10.12 Adjudicator’s Responsibilities under FOIA/Privacy Act.

(a) General .

As employees of USCIS , you work with personal information about other people. You could not perform your job (i.e., you could not determine an applicant's eligibility for benefits) without knowing some personal information about those people. The Freedom of Information and Privacy Acts (FOIA/PA) place responsibility on USCIS , and the individual officer, for disclosure of information which the public has a "right to know," while safeguarding individuals against an invasion of their personal privacy.

(b) The Freedom of Information Act .

(1) General .

The Freedom of Information Act (FOIA) 5 U.S.C 552, provides access to all Federal agency records except those which are protected from release by exemptions (reasons an agency may deny access to a requester). The FOIA can be used by anyone to access government records regardless of citizenship. The FOIA only applies to the Executive Branch of the Federal government. It does not apply to Congress, the courts, local governments or private organizations. Requests for access to USCIS records under the FOIA must be in writing (by letter or by Form G-639 Freedom of Information/ Privacy Act Request) and when received must immediately be forwarded to the FOIA/PA officer for proper handling.

[See Appendices 10-1 and 10-2 .] [Appendices 10-1 and 10-2 added as of 02-06-2006, AD06-17.]

(2) Handling FOIA Requests .

The FOIA requires the Government to respond to requests for information that are not exempt within 20 working days after receipt of the request. Your responsibility as an employee is to conduct a thorough search for the records that have been requested and provide them to the FOIA/PA officer of your organization as quickly as possible. If you believe some or all of the information should not be released to the public, inform the FOIA/PA officer and he or she will work with you to determine whether such information can be exempted or not. Be sure to give the FOIA/PA officer a copy of all records that are responsive to the request to preclude being held responsible for "arbitrary and capricious" withholding by a court.

(3) FOIA Exemptions .

In addition to the special circumstances discussed in paragraph (4), there are nine exemptions which may be cited as grounds for withholding records under the FOIA:

· National defense or foreign policy matters required by executive order to be secret. Such records must be properly classified and may be inspected in camera by a court.

· Matters related solely to internal personnel rules and practices of an agency.

· Matters specifically exempted by some other statute.

· Certain privileged or confidential information such as trade secrets and confidential business information.

· Certain interagency or intra-agency memos or letters such as discussions and recommendations that are pre-decisional in scope (e.g., attorney-client information, attorney work product, and adjudicator’s drafts of decisions).

· Personnel, medical, or other files which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.

· Law enforcement investigatory records may be withheld only if disclosure could (a) interfere with enforcement procedures; (b) prevent a fair trial; (c) constitute an unwarranted invasion of privacy; (d) disclose confidential sources and, in criminal investigations and national security intelligence investigations, disclose confidential information obtained only from a confidential source; (e) disclose techniques and procedures for law enforcement investigations or prosecutions that could risk circumvention of the law; and (f) endanger the life or safety of any person.

· Audits of financial institutions.

· Geological maps and data on wells.

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(4) Special Circumstances .

(A) Sensitive Law Enforcement Matters .

The Freedom of Information Reform Act of 1986 creates a new mechanism for protecting certain especially sensitive law enforcement matters under subsection (c) of the FOIA. These exclusions authorize federal law enforcement agencies to treat especially sensitive records as not subject to the requirements of FOIA. Contact the FOIA/PA section in Headquarters before citing these exclusions.

(B) Third Agency Rule .

Records of other agencies either loaned to USCIS or a part of the USCIS files must be protected from unauthorized disclosure. The contents of an agency's report in possession of USCIS shall not be disclosed to another agency without the prior consent of the originating agency. This principle is generally known as the "third agency rule." The contents of an agency's document, report or other information in possession of USCIS shall not be disclosed to an individual without the prior consent of the originating agency. When processing a FOIA request involving the release of third agency material, the agency concerned shall be consulted regarding release of the document or information originating with them and the requester should be advised accordingly. When the request involves third agency material which is classified, that material should be referred to the originating agency for a determination as to all the issues in accorda nce with the Act. The requester shall be notified of the referral and that he may expect a determination from that agency. See 28 CFR 16.4 .

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(5) FOIA Fees .

Because USCIS is permitted to charge FOIA requesters, USCIS personnel should keep track of time spent processing specific FOIA requests.

(c) The Privacy Act .

(1) General .

The Privacy Act of 1974, 5 U.S.C. 552a, establishes safeguards for the protection of records the Government collects and maintains on United States citizens and lawfully admitted permanent residents. [See Appendices 10-3 and 10-4 .] [Appendices 10-3 and 10-4 added as of 02-06-2006, AD06-17.] Specifically, it mandates that the Government:

Inform people at the time it is collecting information about them, why this information is being collected and how it will be used.

