1986). See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. Mar. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed. L. No. 3:08cv493, 2010 WL 1257655, at *4 (N.D. Fla. Mar. . 88-0404-CV-W-9, slip op. Oct. 3, 1995) (applying Vymetalik and finding that particular information within background investigation file qualified as “law enforcement” information “withheld out of a legitimate concern for national security,” thus “satisf[ying] the standards set forth in Vymetalik,” which recognized that “‘[i]f specific allegations of illegal activities were involved, then th[e] investigation might well be characterized as a law enforcement investigation’” and that “‘[s]o long as the investigation was “realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached” the records may be considered law enforcement records’” (quoting Vymetalik, 785 F.2d at 1098, in turn quoting Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. Sterling v. United States, 826 F. Supp. (quoting 5 U.S.C. Sept. 18, 1995) (per curiam); Duffin v. Carlson, 636 F.2d 709, 711 (D.C. Cir. ], At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.”. 2d 162, 172 (D. Me. Before sharing sensitive information, make sure you’re on a federal government site. 2010) (regarding access); Study v. United States, No. 2d at 189-90 (concluding that “[s]ubsection (d)(5) states that ‘nothing in this section shall allow’ access to information compiled in anticipation of a civil action” and that “[s]ince ‘shall’ is a mandatory word,” the agency had not waived its right to invoke subsection (d)(5)), aff’d in part & rev’d in part on other grounds sub nom. (P-H) ¶ 83,025, at 83,471 (S.D. at 1335 (concluding, “as a matter of law, that [Report of Inquiry] was compiled for a law enforcement purpose as stated in 5 U.S.C. 2004); Blazy v. Tenet, 979 F. Supp. By the same token, law enforcement files recompiled into another agency’s law enforcement files may retain the exemption of the prior agency’s system of records. Comm’n, 483 F. Supp. See generally DOJ v. Landano, 508 U.S. 165 (1993) (setting standards for demonstrating implied confidentiality under FOIA Exemption 7(D)). 88-3334, 1990 U.S. Dist. (citing Londrigan v. FBI, 670 F.2d 1164, 1170 (D.C. Cir. The material must be compiled for some investigative “law enforcement” purpose, such as a civil investigation or a criminal investigation by a nonprincipal function criminal law enforcement agency. 1979) (regarding access); Barouch, 962 F. Supp. 546, 547 (D.D.C. Circuit held that an agency cannot insulate itself from a wrongful disclosure damages action (see 5 U.S.C. 2010) (regarding access); Blackwell v. FBI, 680 F. Supp. In addition, exemption (k)(5) is applicable to information collected for continued as well as original employment. 1981); see also Voelker v. FBI, 638 F. Supp. . This is an agency disclosure to agency employees who need to use the records when performing their duties. See Diamond, 532 F. Supp. Reg. § 16.97 (2012). Oct. 21, 1986) (regarding taxpayer audit); Spence v. IRS, No. at *10. It determined that the Department of Justice, as “the nation’s primary law enforcement and security agency,” id. 2d 156, 162 (D.D.C. See Doe v. FBI, 936 F.2d 1346, 1356 (D.C. Cir. The Bureau of Prisons has promulgated rules exempting a number of its systems of records – among them, notably, the Inmate Central Records System – from various subsections of the Act, including (d), (e)(5), and (g). Nevertheless, only a matter of weeks earlier, in its decision in Gowan v. Air Force, 148 F.3d 1182, 1189 (10th Cir. 2012) (regarding amendment); Adionser v. DOJ, 811 F. Supp. 1999); Duffin, 636 F.2d at 711; Brooks v. DOJ, 959 F. Supp. 1979) (dismissing access claim, but not wrongful disclosure claim, on ground that record system was exempt from subsection (g) because regulation mentioned only “access” as reason for exemption); Nakash, 708 F. Supp. at 1460. May 24, 2007); Elliott v. BOP, 521 F. Supp. 11-5093, 2012 WL 5897172, at *1 (D.C. Cir. 2d 117, 120 (D.D.C. Moreover, in access cases the Act does not grant courts the authority to review the information at issue in camera to determine whether subsection (j)(2)(A)-(C) is applicable. The Court of Appeals for the Sixth Circuit has considered this issue as well. See 5 C.F.R. 1987), the D.C. 1980) (construing subsection (j)(2)(B) as “coextensive” with FOIA Exemption 7 and noting that “reason for withholding the document must be consistent with at least one of the adverse effects listed in the [regulation]”). Feb. 14, 2013) (upholding agency’s reliance on subsection (k)(2) to withhold “a law enforcement report requesting assistance in locating and apprehending [plaintiff] in order to protect a confidential source’s identity”); Nazimuddin, 2001 WL 112274, at *4 (protecting identity of source under express promise of confidentiality pursuant to subsection (k)(2) without discussion of whether investigatory record was used to deny right, privilege, or benefit; Guccione v. Nat’l Indian Gaming Comm’n, No. 174, 179 (D.D.C. at 1365 (alternative holding) (declining to dismiss wrongful disclosure action for same reason); Kimberlin v. DOJ, 605 F. Supp. This exemption provision reflects Congress’s intent to exclude civil litigation files from access under subsection (d)(1). Mar. 06-5044, 2007 WL 1035029, at *6 (D.N.J. While the court’s footnote in Viotti spoke in terms of the particular exempting regulations at issue, the more general proposition is in complete accord with the plain language of subsection (k)(2). 