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The original documents are located in Box 18, folder "1974/12/31 S3418 Privacy Act of
1974 (2)" of the White House Records Office: Legislation Case Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
Digitized from Box 18 of the White House Records Office Legislation Case Files
at the Gerald R. Ford Presidential Library
93D CONGRESS
2d Session
}
HOUSE OF REPRESENTATIVES
a
REPORT
No. 93-1416
PRIVACY ACT OF 1974
OCTOBER 2, 1974.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. MOORHEAD of Pennsylvania, from the Committee on Government
Operations, submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany H.R. 16373]
The Committee on Government Operations, to whom was referred
the bill (H.R. 16373) to amend title 5, United States Code, by adding
a section 552a to safeguard individual privacy from the misuse of
Federal records and to provide that individuals be granted access to
records concerning them which are maintained by Federal agencies,
having considered the same, report favorably thereon with an amend-
ment and recommend that the bill as amended do pass.
The amendment to the text of the bill strikes out all after the enact-
ing clause and inserts a substitute text which appears in italic type in
the reported bill.
DIVISIONS OF THE REPORT
Summary and purpose.
Background.
Committee action and vote.
Discussion:
Definitions.
Conditions of disclosure.
Accounting of certain disclosures.
Access to records.
FORD LIBRARY & GERALD
Agency requirements.
Agency rules.
Civil remedies.
Rights of legal guardians.
Criminal penalties.
General exemptions.
38-006
2
3
Specific exemptions.
Archival records.
may recover actual damages and costs and attorney fees if the
Annual report.
agency's infraction was willful, arbitrary, or capricious.
Technical changes.
10. Makes unlawful possession of or disclosure of individually
Effective date.
identifiable information by a government employee punishable
Cost estimate.
by a fine not to exceed $5,000.
Agency views.
11. Provides that any person who requests or obtains such a
Section-by-section analysis.
record by false pretenses is subject to a fine of not to exceed
Changes in existing law made by the bill, as reported.
$5,000.
Appendix: Correspondence regarding cost estimate.
12. Sets forth statutory provisions relating to archival records;
Additional views.
requires annual report from President on agency uses of exemp-
SUMMARY AND PURPOSE
tions; and provides that the law would become effective 180 days
following enactment.
H.R. 16373 prescribes legislative guidelines within the framework
Hearings and investigations by subcommittees of the House Gov-
of the Freedom of Information Act (5 U.S.C. 552) to protect the
ernment Operations Committee over the past decade have revealed
privacy of individuals by regulating the Federal Government's collec-
major violations of the privacy of individual American citizens by
tion, maintenance, use, or dissemination of personal, identifiable
the Federal Government in its growing collection and use of personal
information.
data furnished by citizens for specific governmental purposes. Accel-
In summary, the bill:
erated data sharing of such personally identifiable information among
1. Permits an individual to have access to records containing
increasing numbers of Federal agencies through sophisticated auto-
personal information on him kept by Federal agencies for pur-
mated systems, coupled with the recent disclosures of serious abuses
poses of inspection, copying, supplementation and correction
of governmental authority represented by the collection of personal
(with certain exceptions, including law enforcement and national
dossiers, illegal wiretapping, surveillance of innocent citizens, misuse
security records).
of income tax data, and similar types of abuses, have helped to create
2. Allows an individual to control the transfer of personal
a growing distrust, or even fear of their Government in the minds of
information about him from one Federal agency to another for
millions of Americans.
non-routine purposes by requiring his prior written consent.
H.R. 16373 provides a series of basic safeguards for the individual
3. Makes known to the American public the existence and
to help remedy the misuse of personal information by the Federal
characteristics of all personal information systems kept by every
Government and reassert the fundamental rights of personal privacy
Federal agency.
of all Americans that are derived from the Constitution of the United
4. Prohibits the maintenance by Federal agencies of any records
States. At the same time, it recognizes the legitimate need of the Fed-
concerning the political and religious beliefs of individuals unless
eral Government to collect, store, use, and share among various agen-
expressly authorized by law or an individual himself.
cies certain types of personal data. This information includes income
5. Limits availability of records containing personal informa-
tax returns, Social Security records, veterans' medical and service
tion to agency employees who need access to them in the perform-
records, civil service records, census data, economic statistics, govern-
ance of their duties.
mental payroll records, law enforcement records, and other similar
6. Requires agencies to keep an accurate accounting of transfers
types of personally identifiable information about many millions of
of personal records to other agencies and outsiders and make
individuals.
such an accounting available, with certain exceptions to the in-
H.R. 16373 provides that each agency covered by it administer its
dividual upon his request.
provisions independently, subject to the guidelines created by law and
7. Requires agencies, through formal rulemaking. to list and
agency regulations implementing each operative part. Regulations are
describe routine transfers and establish procedures for access by
subject to standard rulemaking requirements of the Administrative
FORD
individuals to records about themselves, amending records, han-
Procedure Act (title 5, section 553, United States Code).
dling medical information, and charging fees for copies of
Like the Freedom of Information Act, H.R. 16373 also recognizes
documents.
that certain areas of Federal records are of such a highly sensitive
GERALD
8. Makes it incumbent upon an agency to keep records with such
nature that they must be exempted from its provisions. The measure
accuracy, relevance, timeliness and completeness as is reasonably
provides a general exemption from most of the bill's operative provi-
necessary to assure fairness to the individual in making determina-
sions to systems of records maintained by the Central Intelligence
tions about him.
Agency and those used for criminal justice purposes such as computer-
9. Provides a civil remedy by individuals who have been denied
ized systems of the National Crime Information Center (NCIC),
access to their records or whose records have been kept or used
maintained by the Federal Bureau of Investigation, and other Fed-
in contravention of the requirements of the act. The complainant
eral criminal history file systems. Other committees of the Congress
5
4
what into hiding. Terms such as "security risk," "loyalty oaths,"
have been studying this aspect of the privacy issue and currently have
"pinko," and "guilt by association" came into common usage during
pending separate bills to provide safeguards in the criminal justice
what later became known as the "McCarthy era" of the early half of
information area.
the 1950s. Many Americans were required to defend publicly their
H.R. 16373 also permits the head of an agency to exempt certain
loyalty during "star-chamber" proceedings, often despite years of
other types of record systems, subject to his written determination
service to our Nation during war and peacetime. Indiscriminate use
of the reasons to be published in the Federal Register. These include
of dubious "informers," wiretapping, surveillance, neighborhood
systems of records that-(1) are subject to withholding under section
snooping, and other flagrant invasions of personal privacy were seen
552(b) (1) of the Freedom of Information Act, relating to classified
more and more.
national defense or foreign policy information; (2) consist of certain
In the 1960s the former Special Subcommittee on Government In-
types of investigatory material compiled for law enforcement pur-
formation of this committee launched extensive investigations into
poses; (3) relate to protective services rendered the President of the
the practice of telephone monitoring and the use of so-called "lie de-
United States and others, such as those records maintained by the
tectors" by Federal agencies. Hearings, studies and reports based on
Secret Service; and (4) are required by other statutes to be main-
these investigations revealed numerous examples of privacy invasion
tained and used solely as statistical reporting or research records.
affecting Federal employees and the public in their dealings with
Under the provisions of this legislation, however, Federal agencies
Federal agencies.¹
(even those to which these exemptions apply) would be required to
Late in 1964, the chairman of the Government Operations Commit-
publish annually in the Federal Register certain identifying char-
tee created a Special Subcommittee on Invasion of Privacy, which
acteristics about virtually all systems of records under their control
began inquiries into Federal agency investigative activities, the pro-
from which personally identifiable information could be retrieved.
posed establishment of a National Data Bank by the government, com-
The objective of the bill is that there be no "secret" government system
puterized personal recordkeeping, and related privacy matters. Hear-
of records containing personal information about individuals.
ings were held during 1965 and 1966 into such issues and a report,
Also like the Freedom of Information Act, H.R. 16373 provides for
concentrating on the National Data Bank concept was issued by the
the exercise of civil remedies by individuals against the Federal Gov-
Committee in 1968.2 The Special Subcommittee also held hearings in
ernment through the Federal courts to enforce their rights, with the
1968 on the privacy abuses inherent in the operation of private com-
burden of proof resting on the government. Provision is made for the
mercial credit reporting organizations.³ The Foreign Operations and
collection of actual damages by the individual against the govern-
Government Information Subcommittee of this Committee in 1970
ment if the infraction was willful, arbitrary, or capricious, and the
updated the earlier studies and reports on Federal agency telephone
court may award the complainant court costs and attorney fees in its
monitoring practices.4
discretion. Penalties are also provided for the unauthorized knowing
Increasing concern over invasion of privacy during the 1960s re-
and willful disclosure of individually identifiable material by a govern-
sulted in Congressional efforts to deal with aspects of the problem on
ment officer or employee by a fine of not more than $5,000. Criminal
a piecemeal basis. The enactment of the Fair Credit Reporting Act
penalties and fines would be imposed on persons requesting or obtain-
of 1970 was directed at many of the privacy abuses uncovered by the
ing any such individually identifiable record under false pretenses.
Special Subcommittee on Invasion of Privacy two years earlier.5 The
H. R. 16373 attempts to strike that delicate balance between two
investigation of military surveillance over American political dis-
fundamental and conflicting needs-on the one hand, that of the
sidents by the Senate Subcommittee on Constitutional Rights headed
individual American for a maximum degree of privacy over personal
by Senator Ervin revealed yet another dimension of abuses during the
information he furnishes his government, and on the other, that of
late 1960's involving intelligence gathering activities that violated
the government for information about the individual which it finds
necessary to carry out its legitimate functions.
1 H. Rept. 1215, 87th Cong., 1st sess. "Availability of Information from Federal Depart-
ments and Agencies (Telephone Monitoring),' Sept. 19, 1961. H. Rept. 1898, 87th Cong.,
2d sess. "Availability of Information from Federal Departments and Agencies (Telephone
BACKGROUND
Monitoring-Second Review) June 22, 1962. "Use of Polygraphs by the Federal Govern-
ment (Preliminary Study), Committee Print, 88th Cong., 2d sess., Apr., 1964. Hearings,
Foreign Operations and Government Information Subcommittee. 88th Cong., 2d sess.,
Public and Congressional concern over an increasing trend within
"Use of Polygraphs as 'Lie Detectors' by the Federal Government.' Parts 1-4, Apr. and
May, 1964. Parts 5-6, May and Aug., 1965. H. Rept. 198, 89th Cong. 1st SPSS. "Use of
our government to snoop into virtually every segment of our society is
Polygraphs as 'Lie Detectors' by the Federal Government." part 1. Mar. 22. 1965 H.
not new.
Rept. 2081. 89th Cong., 2d sess., "Use of Polygraphs as 'Lie Detectors' by the Federal
Government,' part 2, Sept. 26, 1966.
George Orwell's famous book 1984, published a generation ago,
2 Hearings, Special Subcommittee on Invasion of Privacy, "Special Inquiry on Invasion
focused public attention on the fictional fishbowl existence of human
of Privacy,' part 1, June and September 1965 part 2. May 1966. "The Computer and
Invasion of Privacy," July 1966. H. Rept. 1842, 90th Cong., 2d sess., "Privacy and the
life in the "Big Brother" era and the potential threats to any free
National Data Bank Concept,' Aug. 2, 1968.
3 Hearings. Special Subcommittee on Invasion of Privacy. 90th Cong., 2d sess., "Com-
system posed by some political-technical-social innovations.
mercial Credit Bureaus," March 1968, hearings, "Retail Credit Co. of Atlanta, Georgia,"
During the "cold war" period of the late 1940s and 1950s, wide-
May 1968.
Availability of Information from Federal Departments and Agencies (Telephone
spread abuses engulfed various governmental and private efforts to
Monitoring-Third Review)" Committee Print. 91st Cong., 2d sess., December 1970.
5 Public Law 91-508 15 U.S.C. 1601 et seq.
ferret out alleged "subversives." Intellectual dissent was driven some-
6
7
basic privacy rights.6 Such actions were prompted by the rash of civil
During this same period, Elliott Richardson, then Secretary of
disturbances and racial and political unrest on college campuses.
Health, Education and Welfare, named an Advisory Committee on
A survey and hearings by the Subcommittee on Administrative
Automated Personal Data Systems to make an intensive study of the
Practice and Procedure of the Senate Judiciary Committee in 1965,
impact of computer data banks on individual privacy. Its detailed re-
1966, and 1967 had already explored such areas as electronic eaves-
port, "Records, Computers, and the Rights of Citizens," was published
dropping, wiretapping, the Federal Government's collection of per-
in 1973 and recommended the enactment of Federal legislation guar-
sonal data, lie detectors, surveillance activities, and other privacy is-
anteeing to all Americans a "code of fair information practices." 11
sues. In a November, 1967, publication entitled "Government Dossiers
H.R. 16373 embodies the major principles of these recommendations
(Survey of Information Contained in Government Files)" that sub-
as they apply to an individual's access to records in the Federal
committee reported the results of a survey of Federal agencies as to the
Government.
types of information collected and maintained by government on
Late in 1972, meanwhile, the Foreign Operations and Government
individuals. The results of this survey were important in identifying
Information Subcommittee of this committee began an investigation
data systems that could be subject to regulation and in the subsequent
of a comprehensive report the President's Domestic Council proposing
drafting of legislation to curb governmental privacy abuses.⁷
a nationwide system of computer and communications technology to
Also during this same period, legislation was first considered to
create "wired cities" and a "wired Nation." The report, entitled "Com-
protect the Constitutional rights to privacy of Federal employees.
munications for Social Needs; Technological Opportunities," was pre-
The Ervin bill has been passed by the Senate during each of the past
pared in 1971. Although the report was formally rejected, according
several Congresses, but it has never been acted upon in the House.⁸
to a White House spokesman, the "Big Brother" implications were
Much of the Congressional investigative and legislative activity in
another ominous indication of the possible threats to individual
recent years to deal with the rising tide of privacy-related abuses in
privacy in America. This investigation led to broad investigative
the public and private sectors has been spear-headed by the Senate
hearings by the Subcommittee into advanced information technology
Constitutional Rights Subcommittee. However, other types of legisla-
and the use of information systems by the Federal Government. These
tion to assure individual safeguards against the misuse of personal
hearings began in April 1973, and concluded early in 1974. They were
data held by Federal agencies was being introduced in the House by
a useful adjunct to the legislative hearings on H.R. 16373 and its leg-
Representative Koch and many other Members. Hearings were held in
islative forerunners, which they closely paralleled.¹²
June 1972 on such legislation (H.R. 9527) by the Foreign Operations
Another related investigation affecting individual privacy was also
and Government Information Subcommittee of this committee, but
conducted by the Subcommittee during this same period. It involved
no further action was taken before adjournment of the 92nd Congress.
the issuance of a Presidential Executive order in January 1973 to
The bill was the forerunner of revised and separate versions intro-
permit the Agriculture Department to inspect some 3 million income
duced by many other Members of the House in 1973 and 1974, on
tax returns of persons having farming operations for the purpose of
which H.R. 16373 is based.9
compiling special mailing lists to make statistical surveys. Hearings
A study by the National Academy of Sciences Project on Computer
were held in May and August 1973. The order aroused widespread
Databanks was also published in 1972. Entitled "Databanks in a Free
public concern and opposition and was strongly criticized in the sub-
Society," this study outlined what the use of computers is actually
sequent unanimous report issued by the Committee in October 1973.¹³
doing to record-keeping processes in the United States, and what the
In the interim, the Internal Revenue Service had postponed imple-
growth of large-scale databanks-both manual and automated-im-
mentation of the order and it was finally rescinded in the spring of
plies for the individuals' constitutional right to privacy and due
1974.14
process.¹⁰
The growing concern of Americans of all walks of life to the threat
of a "Big Brother" society well in advance of 1984 has been reflected
6 For a detailed summary of Army surveillance and intelligence activities over civilians,
see article by Christopher H. Pyle, "CONUS Revisited: The Army Covers Up" in a collec-
in the Congress. During the last two years, more than 100 Members
tion of materials compiled and published as a Committee Print by the Congressional
Research Service, Library of Congress relating to the 1971-1972 Intercollegiate debate
of Congress of both parties and of all shades of political ideology have
topic, "Resolved: That More Stringent Control Should be Imposed Upon Government
Agencies Gathering Information About United States Citizens." H. Doc. 92-167, pp.
11 "Records, Computers, and the Rights of Citizens." a report of the Secretary's Advisory
207-218.
Committee on Automated Personal Data Systems. U.S. Department of Health, Education,
7 Ibid., "Survey of Information Contained in Government Files," pp. 33-39.
and Welfare, July 1973. DHEW Publication No. (0S)73-94. See "Summary and Recom-
8 Ibid. The Congressional Research Service compilation included a legislative history
mendations," p. xxiii.
of Congressional action involving various Ervin bills; see pp. 101-115, "S. 782-A Bill to
Hearings, Foreign Operations and Government Information Subcommittee, 93d Cong.,
Protect the Constitutional Right to Privacy of Federal Employees," by Robert M. Foley
1st and 2d sess., "Federal Information Systems and Plans-Federal Use and Develop-
and Harold P. Coxson: originally copyrighted and published in the American University
ment of Advanced Information Technology" (Part 1, April 1973); (part 2, June and
Law Review, vol. 19, June-August 1970, pp. 532-549.
July 1973) "Federal Information Systems and Plans-Implications and Issues" (part 3,
Hearings, Foreign Operations and Government Information Subcommittee, "Records
January and February 1974).
Maintained by Government Agencies," on H.R. 9527 and related bills; 92d Cong., 2d sess.,
13 Hearings, Foreign Operations and Government Information Subcommittee, 93d Cong.,
June 1973 'Access to Records." on H.R. 12206 and related bills; 93d Cong., 2d sess.,
1st sess., "Executive Orders 11697 and 11709 Permitting Inspection by the Department of
February, April, and May 1974.
Agriculture of Farmers' Income Tax Returns," May and August 1973; H. Rept. 93-598,
10 Alan F. Westin and Michael A. Baker, Databank in a Free Society, report of the
93d Cong., 1st sess., "Information from Farmers' Income Tax Returns and Invasion of
Project on Computer Databanks, Computer Science and Engineering Board, National
Privacy," Oct. 18, 1973.
Academy of Sciences. New York: Quadrangle Books, 1972. For a summary of the report,
F.R. 1974 additional attention on invasion of privacy aspects of the
see Hearings, Foreign Operations and Government Information Subcommittee, "Federal
Executive orders was focused by the Domestic Council Committee on the Right of Privacy,
Information Systems and Plans-Implications and Issues," part 3. 93d Cong., 2d sess,
headed by then Vice President Ford.
January and February 1974. Pp. 1190-1196.
9
8
personal conversations within the Oval Office of the White House as
introduced or co-sponsored legislation to impose effective safeguards
well as political surveillance, spying, and "mail covers."
on both government and business in their collection and use of per-
Other important support for prompt action to preserve the indi-
sonal data.
vidual's right to privacy from further erosion has come from individ-
In June 1974, the Foreign Operations and Government Informa-
tion Subcommittee of this committee held extensive hearings on the
ual computer companies and trade associations representing every
Federal Government's telephone monitoring practices and the use of
segment of the American computer industry. These experts presented
"lie detectors" and other similar newer devices, thus updating the
testimony stressing the importance of privacy and the safeguarding
earlier Subcommittee studies in these areas during the 1960s.15 These
of the integrity of stored data on individuals during the Foreign
Operations and Government Information Subcommittee's hearings on
hearings also paralleled consideration of H.R. 16373 during its markup
information technology early in 1974. 18 A recent nationwide IBM in-
stages.
Former President Nixon's State of the Union Message to Congress
stitutional advertisement, entitled "Four Principles of Privacy," en-
on January 30, 1974, also took note of the need to protect individual
dorsed these basic purposes as "sound public policy" cornerstones: 19
privacy. He said: 16
1. Individuals should have access to information about
One of the basic rights we cherish most in America is the
themselves in record-keeping systems. And there should be
some procedure for individuals to find out how this informa-
right of privacy. With the advance of technology, that right
tion is being used.
has been increasingly threatened. The problem is not simply
one of setting effective curbs on invasions of privacy, but even
2. There should be some way for an individual to correct
or amend an inaccurate record.
more fundamentally one of limiting the uses to which essen-
tially private information is put, and of recognizing the basic
3. An individual should be able to prevent information
from being improperly disclosed or used for other than au-
proprietary rights each individual has in information con-
cerning himself.
thorized purposes without his or her consent, unless required
by law.
Privacy, of course, is not absolute; it may conflict, for
example, with the need to pursue justice. But where conflicts
4. The custodian of data files containing sensitive informa-
occur, an intelligent balance must be struck.
tion should take reasonable precautions to be sure that the
data are reliable and not misused.
One part of the current problem is that as technology has
increased the ability of government and private organizations
As they apply to record-keeping activities of the Federal Govern-
to gather and disseminate information about individuals, the
ment, these are also among the basic principles of privacy protection
safeguards needed to protect the privacy of individuals and
that are contained in H.R. 16373.
communications have not kept pace. Another part of the
The broad principles involved in what is conveniently called "the
problem is that clear definitions and standards concerning
individual right of privacy" are deeply rooted in our history and de-
the right of privacy have not been developed and agreed upon.
rived from the Bill of Rights of the United States Constitution. The
fourth amendment to the Constitution was written as the result of
To carry forward these efforts he established on February 23, 1974,
the American colonial experience with warrants and writs issued un-
a cabinent-level "Committee on the Right of Privacy" within the
White House's Domestic Council headed by then Vice President Gerald
der King George III of England which often gave his officers an
R. Ford. At its July 10, 1974, meeting, that committee urged the enact-
excuse to search anyone, anywhere, any time. Even then an English
ment of privacy legislation embodying the principles contained in
Chief Justice-Pratt, later Lord Camden -in commenting upon such
a search conducted against John Wilkes, said; 20
H.R. 16373, along with a number of other important "privacy initia-
tive" measures.¹⁷
To enter a man's house by virtue of a nameless warrant,
Additional impetus in Congress to enact privacy safeguards into
in order to procure evidences, is worse than the Spanish In-
law has resulted from recent revelations connected with Watergate-
quisition-a law under which no Englishman would wish
related investigations, indictments, trials, and convictions. They in-
to live an hour.
cluded such activities as the break-in at the Democratic National Com-
In their famous 1890 Harvard Law Review article "The Right to
mittee's headquarters in June 1972, the slowly emerging series of
Privacy," Samuel Warren and Louis D. Brandeis concluded 21
revelations of "White House enemies' lists," the break-in of the office
of Daniel Ellsberg's psychiatrist, the misuse of CIA-produced "per-
It would doubtless be desirable that the privacy of the
sonality profiles". on Ellsberg, the wiretapping of the phones of gov-
individual should receive the added protection of the crim-
inal law, but for this, legislation would be required
The
ernment employees and news reporters, and surreptitious taping of
18 See Hearings, "Federal Information Systems and Plans," op. cit., part 3, testimony
15 Hearings, Foreign Operations and Government Information Subcommittee, 93d Cong.,
from technical experts in information system industry.
2d sess., "The Use of Polygraphs and Similar Devices by Federal Agencies," June 1974
19 "IBM Reports-Four Principles of Privacy," full page advertisement, Newsweek,
"Telephone Monitoring Practices by Federal Agencies," June 1974.
July 8, 1974, p. 48.
16 Congressional Record, Jan. 30, 1974 (daily edition), p. H372.
20 Hearings, Special Subcommittee on Invasion of Privacy, "Special Inquiry on Invasion
FORD
17 Domestic Council Committee on the Right of Privacy, "Fact Sheet on Meeting of
of Privacy,' op. cit., p. 4.
Committee, issued July 10, 1974, see "Proposed Initiative No. 9," p. 4.
21 4 Harvard Law Review 193 (1890).
H. Rept. 93-1416-2
10
11
common law has always recognized a man's house as his
Public hearings on specific legislative proposals related to H.R.
castle, impregnable, often, even to its own officers engaged in
16373 were held by the Subcommittee in June 1972, and in February,
the execution of its commands. Shall the courts thus close
April, and May 1974, on a number of revised privacy measures-H.R.
the front entrance to constituted authority, and open wide
12206, H.R. 12207, H.R. 13303, H.R. 13304, H.R. 13872, H.R. 14493,
the back door to idle or prurient euriosity
etc.
Almost 40 years later, Justice Brandeis, in his famous dissent in
Subcommittee markup sessions were held in May, June, and July
the case of Olmstead V. United States, set forth the basic Constitu-
to draft effective and workable language to reach a balance between
tutional principles of individual privacy: 22
the individual's rights to privacy and the government's need for per-
sonal information. During this period, much of the technical detail
The makers of our Constitution undertook to secure con-
of H.R. 16373 was worked out in informal meetings among the Sub-
ditions favorable to the pursuit of happiness. They recog-
committee's staff, the assistant minority counsel for the Committee,
nized the significance of man's spiritual nature, of his feel-
officials of the Office of Management and Budget, and representatives
ings and of his intellect * * * They conferred, as against
of the Vice President's Committee on the Right of Privacy.
the Government, the right to be let alone-the most compre-
After agreement in principle was reached by the Subcommittee on
hensive of rights and the right most valued by civilized men.
most of the specific language, a clean bill-H.R. 16373-was intro-
To protect that right, every unjustifiable instrusion by the
duced by Subcommittee Chairman Moorhead on August 12, 1974, co-
Government upon the privacy of the individual, whatever
sponsored by 13 Members, including several leading sponsors of pri-
the means employed must be deemed a violation of the fourth
vacy protection legislation in the House. The bill was subsequently
amendment.
reported favorably by the Subcommittee on September 12, 1974, with-
He went on to say further in his dissent, even more relevant in these
out a dissenting vote.
days of wholesale abuses of governmental power in our modern com-
The Government Operations Committee considered H.R. 16373 on
puterized society:
September 19, 1974, and favorably reported it to the House on Sep-
tember 24, 1974, by a roll call vote of 39 to 0.
Experience should teach us to be most on our guard to
protect liberty when the government's purposes are beneficent.
DISCUSSION
Men born to freedom are naturally alert to repel invasions
to their liberty by evil-minded rulers. The greatest dangers to
Because of the complex interrelationships of the major provisions
liberty lurk in insidious encroachment by men of zeal, well-
of this legislation, each of its subsections is explained in detail in this
meaning, but without understanding.
part of the report.
While there can be no right of absolute privacy in our complex
DEFINITIONS
civilization, there is an urgent need today to assert the fundamental
Section 3 of H.R. 16373 sets forth the new privacy protection sec-
right of privacy for all Americans to the maximum extent consistent
with the overall welfare of our Nation. The Federal Government can
tion 552a of title 5, United States Code, and in section (a) provides
six definitions of terms used in the new section
and must take the lead to achieve this important objective. Congress
Section (a) (1) defines the term "agency."
has the opportunity to mandate such action by acting promptly to
enact H.R. 16373 into law.
Section (a) (2) defines the term "individual" as affected by this
On August 12, 1974, in his first address to the Congress as Chief
measure as a "citizen of the United States or an alien lawfully ad-
Executive, President Ford pledged his personal and official dedication
mitted for permanent residence" in the United States; thus, it would
to the individual right of privacy. He declared, "There will be hot
not affect any other foreign nationals.
pursuit of tough laws to prevent illegal invasion of privacy in both
Section (a) (3) defines the term "maintain" with respect to agency
government and private activities." The Committee offers H.R. 16373
records to include the other terms "collect, use, or disseminate;
as the first step in that pursuit.
Section (a) (4) defines the term "record" as "any collection or
grouping of information about an individual that is maintained by an
COMMITTEE ACTION AND VOTE
agency and that contains his name or identifying number, symbol, or
other identifying particular assigned to such individual.' This encom-
As noted above, the issues involved in the safeguarding of indi-
passes records contained in either manual files or automated or com-
vidual privacy have been the subject of numerous investigatory hear-
puterized forms.
ings by the Foreign Operations and Government Information Sub-
Section (a) (5) defines the term "system of records" as "a group
committee of this committee during the past several years.
of any records under the control of any agency from which informa-
tion is retrieved by the name of the individual or by some other iden-
22 Olmstead V. United States, 277 U.S. 438 (1928) quoted in Hearings, Special Sub-
tifying number, symbol, or other identifying particular assigned to
committee on Invasion of Privacy, "Special Inquiry on Invasion of Privacy," op, cit.,
pp. 3-4.
each such individual
12
13
Section (a) (6) defines the term "statistical reporting or research
premises and control of the Bureau. Even the Federal Bureau of In-
record" as "a record in a system of records maintained for statistical
vestigation is not permitted to examine individual Census records.
research or reporting purposes only and not used in whole or in part
The Committee believes the privacy rights of individuals already are
in making any determination about an identifiable individual, except
adequately protected in the case of Census records and the Bureau of
as provided by section 8 of title 13, United States Code." This latter
the Census is not involved in' making individual program determina-
provision permits the Census Bureau to furnish transcripts of census
tions comparable to other agencies.
records for genealogical and other proper purposes and to make spe-
The Committee is of the view that special consideration must be
cial statistical surveys from census data for a fee upon request.
given to valid emergency situations, such as an airline crash or epidem-
ic, where consent cannot be obtained because of time and distance and
CONDITIONS OF DISCLOSURE
instant action is required, perhaps as a matter of life or death. The bill
provides that in these situations record transfers can be made without
Section 552a (b) provides that no Federal agency shall disclose any
the usual prior written consent if, on such disclosure, notification is
record containing personal information about an individual without
transmitted to the individual's last known address. This provision is
his approval to any person not employed by that agency or to another
necessary SO that government doctors and other Federal employees are
agency except under certain special conditions.
not in the position of being technically in violation of the law.
The consent requirement may well be one of the most important,
The legislation also waives the consent provision when personal in-
if not the most important, provisions of the bill. No such transfer could
formation is transferred to the National Archives as a record which
be made unless it was pursuant to a written request by the individual or
has sufficient historical or other value to warrant its continued preser-
by his prior written consent. This requirement would apply to all so-
vation by the government. In any case, the archival record protections
called "non-routine" transfers of information. It is not the Commit-
contained in (1) (1) would apply to such records.
tee's intent to impede the orderly conduct of government or delay serv-
The final exception in the disclosure section relates to personal in-
ices performed in the interests of the individual. Under the condi-
formation needed by the Congress and its committees and subcommit-
tional disclosure provisions of the bill, "routine" transfers will be
tees. Occasionally, it is necessary to inquire into such subjects for leg-
permitted without the necessity of prior written consent. A "non-
islative and investigative reasons.
routine" transfer is generally one in which the personal information
This legislation would have an effect on subsection (b) (6) of the
on an individual is used for a purpose other than originally intended.
Freedom of Information Act (5 U.S.C. section 552), which states
Agencies will be required to publish annually in the Federal Reg-
that the provisions regarding disclosure of information to the public
ister a description of each "routine" purpose for which personal in-
shall not apply to material "the disclosure of which would constitute
formation records are used or intended to be used. The Committee
a clearly unwarranted invasion of personal privacy.' H.R. 16373
intends to exercise a vigorous oversight check on agencies to make
would make all individually-identifiable information in Government
certain as much as possible that no "non-routine" transfers of records
files exempt from public disclosure. Such information could be made
of the type requiring prior written consent are either hidden or
available to the public only pursuant to rules published by agencies
blanketed in under the "routine" category to nullify the basic pro-
in the Federal Register permitting the transfer of particular data to
tections of the law to individuals.
persons other than the individuals to whom they pertain.
Another exception to the consent requirement is where a personal
The Committee does not desire that agencies cease making individ-
information record is transferred to another agency, including state
ually-identifiable records open to the public, including the press, for
and local instrumentalities, for a law enforcement activity if such
inspection and copying. On the contrary, it believes that the public in-
activity is authorized by law and if the head of the agency seeking the
terest requires the disclosure of some personal information. Examples
information has made a written request specifying the particular por-
of such information are certain data about government licensees, and
tion desired and the criminal or civil law enforcement activity for
the names, titles, salaries, and duty stations of most Federal employ-
which the record is sought.
ees. The Committee merely intends that agencies consider the dis-
A record cannot be transferred to another agency for statistical re-
closure of this type of information on a category-by-category basis
porting or research purposes unless it is in a form that is not individ-
and allow by published rule only those disclosures which would not
ually identifiable. This, for example, would prohibit such things as the
violate the spirit of the Freedom of Information Act by constituting
transfer of personal financial information on income tax returns of
"clearly unwarranted invasions of personal privacy."
farmers to the Department of Agriculture without the prior written
Last, the Committee is cognizant of the fact that the Federal Re-
consent of farmers.
ports Act (chapter 35 of title 44, United States Code) also restricts
An exception to this requirement would be made for the transfer of
conditions of disclosure of personal information by government agen-
records to the Bureau of the Census for purposes of planning or car-
cies. The purpose, scope, and administration of that act are different
rying out a census, survey, or related activity. Laws relating to the
from similar aspects of H.R. 16373. Some records would be subject to
Bureau of the Census are very strict, limiting access to such records
the provisions of both the Federal Reports Act and this legislation,
only to Census employees and prohibiting their removal from the
15
14
however. The Committee intends that restrictions on the transfer of
The Committee believes that this provision is essential to achieve an
individually-identifiable data be as strong as they can be without im-
important objective of the legislation Ensuring that individuals know
pairing the ability of government agencies to perform their duties.
what Federal records are maintained about them and have the oppor-
It believes that the restrictions contained in this bill are stronger than
tunity to correct those records. The provision should also encourage
the ones contained in section 3508 (b) of title 44, U.S.C., and that they
fulfillment of another important objective: maintaining government
records about individuals with such accuracy, relevance, timeliness,
should consequently be followed with respect to the disclosure of per-
and completeness as is reasonably necessary to assure fairness to indi-
sonal information. Insofar as the restrictions of 44 U.S.C. section 3508
viduals in making determinations about them. The constant vigilance
(b) may be stronger, however, the Committee intends that they should
of individual citizens backed by legal redress is the best means, in the
be followed.
Committee's opinion, of making certain that government treats people
ACCOUNTING OF CERTAIN DISCLOSURES
fairly.
H.R. 16373 also provides in section 552a (c) that each agency shall
AGENCY REQUIREMENTS
keep an accurate accounting of the date, nature and purpose of each
Section 552a (e) is intended to ensure that all individuals may know
disclosure of a record to any person or to another agency, including
the administrative structure of all systems of records; the uses to
the name and address of the person or agency to whom such disclosure
which such records will be put; and the procedures by which access,
is made. Exceptions to this would be when the record is used by em-
if mandated, may be had and inaccurate records contested. The sec-
ployees of the same agency who need it in the performance of their
tion also requires that any record used to make a determination about
duties and when disclosures are made to the public from records which
an individual be maintained in an accurate, timely, and relevant fash-
by law or regulation are open to public inspection or copying.
ion. By the term "determination" the Committee means any decision
The Committee has used the term "accounting," rather than "rec-
affecting the individual which is in whole or in part based on informa-
ord," to indicate that an agency need not make a notation on a single
tion contained in the record and which is made by any person or any
document of every disclosure of a particular record. The agency may
agency.
use any system it desires for keeping notations of disclosures, provided
Section (e) (1) requirements relate only to those records which are
that it can construct from its system a document listing of all dis-
compiled from information received directly from the concerned indi-
closures.
vidual. The purpose of these requirements is to ensure that individuals
The agency must retain the accounting for at least five years and
supplying information for a record system are fully aware of what the
make it available to the individual concerned at his request, except for
record will be used for and whether or not a response to the request
the part dealing with transfers for civil and criminal law enforcement
is mandatory or voluntary.
Under section (e) (1) (D) the individual must be informed of the
purposes. Under the provisions of section 552a (d), which are described below,
consequences of not providing any or all of the requested information.
an agency may correct an individual's record or note that a portion
If the requested information is required to be provided by statute,
of the record is in dispute. Section (c) requires the agency to inform
the notification to the individual should indicate the statutory provi-
any person or other agency to whom it disclosed a record within two
sion and its reach. If failure to provide the information could subject
years preceding the making of the correction or notation of dispute
the individual to loss of a government benefit, the extent of such loss
about this amendment to the record.
should be indicated. If there is no adverse effect on the individual for
Corrections or notations of dispute made to records disclosed prior
failure to comply with any or all of the request, that information
to the effective date of the legislation or for which no accounting of a
should also be noted.
disclosure is required would be exempt from this requirement.
Section (e) (2) encompasses the public notice required to be made
by each agency. The intent of this section is to ensure that the essen-
ACCESS TO RECORDS
tial characteristics of all information systems covered by this Act are
known to the public. The existence and character of each system,
Section 552a (d) grants each individual access to records pertaining
whether or not exempt from other requirements of this Act, must be
to him which are maintained by government agencies and permits him
published in the Federal Register as required by this section.
to request amendment of his records. Each agency must under this
Under section (e) (2) (A) the name and location of each system must
provision make any correction of the documents which the individual
be published. If a system is located in more than one place, each loca-
requests or inform that person why it refuses to make the change and
tion must be listed. Under section (e) (2) (B) the categories of indi-
allow him to appeal the refusal within the agency.
viduals whose records are maintained in the system must be listed. The
Whenever an agency determines on appeal not to alter a record, it
purpose of this requirement is to enable an individual to determine
must permit the individual to file a concise statement of his reasons for
if information on him might be in such system. The description of the
disagreement. Additionally, it must make copies of that statement
categories should therefore be clearly stated in non-technical terms
available to persons or agencies to whom it later transfers the disputed
understandable to individuals unfamiliar with data collection
portion of the record.
techniques.
FORD LIBRARY
17
16
should provide means whereby an individual who would be adversely
Under section (e) (2) (C) the categories of records maintained
affected by receipt of such data may be apprised of it in a manner
should be listed in a manner similar to that of (e) (2) (B) SO as ade-
which would not cause such adverse effects. An example of a rule
quately to inform individuals unfamiliar with data collection as to
serving such purpose would be transmission to a doctor named by the
the kinds of records held in the system. The listing of "routine pur-
requesting individual.
poses" under (e) (2) (D) should include all uses to which the records
Under section (f) (4) each agency must establish rules by which
will be put in the normal course of business. Transfer of a record for
an individual seeking to amend his record may have the request re-
any use which is not published under this subsection will require a
viewed and if denied an initial review may appeal such denial.
request by or prior written consent of the individual to whom the
This section additionally authorizes agency heads to promulgate
record pertains as provided under 552a (b).
such other rules as will enable individuals to enforce fully their rights
Section (e) (2) (E) and (F) requires the agencies adequately to in-
under this Act.
form the public as to the policies governing the physical custody and
Section (f) (5) authorizes the establishment of copying fees at the
protection of the record systems and to advise the public of the agency
discretion of the agency. However, an agency may not charge the in-
official who is responsible for the maintenance of the system.
dividual for time spent in searching for requested records or for time
The provisions of section (e) (2) (G) and (H) may be satisfied by
spent in reviewing records to determine if they fall within the dis-
publication of the applicable rules made under
closure requirements of the Act.
In reference to the requirement in (e) (3) relating to "timeliness,"
Finally, section (f) requires the publication of an annual compila-
the Committee intends this word to mean that a record was timely at
tion of all regulations promulgated by all agencies pursuant to this
the point when the determination by the agency about the individual
section.
was actually made.
The Office of the Federal Register is responsible for publication of
Section (e) (4) prohibits the maintenance of any record under this
this compilation and is directed to publish it in a form readily avail-
Act which concerns the political or religious beliefs or activities of any
able to the public at low cost.
individual as defined by this Act unless the individual authorizes the
maintenance of such record or unless the maintenance of such record
CIVIL REMEDIES
is expressly authorized by statute.
