The Privacy Act of 1974: An Assessment. APPENDIX 4 TO The Report of The Privacy Protection Study Commission.. The Collection Limitation Principle

01/07/1977

The fourth principle of the Privacy Act is that there shall be limits on the type of information a record-keeping institution collects about an individual, as well as certain requirements with respect to the manner in which it may be collected. An agency may not collect whatever information it wishes, nor may it collect information in whatever manner it wishes. The principle is implemented by requiring that agencies (1) collect only information that is relevant and necessary to accomplish a lawful purpose; 12 (2) collect information to the greatest extent practicable directly from the subject individual; 13 (3) give every individual a Privacy Act Statement at the time individually identifiable information is requested of him;14 and, (4) in certain instances; refrain from collecting an individual's Social Security number15 and information relating to his exercise of First Amendment rights.16

The requirement to limit collection to information that is relevant and necessary to accomplish a lawful purpose of the agency seems to have resulted in a modest amount of revision and reduction of data-collection forms, and consequently a modest reduction in data collection itself. In contrast, the requirement that agencies collect information to the greatest extent practicable from the subject individual does not appear to have changed practices at all.

The required "Privacy Act Statement" seems not to have had much of an effect on the amount of information individuals are asked to provide about themselves or on their willingness to provide it. There appears to have been a slight reduction in the willingness of individuals to answer survey questions since passage of the Act, but this cannot be confidently attributed to the Privacy Act Statement.

In addition, there appears to be some troublesome ambiguity in the subsection of the Act that contains the "Privacy Act Statement" requirement. Subsection 3(e)(3) reads in part:

Each agency that maintains a system of records shall

(3)   inform each individual whom it asks to supply information

Some agencies have interpreted this to require a statement only when individually identifiable information is collected from the subject individual and not to require it when such information is collected from a third party. The Commission believes that a Privacy Act Statement should be provided to all individuals from whom individually identifiable information is collected including third parties.

On the other hand, the Privacy Act Statement must now be supplied or read each time individually identifiable information is collected, regardless of the frequency of contact between an agency and an individual. This is burdensome to the agency and can cause the Statement to be ignored by the individual. The purpose of the Statement is to provide the individual with enough information to allow him to judge whether or not to provide the information requested. There appears to be no useful purpose in doing this repeatedly if the individual has been provided with a copy of the Statement within a reasonable period of time prior to a follow-up request for information so long as the follow-up request is consistent with the original statement. Thus, the Commission believes that the burden on agencies could be safely reduced by requiring that the individual be given a Privacy Act Statement only if he had not already been given a retention copy within a reasonable period of time prior to a subsequent request for information from him.

A second problem with the Privacy Act Statement is that it tends to state the obvious and does not explicitly spell out other possible uses of the information. The Commission, consistent with its recommendations in other areas, believes that the Statement should describe those uses of information that could reasonably be expected to influence an individual's decision to provide or not to provide the information requested. Since the individual's decision may be influenced by the techniques used to verify the information he provides, the Statement should also include a description of the scope, techniques, and sources to be used to verify or collect additional information about him.

Providing a concise statement on uses and third-party sources may, upon occasion, prove to be more confusing than enlightening. Therefore, the Statement should, in addition, identify the title, business address, and business telephone number of a responsible agency official who can answer any questions the individual may have about the Privacy Act Statement.

The proscription on the collection of information about how an individual exercises his First Amendment rights appears to have had no noticeable effect on agency collection practices. The prohibition does not apply when an agency is expressly authorized to collect such information either by statute or by the individual, or where collection is "pertinent to and within the scope of an authorized law enforcement activity." [5 U.S.C. 552a(e)(7)JBecause virtually all government agencies can be said to be involved in some type of law enforcement, the latter exception, in particular, has tended to negate the prohibition. A more accurate, and hence more effective, way of stating the congressional intent would be to refer to "an authorized investigation of a violation of the law." This change would not prohibit an agency from collecting a specific item of information whose collection is expressly required by statute or expressly authorized by the individual to whom it pertains, or whose collection would be a reasonable and proper library, bibliographic, abstracting, or similar reference function. Section 7 of the Privacy Act, which attempts to limit collection of the Social Security number from individuals, also appears to have had little effect on agency practice. Its "grandfather clause," which allows agencies to continue to demand the number if they did so under statute or regulation prior to January 1, 1975, has encompassed almost all uses of the Social Security number at the Federal level.17