WEDNESDAY, JULY 9, 1975 

WASHINGTON. D.C. 

Volume 40. umber 132 

PART III 

o Ie OF 

MA AGEME 

A D BUDGET
 

•
 

PRIVACY Aa
 

MPLEMENTATlO
 

Guidelines and Responsibilities 
28948 

OFFICE OF MANAGEMENT AND 

BUDGET 

[Circular No. A-I081 

HEADS OF EXECUTIVE DEPARTMENTS 

AND ESTABUSHMEHTS 

Responsibilitiel fOf the .Intenloce of 

Records About IndWidu.}s by Fedcwal 

Alenc:ies 

1. Purpose. This Circular defines responsibilities tor Implementing the Pri· 

vacy Act of 1974 (Public Law No. 93-51'9. 

5 U.S.C. 552a) to assure that personal 

Information about IndividualS collected 

by Federal agencies is Umited to that 

which is legally authorized and necessary 

and Is maintained in a. manner which 

precludes unwarranted intrusions upon 

individual privacy. 

2. Background. 8. The Privacy Act of 

1974, approved De<:ember 31, 1974, set 

forth a series of requirements governing 

Federal agency persona) "record-keeping practices. . 

0. The Act places the principal respon· 

slblJlty for compli90nce with Its provisions on Federal agencies but also provides that the omee of Manarement and 

Budget shall "develop guidelines and 

regulations ... and provide continuing 

assistance to and oversight ot the implementation ot the ..." operative provisions ot the Act by the agencies. 

3. DeJinitkms. For the purpose ot this 

Circular: 

(1) the term "ageocy" means agency as 

deftned In section 552(e) ot this title; ("The 

term agency Includes any e.:ecutlve department, mllitary department. Government cor_ porl"Uon, Qovernment controlled corporation or other establishment In the executive 

branch ot the Government (Including the 

Executive Omce of the President. Or any Independent regUlatory agency." (5 U.S.C. 552 

(e) Ill: 

(2) the term "Indlvldual" means a eltlzen or the {Tnlted States or an allen lawfully admitted ror perm&nent reSidence; 

(3) the term "maintain" Ineludes malntaln, collect, use. or disseminate: 

(4l the term "record'· mean» any Item. col_ 

lection. or grouping of Informatlon about an Individual that Is maintained by an agency, Including. but not IImlted to, hiS educatlon, 

financial transactions, medical blstory, and

criminal or employment history and that 

contains his name, or Identlfylng number, 

symbol. or other IdenUfylng particular assigned t-o the IndiVidual, >:Inch all a finger or volee prlnt or a photograph; and 

(5) the term "system ot records" means a group of an~' records under the control of any

agency from whleh Inrormatlon Is retrieved 

by the name ot the Individual or by some IdentJrylng number, symbol. or other Identltrlng partlcular llSSlgned to the Indlvldual. 

(5 U.S.C. 552a(al I 

4. Coverage, a. This Circular applies W 

fill agencies as defined in the Act. 

b. It applies to all agency activities 

related to the maintenance ot systems ot 

records subject to the Act; I.e., groupIngs of personal data about Identifiable 

Individuals. See definitions paragraph 3, 

above. 

5. Responsibilities. a. Each agency 

head shall establish and maintain pro· 

cMures, consistent with the Act, OMB 

8uidellnes,' and related directIves is~

sued pursuant to this CircUlar, to 

NOTICES 

tl) Identity each system ot records 

whlcb the qency maintains and reView 

the content of the system to BSSure U1at 

only that Information is maintained 

which 1.1 neoessary and relevant to a 

function which the agency is authorized 

to perform by la.w or executive order (5 

U.S,C, 552a(e) (I» and that no in1onnQ~

tlon abOut the political or religious beliefs and activities of Indlv1duals is 

maintained except as provided in 5 U.S,C, 

552a(e) (7). 

2. Prepare and publish a public no­ tice of the existence and character of 

those systems consistent with guidance 

on forma.t issued by GSA. see 5 U.S.C. 

552a(e) (4) and (11). 

. (3) Collect Intormation wblch may resUlt in an adverse determination about an Individual from that Individual wher~

ever practicable (5 U.S.C. 552a(e) (2)) 

and intorm Individuals from whom In· 

tormation about themselves is collected. 

of the purposes for which the Intorma· 

tion will be used and their rights, bene~

fits, Of obligations with respect to SUP~

plying that data (5 U,S.C. 552a(e) (3». 

(4) Revtse any personal data collection 

forms or processes which they may pre· 

scribe tor use by other agencies (e.g.• standard torms) to conform to the re­ quirements of 5 U.S.C. 552a(e) (3). 

(Agencies wblcb use such' forms to collect information are nevertheless re­ spon1>lble for assuring ~hat individuals 

from whom information about themselves is solicited are advised ot their 

rights and obligations.) 

(5) Establish reasonable administrative, technical, and physical safeguards 

to assure that records are disclosed only 

to those who are authorized to have ac~

cess and otherwise "to protect against 

any anticipated threats or hazards to 

their security or Integrity which coUld 

result in substantial harm, embarr9-SS~

ment, inconvenience, or unfairness to 

any IndivIdual on whom information is 

maintained:' See 5 U.S,C. 552a(b), Rnd 

(e) rIO). 

/61 Maintain an accounting ot all dIs'~

closures of Information from systems oC 

records except those to personnel within 

the agency who have an official need to 

know or to the public under the Freedom 

of Intormatlon Act, and make that ac~

counting available as provided in 5 U.S.C. 

552alc) (Il. (2),and (3). 

(7) When using a record or disclosing 

it to someone other than an agency, as· sw-e that It is as accurate, relevant, 

timely and complete as Is reasonably 

necessary to assure fairness to the indl~

vidual. See 5 U.S.C. 552Me) (5) and (6). 

(8) Penn!t indiViduals to haVe acceS6 

to records pertaining to themselves and 

to have an opportunity to request that 

such records be amended. See 5 U.S.C, 

552a(dHJ), (2), and (3). 

(9) Inform prior recipients when a 

record Is amended pursuant to the re­ quest ot an individual or a statement 

of disagreement has been tiled, advise 

any subsequent recipient that a record Is" 

disputed., and provide~ a ·copy of the 

statement of disagreement to both prior 

and subsequent recIpients ot the disputed information. see 5 U.S.C. 552a(c) 

(4) and (d)(4J. 

(10) Publlsh rules describing alency 

procedures developed pursuant to the 

Act and describing anY systems which are proposed to be exempted trom provislOIlll ot the Act including the reasons for the proposed exemption consistent 

with giJidance on Cormat Issued by GSA. 

