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Defense Privacy Board Advisory Opinions

DISCLOSURE OF RECORDS FROM A SYSTEM OF RECORDS TO THE NEXT OF KIN OF PERSONS MISSING IN ACTION OR OTHERWISE UNACCOUNTED FOR

A legal guardian appointed by a court of competent jurisdiction for a member missing in action or otherwise unaccounted for would be in the position of the member and have the same rights as the member. 5 U.S.C. 552a(h). In such a case, records contained in a system of records and relating to the missing member may be disclosed to third persons upon the written consent of the guardian. If no guardian has been appointed or an appointed guardian does not give written consent, such records may be disclosed only if authorized by 5 U.S.C. 552a(b).

For example, information relating to persons missing in action or otherwise unaccounted for may be disclosed "pursuant to the order of a court of competent jurisdiction." 5 U.S.C. 552a(b)(11). [For a discussion of "order of a court of competent jurisdiction," see Defense Privacy Board Advisory Opinion 34.] In a case involving the families of military personnel missing in action, one court ordered, in part, that next of kin receiving governmental financial benefits which could be terminated by a status review be afforded "reasonable access to the information upon which the status review will be based." McDonald v. McLucas, 371 F. Supp. 831, 836 (S.D.N.Y. 1974). Since a status review is likely to require access to almost all significant information in a system of records pertaining to a member missing in action, this order constitutes sufficient authority under the Privacy Act for disclosure of almost any personal records of interest.

Information in a system of records also may be available to any person under the Freedom of Information Act (FOIA) if disclosure of the records concerned does not constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. 552(b)(6); 5 U.S.C. 552a(b)(2). In determining what information must be disclosed under this standard, a balancing test weighing the public interest in disclosure against the potential invasion of personal privacy should be conducted. See DoD 5400.7?R, paragraph 3?200, No. 6. See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed.2d 11 (1976); Church of Scientology v. Department of Defense, 611 F.2d 738 (9th Cir. 1979). Because facts and needs will differ in each case, the balancing test may require disclosure of information in one circumstance but not in another. See Getman v. National Labor Relations Board, 450 F.2d 670 (D.C. Cir. 1971); Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973); Wine Hobby, USA, Inc. v. Bureau of Alcohol, Tobacco and Firearms, 502 F.2d 133 (3rd Cir. 1974).

Due to the unusual circumstances involved when a service member is missing in action or otherwise unaccounted for, next of kin may have a more compelling case for disclosure of a requested record than would other third parties. However, each request must be evaluated on its own merits.

Should the record subject's status be changed to "deceased," see Defense Privacy Board Advisory Opinion 2 concerning application of the Privacy Act and FOIA to decedents' records.