> Aug. 10, 1993, 107 Stat. 611.)