Bee 5 U.S.C, 552aW, (j), and (k), 

(11) Review all agency contracts which 

provide for the maintenance of systems 

or records by or on behalf ot the agency 

to accomplish an agency tunctlon to as· 

sure that. where appropriate and within 

the qency's authority, language Is included wblcb provides that such systems 

will be maintained in a manner con­ B1atent with the Act, Bee 5 U.S.C, 552a 

(ml. 

(2) RetraIn from renting or selling 

liSts ot names and addresses unless spe· 

cl1'1cally authorIzed by·law. Bee 5 U.S.C. 

5528.(nl. 

(3) Prepare and submit to the Office 

of Management and Budget and to the 

Congress a report of any proposal to'es~

tablish or alter a system of records In a tonn consistent with guidance on con­ tent, tonnat and timing issued by OMB. 

See 5 U.S.C, 552a(0). 

(4) Prepare and submit to the Office 

ot Management and Budget, on or tldore 

April 30 of each year, a report ot its 

activities under the Act consistent with 

IUldance on content and format Issued 

by OMB. Bee 5 U,S.C. 552a(p). 

(15) Conduct traIning for all agency 

personnel who are in any way involVed 

in maintaining systems of records to apprise them oC their responsibilities under 

the Act and to Indoctrinate them v.1th 

respect to procedures established by the 

agency to implemEnt the Act. See 5 U.S.C. 

552a(e) (9). 

(18) Establish a program for periodically reviewing agency record~keeplng

policies and pracUces to assure compll~

ance with the Act. 

b. The secretary of Commerce shall, 

comlstent with guidelines Issued by 

OMB, Issue standards and guidelines on computer and data security, 

c. The Administrator ot General serv· ices shall, consistent with guidelines IssUed: by OMB: 

{I) Issue instructions on the format 

and timing oC agency notices and rules 

required to be publlshed under the Act. 

see 5 U,S.C. 552a (el (4l and (0. 

(2) Not later than November 30, 1975 

and annually thereafter compile and 

publish a compendium of agency rules 

and notices and make that publication 

available to the public at low cost, See 5 

U,S.C. 552a (f). 

(3) Issue .and/or re\'ise procedures 

governing the transfer ot records to Federal Records Centers tor storage, 

processing, and servicing pursuant to 44 

U.S.C. 3103 to ensure that such records are not disclosed except to the agency 

which maintains the records, or under 

rules established by that agency Which 

are not Inconsistent wIth the provisions 

ot the Act. It should be noted that, Cor 

purposes of the Act, such records are considered to be maintained by the 

agency which deposited them. see 5 

U.S.C. 552a(l) ()). 

fEOE~AL REGJ5,,,~, VOL. 40, NO. 132_wmNESOA\·, JULY 9, 197$ 
NOTICES	 28949 

(4) Establish procedures to assure 

that records transferred to the National 

Archives of the United States pursuant 

to 44 U.S.C. 2103, are properly safeguarded and that public notices of the 

existence and character of such records are issued In conformance with 5 U.S.C. 

552a (1), (2), and (3). 

(5) Revise procedures governing the 

clearance of Interagency data collection 

forms for which 1t is responsible to as­ sure that those requesting information 

from Individuals are revised In conform­ ance with 5 U.S.C. 552a{e) (3)­

(6) Revise procurement guidance to 

Incorporate language consistent with 5 

U.S.C. 552a(m) ; i.e., to provide that con· 

tract.s which provide for the maintenance 

of a system of records by or on behalt of an agency to accompilsh an agency function inciudes language which assures that 

such system wUl be maintained in conformance with the Act. 

('I) Revise -computer and telecommunIcations procurement policies to provide 

that agencies must review all proposed 

equipment and services procurement.s to assure compliance with applicable provisions of the Act; e.g.. Report on New 

Systems. 

d. The CiVil Service Commission shall, 

consisten\-- with guidelines issued by 

OMB: 

(1) Revise civilian personnel information processing and record-keeping directives to bring them Into conformance 

with the Act. 

(2) Devise and conduct training pro­

(tarns for agency personnel Including 

both the conduct of courses in various 

sUbstantive areas (e.g" legal, administrative, ADP) and the development of 

materials which agencies can use In their own courses. 

e. The Director of the Office of Tele· 

communications Policy shall, consistent 

with guidelines issued by OMB, issue 

and/or revise policies governing govern· 

ment data. telecommunications consl~t·

ent with the Privacy Act. 

f. The Director of the Office of Man· 

agement and Budget wIll: 

(1) Issue guidelines and regulations to 

the agencies to implement the Act. While 

the application of the requirements of 

the Act is Ute agency's responsibility. 1nterpretive guldclines have been devised 

to, 

Assist agencies in interpreting the re· quirements of the Act; 

Establish mJnlmum standards or criteria, where appropriate, In applying the 

Act; 

Provide illustrative e'lamples of the 

application of the Act; and 

Assure a uniform and constructive implementation of the Act. 

(2) Provide assistance, upon request, 

to agencies. 

(3) Review proposed new Systems or changes to existing systems. 

(4) Compile the annual report to the 

Congress on agency activities to comply 

with the Act in accordance with 5 U.S.C. 

552a(p) . 

(5) Revise procedures governing the 

clearance of data collection forms and 

reports for whIch it is responsible to assure that those requesting Information 

about Individuals are revised 1n con­ fOl:m.ance with 5 U.S.C. 552a(e) (3). 

6. Reports. Agenctes are required to 

submit the following reports consistent 

with guidance on format, content, and 

timing to be issued under separate trans· 

mlttal. a. Repol·t.s on new systems to the Congress, OMB, and, for the period of Its 

existence, the Privacy Protection Study 

Commission. Reports shall be submitted 

not later than 60 days prior to the establishment of a new system or the implementation of a change to an existIng 

system. 

b. Annual report on agency activIties 

to comply with 5 U.S.C. 552a to OMB 

not later than April 30 of ea<:h year. 

7. Effective Date. The provisions of 

this Circular are effective on September 

27, 1975 except that: 

a. Reports on new systems which cover the implementation of new or altered 

systems of records proposed to be effectIve a.fter September 27, 1975 shall be 

submitted not later than 60 days before 

the effective date of those new systems or changes; and 

b. Rules and notices prescribed by the 

Act and regulations and gUidelines to be 

Issued by the responsible agencies shall 

be issued In advance of the effective date 

where required by law (e.g .• the Administrative Procedures Act, 5 U.S.C. 553) or as otherwise necessary to permit 

timely and effective compliance. 

