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LESSON 3
RECORDING AND DISCLOSING INFORMATION
| CRITICAL TASKS: | NONE |
OVERVIEW
LESSON DESCRIPTION
In this lesson, you will learn the legal restrictions on recording and disclosing information collected during a CI investigation.
TERMINAL LEARNING OBJECTIVE:
| TASKS: You will be able to recognize valid requests for information under the Freedom of Information Act and the Privacy Act, distinguish between releasable and nonreleasable information under the provisions of those acts, and describe procedures for the collection, storage, and disclosure of personal information under the Privacy Act. |
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CONDITIONS: You will be given narrative information and extracts from AR 25-55 and AR 340-21. |
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STANDARDS: You will decide to release or retain information in accordance with the requirements of the Freedom of Information Act and the Privacy Act of 1974. |
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REFERENCES: The material contained in this lesson was derived from the following publications: AR 25-55.AR 340-21. |
INTRODUCTION
The Freedom of Information Act and the Privacy Act of 1974 are related acts with a significant impact on the collection, storage, and disclosure of information. To be sure the record system under your supervision is being properly controlled, you will need to understand the provisions of these acts.
The lesson has two parts:
At the end of the lesson, there is a practice exercise. Answer all the questions on the practice exercise and check your answers. Do NOT go on until you answer all questions correctly.
PART A: FREEDOM OF INFORMATION ACT
In this part of Lesson 3, you will learn the following:
* The purpose of the Freedom of Information Act.
* The guidelines for release of information or denial of requests.
* The release and processing procedures for requests.
* The provisions of the act governing fee assessment and collection.
The US Army Regulation that implements the Freedom of Information Act (FOIA) is AR 25-55. Part 1 of Lesson 3 is derived primarily from this AR. If you are required to deal with requests for information under the Freedom of Information Act, consult AR 25-55 directly.
PURPOSE AND POLICY.
The public has a right to information concerning the activities of its government. It is Department of Defense (DOD) policy to conduct its activities openly and provide the public with a maximum amount of accurate and timely information about its activities.
AR 25-55 provides a formal control system designed to ensure compliance with FOIA. DOD personnel are expected to comply with the provisions of the FOIA in both letter and spirit. This strict adherence is necessary to provide uniform implement of the DOD FOIA program and uniformly and consistently to create conditions that will promote public trust.
A DOD record requested by a member of the public who follows rules established by proper authority in the DOD should be released. It may be withheld only when it is exempt from mandatory public disclosure under the FOIA. If a requested record is exempt under the FOIA, it may be released when it is determined no governmental interest will be jeopardized.
DEFINITIONS.
FOIA Discretionary Authority.
An exempted record must be made available upon the request of any individual when, in the judgment of the releasing DOD component or higher authority, its release would not jeopardize any government interest. DOD components should use their discretionary authority on a case-by-case basis in deciding whether to release given records.
This does not apply to exemptions 1, 3, or 6 listed below. It normally will not be exercised to release documents under exemption 4 unless that release will serve a compelling public interest.
Definition of Agency Record.
An agency record is any product of data compilation, regardless of physical form or characteristics, made or received by a DOD component in connection with the transaction of public business and preserved by a DOD component primarily as evidence of the organization, policies, functions, decisions, or procedures of the DOD component.
The following are not included within the definition of the word "record":
* Library and museum material made, acquired, and preserved solely for reference or exhibition.
* Objects or articles, such as structures, furniture, paintings, sculpture, three-dimensional models, vehicles, and equipment, whatever their historical value, or value as evidence.
* Commercially exploitable resources, including, but not limited to, formulae, designs; drawings; maps and charts, map compilation manuscripts and map research materials, research data, computer programs, and technical data packages that were not created, and are not used, as primary sources of information about organizations, policies, functions, decisions, or procedures of a DOD component.
* Unaltered publications and processed documents, such as regulations, manuals, maps, charts, and related geophysical materials available to the public through an established distribution system, with or without charges.
* Anything not a tangible or documentary record, such as an individual's memory or oral communication.
* Personal notes of an individual if not made available to other persons in an agency and not filed with agency records.
* Information stored within a computer for which there is no existing computer program or printout.
A record must exist at the time of the request to be subject to FOIA and AR 25-55. It must also be in DOD possession and control. A DOD component has no obligation to create, compile, or obtain a record to satisfy an FOIA request.
RELEASE OF INFORMATION AND DENIAL OF REQUESTS.
The FOIA gives seven reasons for not complying with a request for a record:
* The request is transferred to another DOD component, or federal agency.
* The requestor withdraws the request.
* The information requested is not a record within the meaning of the FOIA and AR 25-55.
* A record has not been described with sufficient detail to enable the DOD component to locate it by conducting a reasonable search.
