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


The fifth Privacy Act principle asserts that, once collected, there are limits to the internal uses to which an agency may put information about an individual. Once an agency has legitimately obtained information, it still may not use it internally without restriction.

The Act requires an agency to obtain an individual's written consent before disclosing a record about him to any of its employees other than "officers and employees . . . who have a need for the record in the performance of their duties." [5 U.S.C 551a(b)(1)] However, because the terms "need" and "duties" are open to interpretation, the effect of this restriction is limited.

In theory, the requirement speaks to the kind of situation described in Chapter 6 of the Commission's final report, wherein the employee-employer relationship was seen to subsume other record-keeping relationships, such as the medical-care and insurance ones. A problem inherent in the provision is the fact that one agency may have many different types of relationships with an individual but the provision takes no account of the difference between them; for that reason it has no practical effect on limiting certain internal uses of information. This is particularly true in the case of the larger cabinet departments which, for purposes of the Privacy Act, have defined themselves as one "agency."

Where differences in record-keeping relationships have been recognized in other statutes, such as where a component of the Department of Health, Education, and Welfare is subject to a confidentiality statute elsewhere in the U. S. Code, the integrity of the relationship that the statute addresses may be preserved within the framework of Subsection 3(b)(1). Section 1106 of the Social Security Act, for example, limits the disclosure of records maintained by the Social Security Administration, and thus it functions as a limitation on internal agency uses of records, even though the Department of Health, Education, and Welfare has defined itself as one agency for the purposes of the Privacy Act.

It can reasonably be assumed that the Privacy Act was not intended to nullify other statutes which limit the use and dissemination of information. Indeed, while the Act is silent on this issue, the OMB Guidelines advise that: "Agencies shall continue to abide by other constraints on their authority to disclose information to a third party including, where appropriate, the likely effect upon the individual of making that disclosure."18 One would expect the OMB guidance to be definitive, but the internal use issue is a murky one. The "confidentiality" statutes in the U.S. Code are many and various, and it is not clear how statutes that authorize use or disclosure, rather than prohibit it, should be treated in relation to Subsection 3(b)(1).

The Commission believes that the way to resolve this issue is through a revised routine-use provision that would apply to both internal and external agency uses and disclosures of information. Such a provision would act as a minimum standard against which potential uses and disclosures of information would be measured. It would supersede preexisting statutes that authorize disclosures in a vague or general manner, but not statutes in which the Congress, as a matter of public policy, has called for the use and disclosure of specific types of information m specific situations. Such a provision, moreover, would not be construed as expanding an agency's authority to use or disclose information if the agency was already subject to a preexisting statute that restricted its use and disclosure of information more narrowly than the Privacy Act does.

The only way for the individual to discover the internal agency uses of a record about himself is through the "Privacy Act Statement," which cannot anticipate future uses over which the agency has no control. For example, two days after the Privacy Act was passed, the Congress passed another law creating a Federal Parent Locator Service (PLS) authorized to obtain information from the Social Security Administration upon request, regardless of the strictures of other statutes such as the Privacy Act. As already noted, moreover, the "Privacy Act Statement" need not inform the individual that information about him may be collected from third parties, thereby diluting the effect of the Use Limitation Principle even further.

While the Commission believes that the problem of controlling internal uses of information cannot be solved by levying specific requirements on the agencies, the "routine use" provision, which forbids disclosures that are not compatible with the purpose for which the information was originally collected, should be applied to internal agency uses. In addition, by strengthening the individual enforcement mechanism and establishing a central office within each agency for Privacy Act implementation (see below), compliance with the spirit of the internal use requirements will be improved.