Gonzalez & Waddington – Attorneys at Law

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Congressional Inquiries.  When a Member of Congress requests information related to a disciplinary case and such information may be protected by the Privacy Act (PA), the releasing authority must first determine the capacity in which the Member is requesting the information.  If a Member of Congress is requesting information on behalf of either House, or a committee or subcommittee thereof, regarding a matter within its jurisdiction, then a statutory PA exception permits release of the information.  DOD regulations govern the procedures for releasing information related to the official action of Congress.

If a Member of Congress requests information in a personal capacity or on behalf of a constituent, the statutory exception does not apply.  The request for information must be treated in the same manner as a request from any other individual.  If the information involves the privacy interest of the individual for whom the Member of Congress is making the request and such individual has provided the Member with written authorization and consent to release, then the information may be provided.  However, other Freedom of Information Act (FOIA) exceptions to disclosure, such as the exception related to information collected for law enforcement purposes, may limit disclosure.  If the information is requested personally by the Member of Congress or on behalf of a person other than the individual with the privacy interest (e.g. crime victim), then PA requirements must be balanced against FOIA concerns.  If release of the information is not required by FOIA and such release will be an unwarranted invasion of privacy, then the information may not be released.  Likewise, if a FOIA exception to disclosure applies, then disclosure will be limited.  Service regulations provide procedures for responding to requests from Members of Congress that are personal or on behalf of a constituent.

Court-Martial, Nonjudicial Punishment, and Administrative Actions:

General.  Release of information related to adverse personnel actions involves considerations of the relationship between the Freedom of Information Act (FOIA) and the Privacy Act (PA).  Where the action is not final, the primary consideration must be the fairness of the proceedings.  If the release of information may affect the impartiality of an adjudicator or reviewing authority, then such release should not occur.  Where the action is final and privacy interests are involved, FOIA and PA concerns must be reconciled.  If the FOIA requires disclosure of the information and such disclosure does not constitute a clearly unwarranted invasion of personal privacy, the PA does not bar disclosure.  Thus, under certain circumstances, FOIA provides an exception to the general rule that an individual’s consent is required to disclose PA protected information.  Finally, FOIA exceptions to disclosure, such as the limitation on providing information collected for law enforcement purposes, may apply.

Court-Martial.  Court-martial proceedings are generally open to the public and media.  Thus, information concerning action taken in open court, the results of court proceedings, and subsequent actions, such as clemency and appellate review, are not generally protected by the PA.  Accordingly, such information may usually be released.  Additionally, a written FOIA request is not needed prior to release of such information.  However, despite the public availability of court-martial information, a privacy interest may exist with respect to material that is “practically obscure.”  Such an interest may exist with respect to court-martial records from proceedings that occurred in the relatively distant past.  Thus, information related to recent cases may be readily releasable, while information related to older cases may require detailed review in order to determine whether it may be released.

Ucmjarticle120787 Gonzalez &Amp; Waddington - Attorneys At Law

Nonjudicial Punishment.  Unlike courts-martial, the imposition of nonjudicial punishment (NJP) and the hearings thereon are not open to the public.  Accordingly, release of information concerning NJP is restricted.  Under NJP procedures, the alleged offender may request that his or her personal hearing before the commander be “open to the public.”   Generally, this means to members of the command.  For good cause, commanders may also open personal hearings to members of the command.  When the NJP proceedings are open to members of the command imposing NJP, the results, including personal identifying information may be released to members of the command.  The justification for this is under both the “routine use” exception and the concept that no “disclosure” occurs where the information is already available to those to whom it is provided.

If NJP results are to be disclosed outside of the command, then FOIA and PA concerns must be reconciled.  In most cases, the privacy interest of the individual will outweigh the FOIA interest of informing the public about the functioning of its government.  In such cases, NJP information should not be released.  On the other hand, the circumstances of some cases may create a greater need to inform the public.  Specifically, where the misconduct for which NJP was imposed involves a government official’s violation of the public trust, disclosure can be justified by the need to inform the public and instill confidence in government operations and also by the benefit and deterrent effect that would result from public dissemination.  The balance in favor of disclosure is even higher when the misconduct involves high-ranking government officials.

Administrative Action.  Adverse administrative actions, such as administrative separation or non-punitive censure, are not matters of public record.  In most cases, disclosure of the character of separation or other administrative action will be an unwarranted invasion of privacy and the balance will weigh against disclosure.  On the other hand, as with NJP results, the circumstances of a given case may involve FOIA considerations that favor disclosure.

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