There is one area of public assistance and social services record keeping that seemed to merit the Commission's special attention: record keeping carried out in connection with Child Support Enforcement activities. The Commission promised to address this issue in its June, 1976 report on Federal Tax Return Confidentiality.
Although the recommendations thus far made in this chapter are intended to apply to Child Support Enforcement programs, they do not address all of the special record-keeping issues that arise in that particularly controversial area. Therefore, the Commission includes below a brief description of the program and several specific recommendations that apply only to it.
Part D of Title IV of the Social Security Act authorizes Federal grants to the States for the purpose of locating absent parents who have defaulted on their child support obligations, for establishing the paternity of children for whom child support may be owed, and for enforcing child support obligations. To be eligible for Federal grants for these purposes, a State must establish a State Child Support Enforcement agency and a State Parent Locator Service within the agency. The agency's functions may be performed either by that agency or by law enforcement officials (e.g., district attorneys, State attorneys general) who have entered into cooperative agreements with the agency. The agency may also contract with private investigatory agencies for assistance in locating absent parents.
In addition to providing Federal financial assistance for State child support enforcement activities, Title IV-D established an Office of Child Support Enforcement within the Department of Health, Education, and Welfare to oversee States' administration of the program, as well as a Federal Parent Locator Service within that Office to aid in the location of absent parents. Although the primary purpose of the Child Support Enforcement program is to find the parents of children who are AFDC recipients and to see that they fulfill their parental obligations, the State Child Support Enforcement agencies and the Federal Parent Locator Service (PLS) may make their services available, for a fee, to individuals who are not AFDC recipients.
Title IV-D of the Social Security Act does not prescribe statutory standards for the safeguarding of information obtained by State Child Support Enforcement agencies. Federal regulations provide that States, pursuant to State statutes which impose legal sanctions, shall apply the same limitations on the use or disclosure of information concerning applicants and recipients of child support enforcement services as are prescribed for AFDC records. [45CF.R. 302.18] Additionally, the regulations require that all requests for information from a State to the Federal Parent Locator Service shall include a statement, signed by the head of the State Child Support Enforcement agency or his designee, affirming both that informa-tion obtained from the Federal Parent Locator Service will be treated as confidential and safeguarded pursuant to the requirements of the AFDC confidentiality regulations, and that the State agency will take protective measures to safeguard information transmitted to and received from the Federal Parent Locator Service [45 CF. R. 302.70(e)(2) and (3)].
The Commission finds that these regulations do not adequately safeguard the information collected by State IV-D agencies about the individuals being sought. The regulations only place limits on the use and disclosure of information about absent parents obtained from the Federal PLS, and do not apply to information regarding absent parents obtained by State agencies from State and local sources.
Information on missing parents is collected by State and local AFDC offices, and by the State Child Support Enforcement agencies. Both ask a client for basic identifying information such as the name, address, and Social Security number of the absent parent. In addition, clients may be asked about the absent parent's work and social life. For example, in Michigan a "support specialist" responsible for locating an absent parent must, as the first step of the location procedure, ask for information including, but not limited to, the absent parent's employment, occupational skills, work shift, date and place of marriage, physical description, names of creditors, names and addresses of friends or relatives, arrest record, and memberships in fraternal organizations. In addition to the information obtained from the client, and from the AFDC office, the record will include any information that can be gathered from other sources contacted in the course of the location effort.24
The Commission believes that the standards regarding confidentiality currently contained in regulations should be embodied in statute, so that they can be changed only by the legislative process, and not at the discretion of agencies. Moreover, the Commission believes that information about absent parents, as well as AFDC clients, should be subject to these statutory safeguards, and that the use of information about absent parents obtained from the Federal Parent Locator Service should be confined to the purposes for which the State acquired it.
Consistent with these findings, the Commission recommends:
That the use and disclosure of information obtained on applicants for and recipients of child support services as well as on alleged absent parents should be subject to the same statutory disclosure policy called for by Recommendation (10). Furthermore, Congress should require by statute that information obtained by State agencies from the Federal Parent Locator Service regarding absent parents may not be disclosed for purposes unrelated to the establishment of paternity, the location of the parent, or enforcement of child support obligations, except to the extent that disclosures of such information result from court proceedings.
