Confidentiality of Documents and USCIS









ImageWe are asked quite frequently by individuals, and especially companies, whether the documents and statements they are giving to USCIS in support of visa applications are “confidential” or can anyone request and receive a copy of such papers.  The answer is complex, and involves the interplay of two statutes:  The Privacy Act of 1974 and the Freedom of Information Act.  The Privacy Act protects ALL records keep by all agencies from disclose except in certain situations (more on these below).  The Freedom of Information Act, on the other hand, opens up all documents to public inspection, except for documents that fall within its exceptions (which will not be open to the public).  So these statutes serve opposite purposes from each other, but do actually end up working in unison.

The Privacy Act has the following exceptions listed, which allow disclose of documents kept by all agencies:
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;  (2) required under section 552 of this title;  (3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;  (4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13;  (5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;  (6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;  (7) 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 or instrumentality 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;  (8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;  (9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;  (10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;  (11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(e) of Title 31.

As you can see, only in very limited situations can documents be released.  Most such exceptions are to allow the agency that has the records to use the records in its operations or for the government to use them for criminal or congressional investigations.  Under the Privacy Act, all documents given to USCIS are protected unless one of these exceptions apply.   The second document that deals with disclosures of such information is the Freedom of Information Act (commonly known as FOIA).  Generally FOIA requires agencies to release documents when requested by the public.  However, as with the Privacy Act, there are limits to FOIA requests.  Specifically, in the following situations, documents are exempted, if:

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;  (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;  (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;  (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;  (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or, (9) geological and geophysical information and data, including maps, concerning wells.

The important exception here are number (3) and (4).  Number (3) specifically exempts from being released all documents that other statutes clearly and unambiguously state should not be released and Number (4) specifically prohibiting the release of trade secretes and commercial or financial information obtained from a person.  Since the Privacy Act does specifically guarantee the privacy of documents given in support of an Immigration Application, the FOIA statute will not override this prohibition.  Further, even if it did, if the documents constituted trade secrets or commercial or financial information about the company, those records would still be protected from release directly by the FOIA statute.    However, some of the exceptions in the Privacy Act may also apply in certain situations.  If there is a specific Court order that the specific records be released, then the government will release those records.  The Attorney General’s office has specifically stated that a discovery request is NOT a Court Order that would compel such release of the documents.  The Court would have to issue an actual order requesting those specific documents be released by the Government.  However, if the Government is investigating you or your company for criminal wrongdoing, the records can be released to those agencies without court order.

I do wish to emphasis that the above is a general discussion of the privacy act and FOIA statutes and is not legal advice.  Every situation is different and specific situations would require individual consultations.

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