1. 1. FOIA. Pre-litigation FOIA Requests for Documents. See 28 C.F.R. §§ 16.1 through 16.10, for detailed instructions for responding to pre-litigation Freedom of Information Act requests. See also 5 U.S.C. § 552, as amended. Nine categories of government records are exempt from disclosure under the FOIA. See 28 C.F.R. § 16.10(b)(3), as to the necessity for referring requests for information classified by another agency to that agency.
   In the event of a request for documents from a USAO, the request should be forwarded to the Executive Office for United States Attorneys, FOIA/PA Unit, pursuant to 28 C.F.R. Part 16.3(a). The Federal Programs Branch is responsible for litigation and does not have any responsibilities relating to the administrative processing of FOIA or Privacy Act requests for documents in USAOs.
   FOIA Suits. Expedited handling is essential in FOIA suits, inasmuch as the Act provides that such litigation is to take precedence. See5 U.S.C. § 552(a)(4)(D). Because the time for serving an Answer or Motion to Dismiss is reduced to thirty days, care should be taken to ensure that the government's time to respond is protected. The Federal Programs Branch can provide advice and assistance if necessary. Interim relief is generally not permitted under the FOIA; therefore, in the event an emergency hearing is scheduled, the relief requested should ordinarily be opposed.
   Branch attorneys directly handle a number of FOIA cases. However, United States Attorneys should anticipate that the majority of FOIA cases filed in their respective districts will be assigned to the United States Attorneys for handling. This responsibility contemplates that the Assistant United States Attorney assigned to the case will consult with the agency as appropriate to determine whether the agency’s search for responsive records and withholding decisions are legally supportable. The Assistant United States Attorney is also responsible, with assistance from the agency General Counsel, for reviewing the agency’s affidavits and Vaughn index, preparing pleadings, and oral argument. For a general discussion of client agency responsibilities in defensive litigation, see JM 4-1.430et seq.
   The Guide to the Freedom of Information Act a publication of the Office of Information Policy, is a comprehensive legal treatise on FOIA exemptions and litigation. The Guide is available on-line.
   Exhaustion of administrative remedies is required before suit may be brought, but exhaustion may be deemed to have occurred if the agency exceeds statutory time limits in processing FOIA requests or appeals. See 5 U.S.C. § 552(a)(6). The statute generally provides for de novo review without reference to any administrative record made in the agency. 5 U.S.C. § 552(a)(4)(B). You should note, however, that in challenges to agency determinations regarding waiver of fees for processing FOIA requests, the 1986 amendment to the statute provides for de novo review on the record made before the agency. 5 U.S.C. § 552(a)(4)(vii). "Reverse" FOIA cases, in which a submitter of information sues to prevent an agency's proposed release of the information under the FOIA are brought pursuant to the APA, and the APA standard of review applies.
   Orders for disclosure in FOIA suits will ordinarily be phrased as injunctions. Thus, it is necessary to seek a stay from such an adverse order to preserve the right of appeal. If a stay is denied, telephonic notice should be given the Federal Programs Branch. It is important to furnish immediately to the Branch a copy of all opinions and orders entered. This is essential to assure appropriate appellate consideration and to enable the Department to satisfy its statutory reporting requirements. See5 U.S.C. § 552(e).
   United States Attorneys should also inform the Civil Appellate Staff immediately if a stay pending appeal of an order couched in terms of an injunction is denied in FOIA or Privacy Act suits. See Expertise in the Civil Division.
2. 2. Privacy Act. The Privacy Act imposes stringent requirements affecting the maintenance of records concerning individuals. See 5 U.S.C. § 552a. Subsection (b) sets forth eleven circumstances under which records concerning an individual can be disclosed without the individual's prior written consent. Subsection (e)(8) requires that there be "reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record." Subsection (g) establishes judicial remedies available to persons aggrieved under the Act. OMB guidelines are published at 40 Fed. Reg. 28948, et seq.
   Exhaustion of administrative remedies is required. See5 U.S.C. § 552a(g)(1). Jurisdiction for Privacy Act suits covers suits for both money and specific relief. Access to government records of an individual, and the amendment of such records, are provided for by 5 U.S.C. 552a(g). A plaintiff is entitled to a trial de novo. Jurisdiction includes express authorization for injunctive actions, both to prevent a government agency from withholding records and to compel their production. See 5 U.S.C. § 552a(g)(3). In an action brought for failure to maintain an individual's record with accuracy, or for failure to comply with any of the Act's other provisions in such a way as to have an adverse effect on the individual, the individual can recover damages if the agency acted intentionally or willfully. Damages can in no event be less than $1000 together with costs and reasonable attorney fees. Venue is set forth in 5 U.S.C. § 552a(g)(5), as is the limitations provision.
   If a court order is adverse and phrased as an injunction, a stay should be timely sought to preserve the right of appeal. It is important to furnish immediately to the Branch a copy of all opinions and orders entered.