8.	 Inquiries. Inquiries concerning this 

Circular	 may be addressed to the Infornation SYstems Division, OIDce of Management and Budget, Room 9002. NEOB. 

Washington, D.C., 20503, telephone 202 39~-18l4.

JAMES T. LYNN. 

Director . 

PRIVACY ACT GUIDELINES-JUL.Y I, 1975' 

Implementation of Section 552a of Title 5 

U .,_" S,.,. 0' Ihe nJ "" S 

1.	 The following introductory text, 

which was inadvertently omitted, shoUld 

be inserted immediately after the headings and before "Table of Contents": 

This memorandum forwards guidelines 

for implementing Section 3 of the Pri· 

vacy A col t f 97 4 (5 U. S C .. 552a, P.L. 93­

579) pursuant to OMB Circular No. 

A-lOS dated July 1, 1975. These guidelines were developed to assist agencies in 

complying with the Act in an effective 

and tImeIy manner. The guidelines will be revised and expanded as necessary and as experience 

in Implementing the Act suggests the 

need for further interpretation and guid­ ance. Although these guidelines are not 

. d t USC 5 3 ISSU~ pu~suan to 5 ... 5 (the Ad· 

mJmstrative Procedures Act) we invite 

publlc comment on thcm. 

JAKES T. LYNN, 

Director. 

I Se<:tlOIl 3 of Ule Privacy Act of 1974. PUb. 

L.93-579. 

TA...II: Of CONTENTS 

Suhsectlon 

(a) DEF'INITIONS.
 

(Il Agency.
 

(2) IndiVidual. 

(3) Maintain. 

(4) Record. 

(5) System of Records. 

(6) Statistical ReCOrd. 

(7) Routine Use. 

(b) CONDITIONS OF DISCLOSURE.
 

II) D!sclOflure within Ule Agency.
 

(2) DlsclOllure to the PUblic. 

(3) DlsclOflure for a "Routine UIIe". 

(.) Dl$clO$ure to Ule BUNlau of the ~Ilsus.

(~l Dleclosure fOr Sw.Ustical Research and 

Reporting. 

(5) Disclosure to the National ArchlvlIB. 

(7) Disclosure for Law Enforcement Pur· 

poses. 

(8) Disclosure under Emergency Clreum· 

st.ances. 

(9) Disclosure to the Congress:. 

(IO) Ol$closure to the General Accounting 

Otnce. 

(11) DisclMure Pun;usnt l,.o Court Order. 

(c) ACCOUNTING OF CERTAIN DISCLO· 

SURES. 

(I) When Accoulltlllg Ia RequINld. 

(2) RetaIning Ule Accounting ot Dlselo· 

lIures. 

(3) Making Ule AccountillG: of Dl.sclosuree 

AVlIlJable to the lIldlvldual. 

(4) Informing Prior ReCipients of Correct· 

ed or Disputed Records. 

(4) ACCESS TO RECORDS. 

(I) Individual Access 1;0 Records. 

(2) Requests for Amending Records. 

(A) Acknowledgemellt of Requests t;o 

Amend Records. 

(B) Actions Required on Requests to 

Amend Ite<lords. 

(3) R.equesUng a ReView of the Agency's 

Refusal to Amend a Record. 

(4) Disclosure of Disputed Information. (~) AcceSli to information Complied In 

Anticipation or Civil Action.
 

(el AGENCY REQUIREMENTS.
 

(1) Restrlctlona on Collecting Illforma· 

t:OIl 8oo\.t Individuals. . (2) Information 18 to be Collected Directly 

trom the IndlvldUl\1. 

(3) Informing Individuals from whom In· 

formatlon Is Requested. 

(4) PublJcatloll ot the Annual Notice of 

Systems of Records. 

(A) Deseri"'ng the Name and Location of 

the System In Ule Public Notl«. 

(B) Describing Categorlea of Individuals 

In the PubIlC. Notice.

(C) De.!lcflblng Categories of Re<:orda In 

the PUblic Notice. 

(D) Descrlblllg Routine Uses In the Publlc 

N~~~e_ Describing Record. Management 

Policies and Practices In !.he Public Notice. 

(P) identifying OftIclals(s) Responsible for 

the System In the Publlc Notice. 

(G) DescribIng Procedure4 for Deter. 

minIng It a System contains a Record on an Individual In the Public Notice. 

(H) Describing Procedures for Gaining 

Acceu In the Public Notice. 

(1) Describing Categories of Information 

Sources In	 the Public Notice.
 

i51 Standards of Accuracy.
 (6) Validating Reeords before Di"Closure. 

(7) Reeordson Religious or PoUtlcal Actlv_ 

!tIes. 

(8) Notltlcatlon for Disclosurea Under 

OOmpul80ry Legal ~ss.

(9) Rulea of Conduct for Agency Personnel. 

(10) Admlllistntlve, Technical and Physl­ ca.l 8aleguards. (II) Notice for New/ReVised Routine Uses:. 

(f) AGENCY RULES 

(I) Ruler; for Determining It an Illdlvldual 

18 the SUbject ot a Record. 

(2) Rules for Handling !tequeets for 

ACceS8. 

(3) Rules for Granting Acce196 to Records. 

(.) Rules for Amending Records. 

(5) Rules Rega.rdlng Fees. 

Annual PUbllcation of Notices and Rules 

(g) CIVIL REMEDIES 

(I) Grounds for Actlon. 

(A) Refusal to Amend a Record. 

(B) DenllL1 of Access to a Record. 

(C) f'a.llure to MAintain a Record Ac· 

curately. 

(D) Other Fallures to C<lrnply with the "',.(2) Bl'LSla fot" Judicial Review and Remedies 

for Refutl&l to Amend a Record. 
289;j& 

(3) Basis for Judicial Review and Remedies 

for Denial of Access. 

(oi) Basis for Judicial Rev\(lw ll.nd Remedlu 

for Adverse Determination and Other RHlIres to Comply. 

(5) Jurisdiction and Time Limits.
 

(h) RIGHTS OF LEOAL OUARDIANS.
 

II) CRIMINAL PENALTIES.
 

III Criminal Penaltles for Unauthorl~
 

DlsclO$ure. 

(2) Criminal Penalties for FaUure to Publlsh a Public Notice. 

\31 Criminal Penalties for Obtaining Records Under False PretenMs. 

0) &; Ik) EXEMPTIONS. ~jl GENERAL EXEMPrfONS APPLICABILITY	 AND NOTICE REQUIREl\.fENTS. 

