Investigation: Privacy Act and Criminal Investigations

Article excerpt

A missing person has been reported to your agency, with possible indications his disappearance was the result of foul play. The agency has had numerous prior dealings with John Doe as a transient and alcoholic- the first step is to check with the local "detox" center to see if he's currently receiving their services. The receptionist tells you they cannot release that information due to the Privacy Act.

Most seasoned investigators have learned ways to ask questions to successfully solicit useful information. When this doesn't work, a plea to the employee's common sense is usually the next step. This seldom works.

The Privacy Act of 1974 was crafted with obvious input from law enforcement, and outlines several circumstances and exceptions under which private information can be immediately released. Subsection 552 (a) addresses records maintained on individuals by public agencies. Section b, the conditions of disclosure, clearly states:

"No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency...". Unfortunately, this sole piece of language has been memorized and repeated by well-- meaning public servants who truly believe they are following the law. The quote concludes by stating, "unless disclosure of the record would be-," followed by no less than twelve specific exceptions under which information can lawfully be released. Sections (b)(7) and (b)(8) are of particular interest to law enforcement.

Section (b)(7) of the Privacy Act states information can be disclosed to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency has made a written request to the agency that maintains the record, specifying the particular portion desired and the law enforcement activity for which the record is sought.

While the written request portion may initially appear to be somewhat cumbersome, some agencies have developed a fill-in-the-blank form, which can be signed and faxed to any agency. The time it takes to send a fax is no longer than that of a phone call, and having a written document in hand will ease the mind of most public agency employees who are still reticent to release information. The Fairbanks Police disclosure release form, on departmental letterhead, contains all the relevant language.

The Privacy Act of 1974 permits the release of information under subsection (b), Conditions of Disclosure, which reads as follows: "No agency shall disclose any record which is contained in a system of records by any means of communication to any person or to another agency, except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains, unless disclosure of the record would be to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought. …