Releasing personnel information on Soldiers might violate federal law
February 28, 2014
By David Vergun
WASHINGTON (Army News Service, Feb. 28, 2014) -- Releasing unauthorized portions of a Soldier's personnel records is a violation of federal law and could result in fines or prison sentences.
There have been cases recently where Soldiers or Army civilian employees have unintentionally violated the Privacy Act, said Peter A. Robinson, chief of the Freedom of Information and Privacy Office, Army Human Resources Command, or HRC, Fort Knox, Ky.
HRC is responsible for maintaining all Army personnel records of active and reserve components as well as veterans.
Commands throughout the Army also maintain personnel records and Robinson said he wants to ensure these human resource professionals are aware of important privacy concerns before responding to a records request.
Personnel records are covered under the federal Privacy Act and the Freedom of Information Act or FOIA. These statutes stipulate what portions of records can and can't be released and to whom.
Even acknowledging the existence of certain derogatory or adverse personnel information could violate the statutes, he said. For instance, telling someone "we found the information you're seeking but can't release it," is a violation of the statutes.
Robinson said the correct response to such a query would be to say "we can neither confirm nor deny" the existence of such records. The response is especially important when a requester is specifically seeking derogatory information. One example would be if a requestor wanted to know if a Soldier had ever received non-judicial punishment.
Robinson emphasized that if there are any doubts about what to do, Soldiers and civilian employees should contact their unit legal office, their local FOIA office, or the HRC FOIA office.
While not a comprehensive list, some of the information that can usually be released includes a Soldier's name, rank, occupational specialty, duty status, service dates, duty assignments, awards and military education, he said.
Information that is not releasable, he said, includes personal phone numbers or email addresses, reasons why a Soldier was discharged, medical information, information regarding adverse administrative actions and demographic material such as age, religion, marital status, children and relatives.
Rather than struggling to figure out what's releasable and what's not, Robinson advised those who process third-party FOIA requests seeking personnel information to call HRC's FOIA office at 502-613-4400.
Robinson provided a few examples of requests that HRC does not routinely handle.
Requests for criminal investigative files from civilian law enforcement agencies will normally be fielded by the Army's Crime Records Center in Quantico, Va., he said.
Those who seek child support enforcement, and who need information about a Soldier's status, should contact the Federal Parent Locator Service. That service is part of the Office of Child Support Enforcement, which is a branch of the Department of Health and Human Services.
Employers can request information pertinent to a position or job applicant, but Robinson said it would benefit employers to obtain the consent of the Soldiers or veterans first to gain greater access to material.
Other common requests are court orders or subpoenas seeking personnel records. Soldiers and civilians whose duties include processing personnel files for release should exercise caution when these requests are made because those documents might not carry the proper scope of authority, he said.
If a subpoena is signed by an attorney and not a judge, for example, that would be insufficient authority, Robinson said. Another red flag would be a court order signed by a traffic court magistrate, when the related lawsuit is actually related to a divorce action. That would be a jurisdictional violation.
Another common request comes from people seeking default judgment against Soldiers. This relates to cases that go to court and require the determination of the status of Soldiers -- whether or not they are on orders, duty status, duty station and so on.
In that particular category, he said, Soldiers are afforded certain protections under the Soldiers' Civil Relief Act.
Again, Robinson emphasized, HR professionals in possession of personnel records should seek legal advice or HRC assistance prior to releasing records to a third party.
A particularly sensitive type of FOIA request involves casualty assistance cases.
FOIA officers need to be familiar not only with Army Casualty Assistance Regulation 600-8-1, he said, they also need to understand the supplement to that regulation, Army Directive 2010-02.
The directive is a guide on how information is sanitized for release to the primary next of kin, he said, meaning not releasing such things like sensitive material affecting national security.
Robinson pointed out that there have been cases where release of information to primary next of kin has been delayed due to not following the directive, which spells out the roles and responsibilities of the releasing authority.
Those delays were unacceptable, he emphasized.
Personnel at HRC are familiar with handling all kinds of FOIA requests, Robinson said, and they'll try to expedite the release of records and work with people to get them what they need.
Often, they will even call the requester to get clarification or more information rather than denying the request. Assisting the public is something they take pride in accomplishing, he said.
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