II) Generlll Exemption for the Central In_ 

tellig'llIce Agency. 

(2) Oeneral Exemption for Crlmlnlll Law 

Enforcement Records. 

lk) SPECIFIC EXEMPT10NS APPLICABILITY AND NOTICE REQUlaEMENT5. 

(I) Exemption for Classlned Material. 

12) Exemption for Investigatory Material 

CompUed tor Law Enforcement Purposes. 

(3) Exemption for Records MaintAIned to Provide	 PrOlectl\"e Services. 

14) Exemption for Statl~tlcal Records. 

(5) Exemption for Investigatory Matertal 

Compiled tor Determining SUitability tor 

Federal Employment Or MlIIt.ary service. 

16) Exemption lor TestIng or EltamlnBtlon 

Material. 

(7) EKtmptlon tor Material u$Cd to EvalU­ ate PO\entlal tor PromoUon In the Armed 

Servlc..s. (I) ARCHIVAL RECORDS. 

\ i) Records Stored In OSA Records 

Centeno 

(2) Recot<1s Archived Prior to septem_ 

ber 27. 1975. 

(3) Recordll Ar<:hlved on or atter september 27, 1975. 

(m) GOVERNME"''T CONTRACTORS. 

(n) MAILING LISTS. 

(0) REPORT ON NEW SYSTEMS,
 

(pl ANNUAL REPORT.
 

(ql EFFECl' OF OTUER LAWS.
 

SUIlSECTION (a) DEFINITIONS 

Subsection (9.) "For purPOSes of this 

section-" 

Agency. Subsection (a) (I) "The term 

'agency' means agency as defined in sec­ tiOll 552(e) of this title;" 

The definition of "agency" is the same as that used in the Administrative Procedures Act as modified. by the recently 

enacted Freedom of Information Act 

amendments (Pub. L. 93-5(2) : " 'agency' means each authority ot the Oovernment 

of the United Bta.tes, whether or not It is 

within or subject to review by another 

agency, .." (5 U.S.C, 551 (1». "[Tlhe 

term aiency • • • lncludes any execu­ tive department, military department. 

Government corporation, Oovernment 

controlled corporatton or other establishment in the executive branch or the 

Government Unclud1ng the Executive 

Oflice ot the President). or any Independent regulatory agency." (5 U,S,C. ~52 (e) as added. by Pub. L. 93--5(2) 

Two aspects of this definition require 

further explanation: 

The scope of the term: I.e., what entitles are covered. how has the definition 

or agency been broadened to encompass 

additional orsanlzations as a resUlt of 

the FOtA amendments? 

Whether or not entities within an 

at::ency aN: to be considered. agencies, 'rn!s is particularly significant in applyNOTICES 

in&" subsection (b) (1). in determIning 

what constitutes an Interagency transfer. 

The first Question-the scoPe ot the 

definition-Is covered In the House re­ port on the FOIA amendments Quoted 

below, as modified by the conference re­ port language set out thereafter: 

For the purposes of this sectlon, the dennltloll of "agency" has been expluldCd to Include those entities which may not be con­ Sidered agencies under $Cctl<m ~I (I) of title 

5. U.S. Code. but which perform governmental 

functions and control Information ot Interest to the publlc. The bill expande the definltLon of "agency" for purpooos of section 

552. lllnd 552al title 5, United Sta~ COde. 

Its etrect III to l.n.5ure Inclusion UDder the 

Act of Government corpora.tlons. Oovernment controlled corporations, or other esta.bIlshments wIthin the ex~utlve branch. such as the U.S. Postsl Serv!ce. 

The tertn "establishment In the EKecutive 

Omce of the President:' as used In thl.s 

am"ndment mellons such functional "ntltles 

as the omce or TelecommunlcatloDII Pollcy, 

the Omce of Management and BUdget. the 

Councll ot Economic AdvlSer8. the National 

Security CouncU. the F'(!deral Property Council, and other similar establishments Which 

hlwe ~n or may In the rutu~ be created by 

Congress through statute or by Executive 

order. 

The term "Oovernment. corporation." as u.sed In this subsection, would laclude a cor­ poration that Ie a wholly Oovernment_owned. 

enterprsle. establlphed by Congress through 

Sttl.tute, such as Ule St. Lawrence Seaway 

Development. Corporation, the Federal Crop 

Insuttmce Corporation (PerC). the Tennell­ &ee Valley Authority (TVA). Itnd the InterAmerican Foundation. 

The term "OOvernment controlled Corporation:' as used In this sUbllectlon. would 

Include a corporation which Ie not owned 

by the Federai aovernment ••• (House 

Document 93--376. pp. 8~9, Report on the 

Freedom or Information Act amendments, 

H.R. 12741). 

The con!etffs state that they Intend to include within the dell.nitlon of "~ncy·· those 

entities encomplloSSed by 5 U.S.C. 1>51 lUld 

other entitles Including t.he Uni\td States 

Pestill service. the Postal. Rate CommiSSIon. 

and government corporations or governmentcontrolled corporations now In exl.slence or which may be created In the roture. Tbey do not Intend to Include corporations which receive appropnated funds but. ani neither 

chartered by t.he f'ed;ere.l Government nor controlled by It, such as the Corporation for 

Public Bt'04Mlcastlng. Expanelon of the dell.­

nltlon of "agency" In this llubscctlon Is Intended to broaden applicability of the Freedom of Information Act bUt. It le not Intended that. the term "lIIency'· be applied to sub_ 

divisions. otlIcee or units wltbln an agency. 

With rwpect to the meaning ot the term "Executive OffIce of the Presldent" the con~

fereee Intend the result reached In Soucie v, 

DaVid, 448 F. 2d. 1()(11 (O.A,D.C. 1911), The 

term Is not to be Interpreted as Including the 

Presld,mt'8 Immediate pet!lOnal etall or units 

In tho Executive Oflice whose sole function 

Is to advise and lL'lIlt&t the President:· (House 

Report 93-1380, p. 14-15) 

Whether Or not an agency can e¥lst 

within an agency 18 a somewhat more 

complex issue, This is addressed. in part. 

in the above quotation from the confer­ ence report language in the staliement 

". • • but It is not intended that the 

term 'l\8ency' be applied. to subdlvislons. 

oMces, or units wilJ?1n an agency." The 

issue was also addressed in debate on 

HR. 16373 on the House floor in a statement by Congressman Moorhead-'" .' • 'agency' is given the meaning which It 

carries elsewhere In the Freedom of Infonnation Act, 5 United States Code, sec­ tton 551(1), as a.mended by H.R. 12471 ot 

this Congress, section 552(e), on which 

Congress has acted to override the veto. 