* The requestor has failed to comply with procedural requirements, including payment of fees, imposed by AR 25-55 or DOD components supplementing regulations.
* The DOD component determines, through knowledge of its files and reasonable search efforts, that it neither controls nor otherwise possesses the requested record. (A "no record" determination is a denial; and may be appealed.)
* The record is denied in accordance with procedures set forth in the FOIA and AR 25-55.
Denial Tests.
To deny the release of a requested record in the possession and control of a DOD component, the component determine that the denial meets both of the following tests:
* The record is included in one or more of the nine categories of records exempt from mandatory disclosures.
* The use of the components discretionary authority to release the record is unwarranted.
Use of Exemptions.
Records that may be exempt shall be made available to the public when it is determined no government interest will be jeopardized by their release. Determination of jeopardy to governmental interest is within the sole discretion of the component, consistent with statutory requirements or other requirements of law.
Parts of the requested record may be exempt from disclosure under the FOIA. The proper DA official may delete exempt information and release the rest of the record to the person requesting it. If the nonexempt part of the record is unusable or does not contain a reasonable amount of information responding to the request, the DA official need not release it. Under FOIA, the proper official also has the discretion to release exempt information; but must exercise this discretion in a reasonable manner, within regulations.
FOIA Exemptions.
The following types of records may be withheld, in whole or in part, from public disclosure unless their release is otherwise prescribed by law.
Number 1. Records that were properly classified in the interest of national defense or foreign policy.
Number 2. Records containing or constituting rules, regulations, orders, manuals, directives, and instructions relating to the internal personnel rules or practices of a DOD component. These records may be withheld if their release to the public would substantially hinder the effective performance of a significant DOD function and they do not impose requirements directly on the general public.
Number 3. Records concerning matters that a statute specifically exempts from disclosure in terms that allow the command no discretion on the issue.
Number 4. Records containing trade secrets or commercial or financial information that a DOD component receives from a person or organization outside the government with the understanding that the component will retain the information on a confidential basis. Records within the exemption must contain trade secrets or commercial or financial records, the disclosure of which is likely to cause substantial harm to the competitive position of the source providing the information, impair the government's ability to obtain necessary information in the future, or impair some other legitimate government interest.
Number 5. Internal advice, recommendations, and subjective evaluations (as opposed to facts) pertaining to the decision-making process of an agency.
Number 6. Information in personnel and medical files, as well as similar personal information in other files, that, if disclosed to the requester, would result in a clearly unwarranted invasion of personal privacy.
This exemption shall not be exercised in an attempt to protect the privacy of a deceased person, but it may be used to protect the privacy of the deceased person's family.
If a requestor's interest can be adequately served by release of information not linked to a specific person, an Initial Denial Authority (IDA) may provide such information after deleting the names, personal identities, and other identifying information of persons other than the requestor.
As Individual's personnel, medical, or similar file may be withheld from him or his designated legal representative only to the extent consistent with the Privacy Act of 1974.
Number 7. Investigative records compiled to assist enforcement of civil, criminal, or military law, including the implementation of executive orders or regulations issued pursuant to law. IG investigative reports fall within this exemption.
This exemption however, applies only to the extent that release of a record or portion of a record would--
* Interfere with law enforcement proceedings.
* Deprive a person of the right to a fair trial or to an impartial adjudication.
* Constitute an unwarranted invasion of personal privacy of a living person, including surviving members of a deceased individual identified in such a record.
* Disclose the identity of a confidential source.
* Disclose confidential information furnished by a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation.
* Disclose investigative techniques and procedures not already in the public domain and requiring protection against public disclosure to ensure their continued effectiveness.
* Endanger the life, or physical safety, of any individual.
This exemption does not diminish the right of individual litigants to investigative records currently available by law.
When the subject of an investigative record is the requestor of the record, it may be withheld only as authorized by the Privacy Act.
Number 8. Records contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.
Number 9. Records containing geological and geophysical information and data (including maps) concerning wells.
OPERATIONS SECURITY CONSIDERATIONS.
Release of information under the FOIA can have an adverse impact on operations security (OPSEC). The Army implementing directive for OPSEC is AR 530-1. That AR requires OPSEC points of contact be named for all Headquarters, Department of the Army (HQDA) staff agencies and all commands down to battalion level. Persons named OPSEC points of contact will be OPSEC/FOIA advisors.
DA Form 4948-R, Freedom of Information Act (FOIA)/OPSEC Desk Top Guide, (see Appendix E), lists references and information frequently used for FOIA requests related to OPSEC. The name and telephone number of the command OPSEC/FOIA advisor will be entered on the form. Persons who routinely deal with the public by telephone or letter on such requests should keep the form on their desks as a guide.
