The Privacy Act of 1974: An Assessment. APPENDIX 4 TO The Report of The Privacy Protection Study Commission.. Appendix B. An Illustrative Revision of the Privacy Act of 1974.

01/07/1977

The following illustrates how the Privacy Act of 1974 might be revised to incorporate the changes suggested in Chapter 3 of this volume and in Chapter 13 of Personal Privacy in an Information Society, the Commission's final report to the President and the Congress. It also reflects the majority of the recommendations on research and statistics in Chapter 15 of the Commission's final report, omitting only those that require specialized statutes. While this proposed revision is also intended to serve as a model for privacy legislation in general, Section 1 would replace all of 5 U.S.C. §552a, the Privacy Act of 1974. Section 2 would amend the Freedom of Information Act to make the revised Privacy Act the primary vehicle for an individual seeking access to records about himself. All references to "section 552 of this title" are references to the Freedom of Information Act.

Section 1. Title 5, United States Code, is amended by retitling and replacing all of section 552a with the following text in this section-

§552a. Information 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 "record" means any item, collection, or grouping of information about an individual including, but not limited to:

(A) normal directory information, such as the individual's name, address, telephone number, business address, or similar information,

(B) other numbers, symbols, fingerprints, voiceprints, pho-tographs, or identifying particulars assigned to, or associated with, the individual,

(C) information relating to the individual's background, education, finances, health, criminal history, or employ-ment history, or

(D) any other attributes, affiliations, or characteristics associated with, or assigned to, the individual; (4) the term "individually identifiable record" means a record which could be reasonably expected to be uniquely associated with the identity of the individual or individuals to whom it pertains;

(5) the term "research or statistical record" means an individually identifiable record which is collected or maintained by a Federal agency or pursuant to a Federal research contract or grant, or a subcontract thereof, for a research or statistical purpose only and which is not used, in whole or in part, in individually identifiable form to make any decision or to take any action directly affecting the individual to whom the record pertains (except within the context of the research plan or protocol or as provided by section 8 of title 13);

(6) the term "accessible record" means an individually identifi-able record, except a research or statistical record, which is:

(A) systematically filed, stored, or otherwise maintained according to some established retrieval scheme or indexing structure and which is, in practice, accessed by use of, or reference to, such retrieval scheme or indexing structure for the principal purpose of retrieving the record, or any portion thereof, on the basis of the identity of, or so as to identify, an individual, or

(B) otherwise readily accessible because:

(i)the agency is able to access the record without an unreasonable expenditure of time, money, effort, or other resources, or

(ii) the individual to whom the record pertains is able to provide sufficiently specific locating informa-tion so as to render the record accessible by the agency without an unreasonable expenditure of time, money, effort, or other resources;

(7) the term "system," or the term "subsystem," means any collection or grouping of individually identifiable records which is systematically filed, stored, or otherwise maintained according to some established retrieval scheme or indexing structure and which is, in practice, accessed by use of, or reference to, such retrieval scheme or indexing structure for the principal purpose of retrieving the record, or any portion thereof, on the basis of the identity of, or so as to identify, an individual or individuals;

(8) the term "maintain" includes collect, obtain, maintain, possess, process, use, disseminate, or disclose;

(9) the term "routine use" means the use or disclosure of an individually identifiable record for a purpose which is:

(A) compatible with the purpose for which the information in the record was collected or obtained, and

(B) consistent with the conditions or reasonable expecta-tions of use and disclosure under which the information in the record was provided, collected, or obtained;

(10) the term "collateral use" means the use or disclosure of an individually identifiable record for a purpose which:

(A) would not be considered a routine use as defined by subsection (a)(9) of this section, and

(B) is specifically authorized by statute, provided, however, that such statute:

(i) was enacted after January 1, 1975, and

(ii)establishes specific criteria for the use or disclosure of specific types of information;

(11) the term "medical record" means an individually identifiable record relating to an individual's medical history, diagnosis, condition, treatment, or evaluation which is created or maintained by a medical-care provider; and

(12) the term "medical-record information" means information obtained from a medical record or from the individual patient, his spouse, parent, or guardian for the purpose of making a non-medical decision about him.