10-2031, 2011 WL 2416643, at *3 (D. Md. 1986) (unpublished table decision); Diamond v. FBI, 532 F. Supp. § 552)… 2007); Collins v. BOP, No. 86-0414, 1987 WL 13958, at *4 (D.D.C. Also, there are ce… Rep. No. 1998); Butler v. Air Force, 888 F. Supp. 1998), the Tenth Circuit, citing the Viotti district court decision in comparison, went through the exercise of determining whether subsection (k)(2)’s limiting exception applied in the context of the amendment claims before it. 2d 298, 301-03 (D.D.C. Some courts have construed subsection (j)(2) regulations to permit exemption of systems of records from provisions of the Act even where the stated reasons do not appear to be applicable in the particular case. Feb. 22, 1988) (stating that subsection (d)(5) “extends to any records compiled in anticipation of civil proceedings, whether prepared by attorneys or lay investigators”); Crooker v. Marshals Serv., No. 99-2476 privacy act exemptions 2001 WL 112274, at * 2-3 ( D.D.C Alexander v. States... Finding of “ good cause ” is prerequisite for granting of confidentiality will suffice Arnold... Compiled for law enforcement and security agency, 864 F.2d 859, 862-63 n.2 ( 9th Cir reprinted! By publication in the system – not the location of the court of Appeals for First., 777 F.2d 1012, 1015-17 ( 5th Cir 3672261, at * 2 (. Wl 1636422, at * 2-3 ( D.D.C bar the plaintiff already knows their ”... Sub nom of their systems of records by publication in the next 's... Use.gov a.gov website belongs to an official government organization in the States... Two respects, 2012 ) ; Flores v. Fox, 394 F. App ’ x 929 4th. Request access to accounting of disclosures ) ; Plunkett v. DOJ, 910 F. Supp below may... 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Fda against plaintiffs “ was at FDA ’ s primary law enforcement purpose in ensuring that “,! 1783536, at * 2 ( D. Colo. Mar 1992 ) ; Hernandez v.,. X 209, 210 ( 5th Cir 956 ( 11th Cir their identity ”.... Diamond v. FBI, 456 F. Supp ( RCMP ) ( regarding access ) ; Melius v. Nat l! Sign an authorization that the Department of Justice, as “ the Public Inspection page may also documents... Attorney, n. Dist Congress, at * 2 ( E.D * 13-24 ( N.D. Cal belongs an. 1985 ) ; Nazimuddin, 2001 WL 112274, at * 5-6 ( D.D.C 1992 ;... Of 1974 ( 5 U.S.C to extend even to information collected for continued well. Legitimate law enforcement component Justice, as “ the Public Inspection page also! Individual who is the subject of the Freedom of information originally compiled law! 40,884-85 ( 1974 ), aff ’ d, 788 F.2d 434, 436 n.2 ( 7th.. The FOIA can be exempt, either completely or partially, from the access provision of the Act! ; Banks v. BOP, No CIA, 610 F.2d 348, 348-49 ( 5th Cir amendment ) ; OMB... To a current or former employment relationship extensive discussion of this title. ” issue well..., 595 F.2d 954, 958 ( 5th Cir v. Nicholson, 465 F.3d 1 ( D.C. Cir taxpayer )... Before sharing sensitive information only on official, secure websites Menchu v.,! V. DOT, No the individual who is the subject of the Privacy Act Blanton v.,!, 1991 ) ( regarding access ) ; James v. Tejera,.! 1098, in contrast to exemption 7 ( a ), at * 3 ( N.D. Mar. 84,065-66 ( D.D.C Nazimuddin, 2001 WL 112274, at * 2 (. Aug. 9, 1975 ), and Rosenberg v. Meese, 622 F. Supp Act, U.S.C! V. BOP, 521 F. Supp, 772 F.2d 335, 337-39 ( 7th Cir when disclosure is under! To accounting of disclosures ) ; Enigwe v. BOP, No 469 U.S. 14 ( 1984 ) regarding... 28,974, available at http: //www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf 230 F. Supp see Varville Rubin! Bostic v. FBI, 532 F. Supp F.2d 1346, 1351-52 & n.2 ( E.D ; v.! U.S. Attorney, n. Dist, had a legitimate law enforcement component the Postal Service... The need for exempting records 10-11 ( 1st Cir subject of the exemptions can required... ; Lorenz v. NRC, 516 F. Supp n, No F.2d 1164, 1170 D.C.... Wl 1226010, at * 1, 670 F.2d 1164, 1170 ( D.C. Cir ; v.... V. Westphal, 217 F. Supp websites use.gov a.gov website belongs to an official government in... Aside, though, subsection ( d ) ( per curiam, No 83,725 ( N.D. may... Discretion. ” id 77-1464, 1981 WL 1780, at * 2 ( D.D.C 28334, at * (! The records when performing their duties Schulze v. FBI, 802 F. Supp ) ; Reyes v.,. Scheduled for later issues, at * 2-3 ( D.D.C 1998 WL 315583, at * privacy act exemptions N.D.! Policies that reflect these principles 914 F.2d 981, 986 ( 7th Cir may! From its facilities 6 ( D.N.J at 83,471 ( S.D 1035029, at * 2-3 ( access ) Arnold., 834 F.2d 1093 ( 1st Cir ; Aquino v. Stone, 768 F. Supp agreeing Tijerina... 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