The section authorizing civil actions by individuals is designed to
AGENCY RULES
assure that any individual who has been refused lawful access to his
record or information about him in a record, or has otherwise been
Under section 552a (f) each agency must establish rules by which
injured by an agency action which was based upon an improperly
individuals may be apprised of information about them in record sys-
constituted record, will have a remedy in the Federal District courts.
tems and by which such individuals may challenge inaccuracies in
Actions may be brought if the agency refuses lawful access upon
those records.
request of an individual. An action also lies if the agency makes an
The rules required under (f) (1) through (5) must be promulgated
adverse determination based upon a record which is inaccurate, un-
in accordance with the provisions of 5 U.S.C. section 553.
timely, or incomplete. However, in order to sustain such action, the
Under section (f) (1) the agency is required to establish procedures
individual must demonstrate the causal relationship between the ad-
whereby upon the request of an individual, the agency must notify him
verse determination and the incompleteness, inaccuracy, irrelevance or
if the system which he names does or does not contain a record per-
request of an individual. An action also lies if the agency makes an
taining to him.
untimeliness of the record. Additionally, an action will lie for the fail-
Under section (f) (2) each agency must promulgate rules by which
ure of the agency to comply with any other section of this law when
an individual seeking access to his records can sufficiently identify
himself as the individual named in the record. Such identification
such non-compliance has an adverse effect upon the aggrieved
individual.
should if possible be made in person by the individual seeking access
The court may enjoin an agency from withholding records which do
to his record. However, agencies should make efforts to ensure that
individuals who are unable to appear at a designated location can
not fall within the exemptions set forth in sections 552a(j) or (k).
The court is required to determine such matters de novo and the bur-
satisfy identification requirements by other means.
den of proof is upon the agency to sustain the exemption.
Under (f) (3) each agency must establish procedures for disclosing
Reasonable attorney fees and costs may be assessed against the gov-
pertinent records or information to individuals upon request. If a
record contains information about more than one individual or con-
ernment in any case where the plaintiff substantially prevails. It is
intended that such award of fees not be automatic, but rather, that the
tains other data not pertaining to the individual requesting the record,
only the information pertaining to the requesting individual must be
courts consider the criteria as delineated in the existing body of law
disclosed.
governing the award of fees. However, when an action is brought
If, in the judgment of the agency, the transmission of medical in-
under section (g) (1) (B) or (C) and when the agency has been ad-
formation directly to a requesting individual could have an adverse
judged to have acted in a manner which was willful, arbitrary, or
effect upon such individual, the rules which the agency promulgates
H. Rept. 93-1416-3
18
19
capricious, the government shall be liable for reasonable attorney fees
quirements of the bill only after the head of an agency promulgates
and costs.
In addition to the award of fees and costs, the United States is liable
rules which are open to public comment before they become effective.
By this means, people will be afforded an opportunity to make their
for actual damages resulting from the willful, arbitrary, or capricious
views on proposed exemptions known to the appropriate agencies, and
action of an agency in a suit brought under section (g) (1) (B) or (C).
Venue lies in the district where the complainant resides or has his
agencies will be able to modify their decisions taking those views into
account.
place of business, where the agency records are situated, or in the Dis-
The Committee also wishes to stress that this section is not intended
trict of Columbia. The statute of limitations is two years from the date
to require the C.I.A. and criminal justice agencies to withhold all their
upon which the cause of action arises, except for cases in which the
personal records from the individuals to whom they pertain. We urge
agency has materially or willfully misrepresented any information re-
those agencies to keep open whatever files are presently open and to
quired to be disclosed and when such misrepresentation is material to
make available in the future whatever files can be made available with-
the liability of the agency. In such cases the statute of limitations is
out clearly infringing on the ability of the agencies to fulfill their
two years from the date of discovery by the indicidual of the mis-
missions.
representation.
SPECIFIC EXEMPTIONS
RIGHTS OF LEGAL GUARDIANS
Section 552a (k) would permit the head of any agency to exempt
Section (h) provides that the parent of any minor, or the legal
certain systems of records within his agency from some of the require-
guardian of any individual who has been declared to be incompetent
ments of the legislation. The requirements from which these systems
due to physical or mental incapacity or age by a court of competent
could be exempted are primarily those dealing with access by indi-
jurisdiction may act on behalf of such individual with respect to his
viduals to records about themselves. Only four categories of systems of
rights under this law.
records could be SO excluded:
CRIMINAL PENALTIES
1. Information classified in the interest of national defense or
foreign policy;
Any officer or employee of the United States who has access to or
2. Investigatory material compiled for law enforcement purposes,
possession of a record the disclosure of which is prohibited by the Act
except for information that is contained in criminal justice records
or by the rules made pursuant to this act and who knowingly discloses
(which are subject to section 552a (j)) and information that is open
such information to a person or agency not entitled to receive such in-
to public inspection under section 552 of this title, (the Freedom of
formation is liable for a fine of not more than $5,000.
Information Act);
Any person who knowingly and willfully obtains a record concern-
3. Secret Service files maintained in connection with providing pro-
ing an individual from any agency under false pretenses is liable for a
tective services to the President or other individuals; and
fine of not more than $5,000.
4. Records required by statute to be maintained and used solely as
statistical research or reporting records.
GENERAL EXEMPTIONS
Sound reasons of public policy justify exempting each of these
groups of records from individual access.
Section 552a (j) would permit the head of any agency to exempt
1. In some cases, disclosure of classified information, even to the
certain systems of records within his agency from virtually all the
requirements of the legislation. Only records maintained by the Cen-
person to whom it pertains, could damage the national defense or
foreign policy, for the information would no longer be subject to all
tral Intelligence Agency and criminal justice records could be SO ex-
the security controls it is properly subject to as classified matter.
empted. Even they would be subject to the requirements relating to
conditions of disclosure (section 552a (b)) and publication of notice
2. Individual access to certain law enforcement files could impair
investigations, particularly those which involve complex and con-
of the existence and character of each system of records (section 552a
tinuing patterns of behavior. It could alert subjects of investigations
(e) (2) (A) through (F)).
The Committee believes that such a broad examination is permissible
that their activities are being scrutinized, and thus allow them time
to take measures to prevent detection of illegal action or escape
for these two types of records because they contain particularly sensi-
prosecution.
tive information. C.I.A. files may include the most delicate informa-
3. Access to Secret Service intelligence files on certain individuals
tion regarding national security. Criminal justice records are SO
different in use from other kinds of records that their disclosure should
would vitiate a critical part of Secret Service work which was specif-
ically recommended by the Warren Commission that investigated the
be governed by separate legislation.
The Committee has made certain, however, that a notice of the exist-
assassination of President Kennedy and funded by Congress.
4. Disclosure of statistical records in most instances would not pro-
ence and character of these systems of records must be published at
vide any benefit to anyone, for these records do not have a direct
least annually in the Federal Register. We believe that the government
effect on any given individual; it would, however, interfere with a
should maintain no secret system of records about its own citizens. We
legitimate, Congressionally-sanctioned activity.
have also made sure that systems may be exempted from certain re-
20
21
As with systems of records which are exempted from virtually all
Records under the control of the Archives would not, however, be
requirements of the legislation by section 552a (j), the systems of
subject to the provisions of this law which permit changes in docu-
records described in section (k) may be exempted from requirements
ments at the request of the individual named in them. A basic ar-
only after the head of an agency promulgates rules which are open
chival rule holds that archivists may not remove or amend informa-
to public comment before they become effective. Also as with section
tion in any records placed in their custody. The principle of main-
(j) records, the Committee urges agencies maintaining section (k)
taining the integrity of records is considered one of the most important
records to open those documents to the individuals named in them inso-
rules of professional conduct. It is important because historians quite
far as such action would not impair the proper functioning of the
properly want to learn the true condition of past government records
agencies.
when doing research; they frequently find the fact that a record was
ARCHIVAL RECORDS
inaccurate is at least as important as the fact that a record was ac-
Section 552a (1) prescribes special provisions for records which
curate.
are under the custody or control of the National Archives and Records
The Committee believes that this rule is eminently reasonable and
Service, a constituent agency of the General Services Administration.
should not be breached even in the case of individually identifiable
Paragraph (1) of this section deals with agency records accepted
records. Once those documents are given to the Archives, they are
by the Administrator of General Services for storage, processing, and
no longer used to make any determination about any individual, SO
servicing which are now being provided by Federal Records Centers.
amendment of them would not aid anyone. Furthermore, the Archives
These records are under the control of the agencies which deposited
has no way of knowing the true state of contested information, since
them; the National Archives and Records Service merely has custody
it does not administer the program for which the data was collected;
of them while it is providing storage in Records Centers. Consequently,
it cannot make judgments as to whether records should be altered.
the paragraph states that these records shall, for the purposes of this
section, be considered to be maintained by the agency which deposited
ANNUAL REPORT
them and shall be subject to the provisions of this section. The Admin-
istrator of General Services shall not disclose any of these records
Section (m) provides that the President shall submit to the Speaker
except to the agency which maintains them or pursuant to rules
of the House of Representatives and the President of the Senate, by
established by that agency.
June 30 of each calendar year, a consolidated report, separately list-
Paragraphs (2) and (3) deal with agency records pertaining to
ing for each Federal agency the number of records contained in any
identifiable individuals which are transferred to the National Archives
system of records that were exempted from the operative provisions
itself as records which have sufficient historical or other value to war-
of this law under the terms of section (j) or (k). Also to be included
rant their continued preservation by the United States Government.
in the annual report would be the reasons for such exemptions and
These records are under the actual control of the Archives; conse-
other information indicating efforts to comply with the law. It is
quently, they shall, for the purposes of this section, be considered to
hoped that all such information would be made public. If, however,
be maintained by that agency.
the nature of any such exemption requires a security classification
Under paragraph (2), records which were transferred to the
marking, it should be placed in a separate part of the report SO as not
Archives prior to the effective date of this section shall not be subject
to affect the remainder of the annual report.
to the provisions of the legislation. The Committee has written this
exclusionary statement into the bill because it feels that requiring the
TECHNICAL CHANGES
Archives to reorganize large quantities of documents which are being
used only for historical purposes would be expensive and would aid
Section 4 of the bill makes necessary revisions of the chapter listing
of chapter 5, title 5, United States Code to add this new section 552a
no one.
Under paragraph (3). records which are transferred to the Archives
-"Records about individuals".
after the effective date shall be subject to most of the provisions of the
bill. Since the records would already have been organized in con-
EFFECTIVE DATE
formity with the requirements of this section by the agency transfer-
Section 5 of the bill provides that it become effective on the 180th
ring them to the Archives, maintaining them in continued conformity
day following the date of enactment.
with this law would not require any special effort. Permitting access
to the records by individuals named in them would also be reason-
COST ESTIMATE
able if access had been permitted by the agency which transferred the
records to the Archives. (Insofar as a record could have been exempted
In compliance with clause 7 of rule XIII of the House of Repre-
from access under section 552a (j) or (k) before its transfer to the
sentatives, the following statement is made relative to the cost which
Archives, it could of course be similarly exempted after transfer by
might be incurred in implementing this bill.
the Archivist of the United States.)
The Office of Management and Budget (OMB) estimates the annual
cost of implementing this bill as between $200 million to $300 million
22
23
a year, with a one-time "start-up" cost of $100 million. Thus, the five-
U.S. CIVIL SERVICE Commission,
year estimate would range from $1.1 billion to $1.6 billion.
Washington, D.C., September 18, 1974.
However, OMB made it clear that its estimates cannot have a higher
Hon. CHET HOLIFIELD,
degree of precision because of many imponderables, including possible
Chairman, Committee on Government Operations, House of Repre-
savings off-sets. These problems were described in a letter from Mr.
sentatives, Washington, D.C.
Robert H. Marik, Associate Director of OMB for Management and
DEAR MR. CHAIRMAN The Civil Service Commission strongly urges
Operations, a copy of which may be found in the appendix of this
that the Committee restore to H.R. 16373 exemptions which will en-
report.
able the Commission to continue efficiently to carry out its responsi-
In the circumstances, the Committee concurs in the estimate of the
bilities with respect to Federal employee management. The exemptions
Office of Management and Budget. The Committee also notes the
were in paragraphs (4) and (5) of the proposed section 552a (j) to
Administration has circulated a proposed Executive order in the
title 5, United States Code, as added by section 3 of H.R. 16373. As
various agencies of the Government to carry out the objectives of this
introduced, these provisions would have exempted from the disclosure
legislation. That Executive order was designed to be issued in the event
and access-to-records provisions of the legislation:
Congress does not act. It is patterned very much after the House bill,
(4) Investigatory material maintained for the purpose of de-
H.R. 16373, now before you. The Office of Management and Budget
termining initial or continued eligibility or qualification for Fed-
has stated the cost of implementing this proposed Executive order
eral employment, military service, Federal contracts, or access to
would be approximately the same as the House bill. So the cost factor
classified information or
appears to be virtually academic. Our Government, subject to the
(5) Material used for appointment, employment, or promotion
President's final approval, intends to spend this money for this purpose
in the Federal service.
whether we act or not. However, this is a congressional responsibility.
The latter item while very broad was intended principally to pro-
tect materials used in civil service examinations.
AGENCY VIEWS
With respect to investigative material, the Commission is authorized
and directed, pursuant to 5 U.S.C. 3301 and 3302, to examine into the
See letter from OMB and Civil Service Commission, dated Septem-
character and fitness of civil service applicants in order to determine
ber 18, 1974, to Chairman Holifield.
their relative suitability for employment. These suitability determi-
nations are essential to the maintenance of a high-caliber work force
EXECUTIVE OFFICE OF THE PRESIDENT,
because they insure that from the standpoint of character and in-
OFFICE OF MANAGEMENT AND BUDGET,
tegrity, as well as of qualifications, we select the very best applicants
Washington, D.C., October 2, 1974.
for Government employment.
Hon. WILLIAM S. MOORHEAD,
Our long experience in investigations indicates that those who give
Chairman, Foreign Operations and Government Information Sub-
witness to the qualifications and integrity of others are ordinarily
committee, Committee on Government Operations, House of Rep-
far more candid when the information is given under pledge of confi-
resentatives, Washington, D.C.
dence than they are when they presumably are speaking for publica-
DEAR MR. CHAIRMAN This letter is intended to summarize our
tion. And this experience is borne out whether the person who reports
views with respect to H.R. 16373 which was recently ordered to be
to us is a former employer, an associate, or a neighbor. Without an
reported by the Committee on Government Operations.
exemption similar to that stated in subsection (4) quoted above, we
Since time does not permit us to seek the view of all agencies con-
could not maintain the confidentiality of the information we receive or
cerned we are unable to speak for them. However, we have noted that
of its sources, with the result that we could not effectively perform the
this bill is in most respects consistent with earlier legislative proposals
full reach of our statutory functions. In a word, we could not give
which were reviewed with those agencies.
adequate assurance that persons employed were in fact qualified from
We remain concerned, however, that the bill does not exempt from
the standpoint of either competence or integrity.
certain of its operative provisions, personnel testing and examination
With respect to examining material, the Commission must maintain
material and other personnel security and evaluation files, especially
the integrity of the competitive process which plays such an impor-
those containing information gathered under a pledge of confiden-
tant part in the staffing of the competitive service. Obviously, in de-
tiality. Permitting unrestricted individual access to such records
termining the relative ability of competitors for Federal positions, the
would seriously hamper agencies in evaluating the qualifications and
Commission must use an examining process which is scrupulously fair
reliability of Federal civilian, military, and contractor personnel.
to all who are concerned. If test questions and rating information is
With the exception of these provisions, we find the bill to be gen-
made available to the persons to whom they pertain, the Commission
erally consistent with our views on this subject.
will be unable to control the dissemination of such information to
Sincerely,
others. Applicants, by learning the correct answers to the questions,
ROBERT H. MARIK,
could use the information to compromise the fairness of the entire test-
Associate Director for Management and Operations.
ing system, and reduce to a shambles the open competitive examining
24
25
system we have worked so hard to establish. In order to protect our ex-
SECTION-BY-SECTION ANALYSIS
aminations from compromise, particularly when we use written tests,
we currently follow procedures in which we compose tests of differing
The findings of the bill state that individual privacy is affected by
series of similar questions and this scrambling technique barely keeps
the collection, maintenance and use of individually identifiable data
us ahead of those who would exploit our tests for personal or com-
by the Federal Government and that control of such systems of data
mercial gain. Without an exemption for materials used in the examin-
is necessary to insure privacy.
ing process, we could not defend our tests against compromise. In addi-
The purpose of the act is to provide safeguards for the collection
tion, if the names and ratings of other applicants must be revealed to
and use of such records, identify record systems, provide reasonable
any requesting applicant, questions arise as to whether or not the
access by individuals to their records, and provide civil remedies for
rights of privacy of these other applicants have been violated.
violations of its provisions.
We also believe that medical records of employees and applicants
Section (a) defines various terms used for the purposes of this act.
should not be generally available, even to the applicant or employee,
Section (b) prohibits dissemination of records outside the agency
when this information could be harmful to him. Our regulations pro-
except when requested or permitted with prior written consent by the
vide for release of this information to the person requesting it only
affected individual. Other exceptions are when it is used for a legiti-
through a doctor of his choice. We believe that this procedure should
mate routine purpose defined under formal rulemaking; submitted to
be maintained.
another governmental unit for a law enforcement activity authorized
Time has permitted only a brief discussion of the problems we an-
by statute upon written request; to the Census Bureau for activities
ticipate if Commission operations, particularly those discussed above,
pursuant to title 13, U.S.C.; for statistical use when provided in a
are not exempted from the provisions of the bill. We strongly urge
non-individually identifiable form; pursuant to a showing of a com-
that the Committee consider the impact of the inclusion of all the
pelling circumstance affecting the individual's health or safety and
records maintained by the Civil Service Commission in the disclosure
then only upon transmittal of notice to the individual; when trans-
and access provisions of this bill. We recommend that the Committee
ferred to the National Archives or provided to Congress.
restore exemptions for the Commission, and for the military depart-
Section (c) requires an accurate accounting of the fact and nature
ments, which we understand have similar problems. We offer the
of any dissemination of a record, which accounting shall be retained
following language to provide minimum protections for our
for five years and be made available upon request to the affected indi-
operations:
vidual. This section also requires that an agency inform others about
(4) investigatory and examining material maintained for the
any correction or notation of dispute disclosed to another agency
purpose of determining initial or continued eligibility or quali-
within two years preceding the making of such correction on a record.
fication for
Section (d) requires an agency to grant access by an individual to
(A) Federal employment,
his records for inspection and/or copying; permits individuals to re-
(B) military service,
quest correction of records, and provides for an interagency review
" (C) employment under Federal contracts,
of refusals to correct upon request. This section also permits an indi-
(D) access to classified information or
vidual to file a concise statement setting forth his reasons for disagree-
"(5) medical information concerning a mental or other condi-
ing with an agency's refusal to amend the record, requires the agency
tion of a Federal employee or applicant for Federal employment
to clearly note the disputed portion of the record, and permits the
of such a nature that a prudent physician would hesitate to inform
agency to include a rebuttal statement.
the person suffering from the condition of its exact nature and
Section (e) enumerates agency requirements to inform individuals
probable outcome, except that this information will be disclosed
of their rights when supplying information and also requires annual
to a licensed physician designated in writing by the individual
publication in the Federal Register by each agency which maintains
for that purpose.'
a record system the name and location of each system; the category
We believe that exemptions such as those stated immediately above
of persons and records maintained in each system; use policies of
will enable the Commission to continue to carry out its responsibilities
each agency and the title and business address of the person respon-
for maintaining a superior Federal work force. We recognize our ob-
sible for such system.
ligation to furnish to Federal employees and applicants for employ-
It also prohibits any Federal agency from maintaining any record
ment all information possible concerning them consistent with these
concerning the political or religious belief or activity on any indi-
responsibilities.
vidual unless expressly authorized by statute or the individual himself.
By Direction of the Commission
Section (f) also states that each agency shall under the Adminis-
Sincerely yours,
trative Procedure Act set rules providing for access to requested rec-
ROBERT E. HAMPTON,
ords; describe routine uses of maintained records; establish proce-
Chairman.
FORD
H. Rept. 93-1416-4
GERALD
26
27
<dures for amending records and keeping them in a timely, relevant
TITLE 5, UNITED STATES CODE
and accurate fashion; establish procedures for disclosing medical
records to individuals; and may set fees for providing copies of re-
quested records except that no fees shall be charged for search or
CHAPTER 5-ADMINISTRATIVE PROCEDURE
review of records.
Section (g) provides a civil remedy for individuals who have been
SUBCHAPTER I-GENERAL PROVISIONS
denied access to their records, or whose records have been kept or used
SEC.
in contravention of the requirements of the act and an adverse effect
500. Administrative practice; general provisions.
results. Suit may be brought in a district where the complainant re-
501. Advertising practice; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
sides, does business, where the records are located, or in the District
503. Witness fees and allowances.
of Columbia. The complainant may recover actual damages and costs
and attorney fees if the agencies' infraction was willful, arbitrary, or
SUBCHAPTER I-ADMINISTRATIVE PROCEDURE
SEO.
capricious.
551. Definitions.
Section (h) provides that for the purposes of subsections relating
552. Public information; agency rules, opinions, orders, records, and
to disclosure, access or civil remedies, a minor or an adjudged incom-
proceedings.
petent may be represented by his legal guardian.
552a. Records about individuals.
Section (i) makes unlawful possession of or disclosure of individ-
553. Rule making.
554. Adjudications.
ually identifiable information by a government employee punishable
555. Ancillary matters.
by a fine not to exceed $5,000 and also provides that any person who
556. Hearings; presiding employees; powers and duties; burden of proof;
requests or obtains such a record by false pretenses is subject to a fine
evidence; record as basis of decision.
not to exceed $5,000.
557. Initial decisions; conclusiveness; review by agency; submissions by
parties; contents of decisions record.
Section (j) states that except as to certain agency conditions of dis-
558. Imposition of sanctions; determination of applications for licenses; sus-
closure and requirements, records determined under formal rule-
pension, revocation, and expiration of licenses.
making maintained by the CIA and records maintained for law en-
559. Effect on other laws; effect of subsequent statute.
forcement purposes are exempt from the provisions of the act.
SUBCHAPTER IHI-ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Section (k) permits an agency head to exempt any record or system
SEC.
of records through formal rulemaking from the provisions of sub-
571. Purpose.
sections relating to disclosure, accounting availability, access avail-
572. Definitions.
ability, and certain agency rules; records which are classified; are
573. Administrative Conference of the United States.
574. Powers and duties of the Conference.
maintained for Secret Service protective purposes; or required by
575. Organization of the Conference.
statute to be maintained solely for statistical reporting or research
576. Appropriations.
purposes.
Section (1) provides, among other things, that records accepted by
SUBCHAPTER I-GENERAL PROVISIONS
the National Archives under section 3103 of title 44, U.S.C. shall be
considered for the purposes of this act to be maintained by the deposit-
ing agency.
Section (m) provides for an annual report by the President listing
SUBCHAPTER II-ADMINISTRATIVE PROCEDURE
the number of records contained in any system of records exempted
under sections (i) and (j) and reasons for such exemptions.
Section 6 sets the effective date of the act at 180 days after enact-
ment except for section (f), which becomes effective on the date of
§ 552a. Records maintained on individuals
enactment.
(a) DEFINITIONS.-For purposes of this section-
(1) the term "agency" means agency as defined in section 552
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
of this title;
(2) the term "individual" means a citizen of the United States
In compliance with clause 3 of Rule XIII of the Rules of the House
or an alien lawfully admitted for permanent residence;
of Representatives, changes in existing law made by the bill, as re-
(3) the term "maintain" includes maintain, collect, use, or
ported, are shown as follows (existing law proposed to be omitted
disseminate;
is enclosed in black brackets, new matter is printed in italics, existing
(4) the term "record" means any collection or grouping of in-
law in which no change is proposed is shown in roman) :
formation about an individual that is maintained by an agency
FORD
LIBRARY
28
29
and that contains his name, or the identifying number, symbol, or
other identifying particular assigned to the individual;
(1) except for disclosures made under subsection (b) (1) of
(5) the term "system of records" means a group of any records
this section or disclosures to the public from records which by
under the control of any agency from which information is re-
law or regulation are open to public inspection or copying, keep
trieved by the name of the individual or by some identifying
an accurate accounting of-
number, symbol, or other identifying particular assigned to the
(A) the date, nature, and purpose of each disclosure of a
individual; and
record to any person or to another agency made under sub-
(6) the term "statistical research or reporting record" means d
section (b) of this section; and
record in a system of records maintained for statistical research
(B) the name and address of the person or agency to whom
or reporting purposes only and not used in whole or in part in
the disclosure is made;
making any determination about an identifiable individual, ex-
(2) retain the accounting made under paragraph (1) of this
cept as provided by section 8 of title 13.
subsection for at least five years after the disclosure for which
(b) CONDITIONS OF DISCLOSURE.-No agency shall disclose any record
the accounting is made;
which is contained in a system of records by any means of communi-
(3) except for disclosures made under subsection (b) (6) of
cation to any person, or to another agency, except pursuant to a writ-
this section, make the accounting made under paragraph (1) of
ten request by, or with the prior written consent of, the individual to
this subsection available to the individual named in the record
whom the record pertains, unless disclosure of the record would be-
at his request; and
(1) to those officers and employees of the agency which main-
(4) inform any person or other agency about any correction
tains the record who have a need for the record in the performance
or notation of dispute made by the agency in accordance with
of their duties;
subsection (d) of this section of any record that has been dis-
(2) for a routine use described in any rule promulgated under
closed to the person or agency within two years preceding the
subsection (e) (2) (D) of this section;
making of the correction of the record of the individual, except
(3) to the Bureau of the Census for purposes of planning or
that this paragraph shall not apply to any record that was dis-
carrying out a census or survey or related activity pursuant to the
closed prior to the effective date of this section or for which no
provisions of title 13;
accounting of the disclosure is required.
(4) to a recipient who has provided the agency with advance
(d) ACCESS TO RECORDS.-Each agency that maintains a system of
adequate written assurance that the record will be used solely as a
records shall—
statistical research or reporting record, and the record is to be
(1) upon request by any individual to gain access to his record
transferred in a form that is not individually identifiable;
or to any information pertaining to him which is contained in the
(5) to the National Archives of the United States as a record
system, permit him to review the record and have a copy made
which has sufficient historical or other value to warrant its con-
of all or any portion thoreof in a form comprehensible to him;
tinued preservation by the United States Government, or for
(2) permit the individual to request amendment of a record
evaluation by the Administrator of General Services or his desig-
pertaining to him and either-
nee to determine whether the record has such value;
(A) make any correction of any portion thereof which the
(6) to another agency or to an instrumentality of any govern-
individual believes is not accurate, relevant, timely, or com-
mental jurisdiction within or under the control of the United
plete; or
States for α law enforcement activity if the activity is authorized
(B) promptly inform the individual of its refusal to amend
by law, and if the head of the agency or instrumentality has made
the record in accordance with his request, the reason for the
a written request to the agency which maintains the record specify-
refusal, the procedures established by the agency for the in-
ing the particular portion desired, and the law enforcement
dividual to request a review by the agency of that refusal, and
activity for which the record is sought;
the name and business address of the official within the agency
(7) pursuant to a showing of compelling circumstances affecting
to whom the request for review may be taken:
the health or safety of an individual, if upon the disclosure noti-
(3) permit any individual who disagrees with the refusal of
fication is transmitted to the last known address of the individ-
the agency to amend his record to request review of the refusal
ual; or
by the official named in accordance with paragraph (2) (B) of
(8) to either House of Congress, or, to the extent of matter
this subsection; and if, after the review, that official also refuses to
within its jurisdiction, any committee or subcommittee thereof,
amend the record in accordance with the request, permit the in-
or any joint committee of Congress or subcommittee of any such
dividual to file with the agency a concise statement setting forth
joint committee.
the reasons for his disagreement with the refusal of the agency;
(c) ACCOUNTING OF CERTAIN DISCLOSURES.-Each agency, with
and
respect to each system of records under its control, shall-
(4) in any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after
30
31
the filing of the statement under paragraph (3) of this subsection,
clearly note any portion of the record which is disputed and, upon
(1) establish procedures whereby an individual can be notified
request, provide copies of the statement and, if the agency deems
in responseto his request if any system of records named by the
it appropriate, copies of a concise statement of the reasons of the
individual contains a record pertaining to him;
agency for not making the amendments requested, to persons or
(2) define reasonable. times, places, and requirements for
other agencies to whom the disputed record has been disclosed.
identifying an individual who requests his record or information
pertaining to him before the agency shall make the record or
(e) AGENCY REQUIREMENTS.-Each agency that maintains a system
information available to the individual;
of records shall-
(3) establish procedures for the disclosure to an individual
(1) inform each individual whom it asks to supply information,
upon his request of his record or information pertaining to him,
on the form which it uses to collect the information or on a separate
including special procedure, if deemed necessary, for the dis-
form that can be retained by the individual-
(A) which Federal statute or regulation, if any, requires
closure to an individual of medical records, including psychologi-
cal records, pertaining to him;
disclosure of the information;
(B) the principal purpose or purposes for which the in-
(4) establish procedures for reviewing a request from an in-
dividual concerning the amendment of any record or information
formation is intended to be used;
(C) other purposes for which the information may be
pertaining to the individual, for making a determination on the
used, as published pursuant to paragraph (2) (D) of this
request, for an appeal within the agency of an initial adverse
agency determination, and for whatever additional means the
subsection; and
(D) the effects on him, if any, of not providing all or any
head of the agency may deem necessary for each individual to
part of the requested information;
be able to exercise fully his rights under this section; and
(2) publish in the Federal Register at least annually a notice
(5) establish fees to be charged, if any, to any individual for
of the existence and character of the system of records, which
making copies of his record, excluding the cost of any search for
notice shall include-
and review of the record.
(A) the name and location of the system;
The Office of the Federal Register shall annually compile and publish
(B) the categories of individuals on whom records are
the rules promulgated under this subsection in a form available to the
maintained in the system;
public at low cost.
(C) the categories of records maintained in the system;
(g) (1) CIVIL REMEDIES.-Whenever any agency (A) refuses to comply
(D) each routine purpose for which the records contained
with an individual request under subsection (d) (1) of this section,
in the system are used or intended to be used, including the
(B) fails to maintain any record concerning any individual with such
categories of users of the records for each such purpose;
accuracy, relevance, timeliness, and completeness as is necessary to
(E) the policies and practices of the agency regarding
assure fairness in any determination relating to the qualifications,
storage, retrievability, access controls, retention, and disposal
character, rights, or opportunities of, or benefits to the individual
of the records;
that may be made on the basis of the record and consequently a deter-
(F) the title and business address of the agency official
mination is made which is adverse to the individual, or (C) fails to
who is responsible for the system of records;
comply with any other provision of this section, or any rule promul-
(G) the agency procedures whereby an individual can be
gated thereunder, in such a way as to have an adverse effect on an
notified at his request if the system of records contains a
individual, the individual may bring a civil action against the agency,
record pertaining to him; and
and the district courts of the United States shall have jurisdiction in
(H) the agency procedures whereby an individual can be
the matters under the provisions of this subsection.
notified at his request how he can gain access to any record
(2) (A) In any suit brought under the provisions of subsection (g)
pertaining to him contained in the system of records, and
(1) (A) of this section, the court may enjoin the agency from with-
how he can contest its content;
holding the records and order the production to the complainant of
(3) maintain all records which are used by the agency in mak-
any agency records improperly withheld from him. In such a case the
ing any determination about any individual with such accuracy,
court shall determine the matter de novo, and may examine the con-
relevance, timeliness, and completeness as is reasonably necessary
tents of any agency records in camera to determine whether the records
to assure fairness to the individual in the determination; and
or any portion thereof may be withheld under any of the exemptions
(4) maintain no record concerning the political or religious be-
set forth in subsection (j) or (k) of this section, and the burden is on
lief or activity of any individual, unless expressly authorized by
the agency to sustain its action.
statute or by the individual about whom the record is maintained.
(B) The court may assess against the United States reasonable
(f) AGENCY RULES.-In order to carry out the provisions of this
attorney fees and other litigation costs reasonably incurred in any
section, each agency that maintains a system of records shall promul-
case under this paragraph in which the complainant has substantially
gate rules, in accordance with the requirements (including general
prevailed.
notice) of section 553 of this title, which shall-
(3) In any suit brought under the provisions of subsection (g) (1) FORD
(B) and (C) of this section in which the court determines that
LIBRARY
32
33
agency acted in a manner which was willful, arbitrary, or capricious,
tors, and associated with an identifiable individual; or (σ) re-
the United States shall be liable to the individual in an amount equal
ports identifiable to an individual compiled at any stage of the
to the sum of-
process of enforcement of the criminal laws from arrest or in-
(A) actual damages sustained by the individual as a result of
dictment through release from supervision.
the refusal or failure; and
(B) the costs of the action together with reasonable attorney
(k) SPECIFIC Exemptions.-The head of any agency may promulgate
rules, in accordance with the requirements (including general notice)
fees as determined by the court.
(4) An action to enforce any liability created under this section
of section 553 of this title, to exempt any system of records within the
may be brought in the district court of the United States in the district
agency from subsections (c) (3), (d), (e) (1), (e) (2 (G) and (H),
in which the complainant resides, or has his principal place of business,
and (f) of this section if the system of records is-
or in which the agency records are situated, or in the District of Co-
(1) subject to the provisions of section 552 (b) (1) of this title;
lumbia, without regard to the amount in controversy, within two years
(2) investigating material compiled for law enforcement pur-
from the date on which the cause of action arises, except that where
poses, except to the extent that the material is within the scope of
an agency has materially and willfully misrepresented any informa-
subsection (j) (2) of this section or is open to public inspection
tion required under this section to be disclosed to an individual and
under the provisions of section 552 (7) of this title;
the information so misrepresented is material to the establishment of
(3) maintained in connection with providing protective serv-
ices to the President of the United States or other individuals
the liability of the agency to the individual under this section, the
action may be brought at any time within two years after discovery
pursuant to section 3056 of title 18; or
by the individual of the misrepresentation.
(4) required by statute to be maintained and used solely as
(h) RIGHTS OF LEGAL GUARDIANS.-For the purposes of this section,
statistical research reporting records.
the parent of any minor, or the legal guardian of any individual who
(l) (1) ARCHIVAL RECORDS.-Each agency record which is accepted
has been declared to be incompetent due to physical or mental in-
by the Administrator of General Services for storage, processing, and
capacity or age by a court of competent jurisdiction, may act on be-
servicing in accordance with section 3103 of title 44 shall, for the
half of the individual.
purposes of this section, be considered to be maintained by the agency
(i) (1) CRIMINAL PENALTIES.-Any officer or employee of the United
which deposited the record and shall be subject to the provisions of
this section. The Administrator of General Services shall not disclose
States, who by virtue of his employment of official position, has posses-
the record except to the agency which maintains the record, under
sion of, or access to, agency records which contain individually identi-
rules established by that agency which are not inconsistent with the
fiable information the disclosure of which is prohibited by this section
or by rules or regulations established thereunder, and who knowing
provisions of this section.
(2) Each agency record pertaining to an identifiable individual
that disclosure of the specific material is so prohibited, willfully dis-
which was transferred to the National Archives of the United States
closes the material in any manner to any person or agency not entitled
as a record which has sufficient historical or other value to warrant its
to receive it, shall be fined not more than $5,000.
continued preservation by the United States Government, prior to
(2) Any person who knowingly and willfully requests or obtains
the effective date of this section, shall, for the purposes of this section,
any record concerning an individual from an agency under false pre-
be considered to be maintained by the National Archives and shall not
tenses shall be fined not more than $5,000.
be subject to the provisions of this section.
(j) GENERAL EXEMPTIONS.-The head of any agency. may promulgate
(3) Each agency record pertaining to an identifiable individual
rules, in accordance with the requirements (including general notice)
which is transferred to the National Archives of the United States as
of section 553 of this title, to exempt any system of records within the
a record which has sufficient historical or other value to warrant its
agency from any part of this section except subsections (b) and
continued preservation by the United States Government, on or after
(e) (2) (A) through (F) if the system of records is-
the effective date of this section, shall, for the purposes of this section,
(1) maintained by the Central Intelligence Agency; or
be considered to be maintained by the National Archives and shall be
(2) maintained by an agency or component thereof which per-
subject to all provisions of this section except subsections (c) (4) (d)
forms as its principal function any activity pertaining to the en-
(2), (3), and (4); (e) (1), (2) (H) and (3); (f) (4) ; (g) (1) (B)
forcement of criminal laws, including police efforts to prevent,
and (C), and (3).
control, or reduce crime or to apprehend criminals, and the activ-
(m) ANNUAL REPORT.-The President shall submit to the Speaker of
ities of prosecutors, courts, correctional, probation, pardon, or
the House and the President of the Senate, by June 30 of each calendar
parole authorities, and which consists of (A) information com-
year, a consolidated report, separately listing for each Federal agency
piled for the purpose of identifying individual criminal offenders
the number of records contained in any system of records which were
and alleged offenders and consisting only of identifying data and
exempted from the application of this section under the provisions of
notations of arrests, the nature and disposition of criminal
subsections (j) and (k) of this section during the preceding calendar
charges, sentencing, confinement, release, and parole and proba-
year, and the reasons for the exemptions, and such other information
tion status; (B) information compiled for the purpose of a crimi-
as indicates efforts to administer fully this section.
nal investigation, including reports of informants and investiga-
APPENDIX
CORRESPONDENCE REGARDING COST ESTIMATE
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., September 19, 1974.
Hon. WILLIAM S. MOORHEAD,
Chairman, Foreign Operations and Government Information Sub-
committee, Committee on Government Operations, House of Rep-
resentatives, Washington, D.C.
DEAR MR. CHAIRMAN: This letter is to confirm the essence of our
discussions last evening in regard to the costs of implementing H.R.
16373, consistent with the amendments which we have proposed.
I would like to reiterate that it is extremely difficult to develop any
reliable estimate of the cost of this legislation, because it plows new
ground in areas where we have virtually no operating experience, and
there are SO many interdependent variables of unknown magnitude.
We have been working with the Executive Departments and Agen-
cies since May to develop cost estimates in connection with the privacy
provisions transmitted to you in our letter of June 19, 1974. Those
efforts have not yielded firm estimates, but rather have underscored
the difficulty which operating organizations are experiencing in at-
tempting to quantify the costs involved. Some of the major imponder-
ables we have encountered are:
There is considerable uncertainty, as confirmed by Senator
Ervin's study, about the total number and magnitude of personal
data systems currently being maintained by various government
agencies.
The disincentives to collecting personal data inherent in this
legislation will probably result in a reduction in the amount of
data collected and stored in various agency systems, and possibly
the elimination of some existing systems. However, the disincen-
tives to transferring personal data between agencies will have the
countereffect of stimulating more systems to meet the unique needs
of a given agency. There is considerable uncertainty about the off-
setting effects of these two factors.
It is difficult to predict the extent to which individuals will
exercise the rights afforded to them by this bill. For example,
how many people will inquire whether they are included in spe-
cific agency systems and how many will request copies of their
data or modifications of the data maintained about them.
There is uncertainty about the extent to which reduced effi-
ciencies in computer utilization resulting from the introduction
of safeguards will be offset by technological improvements
developed by industry.
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36
For the foregoing reasons, our estimate cannot have a high degree of
precision. Within those limitations, we believe the costs of implement-
ing H.R. 16373 will be on the order of $200 to $300 million per year
over the next four to five years, with an additional one-time start-up
cost of about $100 million, which would be expended within the first
two years. As previously indicated, there are some possible offsetting
ADDITIONAL VIEWS OF HON. BELLA S. ABZUG (CON-
factors which could reduce the actual cost. However, we believe that a
year's operating experience will be necessary before greater precision
CURRED IN BY HON. JOHN E. MOSS, HON. DANTE B.
in the cost estimates can be achieved.
FASCELL, HON. BENJAMIN S. ROSENTHAL, HON. JOHN
There is no doubt that privacy safeguards of the type envisioned
C. CULVER, HON. JOHN CONYERS, JR., HON. JAMES V.
in this bill will result in added costs of operations. We have appre-
STANTON, HON. CARDISS COLLINS, HON. JOHN L. BUR-
ciated the concern of the Subcommittee about costs, and their con-
TON, AND HON. GILBERT GUDE)
tinued efforts to minimize the cost impact as the bill has evolved. Our
estimate of the costs associated with the current draft are less than
H.R. 16373 is the product of many months of hard work by the
half of the costs which we had estimated for earlier drafts which were
members and staff of the Foreign Operations and Government Infor-
under consideration.
mation Subcommittee. During the course of these months, all of us
Sincerely,
who have been involved in the process of writing this legislation have
ROBERT H. MARIK,
learned a great deal about the complex concept of "privacy". Fortu-
Associate Director for Management and Operations.
nately, as a result of this learning experience, instigated by the intro-
duction of several excellent privacy bills, the bill which the full Gov-
ernment Operations Committee reported out on September 24th repre-
sents an improvement in a number of ways, both organizationally and
substantively, over earlier drafts of this bill. There is still room for
much improvement, however. We feel that there are several additions
and changes which must be made to strengthen the bill. In view of the
difficulty of maintaining a quorum and the pressure of time, these
could not be effectively considered at the full committee meeting, but
will be presented when the bill reaches the floor.