The present bill is intended to give 'agency' its broadcast statutory meaning. This 

will permit employees and oMcers of the 

agency which maintains the records to 

have access to such records if they have a need for them in the performance of 

their duties. For example, within the 

Justice Department-which is an agency 

under the bill-transfer between division of the Department. the U.S. Attorney's oMces, the Parole Board, and the 

Federal Bureau of Investigation would 

be on a need-for-the-record basis. 

Transfer outside the Justice Department 

to other agencies woUld be mOre specifically regUlated. Thus, transfer of information bet.ween the FBI and the CrimInal Division of the Justice Department 

for oQ'lcial purposes would not require 

additional showing or authority. in con­ trast to transfer of such lo!ormaUon 

from the FBI to the Labor Department." 

(Congressional Record November 21, 

1974, P. HI(962) 

In addressing this Question the Justice 

Department has advised that 

••• It Is our f1.rm view tlat the 197'l 

I FOIA] Amendment8 te'Qutre no chaD&e In 

the original Act, thet It Is for the over_unit-­

the Department or other higher-level 

"agency"_to determine which ot Ite substantially Independent components wlU function 

Independently for P'reedom of Informstlon 

Act purpo$C&. Moreover. as the Attornef General noted In that portiOD of hll Memorandum dealing With the 8ubject, "tt Ie 1lOIIletimes permissible to make the determination 

dtlIerently tor purp0&e8 of various provisions 

of the Act.-for example, to pubUsh and 

malnteln aD Index at the overunlt level while 

letting the appropriate subunits bandle requests for their own records." (Attorney Gen. 

eral'lI Memorandum on the 197" Amendments 

to the l"reed.om of Informatlo.n Act. February. 

1976. p, 26) .In our view. thu; prectlce of giving variable content to the meaning of the 

word "agency" tor varloua purpooes can be 

applied to the Privacy Act all well ae the Freedom of Information Act. l'or exunple, tt may 

be deeirs.ble and In furtberance ot the purpOlle6 Of the Act to treat tbe varloua compo­ nente of a Department lIS IlOPflrate ".ncles" 

for purpo&es of entertalnl~ appllcatiOne tor 

access and rUling upon appealll ftoDl denlal.8. 

whUe treating the DeJ)4l.rtment all the 

"agency" tor purpclllM Of those provllliOlls 

IImlting Intragovernmental excha.nge of rec­ ords. {Of coune, dle&emlnatlon among componente of the Department must dill be only on a "D&ed-to-know" basta, 6 U.S.C. 6S2a(bl 

(I).) Need.lellll to "'Y. this practice must not be employed invidiously. so lIoll to trustrate 

rather Ulan to turther the pnrpoMs. of the 

Act: and tbere 8hould be a consIStency between the prsctlce under the Privacy Act 

and tbe practice tor comparable purp<lllea 

under the. Freedom of Information Act. Por 

this relllK)n It seems to lit doubtful (tbough. not entirely Imp~ble) that a Department 

or other over-U.D.It whlch hM t.reated. ItIl com­ ponentll as lICplU'llot.e teenc1es for au purp_ 

under the Preedorn of Intonnation Act OOUld 

successfUlly ma1ntatD that all Of ttl! compo­ nent.s can be collllillerecl a alngle "agency" 

under the PrIvacy Act, 8l1nply to faetIltftte 

tbe excbaD(e of tll.OOI"Ib (Letter tl"O.lD Au1st~

F~D£""l lEGISTU, VOL 40. NO, 132-WIOHISOAY, JUlY 9. 1975 
28951 

"'IU .l.tklrney General.. omce or l.egll.1 COUlLllel, 

dated. AprU 1.... 1976) 

In add1t1on to the matter of deter~

min1n&" when a. compclDcot at an aj'ency 

is to be considered llJl agency itself when 

the entire alenc1 11 to be treated as III 

sl.nileenUty, the 1&8uear1sel as to Wheth­ er an entity or individual serving more than one-q:ency mllY be coDllidered an 

"employee" of each q:ency he serves, for 

certain PU1"P06eS. While tb..is Is not 

specifically addressed in the Act, it 15 

reasonable to usllple that members of 

temporary task forces, composed or per~

sonnel of several agencies, l!bould usual

ly be considered employees of the lead 

acency and of their own agency ror pur· 

l)OI;e6 of. access to informaUon. 8imUarly, 

members or permanent. "atrilte rorees" 

and personnel crossdeslgnated to .serve 

the runctions or two or more' agencies 

should U&Ually be treated as employees 

or both the lead. agency and their own employing agency, e.g., employees or 

State or local omctab asslgned to or· gan1Ze<l crime, and customs otneers cross designated to perfrom each others func~

Uons. 

Individual. SUbaectiOD (a) (2) "The 

term 'individual' means a citiZen ot the 

United States or an alJen lawrully ad~

mUted for permanent residence;" 

ThIs deftnitlon Is Intended to "distinguish between the rights which are given 

to the citizen as all. Individual under th1lI 

Act and the rights or proprietorships, 

businesses, and corporations which are not intended to be covered by this Act. 

This distinction was to IWiure that the 

bill leaves untouched the Federal Government'll 1ntormation activities for such 

purposes as economic regulations. ThIs 

defl.nition was also included to exempt 

from the coveraHe of the bill Intelligence 

IDes and data banks devoted solely to ror~ nationals or matnta.1ned. by the 

State Department, the central IntelU· 

gence Agency and other asencles ror the 

purpose or dealing with nonresident 

aliens and people In .other countries." 

(Senate Report 93-1183, p. 79), 

The laniUage cited above suggests that 

a distinction can be made between IndividuaLs act1n.g In a personal capacity 

and mdivlduals acting In an entrepre~

neurial capacity (e.g., as sale proprle~

tors) and that this del'l.nltlon (and, 

thererore, the Act) was intended to em· 

brace onlY the former. T'h1.s distinction 

Is, of course cruclal to the application 

of the Act since the Act, for the. most 

part, addresses ·'records" which are defined as"· • • 1I\formation about 

Indlviduab" (subsection (a) (4»). Agen. 

des should examine the CQntent of 

the records In question to determine 

whether the WormaUon beIng main~

tained Is, in ract, personal in nature. A 

&eCOOdarY criterion In deciding whether 

the subject at an agency tlle Is, for purPOSeS of the Act, an IndIvidual, is the manner In which the Information Is 

used; i.e" Is the subject dealt with In a personal or entrepreneurial role. 

