Freedom of Information

An agency may deny your request on the basis that it is overly vague, broad, or burdensome. If you receive such a denial, you should make the arguments discussed in the following sections.

The most likely way to demonstrate that the mandatory withholding provisions of the Privacy Act do not apply to records requested under FOIA would be to argue that the records at issue are required to be released under FOIA. In such cases, the FOIA exception to the Privacy Act applies. To do so, you should essentially argue that FOIA Exemptions 6 and/or 7(C) do not apply to the records in the first instance and therefore the records must be released under FOIA.

When you receive a FOIA request response letter from an agency citing Exemption 6 or Exemption 7(C) personal privacy exemptions, an agency will frequently also cite the Privacy Act, stating that it further prevents release of the requested records.

The Privacy Act was passed in 1974 amid an increasing concern about individuals’ loss of control over personal information collected by the federal government in the computer age. It forbids federal executive branch agencies from disclosing personal information about individuals without their permission.¹ It also provides an avenue for people to obtain records related to themselves.

When an agency denies a federal FOIA request based on Exemption 6 or

Where an agency claims that the requested records are personal records of an agency employee, you should attempt to argue that they are agency records based on the way in which they were or are used. Where documents are created by an employee but located in the agency, “use of the document becomes more important in determining the status of the document under FOIA,” and you should argue that it was used by the agency, rather than for a personal purpose.³⁹

As the U.S.

In arguing that the record is an agency record, you must first explain how the material was either created or obtained by the agency. An agency “obtains” a record if it physically has possession of it.⁷

The FOIA’s mandatory disclosure requirements apply to “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.”¹

An agency’s duty to search may also require it to conduct specialized electronic searches where appropriate. For example, one court held that the Department of Justice was required to use the electronic legal database PACER, a widely used database that provides access to federal court records, to search for responsive records of files within its own possession.²⁴