There are three basic weaknesses in the bill: the numerous and un-
justified exemption provisions, the failure to provide either liquidated
or punitive damages, and the lack of any administrative mechanism to
oversee the implementation of the bill.
EXEMPTIONS
We start with the premise that exemptions from the provisions of
this bill and of any bill designed to protect individual rights of pri-
vacy are justified only in the face of overwhelming societal interests.
Never should economy or efficiency or administrative convenience be
used to justify the exemption from or modification of any of the safe-
guard requirements set forth in this bill. Moreover, when exemptions
must be made, they must be defined in very specific terms.
The Committee bill sets forth six categories in which exemptions
may be made: (1) records maintained by the C.I.A., (2) certain rec-
ords maintained by criminal law enforcement agencies, (3) informa-
tion affecting national security within the scope of Section 552(b) (1)
of Title 5, U.S. Code, (4) investigatory material compiled for law en-
forcement purposes, both criminal and civil, (5) records maintained
in connection with certain protective services, and (6) records re-
quired by statute to be maintained and used solely for statistical re-
search or operating. Within any of these categories the bill delegates
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FORD
LIBRARY
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39
to the heads of the various Federal agencies the task of balancing indi-
necessity, cause additional expense and administrative inconvenience.
vidual rights against societal interests and of deciding which is para-
Only by providing a separate administrative agency with authority
mount. Few guidelines have been set forth, however, to enable agency
for implementing this legislation and coordinating the privacy pro-
heads to perform this rather delicate task.
grams of the various Federal agencies can we be assured of uniform,
We feel that there are, at most, only three areas where societal in-
effective enforcement of the rights guaranteed by this bill.
terest can be paramount to the individual rights provided by this bill
BELLA S. ABZUG,
(1) where granting an individual access to his or her records would
JOHN E. Moss,
seriously damage national defense or foreign policy; (2) where such
JAMES V. STANTON,
access would interfere with an active criminal prosecution; and (3)
GILBERT GUDE,
where records are required by law to be maintained for statistical re-
JOHN BURTON,
search or reporting purposes and are not, in fact, used to make deter-
DANTE B. FASCELL,
minations about identifiable individuals. By narrowing the exemption
JOHN CULVER,
categories and defining them in specific terms related to the use of rec-
CARDISS COLLINS,
ords rather than to the agency maintaining them, Congress could pro-
BENJAMIN ROSENTHAL,
vide agency heads with standards to meet in exercising their rule-
JOHN CONYERS, JR.,
making authority to grant exemptions. Only in this way can we be
assured that the constitutional rights of individuals will be protected
and will not be sacrificed to administrative discretion, expediency or
whim.
DAMAGES
The bill in its present form contains provisions for the assessment of
actual damages, court costs, and attorneys' fees in cases where an
agency is found to be in violation of the law. A provision allowing
court assessment of punitive damages, which is contained in the Senate
bill (S. 3418), was stricken in full committee. We feel strongly that
this provision should be restored to the bill. Actual damages resulting
from an agency's misconduct will, in most cases, be difficult to prove
and this will often effectively preclude an adequate remedy at law.
Moreover, if we are concerned with effectively deterring the willful,
arbitrary, or capricious disclosure or transfer of protected records, a
provision permitting a court to assess punitive damages or, at the
very least, liquidated damages is essential.
THE NEED FOR AN ADMINISTRATIVE AGENCY
Unlike the Senate bill, H.R. 16373 contains no provision for the es-
tablishment of an administrative body to oversee the implementation
of this legislation. We recognize the fact that some of our colleagues
feel it is wiser to wait and see how Federal agencies respond to privacy
legislation before establishing any oversight mechanism. No one, how-
ever, wants to repeat the experience of the Freedom of Information
Act in holding out rights to individuals but providing them only with
the costly and cumbersome mechanism of a judicial remedy. Therefore,
we would amend the bill to provide for the establishment of an admin-
istrative body to mediate conflicts between agencies and individuals,
to investigate complaints, hold hearings, and make findings of fact.
We would be more than naive if we failed to recognize that individ-
ual Federal agencies cannot be expected to take an aggressive role in
enforcing privacy legislation. Enforcement of the provisions of this
bill will be secondary to each agency's legislative mandate and will, of
ADDITIONAL VIEWS OF HON. JOHN N. ERLENBORN
(CONCURRED IN BY HON. PAUL N. McCLOSKEY, JR.,
HON. SAM STEIGER, HON. CHARLES THONE, AND HON.
ROBERT P. HANRAHAN)
The Committee states in this report, "H.R. 16373 attempts to strike
that delicate balance between two fundamental and conflicting needs-
on the one hand, that of the individual American for a maximum
degree of privacy over personal information he furnishes his govern-
ment, and on the other, that of the government for information about
individual citizens which it finds necessary to carry out its legitimate
functions."
We commend the members of the Committee for keeping this objec-
tive in mind when writing the bill. We believe that they have failed to
follow it, however, with regard to two important kinds of informa-
tion. Should the bill reach the Floor of the House, we shall therefore
offer an amendment to add these two kinds of information to the
categories which may be exempted from the provisions of the bill
which permit individuals to have access to records maintained about
them. The two, which we urge should be made items (5) and (6) in
subsection 552a (k), are:
-investigatory material compiled solely for the purpose of deter-
mining initial or continuing eligibility or qualification for Federal
employment, military service, Federal contracts, or access to classi-
fied information; and
-testing or examination material used for appointment, employ-
ment, or promotion in the Federal service.
With regard to these types of records, individual access would im-
pair the carrying out of legitimate functions of government. Those
functions are SO important that the principle of access to records
should be put aside here.
INVESTIGATORY MATERIAL
Government agencies must be able to choose the best applicants
for employment and military service if they are to fulfill their missions
most effectively. They must be able to select the best contractors to
perform additional necessary work. They must be especially careful in
certifying which individuals may view information the disclosure of
which could damage, in some cases severely, the national defense or
foreign policy of the United States.
To have the ability to make these important judgments, agencies
need honest opinions about the people they are investigating. The
Civil Service Commission, speaking for all agencies, has testified that
"Our long experience in investigations indicates that those who give
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42
witness to the qualifications and integrity of others are ordinarily far
more candid when the information is given under pledge of confidence
than they are when they presumably are speakng for publication."
If the information were to be available to the individuals to whom it
pertains, the government could not make a pledge of confidence to the
people whom it solicits for personal opinions. Future information
would not be forthcoming. Past information would be revealed, violat-
ing the privacy of the people who gave it. This would be a most unfor-
tunate result.
TESTING MATERIAL
The military services and the Civil Service Commission test
applicants to determine eligibility and ratings for military placement
and on merit system schedules. Individuals are informed of their
scores on these tests and how the scores compare with those of other
people who took the same examinations. Revealing the test questions
and answers in addition would not help the individuals in any way;
it certainly would not protect their privacy. This disclosure would
have only one result: the examination material would be made public.
As a result, to make all tests fair, examining agencies would have to
develop a new version of each test for each occasion on which it would
be given. This would be a needless expense.
In short, we seek not the invasion of privacy but the furtherance of
important government objectives in areas where privacy considera-
tions do not weigh heavily. We support most emphatically the pro-
tection of personal privacy, and offer this amendment only to improve
a bill which is directed toward that end.
JOHN N. ERLENBORN,
PAUL N. McCLoskey, Jr.,
SAM STEIGER,
CHARLES THONE,
ROBERT P. HANRAHAN.
Calendar No. 1127
93D CONGRESS
2d Session
}
SENATE
REPORT
No. 93-1183
PROTECTING INDIVIDUAL PRIVACY IN
FEDERAL GATHERING, USE AND
DISCLOSURE OF INFORMATION
REPORT
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
UNITED STATES SENATE
TO ACCOMPANY
S. 3418
TO ESTABLISH A PRIVACY PROTECTION COMMISSION, TO
PROVIDE MANAGEMENT SYSTEMS IN FEDERAL AGENCIES
AND CERTAIN OTHER ORGANIZATIONS WITH RESPECT TO
THE GATHERING AND DISCLOSURE OF INFORMATION
CONCERNING INDIVIDUALS, AND FOR OTHER PURPOSES
FORD & LIBRARY GERALD
SEPTEMBER 26, 1974.-Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
38-010
WASHINGTON : 1974
CONTENTS
Page
Purpose
1
Background
3
General statement
14
Coverage
17
Right of access and challenge
20
Law enforcement files
22
Privacy Commission
23
Enforcement
27
COMMITTEE ON GOVERNMENT OPERATIONS
Social Security numbers
28
SAM J. ERVIN, JR., North Carolina, Chairman
Mailing lists
31
JOHN L. McCLELLAN, Arkansas
CHARLES H. PERCY, Illinois
HENRY M. JACKSON, Washington
JACOB K. JAVITS, New York
EDWARD J. GURNEY, Florida
SECTION-BY-SECTION ANALYSIS
EDMUND S. MUSKIE, Maine
ABRAHAM RIBICOFF, Connecticut
WILLIAM V. ROTH, JR., Delaware
LEE METCALF, Montana
BILL BROCK, Tennessee
TITLE I-PRIVACY PROTECTION COMMISSION:
JAMES B. ALLEN, Alabama
Section 101-Establishment of Commission
33
LAWTON CHILES, Florida
Section 102-Personnel of the Commission
34
SAM NUNN, Georgia
WALTER D. HUDDLESTON, Kentucky
Section 103-Functions of the Commission
34
ROBERT BLAND SMITH, Jr., Chief Counsel and Staff Director
Section 104-Confidentiality of information
38
ELI E. NOBLEMAN, Counsel
Section 105-Powers of the Commission
38
W.P. GOODWIN, Jr., Counsel
Section 106-Commission study of other governmental
J. ROBERT VASTINE, Minority Counsel
and private organizations
39
BRIAN CONBOY, Special Counsel to the Minority
W. THOMAS FOXWELL, Staff Editor
Section 107-Reports
44
MARCIA J. MACNAUGHTON, Chief Consultant
TITLE II-STANDARDS AND MANAGEMENT SYSTEMS FOR HAN-
Dr. ALAN F. WESTIN, Special Consultant
DLING INFORMATION RELATING TO INDIVIDUALS:
Dr. CHRISTOPHER H. PYLE, Consultant
Section 201-Safeguard requirements for administrative,
MARK BRAVIN, Consultant
intelligence, statistical-reporting, and re-
(II)
search purposes
45
Section 202-Disclosure of information
68
Disclosure exceptions
70
Section 203-Exemptions
74
Section 204-Archival records
76
Section 205-Exceptions
77
Section 206-Mailing lists
78
TITLE III-MISCELLANEOUS:
Section 301-Definitions
78
Section 302-Criminal penalty
81
Section 303-Civil remedies
82
Section 304-Jurisdiction of District Courts
83
Section 305-Effective date
84
Estimated cost of legislation
84
Rollcall vote
85
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GERALO, FORD LIBRARY
Calendar No. 1127
93D CONGRESS
SENATE
REPORT
2d Session
No. 93-1183
PROTECTING INDIVIDUAL PRIVACY IN FEDERAL GATH-
ERING, USE AND DISCLOSURE OF INFORMATION
SEPTEMBER 26, 1974.-Ordered to be printed
Mr. ERVIN, from the Committee on Government Operations,
submitted the following
REPORT
FORD & LIBRARY GERALD
[To accompany S. 3418]
The Committee on Government Operations, to which was referred
the bill (S. 3418) to establish a Federal Privacy Board to oversee the
gathering and disclosure of information concerning individuals, to
provide management systems in Federal agencies, State and local
governments, and other organizations regarding such information, and
for other purposes, having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and an
amended title and recommends that the bill as amended do pass.
PURPOSE
The purpose of S. 3418, as amended, is to promote governmental
respect for the privacy of citizens by requiring all departments and
agencies of the executive branch and their employees to observe cer-
tain constitutional rules in the computerization, collection, manage-
ment, use, and disclosure of personal information about individuals.
It is to promote accountability, responsibility, legislative oversight,
and open government with respect to the use of computer technology
in the personal information systems and data banks of the Federal
Government and with respect to all of its other manual or mecha-
nized files.
It is designed to prevent the kind of illegal, unwise, overbroad,
investigation and record surveillance of law-abiding citizens produced
in recent years from actions of some over-zealous investigators, and
the curiosity of some government administrators, or the wrongful
disclosure and use, in some cases, of personal files held by Federal
agencies.
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2
3
It is to prevent the secret gathering of information on people or the
without the consent of the individual and proper guarantees,
creation of secret information systems or data banks on Americans
unless pursuant to open records laws, or unless it is for certain
by employees of the departments and agencies of the executive branch.
law enforcement or other purposes;
It is designed to set in motion for long-overdue evaluation of the
That they take certain administrative actions to keep account
needs of the Federal Government to acquire and retain personal
of the employees and people and organizations who have access
information on Americans, by requiring stricter review within agencies
of criteria for collection and retention.
to the system or file, and to keep account of the disclosures and
uses made of the information;
It is also to promote observance of valued principles of fairness and
individual privacy by those who develop, operate, and administer
That they establish rules of conduct with regard to therethical
other major institutional and organizational data banks of govern-
and legal obligations in developing and operating a computerized
ment and society.
or other data system and in handling personal data, and take
action to instruct all employees of such duties;
S. 3418 ACCOMPLISHES THESE PURPOSES IN FIVE MAJOR WAYS
That they not sell or rent the names and addresses of people
whose files they hold; and
First, it requires agencies to give detailed notice of the nature and
uses of their personal data banks and information systems and their
That they issue appropriate administrative orders, provide
computer resources. It requires a new Privacy Commission to main-
personnel sanctions, and establish appropriate technical and
tain and publish an information directory for the public, to examine
physical safeguards to insure the security of the information sys-
executive branch proposals for new personal data banks and systems,
tem and the confidentiality of the data.
and to report to Congress and the President if they adversely affect
Fourth, to aid in the enforcement of these legislative restraints, the
privacy and individual rights. It penalizes those who keep secret such
bill provides administrative and judicial machinery for oversight and
a personal information system or data bank.
for civil remedy of violations. To this end, the bill:
Second, the bill establishes certain minimum information-gathering
standards for all agencies to protect the privacy and due process
Gives the individual the right, with certain exceptions, to be
rights of the individual and to assure that surrender of personal infor-
told upon request whether or not there is a government record on
mation is made with informed consent or with some guarantees of
him or her, to have access to it, and to challenge it with a hearing
the uses and confidentiality of the information. To this end, it charges
upon request, and with judicial review in Federal Court;
agencies:
Establishes an independent Privacy Protection Commission
To collect, solicit and maintain only personal information that
with subpoena power and authority to receive and investigate
is relevant and necessary for a statutory purpose of the agency;
charges of violations of the Act and report them to the proper
officials; to develop model guidelines and assist agencies in imple-
To prevent hearsay and inaccuracies by collecting information
menting the Act; and to alert the President and Congress to
directly from the person involved as far as practicable;
proposed Federal information programs and data banks which
To inform people requested or required to reveal information
deviate from the standards and requirements of the Act; and
about themselves whether their disclosure is mandatory or volun-
Judicial remedies allow the enforcement of the act through the
tary, what uses and penalties are involved, and what confiden-
courts by individuals and organizations in civil actions challenging
tiality guarantees surround the data once government acquires
denial of access to personal information or through suits by the
it; and
Attorney General or any aggrieved person to enjoin violations or
To establish no program for collecting or maintaining infor-
threatened violations of the Act.
mation on how people exercise First Amendment rights without
Fifth, the bill requires the Commission to make a study of the
a strict reviewing process.
major data banks and computerized information systems of other
Third, the bill establishes certain minimum standards for handling
governmental agencies and of private organizations and to recommend
and processing personal information maintained in the data banks
any needed changes in the law governing their practices or the ap-
and systems of the executive branch, for preserving the security of
plication of all or part of this legislation in order to protect the privacy
the computerized or manual system, and for safeguarding the con-
of the individual.
fidentiality of the information. To this end, it requires every depart-
BACKGROUND
ment and agency to insure, by whatever steps they deem necessary:
The Committee on Government Operations' ad hoc Subcommittee
That the information they keep, disclose, or circulate about
on Privacy and Information Systems conducted hearings on June 18,
citizens is as accurate, complete, timely, and relevant to the
19, and 20, 1974, to consider S. 3418, cosponsored by Senators Ervin,
agency's needs as possible;
Percy, Muskie, and Ribicoff. The hearings were held jointly with the
That they refrain from disclosing it unless necessary for em-
ployee duties, or from making it available outside the agency
5
4
Judiciary Committee's Subcommittee on Constitutional Rights which
S. 3418 provides an "Information Bill of Rights" for citizens and a
was considering the following legislation on related issues:
"Code of Fair Information Practices" for departments and agencies
of the executive branch.
S. 2810, introduced by Senator Goldwater, to protect the constitu-
Testimony and statements were received from Members of Congress
tional right of privacy of individuals concerning whom identifying
who have sponsored legislation and conducted investigations into
numbers or identifiable information is recorded by enacting principles
complaints from citizens; from Federal, State, and local officials includ-
of information practice in furtherance of amendments I, III, IV, X,
ing representatives of the Administration and certain departments
and XIV of the U.S. Constitution;
and agencies, the Domestic Council Committee on Right to Privacy,
S. 2542, introduced by Senator Bayh to protect the constitutional
the Commerce Department, Bureau of the Census, National Bureau
right of privacy of those individuals concerning whom records are
of Standards, the General Services Administration, the Office of
maintained; and
Telecommunications Policy; the National Governors Conference, the
National Legislative Conference, the National Association for State
S. 3116, introduced by Senator Hatfield, to protect the individual's
Information Systems, and the Government Management Information
right to privacy by prohibiting the sale or distribution of certain
Sciences. Many interested organizations and individuals with expert
information.
knowledge of the subject advised the Committee. These included the
COMMITTEE OVERSIGHT
former Secretary of Health, Education, and Welfare, Elliot Richard-
These hearings continued the oversight by the Government Opera-
son, authors of major studies, experts in computer technology, consti-
tions Committee of the development and proper management of auto-
tutional law, and public administration, the American Civil Liberties
mated data processing in the Federal Government and its concern for
Union, Liberty Lobby, the National Committee for Citizens in
the effect on Federal-State relations of national and intergovernmental
Education, the American Society of Newspaper Editors, and others.
data systems involving electronic and manual transmission, sharing,
The provisions of the bill as reported, reflect the bill as introduced,
and distribution of personal information about citizens.
with revisions based on testimony of witnesses at hearings, consulta-
tions with experts in privacy, computer technology, and law, repre-
Senator Ervin announced the joint hearings as Chairman of both
sentatives of Federal agencies and of many private organizations and
subcommittees, in a Senate speech on June 11 in which he summarized
businesses, as well as the staffs of a number of congressional com-
the issues and described some of the complaints from citizens which
mittees engaged in investigations related to privacy and governmental
have been received by Members of Congress, as follows:
information systems.
It is a rare person who has escaped the quest of modern
The Committee finds that the need for enactment of these provisions
government for information. Complaints which have come
is supported by the investigations and recommendations of numerous
to the Constitutional Rights Subcommittee and to Con-
congressional committees, reports of bar associations, and others
gress over the course of several administrations show that
organizations, and conclusions of governmental study commissions.
this is a bipartisan issue which effects people in all walks of
To cite only a few, there are:
life. The complaints have shown that despite our reverence
Earlier studies of computers and information technology by the
for the constitutional principles of limited Government and
Senate Committee on Government Operations and the current
freedom of the individual, Government is in danger of tilting
hearings and studies relating to S. 3418;
the scales against those concepts by means of its information-
The hearings and studies on computers, data banks and the bill
gathering tactics and its technical capacity to store and distrib-
of rights and other investigations of privacy violations before the
ute information. When this quite natural tendency of Gov-
Constitutional Rights Subcommittee;
ernment to acquire and keep and share information about
The hearings and studies of computer privacy and government
citizens is enhanced by computer technology and when it is
information-gathering before the Judiciary Administrative Prac-
subjected to the unrestrained motives of countless political
tices Subcommittee;
administrators, the resulting threat to individual privacy
The hearings on insurance industries and other data banks
make it necessary for Congress to reaffirm the principle of
before the Judiciary Antitrust Subcommittee;
limited, responsive Government on behalf of freedom.
The hearings on abuses in the credit reporting industries and on
The complaints show that many Americans are more con-
protection of bank records before the Senate Banking, Housing
cerned than ever before about what might be in their records
and Urban Affairs Committee;
because Government has abused, and may abuse, its power to
Investigations over many years by the House Government
investigate and store information.
Operations Committee; and
They are concerned about the transfer of information from
Finally, there are many revelations during the hearings before
data bank to data bank and black list to black list because
the Select Committee on Watergate of improper access, transfer
they have seen instances of it.
and disclosure of personal files and of unconstitutional, illegal or
They are concerned about intrusive statistical question-
improper investigation of and collection of personal information
naires backed by the sanctions of criminal law or the threat
on individuals.
of it because they have been subject to these practices over a
number of years.
S.R. 1183-2
6
7
Particularly supportive of the principles and purposes of-S. 3418 are
with his judgment that the mid-1970's is precisely the moment when
the following reports sponsored by Government agencies:
such standards need to be defined and installed if the managers of large
1. "Legal Aspects of Computerized Information Systems" by the
data systems, and the specialists of the computer industry, are to have
Committee on Scientific and Technical Information, Federal
the necessary policy guidelines around which to engineer the new data
Council of Science and Technology, 1972.
systems that are being designed and implemented.
Dr. Westin cautioned:
2. "Records, Computers and the Rights of Citizens", Report of
the Secretary's Advisory Committee on Automated Personal
To delay congressional action in 1974-75, therefore, is to
Data Systems, Department of Health, Education and Welfare,
assure that a large number of major data systems will be
built, and other existing computerized systems expanded, in
July 1973.
ways that will make it extremely costly to alter the software,
3. "Databanks in a Free Society, Computers, Record-Keeping
change the file structures, or reorganize the data flows to
and Privacy", of the Computer Science and Engineering Board,
respond to national standards. And beyond the money, such
National Academy of Sciences, by Alan F. Westin and Michael
late changes threaten to jeopardize many operations in vital
Baker.
public services that will be increasingly based on compu-
4. Technical Reports by Project Search Law Enforcement
terized systems-national health insurance, family assistance
Assistance Administration, Department of Justice.
plans, national criminal-offender records, and many others.
In fact, these systems may become so large, so expensive,
5. A draft study by the Administrative Conference of the
and SO vital to SO many Americans that public opinion will
United States on Interagency Transfers of Information.
be put to a terrible choice-serious interruption of services
6. Report by the National Governors Conference.
or installation of citizen-rights measures.
7. Reports by international study bodies.
The spread of the data bank concept, the increasing computerization
of sensitive subject areas relating to people's personal lives and
The ad hoc subcommittee has initiated two surveys of the Governors
activities, and the tendency of government to put information tech-
and of the attorneys general of the States which are producing re-
nology to uses detrimental to individual privacy were detailed by
sponses supportive of congressional legislation on privacy and Federal
Professor Arthur Miller. He stated:
computers and information technology. They also reveal strong efforts
in State and local governments to enact similar or stronger legislation
Americans today are scrutinized, measured, watched,
to protect privacy.
counted, and interrogated by more governmental agencies,
The need for the bill is also evident from the sample of legal literature
law enforcement officials, social scientists and poll takers
and public administration articles and press articles reprinted in the
than at any other time in our history. Probably in no Nation
appendix of the subcommittee hearings.
on earth is as much individualized information collected,
Finally, there are the complaints of information abuses received by
recorded and disseminated as in the United States.
many Members of Congress and diligently investigated by each of
The information gathering and surveillance activities of
them.
the Federal Government have expanded to such an extent
Dr. Alan F. Westin, director of the 1972 National Academy of
that they are becoming a threat to several of every Ameri-
Sciences Project, reported that the study suggested "six major areas
can's basic rights, the rights of privacy, speech, assem-
of priority for public action: laws to give individuals a right of notice,
bly, association, and petition of the Government.
access, and challenge to virtually every file held by local, State, and
*
national government, and most private record systems as well; pro-
mulgation of clearer rules for data-sharing and data-restriction than
I think if one reads Orwell and Huxley carefully, one
we now have in most important personal data files; rules to limit the
realizes that "1984" is a state of mind. In the past, dictator-
collection of unnecessary and overbroad personal data by any or-
ships always have come with hobnailed boots and tanks and
ganization; increased work by the computer industry and professionals
machineguns, but a dictatorship of dossiers, a dictatorship
on security measures to make it possible for organizations to keep their
of data banks can be just as repressive, just as chilling and
promises of confidentiality; limitations on the current, unregulated use
just as debilitating on our constitutional protections. I think
of the Social Security number; and the development of independent,
it is this fear that presents the greatest challenge to Con-
'information-trust" agencies to hold especially sensitive personal
gress right now.
data, rather than allowing these data to be held automatically by
Professor Miller characterized the reported bill as "a major step
existing agencies."
in developing a rationale regulatory scheme for achieving an effective
Witnesses cited the failure of legislation and judicial decisions to
balance between a citizen and the Government in the important field
keep pace with the growing efficiency of data usage by promulgating
of information privacy. The creation of a Privacy Protection Com-
clear standards for data collection, data exchange, and individual
mission with broad power of investigation, reporting, and suasion
access rights. Similarly, many other witnesses before Congress agreed
seems to me to be an effective way of developing policy in this rapidly
8
9
changing environment. Also worthy of enthusiastic support is Title II
ciples that would be given legal effect as "safeguard requirements"
of the proposed legislation. We simply cannot allow more time to pass
for automated personal data systems.
without developing standards of care with regard to the gathering
and handling of personal information. In that regard, S. 3418 goes
There must be no personal data record-keeping systems whose
a long way to establish the much needed information bill of rights.'
very existence is secret.
The four-year survey by the Constitutional Rights Subcommittee,
intended as an aid to Congress in evaluating pending legislation,
There must be a way for an individual to find out what informa-
tion about him is in a record and how it is used.
demonstrates the need for requiring the following Congressional
action:
There must be a way for an individual to prevent information
about him that was obtained for one purpose from being used
Explicit statutory authority for the creation of each data bank,
or made available for other purposes without his consent.
as well as prior examination and legislative approval of all
decisions to computerize files;
There must be a way for an individual to correct or amend a
record of identifiable information about him.
Privacy safeguards built into the increasingly computerized
government files as they are developed, rather than merely
Any organization creating, maintaining, using, or disseminating
attempting to supplement existing systems with privacy
records of identifiable personal data must assure the reliability
protections;
of the data for their intended use and must take precautions to
prevent misuse of the data.'
Notification of subjects that personal information about them
is stored in a Federal data bank and provision of realistic op-
The Advisory Committee recommended "the enactment of legis-
portunities for individual subjects to review and correct their
lation establishing a Code of Fair Information Practice for all auto-
own records;
mated personal data systems as follows:
Constraints on interagency exchange of personal data about
The Code should define "fair information practice" as adherence
individuals and the creation of interagency data bank coopera-
to specified safeguard requirements.
tives;
The Code should prohibit violation of any safeguard requirement
The implementation of strict security precautions to protect
as an "unfair information practice."
the data banks and the information they contain from unauthor-
The Code should provide that an unfair information practice be
ized or illegal access; and
subject to both civil and criminal penalties.
Continued legislative control over the purposes, contents
The Code should provide for injunctions to prevent violation of
and uses of government data systems.
any safeguard requirement.
HEW REPORT
The Code should give individuals the right to bring suits for unfair
information practices to recover actual, liquidated, and punitive
Another report reflecting major provisions of S. 3418 is that rendered
damages, in individual or class actions. It should also provide for
by the Secretary's Advisory Committee on Automated Personal
recovery of reasonable attorneys' fees and other costs of litiga-
Data Systems to the Department of Health, Education and Welfare.
tion incurred by individuals who bring successful suits."
Former Secretary Elliot Richardson described their findings in his
testimony.
Pending the enactment of a code of fair information practice, the
The report found that "concern about computer-based record
Advisory Committee also recommended that all Federal agencies
keeping usually centers on its implications for personal privacy, and
apply these requirements to all Federal systems, and assure through
understandably SO if privacy is considered to entail control by an
formal rulemaking that they are applied to all other systems within
individual over the uses made of information about him. In many
reach of the Federal government's- authority. Beyond the Federal
circumstances in modern life, an individual must either surrender
Government, they urged that state and local governments, the institu-
some of that control or forego the services that an organization pro-
tions within reach of their authority, and all private organizations
vides. Although there is nothing inherently unfair in trading some
adopt the safeguard requirements by whatever means are appropriate.
measure of privacy for a benefit, both parties to the exchange should
Revolutionary changes in data collection, storage and sharing
participate in setting the terms."
were described by Senator Goldwater, who was one of many wit-
"Under current law, a person's privacy is poorly protected against
nesses who called for enactment of the recommendations of the HEW
arbitrary or abusive record-keeping practices." For this reason, as
Advisory Committee. He stated:
well as because of the need to establish standards of record-keeping
Computer storage devices now exist which make it entirely
practice appropriate to the computer age, the report recommends the
practicable to record thousands of millions of characters of
enactment of a Federal "Code of Fair Information Practice" for all
information, and to have the whole of this always available
automated personal data systems. The Code rests on five basic prin-
*Records, Computers, and the Rights of Citizens, U.S. Department of Health, Education and Welfare,
1973, p. IX.
10
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for instant retrieval
Distance is no obstacle. Communica-
GSA to obtain personal information from the files of many
tions circuits, telephone lines, radio waves, even laster beams,
Federal departments. It is portrayed as the largest single
can be used to carry information in bulk at speeds which can
governmental purchase of civilian data communication
match the computer's own. Time-sharing is normal
we
in history.
are now hearing of a system whereby it is feasible for there
I am concerned that Federal protection of individual
to be several thousands of simultaneous users or terminals.
privacy is not yet developed to the degree necessary to pre-
Details of our health, our education, our employment, our
vent FEDNET from being used to probe into the lives of
taxes, our telephone calls, our insurance, our banking and
individuals. Before building a nuclear reactor, we design the
financial transactions, pension contributions, our books
safeguards for its use. We also require environmental impact
borrowed, our airline and hotel reservations, our professional
statements specifying the anticipated effect of the reactor's
societies, our family relationships, all are being handled by
operation on the environment. Prior to approving a vast
computers right now. Unless these computers, both govern-
computer network affecting personal lives, we need a com-
mental and private, are specifically programmed to erase
parable privacy impact statement. We must also consider
unwanted history, these details from our past can at any time
the fallout hazards of FEDNET to traditional freedoms.
be reassembled to confront us
We must program the pro-
Examples
grammers while there is still some personal liberty left.
The Committee has found that the concern for privacy is a bi-
The revelations before the Select Committee to Investigate Presi-
dential Campaign Activities concerning policies and practices of
partisan issue and knows no political boundaries. President Ford, as
promoting the illegal gathering, use or disclosure of information on
Vice-President, chaired a Domestic Council Committee on the Right
Americans who disagreed with governmental policies were cited by
of Privacy which was established by President Nixon in February
almost all witnesses as additional reasons for immediate congressional
1974. In recent address on the subject, he stated:
action on S. 3418 and other privacy legislation. The representative of
In dealing with troublesome privacy problems, let us not,
the American Civil Liberties Union stated:
however, scapegoat the computer itself as a Frankenstein's
Watergate has thus been the symbolic catalyst of a tremen-
monster. But let us be aware of the implications posed to free-
dous upsurge of interest in securing the right of privacy:
dom and privacy emerging from the ways we use computers
wiretapping and bugging political opponents, breaking and
to collect and disseminate personal information. A concerned
entering, enemies lists, the Huston plan, national security
involvement by all who use computers is the only way to
justifications for wiretapping and burglary, misuse of
produce standards and policies that will do the job. It
information compiled by government agencies for political
is up to us to assure that information is not fed into the
purposes, access to hotel, telephone and bank records; all
computer unless it is relevant.
of these show what government can do if its actions are
Even if it is relevant, there is still a need for discretion.
shrouded in secrecy and its vast information resources are
A determination must be made if the social harm done from
fashion. applied and manipulated in a punitive, selective, or political
some data outweighs its usefullness. The decision-making
process is activated by demands of people on the government
Despite such current concern, Congressional studies and complaints
and business for instant credit and instant services. Com-
to Congress show that the threats to individual privacy from the
puter technology has made privacy an issue of urgent
curiosity of administrators and salacious inquiries of investigators
national significance. It is not the technology that concerns
predated "Watergate" by many years. These have been described at
me but its abuse. I am also confident that technology capable
length in the hearing record on S. 3418.
of designing such intricate systems can also design measures
For example, under pain of civil and criminal sanctions, many
to assure security.
people have been selected and told to respond to questions on statis-
FEDNET
tical census questionnaires such as the following:
In the same address, the Vice-President called attention to FED-
How much rent do you pay?
NET and problems involved in a proposed centralization of computer
Do you live in a one-family house?
facilities which concerned several Congressional committees and which
provisions in S. 3418 would correct. He stated:
If a woman, how many babies have you had? Not counting still
births.
The Government's General Services Administration has
How much did you earn in 1967?
distributed specifications for bids on centers throughout the
country for a massive new computer network. It would have
If married more than once, how did your first marriage end?
the potential to store comprehensive data on individuals and
Do you have a clothes dryer?
institutions. The contemplated system, known as FEDNET,
would link Federal agencies in a network that would allow
Do you have a telephone, if so, what is the number?
12
13
Do you have a home food freezer?
I am very seldom troubled by constipation.
Do you own a second home?
My sex life is satisfactory.
Does your TV set have UHF?
At times I feel like swearing.
Do you have a flush toilet?
I have never been in trouble because of my sex behavior.
Do you have a bathtub or shower?
I do not always tell the truth.
The studies show that thousands of questionnaires are sent out
I have no difficulty in starting or holding my bowel movements.
yearly asking personal questions, but people are not told their re-
sponses are voluntary; many think criminal penalties attach to them;
I am very strongly attracted by members of my own sex.
it is difficult for them to find out what legal penalties attach to a denial
I like poetry.
of the information or what will be done with it. If they do not respond,
I go to church almost every week.
reports show that they are subjected to telephone calls, certified
follow-up letters, and personal visits. Much of this work is done by
I believe in the second coming of Christ.
the Census Bureau under contract, and many people believe that
I believe in a life hereafter.
whatever agency receives the responses, their answers are subject to
My mother was a good woman.
the same mandatory provisions and confidentiality rules as the
decennial census replies. A Senate survey revealed that in 3 years
I believe my sins are unpardonable.
alone the Census Bureau had provided their computer services at the
I have used alcohol excessively.
request of 24 other agencies and departments for conducting voluntary
I loved my Mother.
surveys covering over 6 million people. Other independent voluntary
surveys were conducted by the agencies themselves on subjects
I believe there is a God.
ranging from bomb shelters, to smoking habits, to birth control
Many of my dreams are about sex matters.
methods, to whether people who had died had slept with the window
open. The form usually asked for social security number, address and
At periods my mind seems to work more slowly than usual.
phone number.
I am considered a liberal "dreamer" of new ways rather than
One such survey technique came to light through complaints to
a practical follower of well-tried ways. (a) true, (b) uncertain,
Congress from elderly, disabled or retired people in all walks of life who
(c) false.
were pressured to answer a 15-page form sent out by the Census
Bureau for the Department of Health, Education and Welfare which
When telling a person a deliberate lie, I have to look away,
asked:
being ashamed to look him in the eye. (a) true, (b) uncertain,
(c) false.
What have you been doing in the last 4 weeks to find work?
Taking things all together, would you say you are very happy,
First Amendment Programs: the Army
pretty happy, or not too happy these days?
Section 201 (b) (7) prohibits departments and agencies from under-
Do you have any artificial dentures?
taking programs for gathering information on how people exercise
their First Amendment rights. Section 201(a) prevents them from
Do you-or your spouse-see or telephone your parents as
collecting and maintaining information which is not relevant to a
often as once a week?
statutory purpose.
What is the total number of gifts that you give to individuals
The need for these provisions have been made evident in many ways.
per year?
In addition to federal programs for asking people questions such as
whether they "believe in the second coming of Christ," there have
How many different newspapers do you receive and buy
regularly?
been numerous other programs affecting First Amendment rights.
One of the most pervasive of the intrusive information programs
About how often do you go to a barber shop or beauty salon?
which have concerned the Congress and the public in recent years
What were you doing most of last week?
involved the Army surveillance of civilians, through its own records
and those of other federal agencies. The details of these practices have
Applicants for Federal jobs in some agencies, and employees in
been documented in Congressional hearings and reports and were
certain cases, have been subjected to programs requiring them to
summarized by Senator Ervin as follows:*
answer forms of psychological tests which contained questions such
as these:*
Hearings before the Subcommittee on Constitutional Rights of the Judiciary Committee, 4 Columbia
Human Rights Review (1972) Hearings, 92d Cong., 2d sess. February 1971.
*Senate Report 93-724, to accompany S. 1688. "To Protect the Privacy and Rights of Federal Employees."
The report describes other similar programs for soliciting, collecting or using personal information from
and about applicants and employees. S. 1688 has been approved by the Senate five times.
S.R. 1183-3
14
15
Despite First Amendment rights of Americans, and de-
imposing coercive information burdens on citizens or for invading
spite the constitutional division of power between the federal
areas of thought, belief or personal life which should be beyond the
and state governments, despite laws and decisions defining
reach of the Federal data collector.
the legal role and duties of the Army, the Army was given
the power to create an information system of data banks
and computer programs which threatened to erode these
The myriad rules and regulations reflecting many years of ad hoc
restrictions on governmental power.
policy decisions to meet the information needs of administrators facing
Allegedly for the purpose of predicting and preventing
problems of the political moment will, under this bill, be replaced by a
civil disturbances which might develop beyond the control
rule of law. The Committee emphasizes that enactment of such general
of state and local officials, Army agents were sent throughout
legislation in no way precludes specific legislation to govern records for
the country to keep surveillance over the way the civilian
special programs in such areas as tax, finance, health, welfare, census,
population expressed their sentiments about government
and law enforcement. Furthermore, it should not be construed as a
policies. In churches, on campuses, in classrooms, in public
final statement by Congress on the right of privacy and other related
meetings, they took notes, taperecorded, and photographed
rights as they may be developed or interpreted by the courts.
people who dissented in thought, word or deed. This included
* * *
clergymen, editors, public officials, and anyone who sym-
pathized with the dissenters.
The Committee affirms that the present statutory division of
executive branch power among the departments and agencies and
With very few, if any, directives to guide their activities,
bureaus promotes accountability and is most conducive to legislative
they monitored the membership and policies of peaceful
oversight, Presidential management, and responsiveness to the public
organizations who were concerned with the war in Southeast
will. We believe that the creation of formal or de facto national data
Asia, the draft, racial and labor problems, and community
banks, or of centralized Federal information systems without certain
welfare. Out of this surveillance the Army created blacklists
statutory guarantees would tend to defeat these purposes, and threaten
of organizations and personalities which were circulated to
the observance of the values of privacy and confidentiality in the
many federal, state and local agencies, who were all requested
administrative process. The Committee therefore intends in S. 3418
to supplement the data provided. Not only descriptions of
to require strict reporting by agencies and departments and meaningful
the contents of speeches and political comments were in-
congressional and executive branch review of any proposed use of
cluded, but irrelevant entries about personal finances,
information technology which might tend to further such negative
such as the fact that a militant leader's credit card was
developments.
withdrawn. In some cases, a psychiatric diagnosis taken
***
from Army or other medical records was included.
This information on individuals was programmed into at
The Committee recognizes that the computer is an instrument
least four computers according to their political beliefs, or
which is absolutely essential to the proper transaction of many gov-
their memberships, or their geographic residence.
ernment programs, and that the collection of information from the
The Army did not just collect and share this information.
individual is absolutely necessary to carry out those programs.
