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Specific Privacy Act Request Exemptions

There are seven specific Privacy Act exemptions that can be applied to systems of records. Records subject to these exemptions are not exempt from as many of the act's requirements as are the records subject to the general exemptions. However, records exempt under the specific exemptions are likely to be exempt from the Privacy Act's access and correction provisions. Nevertheless, since the access and correction exemptions are not always applied when available, those seeking records should not be discouraged from making a request. Also, the FOIA can be used to seek access to records exempt under the Privacy Act.

The first specific exemption covers record systems containing information properly classified in the interest of national defense or foreign policy. Classified information is also exempt from disclosure under the FOIA and will normally be unavailable under both the FOIA and Privacy Acts.

The second specific exemption applies to systems of records containing investigatory material compiled for law enforcement purposes other than material covered by the general law enforcement exemption. The specific law enforcement exemption is limited when--as a result of the maintenance of the records--an individual is denied any right, privilege, or benefit to which he or she would be entitled by Federal law or for which he or she would otherwise be entitled. In such a case, disclosure is required except where disclosure would reveal the identity of a confidential source who furnished information to the government under an express promise that the identity of the source would be held in confidence. If the information was collected from a confidential source before the effective date of the Privacy Act (September 27, 1975), an implied promise of confidentiality is sufficient to permit withholding of the identity of the source. [1]

The third specific exemption applies to systems of records maintained in connection with providing protective services to the President of the United States or other individuals who receive protection from the Secret Service.

The fourth specific exemption applies to systems of records required by statute to be maintained and used solely as statistical records.

The fifth specific exemption covers investigatory material compiled solely to determine suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. However, this exemption applies only to the extent that disclosure of information would reveal the identity of a confidential source who provided the information under a promise of confidentiality.

The sixth specific exemption applies to systems of records that contain testing or examination material used solely to determine individual qualifications for appointment or promotion in Federal service, but only when disclosure would compromise the objectivity or fairness of the testing or examination process. Effectively, this exemption permits withholding of questions used in employment tests.

The seventh specific exemption covers evaluation material used to determine potential for promotion in the armed services. The material is only exempt to the extent that disclosure would reveal the identity of a confidential source who provided the information under a promise of confidentiality.

Footnotes

[1] This distinction between express and implied promises of confidentiality is repeated throughout the specific exemptions of the Privacy Act.

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