The purpose of Giglio information file systems (“files” or “systems”) is to enable prosecuting offices to comply with their constitutional obligation to disclose potential impeachment information to defense counsel in federal criminal prosecutions. Giglio is the name of a United States Supreme Court precedent that imposes certain obligations on prosecutors to disclose potential impeachment information on federal law enforcement agency witnesses or affiants. The 2015 privacy impact assessment (PIA) reflects updates to the Department of Justice’s (“Department” or “DOJ”) Giglio policy. The PIA covers multiple individual Giglio information systems that are used by Department of Justice prosecuting offices and investigative agencies.
Prosecuting Offices
Although most of the Giglio systems are located within the various United States Attorneys’ Offices (USAOs), DOJ also has specialized litigation components with independent prosecutorial authorities that maintain Giglio systems. These components include the Criminal Division, National Security Division, Civil Rights Division, Antitrust Division, Environmental and Natural Resources Division, Tax Division, and Civil Division. The systems are designed to enable prosecuting offices to consistently and appropriately handle potential impeachment information relating to a federal, state, or local law enforcement witness who may testify in many different cases in federal court over a period of time. It is important to note that not all witnesses or affiants who testify on behalf of DOJ have a Giglio file. Even when a Giglio file is created, only potential impeachment information which is material to the defense is maintained:
a) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;
b) any past or pending criminal charge brought against the employee;
c) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;
d) any prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;
e) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any witness—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning
i. failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications.
(f) information that may be used to suggest that the agency employee is biased for or against a defendant (See U.S. v. Abel, 469 U.S. 45, 52 (1984)). The Supreme Court has stated, “[b]ias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’s self -interest.”; and
(g) information that reflects that the agency employee’s ability to perceive and recall truth is impaired.
Investigative Agencies
DOJ investigative agencies also maintain their own Giglio systems. The DOJ investigative agencies that have the authority to maintain their own Giglio information include the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, Office of the Inspector General, and Office of Professional Responsibility. In addition, other federal agencies having law enforcement agents may be deemed an investigative agency for purposes of Giglio requirements (e.g., the Department of Treasury, Internal Revenue Service, agents may be a necessary witness or affiant in a DOJ criminal prosecution in a tax case). These investigative agencies disclose to the prosecuting offices potential impeachment information of witnesses or affiants.
There are various types of Giglio files that are collected, maintained, used, or disseminated by the system. These files include potential witness impeachment information, such as records of disciplinary actions. For example, a file could contain specific instances of conduct that may attack the credibility of the witness, including reputation for truthfulness or veracity. This record could include prior court testimony or other statements made while under oath. Other types of Giglio information include prior inconsistent statements, reports reflecting witness variations, and other known conditions that could affect the witness’s bias, such as animosity toward a defendant, relationship with the victim, or known but uncharged criminal conduct. Giglio systems may also track requests and responses for Giglio reviews. Tracking systems provide an effective record-keeping functionality and permit the Department to keep track of access and dissemination.
Access to Giglio systems is limited to prosecutors who have a case-related or need to know basis. The Giglio Requesting Official within each prosecuting office will make a request to the appropriate official within an investigative agency for information. The Giglio Requesting Official will then search the files obtained from the investigative agency to determine if it contains any impeachable information. In the absence of this system, the impeachment information, and the analysis of it, would remain in the individual criminal case file in which the witness or affiant previously testified, or a general subject matter file that was not indexed by the witness’s name. The former practice made it difficult, if not impossible, to routinely retrieve this information for analysis and review when the same witness or affiant subsequently testified in a different case.
Each prosecuting office is permitted to maintain its own Giglio system that is to be directly accessed only by a few senior management personnel within that office. Potential impeachment information on federal law enforcement witnesses and affiants is compiled by prosecuting offices according to the procedures outlined in USAM 9-5.100. Typically, the process involves an inquiry and a request for impeachment information from the prosecutor directly to the individual witness or affiant, and also to the General Counsel’s office or manager/supervisor at the agency that employees that witness or affiant. Prosecutors follow similar procedures with regard to witnesses and affiants employed by federal law enforcement agencies not explicitly covered by USAM 9-5.100 and state and local law enforcement agencies.
