The Privacy Act of 1974: An Assessment. APPENDIX 4 TO The Report of The Privacy Protection Study Commission.. The Exclusivity Issue


While the relation between the Freedom of Information Act and the Privacy Act is quite straightforward when the issue is whether a record about an individual may be disclosed to a member of the public, it is much less so when the individual, to whom the record pertains, ask for access to it. Should he be able to submit his request under either of the two Acts? Or should he be compelled to submit it under the Privacy Act?

The question is important because the answer to it can have a great impact on how much access an individual can have to the records an agency maintains on him. An individual seeking access to an investigatory file, for example, may be able to obtain much broader access if he requests it under the the Freedom of Information Act, because the corresponding Privacy Act exemption applies to entire systems of records rather than to the records or portions of the records they contain. Thus, under the Privacy Act, an agency is absolved of any obligation to consider the merits of a request for records in light of the particular documents involved; it is enough for the agency to claim that they are maintained in an exempt system. In other circumstances, however, the individual may obtain broader access under the Privacy Act, since the Privacy Act, unlike the FOIA, does not allow an agency to withhold a record on the grounds that it constitutes a purely internal government communication.

The controversy on this matter accounts in large part for the sponginess of the data presented earlier on the numbers and types of requests for access to records since the Privacy Act took effect. It was sparked by a July 30, 1975 Justice Department letter to the Internal Revenue Service declaring that the Privacy Act should be the exclusive vehicle for an individual who wants access to a record about himself. The Justice Department letter, which OMB circulated to all the agencies, came to the attention of the then Chairman of the Senate Subcommittee on Administra-tive Practices and Procedures (Committee on the Judiciary), who strongly disagreed with it and asked the Department to reconsider its position. Justice responded by amending its own Privacy Act rules to provide that, while it would treat the Privacy Act as the exclusive vehicle for an individual asking for a record about himself, it would also make available to him, at its discretion, all records within the scope of his request to which he would have been entitled to have access under the Freedom of Information Act. [28 C.F.R. 16.57]

OMB, in a supplement to its Privacy Act Guidelines, subsequently adopted a slightly different position. It urged that agencies not deny an individual access to any record about himself that is exempt from the Privacy Act's individual access requirement but "which would otherwise have been required to be disclosed [to him] under the Freedom of Information Act" [40 F.R. 56742 (December 4, 1975)] (emphasis added). OMB, however, stopped short of stating that the agencies must grant such access. Furthermore, as to the handling of such requests, OMB advised the agencies to

. . . treat requests by individuals for information pertaining to themselves which specify either the FOIA or the Privacy Act (but not both) under the procedures established pursuant to the Act specified in the request. When, the request specifies, and may be processed under, both the FOIA and the Privacy Act, or specifies neither Act, Privacy Act procedures should be employed. The individual should be advised, however, that the agency has elected to use Privacy Act procedures, of the existence and general effect of the Freedom of Information Act, and the differences, if any, between the agency's procedures under the two Acts (i.e., fees, time limits, access and appeals). [40 F.R. 56743 (December 4, 1975)]

In the legislative history of the Privacy Act, there is no evidence that the Congress intended to make it the exclusive vehicle for individuals seeking access to records about themselves. The Justice Department argument for doing so rested, in the main, on obvious differences between the Privacy Act and FOIA exemption provisions; and on its belief that allowing concurrent application of the two statutes, or, alternatively, allowing an agency official to decide which Act should apply, would be both unreasonable and impossible to administer. In some cases, however, the position Justice took could allow a third-party member of the public broader access to a record about an individual than the individual himself would have under the Privacy Act.

The actual practice of the agencies has varied. Some have ignored OMB's guidance, treating all requests by individuals for records about themselves as Privacy Act requests, while others have done their best to follow the procedure suggested by OMB.