Repeat OGIS customers may wonder why we sometimes ask them to provide consent to discuss their requests with agencies and other times we don’t. We recently contacted a requester whose consent we had asked for a few weeks earlier and told her, in essence: just kidding, we really don’t need your consent.
So why does OGIS sometimes toss this small bureaucratic hurdle at its customers? The short answer is the Privacy Act of 1974.
The Privacy Act covers Freedom of Information Act (FOIA) and Privacy Act request files at every agency, which means that FOIA request files, which are retrieved by an individual’s name or personal identifier, cannot be disclosed to another person (outside of the agency) or to another agency, with certain exceptions.
One exception is when an individual consents to disclosure of his or her records request file. That’s where OGIS’s consent requirement comes in. In many instances, such consent is required before we can contact the agency to try to begin facilitating a resolution to a dispute.
Another exception to the non-disclosure provision of the Privacy Act is when an agency “routinely” needs to disclose those records for certain purposes: think the Department of Justice (DOJ) and the Department of Homeland Security. In those instances, the agency publishes what’s called a Systems of Records Notice (SORN) in the Federal Register describing the records, how the records are maintained, and when and how they disclose them without first getting the consent of the individual.
Most agencies have a pretty long list of “routine uses,” many of which are common across agencies (for example, sharing records with the DOJ when there is litigation involving the individual’s FOIA request.)
As of early January 2014, six Cabinet-level departments and four agencies have revised their SORNs to include an OGIS routine use. The Department of the Treasury published on its revised SORN in the January 2, 2014 Federal Register, sparking OGIS to contact the customer referenced above to let her know that we don’t need her consent after all. (Thank you, Treasury!)
Other departments and agencies with SORNs that include an OGIS routine use are:
- Department of Defense
- Department of Health and Human Services
- Department of Justice
- Department of State
- Department of Transportation
- Office of Special Counsel
- Privacy and Civil Liberties Oversight Board
- Securities and Exchange Commission
- U.S. Postal Service
We’ve asked the nine Cabinet-level departments that do not have an OGIS routine use to revise their SORNs to include an OGIS routine use.
We’ve found that requiring consent can be an obstacle when an agency, rather than an individual requester, seeks OGIS assistance. The situation places agencies in the position of obtaining a requester’s consent. Indeed, one requester quipped that he felt like he’d been sent to the principal’s office when an agency came to him and said it was interested in OGIS’s mediation services and needed his consent.
So if your request for OGIS assistance involves one of the above-listed agencies, we won’t ask for your consent. But if it’s not on the list, expect us to ask for your consent.
Finally, as a reminder, before we can begin work on a case—no matter the agency—we need copies of
- your FOIA request letter;
- the agency’s response to your request;
- your appeal letter; and
- the agency’s response to your appeal.
We hope this provides a little insight as to how we work and hope that someday, seeking customer consent will be a thing of the past.