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Defense Privacy Board Advisory Opinions

PRIVACY ACT APPLICABILITY TO LEGAL MEMORANDA MAINTAINED IN A SYSTEM OF RECORDS

The Privacy Act specifically denies authority for individual access to any information compiled in reasonable anticipation of a civil action or proceeding. 5 U.S.C. § 552a(d)(5). Not only is an attorney's "work product" protected from access under the Act, but any information compiled in reasonable anticipation of a civil action or proceeding is protected. The term "civil proceeding" covers quasi–judicial and preliminary judicial steps which are the civil counterparts to criminal proceedings occurring before actual criminal litigation. Office of Management and Budget Privacy Act Guidelines, 40 Fed. Reg. 28949, 28960 (July 9, 1975). Once information is prepared in reasonable anticipation of a civil action or proceeding, subsection (d)(5) continues to protect the material regardless of whether litigation is initiated, dropped or completed.

A determination as to whether material is prepared in anticipation of a civil action or proceeding must be made on an ad hoc basis for each document in question. In making this determination, all circumstances must be considered, including intent of the author at the time a document was prepared and the presence or imminence of a civil action or proceeding. Note: This provision applies to access under the Privacy Act only and has no effect on access, if any, available under the Freedom of Information Act, 5 U.S.C. § 552, or rules of civil procedure. Further, this determination does not apply to work product not maintained in a system of records retrieved by a personal identifier.