The command OPSEC/FOIA advisor should implement the policies and procedures describes in AR 530-1, consistent with AR 25-55. The remainder of this lesson will address proper procedures for handling all components of the FOIA.
TREATMENT OF CLASSIFIED DOCUMENTS.
Documents, or parts of documents that have been properly classified in the interest of national security must be protected. Classified documents may be released in response to an FOIA request only under Chapter 3 of AR 380-5. If an entire document cannot be declassified, the parts that require continued protection must be clearly identified. Any remaining parts that can reasonably be segregated may be released under AR 380-5.
The release of unclassified documents could violate national security. If this appears to be the case, FOIA personnel should request a classification evaluation under paragraphs 2-204, 2-600, 2-800, and 2-801 of AR 380-5. In such cases, other FOIA exemptions may also apply.
A combination of unclassified documents, or parts of them, could combine information that together might violate national security if released. If this appears to be the case, consider classifying the combined information per paragraph 2-11 of AR 380-5.
If a document or information is not properly or currently classified when an FOIA request for it is received, the request may not be denied on the grounds that the document or information is classified, except with the approval of the Army General Counsel.
OPSEC/FOIA advisors will:
* Advise persons processing FOIA requests on OPSEC requirements related to requests for documents.
* Help FOIA personnel prepare requests for classification evaluation.
* Help FOIA personnel identify the parts of documents that must remain classified under AR 25-55 and AR 380-5.
* Prepare a narrative description of those FOIA requests received during the reporting period that have OPSEC implications.
FOIA personnel and proponents processing FOIA requests must protect classified or exempted information; OPSEC/FOIA advisors do not relieve them of that responsibility.
RELEASE AND PROCESSING PROCEDURES.
Requests from Private Citizens.
The provisions of the FOIA are reserved for persons with private interests as opposed to governments seeking information. Foreign governments seeking information from DOD components should use established official channels to obtain information. Release of records to individuals under the FOIA is considered a public release of information.
Description of Requested Record.
Identification of the record desired is the responsibility of the member of the public who requests the record. The requester must provide a description of the desired record that will enable the government to locate the record with a reasonable amount of effort. The act does not authorize "fishing expeditions."
When a DOD component receives a request that does not "reasonably describe" the requested record, it will notify the requester of the defect. When practical, components will offer assistance to the requestor in identifying the records sought and reformulating the request to reduce the burden on the agency in complying with the Act. DA FOIA officials will reply to unclear requests by letter. The letter will address the following:
* Describe the defects in the request.
* Identify the additional types of information needed and ask the requester for such information.
* Tell the requestor no action will be taken on the request until the requestor responds to the letter.
* FOIA personnel may use the following guidelines, based on the principle of reasonable efforts, to deal with "fishing expedition" requests. Descriptive information about a record may be divided into two broad categories:
* Category I information is file-related. It includes information such as type of record (for example, memorandum), title, index citation, subject area, date the record was created, and originator.
* Category II information is event-related. It includes the circumstances that resulted in the record being created or the date and circumstances surrounding the event the record covers.
Generally, a record is not reasonably described if the description does not contain sufficient Category I information to permit FOIA personnel to conduct an organized, non-random search based on the component's filing arrangements and existing retrieval systems. This will be the case unless the request contains sufficient Category II information to permit implied Category I elements needed to conduct a search.
Ordinarily, when personal identifiers only are provided in connection with a request for records concerning the requestor, only records retrievable by personal identifiers will be searched. Such record searches may be conducted under Privacy Act procedures, but no record may be denied that is releasable under the FOIA.
The above guidelines notwithstanding, the decision of the DOD component concerning reasonableness of description must be based on knowledge of its files. If the description enables the DOD component personnel to locate the record with reasonable effort, the description is accurate.
Request Referrals.
Requests for records on loan to the DOD, which are restricted from further release and so marked, shall be referred to the agency that provided the record.
Public Domain.
Nonexempt records released under the authority of AR 25-55 are considered to be in the public domain. Exempt records released pursuant to AR 25-55 or other statutory or regulatory authority, however, may be considered to be in the public domain only when their release constitutes a waiver of the FOIA exemption. When the release does not constitute a waiver, such as when disclosure is made to a properly constituted advisory committee or to a congressional committee, the released records do not lose their exempt status. Also, while authority may exist to disclose records to individuals in their official capacities, the provisions of AR 25-55 apply if the same individuals seek the records in their private or personal capacities.
Authentication.
Records will be authenticated with an appropriate seal whenever necessary to fulfill an official government or other legal function. This service, however, is performed in addition to that required under FOIA and is not included in the FOIA fee schedule. DOD components may charge for the service at a rate of $3.00 per authentication.
