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DPCLO Guidance

Defense Privacy Board Advisory Opinions


A subpoena signed by a clerk of a Federal or State court, without specific approval of the court itself, does not comprise an "order of a court of competent jurisdiction" for purposes of nonconsensual disclosures under the Privacy Act, 5 U.S.C. § 552a(b)(11). The overall scheme of the Privacy Act's nonconsensual disclosure provisions in subsection (b) is to balance the need for disclosure against the potential harm to the subject of the disclosure. Even though a subpoena signed by a clerk of the court is issued in the name of the court and carries with it the threat of contempt to those who ignore it, there is no guarantee that it is based upon a careful consideration of the competing interests of the litigant and the individual who is the subject of the record. It is common practice for a subpoena to be issued in blank by a court clerk to a party requesting it, who then fills in the blanks as he or she chooses.

To allow nonconsensual disclosure pursuant to a subpoena--grand jury or otherwise-–would permit disclosure of protected records at the whim of any litigant, whether prosecutor, criminal defendant, or civil litigant. Therefore, disclosure of records under subsection (b)(11) requires that the court specifically order disclosure. If there is a threat of punishment for contempt for ignoring a subpoena not approved by the court, the subpoena should be challenged by a motion to quash or modify.