2.  PRIVACY RIGHTS AND DECEASED PERSONS

The Privacy Act and its legislative history are silent as to whether a decedent is an individual and whether anyone else may exercise the decedent's rights concerning records pertaining to him or her maintained by agencies. The Privacy Act's failure to provide specifically for the exercise of rights on behalf of decedents, coupled with the personal judgment implicitly necessary to exercise such rights, indicates that the Act did not contemplate permitting relatives and other interested parties to exercise Privacy Act rights after the death of the record subject. See Office of Management and Budget Privacy Act Guidelines, 40 Fed. Reg. 28949, 28951 (July 9, 1975).

Whether access to records pertaining to a decedent should be permitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, depends on the circumstances in each particular case. The FOIA would permit an agency to withhold if:

a. In the case of "personnel and medical and similar files, the disclosure . . . would be a clearly unwarranted invasion of personal privacy" under 5 U.S.C. § 552(b)(6); or

b. In the case of law enforcement investigatory records, the disclosure would "constitute an unwarranted invasion of personal privacy" under 5 U.S.C. § 552(b)(7)(C).

Demise of a record subject (ending Privacy Act protection which permits disclosure only when required by the FOIA) does not mean the privacy­protective features of the FOIA no longer apply. Public interest in disclosure must be balanced against the degree of invasion of personal privacy. An agency need not automatically, in all cases, "disclose inherently private information as soon as the individual dies, especially when the public's interest in the information is minimal." Kiraly v. Federal Bureau of Investigation, 728 F.2d 273, 277 (6th Cir. 1984).

As a final point, a decedent's records may pertain as well to other living individuals, and to the extent that the records are retrieved by their personal identifiers, their Privacy Act rights remain in effect. As to any records of a decedent requested under the FOIA, the degree to which the personal privacy of the decedent's relatives, or anyone else to whom the records pertain would be invaded must be considered in the FOIA balancing test mentioned above. See DoD 5400.7­R, paragraph 3­200, no. 6.

In applying the FOIA balancing test to the records of those individuals who remain missing or unaccounted for as a result of the Vietnam conflict, the privacy sensibilities of their family members should be considered as a clear and present factor that weighs against the public release of information. The release of information regarding these records should be limited to basic information such as name, rank, date of loss, country of loss, current status, home of record (city and state), and any other privacy information that the primary next of kin has consented to releasing.