Files re1at.lng solelY to nonresident 

aUens are not covered by any portion ot 

the Act. Where a. System or records covers both e1tJzens and nonrellident alIena, only 

that portion which relates to citizens or 

NOneD 

:esldent aliens Is sUbject to the. Act but 

8i:ew:1es are enoouraaed. to trea.t such 

Syat.emll as u: they were, in theIr entirety, 

subject to the Act. 

The Act and the leB1slative history Are 

silent llS to whether a decedent may be 

considered to be llIl. individual and 

whether aIlYone may authorize the rIghts 

of the decedent to records pertaining to 

him maintained by _FedetiL1 agencies. It 

woUld appear that the thrust of the Act was to provide certain statutory rla;hts to 

living as opposed to deceased indiViduals. 

But for the provillion enabling pa.rents to 

act on behalf of minors and lfWlrdians to 

act on behalt of those deemed to be In~

competent, the rights of an individual 

provided by the Privacy Act could not 

have been utlllzed In their behalf by 

those Interested. The failure 01 !.he Privacy Act to so provide for decedents and 

the overaU thrust of the Act-that 1ndlw 

viduals be given tbe opportunity to judge 

for themselves how, and the extent to 

which, certain tnrormation about them 

malnt&.lned by Federal agencies is used, 

and the tnipliclt personal judHement Jn~

volved in tbis thrust-Indicates that the 

Act did not contemplate permitting rel~

atives and other Interested parties to ex~

ercLse rights iTanted by the Privacy Act 

to Individuals alter the demise of those 

individuals. These same records, however, 

may pertain as well to those livIng persons who might otherwise seek to exer­ cise the decedent's right with regard to 

that Information and thereby be covered 

by the Privacy Act. P'urthermore, access to a decedent's records may be had in 

various judicial rorums as a part of, or 

ancillary to, other proceedings. 

Maintain. Subsection (a) (3) "The 

term 'malntaln' includes maintain, collect, use, or disseminate;" 

The term "maIntain" is used In two 

ways In the Privacy Act. 

First, It is used to connote the various 

record keeping functions to which the 

requirement&of the Act apply; 1.e., ma1n~

taininH, collecting, uslna', or disseminating, 'I'hw, wberever the word "maintain" 

appears with reference to a record, one 

shoUld understand 1t to mean coUect, 

use, or disseminate or any combination 

of any of these record-keeptns functions. 

second, It is used to connote control 

<Wer and hence resl'JOnslbUlty and ac­ countabllity ror :systems of records. This 

Is extremely important given the clvU 

and criminal sanctions In subsections 

(H) and (I) for faUure to comply with 

certain provisions. The applicability of 

certain provisions, Including the exemptions in subsections (J) and (k), can be 

determined by an B.Kency·s ability to 

demonstrate thlilt it has effective control 

over a system of reCQrds. see. for exam· pie, subsections (b) (I), (d), (e)(ll, (el 

(9), (g), and (f) wherein the term 

"m.aJntaln" clearly means having efIec~

tive control over a system of records. To 

have effective control of a system of rec­ ords does not neeessarlly mean to have 

physical control of the system. When 

records are disclosed to Agency B from a system or records maintained by Agency 

A, they are then considered to be malntalned by Agency B (as well as .Agency 

A) and are subject to all of the provl~

sions of Ule Act In the same m.t.nner as thouah Aceney B bad orlg1naJ.ly compUed 

them. U one agency tUJ'1:l& over a record rrom. U.Il system of reeords to a second 

agency and that record Is placed in a 

separate system of records maintained 

by the second agency. then the record 

becomes part of the system of records 

maintained by the second agency and 

all of the published material as to the 

second agency's system of records would 

apply to the record moved Into its sysI<m. 

The requirements or subsection (m) 

rous\. also be carefully considered in determlnlni which systems are to be con­ sidered as "mainta1ned:' Le., controlled 

by an agency within. the terms of the 

Act. Subsection (m) stipUlates that sys~

terns of recorda Operlllte4 under can· tract or, in some instances, State or local governments operating under Fed~

eral mandates "b)" or on behalf or the 

agency . . . to accomplish an agency 

function" are subject to the provisions of 

Section 3 of the Act. The Intent of this 

pl'ovision Is to make it clear that the sys~

tems "maintained" by an aHency are not 

limited to those operated by agency personnel on agency premises but Include 

certain systems operated pursuant to the 

terms of a contract to which the agency 

Is a party. The qualifying phrase "00 ac~

compllsh an agency function" Umlu; the 

applicability of llubsectlon Cm) to th06e 

systems directly related to the perrorm~

ance of Federal agency functions by ex­ cluding from lu; coverage s~tems which are Il.nanced, In whole or part, with F!'d~

eral funds, but which are managed b) 

state or local governments for the benefit of State or local gO\lerrunents. R~cord.-Sub.sectlon (a) (4) "The term 

'record' means any Item, collection 01' 

Hrouping or Intonna.Uon about an Individual that is maintatned by an agency. 

including, but not limited to, hb education, financial transacUollll, medical history, and criminal or employment hls~

tory and that contains his name. or the 

identifying number, symbol, or other 

idenWylng particular assIgned to the 

Individual. such as a finger or voice print 

or a phot/Ji'raph;" 

The term "record", as defined for purposes of the Act, means a tangible or 

documentary record (as opposed. to a rec­ ord contained In someone's memory) and 

has a broader meaning than the term 

com.n;tonly has when used 1n connection 

with record~keeping systems. (It may 

also differ from the usual definition of It 

computer record.) An understanding of 

the term "l'ecord", as it Is used In the 

Act, Is essential In Interpreting the 

meaning or many or the Act's reqlli!-cments. 

A "record" 

Means any item of inrormation about an individual UJat Indudes an individualidentill.er: 

Includes any grouping of such item'" 

of ~nformat.lon (it should not be confused with the use of the term record 

In the conventional .sense or as used in 

the automaUc data processinH (ADP) 

community) ; 

Doe& not distlniu1&b betoften data and 

Information; both are vdthln the 3COpe 

or the deftnltlon; and 

FlOUAt IEGISTU, VOL 40, NO. 131_W~ONESOAY, JULY', 1915 
28952 

Includes Individual Ident1fters In any 

t.9rm InclucUng. but not limited to, ftnger 

prtnts, voice prints and photographs. 

The phrase "ldenuty1ng particular" 

sUggests any element of data (nam.,

number) or oU1er descriptor (finger 

print, voice print, photographs) which 

can be used to identify an Individual. 

