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Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-440 January 2010 ADMINISTRATIVE & CIVIL LAW EDITION New Developments Articles Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information? Colonel (Ret.) Richard L. Huff & Lieutenant Colonel Craig E. Merutka The Limits of Fair Use in Military Scholarship: When, How, and From Whom to Request Permission to Use Copyrighted Works Captain Evan R. Seamone The Impact of the Americans with Disability Amendments Act of 2008 on the Rehabilitation Act and Management of Department of the Army Civilian Employees Major William E. Brown & Major Michele Parchman Setting Servicemembers Up for More Success: Building and Transferring Wealth in a Challenging Economic Environment—A Tax and Estate Planning Analysis Major Samuel W. Kan Playing Politics: A Review of Eligibility Rules and Campaign Restrictions for Servicemembers Who Are Nominees or Candidates for Civil Office Lieutenant Colonel Jeffrey Sexton OTJAG Practice Note Office of The Judge Advocate General Book Reviews CLE News Current Materials of Interest Editor, Captain Ronald T. P. Alcala Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected]. Articles should follow Virginia, for the official use of Army lawyers in the performance of their The Bluebook, A Uniform System of Citation (18th ed. 2005) and the legal responsibilities. Individual paid subscriptions to The Army Lawyer are Military Citation Guide (TJAGLCS, 14th ed. 2009). No compensation can available for $45.00 each ($63.00 foreign) per year, periodical postage paid at be paid for articles. Charlottesville, Virginia, and additional mailing offices (see subscription form on the inside back cover). POSTMASTER: Send any address changes to The The Army Lawyer articles are indexed in the Index to Legal Periodicals, Judge Advocate General’s Legal Center and School, 600 Massie Road, the Current Law Index, the Legal Resources Index, and the Index to U.S. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions Government Periodicals. The Army Lawyer is also available in the Judge expressed by the authors in the articles do not necessarily reflect the view of Advocate General’s Corps electronic reference library and can be accessed The Judge Advocate General or the Department of the Army. Masculine or on the World Wide Web by registered users at feminine pronouns appearing in this pamphlet refer to both genders unless the http://www.jagcnet.army.mil/ArmyLawyer. context indicates another use. Address changes for official channels distribution: Provide changes to The Editor and Assistant Editor thank the Adjunct Editors for their the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center invaluable assistance. The Board of Adjunct Editors consists of highly and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, qualified Reserve officers selected for their demonstrated academic Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension excellence and legal research and writing skills. Prospective candidates 3396) or electronic mail to [email protected]. may send Microsoft Word versions of their resumes, detailing relevant experience, to the Technical Editor at TJAGLCS-Tech- Articles may be cited as: ARMY LAW., [date], at [first page of article], [email protected]. [pincite]. The Editorial Board of The Army Lawyer includes the Chair, Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of ADMINISTRATIVE & CIVIL LAW EDITION New Developments Administrative & Civil Law ....................................................................................................................................................... 1 Articles Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information? Colonel (Ret.) Richard L. Huff & Lieutenant Colonel Craig E. Merutka ......................................................................................... 2 The Limits of Fair Use in Military Scholarship: When, How, and From Whom to Request Permission to Use Copyrighted Works Captain Evan R. Seamone ........................................................................................................................................................ 16 The Impact of the American with Disability Amendments Act of 2008 on the Rehabilitation Act and Management of Department of the Army Civilian Employees Major William E. Brown & Major Michele Parchman ................................................................................................................. 43 Setting Servicemembers Up for More Success: Building and Transferring Wealth in a Challenging Economic Environment—A Tax and Estate Planning Analysis Major Samuel W. Kan .............................................................................................................................................................. 52 Playing Politics: A Review of Eligibility Rules and Campaign Restrictions for Servicemembers Who Are Nominees or Candidates for Civil Office Lieutenant Colonel Jeffrey Sexton ............................................................................................................................................. 96 OTJAG Practice Note Office of The Judge Advocate General Legal Assistance Policy Division Note Military Spouses Residency Relief Act (MSRRA): Use Caution and Read Carefully Lieutenant Colonel Janet H. Fenton ......................................................................................................................................... 107 Book Reviews Lessons from the Silver Screen: Must-See Movies for Military Lawyers Reviewed by Major Ann B. Ching ....................................................................................................................................... 109 CLE News ............................................................................................................................................................... 117 Current Materials of Interest ............................................................................................................................ 127 Individual Paid Subscriptions to The Army Lawyer ................................................................ Inside Back Cover JANUARY 2010 • THE ARMY LAWYER • DA PAM 27-50-440 Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information? Colonel (R) Richard L. Huff* & Lieutenant Colonel Craig E Merutka** When a man assumes a public trust, he should consider himself as public property. — Thomas Jefferson When we assumed the Soldier, we did not lay aside the Citizen. — George Washington Introduction On a mid-winter afternoon, the Chief of Administrative Law hands you two recently received Freedom of Information Act1 (FOIA) requests from the local newspaper. The first requests the identities and punishments imposed on all servicemembers arrested on post for driving under the influence of alcohol on New Year’s Eve, and the second requests all records the command has concerning misconduct by First Lieutenant (1LT) Friendly. With regard to the first request, because the command did an excellent job emphasizing the dangers of drunk driving, only three servicemembers were snagged by the MP’s New Year’s Eve dragnet: Colonel (COL) Oops, the now-former Chief of Staff; Second Lieutenant (2LT) Special, the son of an assistant secretary of the Army; and Private First Class (PFC) Ordinary, a twenty-one–year-old infantryman. As a result of their transgressions, each man received a general officer memorandum of reprimand (GOMOR), and COL Oops was relieved from his position as Chief of Staff. With regard to the second request, the newspaper had recently run an exposé on military fraternization in which it asserted that fraternization between officers and junior enlisted personnel was rampant on post. Included was the allegation that 1LT Friendly had paid all expenses to fly himself and a female PFC in the command to Cancun for a romantic weekend together. As it turns out, the allegation is true, and in addition to a copy of the GOMOR 1LT Friendly received, the command also has an Army Regulation 15-6 investigation that documents the misconduct. These two FOIA requests highlight the conflict between the public’s right to government records and the privacy interests of Department of Defense (DoD) employees, whose personal information may be contained in those government records. This is a real conflict. While DoD employees do assume a public trust when they assume their duties, they certainly do not become “public property”; and while, as holders of such public trust, they are open to more inspection than those employed in the private sector, such inspection is not, and should not be, limitless. The rights that all individuals enjoy, including those involving privacy,
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