Analysts were assigned the task of evaluating and labeling
Also necessary to modern government is the science of management
these people on the basis of reports on their attitudes,
of the many aspects of information technology and its related pro-
remarks and activities. They were then coded for entry
fessional personnel which have been incorporated very rapidly into
into computers or microfilm data banks.
the administrative processes of the Federal Government.
At the same time, however, the Committee believes that in the
GENERAL STATEMENT
management of computer systems and all other aspects of information
technology, a special status must be accorded to the issue of individual
The premise underlying this legislation is that good government and
privacy, that is, the right of an individual to have such gathering
efficient management require that basic principles of privacy, con-
of personal information as may be collected by the Government con-
fidentiality and due process must apply to all personal information
fined to that for which there is a legitimate use, and then secondly,
programs and practices of the Federal Government, and should apply
after it is gathered, to have access to that information confined to
to those of State and local government as well as to those of the organi-
those who have a governmental end in view for its use, and thirdly,
zations, agencies and institutions of the private sector.
to be assured by government that there is as little leakage as possible
The need for such a general legislative formula is made necessary by
to unauthorized persons.
the haphazard patterns of information swapping among government
The present legislation is designed to foster these goals in the ad-
agencies, the diversity of confidentiality rules and the unevenness of
ministrative processes of the executive branch. The Committee
their application within and among agencies. The lack of self-restraint
believes that the bill strikes a balance between governmental needs
in information-gathering from and about citizens on the part of some
and the personal freedoms of the individual.
agencies has demonstrated the potential throughout government for
FORD
GERALD
LIBRARY
16
17
The complexities and scale of modern government make it impossi-
A useful statement is offered by the report on Data Banks in a Free
ble for Congress or the courts to monitor every decision made which
Society project by the National Academy of Sciences, which dis-
involves personal information. The bill therefore depends partly for
tinguishes them in the following terms:
its enforcement on the individual data subject and makes that person
a participant in government's decision to exercise its information
Privacy is independent of technological safeguards; it in-
volves the social policy issues of what information should be
power over an individual.
collected at all and how much information should be as-
sembled in any one information system. (For purposes of
The Committee is convinced that legislation cannot and should not
the principles implemented by this bill for the Federal exec-
be neutral toward the information technology by means of which the
utive branch, the Committee means this to include consti-
Federal Government affects individual rights. Certain kinds of in-
tutional and statutory prohibitions or restraints.)
formation should not be collected or maintained or disclosed by
Confidentiality is the central issue for which technological
government agencies because to do so is either unconstitutional, unfair,
safeguards are relevant. Where an organization has promised
unwise, or simply bad management of the people's business. This
those from whom it collects information that unauthorized
means, furthermore, that certain computer hardware and software
uses will not be made by persons inside or outside that
used to operate the information systems of government should provide
agency, making good that promise of confidentiality requires
features which will promote the necessary security of any part of the
system and the confidentiality of the information processed and
files. record security controls in both manual and computerized
handled by means of it.
* * *
"Privacy", then, is a shorthand term for the restraint on the power
The bill does not rest solely on the findings of any one report or
of government to investigate individuals, to collect information about
study, but on review and consideration of all of the studies cited here.
their personal lives and activities in society or in ways which are
The Committee is convinced that effective legislation must provide
banned by the Constitution, or for reasons which have little or nothing
standards for and limitations on the information power of government.
to do with the purpose of government or of the agency involved, as
Providing a right of access and challenge to records, while important,
their powers are defined by the Constitution and specific statutes.
is not sufficient legislative solution to threats to privacy. Contrary to
Therefore, the Committee believes that the conclusions of study
the views of Administration spokesmen it is not enough to tell agencies
groups set up in the executive branch to study computer technology
to gather and keep only data which is reliable by their rights for what-
must be supplemented by the complaints from citizens and evidence
ever they determine is their intended use, and then to pit the indi-
gathered by numerous congressional committees on the over-reach of
vidual against government, armed only with a power to inspect his
its information power by the Federal executive branch. This charac-
file, and a right to challenge it in court if he has the resources and the
teristic distinguishes S. 3418 from other proposals on "privacy."
will to do SO.
To leave the situation there is to shirk the duty of Congress to
STATE LAWS
protect freedom from the incursions by the arbitrary exercise of the
power of government and to provide for the fair and responsible use of
S. 3418 is further needed to complement State and minicipal laws
that power. For this reason, the Committee deems especially vital the
and regulations which have been adopted to protect individual privacy
restrictions in section 201 which deal with what data are collected and
and confidentiality of records, and which, in some cases, provide more
by what means. For this reason, the establishment of the Privacy Com-
detailed and more effective protections than S. 3418. Governors and
mission is essential as an aid to enforcement and oversight.
others have expressed concern that despite all the States may do to
The Committee views the standards of statutory relevance for
provide guarantees, they are not effective once the data are integrated
data gathering as minimum and as paving the way for more specific
in a Federal information system or transferred to a Federal data
guarantees in each area. The Committee rejects in part and supple-
legislatures. bank. S. 3418 will safeguard and supplement the efforts of State
ments the position of the White House representative, the Chairman
of the Domestic Council Committee on Right of Privacy, who testified
COVERAGE: PRIVATE, STATE AND LOCAL
that "the Federal Government should collect from individuals only
the amount and types of information that are reasonably necessary
As reported, the bill applies to Federal personal information sys-
for public protection." He stated "I do not think it is possible to de-
tems, whether automated or manual, and to those of State, local and
velop a standard of reasonableness in any more precise way than to
private organizations which are specifically created or substantially
ask people to exercise their very best judgment and to exercise the
altered through grant, contract or agreement with Federal agencies,
utmost restraint in the amount of information they collect."
where the agency causes provisions of the act to be applied to such
The Committee found many helpful definitions of privacy and con-
systems or files or relevant portions.
fidentiality in seeking to define the concepts and principles developed
As introduced, S. 3418 applied to all governmental and private
in the provisions of S. 3418.
organizations which maintained a personal information system, under
supervision of a strong regulatory body, with provision for delegating
power to State instrumentalities.
18
19
The Committee has cut back on the bill's original coverage and
Problems of privacy, standards, confidentiality and security in
ordered the Privacy Commission to make a study of State, local and
medical and health records programs were described for the sub-
private data banks and recommend precise application of the Act
committee by doctors in private practice and in State government.
where needed.
Extension of legislative coverage to student records procedures for
The original coverage reflected the recommendations of the HEW
gathering, disclosure, and dire process in educational records was
Secretary's Committee for "enactment of its code of fair information
advocated by Senator James L. Buckley and by witnesses for the
practice for all automated personal data systems," but which noted
Citizens Committee for Education.
that it would "wisely be applied to all personal data systems whether
Other witnesses advocated coverage of State and local systems, but
automated or manual."
not of the private sector.
Hearing witnesses and other commentators advocated nationwide
Despite calls by these and other witnesses for total or partial
application of the Act to protect individual privacy and other rights
coverage, the Committee was persuaded to delay a decision on total
from invasion by Government and the institutions and organizations
application by considerations of time and investigative resources for
of society.
developing a full hearing record and for drafting the needed complex
Total coverage was advocated by the representative of the American
legislative solution for information abuses in the private sector, beyond
Civil Liberties Union citing examples of cases and programs to show
those presently covered by the Fair Credit Reporting Act and its
that information collected by State, local and private institutions can
pending amendments.
be every bit as harmful to the individual. These included the reported
Former Secretary of Health, Education, and Welfare Elliot Richard-
need for additional controls over the retail credit industry, whose five
son noted the lack of a precise hearing record and suggested legisla-
largest companies maintain files on 54 million people; the Medical
tion "to establish authority in an existing Federal agency or in some
Information Bureau in Greenwich, Connecticut, a major source of
new instrumentality established in part for that purpose, to make
medical information on 13 million Americans for life insurance com-
inquiry, hold hearings, and report to Congress if it finds a prima
panies; the use by the banking industry of an Electronic Funds
facie showing of need for legislation to assure fair information practice
Transfer System to centralize an individual's charges all over the
in some particular industry or other segment of the nongovernmental
community and automatically deduct them from the individual's
organizations of America. Congress could then take whatever action
bank account; the uncontrolled access to customer records and can-
toward developing additional legislation seemed necessary."
celled checks afforded by financial institutions to law enforcement
Mr. Richardson endorsed coverage of State and local activities
officials and other investigators in the absence of subpena and notice
"substantially affected by their relationships with Federal agencies,
to the individual.
as a consequence of (1) Federal fiscal contributions, (2) Federal
Professor Miller testified in 1971 on behalf of a regulatory com-
record-keeping or data-collection and reporting requirements, or (3)
mission with power to embrace the activities of "non-Federal informa-
cooperative arrangements among intergovernmental personal data
tion gatherers that might adversely affect the rights we are trying
system."
to protect. The regulators should be particularly attentive to the
Dr. Westin, while endorsing coverage of intergovernmental com-
interlocking relationships that have begun to spring up between
puters systems, opposed the total coverage of the original bill, citing
Federal and local data handlers in the law enforcement field and the
'the impracticality and dangers involved in trying to regulate and
fact that many of the Nation's major corporations maintain dossiers
register many tens or hundreds of thousands of files of every kind."
on millions of Americans. Close scrutiny of the latter category of data
He recommended "an instrumentality to lead private organizations
banks is becoming imperative because there is growing reason to
to adopt codes of fair information practice as thier voluntary policies,
believe that these files are exchanged both within the private sector
and proposed creating a national commission on private, interstate
and with law enforcement and surveillance groups at all levels of
personal data systems." This commission should, testified Dr. Westin,
government. In short, once standards are established for Federal
"examine the conduct of those nationwide personal data systems that
systems I believe that it eventually will become necessary to apply
affect the rights, ortunities, and benefits of Americans, holding
them to certain non-Federal systems."
hearings as necessary and with a strong, competent staff to make on-
Similar findings of interlinking networks for the governmental and
site visits and study the real practices of organizations, not just their
private sectors were found by the Academy of Sciences project.
formal policies.
Professor Vern Countryman, in an article submitted for the hearing
"The creation of such a commission should provide an extremely
record, has detailed cases, congressional hearings, and practices in-
valuable force acting on the private sector. It would push privacy,
volving privately compiled dossiers by commercial compilers, punitive
confidentiality, and due process issues to the top of the organizational
compilers, and benevolent compilers.
agenda, and into the design, testing, and operational thinking of data-
Reports filed for the hearing record from the Freedom of Informa-
system managers and their staffs. It would move the computer in-
tion Center of the University of Missouri School of Journalism,
dustry and computer professionals into high gear, as consultants to
describe investigative practices and intrusive data-gathering technique
the user organizations, developers of new techniques and materials,
in the private sector.
and innovators in cost-effective responses."
21
20
certain law enforcement investigative and intelligence matters where
Numerous representatives of private organizations and of business
access and challenge rights are found to damage the purpose for which
and industry opposed the total coverage of the bill, citing the lack of
the information was collected.
hearing record, the existing requirements of the Fair Credit Reporting
The Committee recognizes that while many agencies afford such
Act, and prohibitive costs of implementing S. 3418 in the private
rights, many agencies deny them with respect to certain files. Allowing
sector without passing on the costs in consumer services. Most indi-
only these narrow areas for exemption may well promote the reassess-
cated support for or lack of opposition to, a commission study of pri-
ment of existing practices whereby individuals are deprived of full
vacy invasions by the private sector.
access to records about themselves, and some agencies, in the year
before the Act takes effect, may well see fit to seek special legisla-
RIGHT OF ACCESS AND CHALLENGE
tion permitting special treatment of certain files they hold. Mean-
The Committee believes that the size of the Federal Government,
while, the Committee is persuaded by the language of the HEW
the sheer number of personal records it must handle, and the growing
report:
complexities of information technology require that the full protections
Many organizations are likely to argue that it is not in the
against abuses of the power of government to affect the privacy of the
interest of their data subjects to have full access. Others
individual and the confidentiality of personal information must depend
may oppose full access on the grounds that it would disclose
in part upon the participation of the individual in monitoring the main-
the content of confidential third-party recommendations or
tenance and disclosure of his own file.
reveal the identity of their sources. Still others may argue
To this end, we agree with the members of numerous respected study
that full access should not be provided because the records
bodies that an individual should have the right to discover if he is the
are the property of the organization maintaining the data
subject of a government file, to be granted access to it, to be able to
system. Such objections, however, are inconsistent with
assure the accuracy of it, and to determine whether the file has been
the principle of mutuality necessary for fair information
abused by improper disclosure.
practice.
The Committee agrees with the conclusion of one government study
The relevance of the rights of access and challenge to the principle
that "In the majority of cases, the citizen's right of access to informa-
tion kept on him by the Federal Government will not interfere with the
of accountability in government, to efficient achievement of manage-
ongoing program of the agency. In addition, giving the individual a
ment goals and to a public sense of social justice is recognized in a
1970 report made by the Project SEARCH group to the Justice
right of access often will be a desirable adjunct to any other system
Department. That report called for a citizen's right to access and
designed to insure file accuracy."
Furthermore, the Committee adopts the timely observation of one
challenge to certain law enforcement records, but it stated the follow-
scholar from the Council on Science of Technology study that "giving
ing reasons for its conclusions which the committee finds worthy of
the individual maximum ability to examine what the Government
general application:
knows on the person should help promote citizen confidence in ac-
First, an important cause of fear and distrust of com-
tivities of the Federal Government and is essential to assure that
puterized data systems has been the feelings of powerlessness
notions of due process are employed when decisions are made on the
they provoke in many citizens. The computer has come to
basis of personal information."
symbolize the unresponsiveness and insensitivity of modern
So important does the Committee consider procedures required by
life. Whatever may be thought of these reactions, it is at
the bill on this matter that it is determined that any exemptions from
least clear that genuine rights of access and challenge would
such provisions sought under the rule-making scheme of the bill must
do much to disarm this hostility.
be kept to an absolute minimum and must not be made on the basis of
Second, such rights promise to be the most viable of all
parochial agency concerns. It finds support for this stand in the con-
the possible methods to guarantee the accuracy of data
clusion of the report of the HEW Secretary's Advisory Committee on
systems. Unlike more complex internal mechanisms, they
Automated Personal Data Systems that:
are triggered by the most powerful and consistent of motives,
individual self-interest.
No exemption from or qualification of the right of data
subjects to have full access to their records should be granted
Finally, it should now be plain that if any future system
unless there is a clearly paramount and strongly justified
is to win public acceptance, it must offer persuasive evidence
that it is quite seriously concerned with the rights and
societal interest in such exemption or qualification.
interests of those whose lives it will record. The committee
The instances in which it can be convincingly demonstrated
can imagine no more effective evidence than authentic
that there is a paramount society interest in depriving an
individual of access to data about himself would seem to be
rights of access and challenge.¹
rare. (pp. 61, Report.)
1 Project SEARCH, Committee on Security and Privacy, Technical Report No. 2, July 1970, p. 28.
The exemptions allowed from observance of these standards are
for three purposes only, national defense and foreign policy and
S.R. 1183-4
22
23
LAW ENFORCEMENT FILES
carefully review these regulations, if this legislation is passed, their
scope and thrust are essentially what would be required of the
Title II of S. 3418 sets general standards of fair records keeping
Department of Justice by this legislation.
which apply to practically all government files, including those
The second class of information generally maintained by law en-
maintained by law enforcement agencies. Although various com-
forcement agencies are intelligence, or investigative files. These files
mittees of the Congress 1 have been considering legislation which
contain highly sensitive and usually confidential information collected
specifically addresses confidentiality of law enforcement files, the
by law enforcement officers in anticipation of criminal activity, such
Committee is of the view that prospects for that legislation is suffi-
as by organized crime figures, or in the course of investigating criminal
ciently unclear SO that S. 3418 should apply in its general terms to
activity which has already occurred. It was the Committee's judg-
such files until such time as the law enforcement privacy legislation
ment, shared by most criminal justice privacy experts and reflected in
is enacted.
the pending criminal justice privacy legislation, that all of the pro-
Therefore the Committee decided that, to the extent feasible,
visions of title II of S. 3418 could not be applied to such sensitive
S. 3418 should apply to law enforcement files but that such application
information. In particular, it would not be appropriate to allow
should not be inconsistent with the two major criminal justice privacy
individuals to see their own intelligence or investigative files. There-
bills, introduced early this year, S. 2963 by Senator Ervin and S. 2964
fore, the bill exempts such information from access and challenge
by Senator Hruska on behalf of the administration. S. 3418 as amended
requirements of title II. However, most of the other general accuracy
by the Committee would apply the general standards of title II,
and updating provisions would apply, subject, of course, to the rules
including the general updating and accuracy requirements and
and regulations issued by the agency head in the course of implement-
provisions affording right of access to most law enforcement files.
ing such provisions.
The Committee recognizes, however, that there are two general
Obviously, these general provisions on law enforcement records are
classes of files maintained by agencies with law enforcement functions,
not entirely adequate. The two criminal justice privacy bills address
criminal history or record files on the one hand and intelligence and
this subject in considerable detail and are the result of at least two
investigative files on the other. The first class of information, defined
years of careful study and revision by the Subcommittee on Constitu-
for the purposes of S. 3418 as "criminal history information" includes
tional Rights and the Justice Department. However, the Committee
routine records of arrests and court dispositions sometimes called
feels that general privacy legislation must assure subjects of law en-
rap sheets. As a general principle these records are subject to all
forcement files at least these minimal rights until such time as the
the requirements of title II including the right of access provision.
more comprehensive criminal justice legislation is passed.
This is entirely consistent with both the Ervin and administration
criminal justice privacy legislation. Indeed, Director Kelly of the FBI,
PRIVACY PROTECTION COMMISSION
in testimony before the Subcommittee on Constitutional Rights,
expressed support for the general access and challenge provisions con-
It is clear that many of the information abuses over the last decade
tained in the two criminal justice privacy bills and replicated in
could have been avoided with the help of an independent body of
S. 3418:
experts charged with protecting individual privacy as a value in
These bills provide for an individual to obtain access to
government and society.
his own criminal offender record, and also provide pro-
Commentators on privacy for years have also cited the need for
cedures for him to challenge that record. I support these
such an agency to help deal in a systematic fashion with the great
provisions. Currently, the FBI provides copies of offender
range of administrative and technological problems throughout the
many agencies of the Federal Government.
record information
Title I of S. 3418, as amended, establishes a Privacy Protection
As for the other general provisions of title II, none of these provisions
Commission composed of five experts in law, social science, computer
are inconsistent with the criminal justice privacy legislation in particu-
technology, and civil liberties, business, and State and local govern-
lar as they apply to criminal history information. Furthermore, S. 3418
ment and supported by a professional staff. The Commission would
permits each agency to promulgate its own regulations implementing
be empowered to:
the Act and this should provide sufficient flexibility SO that the
Attorney General will not undermine good law enforcement practices in
Monitor and inspect Federal systems and data banks containing
promulgating regulations. Indeed, since early this year the Justice
information about individuals;
Department has been drafting regulations which address most of the
Compile and publish an annual U.S. Information Directory SO
basic issues raised by S. 3418. Those regulations set certain standards
that citizens and Members of Congress will have an accurate
for the operation of any routine exchange of criminal history informa-
source of up-to-date information about the personal data-
tion by the FBI and for the funding of criminal history record systems
handling practices of Federal agencies and the rights, if any,
on the State and local level by the Law Enforcement Assistance
of citizens to challenge their contents;
Administration. Although the Justice Department might have to
Develop model guidelines for implementation of this act and
"The Senate Subcommittee on Constitutional Rights and House Subcommittee on Civil Rights and
assist agencies and industries in the voluntary of
Constitutional Rights.
fair information practices;
GERALD
LIBRARY
24
25
Investigate and hold hearings on violations of the Act, and
recommend corrective action to the agencies, Congress, the
In recent years, controversies over privacy and government data
President, the General Accounting Office, and the Office of
banks have arisen after executive branch decisions have been made.
The Commission will serve the important purposes of raising and
Management and Budget;
resolving privacy questions before government plans are put in
Investigate and hold hearings on proposals by Federal agencies
operation. Agencies need help to incorporate newly-refined concepts
to create new personal information systems or modify existing
of individual liberty into their current procedures without unnecessary
systems for the purpose of assisting the agencies, Congress, and the
disruption and confusion. Congress and the President need help in
President in their effort to assure that the values of privacy,
identifying those areas in which privacy safeguards are most urgently
confidentiality, and due process are adequately safeguarded; and
needed and in drafting legislation specifically tailored to those problem
Make a study of the state of the law governing privacy-
areas.
invading practices in private data banks and in State and local
There are now over 100 privacy bills before Congress. Most are of
and multistate data systems.
unquestionable merit, but only a few can receive the kind of sustained
attention to survive the legislative gauntlet. The proposed Commission
NEED FOR A PRIVACY PROTECTION UNIT
would help Congress deal with those bills in two ways. First, it would
obviate the necessity of enacting many of them into law by inducing
There is an urgent need for a permanent staff of experts within the
agencies and industries to adopt their own fair information practices.
Federal Government to inform Congress and the public of the data-
Second, the Commission would help Congress and the President by
handling practices of major governmental and private personal infor-
narrowing down the range of legislative options and drafting bills
mation systems. As a recent study by the Judiciary Subcommittee on
designed to achieve a good "fit" between privacy values and other
Constitutional Rights graphically demonstrates, there has been a
values in the context of often unique data-keeping activities.
proliferation of Federal information systems and data banks which,
It may well be that regulatory functions will eventually have to be
if misused, can do irreparable harm to the privacy and economic well-
added to the Commission's powers in order to assure that privacy,
being of millions of persons. "Data Banks and a Free Society," the
confidentiality, and due process become an integral part of govern-
study done for the National Academy of Sciences by Professors Alan
mental and private data systems. However, the Committee has
F. Westin and Michael A. Baker, similarly demonstrates such harm
decided not to address this area in the legislation pending the Com-
inherent in large personal information systems maintained at all levels
mission's study.
of government and by private industry.
The original version of S. 3418 would have created a Federal policy
Although recent attempts to turn Federal tax records into weapons
board with regulatory powers to investigate and issue cease and
of political and personal revenge have come to light, along with many
desist orders for violations of the Act. The Committee believes that it
other record abuses, the major threat to most Americans lies in the
does not have sufficient evidence to support a case for vesting broad
inadvertent, careless, and unthinking collection, distribution, and
regulatory powers in a board charged with administrating the Act.
storage of records which may be inaccurate, incomplete, or irrelevant
Rather, a much more effective and less cumbersome procedure will
to legitimate governmental needs. This threat has grown tremen-
permit an individual to seek enforcement of his rights under pro-
dously as developments in telecommunications, photocopying, and
cedures established by each Federal agency. Ultimate enforcement of
computer technology have accelerated and with expanded data-
those rights and challenges to agency judgments would rest with
swapping among government agencies and throughout private
United States District Courts. By taking this action, the Committee
did not mean to preclude a future decision by the Congress to vest
industry. It is now clear that Congress, with its limited technical staff and
regulatory functions in the Commission to assure that privacy,
multitude of functions, cannot keep track of these developments in
confidentiality, and due process become an integral part of govern-
every Federal agency and for every data bank with the depth of detail
mental and private data systems.
required for consistently constructive policy analysis. The Constitu-
Public administration and privacy experts have urged a cautious
tional Rights Subcommittee data bank study and other agency-by-
approach to regulation on two grounds. First, there is much more
agency studies have each taken years to complete, and have docu-
that privacy advocates need to know about information systems before
mented the frustrations of agency delays, withholding of data, and
they are in a position to make demonstrably constructive regulatory
camouflage of governmental activities. Citizens also have no place to
policy proposals. Second, there is substantial evidence that agencies
turn to find out which agencies or companies maintain, distribute, and
and companies are not inherently hostile to letting individuals have
use personal information about them. Agencies and businesses would
more of a say in what the files say about them, provided that the
similarly benefit from the existence of an authoritative source of infor-
changes can be made in an orderly, efficient, and economically sound
mation about their record-keeping practices which would protect
manner. The work of the Secretary of Health, Education, and Wel-
them from misinformed and inflamatory criticism.
fare's Advisory Committee on Automated Data Systems, Vice Presi-
In addition, there is an urgent need for a staff of experts somewhere
dent Ford's Domestic Council Committee on the Right of Privacy,
in government which is sensitive both to the privacy interests of
and the National Academy of Sciences Project on Computer Data
citizens and the informational needs of government and which can
Banks, clearly demonstrate that the right of privacy has its advocates
furnish expert assistance to both the legislative and executive branches.
within the executive branch. Testimony before the Committee by
27
26
State officials was nearly unanimous in citing a need for higher stand-
The Committee received suggestions that creation of such an in-
ards and better regulation of privacy practices in their jurisdictions.
dependent commission should be delayed in order to develop legislation
Statements by private industry representatives have persuaded the
charging it with the functions of dealing with classification and freedom
Committee that a substantial measure of industry cooperation can
of information issues, as well as privacy and civil liberties.
While they pose significant problems, these other two subject
be anticipated.
Thus, the Committee believes that it would be a mistake for the
areas go to different considerations of government. Creation of a
Privacy Protection Commission to begin its work in an adversarial
privacy commission is recognition of the fact that the Congress intends
posture, either as a regulatory or ombudsman-type agency. Those
to afford access to the decision-making centers of government to in-
roles may come in time, but they should be the product of specific
terests which promote the privacy of individual Americans against
legislation and come only after efforts to achieve voluntary reforms
overly-intrusive or arbitrary government information policies. To
have failed. Meanwhile, awareness that the Commission might be
dilute the quality of that access, as institutionalized in the structure
vested by Congress with regulatory powers at some future time should
by the Privacy Commission, would defeat the purpose of the legisla-
have a salutory effect on those agencies which may be tempted to
tion. It would reduce the viability of privacy as a matter of concern in
ignore its suggestions, or which fail to give its model guidelines the
the Federal Government. By thus denying itself the full strength of
the investigative help needed to protect privacy and due process in
deference due them.
the years ahead, Congress would dilute, in turn, the quality of protec-
LOCATING THE PRIVACY UNIT
tions which it and the other branches of Government might otherwise
afford to those amendments in the Bill of Rights which safeguard
The Committee has concluded that the best place to vest these new
privacy.
functions would be in an independent commission. The decision was
The administration has opposed the creation of a commission partly
arrived at with some reluctance, because members of the Committee
for reasons of cost. It is the Committee's belief, however, that the Com-
share the unwillingness of many Members of Congress to create still
mission is vitally needed to promote the quality of legislative and
more independent commissions. On balance, however, the commission
administrative oversight which will provide a privacy bulwark for
route seemed the best solution for the abuses and potential threats
Americans in the years ahead. It is expected, furthermore, that the
which have been documented.
savings it will effect in the Federal Government will far outweigh the
Having concluded that an expert staff and an independent body was
immediate cost.
needed somewhere in the Federal Government to supply information
ENFORCEMENT
and advice and conduct investigations, the Committee considered
three alternatives, as described in testimony before Committee by
The Act is enforceable in the courts with the aid of Congress and
Dr. Christopher H. Pyle. The first was to place the unit in the General
the Privacy Commission.
Accounting Office, modeled on the Office of Federal Elections. The
As Elliot Richardson, former Secretary of three executive branch
second was to locate it in the Office of Management and Budget,
Departments, informed the Committee:
much like the Statistical Policy Division which polices Federal ques-
The requirements of fair information practice are SO much
tionnaires. The third alternative was to create an independent
in the interest of organizations, as well as of the individuals
about whom records are maintained, that there should be
commission. The Committee chose not to recommend vesting the investigatory
little difficulty in agencies adhering to them and little occasion
and advisory functions in the GAO because it would be unwise to
for court enforcement suits. Enforcement provisions are
dilute the GAO's important auditing function with this kind of sub-
needed, however, to create a strong and reliable incentive to
stantive policy assignment. Except in rare instances, responsibility
overcome the initial bureaucratic resistance to change that
within Congress for policy development should rest with its com-
might otherwise prove to be a crucial obstacle to the prompt
mittees. Also, placing the investigative role in the GAO might limit
and full achievement of fair information practice. Frivolous
the unit's ability to study multi-state and commercial information
suits, no doubt a matter of concern to some, would be
systems not dependent upon the Federal budget, which is the focus
promptly subject to motions for summary dismissal.
of the GAO's attention.
Similar considerations persuaded the Committee that the unit could
Except for the act of keeping secret data banks and improper dis-
not achieve its full potential as part of the Office of Management and
closure by Commission employees, there are no criminal penalties in
Budget. Moreover, the Committee was of the opinion that the privacy
the Act. As introduced, the original bill contained strong criminal
protection unit should be available to congressional committees as
penalties for employees and others who violated or contributed to the
well as executive agencies-a relationship which could not be guar-
violation of the Act. These penalties were deleted in Committee for
anteed by making it part of the President's staff. On the other hand,
two main reasons: the difficulties of effective enforcement through such
by creating the unit as a commission, its reports and expertise could
criminal prosecutions and the possibility that the threat of prosecution
may preclude that "Whistleblowing" and disclosure of wrongdoing to
be available to both the GAO and OMB.
28
29
Congress and the press which helps to promote "open government."
universal identifiers, and other symbols to identify individuals in data
Instead, the mandates of S. 3418 are enforceable through the civil
banks and to access, integrate or centralize information systems and
challenges of the Attorney General or of private citizens with real or
files."
suspected grievances or claims of violations of the Act. Given the diffi-
The Committee realizes that the number is a major element in the
culties of time and resources, private enforcement through litigation is
national debate over privacy since a common numerical identifier or
not likely to affect more than glaring violations of the Act. Much will
symbol to designate and index each person is an essential feature of a
depend on the zeal and the good faith of the Attorney General and the
national data bank, or indeed, of any information system which allows
President in enforcing the terms of the new law.
creation of an instant dossier or which permits quick retrieval of all
As always, the press and communications media will contribute to
personal information which flows through that system about an
the enforcement of the Act through its investigation and exposure of
individual.
wrongdoing, a function eased by the requirements in S. 3418 that
In recent years the Social Security number has been the identifier
decisions be made on the open record by responsible officials and that
most used in common by government agencies and private organiza-
precise notices be published containing the details of government policy
tions to improve efficiency of services, aid management functions,
where it affects personal privacy.
prevent fraud and reduce errors in identification of people.
Administratively, the agencies may be called to account by Congress
Citizens' complaints to Congress and the findings of several expert
and the President through the monitoring and investigative activities
study groups have illustrated a common belief that a threat to indi-
of the Privacy Commission and its reporting of violations.
vidual privacy and confidentiality of information is posed by such
Despite these guarantees, the Committee acknowledges there is
practices. The concern goes both to the development of one common
no way that the Congress, the press, or the public can assure strict
number to label a person throughout society and to the fact that the
administrative observance of the exercise of the power of the Federal
symbol most in demand is the Social Security number, the key to one
Government pursuant to the standards of the Act. There will no doubt
government dossier.
be some diversity of views as to what constitutes compliance within
Of major concern is the possibility that the number may become
particular agencies.
a means of violating civil liberties by easing the way for intelligence
Realistically, therefore, the implementation of the Act rests,
and surveillance uses of the number for indexing or locating the
finally, with the departments and agencies of the executive branch and
person.
the good faith, ethical conduct and integrity of the Federal employees
In this connection, a Constitutional Rights Subcommittee report
who serve in them.
on the intelligence-gathering by the military from its own agents
and the files of other Government agencies, shows that individuals
SOCIAL SECURITY NUMBER AND IDENTIFIERS
were often indexed in the Army computers by their Social Security
numbers. Complaints to the Constitutional Rights Subcommittee
As introduced, S. 3418 made it unlawful for any person to require an
also showed that government pressures people to disclose their
individual to disclose or furnish his Social Security account number for
Social Security number on administrative, statistical, and research
any purpose in connection with any business transaction or commercial
questionnaires of all kinds, including income tax forms, HEW ques-
or other activity, or to refuse to extend credit or make a loan or to
tionnaires asking whether elderly people buy newspapers and wear
enter into any other business transaction or commercial relationship
false teeth, and many others.
with an individual because of refusal to disclose or furnish the number,
Every serviceman is now identified by his Social Security number,
unless the disclosure or furnishing of the number was specifically
a development of intense concern to some groups who were not able
required by Federal law.
to persuade congressional committees or the Pentagon to reverse the
The Committee considers this usage of the number of a government
course.
file one of the most serious manifestations of privacy concerns in the
A cross-section of such complaints appearing in the subcommittee
Nation. However, it received conflicting evidence about the effects of
hearings shows that people are pressured in the private sector to
this section, particularly the inordinate costs to the Federal Govern-
surrender their numbers in order to get telephones, to check out books
ment and private businesses of changing to another identifier and
in university libraries, to get checks cashed, to vote, to obtain drivers'
reprogramming computers or reindexing files.
licenses, to be considered for bank loans, and many other benefits,
In view of the lack of ready independent data about the probable
rights or privileges.
costs and effects of such a prohibition and in view of stricter limitations
In many cases in the private sector, he is informed that the number
on transfer of and access to government files, the section was deleted
is necessary for identification purposes, yet on its face, the Social
in Committee by an 8 to 1 vote. At the same time, the issue was
Security card states that it is not to be used for identification purposes.
designated as a priority issue for study by the Privacy Commission
This proviso was initially included in the Social Security program to
and for report to Congress of specific legislative recommendations to
prevent reliance on the card for identification because a person could
meet the serious public concerns reflected in the original bill. In sub-
acquire several of them under several identities and there frequently
section 106(b)(1)(C), the Commission is required to examine and
was no agency investigation of the information provided in order to
analyze "the use of license plate numbers, Social Security numbers,
obtain a number.
S.R. 1183-5
30
31
A list of the Federal Government's uses of the number, authoriza-
tion that does not have specific authority provided by Federal statute
tions, and the texts of applicable statutes, Executive order, and regu-
to request it
and the right to redress if his lawful refusal to disclose
lations appears in the appendix of the hearings together with excerpts
his SSN results in the denial of a benefit."
of Government reports on this subject.
The report contained other recommendations about the need for
The HEW Secretary's committee found that "the Federal Govern-
constraints on the use of the number and on its dissemination, and it
ment itself has been in the forefront of expanding the use of the
cited the need for congressional review of all present Federal require-
number, that its actions have actively promoted the tendency to
ments for use of the number to determine whether they should be
depend more and more upon the number as an identifier-of workers,
continued, repealed, or modified.
taxpayers, automobile drivers, students, welfare beneficiaries, civil
The Committee expects the Privacy Commission study to undertake
servants, servicemen, veterans, pensioners, and SO on." It concluded:
such a study for the public and private sector.
"If use of the SSN as an identifier continues to expand, the incentives
A number of departments and agencies opposed the provision in
to link records and to broaden access to them are likely to increase.
S. 3418 limiting the use of the Social Security number. These included
Until safeguards such as we have recommended
have been
the Commerce Department, Civil Service Commission, Defense
implemented, and demonstrated to be effective, there can be no as-
Department and the Securities and Exchange Commission. All cited
surance that the consequences for individuals of such linking and
the need for use of the number as an identifier to achieve administra-
accessibility will be benign. At best, individuals may be frustrated
tive ends, and the inordinate and prohibitive costs of reprogramming
and annoyed by unwarranted exchanges of information about them.
with an alternative number. Numerous private business, banks and
At worst, they may be threatened with denial of status and benefits
industries uniformly opposed this section.
without due process, since at the present time record linking and
Computer and data professionals from State and local government
access are, in the main, accomplished without any provision for the
also opposed the provision, testifying that such prohibitions on its use
data subject to protest, interfere, correct, comment, and in most
"would impose a tremendous financial burden on the States and an
instances, even to know what linking of which records is taking place
alternate identifier would have to be developed."
for what purposes."
While specific laws mandate or have been interpreted to permit the
MAILING LISTS
use of the number in a few Federal programs, most agencies have pro-
ceeded to use it by regulation or directive. Executive Order 9397 of
The bill now prohibits Federal agencies from selling or renting
1943 found it "desirable in the interest of economy and orderly ad-
mailing lists except as authorized by law, but does not require names
ministration that the Federal Government move towards the use of a
and addresses to be kept confidential, thus allowing inspection where
single unduplicated numerical identification system of accounts",
these are public records. It requires private organizations maintaining
and ordered that "any Federal department, establishment or agency
a mailing list to remove the individual's name upon request.
shall, whenever the head thereof finds it advisable to establish a new
A major avenue by which personal privacy and confidentiality
system of permanent account numbers pertaining to individual per-
may be invaded is the practice of the Federal Government of selling
sons, utilize exclusively the Social Security account numbers."
and renting names, addresses and personal data in their files for use in
While some have cited this order as authority for the Federal usage,
commercial and other mailing lists. Such practices may cause a viola-
the HEW report found otherwise, noting, "It has been suggested that
tion of the tacit or formal agreement by which the agency collected or
Executive Order 9397 was intended to apply only to instances when
acquired the information for its own authorized purposes. Laws pro-
Federal agencies seek to number records, such as employment, at-
moting open records in government have resulted or may result in
tendance, performance, or medical records.
To interpret the order
administrative contracts on agreements to sell the data in bulk, either
as applying to all kinds of Federal agency record systems is arguably
as a convenience to commercial or other users, or to publicize and
beyond the meaning of its language. In any case, it appears that Fed-
promote the purposes of the agency.
eral agencies are free to use the SSN in any way they wish, and no
While a few examples might be found in which the sale or rental of
instance has come to our attention in which the order has been in-
mailing lists by Federal agencies without specific statutory authority
voked to compel or limit an agency's use of the SSN." (p. 117)
serves a useful purpose, the Committee concludes for several reasons
The HEW Secretary's committee came to the following conclusions
that such action is totally inconsistent with the purposes of the bill as
about the need for legislation on this matter: "If the SSN is to be
amended. One of these purposes is to entitle an individual to a large
stopped from becoming a de facto Standard Universal Identifier, the
measure of control over who, outside of a Federal agency maintaining
individual must have the option not to disclose his number unless
information about him, has access to his personal information. Mailing
required to do SO by the Federal Government for legitimate Federal
lists constitute such personal information when, for example, they
program purposes, and there must be legal authority for his refusal.
represent a group of individuals possessing a certain set of character-
Since existing law offers no such clear authority, we recommend
istics. The disclosure of this personal information can be damaging to
specific, preemptive, Federal legislation providing that the individual
the individual. Therefore, section 206(a) of the bill, as amended, pro-
has the right to refuse to disclose his SSN to any person or organiza-
hibits the sale or rental of lists of names and addresses by Federal
agencies unless the sale or rental is specifically authorized by law.
32
33
Legislation on this subject has been offered for a number of years.
The Committee believes such a requirement is a simple and fair one
These problems are addressed in S. 3116, introduced by Senator
which will not necessitate a revision of private business procedures.
Hatfield and pending before the Constitutional Rights Subcommittee.
Mail order businesses may continue to compile mailing lists and solicit
Senator Hatfield stated "the real thrust of S. 3116 is not what is
through the mail. The widespread sentiment on this subject for action
received in one's mailbox but privacy and the question of individuals'
was noted by Congressman Frank Horton, sponsor of House bill, H.R.
right to control what is known about them."
3995, who reported 65 House members sponsoring the bill, 34 Repub-
He cited the stockpiling of personal information in the businesses
licans and 31 Democrats.
who compile and sell lists and other data for commercial purposes.
