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Doe v. Chao , F. DOJ , F. The D. In Hollis , the D. Circuit had recognized in dictum that other courts had held that the release of previously published material did not constitute a disclosure, and perhaps had indicated a willingness to go that far. Hollis , F. However, the D. Nevertheless, the D. Furthermore, though, and consistent with the D. Reporters Comm. Finley v. NEA , F. See Oja v. Army Corp. However, the public filing of records with a court, during the course of litigation, does constitute a subsection b disclosure.

See Laningham v. Navy , No. Ohio Dec.


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Accordingly, any such public filing must be undertaken with written consent or in accordance with either the subsection b 3 routine use exception or the subsection b 11 court order exception, both discussed below. See generally Krohn v. Often during the course of litigation, an agency will be asked to produce Privacy Act-protected information pursuant to a discovery request by an opposing party.

An agency in receipt of such a request must object on the ground that the Privacy Act prohibits disclosure. See Golez v. Accordingly, the Privacy Act. United States , No. Although courts have unanimously held that the Privacy Act does not create a discovery privilege, see Laxalt v. McClatchy , F. Norton , F. May 13, ; Forrest v. United States , 84 F. Baldrige v. Shapiro , U. The most appropriate method of disclosure in this situation is pursuant to a subsection b 11 court order. See generally Doe v. DiGenova , F. Stephens , F. See Laxalt , F. Alford v.

Todco , No. CIVE, slip op. Seaboard Coast Line R. On the other hand, when an agency wishes to make an affirmative disclosure of information during litigation it may either rely on a routine use permitting such disclosure or seek a court order. Because the Privacy Act does not constitute a statutory privilege, agencies need not worry about breaching or waiving such a privilege when disclosing information pursuant to subsections b 3 or b Mangino v.

Thomson , No. See also Vaughan v. For further discussions of disclosures during litigation, see the discussions of subsections b 3 and b 11 , below. Weatherspoon v. Hill , No. Stokes v. SSA , F. Additionally, although it may seem self-evident, the fact pattern in one case caused a court to explicitly hold that an agency cannot be sued for disclosures that an individual makes himself. Abernethy v. See Taylor v. Orr , No. Milton v. VA , No. Pellerin v. Army Air Force Exchange Serv.

See also Perry v.


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  8. For other cases in which courts have approved disclosures made pursuant to consent, see Elnashar v. Rogers , No. DOT , No. Tarullo v. Contract Audit Agency , F. Yet, the Plaintiff supplied his SSN. As a result, he voluntarily disclosed his SSN. For cases in which courts have found consent clauses to be inadequate to authorize disclosure, see Schmidt v.

    Air Force , No. ATF , F. GSA , F. Taylor , No. In light of the D. Note that with the exception of disclosures under subsection b 2 see the discussion below , disclosures under the following exceptions are permissive, not mandatory. See Cong. Marshals Serv. Ashcroft , No. Sutera v. TSA , F. EPA , No. Intra-agency disclosures for improper purposes will not be condoned.

    Criminal record

    GSA , No. Napolitano , F.


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    DOD , F. Snow , F. Reno , No. Berry v. Henderson , No. Potter , F. Johnson , No. Reno , F. USPS , 79 F. Naval Investigative Serv. Harrington , F. Winston , F. IRS , No. Marsh , F. Alexander , F. Middendorf , F. Mabus , No. Raty , No. Utah Aug. State , F. SBA , No. Principi , F. McCready v. Nicholson , F. Herman , F. Hanna v. Chao , No. Tenet , F. May 12, ; Porter v. CV, slip op.

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    Harry v. USPS , 60 F. Frank , No. Reilly , F. Reilly , No. Energy , No. Cacho v. DOD , 92 M. See Mount v. TH C, slip op. Gill v. Another court, however, has held to the contrary on facts nearly identical to those in Hulett. Taylor v. The point of this exception is that the Privacy Act never prohibits a disclosure that the Freedom of Information Act actually requires.

    See News-Press v. DHS , F. Customs Serv. See also Sikes v. DOJ, F. This would be a required subsection b 2 disclosure. FLRA , U. FLRA , F. HHS , No. July 8, ; Kassel v. HEW , F. Newspapers, Inc. In DOJ v. In light of Reporters Comm. Commerce , F. Veneman , F. BIA , No.