(b) ACCESS TO RECORDS-Each agency that maintains accessible records shall make those records available to the individuals to whom they pertain as follows:

(1) Except as provided under subsections (b)(3) and (b)(5) of this section, each agency that maintains an accessible record shall, upon receipt of a request which reasonably describes such accessible record from the individual to whom it pertains:

(A) After receipt of satisfactory assurance that the requesting individual is who he purports to be-

(i) make such accessible record, or a copy of all or any portion thereof, available to that individual in a form which is comprehensible to him and which reflects, as accurately as can be reasonably expect-ed, the context or manner in which the agency maintains and uses that record; and

(ii) to the extent that the agency can be reasonably expected to be aware of substantially similar or derivative versions of such accessible record which it maintains, and to the extent that such substan-tially similar or derivative versions are themselves accessible records, make such substantially similar or derivative versions of such accessible record, or a copy of all or any portion thereof, available to that individual in a form which is comprehensible to him and which reflects, as accurately as can be reasonably expected, the context or manner in which the agency maintains and uses that record.

(B) Upon request by an individual who has been granted access to an accessible record pursuant to subsection (b)(1)(A) of this section, the agency shall provide the individual with an accounting of the actual uses and disclosures of such record made within a reasonable period of time prior to the request as follows:

(i)The agency shall provide the individual with an accounting of all of the prior recipients of such record to whom the agency could be reasonably expected to propagate a correction pursuant to subsection (f) of this section.

(ii) The agency shall provide the individual with an accounting of any other prior recipients of such record of which the agency could be reasonably expected to be aware but to whom the agency could not be reasonably expected to propagate corrections pursuant to subsection (f) of this section.

(iii) In providing the accounting pursuant to subsec-tions (b)(1)(B)(i) and (b)(1)(B)(ii) of this section, the agency shall take reasonable affirmative steps to inform the individual, in a form comprehensible to him, of:

(I) the date, nature, and purpose of each disclosure, and

(II) the name and address of the person or agency to whom the disclosure was made. (2) When an agency grants an individual access to an accessible record or an accounting of the uses and disclosures of such record pursuant to subsection (b)(1) of this section, the individual to whom the record pertains may, upon his request, be accompanied by a person of his own choosing, except that the agency may require the individual to furnish a written statement authorizing discussion or disclosure of that individ-ual's record, or its uses and disclosures, in the accompanying person's presence.

(3) Nothing in this section shall be construed as requiring an agency to grant an individual access to information within a record or information that accounts for the uses and disclo-sures of a record, which information is:

(A) --

(i)specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and (ii) is, in fact, properly classified pursuant to such Executive order;

(B) investigatory information compiled for law enforcement purposes, but only to the extent that the production of such information would:

(i)interfere with enforcement proceedings,

(ii) deprive a person of a right to a fair trial or an impartial adjudication,

(iii) constitute an unwarranted invasion of personal privacy,

(iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confi-dential information furnished only by the confi-dential source,

(v)disclose investigative techniques and procedures, or

(vi) endanger the life or physical safety of law enforce-ment personnel;

(C) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;

(D) information compiled in reasonable anticipation of civil action or proceeding;

(E) 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 who furnished informa-tion to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence;

(F) testing or examination material used soley to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process;

(G) evaluation material used to determine potential for promotion 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 confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence; or

(H) authorized by statute to be withheld from the parent or legal guardian of the individual to whom the information pertains.

(4) Any reasonably segregable portion of an accessible record shall be provided to any individual requesting such record pursuant to subsection (b)(1)(A) of this section, and any reasonably segregable portion of the accounting of the uses and disclosures of such record shall be provided to any individual requesting such accounting pursuant to subsection (b)(1)(B) of this section, after deletion of the portions which are exempt under subsection (b)(3) of this section.

(5) While it may not deny access to an accessible record to the individual to whom the record pertains, except as provided in subsection (b)(3) of this section, an agency may establish a procedure for disclosure, to a person designated by the individual to whom the information pertains, of a medical record or medical-record information pursuant to subsection (b)(1) of this section.

(6) -

(A) Upon receipt of a request made pursuant to subsection (b)(1) of this section for access to records or to the accounting of the actual uses and disclosures thereof, an agency shall:

(i)determine within 30 days (excluding Saturdays, Sundays, and legal public holidays) after receipt of any such request whether it will comply with such request;

(ii) at the time of such determination notify the individual making such request of the determina-tion, including, if any part of such request is denied, the reasons therefor and the procedures for judicial review of that determination pursuant to subsection (k)(1)(B) of this section; and

(iii)make available to the individual within a reason-able period of time such records and accountings as the agency determines it will provide.