   Awareness of the Privacy Act is also important during discovery in non-Privacy Act cases since documents requested in discovery in a variety of cases can be subject to the Privacy Act. This is particularly true in cases involving personnel issues or personnel files. Documents subject to the Privacy Act should not be produced in discovery until the Act's requirements involving disclosure of such information have been met. Release of documents subject to the Privacy Act may be authorized as a "routine use" under the Act (5 U.S.C. § 552a(b)(3)), which provides for the release of certain records to the Department of Justice or to parties in litigation. Many agencies have published routine uses for this purpose and the agency should be able to provide citations in the federal register to such publications.
3. 3. Right to Financial Privacy Act. There are no administrative remedies to be exhausted as a prerequisite to litigation under the Right to Financial Privacy Act. Jurisdiction for such suits covers actions for both money damages and specific injunctive relief. The Act prohibits any agency or department from obtaining (or any private "financial institution" as defined in 12 U.S.C. § 3401(1) from disclosing) the financial records of a financial institution's "customer" as defined in 12 U.S.C. § 3401(5), except where access is authorized by one of the express exceptions to the Act or is accomplished through one of the five access mechanisms mandated by the Act: (1) customer authorization; (2) administrative summons or subpoena; (3) search warrant; (4) judicial subpoena; or (5) formal written request.
4. 4. Government In The Sunshine Act. The Government in the Sunshine Act, 5 U.S.C. § 552b, sets forth specific requirements pertaining to notices of agency meetings and requirements for record keeping of such meetings. See also Edles, Berg and Klitzman. An Interpretive Guide to the Government in the Sunshine Act, Second Edition, 2005.
5. 5. Production of Documents of Other Departments and Agencies in Non-FOIA Litigation. On occasion, litigants in private lawsuits or state criminal cases may issue a subpoena for deposition or trial testimony, or a subpoena duces tecum requiring production of information or documents which a client agency deems confidential or otherwise privileged from disclosure. Protection against the compulsory disclosure of such documents or information is recognized in various circumstances. See 5 U.S.C. § 301; Jencks v. United States, 353 U.S. 657 (1957); United States v. Reynolds, 345 U.S. 1 (1953); Touhy v. Ragen, 340 U.S. 462 (1951); Bowman Dairy Co. v. United States, 341 U.S. 214 (1951); Saunders v. Great Western Sugar Co., 396 F.2d 794 (10th Cir. 1968).
   If a government employee served with such a subpoena seeks advice from the United States Attorney, he/she should be told to contact his/her own agency for instructions, because, if the agency does not object to compliance, the Department of Justice usually will not. If the agency wishes to object, however, it usually will have pertinent regulations (promulgated under 5 U.S.C. § 301, known as Touhy regulations), similar to the DOJ Touhy regulations at 28 C.F.R. § 16.21, et seq., instructing employees not to produce or testify unless authorized to do so by a designated official (usually the head of the agency or his/her designee).
   Failure to comply with such regulations is ordinarily recognized as a valid basis on which to refuse to produce documents or testify. See Touhy v. Ragen, 340 U.S. at 657; Saunders v. Great Western Sugar Co., 396 F.2d at 794. State courts also usually honor such regulations. See People v. Parham, 60 Cal.2d 378, 384 P.2d 1001,cert. denied, 377 U.S. 945, reh'g denied 379 U.S. 873 (1964). For the procedure to be followed in the event of an adverse decision, see North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C.), appeal dism., 386 F.2d 129 (4th Cir. 1967). For additional information about handling Touhy matters, see JM 1-6.220. Although JM 1-6.220 specifically addresses DOJ Touhy regulations, many of the legal principles discussed therein are applicable to Touhymatters that arise under other agencies’ regulations.
   Requiring compliance with such regulations is not considered to be a claim of privilege, and the regulations do not create a privilege against discovery. There are, however, several common law privileges available only to the government. These include the military or state secrets privilege, which is absolute if validly claimed, and the deliberative process, informant's, law enforcement evidentiary, and required reports privileges, which are qualified. There are also privileges available for certain types of presidential documents.
   In certain instances, a formal claim of privilege may be required to be made by the head of the agency involved. See United States v. Reynolds, 345 U.S. 1, 7-8 (1953); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss Jena, 40 F.R.D. 318 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir.), cert. denied,389 U.S. 952 (1967). It is not necessary to make a "formal" claim of privilege in objecting to production of documents, but it is necessary in opposing a motion to compel or moving to quash a subpoena. United States Attorneys should not make a formal claim of a privilege available only to the government in any case without approval from the Civil Division.
6. 6. Justice Department Materials and Witnesses. 28 C.F.R. §§ 16.21 to 16.28 regulate the production of DOJ information or records pursuant to subpoena or court demands when the United States is not a party to the lawsuit:
   (N)o employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person's official status without prior approval of the proper Department official in accordance with 16.24 and 16.25 of this partFor additional information about handling Department of Justice Touhy matters, see JM 1-6.220.

[updated April 2018]