Ident1!yin&' partJ,cule.rs are not always 

unique O,e.• many Individuals share the 

same name) but when they are not 

unique (e.g., name) they are Individually 

asslgned-as distinguished from generic 

charactertstlcs. 

The term. "record" was deftned "to 

assure the intent that a record can include as UtUe as 'one descrlptlve Item 

about an indiVIdual." (Congressional 

Record. p. 821818. December 17, 1974: 

&nd p. Bl224e. December 18. 1974:). 'rh1s 

de1in1t1on "includee the record or present registration, or membership In an orp­ nIzatton or activity, or admIssion to an 

institution." (Benate Report 93-1183. p. 

79). (WhUe this language was wrItten 

with reference to the detlnJUon of the 

term "personeI information" in tke 

Senate bW, It woUld appear to be equally 

lLPpl1cable to the term "record" as used 

in the Act.) 

A record, by this deftnJtion, can be 

part of another record. Therefore pro~

hlbitlons on the disclosure of a record, 

tor example, apply not only to the entire 

record in the conventional sense (such 

as a. record In a. computer system), but 

a.Iso to any Item or grouping of Items 

trODl. a record provided that such groupIna' includes an indiVidual Identifter. 

SIlJteni 01 Record.s'. Subsection (a) (5)

"The term 'system of records' means a grou.p of any records under the control 

Of any alency from which lnfonnatlon 

Is retrieved by the name of the indiv1dual or by some i~entlfylng number. symbol, or other Jdentifylng particular assigned 

to the indiv1dual;" 

The de1ln1tloh of "system of records" 

llmlt6 the appUcablll~y of some of the 

provisions of the Act to "records" which are maintained by an agency, retrieved 

by individual IdentUler (I.e., there 1rs a.n 

mdexing or retrieve} capabUlty using 

ldentilytng Particulars, as dIscussed 

above, built Into the system), and the 

agency does, in fact, retrieve records 

about individuals by reference to some personal1dentul.er. 

A system of records for purposes of 

the Act must meet all ot the following three criteria.: 

It must consist of records. See dlscus~

siOM of "record" (a) (4), above. 

It 'must be "under the control of" an 

agency. 

It must consist of records retrieved by 

reterence to an indlv1dual name or some other personaJ.ident1fl.er. 

The phrase"· • • under the control 

of any agency • • ." was intended to 

acoompllsh two sepa.rate PUl'J)OeeS: (1) 

To determine possession and establish 

acoountabiUty; and (2) to separate 

agency records from recorda which a.re 

maintained personally by' employeee of an agency but whJch are not arency rec· .......
 

NOTICES
 

A3 prl"vlously noted, the deftnJtlon of 

"maintWl" was broadened _to encompass 

all systems used bY Federal agencies. The 

phrase"· • • under the control of any 

agency • • ." in the deftrutlon ot "sn~

tem of records" wa.s not Intended to 

eliminate from the coverage of the Act 

any of those systems (which would large~

1Y negate the deftnltion of "malntatn"), 

but rather was intended to asslgJ;!. respon~

stblUty to a particular agency to dls~

charge the obligations established by the 

Privacy Act. An agency ts responsible 

for those Systems which are ". • • 

under the control of" that agency. The 

concept of POSSeSSion Implicit In this 

phrase Is &.Iso app&.nlnt in the Ia.nguaae 

whtch beiPns most of the operatlve subsections of the Act. For example, the 

concept ls evident althouah taclt in subsectIon (b); exprea 1n subBe<:tJon (c) 

"under Its control • • ." ". • • that 

maint4tJns a system of recorda • • ." 

In subsections (d), (e) and (1); "aaency 

records" In subsection (I), and ..... any system of records within the 

agency" in subsection (j) and (k). 

The intent was, despite the ditrerent 

wordlng for each subsection, not to have 

each of the subsections apply to a d1l!er~

ent roster of systems of records, but to 

express, In tenns of possession, tor which 

systems of records an agency was re~

sponslble. 

'The second purpose of the phrase was to distingUish "agency records" from 

th066 records which, altl10USh in the 

physical possession of agency employees 

and used by them In perfonning omclal 

functions, were not considered "agency 

records." Uncirculated Personal notes, 

papers and records which are retained or discarded at the a.uthor's dIscretion 

and over which the agency exercises no control or dom1n1on (e.I., personal tele~

phone lists) are not considered to be 

agency records within the meaning of 

t4e Privacy Act. ThLs dJstl.nction 18 em­ bodied, in part, In the phrase "under the 

control of" an ae:ency as well a.s In the 

deftnJtlon of "record" (~ U.S.C. 5~2(a)

(4) ). 

An agency shall not classify records, 

whtch are controlled and maintained by 

It. a.s non~agency records, in order to 

avoid publishing notices ot their ex1st~

ence, prevent a.ccess bY the Individuals 

to whom they pertain, or otherwise evade 

the reQuirement6 of the act. 

The "are retrieved by" criterion 1mpIles that the grouping of records under 

the control of an agency Is accessed by 

the a.gency by use of a personal Identifter; not merely that a caPlLbUlty or potential for retrieVal exists. For example, 

an agency reoord~keeping system on ftnns It 1'eiUlates may contaJn "records" 

(I.e.. Personal Information) about oMcers 

of the firm Incident to evaluating the 

ftnn's perronnance. Even though these 

are clearly "records" under the control 

of" an agency, they would not be con­ aldered part of a system as defined by· 

the Act unJe&l the agency accessed them 

by reference to a personal Identlfler 

(name, etc.). That 15, it these hypothetJ.~

cal "records" are never retrieved except 

by reference to company Ident1.tler or 

some other nonpersonal Indexing scheme 

(e.g., type of finn) they are not a part of 

a system of records. Agencies will neces~

sarily have to make detennlnatlons on a system-by~system basts. 

Considerable latitude 15 lett to the 

agency in deftnJng the scope or grouping 

of records which constitute a system. 

Conceivably aU the "records" for a par~

ticular progmm can be considered a single system or the agency may con­ sider it appropriate to segment a system 

by function or geographic unit and treat 

each segment as a "system". The Im~

pllcatlons of these decisions and some llmltations on them are d1scussed in 

connection with subeectJ.on (e) (f), pub~

l1catlon of the annual notice. Briefly. the 

two considerations which the alJ8ncy 

should take into account in ita dec1fllons 

are 

Ita ab1lity to comply with the require· 

menta of the Act and facWtate the exer~

else of the rights of individuals: and 

The cost and convenience to the 

agency, but only to the extent consistent 

with the Drst consideration. 