FEES.
Fee Assessment.
Because agencies may not use fees to discourage FOIA requests, FOIA fees are limited to standard charges for direct document search and duplication. Documents may be furnished without charge or at a reduced charge when the agency determines that waiving or reducing the fees is in the public interest. Furnishing the information can be considered as primarily benefiting the general public. Based on this guidance, DOD has established a liberal fee schedule.
To be as responsible as possible to FOIA requests, while minimizing unwarranted costs to the taxpayers, DOD components must adhere to the procedures described in AR 25-55.
Fees Collection.
An agency or component need not collect charges and fees before rendering the service unless it expects the costs to exceed the fee waiver and the requestor has not indicated a willingness in writing to pay. It frequently will be more practical for an agency to collect charges and fees when it provides the service or property to the recipient if the requestor stated that the cost involved shall be acceptable or unacceptable up to a specified limit that covers anticipated costs. Advance collection of fees appropriate only when the requestor has not agreed in writing to pay the anticipated fee or has not honored previous commitments of paying fees owed an agency or component.
Duplication Fees
Type |
Cost per Page |
| Printed Material | $ .01 |
| Office Copy | $ .10 |
| Microfilm | $ .25 |
Figure 3. FOIA Fee Schedule
PART B: PRIVACY ACT OF 1974
In this part of Lesson 3, you will learn:
* The purpose of the Privacy Act of 1974.
* The rights of individuals under the Act.
* The disclosure responsibilities of records custodians under the Act.
* The provisions of the Act or the collection and storage of information.
* The relationship of the Act to the FOIA and how that information is handled.
The Army Privacy Program, which implements the Privacy Act of 1974, is described in AR 340-21. Part 2 of Lesson 3 is derived primarily from this AR.
PURPOSE.
The Privacy Act of 1974 provides procedures whereby an individual may--
* Determine whether records pertaining to the individual exist within a specific system of records.
* Request access to such records.
* Request that record pertaining to the individual be amended because it is not accurate, relevant, timely, or complete.
It also protects individual privacy by limiting what, and under what conditions, the government agencies may lawfully collect and store personal information, and by limiting to whom personal records may be disclosed.
REQUEST PROCEDURES.
Requests to Determine the Existence of Records.
Upon providing written or oral request, an individual-or his or her authorized representative-will be informed whether a particular system of records contains any record pertaining to the individual. The requesting individual need only reasonably identify the system to be searched and provide any identifying information necessary to effect a proper search. Requests will be submitted to the official identified through the system notice. This official will answer requests within 10 working days of receipt and inform the individual how to request access to any record located. No fees will be charged for this search.
To assist the individual in determining if applicable records exist, Congress has required their publication in the Federal Register of Notices. This notice describes the various systems of records maintained by the Army.
It is imperative an individual seeking to exercise this right first consult these notices, discern those which may apply, and then reasonably identify the systems in any correspondence with the Army. This will ensure a prompt and accurate response from the Army. Individuals desiring assistance in identifying the system that may have records pertaining to them should contact Headquarters, Department of the Army (HQDA) (DAAG-AMR) Washington, DC 20314.
Requests for Access and the Freedom of Information Act.
When an individual or authorized representative requests disclosure of records, the Privacy Act applies only if those records--
* Pertain to the individual.
* Are contained in a system of records.
* Are retrieved through use of the individual's name and not some third party's identity.
Procedure for Requesting Access. An individual who desires access to any records within a system of records will take the following steps:
* Determine the existence of such records.
* If records are determined to exist, submit a written request as indicated in the applicable system notice. Such a request will reasonably identify the record within the system of records sought.
* If access is granted, pay any fee charged and provide any information or documentation requested.
* If access is denied, in whole or in part, the individual may appeal, if he so desires, to the Secretary of the Army, ATTN: Office of the General Counsel. Such an appeal will be addressed to the Access and Amendment Refusal Authority (AARA) for forwarding to the General Counsel.
* If the appeal is denied in whole or in part, the individual may seek judicial review of the denial.
Requests for Accounts of Certain Disclosures. Any individual or authorized representative may request information pertaining to disclosure of that individuals record(s) to others. Such requests shall be addressed to the records custodian.
Request for Amendment of Records.
Upon request, an individual or authorized representative may have a record pertaining to the individual amended by correction, addition, or deletion, if such record is not accurate, relevant, timely, or complete. The individual may do this is part of a system of records. Such requests will be processed in accordance with AR 340-21, of whether the Privacy Act is cited or not.