A survey of mailing list practices of Federal departments and
Primarily, this means selling or renting lists to the direct mail industry.
agencies made by the Congressman and another by the House Gov-
The Committee was told that "lists for this industry are compiled
ernment Operations Subcommittee chaired by Congressman Moor-
from every imaginable source-telephone, books, magazine sub-
head, were offered by Congressman Horton for the hearing record.
scription lists, credit card lists, church rosters, club memberships,
The threat to individual privacy from the selling and renting of
government agencies, newspaper, announcement of birth, death,
names and personal information from government files and the use
graduation and from seemingly, inviolate sources such as doctors,
of mailing lists by the mailing list industry was found to be an appro-
dentists, and schools. This flourishing business exists largely without
priate subject for privacy legislation by the National Academy of
the knowledge of the people who are providing the profit, the people
Sciences Project Report. The Committee agrees with the report that
whose names and personal data keep this wheel turning."
the standard of the Direct Mail Marketing Association, mere re-
Testimony from the Direct Mail Marketing Association shows that
moval of one's name, is not enough for Government agencies. As the
it is their recommended practice to remove a person's name from their
Academy report states, "For many people, this does not resolve the
list if requested to do so. However, only some people know about this
basic privacy issue: when individuals give information about them-
service, and the distribution of information through lists is SO wide-
selves to government agencies for one purpose, usually under legal
spread that people who do manage to get off lists through such a
compulsion to report, should their names, addresses, and data about
service, have no way of controlling what all the other companies do.
their occupations, ownership, military service, or other activities be
The bill now requires no more of the private sector than that an
made available to organizations that would use the information for
organization engaged in business in interstate commerce shall remove
purposes that these individuals consider intrusive?
the individual's name from a mailing list, upon request. Where lists are
"In time of major problems of housing, education, crime, race
maintained by private companies, the Committee believes that the
relations, pollution, and peace, it may seem a disturbingly trivial
decision as to who should be allowed to rent or buy them is a decision
matter to worry about government records leading to the receipt of
best left up to each individual business. However, where such lists are
mail advertisements that some individuals do not want. But the issue
maintained by government agencies, or where names and addresses
symbolizes something we cannot afford to ignore-how do we make
are sold or rented, the Committee firmly believes that the decision
the individual's informed consent a more respected and controlling
must not be left to individual agency administrators.
feature in organizational society? Our approach to this problem should
Subsection 206(b) requires all persons or organizations engaged in
not be to make matters confidential which have long been considered
interstate commerce to comply with the written request of an individ-
open for public access; rather, it should be to find a way to accom-
ual who wishes to have his name and address removed from their lists
modate those who feel their privacy is intruded upon by such direct
that are used for direct mail solicitation.
mail practices. (Report, p. 385)"
This provision represents a sound business practice which is followed
by many of the largest and most respectable direct mailers in the
SECTION-BY-SECTION ANALYSIS
country. The Direct Mail Marketing Association, which represents
several thousand users of direct mail marketing and advertising in
TITLE I-PRIVACY PROTECTION COMMISSION
America, has stated in writing to the Senate Government Operations
Committee that its Mail Preference Service is specifically designed to
Section 101
permit an individual to have his name removed from its members'
lists upon request.
ESTABLISHMENT OF COMMISSION
The Committee has been advised by representatives of the Direct
Mail Marketing Association and by numerous prominent direct
Title I establishes a Federal Privacy Commission, an independent
mailers that this practice creates more profitable lists by allowing for
body which the Committee deems absolutely essential to aid in, the
the removal of names of individuals who are unlikely to purchase goods
administrative and enforcement of the act, and to conduct a study
or services from the soliciting organization.
of other private and governmental information systems.
The purpose of this provision is to extend this practice to all organi-
Section 101 provides that the five full-time members of the Com-
zations and to expand the protection to all individuals. It is consistent
mission would be appointed by the President subject to confirmation
with the best practice in American industry and with the programs and
by the Senate. In order to assure the kind of expertise necessary for
standards of the Association representing those companies with direct
dealing with the legal, political, social and technological aspects, a
interest in this problem.
commissioner should be considered for selection in part by reason of
34
35
his knowledge in one or several of the areas of civil rights and liberties,
It also provides a published standard for testing and evaluating
law, social sciences, computer technology, business, and State and
Federal collection, use and disclosure of personal information in the
local government. Not more than three of the members of the Com-
hands of government. The Committee considers this requirement
mission shall be from the same political party. Commissioners shall
a substitute for the original requirement of notice to everyone on
serve for terms of three years and for no more than two terms. The
whom any Federal agency maintains a file, a notice ideally designed to
President shall select the Chairman of the Commission from its
promote the concept of substantive due process throughout govern-
members and he shall be the official spokesman of the Commission in
ment. However, consideration of testimony from experts and of
its relations with Congress, the Federal Government and the general
agency objections concerning costs and administrative feasibility of
public. In this capacity, the Chairman would be expressing the view
such a requirement resulted in its deletion and replacement by the
of the entire Commission. Of course, this would not prevent any other
function of the Commission in this section.
Commissioner from speaking his views, testifying, or providing in-
Subsection 103(a)(2). Authorizes the Commissioners to investigate
formation to Congress, the Executive or the public. In all other
and hold hearings on reports received of violations of the Act. No
respects, the Chairman shall have equal responsibility and authority
adjudicatory powers are vested with the Commission and enforcement
in all decisions and actions of the Commission with other members
of the Act rests with the Federal courts. If the Commissioners deter-
and each member shall have one vote on the Commission.
mine that a violation has occurred, they may report that violation to
the President, to the Attorney General, to the Congress, to the
Section 102
General Services Administration where the duties of that agency are
involved, and to the Comptroller General if it deems it appro-
PERSONNEL OF THE COMMISSION
priate for any auditing functions of that agency. S. 3418, as originally
introduced, would have given the Commission the power to issue cease
Section 102 authorizes the Commission to appoint an Executive
and desist orders to stop violations of the Act. The Committee decided,
Director and other officers and employees and prescribe their functions
however, to provide for general enforcement of the Act's safeguards,
and duties. The Executive Director will be compensated at a rate not
and for the implementation of the exemption provisions, through the
in excess of the maximum for a GS-18 Federal employee.
administrative channels of each agency, with ultimate review of any
In addition to its own employees, the Commission may contract for
challenges in a United States District Court.
the services of experts and consultants to carry out its responsibilities.
Subsection 103(a)(3) MODEL GUIDELINES. The Commission has not
Where these are technicians charged with the inspection of physical
been given the power to issue rules and regulations that would b
and technical security of arrangements, computer equipment and
binding on other Federal agencies. However, it is directed to develop
systems, they should be bonded in cases where this is found appro-
model guidelines for implementing the provisions of the Act with
priate.
interagency consultation and the assistance of appropriate experts
Section 103
in special subject areas. The Committee would expect that other
FUNCTIONS OF THE COMMISSION
Federal agencies would look to these guidelines before adopting their
own rules and their procedures by which individuals could exercise
One of the principal reasons for establishing a Privacy Protection
their rights under this legislation.
Commission was to fill the present vacuum in the administrative
The Commission is further directed to assist Federal agencies in
process for overseeing establishment of governmental data banks and
preparing regulations to meet the technical and administrative
personal information systems and examining invasions of individual
requirements of this Act. It is expected that the Commission will
privacy.
retain or contract for expert assistance in information management
Subsection 103(a)(1). Requires the Commission to publish, and sup-
and technology and other fields in order to provide resources that
plement annually, a United States Directory of Information Sys-
may not be available to each agency.
tems. Each agency is required under subsection 201(c) to notify the
Subsection 103(b). Requires the Commission to review, and report on
Commission of the existence and character of each existing system or
proposed data banks and substantial alteration of existing ones. For
file which it maintains on individuals, or any significant expansion
this reason, subsection 201 (g) requires that Federal agencies report to
or modification of the system. The Commission is directed to publish
the Commission on proposals to establish data banks and personal
this information in the Directory of Information Systems together
information systems, to significantly expand existing data banks and
with a listing of all statutes which require the collection of such
information systems, to integrate files or establish programs for
information by a Federal agency. This is to carry out one of the
records linkage within or among agencies, or to centralize resources
fundamental principles of the Act that the existence of Federal personal
and facilities for data processing.
record-keeping systems should not be kept secret from the Congress,
The review anticipated here is for several purposes. The Com-
the préss, or the public. In particular, it is designed to give the citizen
mission is directed to review these reports in order to assess the
one set of accessible documents and one central location where one
potential impact of any such proposal on the privacy, due process,
may reasonably be expected to find out just what agencies are likely
and other personal or property rights of individuals or on the confi-
to have a file on one and what they are likely to have done with it.
dentiality of personal information. This would include the physical,
36
37
technical and administrative security of the data bank or computer-
This estimate of time is predicated on the full and prompt disclosure
ized information system. The Committee acknowledges that there
to the Commission of agency proposals sufficiently in advance of a
are many definitions of privacy and that there is no one precise
final policy decision by the agency to proceed with the proposal to
definition as it relates to the exercise by an individual of rights guar-
permit adequate review by the Commission. If it is necessary for the
anteed to him under the Constitution or of his right to own and
Commission to report a failure to comply with the Act, the agency
possess property. Each amendment to the Constitution carries with
proposing an information system change shall not proceed with this
it guarantees against governmental invasions of a particular aspect of
proposal until sixty (60) days after receiving that notification. This
individual privacy. Until the concept of privacy can be defined with
is to afford the Congress and responsible executive branch officials
more precision, the Committee believes that there is a need to study
an opportunity to act on the agency proposal. If the Commission does
any threatened invasion of a broad range of individual rights by
not make a determination that the Act has not been violated by an
Federal information activities or practices.
agency proposal, this should not constitute an endorsement of or
In testimony before the Committee on Government Operations
approval of any invasion of privacy which might result from the
and before other committees of the Senate, questions have been
implementation of the newer alternate information system.
raised about the impact of Federal information systems on State
In carrying out its functions under the Act, the Commission is
programs and powers as well as on the separation of powers existing
encouraged to consult to the fullest extent practicable the heads of
between the judicial, executive and legislative branches of the Federal
departments, agencies and instrumentalities of the Federal Govern-
Government. Any proposal to establish or alter an information system
ment, of State and local governments and of private businesses and
should be examined in light of its potential to affect the Federal
other organizations which may be affected by S. 3418. In order to
system: to take power or responsibility from the States or to grant
carry out the duties assigned by the Congress, the Commission must be
responsibilities which should properly be carried out by a Federal
provided access and the opportunity to personally inspect a wide
range of confidential material, information maintained by public
agency. Similarly, any major proposal to expand or create new information-
agencies and private organizations and businesses. In performing its
handling technology by Federal agencies for personal data should pose
functions the Commission has the difficult task of balancing its need for
questions for the Commission to attempt to answer regarding the
information with the rights of privacy of citizens. It may, for example,
ability of the three branches of government to discharge their responsi-
be necessary for it to examine the actual contents and use of certain
bilities under such a new system. It is for all of these reasons that
files held by agencies. Obviously, the Commission itself is bound by the
agencies must describe in their notices the following matters, under
requirements of the Act, including civil and criminal liability for any
subsection (g)
improper use or divulgence of information it receives in carrying out
(1) the effects of such proposals on the rights, benefits, and
its responsibilities. The Committee expects the Commission to perform
privileges of the individuals on whom personal information is
its tasks comprehensively, but has guarded against the creation of an
Information Czar. The Commission is not intended to maintain its
maintained;
(2) the software and hardware features which would be
own files on individuals, or to retain any such personal information in
required to protect security of the system or file and con-
its own possession. The Committee regards this legislation as a means
to guard against the integration of separate files on citizens into com-
fidentiality of information;
(3) the steps taken by the agency to acquire such features in
plete dossiers. The Commission's powers should not be used to frus-
their systems, including description of consultations with
trate this purpose. In addition, there is no intent to require a national
representatives of the National Bureau of Standards and
depository for the technical and commercial, and trade documents,
or the programming secrets of government organizations and the
other computer experts; and
(4) a description of changes in existing interagency or inter-
private sector.
Subsection 103 (d) Mutual cooperation will be important to the
governmental relationships in matters involving the collec-
tion, processing, sharing, exchange, and dissemination of
successful completion of the study of information systems and the
implementation of the safeguards by the agencies covered by the Act.
personal information.
With regard to the Federal Government, the Commission may wish
Based upon its review of these proposals, the Commission should
to form an interagency council to work to implement the provisions
submit any findings and recommendations regarding the need for new
of the Act.
legislation or administrative action to control or regulate new informa-
It is expected that the Commission will also serve as a clearing-
tion-gathering techniques and technology to the President, the Con-
house for various Federal agencies and others to share information on
gress, and the General Services Administration.
methods of dealing with problems in administering the Act as well as
Subsection 103(c). The Commission is directed to report to the Con-
assisting in the exchange of administrative and technological material
gress the failure of any proposed data bank or information system to
related to handling of personal information.
comply with the purposes, standards and safeguards of the Act. In
Subsection 103(d) (2). It is probable that the Commission will need to
most cases, a review by the Commission of proposals to establish or
study and initiate research projects to determine the best procedures
expand information systems should take no longer than sixty (60)
for agency implementation and enforcement of this Act. Because of the
days and should afford the agency sufficient opportunity to alter its
highly technical nature of information in system management re-
proposal if a question regarding compliance with this Act is raised.
S.R. 1183-6
GERALD
38
39
search efforts may also be directed toward developing procedures for
guarding against unauthorized access to information systems and
sufficient information for these hearings or to assemble material for
procedures for implementing the standards and safeguards provided
the study of information systems, the Commission is authorized to
by title to this Act. Where these have already been undertaken by the
require by subpoena the attendance of witnesses and the production of
National Bureau of Standards and other Federal offices, the Commis-
books, records, papers, correspondence and documents as it deems
sion should take appropriate advantage of those resources to prevent
advisable.
duplication of efforts and to aid in the coordination of Federal efforts
It is hoped that the Commission would be able to work out volun-
tary agreements with both public agencies and private organizations
in this area.
Subsection 103(d)(3). The Committee added to the functions of the
for obtaining any material necessary to carry out its statutory responsi-
Commission the duty to determine, in connection with its research
bilities. Should efforts at voluntary cooperation fail, however, the
activities, what specific categories of information should be prohibited
Committee believes that the role of the Commission is important
by statute from collection by Federal agencies on the basis that the
enough to merit the force of law behind its requests. Under any cir-
collection of such information would violate an individual's right of
cumstances, however, no subpoena shall be issued without a vote of
the majority of the Commission. The Commission shall appear in
privacy.
Section 104
court in its own name to enforce subpoenas issued pursuant to this
Act, and it shall be represented by attorneys of its own choosing.
CONFIDENTIALITY OF INFORMATION
Testimony presented before this and other committees, as well as
in noncongressional studies, has shown the need and value of the
In order to fulfill its obligations properly under this Act, the Com-
on-site inspection to ensure that regulations adopted pursuant to the
mission must have access to all data, reports, and other information
Act are in fact adhered to by agencies in their normal day-to-day
requested of any department, agency or instrumentality of the
operations. By giving the Commission the power to take such other
executive branch as well as of any independent agency.
actions as may be necessary to implement the Act, the Committee
Since this will require access to classified documents and other
has adopted this recommendation.
highly sensitive personal information, the Commission may accept
While criminal penalties for the violation of this Act are limited to
identifiable personal data only if it is necessary to carry out its powers
the failure by an officer or employee of a Federal agency to disclose the
and functions. It is directed to establish safeguards to insure that the
existence of an information system or the unauthorized disclosure of
confidentiality of the information is maintained and upon completion
certain sensitive personal information by a member or employee of
of the purpose for which the information is required it must be
the Commission, the Committee felt it was necessary to provide im-
destroyed or returned to the agency or person from whom it was
munity from punishment under this Act pursuant to the provisions
received. Because of the strict penalties provided for the unauthorized
of Section 6001(1) of Title 18 of the U.S. Code. This "whistle-blowing
disclosure of information entrusted to its care, the Committee believes
section" would permit the Commission to recommend to the Attorney
it would be appropriate for the Commission to assure that its tech-
General that a person not be prosecuted under this Act. And this sec.
nicians and any other employees are bonded before they are permitted
tion is designed to encourage the reporting of violations in order to
access to sensitive information. In addition Commission employees or
further strengthen the reporting of violations in order to further
contractors should be extended the same privileges and be subject to
strengthen the oversight responsibility of the Commission.
the same requirements for security clearances under the Federal
The section would authorize the Commission to adopt inter-
Security Clearance as employees of the agency who have access to the
pretative rules for the implementation of the rights, standards and
information in question. Under no circumstances should the Com-
safeguards provided by this Act. This is to assure that the rulemaking
mission or its employees be used by another agency for unlawfully
authority of the Commission is limited to the promulgation of rules and
obtaining information to which that agency would not be otherwise
regulations governing its own operations, organization and personnel.
entitled. The internal rules and regulations of the operation of the
This section was included to insure that the courts would not interpret
Commission should reflect the need for careful handling of this
these model guidelines or other rules which the Commission is author-
information.
ized to issue as having the force of law with respect to any other Federal
Section 105
agency. Rather, such guidelines shall offer only the Commission's best
judgment regarding the possible implementation of its safeguards
POWERS OF THE COMMISSION
under the Act, and shall serve as a reference only for other Federal
The Committee is determined that the Privacy Protection Com-
agencies to consider in adopting their own rules and regulations.
mission must have certain powers to fully implement a study of
Section 106
personal information systems and to conduct oversight of the proper
implementation of the Act in the Federal Government.
COMMISSION STUDY OF OTHER GOVERNMENTAL AND PRIVATE
In order to investigate reported violations of the Act, the Commis-
ORGANIZATION
sion may find it necessary to hold hearings and take testimony as
well as receive evidence related to such violations before making any
Section 106 requires the Privacy Commission to make and report on
report to the Congress or to the Attorney General. In order to obtain
a study of the data banks, automated data processing programs, and
information systems of the private sector as well as of regional and
40
41
other governmental agencies. As discussed in this report, the decision
Congress, which will allow it to submit reports and specific recommen-
to authorize such a study is based on the Committee deferral at this
dations on subject areas as they are completed, and not all at once at
time of legislation for abuses of privacy, due process, and confidential-
the end of its term.
ity in the private sector, a need particularly urgent with the growth of
The reports shall include recommendations for applying the require-
national data banks, application of computer technology, and use of
ments and principles of the act to the information practices of organi-
new information management practices.
zations under study, whether by legislation, administrative action or
The lack of adequate empirical and legal research to support needed
by voluntary adoption of those requirements and principles.
legislation is expected to be remedied by the Commission study and its
specific recommendations as to application of the principles or guaran-
Need for Study
tees of this legislation to particular sectors or subject areas, or to par-
Governors and other State and local officials have cited the dearth
ticular information linkages between private, State, and Federal data
systems. It is further authorized to make such other legislative recom-
of information about the practices of regional or national data banks-
mendations as it may determine necessary to protect individual
which, because of their interstate nature, are difficult to analyze or
privacy while meeting the legitimate needs of government and society
control by State privacy laws and regulations. It is thus expected that
for information. Such study may, on the basis of the Commission's
the Commission's studies, especially those aspects analyzed by States,
research, take into account the testimony on the original bill advocat-
will assist the States in their own efforts to protect personal privacy.
ing regulatory oversight by the Commission or some other Federal
Representatives of private industries, businesses and organizations-
agency of all major data banks and information systems affecting
have also indicated that such a study would better enable them to meet
their ethical and legal obligations to protect individual privacy in an
privacy. The Committee found a particular need for examination of the laws
information-rich society while taking full advantage of the benefits of
and practices governing the kinds of information held by private
computer technology.
information collectors which the Federal Government obtains by
Guidelines for Study
various means. This includes bank, health, educational, and employ-
The Committee is aware of the range of possible areas for investiga-
ment records. It was partly for this reason that the Committee adopted
tion and of means of conducting such study. Therefore, subsection (b)
an amendment authorizing the Commission to study what personal
establishes restraints, limitations and certain research guidelines for
information the Federal Government should collect. Congressional
the Commission study SO that the final product in each case may be
studies revealed that most departments and agencies had little cogent
responsive to the particular legislative and administrative needs of
knowledge on the extent of their data collection from the private
Congress, the executive branch and agencies of State and local govern-
sector and how their demands or their grants, contracts or agreements
ments.
ultimatelv affected the privacy of the individual.
As a specific requirement, the Committee is to examine and analyze
Despite some efforts by government and private bodies to study
the interstate transfer of information about individuals whether by
certain aspects of public and private information practices and com-
manual or electronic means. As an example, interstate corporations
puter technology, no Federal body has yet been given a broad mandate
and multi-state governmental units and private regional data banks
to examine the status of privacy in both the public and private sector
exchange among themselves a wide variety of information about people
and to recommend specific legislative or administrative action to
enhance its protection. Indeed, the President's Domestic Council
for the purpose of approving credit applications, hiring personnal,
examining claims for insurance, and other transactions affecting de-
Committee on Privacy, established in early 1974, immediately per-
cisions about the rights, privileges or benefits of individuals. A second
ceived the need for a comprehensive survey and analysis of existing
example would be the experimental Electronic Funds Transfer System
and planned data banks and of the laws pertaining to privacy, confi-
now being developed under the auspices of the Department of the
dentiality and security. That Committee realized, however, that such
Treasury and the Social Security Administration to electronically
a task would be time-consuming and difficult. It relied, therefore, on a
transfer social security benefits and other welfare payments from
recent survey of Federal data banks conducted by a congressional
government to bank.
committee. The Privacy Committee of the Secretary of Health,
The Commission study is by no means directed to all data banks on
Education, and Welfare had a similar experience. Similarly, a number
people or all personal information systems. Rather, the Commission is
of Department heads in recent years have discovered that they lacked
charged to study only those which significantly or substantially affect
concrete and comprehensive information about their own agency's
the privacy and other personal and property rights of citizens. The
systems. Since existing executive offices have neither the authority nor
Committee has heard and reviewed much testimony which indicates
the practical ability and resources to perform such functions, the Com-
that interstate and national information networks affect the lives and
mittee decided that it was necessary to create the Privacy Commission
substantive rights of individuals in a variety of ways. The Committee
and charge it with these tasks. In doing so, the Committee has adopted
believes that the Commission should focus its attention on the affects
a recommendation made by numerous experts and study panels for
of the collection, use, storage and transfer of information on the rights
almost a decade.
of individuals.
The Commission is directed to complete the privacy study not later
than three years from the date of its organization. It is authorized to
make periodic reports of its findings to the President and to the
42
43
Social Security Numbers
orders, regulations, directives, and judicial decisions which govern the
Particular practices and subjects which the Committee has found
activities under study by the Commission and determine the extent
are of special concern to the public are designated to be given priority.
to which they are consistent with the rights of privacy and due
The Commission is required to study the use of social security numbers,
process, and other guarantees of the Constitution which this Act seeks
license plate numbers, universal identifiers, and other symbols used to
to promote. The Committee is cognizant that many laws, regulations
identify individuals in information systems and to gain access to
and judicial decisions affect the collection of information about indi-
integrate or centralize systems and files. One of the most important
viduals and the rights of individual privacy. To fully exercise its study
problems that has arisen in the Committee's consideration of privacy
function, the Committee feels that the Privacy Commission should
legislation is-the built-in potential among personal information systems
examine these and take them into account as necessary in making its
for the creation of a national data bank. A single national system
recommendations. In acquiring such information, the Commission
utilizing information gathered about individuals from many sources
may seek the advice and aid of governors, attorneys general, judges,
could be advanced by the use of a common identifying number or
mayors and others with unique control over or knowledge of the
symbol unique to each individual. The Committee intends that the
public policy and law on privacy matters.
Commission examine the use of social security numbers and other
similar identifying symbols or codes in light of their possible use as
Federal-State Relations
universal identifiers, or as indexing tools which may ease the breach of
The Commission is directed to determine the extent to which major
confidentiality or make government record surveillance over the indi-
governmental and private personal information systems affect Federal-
vidual easier. The Commission should review laws, regulations and
State relations or the principle of separation of powers. The Com-
decisions affecting these matters and, in particular, examine the costs
mittee believes that many of the personal information systems funded
and feasibility of halting or restraining present trends in such practices
or otherwise sponsored by the Federal Government subtly affect the
and developing less threatening alternatives in the interest of guaran-
ways that State governments are able to operate their own information
teeing individual privacy and confidentiality of personal information.
systems and interact with the Federal Government. For one example, a
Statistical Data
Federal information program that solicits certain types of information
about individuals from State governments might also prompt those
The Commission is also required to study the matching, integration
State governments to begin collecting the same ty pe of information, for
and analysis of federally produced statistical data with other sources
their own, perhaps undetermined, uses, without appropriate guaran-
of personal information to reconstruct individual responses to statisti-
tees of confidentiality. On the other hand, a Federal program may,
cal questionnaires for uses other than those for which the information
because of its unforeseen results, be effectively prohibiting the State
was collected. The Committee was presented with circumstantial
from adequately promoting the privacy of its citizens, the confiden-
evidence in Volume II of the 1971 President's Commission on Federal
tiality of data about them, or the security of its automated data sys-
Statistics which indicates that it is possible, through sophisticated
tems. Where necessary, the Committee intends that the Commission
computerized techniques to estimate with reasonable accuracy per-
examine the often unforeseen results of Federal-State information-
sonal information relating to identifiable individuals using multiple
sharing in light of their potential affects on Federal-State relations.
sources of statistical and nonstatistical information published by
For each matter under study, the Commission is to consider public
Federal and State agencies. Such information yields to its user signifi-
policy and current standards and criteria governing the collection,
cant information about individuals heretofore held in confidence and
soliciting, processing, use, access, integration, dissemination, and trans-
thus violating a pledge of confidentiality made by Federal agencies
mission of personal information. The Committee heard testimony and
collecting the information for statistical purposes. Commercial firms
has reviewed much material indicating that many information users
are rapidly improving this technology, thus creating the need for
already impost strict safeguards and confidentiality requirements on
careful attention to its direction and ultimate capability and its
their information systems. The Committee wishes the Commission to
impact on privacy. The Committee intends that particular attention
be able to review these rules and practices in order to determine the
be paid to such developments by certain direct mail marketers, and
scope of their use and their effectiveness as models under particular
that the Commission recommend measures to preserve the guarantees
legislative schemes.
of confidentiality provided by existing census statutes and regulations
The Commission is also specifically directed to include in its study
and promised by organizations conducting statistical surveys.
certain areas which have been shown to be of concern to the public
The Committee believes that legislation on privacy issues should
and to legal commentators on privacy issues. These include informa-
give due regard to the preservation of the Federal system and should
tional activities in the areas of medicine, education, insurance, em-
allow States to provide stronger controls as they see fit or to experi-
ployment and personnel, credit, banking and finance, travel, hotel and
ment with their own legislation to meet problems unique in those
entertainment reservations, and electronic check processing.
States. At the same time, they should be afforded all of the information
In addition to these, the Commission is authorized to study such
which such a national study can make available. In conducting its
other information activities as it believes are necessary to_carry out
study, the Commission is required to examine the laws, Executive
the congressional policy of this Act. This provision, 1SR included to
GERALD
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assure that the Commission may be free to examine new developments
TITLE II-STANDARDS AND MANAGEMENT SYSTEMS
in means of sophisticated surveillance techniques or of transmitting
personal information by satellite and other electronic means.
FOR HANDLING INFORMATION RELATING TO
INDIVIDUALS
Exceptions to Committee Study
SECTION 201
An exception is made to the Commission's study power for informa-
SAFEGUARD REQUIREMENTS FOR ADMINISTRATIVE, INTELLIGENCE,
tion systems maintained by religious organizations, in order to pre-
STATISTICAL-REPORTING, AND RESEARCH PURPOSES
serve the principle of separation of church and state. A similar exemp-
tion for charitable and political organizations was deleted from the
Section 201 sets forth standards and procedures to govern all
original bill by Committee amendment to assure the broadest scope
stages of decision-making for and operation of the information systems
to the Commission's study for the protection of individual privacy.
of each department and agency of the executive branch.
This section requires the Commission, to the extent practicable,
Subsection 201(a). This subsection is the provision of the bill
to collect and utilize findings, reports and research studies of con-
specifically directed to the constitutional and legal control of the in-
gressional and State committees, other government agencies, pri-
vasion of individual privacy by government. It reflects the intent of
vate organizations and individuals which pertain to the problems
the Committee to follow the recommendations of the report of the Na-
under study by the Commission. The Committee recognizes that
tional Academy of Sciences, that "in terms of privacy there should
there has been much written and said about the issue of personal
be a general policy to extend the zones of personal and group freedom
privacy, due process and confidentiality. In fulfilling its study man-
from compulsory data collection SO that matters that ought not to
date, the Commission must take full advantage of this research and
be considered in making decisions about individuals do not become
information. In addition, there are available in computerized form
part of the formal record at all."
the texts of statutes and judicial opinions.
Beyond that, this section, together with subsection 201(b)(1) and
The Committee expects by this requirement to have incorporated
(7), reflects another dimension of the privacy issue, which is that, under
within the Commission study the most valuable aspects of previous
our Constitution, there are, or may be, some human activities of
research efforts and thereby reduce the administrative costs which a
which Government should not take note for any purpose at all because
nationwide study might otherwise involve.
of the detrimental effect on freedom, and that this is true whether or
In many subject areas, the Commission may need to do no more to
not the information is intended to be used to make decisions about
meet its obligations on some aspect of the study than develop and
specific individuals.
draft the specific language for legislative recommendations to be
This section reflects the Committee's effort to insert considerations
submitted to Congress and the President.
of privacy in the decision-making process involving management of
The Commission is also authorized to receive and review individual
information systems. As the Academy report states, privacy is "the
complaints with respect to any matter under study. This is to assure
primary civil liberties issue, since both confidentiality and due process
that wherever possible, the Commission's empirical research shall
questions disappear if the data are not gathered in the first place, or
include, and the recommendations address, the complaints and
once they are destroyed."
concerns expressed by individuals or organizations. Frequently, the
The section is designed to insure that a Federal agency weighs
economic or political consequences of seeking redress from or com-
strongly the rights of personal privacy against its authority and need
plaining to the offending agency makes it difficult, if not impossible,
to gather personal information for a public purpose. Before an infor-
for the individual to obtain remedies for invasions of privacy or for
mation-gathering program may be implemented, the agency must
wrongs suffered by inaccuracies fed into computerized data systems.
make a determination that its action is authorized and warranted to
The Commission should not have to rely on reports of complaints
carry out a statutory obligation. This provision affirms a basic prin-
made to the offending organization.
ciple of good management in public administration in that it is
In addition, in some areas, the lack of sufficient technical and legal
designed to require that the kind of information about individuals
resources makes it difficult for Congress to investigate individual
which an agency seeks to gather or solicit, and the criteria for programs
cases of information abuses which come to the attention of members
to investigate individuals will be, judged by an official at the highest
to a degree sufficient to produce a record for complex legislation.
policymaking level to be relevant and necessary to a statutory purpose
As indicated, the Committee does not intend such studies to be
of the agency.
theoretical and speculative but to be based on legal research, review
The section is designed to implement the following policy judgments
of data practices and particular data banks, and investigation of
in the report:
complaints it receives.
SECTION 107
Not only should the need for and relevance of specific items
of personal data have to be established in positive terms but
REPORTS
serious consideration should be given to whether some entire
record-keeping programs deserve to be continued at all; this
Section 107 provides that the Commission shall, from time to time,
was the basic question raised about the Army's domestic
and in an annual report, report to the President and the Congress
intelligence watch over civilian political activity in the late
on its activities in carrying out the provisions of this Act.
1960's. A further consideration where need for collecting data
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integrated into the agency record-keeping system. Thus the decision
is at issue is whether records should be retained beyond their
on the relevance and need for certain gathering of information and
period of likely use for the purposes for which they were
investigating of citizens requires consideration of how that data will
originally collected.
overlap or conflict with existing data banks and information programs
A related but more complicated question concerns the
of the agency.
continued existence of files of information which is no longer
This section is designed to assure observance of basic principles of
supposed to be used for making decisions about individuals.
privacy and due process by requiring that where an agency delves
Many cumulative records about individuals in various sectors
into an area of personal privacy in the course of meeting government's
of the organizational world are filled with facts and evalua-
needs, its actions may not be arbitrary, but rather, must be author-
tions set down in an earlier time, under a different socio-
ized, and found to be not only reasonable, but warranted by the
political ethos. In this setting, it is not enough to say "from
overriding needs of society as the agency is responsible for adminis-
now on we will not steps need to be taken to remove
tering to those needs.
from historical records in high schools, colleges, commercial
The provision is the legislative reflection of the conclusion of
reporting agencies, law-enforcement files, and other organiza-
a panel of the Committee on Scientific and Technical Information of
tions the personal information previously gathered about
the Federal Science Council which recommended that "an agency
political, racial, cultural, and sexual matters that would not
should formulate as precisely as possible the policy objectives to be
be put in the files under present rules. To the extent that
served by a data-gathering activity before it is undertaken. Agencies
evaluators today have such records to consult, especially for
are encouraged to think carefully about the legitimacy of the activity,
decisions that are not visible to the individual, the presence of
the significance of the data for the agency's program, the potential
such information represents a dead (and improper) hand
burden on the respondents and the possible availability of the data
from the past.
from some other source. This may make it possible to achieve a
Most of these provisions contain terminology which will allow
reduction in the burden being put on citizens and to harmonize govern-
administrative definitions to fit particular agency needs and programs.
mental questionnaires and surveys. Great care should be exercised
They are intended to be implemented by the model guidelines devel-
in framing information requests to be certain that the desired in-
oped by the Commission which may then be adopted by the agencies
formation is captured initially and that multiple requests for informa-
or altered as found necessary. This will, for instance, allow for devel-
tion is captured initially and that multiple requests for information
opment by Commission experts, in consultation with other Federal
are avoided, and that no more sensitive personal information is
officials, of careful, workable definitions of such terms as "accurate,"
collected than necessary."
"timely," "complete," and "relevant."
Subsection 201 (a) (2). Provides that each Federal agency shall collect
Such a process is also envisioned for determining precise details of
information to the greatest extent practicable directly from the subject
the contents of the notices of data banks required to be filed for the
where the information may result in adverse determinations about the
Federal Register and with the Commission. These can be discussed
individual's rights, benefits, and privileges under Federal programs.
and determined with the assistance of the Commission in accordance
This section, as originally introduced, had no qualifications, but
with an agency's unique problems and record-keeping methods.
reflected the basic principle of fairness recommended by several
Subsection 201 (a) Provides that each Federal agency shall collect,
reports, that where government investigates a person, it should not
solicit and maintain only such personal information as is relevant and
depend on hearsay or "hide under the eaves", but inquire directly
necessary to accomplish a statutory purpose of the agency.
of the individual about matters personal to him or her.
This section, therefore, governs the first phase of the process which
In order to meet agency objections about the needs of certain civil
is the gathering of the information in the first place. The provision
and criminal law enforcement programs requiring intelligence and
reaffirms the basic principles of good management and public admin-
investigative information to be collected from other sources, the
istration by assuring that the kinds of information about people which
section was limited to instances where the information sought could
an agency seeks to gather or solicit and the criteria in programs for
affect a person's qualifications to be considered by government for
investigating people are judged by an official at the highest level to
employment or other rights, benefits and privileges. This is the
be relevant to the needs of the agency as dictated by statute. Second,
minimum standard of fair procedure, although there may be instances
it requires a decision that the collection of information or investiga-
where it cannot be observed. It is expected however that these will be
tion of people along certain information lines is necessary in that the
kept to a minimum. Cases may arise for instance, where it is not
needs of the agency and goals of the program cannot reasonably be
practical (1) for logistical or financial reasons, or (2) for reason of
met through alternative means.
conflicting, more restrictive, statutory requirements which cannot,
Where there are difficulties in linking a personal data program to
after consultation with the Commission, be resolved, or (3) where the
statutory authority, it is to be expected that some agencies may face
information is on hand from other disclosures made by the individual
hard decisions of whether or not to seek additional authority, to reject
and he has specifically consented at the time of disclosure or later to
certain programs entirely or to alter investigative standards.
have it used for other or related purposes within the agency or bA
A third element in this decision process is the fact that the infor-
another agency,
mation which officials propose to collect must be maintained and
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49
At the same time as it assures accuracy and fairness to data subjects
a request for information and what the likely consequences are of his
by this provision, the Committee does not wish to defeat the purposes
refusal. To further clearify the consequences of these options, the
of the Federal Reports Act to promote the efficient, economical
notices should also include an explanation of the limits on the agency's
exchange and sharing of information; nor does it wish to impose undue
ability to keep information confidential; for example, under com-
burdens on individuals from whom information is solicited. However
pulsory legal process.
when the cause of ordinary efficiency and small economies is weighed
The Committee is not impressed with executive branch arguments
against the interest of personal privacy and confidentiality of sensitive
and those of some information users which hold that such candor on
information, the Committee expects the balance would tilt in favor of
the part of government represents "poor psychology" and will destroy
the latter. However, the Act looks to a conscientious weighing of the
the integrity of statistical surveys and other data programs, or that
interests by. administrators, and to decisions made on the record
it will discourage cooperation with official inquiries. The Committee
pursuant to the discretion allowed by this section.
believes, rather, that just the opposite results will be obtained. Fur-
Even where information is acquired from other sources, an agency
thermore, the spirit of constitutional considerations of due process
should, in the interest of the standards of accuracy and efficiency to be
and self-incrimination should pervade the conduct of such inquiries
promoted under subsection 201 (b) make efforts to have it reviewed by
for administrative, regulatory, or other such governmental data
the subject individual. For example, by sending him a copy of the
programs.
information and affording him an opportunity to affirm, deny or
In defining the purposes of this section, the Committee endorses the
explain it. Such review may constitute compliance with subsection
recommendations of the HEW report that "the requirement is in-
(a) (2). This section reflects the committee's adoption of the
tended to discourage organizations from probing unnecessarily for
conclusion of the COSATI panel that "Information should not be
details of people's lives under circumstances in which people may be
collected on a hearsay basis or from people who have only a tenuous
reluctant to refuse to provide the requested data. It is also intended
association with the data subject and therefore are not in a position to
to discourage coercive collection of personal data that are to be used
report data from a high probability that it will be accurate."
exclusively for statistical reporting and research."
Subsection 201 (3). Requires that each Federal agency shall inform
We also endorse the explanation of the COSATI panel of the need
any individual requested to disclose personal information for any pur-
for such protections to avoid "the use of coercion or intimidation
pose whether that disclosure is mandatory or voluntary, by what stat-
in the course of gathering information." We agree with the Panel
utory authority it is solicited, what uses the agency will make of it,
that: "unless disclosure has been made mandatory by Act of Congress,
what penalties and specific consequences for the individual, which are
personal information must never be extracted from an individual
known to the agency, will result from the nondisclosure, and what
without securing his informed, express consent * * * In gathering
rules of confidentiality will govern the information.
information from individual citizens, Federal agencies have an obliga-
This requirement, in various forms, has been universally recom-
tion to disclose to them the purpose for which the information is being
mended by commentators and government and private groups, the
collected, to state clearly the use or uses to which it will be put, to
HEW Report, information specialists, congressional witnesses and
identify the governmental and non-governmental individuals and
others, as basic to the protection of the individual from the arbitrary
organizations that will be given access to it, and to indicate whether
information power of the Federal Government.
the individual's name will be associated, either directly or indirectly,
The Committee intends it to remedy the many documented com-
with the information.
plaints from citizens that they were pressured, coerced, or induced by
"The type of disclosure is particularly important when the indi-
deceptive means into responding to governmental questionnaires
vidual's participation in a data-gathering activity is voluntary in
seeking highly personal information for administrative programs, or
character, and is one way of assuring that the voluntary consent of the
for census and other statistical and research purposes of the Federal
individual is meaningful. It enables him to evaluate the risk he may be
agencies; that they were not told and, furthermore, were frequently
assuming by revealing personal information, and in some cases, per-
unable to learn, even with legal assistance, whether compliance was
mits him to weigh that risk against the advantages of participating in
voluntary or mandatory, what statutes authorized it, what penalties
a particular governmental program. It also should contribute to pre-
attached to nonresponse, or exactly why the Federal Government
venting alienation and should encourage participation in the data-
wanted the information in the first place.
gathering process. For the same reasons, it is imperative that the
The section anticipates that Federal requests or requirements for
agency's understanding with the individual be honored.
personal information henceforth shall be accompanied by written or
"When an individual is required to furnish information by act of
oral notices presented in obvious or highly visible manner, which use
Congress as is true for the decennial census, informed consent of the
the specific terms "mandatory" or "voluntary" in describing the
type described in the preceding paragraph is not necessary. None-
nature of the individual's desired response, and providing the other
theless, it is desirable to provide individual respondents with as much
requisite information concerning the authority of the agency to con-
information concerning the data activity as possible."
duct the survey, initiate the inquiry, or, in the case of administrative
Of particular concern to people subjected to governmental inquiries
programs, to ask particular questions of the applicant. The Committee
is the general lack of precise information afforded at the time of collec-
believes that an agency should be able to communicate to the indi-
tion about the penalties for and consequences of nondisclosure. Where
vidual, without intimidation, whether he is required to comply with
compliance is mandatory or where untrue response is punishable, with
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penalties ranging from $100 to $500 to $1,000 and a year in jail, basic
The condition that such a goal be pursued to the "maximum extent
due process principles require that the individual be put on notice of
possible" is attached to promote an extra measure of caution and
such penalties. The same constitutional considerations require that
zeal beyond the ordinary standard of care which governs all other in-
where such penalties accompany demands for personal data, that
formation handling. But it is also designed to allow the agency the
demand must be based on statutory authorization.
freedom to determine through its own regulations and directives, as
The Committee considers it basic fairness that any agency provide
adapted from the Commission model guidelines, what is reasonably
whatever information it has at hand about the immediate consequence
"possible" within the limits of the statutory duties placed on the
of not responding to an inquiry or particular question. While it may
agency, of its resources, of technological feasibility, and of adminis-
usually be convenient to provide this warning on the face of a written
trative practicality. The Committee recognized, for instance, that it is
inquiry upon initial collection, in some cases, the Committee recog-
administratively and logistically impossible to keep current and timely
nizes that it may be more practical to supply such information prompt-
the statistical information maintained for historical and archival
ly at a later time upon request of a data subject who may voice ob-
purposes. Yet an agency may well question an investigative data
jection or concern about some phase of a written or oral inquiry, or
bank or file on people which was long ago outdated and is now seldom
to some particular question. Clearly, the agency cannot be reasonably
used, and which services no program or one which is maintained
expected to tell all foreseeable or imaginable consequences of nondis-
only in case the individuals once again deal with the agency. It is
closure or disclosure. It can however, advise when nondisclosure will
hoped that with the inclusion of such a broadly-termed mandate
preclude any consideration of an applicant for employment, or for a
linked to the right of the individual to challenge, there will begin a
right, benefit or privilege, or when nonresponse may be accorded some
long-overdue evaluation of agency program needs for stale, irrelevant,
weight in official consideration of the application.
and untimely information.