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    Idaho Mar. X, No. As a result of Reporters Comm. Treasury , F. The Court of Appeals for the District of Columbia Circuit significantly limited the utility of subsection b 2 in Bartel v. In Bartel , the D. Circuit held that subsection b 2 cannot be invoked unless an agency actually has a FOIA request in hand. In one case prior to Bartel , it similarly had been held that subsection b 2 was not available as a defense for the disclosure of information in the absence of a FOIA request. Zeller v. Other courts have not taken the approach articulated by the D. Circuit in Bartel. See Cochran v.

    However, because the D. V, No. OMB Guidelines, 52 Fed. In Tripp v. In Chang v. Id ; see also Russo , F. At least one pre- Bartel case also appears to support this idea. Owens v. But see Zeller v. The routine use exception, because of its potential breadth, is one of the most controversial provisions in the Act. The trend in recent cases is toward a narrower construction of the exception. The White House directed the Office of Management and Budget to issue additional guidance regarding the routine use exception in an executive memorandum on privacy sent to the heads of executive departments and agencies in XIX, No.

    DOD , No. Shayesteh v. Covert v. EDCV , slip op. Stafford v. See also Minshew v. Donley , F. Thompson v. Indeed, it is possible for a routine use to be deemed facially invalid if it fails to satisfy subsection e 4 D — i. Krohn v. Naval Air Station, Pensacola, Fla. Supply Ctr. In other words, a particular disclosure is unauthorized if it does not fall within the clear terms of the routine use. Walters , F. DHS , No. Ohio Feb. FAA , No. Bechhoefer v. DEA , U. CS, slip op. See Makowski v.

    United States , 27 F. Stafford , F. But see NLRB v. Truesdale , F. Quinn v. Whatever the merit of the decisions of prior courts that have held. Pontecorvo v. These kinds of routine uses have been criticized on the ground that they circumvent the more restrictive requirements of subsection b 7. Yet, they have never been successfully challenged on that basis. Indeed, courts have routinely upheld disclosures made pursuant to such routine uses. Pavlock , F. Grimes , No. In Covert v. Covert , F. Prior to Covert , no other court had ever so held.

    See the additional discussion under subsection e 3 , below. In Doe v. In light of Doe v. Stephens , the decision in Fields v. Leuver , No. SA, slip op. In Krohn v. See Jackson v. Britt , F. USPS , 60 F. Frank , No. Reilly , F. Reilly , No. Energy , No. Cacho v. DOD , 92 M. See Mount v. TH C, slip op. Gill v. Another court, however, has held to the contrary on facts nearly identical to those in Hulett. Taylor v.

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    The point of this exception is that the Privacy Act never prohibits a disclosure that the Freedom of Information Act actually requires. See News-Press v. DHS , F. Customs Serv. See also Sikes v. DOJ, F. This would be a required subsection b 2 disclosure. FLRA , U. FLRA , F. HHS , No. July 8, ; Kassel v. HEW , F. Newspapers, Inc.

    In DOJ v. In light of Reporters Comm. Commerce , F. Veneman , F.

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    BIA , No. Idaho Mar. X, No. As a result of Reporters Comm. Treasury , F. The Court of Appeals for the District of Columbia Circuit significantly limited the utility of subsection b 2 in Bartel v. In Bartel , the D. Circuit held that subsection b 2 cannot be invoked unless an agency actually has a FOIA request in hand. In one case prior to Bartel , it similarly had been held that subsection b 2 was not available as a defense for the disclosure of information in the absence of a FOIA request. Zeller v. Other courts have not taken the approach articulated by the D.

    Circuit in Bartel. See Cochran v. However, because the D. V, No. OMB Guidelines, 52 Fed. In Tripp v. In Chang v. Id ; see also Russo , F. At least one pre- Bartel case also appears to support this idea. Owens v. But see Zeller v. The routine use exception, because of its potential breadth, is one of the most controversial provisions in the Act. The trend in recent cases is toward a narrower construction of the exception. The White House directed the Office of Management and Budget to issue additional guidance regarding the routine use exception in an executive memorandum on privacy sent to the heads of executive departments and agencies in XIX, No.

    DOD , No. Shayesteh v. Covert v. EDCV , slip op. Stafford v. See also Minshew v. Donley , F. Thompson v. Indeed, it is possible for a routine use to be deemed facially invalid if it fails to satisfy subsection e 4 D — i. Krohn v. Naval Air Station, Pensacola, Fla. Supply Ctr. In other words, a particular disclosure is unauthorized if it does not fall within the clear terms of the routine use. Walters , F. DHS , No. Ohio Feb. FAA , No. Bechhoefer v. DEA , U. CS, slip op. See Makowski v. United States , 27 F. Stafford , F. But see NLRB v. Truesdale , F. Quinn v. Whatever the merit of the decisions of prior courts that have held.