Procedures for Requesting Amendment of Records. An individual desiring amendment will--
* Submit a request to the records custodian, either orally or in writing. Request must contain sufficient information to permit the agency to identify and locate the records, a description of the item or portion for which amendment is requested, the reason(s) amendment the individual is requesting and if appropriate the documentary evidence supporting the requested amendment. The individual bears the burden of providing that the requested amendment's proper. The individual will also verification his/her identity, to ensure the individual is seeking amendment of only the individual's own records.
* Provide any additional information which may be required.
* If amendment is refused, in whole or in part, the individual may appeal if he or she so desires to the DA Privacy Review Board. The appeal will be addressed to the AARA who refused the amendment, for forwarding to the board.
If the appeal is denied, in whole or in part, the individual may--
* Submit, to the custodian of the record a concise statement setting forth the reasons for disagreement with the refusal of the board to amend.
* Seek, judicial review of the denial in accordance with Section 3(g) of the Privacy Act.
Reasons for Amendment. Requests for amendment in accordance with this regulation may be sought only when the record is alleged to be inaccurate as a determination of fact (rather than judgment), irrelevant, untimely, or incomplete. AR 340-21 does not permit the alteration of evidence presented in the course of judicial, quasi-judicial, or quasi-legislative proceedings.
Requests for amendment of judgmental matters must be processed under applicable existing procedures (for example, AR 623-105 for officer evaluation report appeals).
Exempt Reports. US Army Criminal Investigation Command (USACIDC) reports of investigation are exempt from amendment provisions of the Privacy Act.
PROCESSING REQUESTS.
Processing Requests for Access.
The official who receives a request will acknowledge receipt within 10 working days. Requests for access to records considered to be the property of another agency (within the meaning of the Privacy Act) or office within the DOD, or which are on loan to the using office (for example, investigative records) will be referred to the appropriate agency or office. Requests for other records contained in a system of records must be processed in accordance with this regulation and, if applicable, in coordination with the originating organization.
With respect to any portion of the record to which this official determines that access must or can be granted, the official will, within 30 working days of receipt, inform the individual of the following:
The individual may obtain access to the record either by mail, through copy reproduction or in person through personal inspection. Personal inspection will normally be allowed during duty hours at a location reasonably convenient to the requestor.
The agency may change only those costs of reproducing those copies desired by the individual. These charges will be at the rate specified in AR 25-55 and may be waived as provided therein, or otherwise within the discretion of the releasing official.
If the records would not be available to any member of the public under the Freedom of Information Act, the individual must provide reasonable verification of his identity.
* When access is requested in person, verification will normally be limited to information on documents which an individual is likely to have readily available (for example, driver's license, or an employee or military identification card). When an individual can provide no suitable documentation provided, a signed statement from the individual asserting his identity and indicating knowledge of the penalty for obtaining or requesting records under false pretenses (a fine of up to $5000) will suffice.
* When access is requested through the mail, the individual may have to provide certain minimum identifying data, such as name and date of birth.
If the sensitivity of the information contained in the requested record warrants, a signed and notarized statement similar to that described above, may be required.
NOTE: An individual cannot be denied access to a record solely because the individual refuses to provide a social security number, unless the number was required for access by statute or regulation adopted before 1 January 1975. An individual who requests access in person may be accompanied by another individual of that individual's own choosing, if so desired. The appropriate commander may require the individual to furnish a written statement authorizing any discussion of the records in the presence of the accompanying person.
As soon as the above administrative requirements are met, the releasing official will grant access to the records as requested. Any such record will be presented in a form comprehensible to the individual.
The releasing official determines access to any portion of the record must be denied, he will, within 10 working days of receipt of the request, do the following:
* Forward a copy of the request, together with a copy of the record involved and reason(s) for recommending denial, to the appropriate AARA.
* Notify the individual of this refusal.
With respect to any portion of the record to which the AARA decides to grant access, the individual will follow the procedures specified above. With respect to those portions which are denied to the individual, the releasing official will, within the same 30 day working period, take the following steps:
* Inform the individual in writing of reason(s) for doing so. This statement will include nondisclosure exemptions covered by the Privacy and Freedom of Information Acts, and the significant and legitimate governmental purpose served by nondisclosure.
* Advise the individual of his right to appeal through the AARA to the Secretary of the Army, Attention: Office of the General Counsel.
* Submit copies of the request, and individual's denial to the Office of the General Counsel.
An AARA who receives a notice of appeal will forward it to the General Counsel within 5 working days of receipt. This referral will include copies of all records requested by the individual, clearly indicating those portions to which access was denied, together with a detailed justification for the denial.
The Office of the General Counsel, on behalf of the Secretary of the Army and within 25 working days after receipt of the appeal letter, will decide on any appeal submitted.
Access Denial.
An individual may be denied access to a record if it was compiled in reasonable anticipation of a civil action or proceeding, or for any of the following reasons:
* It has been properly exempted from the disclosure provisions of the Privacy Act.