To cite one example:
When combined with the subsection (a) (1) duty to confine infor-
A Federal employee requested to complete a research questionnaire
mation gathering to only personal information relevant and necessary
stating which political candidate he or she prefers should be told at
to accomplish a statutory purpose, the Committee has provided
the outset that the response is voluntary, that it will not affect
agencies and the courts with a standard against which the individual
employment, and will not go into any government file. However, even
may challenge information in a file or data bank.
such notice will not preclude an employee electing to challenge the
Subsection 201(b)(2). States that agencies shall require employees to
inquiry for possible violation of the limitation in subsection (7)
refrain from disclosing records or personal data in them, within the
on inquiries on first amendment activities.
agency other than to officers or employees who have a need for such
Similarly, couples applying for Federal housing loans have the right
record or data in the performance of their duties for the agency
to know if they have to answer questions on whether they intend to
This section is designed to prevent the office gossip, interoffice and
have children and if they practice birth control, why the agency
interbureau leaks of information about persons of interest in the agency
requires such information and whether or not they lose the chance for
or community, or such actions as the publicizing of information of a
the loan if they don't disclose such information.
sensational or salacious nature or of that detrimental to character or
Subsection 201(b)(1). Requires each Federal agency that maintains
reputation.
an information system or file to insure, that is issue any requisite regu-
This would cover such activities as reading results of psychological
lations, and take affirmative administrative action for the purpose of
tests, reporting personal disclosures contained in personnel and
assuring, that personal information maintained in the system or file,
medical records, including questionnaires containing personal financial
or disseminated from it, is to the maximum extent possible, accurate,
data filed under the ethical conduct programs of the agency.
complete, timely and relevant to the needs of the agency.
It is designed to halt the internal blacklisting that frequently goes
This requirement complements that of subsection (1) impos-
on in agencies and on Federal installations on persons who do not
ing such a duty on agencies and is deemed necessary to the effective ex-
comply with the organizational norms and standards for some reason,
ercise of any right of the individual to challenge a record, or a data
such as not participating in savings bonds drives or charity campaigns;
bank on these grounds through the agency or the courts.
and the listing of results of employee tests or performances;
The standard of relevancy is that statutory basis for an information
It is designed to help prevent the easy exchange of data about
program required by subsection (a) (1). The scope of these two
the same individual between regional managers of different pro-
sections encompasses all phases of the information system. The stand-
grams within a bureau or department and the consequent informal
ards of relevancy here relate to the constitutionality and legality of the
or inadvertent administrative integration of data for purposes of
entire information program, asswell as, the reasonableness of mainte-
making a governmental decision about that person. This might be
nance or any particular piece of personal information, given the stat-
true, for instance, of a farmer who had filed information or been the
utory jursidiction of the agency. The standards of accuracy,
subject of official inquiry in several agricultural programs in one
completeness, and timeliness, as well as relevancy are directed to the
county.
quality of the information in'an individual's own file. The section thus
The section envisions that if an employee dealing with official
looks to a double-pronged consideration, first to the authorized needs
information about a person is requested to surrender that person's
of the agency, and second, to the scope of the administrative need for
record to someone who clearly has no need for it, he should decline or
information in order to make a decision on that individual.
seek to define the purpose of the requested disclosure. One of the
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53
results of this section may be to promote a sense of ethical obligation
pursuant to law or regulation, which includes the Federal and State
on the part of Federal officials and employees to ascertain when
open records laws and regulations implementing them.
improper disclosure of information within the agency may be sought
This section is included as an essential element of the Code of Fair
or promoted for personal, political or commercial motives unrelated
Information Practice and the "Information Bill of Rights" in order
to the agency's administrative mission.
to promote the full implementation of the right to seek to obtain a
It is not intended to conflict with other statutes, rules and regula-
meaningful correction of inaccurate records, not only in the offering
tions governing employee conduct or information practices but is
agency, but wherever in government and private organizations the
meant to implement and reinforce them. The standard of refraining
inaccurate information may have been transmitted.
from certain behavior implies, by definition, not indulging in impulses
The kind of audit and "audit trail" envisioned here is one that
to engage in positive behavior to the contrary, in this case, in not
makes it technically and administratively possible to audit and inspect
taking positive action or making specific administrative or personal
the nature and pattern of transfer of personal information whether
efforts to disclose personal information acquired in the course of one's
in manual or computerized form outside the agency system, to be
duties when such disclosure is not required.
integrated in another agency's system, or to other persons in other
Subsection 201 Requires any Federal agency that maintains a
agencies of government.
personal information system or file to maintain a list of all categories of
Furthermore, such record of access and disclosure helps assure
persons, including individuals and agencies authorized to have regular
against administrative departure from the stated uses, access controls,
access to personal information in the system or file.
and users required to be filed in the Federal Register and with the
The original bill required Federal agencies to record each and every
Privacy Commission, and to guard against illegal seizures of infor-
access to any information system or file. By requiring instead simply
mation. It is designed to make oversight of information practices of
a list of the categories of employees and of other agencies and persons
government more manageable and efficient.
who on a regular basis are permitted to examine files within a system
Subsection 201 (5). Requires a Federal agency that maintains a
of personal information, the bill meets the objections of agencies that
personal information system or file to establish rules of conduct and
a strict accounting of every access was not administratively practi-
notify and instruct each person involved in the design, development,
cable or feasible in view of the necessary routine in daily access to a
operation, or maintenance of the system or file, or in the collection, use,
file by varous identifiable groups of people and by many employees
maintenance, or dissemination of information about an individual, of
for purposes of entering or withdrawing information. The problem
the requirements of this Act, including any rules and procedures
of requiring identity and purpose of access by reporters and others in
adopted pursuant to this Act and the penalties for noncompliance.
the public exercising inspection rights under that and other acts made
This notice would include consultants, contractors, and those outside
it more feasible to require a list which would be available to the
the agency involved in such activities.
public and to individuals who are subjects of the files.
This section, another essential element in the Code of Fair Informa-
Where employees are concerned, the kind of list envisioned would
tion Practice, merely recognizes principles of good public administra-
make it possible to identify for any particular day the employees oc-
tion that the most effective hierarchial management of an organization
cupying a position and performing duties requiring such access to a
results from informing employees of their responsibilities and how they
particular file or authorized to have such access. Since this is deemed
relate to overall agency obligation and of their duties regarding the
merely good management and responsible personnel practice for all
information they process and to the techniques, equipment and instru-
Federal systems and is a practice observed in many agencies anyway,
ments with which they carry out their assignments.
it is not expected to present difficulties in compliance.
While most agencies may have ethical conduct rules with respect to
With regard to the definition of who are "regular" users beyond the
the information under the control of civil servants, these do not neces-
agency, outside of the public and press, the type of regular use en-
sarily always reflect the ever-expanding information needs of govern-
visioned is that such as where, by statute and written agreement for
ment or the increasing mechanization and computerization of govern-
information-sharing among agencies, there is access by terminal for
ment records, with the vast numbers of specialists and technicians
the purpose of implementing such agreement. The Commission, in the
brought rapidly into Federal agencies to deal with them. Nor do these
course of developing model regulations for guidance of agencies in
codes reflect the developing professional codes of ethical conduct for
implementing the Act, will assist in promoting a workable definition of
those involved in application of computer technology and sophisticated
such users by reference to the specific situations presently authorized.
information-processing techniques in the public and private sectors. It
Subsection 201 (b) (4). Requires any Federal agency that maintains a
is expected that the Commission, in drafting its model guidelines,
personal information system orifile to maintain an accurate accounting
would incorporate these and would encourage their more extensive
of the date, nature, and purpose of nonregular access granted to
adoption by agencies in their rules implementing the Act.
the system, and each disclosure of personal information made to any
This section thus envisions positive action by the agency, beyond
person outside the agency, or to another agency, including the name
mere publication of implementing regulations, to notify people
and address of the person or other agency to whom disclosure was
administratively, perhaps by a handbook for which each person is
made or access was granted. An exception is recognized for those
responsible, and by a special session instructing them on changes made
accesses and disclosures involved in public inspection or copying
in existing programs by the new Act. It is expected they would be in-
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55
formed of administrative sanctions and other penalties applicable by
would also permit the immediate application of all of these techniques
reason of statutes and regulations governing performance and behavior
where they can contribute-even in their present form-to better
of Federal personnel.
protection of data confidentiality and individual privacy.
Subsection 201 (b) (6). Requires any Federal agency that maintains
The Act thus provides reasonable leeway for agency allotment of
an information system or file to establish appropriate administrative
resources to implement this subsection. At the agency level, it allows
and physical safeguards to insure the security of the information sys-
for a certain amount of "risk management" whereby administrators
tem and confidentiality of personal information processed and handled
weigh the importance and likelihood of the threats against the avail-
in it and to protect against any reasonably foreseeable or anticipated
ability of security measures and the consideration of cost.
threats or hazards to their security or integrity which could result in
The Act makes the wisdom and legality of these decisions reviewable
substantial harm, embarassment, inconvenience, or unfairness to any
by the Commission and Congress where they involve major changes
individual on whom personal information is maintained. [The analysis
in computerization and file management of data on people. It thus
of this subsection is supplemented by that for subsection (f).]
makes Congress, with the advice of the Commission, the final arbiter
Once privacy, confidentiality and due process policy issues have
of the decision weighing cost, economy, technological feasibility
been resolved, the administrative measures and technical features
against privacy and other civil liberties.
needed to implement those decisions are required to be taken by the
The Committee is furthermore aware of the problems of requiring
agency under this section. These may include, for example, establish-
computers dedicated to one use or one sensitive category of informa-
ing and enforcing rules of access, adding computer software that ap-
tion. Further, it agrees with the National Academy of Sciences Report
propriately screens requests for access and that keeps accurate and
that "it would hardly advance civil liberties in this country, if in the
complete records of access and disclosure, and installing locks and
name of protecting confidential files, civilian government agencies
similar security devices. Many agencies will no doubt find their
and private organizations were to adopt the authoritarian environ-
present measures adequate for many existing systems and files. Others
ments and intrusive personnel policies used by defense and intelli-
may need supplementary action. All must make such considerations
gence agencies to safeguard their information systems."
part of their decisions to create new systems and data banks.
The Committee was persuaded on the need for such standards by
The Committee recognizes the variety of technical security needs of
the testimony of computer experts and by reported cases of file by theft,
the many different agency systems and files containing personal infor-
tapped transmissions and disclosure problems in the use of time-
mation as well as the cost and range of possible technological methods
sharing facilities. As the National Academy report recommendation
of meeting those needs. The Committee, therefore, has not required in
summarizes numerous expert opinions:
this subsection or in this Act a general set of specific technical stand-
ards for security of systems. Rather, the agency is merely required to
Both managers and policymakers should be aware that
establish those administrative and technical safeguards which it
the payoff in sensitive personal information to be obtained
determines appropriate and finds technologically feasible for the ade-
by insiders violating confidentiality rules and outsiders
quate protection of the confidentiality of the particular information it
breaching system security is going to increase in the coming
keeps against purloining, unauthorized access, and political pressures
years. More comprehensive information about people will
to yield the information improperly to persons with no formal need
be collected in the kind of large-scale record systems that
for it. Once it determines the need for certain physical and technical
are growing up, such as the omnibus charge-card systems
features for the computerized or mechanized stages of their systems,
and national welfare assistance programs. Furthermore, as
or for their manual files, agencies would be expected, in compliance
more organizations make use of the low cost and flexible
with the Act, to seek such features where necessary through the budget
services that are available in commercial time-sharing
process or as alternatives to existing methods.
facilities, more high-payoff targets such as the membership
The Committee is cognizant of the advice of the Director of the
and contributor lists of various kinds of organizations will
National Bureau of Standards Institute for Computer Sciences and
be appearing in time-sharing systems, requiring more atten-
Technology, and intends that the term "appropriate safeguards"
tion to the security problems in multiple-user commercial
should incorporate a standard of reasonableness and "refer to those
facilities than this area has received thus far. (Report, p. 395)
safeguards which represent current state-of-the-art procedures at any
The range of alternatives available to agencies to promote adequate
given time, despite any weaknesses that may exist in the technology
systems security has been described at length for the Committee
at that time." However, the Committee does not intend to discourage
record and in other congressional hearings. For convenience and
the active pursuit of new and more useful safeguards.
expertise, the National Academy of Science report can be cited here
While this interpretation represents a retreat from the absolute
as indicative of the Committee judgment that it is not tying the
requirement of obtaining such technological features, the Committee
administrative or logistical hands of the executive branch with strict
agrees that given present cost factors and considerations of economy,
impossible standards, but is leaving it for the agencies and the Federal
such an approach suggests that we could look forward to increasingly
Government to request needed specific features from manufacturers
higher standards of 'reasonableness' as new technologies are further
in the course of the Federal procurement process. The report states:
developed to make our systems progressively more secure. But it
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What seems clear is that adequate computer technology
This section is directed to the planning stage of any executive
already exists to provide both the hardware and software
branch programs being designed for the principal purpose of identify-
protections that are needed to afford effective levels of secu-
ing Americans who exercise their rights under the First Amendment
rity for personal data in the kinds of record systems we have
and of taking note of how and when such activities are exercised. It
been considering. To give several examples of particular
is directed at programs which would (1) require gathering of such data
relevance to civil liberties issues, much more could be done
from other agencies or (2) would require questions to be asked of the
by computer manufacturers to put record-field access control
subject individual or of others about his or her personal political
features into the software operating systems of computer
beliefs and philosophy, about legitimate activities of the individual
systems, SO that users could exercise greater control over the
in participating in community events, in religious practices, in seeking
authorization tables that govern access to the data base
redress of grievances through such methods as signing petitions to be
for each user. Similarly, much more could be done by soft-
sent to Government agencies, Members of Congress or State legisla-
ware developers to provide the programs for real-time
tures; picketing under lawful circumstances; associating with others
monitoring against unusual volumes of use or unusually low
of like mind for the purposes of exchanging social, economic or politi-
yields of 'hits,' in order to warn systems managers about
cal views; engaging in lawful demonstrations with others of like mind
what may be unauthorized uses or improper 'browsing' in
for the purpose of expressing opinions about governmental, social or
sensitive files. (Report, p. 395)
economic policies; or expressing written or spoken opinions about such
The Committee does not, therefore, mean to relieve any adminis-
matters through the press, including letters to editors and comments
tration officials of responsibility for promoting the purpose of this
on radio and television programs.
subsection. We are aware of the availability of administrative and
This section's restraint is aimed particularly at preventing collection
technological means of promoting this purpose, and are mindful, in
of protected information not immediately needed, about law-abiding
particular, of Justice Department technical reports by the Project
Americans, on the off-chance that Government or the particular agency
SEARCH Group and reforms effected by law in the computerized
might possibly have to deal with them in the future. This, of course,
information systems of the States of New York, Massachusetts,
applies not only to the agency's own programs, but also to its partici-
Minnesota, and others.
pation in such programs undertaken by other agencies.
The Committee has taken note of laudable activities in the executive
It is directed to overly-broad inquiries made in the course of
branch to foster administrative observance of standards of confi-
administering programs requiring judgments on individuals for de-
dentiality of information and systems security. Such efforts and
termining employment and other rights, qualifications, benefits, or
management guidelines have heretofore been dependent upon the good
privileges under Federal statutes.
will of officials of the department and agencies and upon their zeal,
Next, the section is directed to inquiries made for research or
time and discretion in use of resources. This Act will not impede these
statistical purposes which, even though they may be accompanied by
efforts, but will provide the needed legal support to aid in their
sincere pledges of confidentiality are, by the very fact that govern-
achievement.
ment make the inquiry, infringing on zones of personal privacy which
Subsection 201(b)(7). Provides that no Federal agency that main-
should be exempted from unwarranted Federal inquiry.
tains a personal information system or file shall establish any program
The initiatives for such programs can be highly visible within an
for the purpose of collecting or maintaining information describing
agency. They have come to the attention of Congress in formal regu-
how individuals exercise rights guaranteed by the first amendment
lations, in draft regulations, in informal directives and orders establish-
unless the head of the agency specifically determines that such pro-
ing programs or specifying certain criteria for gathering information
gram is required for the administration of a statute which the agency
deemed helpful to an agency. The requirements of this section, then,
is charged with administering or implementing.
impose a duty on administrators to review such sensitive information
This section combined with the application of the principles of
programs at the earliest possible stage for their possible reception by
relevancy under subsection 201(a), reflects the preferred status which
the public and the subject individuals as threats to first amendment
the Committee intends managers of information technology to accord
principles.
to information touching areas protected by the First Amendment of
Since agency heads and administrators who may doubt their au-
the Constitution. It is aimed at protecting Americans in the enjoy-
thority will consult their general counsels and the Attorney General
ment of the privacy of their thoughts, habits, attitudes and beliefs in
as chief legal officer of the Government, it is expected that this section
matters having nothing to do with the requirements of their dealings
will impose no onerous burden on decision-makers. It is further
with an agency seeking information. It is designed to assure that
expected, however, that not only the rigid letter, but the spirit of the
where such investigations are undertaken, the decision is made by a
Bill of Rights will prevail in their decisions and that where there is
responsible official who is accountable on the record rather than by
dispute about whether to solicit or try to collect the information, the
the culminative ad hoc, case-by-case decisions of investigators and
scale will tilt toward observing the privacy of citizens and toward
drafters of questionnaires which can easily become the common law
of an agency's practice in lieu of agency-level decisions.
seeking alternative methods of fulfilling the administrative FORD goals of
the Federal Government.
LIBRARY
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The Committee does not expect that compliance will be met by a
local employees of the agencies do not have available in their offices
one-time administrative finding that an agency requires such informa-
sufficient information about other data banks, investigative or data-
tion. Instead, there are expected to be specific determinations for new
collection programs, or information practices of their departments or
programs or alterations in existing ones, for directives on investigative
agencies.
standards, and for specific inquiries to be included on questionnaires
Since the Federal Register is not always available to the average
sent for administrative, statistical, or research purposes.
citizen and since the urgency of a problem might preclude his seeking
The standards are applicable whether the information is sought for
information from the Commission's guide to data banks, the Com-
another agency's list, or by means of investigative questionnaire, lie-
mittee intends that notices with the requisite information should be
detector, oath, personality test, or any other similar technique.
available for distribution upon request.
Such determination will of necessity require reference to require-
It is expected that the contents of notices filed with the commission
ments of authorizing program statutes, "housekeeping statutes" of
would of necessity be more detailed and elaborate than that provided
the departments and agencies, and pertinent judicial decisions. At
for such agency distribution. Such a document might be abbreviated
a minimum, it expects that compliance will begin with creation of a
with an indication of where the individual may seek additional
special reviewing process for such matters at the highest level in each
information.
agency and that efforts would be made to seek to learn reaction to
The notice to the Commission should contain a listing of all statutes
similar programs by Congress, the press and public.
which require the collection of such personal information by the
Where authority is found to be lacking to make such inquiries as
agency. This is to enable the Commission to carry out its function pur-
are deemed necessary for a statutory purpose, nothing prevents a
suant to subsection 103(a) to publish such list for each data bank and
department or agency from proposing to the President and from
personal information system. This requirement was included by
seeking of Congress legislation granting the requisite authority.
Committee amendment SO that Congress and the public may know
In drawing the particular restrictions on data gathering set forth in
whether or not the agencies are collecting the information at the
this section, the Committee does not intend to preclude future deci-
discretion or whim of administrators or if there is some statutory basis
sions that other types of personal information shall not be collected by
for it. This requirement to provide such legal data on a systematic
Federal agencies.
basis will enable Congress, if it SO desires, to reexamine or modify such
Notices
statutory authority. Such information on hand will also assist the
Commission in its investigation of the complaints of violations of the
Subsection 201(c). Provides for the notices describing the personal
Act, and in its study of the practices of State and local and private
information systems and data banks maintained by the departments
sector organization in which it is to review the statutes and legal
and agencies of the executive branch.
authorities for data programs.
The provision incorporates the recommended language contained
Subsection 201(d). States the basic right of the individual to inspect
in the draft administration bill, and specific recommendations of the
and correct the personal information which the Government has on
HEW privacy committee. The duties herein are required to enable the
record about that person. Its provisions are minimum standards and
privacy commission to carry out its duties, as discussed above, pur-
are not intended to preempt or preclude laws and regulations providing
suant to subsection 103(a), of publishing the Federal directory of
even stronger protections for such rights.
personal information systems and data banks.
These provisions reflect the cumulative recommendations of many
It is the Committee's intent to specify separately each matter to
experts in constitutional law and of governmental and private groups
be included or considered for inclusion in such notices. The categories,
studying the issues of privacy and due process over many years. They
however, are broadly stated to allow agencies to adapt their statements
also take into account experience with access and challenge provisions
to fit their particular systems and files.
of the Fair Credit Reporting Act, as well as the many recommenda-
The Committee intends that no agency should be exempt from the
tions from the Federal Trade Commission, the public, and Members of
requirement to develop such information needed for the required
Congress for strengthening and clarifying that Act.
notices and to send it to the Commission. In addition, agencies are
As originally introduced, the bill provided that each agency notify
required to provide such information for publication in the Federal
all individuals about whom personal information is kept in the orga-
Register simultaneously when the Act becomes effective. Annually
nization's files. This provision would most clearly have guaranteed
thereafter, they are to supplement such notice or, if there has been
that each individual would know what files of personal information
no change in their personal information systems or data banks, they
are being kept, and I y whom, and for what purposes. However, the
should either state this or reissue their previous statement. While
Committee recognizes the merit of the objection raised by Federal
such simultaneous action may cause an initial logistics problem, the
agencies that individual notification would be unjustifiably costly.
Committee believes it is necessary if the public notice function and the
The Committee relies instead on the initiative of concerned individuals
exercise of the rights which it serves are to be meaningful. Congress
to learn whether they are the subject of government files. Using the
has received complaints about the difficulty which organizations and
Directory of Information Systems as a guide, any individual that
individuals have in keeping track of the scattered, obscurely-worded
writes a letter to any department or agency or official of the Federal
public notices filed by agencies which may affect privacy and civil
Government asking to know what files exist on him shall receive a full
liberties. In addition, citizens have complained that regional and
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60
written permission authorizing discussion of the file in that person's
accounting, on behalf of the addressed department or agency and
presence.
all of its subsidairy governmental organizations, grantees and con-
The person has the right to obtain the disclosures and access re-
tractors, of precisely what files do exist.
quired to be given under the Act in person with proper identification,
Subsection 201 (d) (1). Requires each Federal agency which maintains
or by mail upon written request. An agency may set reasonable
an information system or file to assure that an individual who requests
standard charges for document duplication.
them may exercise rights set forth under this subsection. This re-
This section provides the further right to be completely informed
quirement of "assurance" means no more nor less than that an agency
about the uses and disclosure the agency has made of the information
must (1) issue appropriate implementing regulations and (2) take
SO that the individual may trace and correct the further uses of any
affirmative actions to apply them.
inaccurate information, or take any necessary action to retrieve it
First, the person has the right to be informed of the existence of
from improper disclosure. The degree of "completeness," of course,
personal information on him or her, to know whether or not the agency
would depend on what information the operative official has to his
even has a separate file.
knowledge, or can reasonably obtain. In addition, the handling of such
In addition, full access to that file is to be afforded and the right to
cases would be governed by the agency regulations defining what is
inspect it in a form which is comprehensible. This means that, unlike
deemed complete, timely and relevant to the agency needs in using the
the existing practice in some agencies and under the Fair Credit
information for any purpose.
Reporting Act, a person does not have to rely on a clerk's review of
Subsection 201 (d) (2). Describes the actions required of an agency as a
the file and a summary of what is in it. In addition, an agency may not
minimum response to a person who lets the agency know in some oral
just present a punched card or a collection of symbols on a print-out
or written fashion that he or she wishes to challenge, correct or explain
from a computerized system, or shorthand notes, but rather, must see
personal information about that person contained in a system or file.
that the information is presented in a form which the layman may
Some statutory requirements or regulations may provide greater
reasonably understand.
rights. These procedural rights are recognized as minimum in the
The Committee agrees with the definition of "inspection" provided
recommendations of major commentators and studies. All of them are
by numerous reports on privacy and summarized by the Academy of
directed to implementing the basic principles of privacy and due
Sciences Report in the following terms:
process; that a Government agency should not take note of personal
where government files are concerned, we think
matters at all, and that it should, on the other hand, have information
inspection should mean the right of the individual to see a
which is accurate and relevant as needed to make fair administrative
copy or display of the actual record in full, and to obtain
decisions.
an official copy of it for a nominal fee. Having an official
Subsection 201 (d) (2) (A). The agency is to investigate the alleged
describe the contents of the record to the individual but not
inaccuracy by any reasonable means available and to record the
let him examine it himself does not meet the test of open-
current status of the personal information. Such investigation may
ness or provide the psychological sense of having satisfied
require no more than a telephone call to another agency to ask them
oneself about what is really there. (Report, p. 370)
to verify the data. It may require no more than a review and re-
The person is entitled to know the names of all recipients of personal
cording of documentation, affidavits, authoritative materials, or
information about such individual, including the recipient organiza-
records supplied by the individual. It may mean no more than check-
tions and their formal or informal relationship to the system or file,
ing other records and questioning investigators of the agency to clarify
and the purpose and date when the information was given out. This
vague reports or correct inaccuracies. It may mean no more than
reviewing the actions of a computer programmer who deleted or
requirement would not apply, of course, where the accounting of
reduced to a minor role relevant information necessary to present a
access and disclosure under subsection (b) need not be main-
tained because of the exemptions provided in subsection 202 It
complete and fair account of a situation.
would involve allowing the individual to examine whatever access log
The agency regulations, with the guidance of the Commission's
is maintained for the file, together with a list of organizations exempted
guidelines will provide standards for this and other actions of the
from entry in any log.
reviewing official. The subsection is not intended to require an agency
The individual also has the right to know the sources of the per-
to extend its investigative powers beyond its statutory jurisdiction or
sonal information. If such source is required to be kept confidential
beyond the reach of its fiscal and administrative resources. Rather,
by statute, then the individual may be informed only of the nature of
one of the purposes is to provide fairness to the agency by assuring
that administrative means are afforded which allow the agency to
the sources.
The data subject may be accompanied by someone of his choice,
protect itself from charges of inaccuracy and untimeliness by taking
in order to have the support or advice of a friend, relative, or attorney,
the necessary action to verify and update the challenged information.
in inspecting and evaluating the information and making his way
Subsection 201 (d) (2) (B). Requires the agency to correct or eliminate
through what may amount to a paper maze. The Committee believes
any challenged information that its investigation shows to be incom-
this is necessary for effective exercise of rights under the Act. In some
plete, inaccurate, not relevant to its statutory needs, not timely or
cases, the data may be SO derogatory or otherwise sensitive from a
necessary to be retained, or which can no longer be verified.
privacy standpoint that the individual may be asked to furnish
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The finding of a need for retention can include the uses required by
the individual the right to file a statement and provided appeal rights
the agency's needs for meeting administrative, research or statistical
to the Federal Privacy Board, which had cease and desist powers.
obligations. The deciding officer should be able to do more than cite
The Committee, after considering testimony on the wisdom of
a presumed need; rather, the officer should be able to cite a statutory
alternative methods of regulation, decided against making the new
or other legal requirement supporting the decision.
Commission a Federal "ombudsman" complaint body, although it
Subsection (2) (C). If the investigation does not resolve the
may now receive complaints illustrating patterns of violations of the
dispute, the agency, under this subsection is to accept and include
Act.
in the record of such information, a statement of reasonable length
Instead, the individual may seek review within the agency and
provided by the data subject setting forth his or her position on the
direct judicial review by the Federal District Court in the event the
dispute.
agency rejects the challenge to its records.
Wherever possible, such supplemental information is to be included
At the request of the individual, the agency must provide a hearing
or entered in the original file. In some cases, where computer pro-
within 30 days of the request and the individual may appear with
gramming already undertaken prevents the entry of such disputed
counsel, present evidence and examine and cross-examine witnesses.
information, it may be necessary to store it in a separate file, with an
If, after such a hearing, the challenged record is found inadequate
appropriate entry in the formal record of the existence elsewhere of
under 201 (d) then the agency must purge it from the file and from
relevant information.
the agency system, or modify it as found appropriate.
Subsection 201 (2) (D). Requires the agency to report the chal-
The actions or inactions of any agency on a request to review and
lenged information and to supply the supplemental statement in any
challenge personal data in its possession is made reviewable by the
subsequent dissemination or use of the disputed information.
appropriate United States District Court by subsection 201(d)(2)
Following correction or elimination of challenged data, the agency
(F) (iii).
shall, at the request of the individual, inform previous recipients of
The language of this subsection reflects that in an administration-
its elimination or correction. This requirement is not considered an
sponsored omnibus criminal justice bill and was recommended by
unreasonable one since the data is conditioned and limited by the
several witnesses and legal experts.
informed request of the individual who will have some knowledge of
It is the Committee intent to substitute for regulatory agency
previous recipients and present users from exercising his right to
review, a responsive speedy, agency process for resolving citizen's
know such matters under subsection (d) (1), and from inspecting
complaints about improper, illegal, or careless information practices
whatever monitoring the agency is required to maintain under subsec-
of the Federal Government. Where many agencies may provide a
tion 201 (b) (3) and (4). In addition, the responsible agency officials will
review process after a harmful decision is made with the information,
have discussed with the person the uses to which the data has been
this section anticipates special initiative by agencies to extend existing
put, to their knowledge, and given him reliable advice on the need for
processes, or to establish new procedures to encompass requests for
pursuing the corrections with another agency or person. The provision
access and challenge at an earlier stage in the management of the
is intended further to reduce the time and resources the individual
information.
must expend in correcting his records with each user, office, bureau or
As discussed previously, the Committee deems such access and
agency which may have received it. It will prevent the repetition of
challenge rights essential to enforcement of the Act, and as an aid to
the access and challenge efforts for the same purpose.
monitoring the system, and to promoting the reduction in the bulk of
No time limit was set on the provision, since it may be important
outdated, irrelevant files which agencies keep.
to learn if one user received the data under some joint program ten
While agencies may exempt themselves through a rulemaking
years previous, while those disclosures made in the two years previous
process, in certain areas, and with respect to particular records, the
may be of no consequence. The deciding official should make some
Committee does not consider the grant of such discretion a mandate
effort within an agency to trace formal or informal programs for
to exercise it to the limit, but rather, to exercise it sparingly, with due
exchanging or sharing data which would reasonably involve dis-
regard for the principle of democratic government and the recognized
closures from the individual's file for any purpose.
right of all citizens to knowledge about the activities of government, a
Where such information would not be required to be kept before
right more precious when the activities relate to information uniquely
this Act or would not be kept under the exemptions of this Act, it
pertaining to the citizen.
would recognizably be impossible or difficult to comply with such
Subsection 201 (e). Provides for the coverage of the Act to apply to
requirements. In such cases, what is envisioned is a good faith effort
certain information systems or files of contractors and grantees or
to assist the individual.
others when a Federal agency provides by a contract, grant or agree-
Subsection 201 (2) (F). Establishes machinery for appealing and
ment for the specific creation or substantial alteration of such infor-
reviewing the failure to resolve a dispute or the decision of an official
mation system when the primary purpose of the grant, contract or
to deny a request to correct or supplement information.
agreement is the creation or substantial alteration of such an infor-
Many scholarly proposals to afford the right of access and challenge
mation system.
of records have incorporated such a right within an administrative
When such conditions apply, the agency shall, consistent with its
scheme giving the individual the right to appeal to an independent
authority, cause the requirements of subsections 201 (a) (b)
or
regulatory body. This was the intent of the original bill which gave
(d) to be applied to such system and then only to the portions
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65
of such systems or data banks as are specifically created or substantially
altered by such grant, contract or agreement.
dentiality accorded it by law or by understanding with the subject
In cases when contractors and grantees or parties to an agreement
individual. The report would then include the agency's best judgment
are public agencies of State and local governments, the requirements
on how best to achieve these goals within the limits of available tech-
of subsections (a), (b), (c) and (d) shall be deemed to have been met
nology, resources, and legislative authority. The subsection requires
if the Federal agency determines that the State or political subdivisions
a description of the formal. and informal actions, negotiations, and
of the States have adopted legislation or regulations which impose
representations and their outcome, undertaken to obtain necessary
similar or stronger requirements for the security of information sys-
features. This should include accounting of any consultation with
tems and the confidentiality of personal information contained therein,
computer and system experts, including the agency's own staff mem-
and for the individual's right to have access to records and to chal-
bers and those employed by the National Bureau of Standards, the
lenge their accuracy.
General Services Administration, by computer manufacturers, and
Subsection 201(f)(1). This subsection is intended to assure knowledge
professional organizations on computer and information technology;
by Congress, the executive branch, and interested groups of new
and any others within and without the executive branch, such as
Federal data banks and pooling of informational and computer
specialists in public administration and constitutional law.
resources to constitute centralized data systems not foreseen by
The Committee recognizes that no level of security can be specified
Congress. It is to prevent a de facto national data banks on individuals
as absolutely adequate and that this often depends on what is available
free of the restraints on Federal power established by Constitution
to promote the type of security needed for certain types of information.
and statutes.
It is expected that a set of criteria on the degree of sensitivity of
It is intended further to prevent creation of data banks and new
personal data in the system would be developed on the basis of the
personal information systems without statutory authorization from
historical breaches of confidentiality of that type of information.
Congress and without proper regard for privacy of the individual,
It is clear from the various public records and studies that there are
confidentiality of data, and security of the system.
some information systems in which there have been breaches for
The section therefore requires any Federal agency to report to the
personal gain or political motives or other unauthorized purposes.
Commission, the General Services Administration, and to Congress
There is clearly a need to safeguard these files as a first priority. The
on proposed personal data banks and information systems or files, on
report to be filed with the Commission would detail the agency plan,
proposed significant expansion of existing ones, on integration of
given the historical threats or the likelihood of them. Clearly, the
major files, on programs for significant records linkage within or
files in the Social Security Administration, while sensitive, might not
among agencies, or for centralization of resources and facilities for
have the same level of possible security breaches as the Passport
automated data processing.
Office Lookout File or the Civil Service Commission Investigative
Explanation of this subsection should be supplemented by reference
Index. Attached to that report would be the description of the agency's
to the analysis of subsections 103 and (6).
consultations with the National Bureau of Standards including any
-Such notices shall also describe the agency's judgment, positive or
recommendations made by Bureau officials and other computer
negative, of any effect it perceives that such proposal might have on
experts on desirable standards for safeguarding information.
the rights, benefits, and privileges under Government programs of
Some unnecessary concern has been expressed by certain agencies
the people who are the subjects of information involved in the change.
as to how soon they would have to install such safeguards and whether
For instance, does it mean that another agency which makes decisions
they would be able to function at all after enactment of the bill until
on other rights of a person will now have terminal access to data of
they obtained such features in their systems. For some files or systems,
an agency for purposes of making its decisions and thus raise due
it would be appropriate to define stages and goals to achieve the full
process issues of relevancy? Will it allow creation of a data bank for
level of security. Good-faith compliance can be done in a stage process
investigative or intelligence, or research purposes which might, by
where necessary, but it is expected that there would be a program of
its very existence, have an intimidating effect and raise first amend-
steady and consistent efforts to attain the desired standards.
ment questions of records surveillance? Will common storage facilities
From the available studies, and from the reports of unauthorized
by agencies enable common usage not envisioned by the data subject
access, it is apparent that few Federal data banks and information
or facilitate theft or improper access? On the other hand will the
systems are living up to existing standards. Testimony to the Com-
changes promote more effective exercise of individual rights, and
mittee, the National Academy report and others have shown that
fairness in decisions about the person?
there are well-known techniques for controlling authorization of people
What is anticipated is a check-off by the agency on the possible
to use data, to monitor inquiries into the data system, to do current
enhancement of or threat to the civil liberties and civil rights of
monitoring of the level of use of any participant to detect unusual and
citizens, including due process rights, from such changes.
possibly unauthorized activity, and other audit-trail techniques. These
The notice shall also state what administrative and technological
are all available methods of providing security of systems for adminis-
features and measures are deemed necessary to protect the security
trative, technical, and physical purposes. These and many other
of the information system or data bank and the confidentiality of the
techniques are what agencies should be expected to apply to their
information. Such a statement should represent the ideal situation
own situations, within the framework of the Commission model
given the kinds of personal information and the promise of confi-
guidelines.
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67
Many of the techniques involved in administrative and physical
The committee intends subsection (g) to impose stricter require-
security would apply to tape central records rooms such as the card
ments upon the disclosure of information to protect it from the
index of the Civil Service Commission, the manual fingerprint file
searches of random investigators who may obtain information from
of the FBI, and the U.S. Army Records Center.
friendly employees or who may simply flash a badge or use influence
However, computer systems pose special problems because of on-
to obtain such information. .However, the subsection is not intended
line terminal communications. Therefore, the growth useful standards
to require compulsory legal process where it is not presently required.
and procedure could be nourished.
Nor is it intended to loosen any present restrictions imposed by
The notice should include a description of changes in existing inter-
statute or regulation whereby information may only be obtained
agency or intergovernmental informational relationships, whether
through court order or other legal process. This subsection reflects
these are pursuant to Executive order, statute, agreement, or custom.
the Committee's agreement with the HEW report recommendation
This is to afford the Commission, interested groups, and the Congress
which was found necessary "to assure that an individual will know
an opportunity to evaluate the impact of such computerization or
that data are being sought by subpena, summons, or other compulsory
changes in information systems on the observance or principles of
legal process, SO as to enable the person to assert whatever rights are
separation of powers and of federalism including their impact on
available to prevent disclosure of the data if such actions seem
powers and authority of State and local governments.
desirable.
