FOIA vs. the Privacy Act: How to Get What You Want

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.

Over a century ago, U.S. Supreme Court Justice Louis Brandeis famously argued that “sunlight is said to be the best of disinfectants.”

Brandeis didn’t intend to be taken literally; he was referring to transparency in government, and how a lack thereof tends to breed corruption, self-dealing, and other nefarious conduct.

Today, Brandeis’ comment may not seem revolutionary or even profound, but he was well ahead of his time in making it. The Freedom of Information Act (FOIA) and the Privacy Act – two of the most important tools ordinary citizens can use to force transparency in government – were not created until some 40 and 60 years later, respectively.

The Importance of FOIA and Privacy Act for Clearance Holders

The importance of FOIA and the Privacy Act cannot be understated within the context of security clearance, employment suitability, and contractor employment fitness cases – the three main ways in which federal employees and contractors lose their jobs. In security clearance cases, the government is required to provide to the applicant, upon demand, all materials relied upon in reaching the unfavorable decision (or the applicant’s entire security file), as it would be provided under the Privacy Act. This documentation is often critical in mounting a strong defense to the government’s allegations, especially if you dispute their accuracy, are unclear as to the source of the information, or believe the case to be one of whistle-blower retaliation.

But many federal agencies have discovered that the due process required in security clearance denials is time-consuming, expensive, and inconvenient. As a result, a large number of security clearance cases are now being re-categorized as “suitability” or “fitness” – ostensibly so that the issuing agency can take advantage of the expedited appeals process, if any, established by their regulations. When available, those appeals processes rarely include the right to review one’s security file before responding to the allegations. We have to demand that right, on behalf of our clients, and, if you are not represented by an attorney (a bad idea) you will also.

So, if you find yourself facing a suitability or fitness denial without legal representation; if you require records from other agencies to defend a security clearance denial; or, if you’re simply curious what type of information the government has on you, you’ll need to understand how to correctly request the relevant records. Here is a brief primer:

THE PRIVACY ACT

When the records you are requesting pertain to you, you’ll need to make your request under the Privacy Act. There is no particular “legalese” required to do this: you simply state in writing that you are “requesting, under the Privacy Act, records identified as _______ (insert a detailed description of what you are seeking, making clear that the records pertain to you).” Then, you’ll need to include sufficient information to allow the agency to identify you. For example, your full name, Social Security Number, Date of Birth, and any other identifiers that may help agency personnel locate the records. Also be sure to include your address and phone number so that the agency can contact you with questions – and eventually provide the responsive documents to your request. You will need to sign and date your letter before a notary or under penalty of perjury (specific language required), and mail it to the appropriate agency’s FOIA / Privacy Act office.

THE FREEDOM OF INFORMATION ACT (FOIA)

If the records you are requesting pertain to someone else or to agency programs, data, or other general information, you’ll need to make your request under FOIA. Understand that FOIA does not allow you the right to ask questions (e.g. “did aliens land at Roswell?”), it only gives you the right to request certain documents (e.g. “all documents pertaining to the alien landing at Roswell”) that the government can then refuse to release based upon a series of exemptions (e.g. classified information) outlined under the law.

The request should incorporate the same features as a Privacy Act request, the only difference being that in identifying the records you seek, you make clear that your request is made under FOIA and that the records do not pertain to you personally.

SOME THINGS TO KEEP IN MIND

Although most agencies will accept a generic FOIA or Privacy Act request letter, some require specific wording or supporting documentation (e.g. proof of identity or a declaration of your U.S. citizenship). These agencies include, but are not limited to, the Naval Criminal Investigative Service (NCIS); U.S. Office of Personnel Management (OPM); Central Intelligence Agency (CIA); and, U.S. Postal Inspection Service (USPIS). You are advised to review a particular agency’s website for both that agency’s FOIA / PA mailing address and specific formatting requirements before submitting your request.

Additionally, many agencies charge fees for FOIA requests that exceed a certain amount of personnel time or resources to generate. If making a FOIA request, you should include in your letter how much money you are willing to spend on your request (there are a few exceptions to the fee, but they are outside the scope of this article).

Finally, understand that at many agencies the process is a slow one. Depending upon the size and complexity of your request, it could take anywhere from weeks to years to produce. You can keep costs and production time down by narrowly tailoring the scope of your request.

With some time and research, most people can prepare and submit a FOIA or Privacy Act request adequate to accomplish their objective. But if you don’t have the time or aren’t sure which agency owns your records, here are some attorney-drafted request letters available to download for a nominal fee.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situatio

Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com