* It would not otherwise be required to be disclosed under the Freedom of Information Act (AR 25-55).
* There exists a significant and legitimate governmental purpose for doing so.
An individual will not be denied access to his or her record solely because it is exempt from disclosure under AR 25-55 (FOIA) or because its physical presence is not readily available. Access will not depend upon any requirement that the individual state a reason or otherwise justify a need for access.
If a record contains both releasable and exempt information, the releasable portions will be extracted and made available. For example, to protect the personal privacy of other persons who may be identified in a record, copy will be made, deleting only that information pertaining to those other individuals.
Processing of Requests for Amendment of Records.
The custodian of a record who initially receives a request for amendment will do the following:
Within 10 working days after receipt, acknowledge the receipt in writing. The acknowledgment will clearly identify the request and advise the individual when the individual may expect to be informed of action taken on the request. If the request is delivered in person, a written acknowledgment should be provided when the request is presented.
If the custodian needs further information to process the request, he should contact the individual immediately and explain the necessity of such information.
If the custodian determines amendment is proper because the record is inaccurate, irrelevant, untimely, or incomplete, he should make the necessary correction and advise the individual within 30 working days of the request.
If a disclosure accounting has been made, the custodian will advise all previous recipients of the record of the substance of the correction. The custodian will tell them they should give notice of this correction to everyone to whom they have disclosed the record.
Amendments of records will be physically accomplished, as circumstances warrant, by adding supplementary information, or by annotating, altering, obliterating, deleting, or destroying of the record or a portion thereof. NOTE: Files maintenance and disposition instructions in the AR 25-400-2 do not apply to amendment of records created before congress enacted the Privacy Act.
If the AARA believes amendment would be improper because the system containing the record has been exempted or otherwise, the AARA will forward the request, along with the records involved and the custodian's recommendation to the appropriate AARA within 5 working days after receipt. The AARA will inform the individual of this referral he acknowledges receipt of the request. The AARA may request further information.
If the AARA determines amendment is proper even if the system containing the record is exempt from the amendment requirement the custodian will promptly see the amendment is made in accordance with rules mentioned above.
If the AARA determines amendment is not proper, within 5 working days the AARA will--
* Explain to the individual in writing the reason(s) for not amending the records.
* Advise the individual further review may be requested by the DA Privacy Review Board and any such request should be addressed to the AARA for forwarding to the board.
* Furnish copies of the letters of request and denial to the board and the commander possessing the records.
If the board decides not to amend the records, it will inform the individual in writing of the reason(s) for not amending the record. It will also advise the individual of the following:
The individuals right to file with the records custodian a concise statement of the disagreement with the board's decision.
Any such statement will be made available to anyone to whom the record is subsequently disclosed, together with a brief statement (if the Army deems it appropriate) summarizing its reasons for refusing to amend the record.
Prior recipients of the disputed record will be provided a copy of any statement of dispute to the extent an accounting of disclosures was maintained.
The individuals right to seek judicial review of the agency's refusal to amend a record provided for in Section 3(g)(1)(A) of the Privacy Act.
The board will not uphold a refusal to amend a record as requested unless this refusal is supported by the General Counsel.
Disagreement Statements.
When an individual files a statement disagreeing with the board's decision not to amend a record, the custodian will clearly annotate the record. It will be annotated in such a manner as to be apparent to anyone who may subsequently have access, use, or disclose it. The annotation itself should be integral to the record and specific to the portion in dispute. The annotation is required for automated systems of records as well.
Statements of dispute need not be maintained as an integral part of the records to which they pertain. They should, however, be filed in such a way they can be retrieved readily whenever
the disputed portion of the records is to be disclosed, If there is any question of whether the dispute pertains to information being disclosed, the statement of dispute should be included.
When information that is the subject of a statement of dispute is subsequently disclosed, the disclosing authority must note the information is disputed and provide a copy of the individual's statement.
The disclosing authority may include a brief summary of the board's reasons for not making a correction when disclosing disputed information. Summaries will be limited to the reasons the board stated to the individual. The summary will be treated as part of the individual's record for purposes of granting access. However, it will not be subject to the amendment procedures.
PRIVACY PROGRAM RECORD KEEPING.
Privacy Case Files.
Each element of the Army that is involved in processing privacy act requests will establish privacy case files. These case files will include requests from, and replies to, individuals on whether a system contains a record pertaining to them; requests for access and approvals, initial denials, and final review actions; requests for amendment and final review action; coordination actions and related papers. Privacy case files will be used solely--
* In processing the requests.
* As a source of precedents for formulating policies and procedures.
* For processing other similar requests.
