The Privacy Act of 1974: An Assessment. APPENDIX 4 TO The Report of The Privacy Protection Study Commission.. Exemptions from the Access Requirement

01/07/1977

There are three reasons for redesigning the Privacy Act's exemption provisions. First, abandoning the system of records approach as the trigger for the operational requirements of the Act necessitates some restructuring. Second, as explored in earlier chapters, the Commission found that the current exemptions encompass too many provisions of the Act and thus both permit and invite circumvention of its spirit. These findings led to the conclusion that certain types of information, not systems of records, should be exempted where necessary. Finally, having concluded that an individual should have access to the same amount of information about himself under either the Freedom of Information Act or the Privacy Act, the Commission looked for one set of standards for determining when access will not be granted. That objective, in the Commission's view, was best achieved by adopting the exemption strategy in the Freedom of Information Act and also by incorporating several of the FOIA's specific exemptions.

Although the major policy objectives reflected in the Privacy Act's current exemption strategy have been preserved in the proposed revision, the blanket exemptions in the current subsection 3(j), applicable to all records maintained by the Central Intelligence Agency or by any agency whose principal function is any activity pertaining to criminal law enforcement, have not been retained. [5 U.S.C 552a(j)] Thus, if the Commission's suggestions were adopted, those agencies would no longer be able to exempt themselves completely from requirements such as propagating corrections of records to prior recipients, reporting on new systems of records, and assuring the necessity and relevance of the information they collect.

The exemption opportunity in the current Act for information "maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18" has been retained to the extent that such information falls within new subsection (b)(3)(B), which exempts law enforcement information from the individual access requirement. Most of the other provisions of current subsection 3(k) have also been retained [5 U.S.C 552a(k)], although in a form which permits them to be invoked only for the purpose of restricting individual access. [(b)(3)] The suggested exemption provisions further incorporate a new subsection ((b)(3)(C] paralleling section (b)(8) of the Freedom of Information Act [5 U.S.C 552(b)(8)] which would permit financial regulators, such as the Comptroller of the Currency, to withhold certain records.

With respect to medical records and medical-record information [(b)(5)], the Commission has adopted the approach to special procedures recommended in its final report for private-sector medical-care providers. This approach, which the Department of Health, Education, and Welfare has already tested successfully, would allow designation by the individual of a lay representative to be the recipient of a medical record or medical-record information pertaining to him, thereby allowing the lay representative (perhaps a family member) to decide whether full disclosure to the individual may be harmful to him. In this way, the lay designee, rather than the agency, would make the judgment regarding full or partial disclosure. The Commission's suggested revision also expands on the current law by allowing agencies to withhold information from the parent or legal guardian of a minor individual to whom the information pertains when such withholding is authorized by statute. [(b)(3)(H)]

Perhaps the most important aspect of the suggested revision is that it adopts the Freedom of Information Act approach of treating exemptions as available defenses to be invoked, where applicable, on a case-by-case basis, in contrast to the current Privacy Act approach which allows exemptions to be claimed in advance for entire systems of records. The revision would also require that any portion of a record which is reasonably segregable from the exempt portion must be supplied to the individual. [(b)(4)]