The Intersection of FOIA Street and Privacy Act Lane
Both the Freedom of Information Act (FOIA) and the Privacy Act contain provisions that grant a right of access to Federal records. FOIA applies to records of executive branch agencies on potentially any subject. The Privacy Act applies only to agencies’ records which contain information about individuals that are maintained in a “system of records,” meaning those records are retrievable by a name or other personal identifier such as a Social Security number – or a FOIA tracking number. When an individual requests access to his or her own records, it is most often, but not always, considered a Privacy Act, or first-party request.
Requesters seeking records about themselves often refer to both laws when filing a request because some records about individuals may not be maintained in Privacy Act “systems of records” but would be releasable if processed under FOIA. Congress intended that agencies consider the two laws together in processing requests for information. Most government agencies will automatically process requests under both laws to provide the greatest degree of access. Information may be withheld only if it must be withheld under both laws – if only one of the laws declares the information exempt, it must be released under the other.
While “any person” can request records under FOIA, the Privacy Act grants access rights only to U.S. citizens and to individuals lawfully admitted for permanent residence. Nonresident foreign nationals cannot request records under the Privacy Act but may use FOIA to request records about themselves.
Because so many Privacy Act requests overlap with FOIA, OGIS provides ombuds services, such as providing information about the status and processing of requests, to individuals requesting their own records. OGIS does not have a statutory role in reviewing policies, procedures and compliance with the Privacy Act as it does with FOIA, nor does it have the authority to offer mediation services to resolve Privacy Act access disputes.
In 2005, Congress issued a very detailed 85-page report addressing these laws called A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records that might be useful in understanding how both laws work. Additionally, the guide Your Right to Federal Records gives a concise explanation of FOIA and the Privacy Act and provides several points of contact for follow-up questions. Of course, as the FOIA Ombudsman, OGIS is always happy to try to help answer any questions about how a person goes about requesting records.