Publish a notice in the Federal Register of new or revised systems of records on individuals.

Publish a notice in the Federal Register before conducting computer matching programs.

Assure that the information is accurate relevant, complete and up-to-date before disclosing it to others.

Allow individuals access to records on themselves.

Allow individuals to find out about disclosures of their records to other agencies or persons.

Provide individuals with the opportunity to correct inaccuracies in their records.

(2) Privacy Act Records .

The Privacy Act applies to any item, collection or grouping of information about a United States citizen or lawfully admitted permanent resident that can be retrieved by using the persons name, social security number, alien registration number or other personal identifier. The Privacy Act applies to personal information stored in computers as well as that maintained in paper files The Privacy Act applies to records maintained by the Executive Branch of the Federal Government. It does not apply to records held by Congress, the courts, local government or private organizations. USCIS and each Federal Government agency must publish in the Federal Register a description of it's record systems that are covered by the Privacy Act. A list of major Service records systems is located on the USCIS Internet web site, in the Electronic Reading Room of the FOIA/PA section. The record system with which we are most familiar is the Alien File and Central Index System. Through this record system all A-files can be retrieved by name and by date of birth or A-number. For additional information on Service records systems, refer to the Records Operations Handbook.

(3) Conditions of Disclosure .

The Privacy Act lists twelve conditions under which information from records pertaining to individuals may be disclosed without the prior consent of the individuals to whom the records pertain:

· To other employees of an agency, in the performance of their official duties. The Department of Homeland Security is the agency in this case, and officials of any component of DHS may be granted access to information from USCIS records without prior consent of the subject if such official has a “need to know” to do his/her job.

· To the public, when disclosure would be required or permitted under the Freedom of Information Act. Information from a public record, such as the judicial record of naturalization, may be disclosed to anyone. Information available to the public from personnel records includes the name, past and present position, titles, grades, salaries, and duty stations of specific Federal Government employees.

· For routine uses which have been published in the Federal Register in the System Notice for each Privacy Act record system.

· To the Bureau of Census, for census or survey purposes.

· To a person or another agency for statistical research or reporting purposes, when the individual identifying information is removed.

· To the National Archives for preservation of records of historical value.

· To other agencies or organizations for law enforcement purposes upon written request from the agency head.

· To others, under emergency circumstances affecting the health or safety of an individual.

· To the Congress or committees to the extent of matter within their official jurisdiction.

· To the Comptroller General in the course of duties of the General Accounting Office.

· By order of a court of competent jurisdiction.

· To consumer reporting agencies in accordance with section 3(d) of the Federal Claims Collection Act of 1986.

(4) Accounting for Disclosures .

The Privacy Act requires an accounting of the disclosure of information from records pertaining to an individual except for disclosures to other components of the Department or disclosures made under the Freedom of Information Act. The accounting record must contain the date, nature and purpose of the disclosure and the name and address of the person or agency to whom disclosure was made. Form G-658, Record of Information Disclosure, Privacy Act, is recommended for the necessary accounting of routine uses or other conditions of disclosure.

Many USCIS forms contain personal data about individuals which may be requested by other agencies for routine uses. When these forms are used to make disclosures of personal information about individuals who are United States citizens or aliens lawfully admitted for permanent residence, an accounting is required for Privacy Act reporting purposes.

(5) Rights and Responsibilities .

As a USCIS employee you "wear two hats" - one as a citizen who is entitled to the full protection and rights established by the Privacy Act, the other as a Federal employee who works with records containing personal information and who shares some responsibility in carrying out the requirements of the law.

Administrative, technical, and physical safeguards are required for records, and employees who handle records must adhere to rules of conduct to protect information from the possibility of unwarranted disclosure or access by unauthorized persons. The importance of this responsibility is evident from the penalties imposed by the Privacy Act on Federal employees who violate certain sections of the law. A fine of up to $5000 can be imposed for willfully maintaining a Privacy Act record system that has not bee n published in the Federal Register or for willfully making an unauthorized disclosure. Information from Privacy Act records cannot be disclosed without the consent of the record subject, except for specific conditions listed in the Act and specific routine uses published by USCIS with each system notice.

(6) Individual Access to and Correction of Records .

Agencies must allow individuals to gain access to records about themselves. They must be permitted to review the records, may be accompanied by representatives, and shall be permitted to obtain a copy of all or any portion of records in a comprehensive form. Individuals must be permitted to request amendment or correction of records pertaining to them, and such requests must be acknowledged within 10 working days of receipt. After acknowledgment, the agency must correct the information in question prompt ly or inform the individual of his right to request a review of the decision by applying to the Attorney General within 60 days of receipt of the reply. If the individual disagrees with the decision not to amend a record, he or she must be allowed to file a statement of his or her views which must be provided to any source that has received information from the record.