(B) Any individual making a request pursuant to subsection (b)(1) of this section for access to records or to the accounting of the actual uses and disclosures thereof shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of subsection (b)(6) of this section.

(c) AMENDMENT OF RECORDS-Each agency that maintains accessible records shall permit the individuals to whom the records pertain to request amendment of those records as follows:

(1) When an individual has been granted access to an accessible record, or a substantially similar or derivative version thereof, pursuant to subsection (b)(1) of this section, the agency shall also permit that individual to request amendment of that record, or the substantially similar or derivative versions thereof, and:

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such request; and

(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, or the substantially similar or derivative versions thereof, in accordance with his request, the reason for the refusal, the procedures estab-lished 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 title and business address of that official;

(2) The agency shall permit the individual who disagrees with its refusal to amend his record, or the substantially similar or derivative versions thereof, 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;

(3) If, after the review made pursuant to subsection (c)(2) of this section, the reviewing official also refuses to amend the record, or the substantially similar or derivative versions thereof, in accordance with the individual's request, the agency shall:

(A) 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

(B) notify the individual of the provisions for judicial review of the reviewing official's determination under subsec-tion (k)(1)(A) of this section;

(4) In any disclosure which contains information about which the individual has filed a statement of disagreement pursuant to subsection (c)(3) of this section and which occurs after the filing of such statement, the agency shall:

(A) clearly identify any portion of the record which is disputed, and

(B) 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 information has been disclosed.

(d) LIMITATIONS ON DISCLOSURE-No agency shall disclose any individually identifiable record by any means of communication to any person or to another agency unless such disclosure would be:

(1) pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains;

(2) required under section 552 of this title;

(3) to those officers and employees of the agency who have a need for the record in the performance of their duties, provided, however, that such disclosure is:

(A) necessary and proper for the performance of the agency's own mission and functions, and

(B) a routine use as defined by subsection (a)(9) of this section;

(4) to a person other than an officer or employee of the agency, provided, however, that such disclosure is:

(A) a routine use as defined by subsection (a)(9) of this section, and

(B) certified by the designated official of subsection Ú) of this section as meeting the requirements in subsection (a)(9) of this section;

(5) a collateral use as defined by subsection (a)(10) of this section, provided, however, that such disclosure is certified by the designated official of subsection Ú) of this section as meeting the requirements in subsection (a)(10) of this section;

(6) 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;

(7) 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, or for evaluation by the Administrator of General Services or his designee to determine whether the information has such value;

(8) to another agency or to an instrumentality of any governmen-tal jurisdiction within or under the control of the United States, or to a foreign government when specifically autho rized by treaty or statute, 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 maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(9) to a person pursuant to a showing of compelling circumstanc-es affecting the health or safety of any individual, provided that upon such disclosure notification thereof is transmitted to the last known address of the individual to whom the record pertains;

(10) 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;

(11) to a Member of Congress in response to an inquiry from that Member which is made at the express request of:

(A) the individual to whom the record pertains and that individual is a constituent of the Member, or

(B) a relative or legal representative of the individual to whom the record pertains, and

(i)the individual, or the requesting relative or legal representative of the individual, to whom the record pertains is a constituent of the Member, and

(ii) the individual to whom the record pertains is incapacitated or otherwise clearly unable to re-quest the Member's assistance himself,

(12) to the Comptroller General, or any of his authorized represen-tatives, in the course of the performance of the duties of the General Accounting Office;

(13) pursuant to the order of a court of competent jurisdiction; or (14) notwithstanding the provisions of subsections (d)(1,3,4,5,7,8,9, 10,11,12,13) of this section, for use as a research or statistical record, provided, however, that the agency:

(A) determines that such use or disclosure is consistent with the conditions or reasonable expectations of use and disclosure under which the information in the record was provided, collected, or obtained;

(B) determines that the research or statistical purpose for which the use or disclosure is to be made:

(i) cannot be reasonably accomplished unless the information is provided in individually identifiable form; and

