Personal Privacy in an Information Society. General Recommendations

07/12/1997

The above findings should make clear the advantages of establishing a comprehensible and generally applicable record-keeping policy to guide public assistance and social services programs at all levels. Such a policy would have to be enacted by the Congress, spelled out in Federal regulations, and overseen by Federal agencies. To the large and growing number of citizens who perceive welfare as a national problem, this is the obvious approach. Since most of the money for welfare comes from the Federal government, it has a strong responsibility for directing how the programs will be carried out. Furthermore, the Federal government, having created a patchwork of uncoordinated public assistance and social services programs and equipping them with inconsistent regulations, can fairly be charged with responsibility for bringing the record keeping of at least the federally assisted programs into alignment, and for assuring the fair use of records about their clients.

On the other hand, standardization always carries a price tag. It is difficult for any national policy to take full account of the particular needs of each of the States and the variety of arrangements the States have devised for providing public assistance and social services. Furthermore, a balance must always be struck between privacy and other goals and values, and the trade-off satisfactory to the citizens of one area may or may not be acceptable to the citizens of another area. The controversy over how private providers report individually identifiable data about Title XX clients to State agencies illustrates this problem.9 An added cost is that standardization inevitably stifles innovation.

After considering all of these arguments, the Commission concluded that the need for a Federal policy on record keeping by public assistance and social services agencies overwhelmingly outweighs the potential drawbacks. These drawbacks can be minimized by leaving the States significant latitude in formulating the specifics of a record-keeping policy within the guidelines imposed by Federal law.

Accordingly, the Commission recommends:

Recommendation (1):

(a) That the Congress enact a statute that requires each State, as a condition of the receipt of Federal financial assistance for public assistance and social services programs, to enact a fair information practice statute applicable to records about public assistance and social services clients of any agency administer-ing or supervising the administration of any federally assisted public assistance or social services program (the requirements of the State statute are described below);
(b) That Congress give a State two full State legislative sessions to enact the required statute before it is considered not to be in compliance with Federal law;
c) That the Congress specify in the statute the general principles of the fair information practice policy, leaving to the States some discretion to tailor specific means of implementing the principles to their own needs, where appropriate;
(d) That the Congress make the Secretary of Health, Education, and Welfare responsible for determining that each State has enacted the required State statute and that it has the characteristics required by Federal law. The Secretary should consult with the heads of other Federal agencies funding public assistance and social services programs in carrying out this responsibility;
(e) That every Federal agency responsible for overseeing the administration of a public assistance or social services program be required by Federal statute to review State compliance with the record-keeping requirements set forth in Federal and State statute;
(f) That the process that States use for formulating and enacting specific fair information practice requirements provide ample opportunity for public participation, including public hearings; and
(g) That appropriate sanctions and remedies, at the Federal and State level, be available to deal with violations of the statutorily prescribed requirements.

Adoption of this recommendation would achieve several ends. It would:

  • resolve most of the problems created by inconsistencies in Federal policy regarding the records of various programs while at the same time allowing the States a measure of flexibility in implementing the policy;
  • provide the same protections for all client records maintained by agencies that receive Federal financial assistance, includ-ing their records about clients of programs that are not federally assisted;
  • supersede with a single Federal and a single State statute the myriad laws that currently govern record-keeping practices, thereby substantially reducing the complexity which renders such laws ineffective;
  • remove the temptation for agencies to diversify their record-keeping practices in incompatible directions by embodying a uniform general policy in statute;
  • strengthen oversight by Federal agencies; and
  • provide legal sanctions and remedies to deal with violations.10

Simplicity and comprehensiveness are the goals of these general recommendations. Comments submitted to the Commission by many public agencies and private organizations attest that these goals are urgently desired. As the representative of one welfare agency noted in testimony before the Commission:

We strongly urge the adoption of the same standards for all the programs under consideration. It is sufficiently difficult to adminis-ter complex and varied programs, without having to be constrained by different standards for different programs. Not only is it confusing to staff' but to recipients who begin to view us as a "schizophrenic" agency.11

States will need a reasonable period of time-two legislative sessions-to formulate the recommended statute. Only after that time would a State not be in compliance with Federal law, if the Commission's recommenda-tion were adopted.

Because of the central role of the Department of Health, Education, and Welfare in funding and overseeing the administration of public assistance and social services programs, the Commission considers the HEW Secretary the appropriate person to assume primary responsibility for evaluating State compliance in enacting the recommended statute with, of course, the benefit of consultation with heads of other Federal agencies to assure coordination and understanding.

The Commission further believes that record keeping by government agencies and private providers that do not receive any Federal funding should also be subject to the fairness standards set forth for agencies receiving some Federal assistance, but the Commission acknowledges the fact that the Federal government cannot impose such standards on them. Therefore, the Commission recommends:

Recommendation (2):

That every State enact a statute applying the fair information practices required of agencies receiving Federal public assistance and social services funds to records of cash assistance and social services agencies that do not receive any Federal funding.