The Privacy Act of 1974: An Assessment. APPENDIX 4 TO The Report of The Privacy Protection Study Commission.. Impact on the Disclosure of Information

01/07/1977

Subsection 3(e)(4)(D) of the Privacy Act requires an agency to include in each annual system notice it publishes "each routine use of the records contained in the system, including the categories of users and purposes of such use." [5 U.S.C 552a(e)(4)(D)] The routine-use concept reflects a legislative compromise made shortly before the Privacy Act was passed. The Senate version of the Act would have required an individual's written consent before a record about him could be transferred from one agency to another, whereas the House version would have allowed all "housekeeping" disclosures to continue without restriction. The compromise routine-use concept is defined in subsection 3(a)(7) of the Act, which states that "with respect to the disclosure of a record," a "routine use" is "the use of such record for a purpose which is compatible with the purpose for which it was collected." [5 U.S.C. 552a(a)(7)]

Routine uses must be listed in annual system notices,81 in Privacy Act Statements [5 U.S.C 552a(e)(3)(C)], and, in addition, must be published for comment in the Federal Register at least 30 days before they are included for the first time in an annual system notice. [5 U.S.C 552a(e)(11)] The routine uses the agencies have established can be roughly divided into three categories: (l) government-wide; (2) agency-wide;and (3) system-specific.

Most of the government-wide routine uses have been established at the behest of the Department of Justice and the Civil Service Commission. These two agencies asked all the others to insert certain standard language in their annual system notices. Many agencies complied either with a preface to all of their published notices, or with a subparagraph of each one. The following prefatory statement published by the Environmental Protection Agency (EPA) is typical:

The following routine uses apply to and are incorporated by reference into each system of records set forth below:

1.   In the event that a record within this system of records maintained by the Environmental Protection Agency indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular statute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred to the appropriate agency, whether Federal, State, local or foreign charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto.

2.   A record from this system of records may be disclosed to a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.

3.   A record from this system of records may be disclosed, as a routine use, to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the

issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

4.   A record from this sytem of records may be disclosed, as a routine use, in the course of presenting evidence to a court, magistrate or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations.

5.   A record from this system of records may be disclosed, as a routine use, to a Member of Congress submitting a request involving an individual when the Member of Congress informs the System Manager that the individual to whom the record pertains has authorized the Member of Congress to have access to the record. [41 F.R. 39695 (September 15, 1976)]

All systems include a routine use, allowing the disclosure of information to a congressional office, in response to an inquiry from the congressional office made at the request of the individual to whom the information pertains. Many, such as the following one published by the Interstate Commerce Commission, also authorize access to records by OMB:

The information contained in this system of records will be disclosed to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in that Circular. [41 F.R. 40430 (September 17,1976)]

Similarly, almost all notices allow for disclosures involving the hiring or retention of an employee, a possible violation of the law, or a statistical research program. The EPA prefatory statement quoted above is one example. Others, such as the following, are also typical:

Justice/USA-005 - Civil Case Files

(h)   a record may be disseminated to a federal, state, local, foreign, or international law enforcement agency to assist in the general crime prevention and detection efforts of the recipient agency or to provide investigative leads to such agency or to assist in general civil matters or cases; [41 F.R. 40017 (September 16, 1976)]

Federal Trade Commission 126 - General Personnel Records

(k)   [Information in the system may be used] as a data source for management information for production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related personnel management functions or manpower studies, may also be utilized to locate specific individuals for personnel research or other personnel management functions. [41 F.R. 39719-20 (September 15, 1976)]

Still another example of government-wide routine uses is found in the set of routine uses established for personnel records under the control of the Civil Service Commission. These read as follows:

Civil Service Commission/Govt-3 - General Personnel Records

Routine uses of records maintained in the system, including categories of users and the purposes of such uses: Information in these records may be:

a.   Used in the selection process by the agency maintaining the record in connection with appointments, transfers, promotions, or qualifications determinations. To the extent relevant and necessary, it will be furnished upon request to other agencies for the same purpose.
b. Disclosed to other Government agencies maintaining relevant enforcement or other information if necessary to obtain from these agencies information pertinent to decisions regarding hiring or retention.
c.   Disclosed to prospective employers or other organizations, at the request of the individual.
d.   Disclosed to officials of foreign Governments for clearance before employee is assigned to that country.
e.   Disclosed to educational institutions for training purposes.
f.   Disclosed to the Department of Labor; Veterans' Administration; Social Security Administration; Department of Defense; Federal agencies who may have special civilian employee retirement programs; National, State, county, municipal, or other publicly recognized charitable or social security administration agency to adjudicate a claim for benefits under the Bureau of Retirement, Insurance, and Occupational Health or the recipient's benefit program(s), or to conduct an analytical study of benefits being paid under such programs.
g.   Disclosed to health insurance carriers or plans participating in Federal Employees' Health Benefits Program in support of a claim for health insurance benefits.
h.    Disclosed to Federal Employees' Group Life Insurance Program in support of an individual's claim for life insurance benefits.
i.   Disclosed to labor organizations in response to requests for names of employees and identifying information.
j.   If information indicates a possible violation of law, it may be disclosed to law enforcement agencies.
k.   Disclosed to district courts to render a decision when an agency has refused to release to current or former Federal employee a record under the Freedom of Information Act.
l.   Disclosed to district courts for use in rendering a decision when an agency has refused to release a record to the individual under Freedom of Information Act (FOIA).
m.   Used to provide statistical reports to Congress, agencies, and the public on characteristics of the Federal work force.
n.   Used in the production of summary descriptive statistics and analytical studies; may also be used to respond to general requests for statistical information (without personal identifier) under FOIA; or to locate individuals for personnel research or other personnel research functions.
o.   Disclosed to the Office of Management and budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
p.   Disclosed to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order where there is an indication of a violation or potential violation of civil or criminal law or regulation.
q.   Disclosed to an agency upon request for determination of an individual's entitlement to benefits in connection with the Federal Housing Administration programs.
r.   To provide information to a congressional office from the record of an individual in response to an inquiry from a congressional office made at the request of that individual. [41 F. R. 42164 (September 24, 1976)]
s.   Used to provide an official of another Federal agency any information he or she needs to know in the performance of his or her official duties related to reconciling or reconstructing data files, compiling descriptive statistics, and making analytical studies in support of the personnel functions for which the records were collected and are maintained. [41 F.R. 55568 (December 21, 1976)]
t.   Disclosed to officials of labor organizations recognized under Executive Orders 11636 and 11491, as amended, when relevant and necessary to their duties of exclusive representa tion concerning personnel policies, practices, and matters affecting working conditions. [41 F.R. 544522 (December 14, 1976)]
u.   Used to select employees for incentive awards and other honors and to publicize those granted. This may include diclosure to other public and private organizations, including news media, which grant or publicize employee awards or honors. [41 F.R. 55568 (December 21, 1976)]
v.   Disclosed to another Federal agency or to a court when the Government is party to a suit before the court. [41 F. R 55568 (December 21, 1976)]

Agency-wide routine uses, which an agency established solely for its own record-keeping systems, are fewer in number than the other two types, but they are the ones that appear to be the most indiscriminate in applying the routine-use concept. For example, the Veteran's Administration provides for information in 16 separate systems to be disclosed to debt collection firms, and USIA provides for the disclosure of information in all its systems to any other government agency that has statutory or other lawful authority to maintain it. [41 F.R. 41884, 41905-6 (September 23, 1976)]

System-specific routine uses, as the rubric suggests, are those an agency establishes for a particular system it maintains. The disclosure of merit staffing reports to union representatives for equal employment opportunity purposes is a good illustration.