(ii)warrants the risk to the individual which addition-al exposure of the information in the record in individually identifiable form might bring;

(C) takes reasonable affirmative steps to assure that the recipient:

(i) will take adequate steps to comply with the requirements of subsection (e)(1)(E) of this sec-tion; and

(ii)will remove or destroy the individual identifier or identifiers associated with the record or records at the earliest time at which such removal or destruction can be reasonably accomplished consistent with the purpose of the research or statistical project;

(D) prohibits any subsequent use or disclosure of the record in individually identifiable form without the agency's express authorization; and

(E) secures a written statement attesting to the recipient's understanding of, and willingness to abide by, the conditions of subsection (d)(14) of this section in those instances in which the recipient is not an officer or employee of the agency.

(e) COLLECTION AND MAINTENANCE OF INFORMATION--

(1) Each agency that collects or maintains individually identifiable records shall:

(A) collect information to the greatest extent practicable directly from the individual to whom the information pertains when such information may affect determina tions about an individual's rights, benefits, or privileges under Federal programs;

(B) take reasonable affirmative steps to enable individuals from whom it requests information about themselves or others to decide whether to supply that information in as informed and uncoerced a manner as is reasonably possible and, to that end, the agency shall make available to the individual, unless the individual has already been notified within a reasonable period of time prior to the request and has been offered a retention copy of, the following:

(i) the authority for the solicitation of the information;

(ii) whether such disclosure is mandatory or voluntary and the consequences to the individual of not providing the information;

(iii) the principal purpose or purposes for which the information is intended to be used;

(iv) any routine or collateral uses of the information which could be reasonably expected to influence an individual's decision, including the possibility of recontact when the routine or collateral use is for a research or statistical purpose;

(v) the types of additional information, techniques, and sources that may be used to verify the information;

(vi) the title, business address, and business telephone number of a responsible agency official who can assist an individual in his decision or answer any questions which an individual may have; and

(vii) when information is collected for a research or statistical purpose:

(I) the possibility, if any, that the information may be used or disclosed in individually identifiable form for additional research or statistical purposes,

(II) any requirements for disclosure of the info-mation in individually identifiable form for other than research or statistical purposes, and

(III) that if any such required disclosure is made for other than a research or statistical pur-pose, the individual will be promptly notified pursuant to subsection (g)(3) of this section. (C) collect or 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;

(D) maintain all records which are used by the agency in making any determination about any individual with such accuracy, timeliness, completeness, and relevance as is reasonably necessary to assure fairness in the determination, although this provision shall not prohibit the CIA, or any agency or component thereof which performs as its principal function any activity relating to the enforcement of criminal laws, from maintaining unverified or otherwise potentially inaccurate, untimely, incomplete, or irrelevant information, provided, how-ever, that such information is clearly identified as such to all users or recipients of that information;

(E) establish reasonable administrative, technical, and phys-ical safeguards to assure the integrity, confidentiality, and security of such individually identifiable records so as to minimize the risk of substantial harm, embarrass-ment, inconvenience, or unfairness to the individual to whom the information pertains; and

(F) take reasonable affirmative steps to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record.

(2) No agency, or officer, employee, agent, or contractor thereof, shall collect or maintain information:

(A) describing the content of any publication, speech, or other expression of belief or argument by an individual in the exercise of rights guaranteed by the First Amendment, unless such information is compiled pursu-ant to an authorized investigation of sedition or espio-nage under sections 792 through 797 and sections 2381 through 2386 of title 18, or unless such information would be legally admissible evidence in a criminal prosecution and is compiled pursuant to an authorized investigation of a violation of the criminal laws of the United States;

(B) describing the forum in which an individual publishes, speaks, or otherwise exercises his First Amendment rights of speech, association, or religion, unless such information is compiled pursuant to an authorized investigation of a violation of the laws of the United States; or

(C) otherwise describing the way any individual exercises his rights guaranteed by the First Amendment, except to the extent that such information is limited to collecting and maintaining the time, place, and observed associa-tions of an individual which are compiled pursuant to and in the course of an authorized investigation of a violation of the laws of the United States.