It is expected that precise details to be included in such reports
This section is intended to apply to all personal information held
may be arranged with the Privacy Commission, pursuant to considera-
by an agency, including administrative, statistical and research
tion of logistical and administrative feasibility.
data. It is intended to be a separate safeguard independent of any
The Committee intends, by requiring the filing of such notices
other exemptions in the Act in order to carry out the principle that
and the Commission review of them, to assure to the extent possible
an individual should be put on notice whenever any agency official
under this Act the promotion of the public policy reflected in the
is under judicial compulsion to surrender data, and to know whenever
National Academy of Sciences report that: "All aspects of important
personal data will be put to uses unknown to the individual and not
new record systems should be subject to examination as to their civil
specified by the agency in its published notices. In summary, it is
liberties implications and as to citizen reaction to their various
designed to assure that the person will be able to exercise rights under
features. As with computerization itself, the process of establishing
this Act to check the data for accuracy or to monitor its further use
new record systems or changing old ones in executive agencies ought
and redisclosure by the requesting agency or person. Since it is not
to become more visible and deliberate * * (Report, p. 399).
intended to subtract from existing legal safeguards covering such
Subsection 201 Provides that the agency must delay the pro-
information demands, it is also intended to allow the individual to
posal for 60 days if the Commission, after reviewing the agency's notice
exercise any existing rights under Federal and State laws and regula-
and investigating its implications under the terms of the Act and the
tions to challenge the issuance of administrative or judicial orders.
mandate to the agency under subsection 201(b)(6), as discussed above,
Subsection 201(h). Provides that no person may condition the grant-
notifies the agency that the proposal does not comply with the
ing or withholding of any right, privilege, or benefit, or make as a con-
standards for privacy, confidentiality, and system security established
dition of employment the securing by any individual of any informa-
under the Act or by regulation pursuant to it.
tion which may be obtained through the exercise of any right secured
This allows the Commission time to file any investigative reports
under the provisions of section 201. It reflects the committee's inten-
on the matter as required pursuant to title I. Nothing in this Act
tion to protect the data subject from coercion by Government agencies
then prevents agency officials from proceeding with this proposal, nor,
or private businesses and organizations who may condition rights,
on the other hand, does anything in the Act require them to proceed
privileges, benefits or considerations otherwise due the person equally
with it. This subsection merely provides for a moratorium of 60 days
with all other citizens upon the obtaining of a personal file or data.
where the Commission, under its mandate, finds a proposal SO fraught
This subsection reflects the concerns of administration and agency
with actual or potential constitutional, legal, or administrative diffi-
spokesmen who feared that opening up the individual's personal files
culties that it ought to be specifically examined or authorized by
which have been protected from disclosure to that person or to others
Congress, or ought to receive the further attention of appropriate
in society would subject the person to all kinds of demands for medi-
high level executive branch officials.
cal and other personal records. Since the committee's intent is to make
Subsection 201 (g). Provides that each Federal agency covered by this
certain inroads into the well-meaning paternalism of Federal agencies
Act which maintains a personal information system or file shall
SO that an individual may be advised what information the agency is
make reasonable efforts to serve advance notice on the subject of
collecting or holding, this subsection provides a right against such
information before it disseminates or makes available a file or any
coercion which is enforceable in the Federal District Court in a civil
data on that person pursuant to compulsory legal process. The
action pursuant to section 303(c). This subsection is not intended to
purpose of this section is to permit an individual advance notice SO
prevent an individual from seeking and obtaining rights under section
that he may take appropriate legal steps to suppress a subpoena
201, but is designed to provide a legal remedy for what are believed to
for his personal data. When it undertakes itself to notify the individual,
be unreasonable and coercive pressures on that person sufficient to
it may require that the cost burden of such efforts must be borne by
state a cause of action before a Federal judge.
the requesting agency or person.
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Section 202
(c). Again, the same considerations of enforcement and privacy
DISCLOSURE OF INFORMATION
guarantees applicable to the previous subsection apply to this one.
The agency transferring is expected, at the minimum, to protect the
Subsection 202(a). Provides that no Federal agency shall disclose,
individual and the public interest by assuring that the uses for which
transfer or disseminate personal files and information to any person,
the new agency or user states that it wishes the data are consistent
agency or private organization unless certain conditions are met. In
with those for which formal notice has been given by either the
conjunction with subsection (a) (3), this section is intended to pro-
transferring agency or the receiving agency or user. Additional
mote the informed consent of the individual to the uses to which
guarantees beyond those of this section may be pursued, and, indeed,
government puts the personal data it collects or creates. It is thus
are encouraged. The Committee recognizes that some agencies take
expected to exert some check on excessive or illegal reach of govern-
such further precautions as a matter of course for transfer of personal
mental power over the individual, and on illegal or inadvertent central-
information. This is particularly true of data transferred pursuant to
ization of investigative programs and linkage of data Federal banks
the Federal personnel security program and Executive orders dealing
with those in the State and local governments and the private sector.
with classified information. Nothing in this section is intended to
By allowing the individual to know where the data is flowing, the
reduce the strength of those administrative protections for guarantees
provision should also assist in preventing the illegal or improper use
of privacy and confidentiality.
of data by agency officials and employees who have no business with
Executive branch spokesmen and others have advocated that these
the file or information.
conditions for interagency and other types of disclosure should be in
Subsection 202(a) (1). Requires the agency to make written request to
the alternative. They believe that mere consent of the individual may
the individual and obtain his or her written consent. Compliance with
be enough, or that notice to the public at large of the agency's intended
this safeguard may be at the time of initial collection.
use, or mere requirement of administrative and technical protections
Subsection 202(a) Requires the agency to make no such dis-
for the information, would each alone be sufficient as the general rule
semination unless the recipient of the information has adopted
governing transfer of personal data. The Committee has disagreed
rules in conformity with the Act for maintaining the security of its
with this approach in the belief that there may be an aura of compul-
information systems and files and the confidentiality of the informa-
sion or possible threat of intimidation, or an apparent unfair induce-
tion. This mandate, similar to recommendations of several reports and
ment of the individual attached to a request or requirement to sur-
commentators, is to assure continuance upon transfer to another
render personal information for one governmental purpose. This may
agency or to a governmental or private organization for a Federal
amount to improper Federal pressure to consent to any and all uses to
purpose, of the protection to which the information is entitled be-
which the agency may put the data, including that attendant upon
cause of the original understanding with the citizen or the origi-
interagency or intergovernmental transfer. The best way of guarding
nating agency or organization. It is intended to apply to transfer of
against this kind of implicit governmental pressure and affording the
a particular file of any individual as well as to the transfer of mass
individual adequate protection is to require all three conditions. In
data from one automated information system to another, and to the
addition, this prevents an agency from merely citing a notice of in-
linkage of information systems. If the formal or informal security
tended "use" as a routine and easy means of justifying transfer or
procedures of the receiving agency clearly or impliedly would allow
release of information. Administration spokesmen were concerned that
the data to be used in ways not intended by the individual and not
this might expand interagency data-swapping. By allowing the agency
advanced by the agency in its dealings with the person, then no
to cite a "use" disclosed by its published notice, the bill is not intended
transfer could be made. This would also apply to intergovernmental
to broaden dissemination and interagency transfer where they must be
data-sharing such as transfer of internal revenue files to State and
pursuant to or are required or limited by over 150 Federal statutes.
local governments without assuring proper protection for the con-
Since subsection 201 (a) requires that personal information collected or
fidentiality of the data.
maintained by the agency be relevant to a statutory purpose, the
While the original bill and the HEW Report envisioned an agency's
notice of use and purpose filed with the Commission for the particular
determining "substantial" assurance of observance by the other agency
information system or data bank will, of necessity, incorporate those
of such protections, the Committee was told by computer experts and
statutory uses, and reliance on that notice for transfer authority would
agency representatives that it would be difficult for one agency to en-
represent compliance with subsection 202(a)(3).
force such conditions within another agency. Thus, the subsection
The Committee therefore recognizes the great variety of uncoordi-
requires the agency to look to published rules for its judgment on the
nated ad hoc, and sometimes poorly authorized patterns of data
wisdom of transfer, but anticipates that compliance with the subsection
transfer among agencies. This section does not require such transfers
would usually result in creation of interagency negotiations and a
and sharing among agencies, nor does it preclude the additional re-
record of formal agreement for the conditions of transfer and for pro-
quirement of other guarantees for safeguarding the individual as well
tection of the data in the receiving agency.
as the originating agency. It is designed to assure, in the future, that
Subsection 202 (3). Prohibits dissemination unless the information
one government agency does not use the personal information given
is to be used only for the purposes set forth by the sender or by the
by the individual or by third parties to another agency to make what
recipient pursuant to the requirements for notice under subsection
might be a detrimental decision affecting qualifications, rights, bene-
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71
fits, privileges or status, without provision for notice of the existence
mean that administrative data in their identifiable form which may be
of the information and obtaining consent, thereby allowing an op-
intended for statistical research and reporting uses in the agency or
portunity to challenge its accuracy and reliability.
elsewhere is exempt from the requirements of this section or of the rest
Where the information to be transferred to another agency was
of the Act.
obtained by compulsion through criminal or civil laws, the safeguards
Pending additional hearings, the Committee has not attempted to
of this section seem particularly necessary in some cases in order to
deal with all of the reported possibilities of improper or illegal dis-
protect the individual's rights under the 5th amendment to due
closure and use of statistical data when they still have identifiable
process in the administrative process and before the courts.
characteristics or may be linked to the individual.
Where the disclosure, transfer or dissemination cannot be made due
However, the Committee found no reason why such statistical re-
to noncompliance with these standards, there is nothing preventing
search or reporting data should not be subject to the appropriate
the requesting agency or the potential user from using whatever legal
requirements of confidentiality and security in the receiving agency as
authority it has to obtain the information from the individual in its
they were in the sending agency; nor was there reason for exempting
own right.
such transfer from the requirement that the agency should determine
The Securities and Exchange Commission and several regulatory
that the information will be used for the purpose set forth in public
agencies objected to this section under the impression that it would
notice.
prevent them from obtaining and publishing information which they
Subsection 202(b)(4). This subsection is designed to protect an
are required to obtain from people and to publish for the protection of
employee or agency from being in technical violation of the law when
the public. To correct this impression, the Committee adopted an
they disclose personal information about a person to save the life or
amenament to section 205 as subsection (b) to provide that nothing
protect the safety of that individual in a unique emergency situation.
in the Act shall be construed to permit the withholding by an agency
The subsection requires a showing, which should be documented, of
or individual of any personal information which is otherwise required
compelling circumstances affecting the health or safety of the person,
to be disclosed by law or by regulation adopted pursuant to such law.
or enabling identification for purposes of aiding a doctor to save such
person's life. The discretion authorized here is intended to be used
Disclosure Exceptions
rarely and a precise record of the reasons for the disclosures must be
made, including a description of the actions taken to notify the
Subsection 202(b), (c), (d), (e) and (f). Establish certain exceptions to
individual at the last known address.
these disclosure safeguards on the recommendation of agency and
Subsection 202(c). Provides that the prohibitions on disclosure in this
other administration spokesmen that they would otherwise be un-
section and the requirement in subsection of an accounting of
workable or unfair in certain situations, or that they are not necessary
the disclosure do not apply when the disclosure would be required or
in view of other statutory guarantees.
permitted by the Freedom of Information Act of 1966. This provision
Subsection 202(b)(1). Provides that the notice and consent require-
was included to meet the objections of press and media representatives
ments of subsection 202(a) and the accounting of disclosures and
that the statutory right of access to public records and the right to
accesses of subsection 201(b)(4) are not applicable when the dis-
disclosure of government information might be defeated if such
closure would be to officers and employees of the agency who have a
restrictions were to be placed on the public and press. The Committee
need for the information in the ordinary course of the performance of
believed it would be unreasonable and contrary to the spirit of the
their duties. Determinations of such employees and of their assign-
Freedom of Information Act to attempt to keep an accounting of
ments would be consistent with those designated in the list to be kept
the nature and purpose of access and disclosures involving the press
by the agency under subsection 201(b)(3) for purposes of accounting
and public or to impose guarantees of security and confidentiality on
of access to information. This provision is included to prevent the
the data they acquire.
logistics involved in compliance with the subsection from impeding
While the Committee intends in this legislation to implement the
the day-to-day internal operation of the agency and its offices through-
guarantees of individual privacy, it also intends to make available to
out the country.
the press and public all possible information concerning the operations
Subsection 202(b)(2). Provides that these same subsections do not
of the Federal Government in order to prevent secret data banks and
apply to the Bureau of the Census and its officers and employees when
unauthorized investigative programs on Americans.
the purpose of the disclosure or transfer is for the purpose of planning
The Committee does not intend agencies to use the Freedom of
or carrying out a census or survey pursuant to the provisions of title 13,
Information Act as an excuse to avoid their obligations under this
United States Code, containing the statutes governing census surveys.
section to obtain informed consent and to assure to the extent possible
Those laws prohibit publication of data gathered by the Bureau in
the lawful use and proper treatment of information transferred to
identifiable form and strictly govern confidentiality.
other agencies when it may be used to make a decision about the
Subsection 202(b) Provides that those two subsections do not ap-
individual.
ply when the agency determines that the recipient agency has provided
Subsection 202(d). Assures that any access to information which
advance adequate written assurance that the information will be used
the General Accounting Office employees may obtain or any dis-
solely as a statistical research or reporting record, and is to be trans-
closures made to them in the course of their duties which are presently
ferred in a form that is not individually identifiable. This does not
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73
afforded under existing laws and practices will not be affected by
Subsection 202(f). Recognizes both types of law enforcement, dis-
any provisions of this Act. It assures that the General Accounting
closure, or access to files by distinguishing between routine and non-
Office as an arm of Congress will be able to continue to meet its
routine exchanges of information with law enforcement agencies. The
information needs for auditing and inspecting agency programs as
Committee assumes that most routine exchanges with law enforcement
required by the Budgeting and Accounting Act and other statutes.
agencies involve law enforcement records such as rap sheets or criminal
This subsection therefore provides that the accounting of access
histories and is between two law enforcement agencies; and that the
and disclosure required in subsection and the conditions
less routine disclosure to a law enforcement agency involves a law
which subsection 202(a) attaches to disclosure to other persons
enforcement agency request of a non-law enforcement agency. There-
and to inter-agency transfer shall not be applied when disclosure would
fore subsection (e) permits law enforcement disclosure in the former
be to the Comptroller General or any of his authorized representatives
circumstance, where there is a program of routine exchange, if there is
in the course of the performance of the duties of the General Account-
a formal agreement between the two agencies respecting such ex-
ing Office. It affirms that nothing in this Act shall impair access by
change. The subsection permits law enforcement access in the second
the Comptroller General or his representatives to records maintained
circumstance, non-routine requests only where written requests and
by an agency, including records of personal information, in the course
permission are given on a case-by-case basis by the agency maintaining
of performance of their duties. This subsection reflects the advice of
the record. The Committee is of the view that the agency which
the Comptroller General that such a provision is needed to protect
maintains the records should assure, via the written permission or the
the existing powers which he exercises on behalf of Congress, but that
formal agreement that the recipient has complied with subsection
it will not enhance or detract from such powers.
202(a)(2) and adopted rules on security, confidentiality, and privacy.
Subsection 202(e). This subsection is designed to provide a general
If the exchange is on a routine basis, the two agencies should adopt a
guide for construing the duty imposed on agencies by this section and
formal agreement between themselves setting out which records will
those imposed by the Federal Reports Act and other statutes to pro-
be exchanged, how the records may be used and the privacy, confiden-
mote efficiency and economy by combining data requests and sharing
tiality, and security regulations which the recipient agency has
the results and thus reduce repetitive demands on citizens. It is to
adopted. The sanction for failure to comply with the agreement should
reflect the Committee's intent that the requirements of this section are
be interruption of routine exchange by the maintaining agency. This
to be interpreted as a mandate to continue enforcement of the duties
formal agreement concept is based upon the terminal users agreement
imposed by other statutes, and that they should not prevent agencies
now used by NCIC and by state and local law enforcement agencies
from taking whatever management steps are needed to implement the
which operate data banks. The Commission and the Attorney General
two goals in drafting their questionnaires and in planning and carrying
would, of course, have to determine whether an existing terminal
out their information programs. In addition, it has been included to
agreement adequately meets the requirements of this subsection once
meet the concerns of Administration spokesmen that the minimum
this bill is enacted and how that concept will be applied to manual
safeguards for interagency disclosure under this section might be
files. Any such agreements would in effect be public documents since
interpreted by agencies as an indication that they could relax their
they would be incorporated into the public notice given on the infor-
efforts to comply with the present restrictions placed on some ex-
mation systems as required by subsection 201(c).
changes of information between agencies for the purpose of promoting
Although the Committee believes that public notice and exposure
confidentiality of certain kinds of records.
of such routine exchange will act as a check on abuses of such arrange-
The Committee believes that there are a number of administrative
ments, the committee hopes that routine exchange will be restricted
devices for assuring observance of the two sets of values in Federal
to essential law enforcement records such as rap sheets and that those
information programs, but we have not attempted to close all of the
records will only be exchanged by such agreement between law en-
administrative loopholes which allow violation of confidentiality.
forcement agencies. All other types of access should be via the written
Subsection 202(f). Provides an exemption from the written request
request according to the agency procedure. In requiring that the
to the individual prerequisite for disclosure with respect to requests
agency rule on each request on a case-by-case basis, it is hoped that
by law enforcement agencies. Obv ously it would be inappropriate to
secret law enforcement access, that is disclosure without notification
require a law enforcement agency to get permission of the subject
to the subject of the file, will only be permitted in the most exigent
of a criminal history record prior to obtaining a copy from another
and essential circumstances. In each such case, the agency must find
law enforcement agency. Such a requirement would in effect prohibit
that such circumstances exist and that the law enforcement agency
the routine exchange of records through the FBI's Identification
has described the information requested in sufficient particularly to
Division or the National Crime Information Center (NCIC). Like-
meet the requirements of the subsection. The subsection specifically
wise, it might frustrate legitimate criminal investigations if a law
requires that the law enforcement agency set out in its written request
enforcement agency were required to get permission from the subject
of the agency "the particular portion of the information desired and
of a file maintained by a non-law enforcement agency before the
the law enforcement activity for which the information is sought."
former agency could gain access. (e.g. FBI access to a tax return).
R.
FORD
GERALD
LIBRARY
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75
SECTION 203
The exemption for intelligence information is restricted for the most
part to law enforcement agencies. It was the Committee's view that
EXEMPTIONS
there were no regulatory or non-law enforcement agencies which had a
Subsection 203(a). The Committee believes that it is fundamental to
legitimate right to maintain intelligence files and that therefore none
the implementation of any privacy legislation that no system of per-
of their investigative files should be exempt from the access, challenge
sonal information be operated or maintained in secret by a Federal
and disclosure provisions via reliance on exemptions for intelligence
agency. The existence and certain characteristics of each system should
information.
be a matter of public record, and testimony before the Committee has
Once the agency head determines that he has information legiti-
indicated that this information can be made public without compro-
mately in one of his information systems which falls within these
mising critical information used by agencies responsible for the na-
definitions then he must, via the rulemaking process, determine that
tional defense or foreign policy of the country.
application of the challenge, access and disclosure provisions would
The potential for serious damage to the national defense or foreign
"seriously damage or impede the purpose for which the information is
policy could arise if the notice describing any information system
maintained". The Committee intends that this public rulemaking
included categories or sources of information required by subsection
process would involve candid discussion of the general type of informa-
(E) or provided individuals access to files maintained about
tion that the agency maintains which it feels falls within these defini-
them as required by subsection 201(a).
tions and the reasons why access, challenge or disclosure would
The Committee does not by this legislation intend to jeopardize
"seriously damage" the purpose of the maintenance of the information.
the collection of intelligence information related to national defense
The Committee hastens to point out that even if the agency head can
or foreign policy, or open to inspection information classified pursuant
legitimately make such a finding he can only exempt the information
to Executive Order 11652 to persons who do not have an appropriate
itself or classes of such information (e.g. all wiretap transcripts main-
security clearance or need to know.
tained at FBI) and not a whole filing system simply because intelli-
This section is not intended to provide a blanket exemption to all
gence or investigative information is commingled with information
information systems or files maintained by an agency which deal with
and files which should be legitimately subject to the access, challenge
national defense and foreign policy information. Many personnel files
and disclosure provisions.
and other systems may not be subject to security classification or
The subsection 203 (b) qualifies the exemption from access and
may not cause damage to the national defense or foreign policy
disclosure for investigative information in two important respects.
simply by. permitting the subjects of such files to inspect them and
First, investigative information may not be exempted under this sec-
seek changes in their contents under this Act. In order to obtain an
tion where the information is maintained longer than is necessary to
exemption from subsection (c) (3) (E) or 201(d), it must be shown
commence criminal prosecution. This qualification recognizes the
that the application of those subsections would damage or impede the
amendments to the Freedom of Information Act recently adopted by
purpose for which the information is maintained.
the Senate (the so-called Hart amendment). Second, the subsection
Subsection 203(b). Exempts from full compliance with the access
states that the Act is not intended to disturb the rules of criminal and
and challenge provisions of section 201 and the disclosure provisions of
civil discovery of investigative files presently permitted by the Federal
section 202, that information which an agency head determines is in-
Rules of Criminal and Civil Discovery and, other State or Federal
vestigative information or law enforcement intelligence information.
court rules, administrative regulations or statutes such as the so-called
Both terms are precisely defined in the definitions section of the bill
"Jencks" statute (18 USC 3500).
contained in Title III. All of these definitions are based in large part on
Subsection 203 (c) (1). The head of any agency may determine that
the criminal justice privacy bills (S. 2963 and S. 2964) discussed earlier
an information system file or personal information maintained by that
in the section of the report dealing with law enforcement.
agency qualifies for an exemption under subsection (a) or (b) of this
The effect of this subsection is to require the agency head to de-
section. To secure the exemption, a notice of proposed rule-making
termine first what portion of files maintained in any information
must be published in the Federal Register at least 30 days prior to
system in his agency or which his agency might fund on the State or
holding rule-making proceedings and provide a copy of that notice to
local level contains information which falls within the definitions—
the Privacy Protection Commission to afford the Commission the
"Investigative information" or "law enforcement intelligence informa-
opportunity to comment. Where possible, agencies are encouraged to
tion." Investigative information might include information in a file
provide up to 60 days' notice of hearings to afford all interested parties
maintained by a legitimate law enforcement agency, defined as an
an opportunity to comment or appear.
agency which can make an arrest for violation of a Federal or State
The notice of the proposed rule-making shall conform to the re-
statute. Investigative information might also be maintained by an
quirements of sections 553(b), (c) and (e) 556, and 557 of Title 5,
agency which is not a law enforcement agency but which is gathering
United States Code and shall include a specification of the nature
the information in the course of investigating activity which falls
and purpose of the system file or information to be exempted as pro-
within its regulatory jurisdiction. For example, this section would
vided by subsection 201 (c) of this Act.
permit the Chairman of the SEC to exempt from access and challenge
After the period of notice, the agency shall give interested persons
files maintained by his agency on individuals whom it is investigating
an opportunity to participate in the rule-making through submission
for violation of the SEC laws.
of written arguments or through oral presentation at a public hearing.
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77
After consideration of the relevant matter presented, the agency shall
records which are generally over 50 years old and are not well orga-
incorporate in the rules adopted a concise general statement of their
nized. The Committee consulted with GSA staff and has learned that
basis and purpose.
records at the Archives are inadequately indexed and involve large
SECTION 204
volumes of data in more than 20,000 separate filing systems; hence the
Committee believes that the administrative cost of compliance by the
ARCHIVAL RECORDS
Archives would far outweigh any potential benefits, particularly since
records cannot be disclosed by the Archives unless they are at least 50
Subsection 204(a). Provides for certain applications of the Act to
years old. However, the Committee intends that the Administrator of
archival records. Federal agency records which are deposited and
General Services take special precautions to ensure that records older
accepted by. the Administrator of General Services for storage, proc-
than 50 years not be disclosed when disclosure is likely to cause dis-
essing and servicing in accordance with section 3103 of title 44 of
creditation or injury to an elderly individual or the living relatives of
the United States Code are to be considered as though maintained by
deceased individuals. In the case of Bureau of the Census records
the agency which deposited the records and subject to all of the
assembled subsequent to the year 1900, disclosure ought to be subject
provisions of this Act, where they apply to such agency records.
to the approval of the Secretary of Commerce.
The Administrator of General Services is prohibited from disclosing
The Committee believes that this section adequately meets the
such records or any information in them, except to the agency which
problems he described in his testimony. It is designed to further the
maintains the records or pursuant to the rules established by that
interest of historians and others in preserving the integrity of historical
agency.
records and in promoting access to them, within the constraints of the
Subsection 204(b). Provides that Federal agency records pertaining
needs for individual privacy, for confidentiality and due process of
to identifiable individuals which were transferred to the National
law.
Archives of the United States as records which have sufficient histor-
SECTION 205
ical or other value to warrant their continued preservation by the
Federal Government are to be considered to be maintained by the
EXCEPTIONS
National Archives for the purposes of this Act. Except for the required
annual public notice set forth in subsection the only provisions
Section 205 provides certain general exceptions and clarifies legisla-
for the act which shall apply to such records are subsections (b)
tive intent.
requiring the establishment of rules of conduct and appropriate train-
Subsection 205(a). Shows the Committee's intent that the exemptions
ing for employees and requiring the establishment of
provided in the Freedom of Information Act to the required dis-
appropriate administrative, technical and physical safeguards to pro-
closure of Federal information on certain subjects, and that permitted
tect the confidentiality of personal information. These provisions are,
for protection of personal privacy may not be used as authority to
to a large extent, already a part of existing rules of the National
deny an individual personal information otherwise available under
Archives and hence should pose no unwarranted administrative bur-
this Act.
den. The Committee finds no reason why the Administrator should
Subsection 205(b). Reflects the Committee's intent that the Act does
not establish rules of conduct and notify the employees and others.
not affect existing requirements to disclose, disseminate, or publish in-
involved in any phase of the information system or file of the require-
formation which an agency is required to collect for the purpose of
ments of the Act concerning the need for respect for the needs of
making such disclosure. This subsection was included at the request of
privacy, confidentiality and for security of the system. In addition,
the Securities and Exchange Commission and other regulatory agencies
there is no valid reason why the Archives should be exempt from
to assure that this Act will not affect their statutory duties to publish
the requirement to establish the appropriate safeguards to insure the
information.
security of the system.
Subsection 205(c). Exempts from the access and challenge provisions
Along with all other agencies, the National Archives is subject to the
information collected, furnished or used by the Census Bureau for
notice requirements of the bill.
statistical purposes or as authorized by the Federal Census statutes.
Subsection 204(c). Provides that the National Archives shall notify
While statistical records are subject to other safeguards and require-
the Commission and give public notice of the existence and character
ments of the Act, the Committee believes that the complex statutory
of the personal information systems and files which it maintains for its.
and administrative scheme presently governing census and statistical
own internal uses and for other purposes and cause such notice to be
information needs careful legislative review before attempting to
published in the Federal Register. While it realizes the difficulties of
apply the provisions for access, challenge and review of such records.
describing these precisely, the Committee intends such notice to in-
The Director of the Census Bureau referred to the millions of statistical
clude at least the information specified by subsection 201(c)(3) (G),
records now in existence and the very specific procedures and rigorous
(I) and (J).
safeguards applied to them. The Census Bureau records are not used
The Administrator of the General Services Administration testified
to make decisions about individuals but are used to furnish to those
against application of the bill to records under GSA control or to
individuals extracts of otherwise confidential information about them-
those in the National Archives. This is particularly true of the Archives.
selves, and their immediate families.
78
79
SECTION 206
includes the record or present registration, or membership in an
organization or activity, or admission to an institution. It is intended
MAILING LISTS
to include within these terms any symbol, number, such as a social
security number or character, address, by which the individual is
Subsection 206(a). Prohibits, unless specifically authorized by law,
indexed in a file or retrievable from it.
the practice by Federal departments and agencies of selling or renting
The reference to personal characteristics does not exclude a file that
names and addresses which they acquire during their transactions
contains only names and is headed by a general label for a category
with individuals or which they obtain through their dealings with
of records. If the heading or the nature of the file represents a judgment
other agencies. The Committee believes this provision is consistent
on the individual or a subjective view, then that file would be subject
with the intent of the bill to prevent disclosures of personal information
to the bill. A file headed "security risks" or one labeled "malingerers,"
without consent or specific authority. As discussed in this report
or one coded for people to be dismissed at the earliest opportunity,
the clear difficulty in obtaining consent free of the appearance of
even if the file only contained names, would be covered. This could,
intimidation and the impossibility of assuring limited use once the
for instance, include a list of people who do not buy bonds, or do not
data is sold or rented, makes it advisable to require specific approval
contribute to charitable causes. Thus it could cover a list which
by Congress when the agency undertakes to sell or rent this data in
contained names only but which, by its nature, conveyed something
bulk.
detrimental or threatening to the reputation, rights, benefits or priv-
This stipulation should not be construed to require an agency to
ileges or qualification of the individual simply by reason of being
withhold from the public names and addresses which are otherwise
listed on it. There are many data banks and files with names main-
permitted to be made public.
tained strictly for housekeeping purposes, and it is expected that the
The provision is not intended to affect the protection already
Commission model guidelines will make some distinctions for the
afforded and the authorized uses now designated for the names and
degrees of sensitivity of such files, and will allow for the development
addresses of individual postal customers maintained by the Postal
of special treatment for files where the potential for abuse and harm
Service to facilitate mail delivery, mail forwarding, and address and
is very great, and those for housekeeping purposes such as who works
mailing list correction services. Present law prohibits the Postal
on a holiday or who has a parking space.
Service from making available to the public any mailing or other list
The term "individual" means a citizen of the United States or an
of names and addresses, except as specifically provided by law.
alien lawfully admitted through permanent residence. This term is
Subsection 206(b). Deals with the disclosure and use of names and
used instead of the term "person" throughout the bill in order to
addresses by any person, including businesses and organizations,
distinguish between the rights which are given to the citizen as an
engaged in interstate commerce, who maintains a mailing list. It
individual under this Act and the rights of proprietorships, businesses
requires removal of the individual's name and address from such list,
and corporations which are not intended to be covered by this Act.
upon written request of that individual. The bill thus provides a right
This distinction was to insure that the bill leaves untouched the
to individuals which heretofore has been granted by some organiza-
Federal Government's information activities for such purposes as
tions, and which has been recognized by the Direct Mail Marketing
economic regulations. This definition was also included to exempt the
Association as a desirable standard for organizations which use mailing
coverage of the bill intelligence files and data banks devoted solely
lists. This provision does not attempt to regulate the maintenance of
to foreign nationals or maintained by the State Department, the
files and personal records of State and local governments, or of organi-
Central Intelligence Agency and other agencies for the purpose of
zations or their use of names and address for communicating with
dealing with nonresident aliens and people in other countries.
customers, clients and others with whom they have commercial
The term "information system" was adopted to indicate the applica-
transactions or official business.
tion of the bill to all of the components and operations, whether
automated or manual or otherwise maintained, by which personal
TITLE III-MISCELLANEOUS
information, including the name or identifier, is collected, stored,
Section 301
processed, handled or disseminated by an agency.
Rather than focus on a single record or subject file, the Committee
DEFINITIONS
has adopted an approach focused on the total information system
which includes all phases of information collection, storage, handling,
Section 301 contains the definitions applicable to the bill.
processing, dessimination and transfer. It includes records which are
The Committee has used the term "personal information" through-
computerized, mechanized, microfilmed and photographed. The bill
out the bill to mean any information about the individual that
thus is directed to the overall programs and policies of executive
identifies or describes any characteristic including but not limited to
branch departments and agencies including the design, development,
education, financial transactions, medical history, criminal or em-
and management of an information system, as well as to the mainte-
ployment record, or any personal information that affords a basis
nance of one particular file on an individual, or the gathering of informa-
for inferring personal characteristics such as finger and voice prints,
tion on one data subject. With such a definition, the duties and
photographs, or things done by or to such individual. Such definition
responsibilities imposed by the bill apply to administrators, computer
80
81
programmers and all manner of employees including technicians,
including information derived from reports of informants, investiga-
clerks, guards. Given the broad scope of the bill, an alternative use of
tors, or from any type of surveillance. The term does not include
the term "system of record" would create confusion as to its possible
criminal history information nor does it include initial reports filed by
application to such things as inventories and extraneous matters.
a law enforcement agency describing a specific incident, indexed
The use of the terms "information system" and "files" allows for
chronologically by incident and expressly required by State or Federal
distinctions where needed for the application of certain standards to
statute to be made public.
an entire information system of an agency, department, or establish-
The term "criminal history information" means information on an
ment, including its bureaus, offices, employees, and equipment, and
individual consisting of notations of arrests, detentions, indictments,
for the application of them to a particular file, that is, a series of
informations, or other formal criminal charges and any disposition
records, on a particular subject.
arising from those arrests, detentions, indictments, informations, or
The terms "file" and "data bank" in public usage are frequently
charges. The term shall not include an original book of entry or police
interchangeable.
blotter maintained by a law enforcement agency at the place of an
Under this bill, "file" may mean an individual record or a series
original arrest or place of detention, indexed chronologically and
of records containing personal information about individuals which
required to be made public, nor shall it include court records of public
may be maintained within an information system. "Data bank" means
criminal proceedings indexed chronologically.
a collection of files pertaining to individuals. Used in the bill, it
The term "law enforcement agency" means an agency whose em-
connotes a recognizable entity for management purposes, specifically
ployees or agents are empowered by State or Federal law to make
located within an agency or organization or to one of its components;
arrests for violations of State or Federal law.
it means a collection of files usually contributed to by different users
and available to them according to a plan of access.
SECTION 302
The term "Federal agency" means any department, agency, instru-
mentality, or establishment in the executive branch of the Govern-
CRIMINAL PENALTY
ment of the United States. The definition includes any officer or
employee of an agency. In addition to the general purpose of this
Section 302 provides for criminal penalties for willful violations of
provision to define the application of the Act, it is also intended that
the Act in two respects. One is for the secret creation of data banks in
the definition assist in placing the responsibility for intra-agency
violation of the requirement that all such decisions be made public.
handling of information on the head of the department or agency.
Any officer or employee of any Federal agency who willfully keeps an
The term "investigative information" has a special and narrow mean-
information system without meeting the notice requirements of this
ing under this bill. It has been discussed at length in the section of
Act set forth in subsection 201 (c) shall be fined not more than $10,000
the report entitled "Law Enforcement Files". It means information
in each instance or imprisoned not more than five years, or both.
associated with an identifiable individual compiled by-
The other violation subjects an officer or employee of the Com-
(1) an agency in the course of conducting a criminal investi-
mission to criminal penalty for the unlawful disclosure or transfer of
gation of a specific criminal act where such investigation is
personal information about any individual obtained in the course of
pursuant to a statutory function of the agency. Such information
such officer or employee's duties in any manner or for any purpose not
may pertain to that criminal act and be derived from reports of
specifically authorized by law and provides that such person be fined
informants and investigators, or from any type of surveillance.
not more than $10,000 or imprisoned not more than five years, or
The term does not include criminal history information nor does
both.
it include initial reports filed by a law enforcement agency de-
These are the only violations of the Act subject to criminal sanction.
scribing a specific incident, indexed chronologically and expressly
The Committee has decided to provide criminal sanctions for these
required by State or Federal statute to be made public; and
two violations because they are key to any effective protection for
(2) by an agency with regulatory jurisdiction which is not a
privacy and confidentiality. The public policy requires that all data
law enforcement agency in the course of conducting an investi-
banks be subject to a visible public policy decision. The entire Act
gation of specific activity which falls within the agency's regula-
would be frustrated if secret data banks could be created and operated
tory jurisdiction. For the purposes of this paragraph, an "agency
with impunity. The Committee has underlined this judgment by not
with regulatory jurisdiction" is an agency which is empowered to
permitting an exclusion from this requirement even for those highly
enforce any Federal statute or regulation, the violation of which
sensitive data banks in the areas of national defense, foreign policy or
subjects the violator to criminal or civil penalties.
law enforcement. A strongly-enforced requirement of publicity in the
The term "law enforcement intelligence information" means infor-
creation of data banks is necessary for administrative oversight,
mation associated with an identifiable individual compiled by a law
legislative oversight, and judicial review.
enforcement agency in the course of conducting an investigation of an
Equally fundamental is the need to guard against unlawful dissem-
individual in anticipation that he may commit a specific criminal act,
ination, disclosure or transfers of personal information acquired by
the Commission consultants' and employees in the course of their
duties.
82
83
While Commission employees are also subject to the same Federal
Subsection 303(b). Affords the Attorney General and any aggrieved
criminal laws and government-wide regulations penalizing all other
person authority to enforce the Act as against existing or threatened
Federal employees who disclose information, this section creates
violations of the Act by seeking a Federal District Court injunction
sanctions uniquely applicable to them. This is deemed necessary since
against such acts or practices. This subsection has a two-fold purpose.
in exercise of its powers and performance of investigative duties, the
First, it gives the Attorney General the obligation to challenge in court
Commission may obtain or examine all kinds of administrative docu-
any violation of the Act which might affect the public at large, but
ments and data relative to executive branch implementation and
which does not yet affect any particular citizen sufficiently to give him
enforcement of the Act, as well as information on individuals needed
constitutional standing to sue, or which may not be such as to induce a
to determine violations of the Act. In addition, for purposes of its
private person to endure the practical difficulties of litigation.
research and studies, it may engage in similar activities with respect
Second, the grant of a cause of action to any "aggrieved person" is
to certain data banks and systems of the private sector and in State
designed to encourage the widest possible citizen enforcement through
and local governments.
the judicial process. This is necessary, as mentioned, since the Act
In light of such special auditing, inspection and study functions,
does not give any administrative body authority to ensure compliance
strong penalties were deemed necessary to reassure government
with the Act. The Committee intends the use of the term "aggrieved
agencies and citizens that the deterrents to improper disclosure are SO
person" to afford the widest possible standing consistent with the con-
severe that they need not worry about improper or illegal disclosures.
stitutional requirement of "case or controversy" in Article III, Sec. 2
of the Constitution. In this respect, the provision is designed, among
SECTION 303
other things, to supply certain deficiencies in standing and ripeness
which the courts found in the Environmental Protection Agency V.
CIVIL REMEDIES
Mink, 410 U.S. 73 (1973), Laird V. Tatum (408 U.S. 1(1972), and
Section 303 provides for civil judicial enforcement of the Act by
Stark V. Schultz, 42 U.S.L.W. 4481 (Apr. 1, 1974)).
persons affected by violations of the Act. In keeping with general
Subsection 303(c). Provides that any person found to have violated
legislative practice, this bill not only establishes certain administra-
provisions of the Act or any rule, regulation, or order issued under it
tive requirements and grants certain rights to citizens, but gives
shall be liable to the aggrieved person for actual damages sustained
authority to the citizen to defend his rights by taking the initiative of
by the individual, punitive damages where appropriate, and in case
court action. Such a right is doubly important since the revised bill
of successful action, the cost of the action, with reasonable attorney's
gives no enforcement authority to the Commission.
fees to be determined by the court.
Subsection 303(a). Gives a cause of action to a citizen aggrieved by a
In addition to damages, the aggrieved person would receive the
denial of access to his own file. Since access to a file is the key to in-
benefit of any other appropriate remedies, including injunctive or
suring the citizen's right of accuracy, completeness, and relevancy, a
mandatory relief, which the court deems appropriate.
denial of access affords the citizen the right to raise these issues in
The final subsection makes clear that the Federal courts will have
court. This would be the means by which a citizen could challenge any
jurisdiction regardless of the fact that the amount claimed is less than
ORD
exemption from the requirements of sections 201 and 202 made
$10,000.
pursuant to the procedures outlined in section 203. A person seeking
SECTION 304
access to a file which he has reason to believe is being maintained on
GERALD
him for the purposes of determining its accuracy and completeness, for
JURISDICTION OF DISTRICT COURTS
example, or to take advantage of the rights afforded him under
section 201, could raise the question of the propriety of the exemption
Subsection 304(a). Gives jurisdiction to the Federal courts to hear
which denies him access to his files. In deciding whether the citizen
cases brought under section 303 and to examine information in camera
has a right to see his file or to learn whether the agency has a file
to determine whether the information or any part of it may be withheld
on him, the court would of necessity have to decide the legitimacy
under any of the exemptions in section 203 of the Act. The agency
of the agency's reasons for the denial of access, or refusal of an
has the burden of sustaining the legality of its actions. Venue would
answer. The Committee intends that any citizen who is denied a
most likely be either in the plaintiff's jurisdiction, or in Washington,
right of access under the Act may have a cause of action, without
D.C., although other venue is possible. The section also ensures that
the necessity of having to show that a decision has been made on
the court will have the power to examine in camera any contested
the basis of it, and without having to show some further injury,
information necessary to a determination of the litigation, thus
such as loss of job or other benefit, that might stem from the
among other things, remedying the lack of reviewing power which the
denial of access. Since it is often exceedingly difficult for a citizen to
Supreme Court found in the Mink case. Since the burden of justifying
learn of such consequences, or if he knows, to establish a "cause and
the withholding of information is on the agency, this will enable the
effect" relationship between the information in his file and some sub-
court to make a full de novo determination of the propriety of the
sequent damage to him, the Committee has decided that it would frus-
grounds asserted by the government for keeping the information from
trate an individual's ability to assert his rights if he had to allege and
the plaintiff. Such a provision is necessary in order to provide a full
prove use or such consequential harm. In order to state a cause of
and complete hearing to the issues being litigated and to provide
action, it should be enough that he be able to assert that the presump-
justice to the aggrieved individual.
tive right of access granted him by the Act has been denied him.