The Commission also believes that Section 454(8) of the Social Security Act, which mandates that States utilize all sources of information and available records should be qualified to except explicitly the classes of information which may not be disclosed under State or local laws. If, in the judgment of a State legislature, the nature of certain data warrants holding that data confidential, the State Parent Locator Service should be required to respect the legislature's judgment, and should not be held not to be in compliance with Federal law for doing so. For example, the Commission learned during its Tax Return Confidentiality hearings that an Ohio tax statute [Ohio Revenue Code §5747.18] holds data maintained by the State Department of Taxation confidential. The Ohio Department testified before the Commission that it refuses requests for information from the State PLS. In written testimony a representative of the Ohio Department of Taxation noted:
. . . some provisions of the Federal welfare laws, specifically the parent-locator service provisions, encourage, if not require, efforts to use State tax department files. This latter is a dangerous precedent, because once that first breach of confidentiality is legitimized, the legislative branch of both State and Federal governments will find it easier to create other special cases. Such legislation should not be encouraged.25
The Commission concurs with this opinion and therefore recommends:
That the Congress amend Title IV-D of the Social Security Act to provide that the provision requiring States to "utilize all sources of information and available records" [Section 454(8)] not be construed to override State and local laws prohibiting the disclosure of certain types of information unless these laws have made provision for disclosure to the State Parent Locator Service.
The Commission also objects to Section 453(e)(2) of the Social Security Act which provides that, notwithstanding any other provision of law, Federal agencies shall supply information to the Federal Parent Locator Service (PLS). The only exceptions to this provision are for disclosures to the Federal PLS that would contravene national security or the confidentiality of census data.26 The Commission believes that when other provisions of law dictate that the use or disclosure of certain information be restricted, and when such provisions do not explicitly allow, by exception, for release of information to the Federal PLS, the Federal PLS should not be permitted access to that information. Furthermore, the Commission strongly believes that Federal agency information available to the PLS should be limited to the minimum necessary to aid in the location of absent parents, and should not involve additional information regarding, for example, the individual's income or assets.27 Accordingly, the Commission recommends:
That the Congress amend Section 453(e)(2) of Title IV-D of the Social Security Act to provide that Federal agencies maintaining information which, by other provisions of law, has been deemed to be confidential, shall not be required to provide that information to the Federal Parent Locator Service (PLS), unless disclosure to the Federal PLS is specifically authorized by a Federal statute that specifies the agency that may disclose information to the PLS; and further, that the Congress limit disclosures of information by Federal agencies to the PLS to the minimum necessary to locate the absent parent (e.g., place of employment and home address).
These two recommendations reflect the Commission's conviction that no law regarding the gathering of information should override all other laws regarding confidentiality. Instead, policy makers formulating laws on the disclosure of the kinds of records that the PLS, would find useful should be required to decide explicitly whether the PLS should have access to each type of record. Such a decision would require legislators to weigh all of the considerations involved, including the interests at stake in child support enforcement, and would assure that child support enforcement is not automatically viewed as paramount to all other considerations.
Technical Assistance for the States
Lacking any comprehensive Federal and State fair information practice policy, Congress and the Federal agencies have been compelled to develop policies in special areas where the absence of record-keeping policies is especially risky, most notably in the areas of alcohol and drug abuse treatment and child abuse and neglect prevention and treatment. In these two areas, Congress has enacted statutes and Federal agencies have developed regulations dealing with permissible uses and disclosure of records about individuals. The Commission's recommended measure on disclosure, Recommendation (10), would supersede other Federal policies on confidentiality, except in the case of alcohol and drug abuse treatment records, and would require States to enact their own comprehensive confidentiality statutes. Although some may contend that this measure would ultimately lessen privacy protection for clients, the Commission expects that States are as sensitive as the Federal government has been to the need to control carefully the dissemination of such information.
Nevertheless, not all of the States have had extensive experience in preparing this kind of legislation. Many Federal agency employees are intimately familiar with the policy issues that arise not only in the two areas cited above, but also in other areas where sensitive records are created with the help of Federal financing. The States, particularly those for which fair information practice is a novel concept, may find this experience most useful.
Therefore, the Commission recommends:
That the Congress require the heads of all Federal agencies funding public assistance and social services programs to provide assistance to the States in developing their fair information practice statutes.
The Commission feels that such assistance could be provided by, for example, a committee made up of representatives of all appropriate Federal agencies which would meet with State legislators and other concerned citizens to advise them in developing the State statutes required by the recommended measures. Assistance might also take the form of grants to consortiums made up of representatives of clients' groups, State and local government agencies, and State legislatures to serve as information clearinghouses, and to draft model statutes for the States.
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Adoption of the Commission's recommendations with respect to public assistance and social services record keeping would, in the Commission's judgment, simplify the administration of the many programs and provide a reasonable balance between the demands of effective program administration and legitimate rights and interests of clients.