(D) The provisions of subsections (e)(2)(A), (e)(2)(B), and (e)(2)(C) of this section shall not prohibit an agency from collecting or maintaining:

(i) a specific item of information which is expressly required by statute, or which is expressly autho-rized by the individual to whom it pertains, to be collected or maintained, or

(ii) information the collection or maintenance of which would be a reasonable and proper library, bibliographic, abstracting, or similar reference function.

(f) PROPAGATION OF CORRECTIONS--

(1) Each agency that maintains individually identifiable records shall attempt to assure the accuracy, timeliness, and complete-ness of the records maintained by the sources and the prior recipients of the information in its records by taking reason-able affirmative steps to furnish such sources and prior recipients who have, within a reasonable period of time, provided information to, or received information from, an individually identifiable record maintained by the agency of all:

(A) corrections of that individually identifiable record made pursuant to subsection (c)(1)(B)(i) of this section, (B) statements of disagreement regarding information con-tained in that individually identifiable record made pursuant to subsection (c)(3) of this section, together with, if such exists, the corresponding statement of the agency's position made pursuant to subsection (cx4)(B) of this section, and

(C) corrections of erroneous information contained in that individually identifiable record which are normal up-dates, changes, or modifications of that information made in the performance of the agency's functions, provided, however, that:

(i) such corrections are made pursuant to subsection (e)(1)(D) of this section,

(ii)such corrections could be reasonably expected to affect the outcome of any determination on the individual if known to either the sources or prior recipients of the erroneous information, and

(iii)the sources and prior recipients of the erroneous information could not be reasonably expected by the agency to otherwise become aware of such corrections through normal means.

(2) The agency shall not be required to notify, pursuant to subsections (f)(1)(A), (f)(1)(B), and (f)(1)(C) of this section:

(A) a prior recipient who received the erroneous information pursuant to section 552 of this title, or

(B) a source of the erroneous information who provided the information as an individual acting on his own behalf and not in an official capacity as a representative, officer, employee, or agent of an agency or other organization.

(3) Notwithstanding the provisions of subsection (f)(2) of this section, the agency shall furnish to any person specifically named by the individual to whom they pertain, corrections or statements of disagreement or agency position as enumerated in subsections (f)(1)(A), (f)(1)(B), and (f)(1)(C) of this section.

(g) RESEARCH OR STATISTICAL RECORDS--

(1) Except as provided in subsections (d)(2), (d)(6), and (d)(14) of this section, no agency shall use or disclose a research or statistical record, or any portion thereof, in individually identifiable form without the authorization of the individual to whom the record pertains unless:

(A) the agency reasonably believes that such use or disclo-sure will forestall continuing or imminent physical injury to an individual, provided that the information disclosed is limited to that information necessary to secure the protection of the indivdual who may be injured;

(B) the record is furnished in compliance with a judicial order, including a search warrant or lawfully issued subpoena, and the purpose of the judicial order is to assist inquiry into an alleged violation of law by a researcher or an institution or agency maintaining research or statistical records, provided that:

(i) any record so disclosed shall not be used as evidence in any administrative, legislative, or judicial proceeding against anyone other than the researcher or research entity,

(ii) any record so disclosed shall not be used as evidence (or otherwise made public) in such a manner that the subject of the research may be identified, unless identification of an individual research subject is necessary to prove the violation of law, and

(iii) an individual identified in any record to be made public in individually identifiable form shall be given notice prior to such publication and may contest the necessity of such publication before the administrative, legislative, or judicial tribunal authorizing such publication, pursuant to subsec-tion (k) of this section;

(C) the record is disclosed in individually identifiable form for the purpose of auditing or evaluating a Federal research program and such an audit or evaluation is expressly authorized by Federal statute; or

(D) the record is disclosed to the National Archives and Records Service pursuant to section 2103 of title 44.

(2) If a research or statistical record is disclosed under any condition other than those provided under subsection (gxl) of this section, the individual research subject or subject identi-fied by the record disclosed may seek, against the person, institution, or agency disclosing the record, the person, institution, or agency seeking disclosure, and, in the case of disclosure pursuant to a court order, the person who applied for such an order, damages, injunctive relief, or any other relief a court may deem proper pursuant to subsection (k) of this section.

(3) Each agency that collects or maintains research or statistical records shall take reasonable affirmative steps to notify an individual whenever a research or statistical record pertaining to him is disclosed in individually identifiable form without:

(A) a prohibition on further use or disclosure, and

(B) assurance that the record will not be used to make any decision or take any action directly affecting the individual to whom it pertains.