Non-DOJ recipients serve as contract experts in their noted areas and assist in the analysis of the data. State Attorneys General staff may assist with joint investigations and other filings. Evidentiary information such as exhibits, affidavits, etc., which may be based on information produced during discovery, may also be shared by court order and/or local rules of evidence.
The National Security Division’s Foreign Agents Registration Act (FARA) system (hereinafter referred to as “system”) collects, stores, and transmits data about agents of foreign principals, as mandated by the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq. Under the Act, agents of foreign principals register with the U.S. Government and make periodic public disclosure of their relationship with the foreign principal, as well as submit information regarding their activities, receipts, and disbursements in support of those activities. The system then makes this data publicly available so that the U.S. Government and American people are informed of the source of information and the identities of persons attempting to influence U.S. public opinion, policy and laws.
FARA is a disclosure statute that requires persons in the United States who are acting as agents of foreign principals, and engaged in certain specified activities, to make periodic public disclosure of their relationship with the foreign principal, as well as disclosure of activities, receipts, and disbursements in support of those activities. The general purpose of the Act is to ensure that the American public and its lawmakers know the source of certain information intended to sway U.S. public opinion, policy, and laws, thereby facilitating informed evaluation of that information by the government and the American people. The FARA Unit of the Counterintelligence and Export Control Section (CES) in the National Security Division (NSD) is responsible for the administration and enforcement of the Act.
The type of information maintained and disseminated by the system includes information submitted by registrants required to register under FARA, some of which is personally identifiable information (PII), and for which 22 U.S.C. § 612 mandates disclosure. This includes the registrant’s name, nationality, principal business address, all other business addresses in the U.S. or elsewhere, and any residential addresses. If the registrant is a partnership, corporation or other organization, then the registrant must submit the above PII for all of the organization’s partners, directors, officers, and anyone performing functions of a director or officer. The Act also requires a statement describing the nature of the registrant’s business, the registrant’s employees’ names, and the name and address of every foreign principal for whom the registrant is acting or has agreed to act.
Most information is transmitted into the system by registrants through an electronic filing system. Registrants receive an account number and temporary password by mail to establish their online account. Then, through their online account, registrants upload to the FARA eFile application their registration package of all required documents and pay filing fees. After submission, FARA staff receives and processes all filings and payments, which includes document scan, quality control and review, data entry, fee application, and internal assignments. Documents are stored in the database and uploaded daily to the FARA website for public disclosure through the document search and quick search tools at www.fara.gov. Electronic registration documents are submitted over the Internet using secure hypertext transfer protocol (HTTPS). The information is then transmitted internally through the Justice Unified Telecommunications Network (JUTNET). If a person files electronically, they do not need to file a paper version; however, the FARA Unit receives some registration filings in paper form, including filing fee payments, which are often mailed or delivered in person. In these situations, FARA Unit personnel scan the filings into the data imaging system. Finally, on occasion, when registrants are having difficulties with the electronic filing system, they may receive permission to email registration documents to FARA Unit personnel and mail or hand deliver registration filing fees. Software will scan such emails for malicious components.
The public has access to registration statements, short-form registration statements, supplemental statements, exhibits, amendments, and copies of informational materials or other documents or information filed with the DOJ. The documents are reviewed, and redacted if necessary, when PII, such as date of birth, is inadvertently provided in the registration. The FARA Unit will redact all PII, as defined by the National Institute of Standards and Technology Special Publication 800-122 (NIST 800-122), unless the statute explicitly requires such PII to be disclosed. Thus, the public has access to all registration filings after the documents have been subject, when necessary, to a redaction process.
(Link: https://www.justice.gov/opcl/doj-privacy-impact-assessments)