Under no circumstances will privacy case files be disclosed for use in making any other determination about an individual. Maintenance and disposition of privacy case files will be in accordance with instructions contained in AR 25-400-2.
Disclosure Accounting.
For every records system created, the records custodian will keep an accurate accounting of the dates, natures, and purposes of all disclosures for each record. The custodian will also keep the name and address of the agency or person to whom such a disclosure was made and a cross-reference to the basis or justification for each disclosure. This will include any written documentation required for release of a record for statistical or law enforcement purpose. This provision also applies to disclosures made at the request of, or with the consent of, the individual.
In some instances as in the case of records in file folders a disclosure accounting record for each individual may be made a part of the folder. However, a records custodian need not make a notation on a single document of every disclosure of a particular record, if the required information can be reconstructed from an accounting system whenever--
* Requested by the individual,
* Necessary to inform previous recipients of amendments or dispute, or
* Necessary to provide an audit trail for subsequent review of Army compliance.
The disclosure accounting record will be retained for at least 5 years after the last disclosure or for the life of the record, whichever is longer. No record of disclosure of the contents of this form need be maintained.
DA Form 4410-R, Disclosure Accounting Record (Appendix D), is authorized and encouraged for use in recording required disclosure accounting information. The development and use of local forms to record disclosures from Automatic Data Processing (ADP) or other specialized systems of records is also authorized.
COLLECTION OF PERSONAL INFORMATION FROM INDIVIDUALS.
The following paragraphs describe certain restrictions on, and procedures for, the collection of information pertaining to individuals, to include social security numbers. They also set forth the responsibilities of Army officials in connection with these forms. Certain systems of records may be exempted.
Any personal information that will be contained in a records system (except statistical records) will be collected directly from the individual to the greatest extent possible.
The collection of information from third parties will be minimized to reduce the possibility of obtaining erroneous, outdated, irrelevant, or biased information. Exceptions to this policy are permitted under the following circumstances:
* When there is a need to ensure accuracy of information supplied by an individual through verification with a third party, such as verifying information for a security clearance.
* When the information can be obtained only from a third party (for example, a supervisor's assessment of an employee's performance in a previous job or assignment) or a criminal investigation.
* When obtaining the information from the individual would present exceptional difficulties or result in unreasonable cost.
Informing Individuals from whom Information is Requested.
Each individual who is asked to furnish personal information, whether or not it is to become a part of a records system, must be informed of the authority for requesting disclosure. The only authority which may be cited is:
* The statute or executive order which specifically authorizes collection of the particular personal information requested.
* The statute or executive order which authorizes the Army to perform a function, the discharging of which requires this information be collected.
The individual must also be informed of the following:
The principal purpose or purposes for which the information is to be used- for example, to evaluate suitability or issue benefit payments. Generally, the purposes will be directly related to, and necessary for, the purpose authorized by the statute or executive order.
The routine uses to be made of the information.
Whether furnishing the information is mandatory or voluntary. For example, individuals must be informed whether the Army is required or authorized to impose any penalties on him for failing to respond.
The effects on the individual, if any, of not providing all or any part of the information. For example, the collecting agency could inform this in that all information requested is necessary to identify the individual properly an individual and evaluate his claim for benefits and that, without such information, no benefits can be awarded. An individual should suffer no adverse effect for failing to provide information which is not in fact relevant and necessary. (An example of such a statement is shown in Appendix F.)
Notification is not required when an individual is asked to supply no more than the information which normally may be released without an unwarranted invasion of privacy, and when such information is currently and properly maintained in a records system. The notification requirement applies only when information is collected directly from the individual for example, when the individual personally completes a form, or when the individual discloses information to an official during an interview. A notification statement is not required for forms, reports, or formats which are completed from information previously compiled on the individual.
The notice to the individual may be made on the form used to collect the information or on a separate form. In either case, the statement will be furnished to the individual for retention if requested. This notification must be given regardless of the media used in requesting information. This is the case whether it is a "form" in the usual sense (for example, a preprinted document with a control number and an edition date) or a questionnaire, survey sheet, magazine response sheet, or report rendered on a blank sheet. When information is being collected in an interview, the interviewer must provide the individual interviewed with the notice in a form suitable for his retention.
SSN Disclosure.
Any Army official who asks an individual to disclose his SSN will tell that individual whether disclosure is mandatory or voluntary. The Army official will also inform the individual of the statutory or other authority (including regulations) that specifically allows or requires the Army to solicit a number and what uses the Army will be made of it.
When the SSN is the only personal information requested from an individual, EO 9397 and the applicable statute, AR, or other command or agency directive will be cited as authority for collecting the SSN. Where appropriate, notification to the individual for disclosure only of the SSN may be accomplished by a sign or poster which bears the required information, placed conspicuously in the area. If such sign is used, Army elements nevertheless should be prepared to furnish a copy of the statement to the individual on request.