84
85
Subsection 304(b). Provides that in any action to obtain judicial
Since a number of agencies already apply some of the safeguards to
review of a decision to exempt any personal information from any
certain of their files, and since the Act will require little or no further
provision of this Act, the Court may examine such information in
effort on their part for those files, this certainly will affect the cost of
camera to determine if all, or any part of it, is properly classified with
implementation. Furthermore, experience under the practices of those
respect to national defense, foreign policy, or law enforcement intelli-
agencies and with provisions which are somewhat similar in the Fair
gence or investigative information and may be exempted from any
Credit Reporting Act and other statutes shows that the workload is
provision of this Act. The burden is on the Federal agency to sustain
not unreasonable and, in some cases under those laws, did not meet
any claim that such information may be SO exempted.
expectations. The very existence of the statutory guarantees ap-
parently tended to reassure citizens that government and organizations
SECTION 305
were following certain guidelines pursuant to administrative and
legislative oversight.
EFFECTIVE DATE
The HEW report addressed the problem of costs and the Committee
Provides that the Act shall become effective one year after the
agrees with the commonsense observations there:
date of enactment, except that the provisions of title I shall become
The safeguards we recommend will not be without costs,
effective on the date of enactment.
which will vary from system to system. The personal data
This provision is designed to allow the agencies lead time to develop
record-keeping practices of some organizations already meet
their regulations and to seek such additional resources or assistance
many of the standards called for by the safeguards.
We
as they may need to meet their obligations under the Act. By allowing
believe that the cost to most organizations of changing their
the immediate implementation of the provisions establishing the
customary practices in order to assure adherence to our
Commission, the Committee intends to permit the Commission time
recommended safeguards will be higher in management atten-
to develop its model guidelines, establish any needed interagency
tion and psychic energy than in dollars. These costs can be
councils, and generally to prepare for full implementation of the Act.
regarded in part as deferred costs that should already have
been incurred to protect personal privacy, and in part as
SECTION 306
insurance against future problems that may result from
adverse effects of automated personal data systems. From a
AUTHORIZATION OF APPROPRIATIONS
practical point of view, we can expect to reap the full
advantages of these systems only if active public antipathy
Authorizes appropriation of such sums as may be necessary to
to their use is not provoked. (Report, p. 44, 45)
carry out the provisions of the Act.
The Office of Management and Budget has been unable to provide
NEW TITLE
an accurate cost estimate.
The title is amended SO as to read:
ROLLCALL VOTE ON FINAL PASSAGE
"A bill to establish a Privacy Protection Commission, to provide
In compliance with section 133 of the Legislative Reorganization Act
management systems in Federal agencies and certain other organiza-
of 1946, as amended, rollcall votes taken during Committee consider-
tions with respect to the gathering and disclosure of information
ation of this legislation are as follows:
concerning individuals, and for other purposes."
FINAL PASSAGE: Ordered reported: 9 yeas-0 nays
ESTIMATED COST OF THE LEGISLATION
The Committee has received a broad variety of generalized state-
Yeas:
Nays:
Jackson
None
ments of the estimated costs of implementing the safeguards and
guarantees provided in this legislation. No precise estimate of costs
Muskie
can be established until the Commission develops model guidelines
Chiles
Nunn
and until the Act is applied to specific information programs and
administrators have reviewed their resources for implementing it in
Huddleston
accordance with their own rules. The Committee believes that good
Percy
faith enforcement of the standards and procedures for review will
Roth
result in substantial savings to Federal agencies. We are mindful, for
Brock
instance, of testimony describing the Navy's destruction of 15 tons of
Ervin
records upon review of its program needs for retention of records.
(Proxy)
Similar patterns showed up in the review by the Army of the relevance
Ribicoff
to its statutory programs to the personal information it collected and
Javits.
maintained on individuals who had no dealings with the armed
services.
CORRECTED SHEET
S. 3418
Ainety-third Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-first day of January,
one thousand nine hundred and seventy-four
An Act
To amend title 5, United States Code, by adding a section 552a to safeguard
individual privacy from the misuse of Federal records, to provide that
individuals be granted access to records concerning them which are maintained
by Federal agencies, to establish a Privacy Protection Study Commission, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "Privacy Act of 1974".
SEC. 2. (a) The Congress finds that-
(1) the privacy of an individual is directly affected by the
collection, maintenance, use, and dissemination of personal infor-
mation by Federal agencies;
(2) the increasing use of computers and sophisticated infor-
mation technology, while essential to the efficient operations of
the Government, has greatly magnified the harm to individual
privacy that can occur from any collection, maintenance, use, or
dissemination of personal information;
(3) the opportunities for an individual to secure employment,
insurance, and credit, and his right to due process, and other legal
protections are endangered by the misuse of certain information
systems;
(4) the right to privacy is a personal and fundamental right
protected by the Constitution of the United States; and
(5) in order to protect the privacy of individuals identified in
information systems maintained by Federal agencies, it is neces-
sary and proper for the Congress to regulate the collection, main-
tenance, use, and dissemination of information by such agencies.
(b) The purpose of this Act is to provide certain safeguards for an
individual against an invasion of personal privacy by requiring
Federal agencies, except as otherwise provided by law, to-
(1) permit an individual to determine what records pertaining
to him are collected, maintained, used, or disseminated by such
agencies;
(2) permit an individual to prevent records pertaining to him
obtained by such agencies for a particular purpose from being
used or made available for another purpose without his consent;
(3) permit an individual to gain access to information pertain-
ing to him in Federal agency records, to have a copy made of all
or any portion thereof, and to correct or amend such records;
(4) collect, maintain, use, or disseminate any record of identi-
fiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the infor-
mation is current and accurate for its intended use, and that
adequate safeguards are provided to prevent misuse of such
information;
(5) permit exemptions from the requirements with respect to
records provided in this Act only in those cases where there is an
important public policy need for such exemption as has been
determined by specific statutory authority; and
(6) be subject to civil suit for any damages which occur as a
result of willful or intentional action which violates any indi-
vidual's rights under this Act.
SEC. 3. Title 5, United States Code, is amended by adding after
section 552 the following new section:
GERALD
FORD
LIBRARY
S. 3418-2
"§ 552a. Records maintained on individuals
"(a) DEFINITIONS.-For purposes of this section-
(1) the term 'agency' means agency as defined in section
552 (e) of this title;
(2) the term 'individual' means a citizen of the United States
or an alien lawfully admitted for permanent residence;
'(3) the term 'maintain' includes maintain, collect, use, or dis-
seminate;
"(4) the term 'record' means any item, collection, or grouping
of information about an individual that is maintained by an
agency, including, but not limited to, his education, financial
transactions, medical history, and criminal or employment history
and that contains his name, or the identifying number, symbol,
or other identifying particular assigned to the individual, such
as a finger or voice print or a photograph;
"(5) the term 'system of records' means a group of any records
under the control of any agency from which information is
retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual;
(6) the term 'statistical record' means a record in a system
of records maintained for statistical research or reporting pur-
poses only and not used in whole or in part in making any deter-
mination about an identifiable individual, except as provided by
section 8 of title 13; and
"(7) the term 'routine use' means, with respect to the dis-
closure of a record, the use of such record for a purpose which
is compatible with the purpose for which it was collected.
"(b) CONDITIONS OF DISCLOSURE.-No agency shall disclose any
record which is contained in a system of records by any means of com-
munication to any person, or to another agency, except pursuant to a
written request by, or with the prior written consent of, the individual
to whom the record pertains, unless disclosure of the record would
be-
"(1) to those officers and employees of the agency which main-
tains 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 of the United States as a record
which has sufficient historical or other value to warrant its con-
tinued preservation by the United States Government, or for
evaluation by the Administrator of General Services or his
designee to determine whether the record has such value;
"(7) to another agency or to an instrumentality of any govern-
mental 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
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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 circum-
stances 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 rep-
resentatives, in the course of the performance of the duties of
the General Accounting Office; or
(11) pursuant to the order of a court of competent jurisdic-
tion.
"(c) ACCOUNTING OF CERTAIN Disclosures.-Each agency, with
respect to each system of records under its control, shall-
(1) except for disclosures made under subsections (b) (1) or
(b) (2) of this section, keep an accurate accounting of-
"(A) the date, nature, and purpose of each disclosure of
a record to any person or to another agency made under
subsection (b) of this section; and
(B) the name and address of the person or agency to
whom the disclosure is made;
(2) retain the accounting made under paragraph (1) of this
subsection for at least five years or the life of the record, which-
ever is longer, after the disclosure for which the accounting is
made;
'(3) except for disclosures made under subsection (b) (7) of
this section, make the accounting made under paragraph (1) of
this subsection available to the individual named in the record
at his request; and
"(4) inform any person or other agency about any correction
or notation of dispute made by the agency in accordance with
subsection (d) of this section of any record that has been dis-
closed to the person or agency if an accounting of the disclosure
was made.
"(d) ACCESS TO RECORDS.-Each agency that maintains a system
of records shall-
"(1) upon request by any individual to gain access to his
record or to any information pertaining to him which is con-
tained in the system, permit him and upon his request, a person
of his own choosing to accompany him, to review the record and
have a copy made of all or any portion thereof in a form compre-
hensible to him, except that the agency may require the indi-
vidual to furnish a written statement authorizing discussion of
that individual's record in the accompanying person's presence;
"(2) permit the individual to request amendment of a record
pertaining to him and-
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(A) not later than 10 days (excluding Saturdays, Sun-
days, and legal public holidays) after the date of receipt of
such request, acknowledge in writing such receipt; and
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'(B) promptly, either-
(i) make any correction of any portion thereof
which the individual believes is not accurate, relevant,
timely, or complete; or
(ii) inform the individual of its refusal to amend
the record in accordance with his request, the reason
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for the refusal, the procedures established by the agency
for the individual to request a review of that refusal by
the head of the agency or an officer designated by the
head of the agency, and the name and business address
of that official;
"(3) permit the individual who disagrees with the refusal of the
agency to amend his record to request a review of such refusal,
and not later than 30 days (excluding Saturdays, Sundays, and
legal public holidays) from the date on which the individual
requests such review, complete such review and make a final
determination unless, for good cause shown, the head of the agency
extends such 30-day period; and if, after his review, the reviewing
official also refuses to amend the record in accordance with the
request, permit the individual to file with the agency a concise
statement setting forth the reasons for his disagreement with the
refusal of the agency, and notify the individual of the provisions
for judicial review of the reviewing official's determination under
subsection (g) (1) (A) of this section;
"(4) in any disclosure, containing information about which
the individual has filed a statement of disagreement, occurring
after the filing of the statement under paragraph (3) of this sub-
section, clearly note any portion of the record which is disputed
and provide copies of the statement and, if the agency deems it
appropriate, copies of a concise statement of the reasons of the
agency for not making the amendments requested, to persons or
other agencies to whom the disputed record has been disclosed;
and
"(5) nothing in this section shall allow an individual access to
any information compiled in reasonable anticipation of a civil
action or proceeding.
"(e) AGENCY REQUIREMENTS.-Each agency that maintains a
system of records shall-
"(1) maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of
the agency required to be accomplished by statute or by executive
order of the President;
"(2) collect information to the greatest extent practicable
directly from the subject individual when the information may
result in adverse determinations about an individual's rights, bene-
fits, and privileges under Federal programs;
"(3) inform each individual whom it asks to supply informa-
tion, on the form which it uses to collect the information or on a
separate form that can be retained by the individual-
"(A) the authority (whether granted by statute, or by
executive order of the President) which authorizes the solici-
tation of the information and whether disclosure of such
information is mandatory or voluntary;
(B) the principal purpose or purposes for which the
information is intended to be used;
"(C) the routine uses which may be made of the informa-
tion, as published pursuant to paragraph (4) (D) of this
subsection; and
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"(D) the effects on him, if any, of not providing all or
any part of the requested information;
"(4) subject to the provisions of paragraph (11) of this sub-
section, publish in the Federal Register at least annually a notice
of the existence and character of the system of records, which
notice shall include-
(A) the name and location of the system;
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"(B) the categories of individuals on whom records are
maintained in the system;
(C) the categories of records maintained in the system;
"(D) each routine use of the records contained in the sys-
tem, including the categories of users and the purpose of such
use;
"(E) the policies and practices of the agency regarding
storage, retrievability, access controls, retention, and disposal
of the records;
"(F) the title and business address of the agency official
who is responsible for the system of records;
"(G) the agency procedures whereby an individual can be
notified at his request if the system of records contains a rec-
ord pertaining to him;
(H) the agency procedures whereby an individual can be
notified at his request how he can gain access to any record
pertaining to him contained in the system of records, and how
he can contest its content; and
"(I) the categories of sources of records in the system;
"(5) maintain all records which are used by the agency in mak-
ing any determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably necessary
to assure fairness to the individual in the determination;
'(6) prior to disseminating any record about an individual to
any person other than an agency, unless the dissemination is
made pursuant to subsection (b) (2) of this section, make reason-
able efforts to assure that such records are accurate, complete,
timely, and relevant for agency purposes;
(7) maintain no record describing how any individual exer-
cises rights guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom the record
is maintained or unless pertinent to and within the scope of an
authorized law enforcement activity;
(8) make reasonable efforts to serve notice on an individual
when any record on such individual is made available to any per-
son under compulsory legal process when such process becomes a
matter of public record;
"(9) establish rules of conduct for persons involved in the
design, development, operation, or maintenance of any system of
records, or in maintaining any record, and instruct each such per-
son with respect to such rules and the requirements of this section,
including any other rules and procedures adopted pursuant to this
section and the penalties for noncompliance;
(10) establish appropriate administrative, technical, and
physical safeguards to insure the security and confidentiality of
records and to protect against any anticipated threats or hazards
to their security or integrity which could result in substantial
harm, embarrassment, inconvenience, or unfairness to any individ-
ual on whom information is maintained; and
(11) at least 30 days prior to publication of information under
paragraph (4) (D) of this subsection, publish in the Federal
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Register notice of any new use or intended use of the information
in the system, and provide an opportunity for interested persons to
submit written data, views, or arguments to the agency.
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"(f) AGENCY RULES.-In order to carry out the provisions of this
section, each agency that maintains a system of records shall pro-
mulgate rules, in accordance with the requirements (including general
notice) of section 553 of this title, which shall-
"(1) establish procedures whereby an individual can be notified
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in response to his request if any system of records named by the
individual contains a record pertaining to him;
(2) define reasonable times, places, and requirements for iden-
tifying an individual who requests his record or information
pertaining to him before the agency shall make the record or
information available to the individual;
"(3) establish procedures for the disclosure to an individual
upon his request of his record or information pertaining to him,
including special procedure, if deemed necessary, for the disclo-
sure to an individual of medical records, including psychological
records, pertaining to him;
"(4) establish procedures for reviewing a request from an
individual concerning the amendment of any record or informa-
tion pertaining to the individual, for making a determination on
the request, for an appeal within the agency of an initial adverse
agency determination, and for whatever additional means may be
necessary for each individual to be able to exercise fully his rights
under this section; and
(5) establish fees to be charged, if any, to any individual for
making copies of his record, excluding the cost of any search for
and review of the record.
The Office of the Federal Register shall annually compile and publish
the rules promulgated under this subsection and agency notices pub-
lished under subsection (e) (4) of this section in a form available to
the public at low cost.
" (g) (1) CIVIL REMEDIES.-Whenever any agency
(A) makes a determination under subsection (d) (3) of this
section not to amend an individual's record in accordance with
his request, or fails to make such review in conformity with that
subsection;
(B) refuses to comply with an individual request under sub-
section (d) (1) of this section;
(C) fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and completeness as is
necessary to assure fairness in any determination relating to the
qualifications, character, rights, or opportunities of, or benefits to
the individual that may be made on the basis of such record, and
consequently a determination is made which is adverse to the
individual; or
"(D) fails to comply with any other provision of this section,
or any rule promulgated thereunder, in such a way as to have
an adverse effect on an individual,
the individual may bring a civil action against the agency, and the
district courts of the United States shall have jurisdiction in the
matters under the provisions of this subsection.
"(2) (A) In any suit brought under the provisions of subsection
(g) (1) (A) of this section, the court may order the agency to amend
the individual's record in accordance with his request or in such other
way as the court may direct. In such a case the court shall determine
the matter de novo.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
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under this paragraph in which the complainant has substantially
prevailed.
"(3) (A) In any suit brought under the provisions of subsection
(g) (1) (B) of this section, the court may enjoin the agency from with-
holding the records and order the production to the complainant of any
agency records improperly withheld from him. In such a case the court
shall determine the matter de novo, and may examine the contents of
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any agency records in camera to determine whether the records or any
portion thereof may be withheld under any of the exemptions set forth
in subsection (k) of this section, and the burden is on the agency to
sustain its action.
'(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this paragraph in which the complainant has substantially
prevailed.
"(4) In any suit brought under the provisions of subsection
(g) (1) (C) or (D) of this section in which the court determines that
the agency acted in a manner which was intentional or willful, the
United States shall be liable to the individual in an amount equal to
the sum of-
(A) actual damages sustained by the individual as a result of
the refusal or failure, but in no case shall a person entitled to
recovery receive less than the sum of $1,000; and
((B) the costs of the action together with reasonable attorney
fees as determined by the court.
'(5) An action to enforce any liability created under this section
may be brought in the district court of the United States in the district
in which the complainant resides, or has his principal place of business,
or in which the agency records are situated, or in the District of Colum-
bia, without regard to the amount in controversy, within two years
from the date on which the cause of action arises, except that where
an agency has materially and willfully misrepresented any informa-
tion required under this section to be disclosed to an individual and
the information SO misrepresented is material to establishment of
the liability of the agency to the individual under this section, the
action may be brought at any time within two years after discovery by
the individual of the misrepresentation. Nothing in this section shall
be construed to authorize any civil action by reason of any injury sus-
tained as the result of a disclosure of a record prior to the effective date
of this section.
(h) RIGHTS OF LEGAL GUARDIANS.-For the purposes of this section,
the parent of any minor, or the legal guardian of any individual who
has been declared to be incompetent due to physical or mental inca-
pacity or age by a court of competent jurisdiction, may act on behalf
of the individual.
"(i) (1) CRIMINAL PENALTIES.-Any officer or employee of an
agency, who by virtue of his employment or official position, has pos-
session of, or access to, agency records which contain individually
identifiable information the disclosure of which is prohibited by this
section or by rules or regulations established thereunder, and who
knowing that disclosure of the specific material is SO prohibited, will-
fully discloses the material in any manner to any person or agency not
entitled to receive it, shall be guilty of a misdemeanor and fined not
more than $5,000.
"(2) Any officer or employee of any agency who willfully maintains
a system of records without meeting the notice requirements of sub-
section (e) (4) of this section shall be guilty of a misdemeanor and fined
not more than $5,000.
'(3) Any person who knowingly and willfully requests or obtains
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any record concerning an individual from an agency under false pre-
tenses shall be guilty of a misdemeanor and fined not more than $5,000.
"(j) GENERAL EXEMPTIONS.-The head of any agency may promul-
gate rules, in accordance with the requirements (including general
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notice) of sections 553 (b) (1), (2), and (3), (c), and (e) of this title,
to exempt any system of records within the agency from any part of
this section except subsections (b), (c) (1) and (2), (e) (4) (A) through
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S. 3418-8
(F), (e) (6), (7), (9), (10), and (11), and (i) if the system of records
is-
"(1) maintained by the Central Intelligence Agency; or
"(2) maintained by an agency or component thereof which
performs as its principal function any activity pertaining to the
enforcement of criminal laws, including police efforts to prevent,
control, or reduce crime or to apprehend criminals, and the activ-
ities of prosecutors, courts, correctional, probation, pardon, or
parole authorities, and which consists of (A) information com-
piled for the purpose of identifying individual criminal offenders
and alleged offenders and consisting only of identifying data
and notations of arrests, the nature and disposition of criminal
charges, sentencing, confinement, release, and parole and proba-
tion status; (B) information compiled for the purpose of a
criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or
(C) reports identifiable to an individual compiled at any stage
of the process of enforcement of the criminal laws from arrest
or indictment through release from supervision.
At the time rules are adopted under this subsection, the agency shall
include in the statement required under section 553(c) of this title,
the reasons why the system of records is to be exempted from a pro-
vision of this section.
"(k) SPECIFIC EXEMPTIONS.-The head of any agency may pro-
mulgate rules, in accordance with the requirements (including general
notice) of sections 553 (1), (2), and (3), (c), and (e) of this title,
to exempt any system of records within the agency from subsections
(c) (3), (d), (e) (1), (e) (4) (G), (H), and (I) and (f) of this sec-
tion if the system of records is-
"(1) subject to the provisions of section 552 (b) (1) of this title;
"(2) investigatory material compiled for law enforcement pur-
poses, other than material within the scope of subsection (j) (2)
of this section: Provided, however, That if any individual is
denied any right, privilege, or benefit that he would otherwise
be entitled by Federal law, or for which he would otherwise be
eligible, as a result of the maintenance of such material, such
material shall be provided to such individual, except to the extent
that the disclosure of such material would reveal the identity of
a source who furnished information to the Government under an
express promise that the identity of the source would be held in
confidence, or, prior to the effective date of this section, under
an implied promise that the identity of the source would be held
in confidence;
"(3) maintained in connection with providing protective serv-
ices to the President of the United States or other individuals
pursuant to section 3056 of title 18;
"(4) required by statute to be maintained and used solely as
statistical records;
"(5) investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or
access to classified information, but only to the extent that the
disclosure of such material would reveal the identity of a source
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who furnished information to the Government under an express
promise that the identity of the source would be held in confi-
dence, or, prior to the effective date of this section, under an
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implied promise that the identity of the source would be held in
confidence;
"(6) testing or examination material used solely to determine
individual qualifications for appointment or promotion in the
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Federal service the disclosure of which would compromise the
objectivity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for pro-
motion in the armed services, but only to the extent that the
disclosure of such material would reveal the identity of a source
who furnished information to the Government under an express
promise that the identity of the source would be held in confi-
dence, or, prior to the effective date of this section, under an
implied promise that the identity of the source would be held in
confidence.
At the time rules are adopted under this subsection, the agency shall
include in the statement required under section 553 (c) of this title,
the reasons why the system of records is to be exempted from a pro-
vision of this section.
"(1) (1) ARCHIVAL RECORDS.-Each agency record which is accepted
by the Administrator of General Services for storage, processing, and
servicing in accordance with section 3103 of title 44 shall, for the pur-
poses of this section, be considered to be maintained by the agency
which deposited the record and shall be subject to the provisions of
this section. The Administrator of General Services shall not disclose
the record except to the agency which maintains the record, or under
rules established by that agency which are not inconsistent with the
provisions of this section.
"(2) Each agency record pertaining to an identifiable individual
which was transferred to the National Archives of the United States
as a record which has sufficient historical or other value to warrant
its continued preservation by the United States Government, prior to
the effective date of this section, shall, for the purposes of this section,
be considered to be maintained by the National Archives and shall
not be subject to the provisions of this section, except that a statement
generally describing such records (modeled after the requirements
relating to records subject to subsections (e) (4) (A) through (G) of
this section) shall be published in the Federal Register.
(3) Each agency record pertaining to an identifiable individual
which is transferred to the National Archives of the United States as
a record which has sufficient historical or other value to warrant its
continued preservation by the United States Government, on or after
the effective date of this section, shall, for the purposes of this section,
be considered to be maintained by the National Archives and shall be
exempt from the requirements of this section except subsections (e) (4)
(A) through (G) and (e) (9) of this section.
(m) GOVERNMENT CONTRACTORS.-When an agency provides by a
contract for the operation by or on behalf of the agency of a system
of records to accomplish an agency function, the agency shall, con-
sistent with its authority, cause the requirements of this section to be
applied to such system. For purposes of subsection (i) of this section
any such contractor and any employee of such contractor, if such
contract is agreed to on or after the effective date of this section, shall
be considered to be an employee of an agency.
(n) MAILING LISTS.-An individual's name and address may not
be sold or rented by an agency unless such action is specifically author-
ized by law. This provision shall not be construed to require the
withholding of names and addresses otherwise permitted to be made
public.
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"(o) REPORT ON NEW SYSTEMS.-Each agency shall provide adequate
advance notice to Congress and the Office of Management and Budget
of any proposal to establish or alter any system of records in order
to permit an evaluation of the probable or potential effect of such
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proposal on the privacy and other personal or property rights of
individuals or the disclosure of information relating to such indi-
viduals, and its effect on the preservation of the constitutional
principles of federalism and separation of powers.
"(p) ANNUAL REPORT.-The President shall submit to the Speaker
of the House and the President of the Senate, by June 30 of each
calendar year, a consolidated report, separately listing for each Fed-
eral agency the number of records contained in any system of records
which were exempted from the application of this section under the
provisions of subsections (j) and (k) of this section during the pre-
ceding calendar year, and the reasons for the exemptions, and such
other information as indicates efforts to administer fully this section.
(q) EFFECT OF OTHER LAws.-No agency shall rely on any exemp-
tion contained in section 552 of this title to withhold from an indi-
vidual any record which is otherwise accessible to such individual
under the provisions of this section.".
SEC. 4. The chapter analysis of chapter 5 of title 5, United States
Code, is amended by inserting:
"552a. Records about individuals."
immediately below:
"552. Public information agency rules, opinions, orders, and proceedings.".
SEC. 5. (a) (1) There is established a Privacy Protection Study
Commission (hereinafter referred to as the "Commission") which
shall be composed of seven members as follows:
(A) three appointed by the President of the United States,
(B) two appointed by the President of the Senate, and
(C) two appointed by the Speaker of the House of Representa-
tives.
Members of the Commission shall be chosen from among persons who,
by reason of their knowledge and expertise in any of the following
areas-civil rights and liberties, law, social sciences, computer tech-
nology, business, records management, and State and local govern-
ment-are well qualified for service on the Commission.
(2) The members of the Commission shall elect a Chairman from
among themselves.
(3) Any vacancy in the membership of the Commission, as long as
there are four members in office, shall not impair the power of the
Commission but shall be filled in the same manner in which the original
appointment was made.
(4) A quorum of the Commission shall consist of a majority of
the members, except that the Commission may establish a lower num-
ber as a quorum for the purpose of taking testimony. The Com-
mission is authorized to establish such committees and delegate such
authority to them as may be necessary to carry out its functions.
Each member of the Commission, including the Chairman, shall have
equal responsibility and authority in all decisions and actions of the
Commission, shall have full access to all information necessary to the
performance of their functions, and shall have one vote. Action of
the Commission shall be determined by a majority vote of the mem-
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bers present. The Chairman (or a member designated by the Chair-
man to be acting Chairman) shall be the official spokesman of the
Commission in its relations with the Congress, Government agencies,
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other persons, and the public, and, on behalf of the Commission, shall
see to the faithful execution of the administrative policies and deci-
sions of the Commission, and shall report thereon to the Commission
from time to time or as the Commission may direct.
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(5) (A) Whenever the Commission submits any budget estimate
or request to the President or the Office of Management and Budget,
it shall concurrently transmit a copy of that request to Congress.
(B) Whenever the Commission submits any legislative recommen-
dations, or testimony, or comments on legislation to the President or
Office of Management and Budget, it shall concurrently transmit a copy
thereof to the Congress. No officer or agency of the United States
shall have any authority to require the Commission to submit its
legislative recommendations, or testimony, or comments on legisla-
tion, to any officer or agency of the United States for approval, com-
ments, or review, prior to the submission of such recommendations,
testimony, or comments to the Congress.
(b) The Commission shall-
(1) make a study of the data banks, automated data process-
ing programs, and information systems of governmental,
regional, and private organizations, in order to determine the
standards and procedures in force for the protection of personal
information; and
(2) recommend to the President and the Congress the extent,
if any, to which the requirements and principles of section 552a
of title 5, United States Code, should be applied to the informa-
tion practices of those organizations by legislation, administrative
action, or voluntary adoption of such requirements and principles,
and report on such other legislative recommendations as it may
determine to be necessary to protect the privacy of individuals
while meeting the legitimate needs of government and society for
information.
(c) (1) In the course of conducting the study required under sub-
section (b) (1) of this section, and in its reports thereon, the Com-
mission may research, examine, and analyze-
(A) interstate transfer of information about individuals that
is undertaken through manual files or by computer or other elec-
tronic or telecommunications means;
(B) data banks and information programs and systems the
operation of which significantly or substantially affect the enjoy-
ment of the privacy and other personal and property rights of
individuals;
(C) the use of social security numbers, license plate numbers,
universal identifiers, and other symbols to identify individuals
in data banks and to gain access to, integrate, or centralize
information systems and files; and
(D) the matching and analysis of statistical data, such as
Federal census data, with other sources of personal data, such as
automobile registries and telephone directories, in order to
reconstruct individual responses to statistical questionnaires for
commercial or other purposes, in a way which results in a
violation of the implied or explicitly recognized confidentiality
of such information.
(2) (A) The Commission may include in its examination personal
information activities in the following areas: medical; insurance;
education; employment and personnel; credit, banking and financial
institutions; credit bureaus; the commercial reporting industry; cable
television and other telecommunications media; travel, hotel and
entertainment reservations; and electronic check processing.
(B) The Commission shall include in its examination a study of-
(i) whether a person engaged in interstate commerce who
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maintains a mailing list should be required to remove an
individual's name and address from such list upon request of
that individual;
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(ii) whether the Internal Revenue Service should be pro-
hibited from transfering individually indentifiable data to other
agencies and to agencies of State governments;
(iii) whether the Federal Government should be liable for
general damages incurred by an individual as the result of a will-
ful or intentional violation of the provisions of sections 552a (g)
(1) (C) or (D) of title 5, United States Code; and
(iv) whether and how the standards for security and con-
fidentiality of records required under section 552a (e) (10) of
such title should be applied when a record is disclosed to a
person other than an agency.
(C) The Commission may study such other personal information
activities necessary to carry out the congressional policy embodied in
this Act, except that the Commission shall not investigate information
systems maintained by religious organizations.
(3) In conducting such study, the Commission shall-
(A) determine what laws, Executive orders, regulations,
directives, and judicial decisions govern the activities under study
and the extent to which they are consistent with the rights of
privacy, due process of law, and other guarantees in the
Constitution;
(B) determine to what extent governmental and private
information systems affect Federal-State relations or the
principle of separation of powers;
(C) examine the standards and criteria governing programs,
policies, and practices relating to the collection, soliciting,
processing, use, access, integration, dissemination, and transmis-
sion of personal information: and
(D) to the maximum extent practicable, collect and utilize
findings, reports, studies, hearing transcripts, and recommenda-
tions of governmental, legislative and private bodies, institutions,
organizations, and individuals which pertain to the problems
under study by the Commission.
(d) In addition to its other functions the Commission may-
(1) request assistance of the heads of appropriate departments,
agencies, and instrumentalities of the Federal Government, of
State and local governments, and other persons in carrying out
its functions under this Act;
(2) upon request, assist Federal agencies in complying with the
requirements of section 552a of title 5, United States Code;
(3) determine what specific categories of information, the col-
lection of which would violate an individual's right of privacy,
should be prohibited by statute from collection by Federal agen-
cies; and
(4) upon request, prepare model legislation for use by State
and local governments in establishing procedures for handling,
maintaining, and disseminating personal information at the State
and local level and provide such technical assistance to State and
local governments as they may require in the preparation and
implementation of such legislation.
(e) (1) The Commission may, in carrying out its functions under
this section, conduct such inspections, sit and act at such times and
places, hold such hearings, take such testimony, require by subpena
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the attendance of such witnesses and the production of such books,
records, papers, correspondence, and documents, administer such
oaths, have such printing and binding done, and make such expendi-
tures as the Commission deems advisable. A subpena shall be issued
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LIBRARY
only upon an affirmative vote of a majority of all members of the Com-
S. 3418-13
mission. Subpenas shall be issued under the signature of the Chair-
man or any member of the Commission designated by the Chairman
and shall be served by any person designated by the Chairman or any
such member. Any member of the Commission may administer oaths
or affirmations to witnesses appearing before the Commission.
(2) (A) Each department, agency, and instrumentality of the execu-
tive branch of the Government is authorized to furnish to the Com-
mission, upon request made by the Chairman, such information, data,
reports and such other assistance as the Commission deems necessary
to carry out its functions under this section. Whenever the head of
any such department, agency, or instrumentality submits a report
pursuant to section 552a (o) of title 5, United States Code, a copy
of such report shall be transmitted to the Commission.
(B) In carrying out its functions and exercising its powers under
this section, the Commission may accept from any such department,
agency, independent instrumentality, or other person any individu-
ally indentifiable data if such data is necessary to carry out such powers
and functions. In any case in which the Commission accepts any
such information, it shall assure that the information is used only
for the purpose for which it is provided, and upon completion of that
purpose such information shall be destroyed or returned to such de-
partment, agency, independent instrumentality, or person from which
it is obtained, as appropriate.
(3) The Commission shall have the power to-
(A) appoint and fix the compensation of an executive director,
and such additional staff personnel as may be necessary, without
regard to the provisions of title 5, United States Code, govern-
ing appointments in the competitive service, and without regard
to chapter 51 and subchapter III of chapter 53 of such title re-
lating to classification and General Schedule pay rates, but at rates
not in excess of the maximum rate for GS-18 of the General
Schedule under section 5332 of such title; and
(B) procure temporary and intermittent services to the same
extent as is authorized by section 3109 of title 5, United States
Code.
The Commission may delegate any of its functions to such personnel
of the Commission as the Commission may designate and may
authorize such successive redelegations of such functions as it may
deem desirable.
(4) The Commission is authorized-
(A) to adopt, amend, and repeal rules and regulations govern-
ing the manner of its operations, organization, and personnel;
(B) to enter into contracts or other arrangements or modifica-
tions thereof, with any government, any department, agency, or
independent instrumentality of the United States, or with any
person, firm, association, or corporation, and such contracts or
other arrangements, or modifications thereof, may be entered into
without legal consideration, without performance or other bonds,
and without regard to section 3709 of the Revised Statutes, as
amended (41.U.S.C.5);
(C) to make advance, progress, and other payments which the
Commission deems necessary under this Act without regard to
the provisions of section 3648 of the Revised Statutes, as amended
(31 U.S.C. 529) ; and
GERALD FORD LIBRARY
(D) to take such other action as may be necessary to carry out
its functions under this section.
S. 3418-14
(f) (1) Each [the] member of the Commission who is an officer or
employee of the United States shall serve without additional compen-
sation, but shall continue to receive the salary of his regular position
when engaged in the performance of the duties vested in the Com-
mission.
(2) A member of the Commission other than one to whom paragraph
(1) applies shall receive per diem at the maximum daily rate for
GS-18 of the General Schedule when engaged in the actual per-
formance of the duties vested in the Commission.
(3) All members of the Commission shall be reimbursed for travel,
subsistence, and other necessary expenses incurred by them in the per-
formance of the duties vested in the Commission.
(g) The Commission shall, from time to time, and in an annual
report, report to the President and the Congress on its activities in
carrying out the provisions of this section. The Commission shall make
a final report to the President and to the Congress on its findings
pursuant to the study required to be made under subsection (b) (1)
of this section not later than two years from the date on which all of
the members of the Commission are appointed. The Commission shall
cease to exist thirty days after the date on which its final report is
submitted to the President and the Congress.
(h) (1) Any member, officer, or employee of the Commission, who
by virtue of his employment or official position, has possession of, or
access to, agency records which contain individually identifiable infor-
mation the disclosure of which is prohibited by this section, and who
knowing that disclosure of the specific material is SO prohibited, will-
fully discloses the material in any manner to any person or agency
not entitled to receive it, shall be guilty of a misdemeanor and fined
not more than $5,000.
(2) Any person who knowingly and willfully requests or obtains
any record concerning an individual from the Commission under false
pretenses shall be guilty of a misdemeanor and fined not more than
$5,000.
SEC. 6. The Office of Management and Budget shall-
(1) develop guidelines and regulations for the use of agencies
in implementing the provisions of section 552a of title 5, United
States Code, as added by section 3 of this Act; and
(2) provide continuing assistance to and oversight of the im-
plementation of the provisions of such section by agencies.
SEC. 7. (a) (1) It shall be unlawful for any Federal, State or local
government agency to deny to any individual any right, benefit, or
privilege provided by law because of such individual's refusal to dis-
close his social security account number.
(2) the provisions of paragraph (1) of this subsection shall not
apply with respect to-
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal,
State, or local agency maintaining a system of records in existence
and operating before January 1, 1975, if such disclosure was
required under statute or regulation adopted prior to such date to
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verify the identity of an individual.
(b) Any Federal, State, or local government agency which requests
an individual to disclose his social security account number shall
inform that individual whether that disclosure is mandatory or volun-
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tary, by what statutory or other authority such number is solicited,
and what uses will be made of it.
S. 3418-15
SEC. 8. The provisions of this Act shall be effective on and after the
date of enactment, except that the amendments made by sections 3 and
4 shall become effective 270 days following the day on which this Act
is enacted.
SEC. 9. There is authorized to be appropriated to carry out the pro-
visions of section 5 of this Act for fiscal years 1975, 1976, and 1977 the
sum of $1,500,000, except that not more than $750,000 may be expended
during any such fiscal year.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
FORD & LIBRARY GERALD
FOR IMMEDIATE RELEASE
JANUARY 1, 1975
Office of the White House Press Secretary
(Vail, Colorado)
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
The Privacy Act of 1974, S. 3418, represents an initial advance in
protecting a right precious to every American- - the right of individual
privacy.
I am especially happy to have signed this bill because of my own personal
concern in the privacy issue. As Chairman of the Domestic Council
Committee on the Right of Privacy, I became increasingly aware of the
vital need to provide adequate and uniform privacy safeguards for the vast
amounts of personal information collected, reçorded and used in our
complex society. It was my objective then, as it is today, to seek, first,
opportunities to set the Federal house in order before prescribing remedies
for State and local government and the private sector.
The Privacy Act of 1974 signified an historic beginning by codifying funda-
mental principles to safeguard personal privacy in the collection and
handling of recorded personal information by . Federal agencies. This bill,
for the most part, strikes a reasonable balance between the right of the
individual to be left alone and the interest of society in open government,
national defense, foreign policy, law enforcement and a high quality and
trustworthy Federal work force.
No bill of this scope and complexity - particularly initial legislation of this
type - can be completely free of imperfections. While I am pleased that
the Commission created by this law has been limited to purely advisory
functions, I am disappointed that the provisions for disclosure of personal
information by agencies make no substantive change in the current law.
The latter in my opinion does not adequately protect the individual against
unnecessary disclosures of personal information.
I want to congratulate the Congressional sponsors of this legislation and
their staffs who have forged a strong bipartisan constituency in the interest
of protecting the right of individual privacy. Experience under this
legislation, as well as further exploration of the complexities of the issue,
will no doubt lead to continuing Legislative and Executive efforts to reassess
the proper balance between the privacy interests of the individual and those
of society. I look forward to a continuation of the same spirit of bipartisan
cooperation in the years ahead.
My Administration will act aggressively to protect the right of privacy for
every American, and I call on the full support of all Federal personnel in
implementing requirements of this legislation.
GERALD FORD
#
#
#
December 19, 1974
Dear Mr. Director:
The following bills were received at the White
House on December 19th:
S.J. Res 234
S. 2838
S. 3578
x
S. 184
X
S. 3341
S. 3615
S. 194
y
S. 3397
H.R. 3538
X
S. 1283
X
S. 3418
H.R. 14401
X
S. 1357
x
S. 3489
X
H.R. 15912
X
S. 2125
X
S. 3518
H.R. 16609
x
S. 2594
X
S. 3574
x
H.R. 16901
Please let the President have reports and
recommendations as to the approval of these
bills as soon as possible.
Sincerely,
Robert D. Linder
Chief Executive Clerk
GERALD R. FORD LIBRARY
The Nonorable Roy L. Ash
Director
Office of Management and Budget
Washington, D. C.