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Government Information Practices DEPARTMENT OF THE ARMY THE JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILLE, VIRGINIA 22903-1781 PREFACE This compilation of cases and materials is designed to provide students with primary source material concerning government information practices. The right of the American public to be informed about the operation of its government has been established. Through the Freedom of Information Act, Congress has sought to ensure that this right is preserved. Of equal importance to American citizens is their right of privacy. Only in recent years has it become evident that this right is subject to infringement by the record-keeping practices of government. The Privacy Act of l974 is the first comprehensive legislative scheme designed to assure individuals that their privacy will not be improperly eroded by such practices. The first part of this casebook is devoted to a study of public access to agency records under the Freedom of Information Act and the need to protect legitimate commercial and governmental interests. The second part of the book focuses on the individual's right of privacy as affected by the federal government's collection, use, and dissemination of information. It includes material related to the key provisions of the Privacy Act and the "privacy exemption" of the Freedom of Information Act. This casebook does not purport to promulgate Department of the Army policy or to be in any sense directory. The organization and development of legal materials are the work product of the members of The Judge Advocate General's School faculty and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. The words "he," "him," and "his" when used in this publication represent both the masculine and feminine gender unless otherwise specifically stated. i Except as otherwise noted, the contents of this publication are not copyrighted and may be freely reprinted. The citation is as follows: The Judge Advocate General's School, U.S. Army, JA 235, Government Information Practices-- Casebook [page number] (March 2000). Copyrighted material may not be reproduced further without the prior permission of the author(s) or compliance with 17 U.S.C. § 107. Plagiarism is the presentation of distinctive words or ideas of another as one's own without crediting the source. Plagiarism may be avoided by citing the source from which the material was taken. This applies to the publication and other material prepared by instructors at The Judge Advocate General's School, U.S. Army. GOVERNMENT INFORMATION PRACTICES (JA 235) TABLE OF CONTENTS Page PART A. THE PUBLIC'S RIGHT TO KNOW CHAPTER 1. THE CONCEPT OF OPEN GOVERNMENT 1.1 Introduction...............................................................................................1-1 1.2 Publication of Information in the Federal Register........................................1-3 1.3 The Indexing and Public Inspection and Copying Requirement.....................1-6 1.4 The Release Upon Request Requirements.................................................1-13 CHAPTER 2. EXEMPTIONS PERMITTING WITHHOLDING 2.1 Exemption 1: Classified Documents ...........................................................2-1 2.2 Exemption 2: Internal Personnel Rules and Practices ..................................2-7 2.3 Exemption 3: Statutory Restrictions on Disclosure....................................2-15 2.4 Exemption 4: Trade Secrets and Financial Information..............................2-16 2.5 Exemption 5: Internal Agency Communications ........................................2-36 2.6 Exemption 6: Personnel, Medical & Similar Files......................................2-68 2.7 Exemption 7: Records Compiled for Law Enforcement Use .....................2-68 2.8 Exclusions................................................................................................2-85 PART B: THE INDIVIDUAL'S RIGHT OF PRIVACY CHAPTER 3. INFORMATION GATHERING AND INFORMATION SYSTEMS 3.1 Historical Background of the Privacy Act....................................................3-1 3.2 Record and System of Records..................................................................3-5 3.3 Access, Amendment, and Judicial Review...................................................3-9 3.4 Collection and Maintenance of Information...............................................3-17 iii CHAPTER 4. .........................GOVERNMENT DISCLOSURE OF PERSONAL INFORMATION 4.1 General Rule ..............................................................................................4-1 4.2 Disclosure Within the Agency.....................................................................4-1 4.3 Information Required to be Disclosed by the Freedom of Information Act..........................................................................................4-3 4.4 Disclosure for a "Routine Use"..................................................................4-21 4.5 Miscellaneous Authorized Disclosures.......................................................4-23 4.6 Accounting for Disclosures.......................................................................4-26 APPENDIX A: Defense Privacy Board Advisory Opinions .......................................... A-1 APPENDIX B: Selected Internet Websites for Government Information Lawyers..........B-1 iv PART A: THE PUBLIC'S RIGHT TO KNOW CHAPTER 1 THE CONCEPT OF OPEN GOVERNMENT 1.1 Introduction. The public information section of the Administrative Procedure Act was somewhat vague and contained language that resulted in the withholding, rather than disclosure, of many documents. It was amended in l966 by what is now known as the Freedom of Information Act (codified at 5 U.S.C. § 552). A foreword to the Attorney General's memorandum concerning the Act explains its purpose. Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (June l967) [hereinafter cited as Attorney General's l967 Memorandum] FOREWORD If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy. Self-government, the maximum participation of the citizenry in affairs of state, is meaningful only with an informed public. How can we govern ourselves if we know not how we govern? Never was it more important than in our times of mass society, when government affects each individual in so many ways, that the right of the people to know the actions of their government be secure. Beginning July 4, a most appropriate day, every executive agency, by direction of the Congress, shall meet in spirit as well as practice the obligations of the Public Information Act of l966. President Johnson has instructed every official of the executive branch to cooperate fully in achieving the public's right to know. Public Law 89-487 is the product of prolonged deliberation. It reflects the balancing of competing principles within our democratic order. It is not a mere recodification of existing practices in records management and in providing individual access to Government documents. Nor is it a mere statement of objectives or an expression of intent. Rather this statute imposes on the executive branch an affirmative obligation to adopt new standards and practices for publication and availability of information. It leaves no doubt that 1-1 disclosure is a transcendent goal, yielding only to such compelling considerations as those provided for in the exemptions of the act. This memorandum is intended to assist every agency to fulfill this obligation, and to develop common and constructive methods of implementation. No review of an area as diverse and intricate as this one can anticipate all possible points of strain or difficulty. This is particularly true when vital and deeply held commitments in our democratic system, such as privacy and the right to know, inevitably impinge one against another. Law is not wholly self-explanatory or self-executing. Its efficacy is heavily dependent on the sound judgment and faithful execution of those who direct and administer our agencies of Government. It is the President's conviction, shared by those who participated in its formulation and passage, that this act is not an unreasonable encumbrance. If intelligent and purposeful action is taken, it can serve the highest ideals of a free society as well as the goals of a well-administered government. This law was initiated by Congress and signed by the President with several key concerns: --that disclosure be the general rule, not the exception; --that all individuals have equal rights of access; --that the burden be on the Government to justify the withholding of a document, not on the person who requests it; --that individuals improperly denied access to documents have a right to seek injunctive relief in the courts; --that there be a change in Government policy and attitude. It is important therefore that each agency of Government use this opportunity for critical self-analysis and close review. Indeed this law can have positive and beneficial influence on administration itself--- in better records management; in seeking the adoption of better methods of search, retrieval, and copying; and in making sure that documentary classification is not stretched beyond the limits of demonstrable need. At the same time, this law gives assurance to the individual citizen that his private rights will not be violated. The individual deals with the Government in a number of protected relationships which could
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