    Pontecorvo v. These kinds of routine uses have been criticized on the ground that they circumvent the more restrictive requirements of subsection b 7. Yet, they have never been successfully challenged on that basis. Indeed, courts have routinely upheld disclosures made pursuant to such routine uses. Pavlock , F. Grimes , No. In Covert v. Covert , F. Prior to Covert , no other court had ever so held.

    See the additional discussion under subsection e 3 , below. In Doe v. In light of Doe v. Stephens , the decision in Fields v. Leuver , No. SA, slip op. In Krohn v. See Jackson v. Britt , F. Numerous types of information sharing between agencies and with organizations or individuals have been upheld as valid routine uses. IRS , B. Iowa ; Mount v. Judicial Conference of the United States , F.

    Miller , F. Collins , F. Mueller , No. Rice , No. OPM , F. Labor , F. June 12, ; Contursi v. May 12, ; Magee v. Runyon , 60 F. Smith , No. CR, slip op. July 25, discussing disclosure of rap sheet to local police department ; Ely v. Sussman v. Four courts have required an agency to invoke its routine use to permit disclosure to unions of names of employees on the theory that refusal to so disclose was an unfair labor practice under the National Labor Relations Act.

    See NLRB v. NLRB v. Apart from the FOIA see subsection b 2 and the Debt Collection Act see subsection b 12 , the Privacy Act makes no provision for any nonconsensual disclosures that are provided for by other statutes. Zahedi v. Note that the request must be submitted in writing and generally must be from the head of the agency or instrumentality. See Doe v. Naval Air Station , F. Supervisor of DEA , F. Lora v. INS , No. For cases discussing this provision, see Schwarz v. May 10, ; and DePlanche v. This construction, while certainly sensible as a policy matter, appears to conflict somewhat with the actual wording of subsection b 8.

    This exception does not authorize the disclosure of a Privacy Act-protected record to an individual Member of Congress acting on his or her own behalf or on behalf of a constituent. June 3, ; cf. Chang v. This exception — like the subsection b 3 routine use exception — has generated a great deal of uncertainty. Revland, No. England , F. June 27, ; Martin v. United States , 1 Cl. June 23, See e. Burge , No. Koch Foods of Miss. Lahood, No. C, U. May 29, Sheetz v. Marti , No. Contracting, Inc. SSA , No. Ricoma v. Standard Fire Ins. Astrue , No. Prior to Doe v.

    DiGenova , a split of authority existed on this point. Compare Bruce v. Atlanta Gas Light Co. United States Lines , No. Moore v. Note that an agency cannot avoid the result in Doe v. DiGenova by relying on a routine use that seeks to authorize disclosure pursuant to a subpoena.

    Unlike similar provisions in other federal confidentiality statutes, see , e. However, several courts have addressed the issue with varying degrees of clarity. See Laxalt v. May 13, citing Laxalt in determining relevance of personnel files ; Bosaw v. NTEU , F. Rather, the D. Vanderbilt Co. July 8, ; SEC v. Gowrish , No. May 12, ; Stiward v. May 12, ; Lynn v. Radford , No. Cornejo , No. May 6, ; Forrest v. Sullivan , F. Engels , F. Shad , F. Regan , No. United States , 68 F. Courts have also assessed whether orders should be granted by balancing the potential harm to the affected party from disclosure without restrictions and the need of the requesting party for the particular information.

    See Perry v. Battelle Energy Alliance , No. Idaho Oct. Housing Act] outweighs any privacy interests, especially in light of the Protective Order and other steps, such as redaction, that can be taken to reduce privacy concerns. Benavides , F. Modern Select Ins. Sutherland , No. Meyer , No.

    Becker , No. Hounshel v. Idaho Sept. FDK Am. Donley , No. Kovzan , No. Winter , F. Chromatex, Inc. Hawk , No. Gonzales , No. May 28, ordering defendant to provide United States Marshals Service with addresses of individually named defendants for service of process on behalf of inmate and ordering that addresses be safeguarded by Marshals Service ; Hernandez , No. Shinseki , No. Hull , Misc. Watt , No. Bolger , No.

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    Grzegorek , F. Brown v. Narvais , No. McCausland , No. Jacobs v. Schiffer , F. In some instances, it even may be appropriate for a court to entirely deny discovery. June 30, ; Oslund v. Padberg v. McGrath-McKenchnie , No. Dillon , F.