What You Need to Know About FOIA and the Privacy Act

Article 3 min
Review these guidelines for releasing information according to FOIA and the Privacy Act.

The Freedom of Information Act, or FOIA and the Privacy Act of 1974 are U.S. laws that are in place to regulate the rights of information, both serving different purposes. In short, FOIA provides the public with a right of access to government records, while the Privacy Act was created to protect individuals' personally identifiable information from being released to others.

It is essential to understand the difference between the two and follow their guidelines. In all situations, the public’s right to know must be weighed against the individuals’ right to privacy.

Freedom of Information Act

FOIA is a disclosure law that says information is releasable across all federal agencies, unless it falls in one of nine specific categories. The act does not require exempted information be withheld, but permits it to be withheld.

If you or your office receive a FOIA request, you must pass it immediately to the FOIA Requester Service Center. Public affairs officers don't decide whether exempted information will be released; the base commander has final release authority.

Nine Exemptions for Withholding Information

  1. National Security: Documents classified as top secret, secret or confidential are not releasable.
  2. Internal Agency Rules: This relieves the government of maintaining for public inspection routine material that's more or less trivial, such as employee parking rules or agency criteria regulations.
  3. Exempt by Other Statute: Examples of this are the charter for the CIA or the Census Act, both of which protect information that is fundamental.
  4. Trade Secrets: This exemption is designed to protect trade secrets, like secret formulas.
  5. Interagency or Intra-agency Memoranda or Letters: This exemption is designed to protect working papers, studies and reports within an agency.
  6. Personnel and Medical Files: This exemption essentially covers the same material as the Privacy Act.
  7. Law Enforcement Information: Protects information that would jeopardize ongoing investigations. Law enforcement information may be withheld for the following reasons: 
    1. If it could interfere with law enforcement proceedings
    2. If it could deprive a person of a fair trial
    3. If it constitutes an unwarranted invasion of privacy
    4. If it discloses the identity of a confidential source
    5. If it discloses investigative techniques
    6. If it endangers the life or safety of a law enforcement official
  8. Bank Reports: Reports prepared by federal agencies about the condition of banks and other federally regulated institutions may be withheld. 
  9. Oil and Gas Well Data: This exemption is designed to prohibit speculators from obtaining information about the location of oil and gas wells of private companies.

Privacy Act of 1974

The Privacy Act of 1974 was designed for citizens to review records kept about them by the government and to prevent government agencies from excessive disclosure of personal information. The act also provides individuals with the right to seek access to and amend their personal records.

Guidelines for Releasing Information

  1. Age or Date of Birth: This information is not normally releasable.
  2. Marital Status and Family Members: This information is not normally releasable.
  3. Gender: This information is not normally releasable. Where the fact of an individual’s gender is relevant in providing essential facts to the press, it may be released.
  4. Next of Kin: Privacy limitations usually do not apply to people who have died, but privacy of the next of kin must be considered.
  5. Home of Record: This information is generally releasable.
  6. Education, Schooling and Specialty: This information is generally releasable under FOIA.
  7. Awards, Decorations and Citations: This information is releasable.
  8. Social Security Number: Do not release this information.
  9. Type of Discharge: Do not release if discharge is honorable, general, other than honorable, or entry level separation. The Department of Defense preserves this privacy. In the case of discharges resulting from court-martial, the proceedings and record are public. Therefore, the approved sentence and subsequent clemency action are releasable.

Download the visual reference below as a guide.

FOIA vs Privacy Act Infographic
FOIA vs Privacy Act Infographic
Photo by: Andrea Batts-Latson
VIRIN: 200415-D-VE872-0003

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