Are request for disclosure of any personal information is requested in addition to the SSN, falls under previously stated provisions for notification.
An individual may not be denied any right, benefit, or privilege provided by law for refusing to disclose his or her SSN unless disclosure is required by federal statute, or unless it will be made to an Army element maintaining a records system that was in existence and operating before 1 January 1975. It is also the case unless disclosure was required under statute, AR, or other directive adopted prior to 1 January 1975.
The DA is not precluded from requesting disclosure of an SSN under circumstances other than described above. The individual however must be advised that disclosure of the SSN is voluntary. If the individual refuses to disclose the SSN, Army elements must be prepared to identify the individual by alternate means.
Upon entering into military service or civilian employment with the DOD, the individual will disclose his or her SSN. The SSN is the individual's service or employment identification number. The Army needs it to establish personnel, financial, medical, and other official records. The required notice will be provided the individual upon entrance. It will not be required whenever an individual is subsequently requested to give or verify SSN, provided--
* The SSN is requested solely for identification purposes in connection with official DOD or Office of Personnel Management records.
* No use will be made of this number outside of the DOD or Office of Personnel Management, except as provided by the Privacy Act.
Forms in Use Before 27 September 1975.
Forms in use before 27 September 1975, which are to be used after that date, must meet the notice requirements by use of a separate statement.
This statement must accompany each form subject to the provisions of the Privacy Act of 1974. This statement will be prepared on DA Form 4368-R (Data Required by the Privacy Act of 1974) (Appendix G).
For forms in a regularly-issued, numbered series, the DA Form 4368-R identification will be deleted. Also, the Privacy Act Statement will be assigned the same number as the form to which it pertains. For example, in the case of SF Form 86 (Questionnaire for National Security Position, the applicable notice will be designed "SF Form 86 - Privacy Act Statement."
Similarly for unnumbered, questionnaires, survey sheets, and reports which collect personal information and identify individuals, the DA Form 4368-R identification will be deleted. The Privacy Act Statement will be assigned the reports control symbol or Office of Management and Budget (OMB) approval number that authorizes collection of the information.
All Privacy Act Statements will be submitted with DA Form 1167 (Request for Approval of Form) and a prescribing directive to the head of the agency of the commander, ATTN: Forms Management Officer. The forms management officer will review statements for compliance with forms design principles.
Forms Initiated or Revised After 27 September 1975.
As forms are revised or new forms are issued, the Privacy Act Statement will be incorporated, if practical, in the body of each form, questionnaire, survey sheet, or report. When feasible, the Privacy Act Statement will be positioned before the information requested from the individual. When it is impractical to obtain the statement on the basic form, it may be printed on the reverse side of the form or a separate statement will be prepared. DA Form 4368-R will be used when a separate Privacy Act Statement is necessary. All statements will be reviewed and approved by appropriate privacy and forms management officials.
Other Agency Forms.
Forms originated by other agencies that the Army uses to collect personal information from individuals for entry into a system of records must contain a Privacy Act Statement. Use of any agency forms subject to the Privacy Act without a notification statement will be suspended immediately and the matter referred to the appropriate Army forms management official. The forms management official, through technical channels, will determine whether use of the form is local, command wide, or Army wide. Based on the outcome of this determination, the forms management official will refer the matter to the appropriate privacy official. The privacy official, in coordination with the principal Army user, will ensure preparation of a Privacy Statement for the form or take action to discontinue its use.
PRIVACY ACT OF 1974, AND FREEDOM OF INFORMATION ACT.
As you read in Part 1, the Freedom of Information Act concerns the rights of the public to obtain access to records maintained by agencies of the federal government. In implementing the Act, AR 25-55 provides procedures for gaining access to these records, guidelines for determining what records must be released, what must be denied, and specifications for the fees that may be charged.
The FOIA and Privacy Act of 1974 overlap and support each other in some ways. For instance, the fees that may be charged for records released under the Privacy Act are those specified in the FOIA. More importantly, the Privacy Act provides one major limitation on the FOIA. Except under certain circumstances, an individual or agency will not be granted access to their own personnel records or the personal records of another individual.
The provisions of the two acts for determining the release of information are not identical, so it is important to know which Act properly governs a request for information from records. If a request seems to be covered by both Acts, the governing Act will be the Privacy Act of 1974, even if the request was submitted under the FOIA.
However, a Privacy Act request for access to records should also be processed as an FOIA request. If any part of the requested material is to be denied, it must be considered under the substantive provisions of both the Privacy Act and the Freedom of Information Act. Any withdrawing of information must be justified under an exemption in each act.
PRACTICE EXERCISE
