II. FOIA and the Privacy Act

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.

While the Privacy Act specifically mandates that certain records containing personal information cannot be disclosed to third parties, it also provides that it does not apply to records that are required to be released under the federal Freedom of Information Act.⁷ One court has described the interplay between the FOIA and the Privacy Act in the following way: “The net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.”⁸

Essentially, what the agency is saying is that it has determined that a FOIA privacy exemption can be validly applied to the information requested and therefore disclosure is not required under FOIA. Because the agency is not compelled under FOIA to release the record, the “required to be released under FOIA” exception to the Privacy Act is not triggered and the agency must withhold the record.

Hence, the Privacy Act would affirmatively forbid the agency from making the disclosure. This also has the effect of preventing any discretionary disclosures under FOIA when records covered by the Privacy Act are requested.⁹ Remember, the FOIA generally permits an agency to make a discretionary disclosure even if it can assert a legally valid claim that a record is covered by an exemption. Asserting an argument for a discretionary disclosure of a record rightfully covered by the Privacy Act will likely never be successful.