III. Overcoming the Privacy Act

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. See the sections on Exemption 6 and 7(C) in this guide for additional information on how to appeal denials based on these exemptions. They set forth what arguments can be made under such circumstances.

Additionally, you can also overcome Privacy Act disclosure barriers by obtaining the written consent of the subject of the requested records. While often not a realistic possibility if you are investigating particular individuals or seeking records detailing information related to numerous people, it still remains an option that in limited circumstances may prove viable. Agencies usually have specific instructions about what needs to be contained in a Privacy Act waiver statement and may require use of a particular form. Always check with the particular agency or component office as to what exactly is required from the subject of the records in order to submit a valid waiver.      

Finally, if you can demonstrate that the individual is deceased, this may increase your chances of obtaining the record. As the Department of Justice’s Privacy Act guidance explains, “[d]eceased individuals do not have any Privacy Act rights, nor do executors or next-of-kin.”10

10 Dep’t of Justice Office of Privacy and Civil Liberties, Overview of the Privacy Act of 1974, 2010 Edition – Definitions.