(h) GENERAL NOTICE OF AGENCY SYSTEMS, POLICIES, AND PRACTICES-

(1) Each agency that maintains individually identifiable records shall publish in the Federal Register at least annually a notice which describes in detail, in terms of systems and subsystems that most accurately reflect the context or manner in which the agency uses the information, the existence and character of such systems and subsystems, which notice shall include:

(A) the name and location of each system or subsystem, as well as any substantially similar or derivative systems or subsystems;

(B) the authority for the maintenance of the system or subsystem;

(C) the categories of individuals on whom records are maintained in the system or subsystem;

(D) the categories of information or data items maintained in the system or subsystem;

(E) each use or disclosure of the records contained in the system or subsystem, including the categories of users and the purposes of such use or disclosure;

(F) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the information maintained in the system or subsystem;

(G) the title, business address, and business telephone number of the agency ofFicial responsible for the system or subsystem;

(H) the agency procedures whereby an individual can request:

(i)access to records pertaining to him in the system or subsystem, and

(ii) amendment of such records; and

(I) the categories of sources of information in the system, except to the extent that material so published would be information to which an individual would be denied access under subsections (b)(3)(A) and (b)(3)(B).

(2) The Office of the Federal Register shall annually compile and publish the notices published pursuant to subsection (h)(1) of this section and the rules published pursuant to subsection Ü) of this section in a form available to the public at low cost and which is indexed, arranged, or otherwise prepared to enable ease of use and reference by the public.

(i) RIGHTS OF PARENTS AND 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 incompe tent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.

(j) AGENCY IMPLEMENTATION-

(1) The head of each agency shall designate one ofFicial with the authority to oversee the agency's implementation of this section, and such designated official shall:

(A) be the head of an ofFice designated or created by the agency head, with as many components, field offices, or other supporting structures and staff as the agency head deems necessary,

(B) issue such instructions, guidelines, and standards, and make such determinations, as are necessary for the implementation of this section,

(C) take reasonable affirmative steps to assure that all agency employees and ofFicials responsible for the collection, maintenance, use, and dissemination of individually identifiable records are aware of the requirements of this section, and

(i)the instructions, guidelines, standards, and deter-minations, issued pursuant to subsection (j)(1)(B) of this section,

(ii) the rules promulgated pursuant to subsection Ú)(2) of this section, and

(iii)the penalties for non-compliance.

(2) In order to carry out the provisions of this section, each agency that collects and maintains individually identifiable records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall:

(A) define reasonable times, places, and requirements for. identifying any individual who requests access to records, or the accounting of the uses and disclosures thereof, before the agency shall make those records, or the accounting of the uses and disclosures thereof, available to the requesting individual;

(B) establish procedures for the disclosure to an individual upon his request for records pertaining to him, including procedures, if deemed necessary, pursuant to subsection (b)(5) of this section, for the disclosure of information which would adversely affect the health of the individual to whom the records pertain;

(C) establish procedures for reviewing a request from an individual concerning the amendment of any records pertaining to that individual, for making a determina tion on the request, for an appeal within the agency of an initial adverse agency determination, and for whatev-er additional means may be necessary for each individu-al to be able to exercise fully his rights under this section; and

(D) establish fees to be charged, if any, to any individual for making copies of records pertaining to him, excluding the cost of any search for and review of the records.

(k) CIVIL REMEDIES--

(1) Whenever any agency:

(A) makes a determination under subsection (c) of this section not to amend an individual's record in accor-dance with his request, or fails to make such review in conformity with that subsection;

(B) refuses to comply with an individual request under subsection (b)(1) of this section;

(C) fails to maintain any individually identifiable record with such accuracy, relevance, timeliness, and complete-ness as is necessary to assure fairness in any determina tion 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,

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 (k)(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 reason-able attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(3)--

(A) In any suit brought under the provisions of subsection (k)(1)(B) of this section, the court may enjoin the agency from withholding the records, or the accounting of the uses and disclosures thereof, and order the production to the complainant of any agency records, or the accounting of the uses and disclosures thereof, improp-erly withheld from him. In such a case, the court shall determine the matter de novo. The court may examine the contents of any agency records, or any accounting of the uses and disclosures thereof, in camera to determine whether the records or any portion thereof, or any accounting of the uses and disclosures thereof, may be withheld under any of the exemptions set forth in subsection (b)(3) of this section, and the burden is on the agency to sustain its action.

(B) The court may assess against the United States reason-able 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 subsections (k)(1)(C) or (k)(1)(D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the court may order the agency to act in a manner consistent with this section, and, in addition, the United States shall be liable to the individual in an amount equal to the sum of:

(A) special and general damages sustained by the individual as a result of the failure under subsections (k)(1)(C) or (k)(1)(D) of this section, but in no case shall a person entitled to recovery receive less than the sum of $1,000 or more than the sum of $10,000 in excess of the dollar amount of any special damages; 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 Columbia, without regard to the amount in controversy, within 2 years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to the establishment of the liability of the agency to the individual under this section, the action may be brought at any time within 2 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 sustained as the result of a disclosure of a record prior to the effective date of this section.

(1) CRIMINAL PENALTIES-

(1) Any officer or employee of an agency, who by virtue of his employment or official position, has possession 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, willfully 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 main-tains any collection or grouping of records without meeting the notice requirements of subsection (h)(1) 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 any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.

(m) GOVERNMENT CONTRACTORS AND GRANTEES-

(1) Any contractor or recipient of a Federal grant, or any subcontractor thereof, who performs any function on behalf of a Federal agency which requires the contractor or grantee to maintain individually identifiable records shall be subject to the provisions of this section, except that this provision shall not apply to:

(A) the employment, personnel, or other administrative records which the contractor or grantee maintains as a necessary aspect of supporting the performance of the contract or grant but which bear no other relation to the performance of the contract or grant,

(B) individually identifiable records to which all of the following conditions apply:

(i) Such records are neither required nor implied by the terms of the contract or grant to be collected or maintained,

(ii) No representation of Federal sponsorship or association is made for such records, and

(iii) Except for authorized audits or investigations, such records will not be submitted or otherwise provided to the Federal agency with which the contract or grant is established.

(2) The agency with which the contract or grant is established shall, consistent with its authority, be responsible for ensuring that the contractor or grantee complies faithfully with the provisions of this section.

(3) For any contracts or grants agreed to on or after the effective date of this section to which subsection (m)(1) of this section applies:

(A) any such contractor or grantee, or any employee of such contractor or grantee, shall, for purposes of the criminal penalties of subsection (1) of this section, be considered to be an employee of the agency;

(B) any such contractor or grantee shall, for purposes of the civil remedies of subsection (k) of this section, be considered to be an agency, except that the damages, attorney fees, and litigation costs under subsections (k)(2)(B), (k)(3)(C), and (k)(4) shall be assessed against the contractor or grantee instead of against the United States; and

(C) no official or employee of any agency shall include, or authorize to be included, in any such contract or grant any provision indemnifying the contractor or grantee from the civil remedies of subsection (k) of this section.

(n) ARCHIVAL RECORDS-

(1) 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 purposes 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 main-tained 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 require-ments relating to records subject to subsections (h)(1)(A) through (h)(1)(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 (h)(1)(A) through (h)(1)(G) of this section.

(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 or subsystem in order to permit an evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals or the disclosure of information relating to such individuals, 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 Federal agency the number of records contained in any system or subsystem which were exempted under the provisions of subsection (b)(3) of this section during the preceding 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-

(1) Whenever an agency receives a request for access to records which could be processed either under the provisions of section 552 of this title or under the provisions of this section, the agency shall process such request under the provisions of this section, provided, however, that the individual shall always receive not only the information to which he is entitled under this section but also any additional information to which he would otherwise be entitled if the request were processed under section 552 of this title.

(2) No agency shall rely upon any exemption contained in section 552 of this title to withhold from an individual any record which is otherwise accessible to the individual under the provisions of this section.

(r) MAILING LISTS-- An individual's name and address may not be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.

Section 2. Technical amendment to section 552 of this title [the Freedom of Information Act] in order to maintain consistency with the new 552a(q).

Section 552(a)(3) of title 5, United States Code, is amended by replacing the first word "Except" with the words "Except as provided under subsection 552a(q) of this title, and except".