Stati,tical Record. SubsectJon (a) (6) 

"The term 'statistical record' means a record In a system of records maintained 

for statistical research or reporting pur_ 

poses only and not used In whole or In 

part In making any determination about an identifiable Indlv1dual, except as provided by section 8 of title 13;" 

A "statistical record", for purposes of 

this Act, Is a record In a system of records 

that Is not used by anyone in making any 

determination about an Indiv1dual. This means that, for a record. to qualify as a "statistical record", It-must be held in a system which Is separated from systems 

(some perhaps containing the same information) which contain records that are used in any manner in ma.k.lni de~

clslons about the rights, benefits, or en~

tltlements of an Identifiable Individual. 

The teqn "ldenUftable individual" Is 

used to distinguish detennlnatlons about 

specltlc individuals from determ1na.~lons

about aggregates of Individuals as, for 

example, census data are used to apPOr. 

tion funds on the basis of POpula.t1on. 

By this detlnttion, It a.ppea.rs tha.t some so-called "research recorda" whicb are 

only used for analytic purposes qualify as "statistical records" under the Act It 

they a.re not used tn making determinations. A "determination" Is deftned as 

"any decision atrectlng the indivtdual 

which is In whole or In part based on In~

formation contained in the record and 

which Is made by any person or any 

agency." (House Report 93-1416, p. 15.) 

Most of the records of the Bureau of 

the census ue considered to be "statistical records" even though, pursuant to 

section 8 ot title 13, UnJted States Code, 

the Census Bureau Is authorized to "fur~

nlsh transcripts of census records for 

genealogical and other proper purposes 

and to make special statistical surveys fr~m census data for a fee upon request." 

(House report 93-1416, p. 12) 

In applytng this de1inltlon, It might 

be helpful to d1st1ngu1sh three types of 

collections or groupings of information 

about individuals: (l) Statistical CODl~

ROfaAl mlsna, VOL 40, NO. 132-WfDNfSDAY, JULY 9, 1975 
pUaUona "hlch, because Uley cannat be 

1denWled w1.th I.n4lvk1uaJl., are noL aloW­ .sect to the &t at all: (:1:) "recot"Ck" 

ma1nta1Dec1 Ia1d1 ror the- of 

COl'DP1UD.I .tal:1atiQ-.....hich aft.\be t7Pes 

of rftOr'd& covered by (a.) <I): and (3) 

"records" 00 IDdivJduala whkb. are used 

both to eompUe IIitaUatJa; and a1ao ror other PlU'POSeI. e... a crIm1nal h1aton 

record used both to compUe Individual 

.taUstlcl and to ....tat a Jud&e In making 

.. 5eDteDclna decta10n aboUt. the Indi­

.k1ual to wbom, the I"flCOnJ peru1ns, 

wb1cb is DOt .. "ltadstkIJ reeon:L" 

'Ihe term ".tatlaUc:a1 rECOrd" is uaed 

In s-uhKcUon (kJ (0, spec1tIc uempOono. 

Rout/ne we. Bub&ecUan Cal ('l') "'lbe 

term 't<JuUne 1JIe' means, with resPeet. to 

U1e d1sdOSUfe of .. record, the use ot .uch 

record rar .. P\UllCIM wh1cb Ia compaUbIe 

.Uh tbe PW'POM lor whkb It ..... col­ Iod<d.• 

ODe f1 \be prtma:y abjeeUves of the 

Act Is to restrtet. the U&e ot 1.ntarm&Uon 

to the J)UI'pOBes lor wb1ch It ewIected. 'lbe tum "routine use" tnt.roduc@d to recccnlze the pneUeal UmJt&­

tklm of ratrktlnl uae ot tntorm&Uon to 

1!:QlDclt. aoc1 eo:wd PUlPQIoes t« wbJcb. 

It. ..... coUected. It recap"'''' &hat. there are CIllI"OI1at)' PUJl)ClIC!iI "compatible W'1t.h. 

the PUJlI(llIf: tor whkb. Ulle 1.ntormaUonJ ..... eollected" that. are approtniate and 

lar lobe e.tIIclent. conduct. of 

100000000000nt and In Lbe beat. Int.erest. of 

boLb. lbe lnd1V1dual and. the publk. RoutiDe .. tDclude "t.nnater of WOrm&­

Uon to the 'ITeuury Ore~t.to complete payroll ebecb. the recdpt or Warm&tIon by the 8oc1&J. Becurit;y Ad.m1n1Itratlon to complete QuarterlY ~tinI" or accounts. or other luch housekeeping meuure- and neceua.rU}! fuquent Inter­ ..~y or lntn.-acenc:y tn.naren or tnl0rmaU0n." (Conaress!onal Record p. 

82181l!. Dec.em.ber 11'. lin and p. 

HI22U. December 18. 1974> 

AddtUonalruldance on the conctptual 

bula lor "routine \lHI" Ia tound In the 

ltat.ement. or CoJ\l1'l!$Sman Moorhead.on 

Ute Howe 1l.oor; 

It would be aD Iznpoulbt, IeJIala.U.e u.1t to .tteznpt to _t forth au of the "Pproprlate _ of r.a.,... I"KOr"lk .bout aD l4eD~ble

1Q4t.1II~. It .. DOt the p~ of the bill 

to ~t INch onItD&rJ u.-. of the La.torID&Uoo. Rather U1&D. attlJDptlDJ to apeclf, 

u.cb. proper UM of INch rwc:orda. th, bill Ii." hC!l Peden.! "-DCJ' the authorlt, to eat fonJ:!. the "routlD,,, purpoeea fOC' "'bleb 

the recorda ue to be uaed. und.er the JUldoonta.loecl I.D \be COznm1tt,ee'. report. 

1D thy; MIIM "routme UM" dots not .n­ COIDpNlJ 1IW'ltl, t.be _ aDCl Gr'llI.DUy

- to W'hlch an put., but .zaG lDduos. &11 of the PftlPU ua4 IloeCeUU'y __ 

....D If an, web ... oeeun 1nfl'equenU,. 

Pur RNnple, lDdi.ld\1&J 1Il~ retum 

an rouU-t, UMd fot aUdlt1llr Lbe 

determUl&tloa of UltI amouat of a. due aIld 

flll' til coIleetloo of eueb tal: b, 

en1\. procMCl1llp. TbIt1 an 1_ CIfteD 

~r. for rUerft1 to the JuatlC8 Depart... 

ZDo!IIt flll' ~ble sm-cuUoo 1Il 

Ulot ...ant ot P<*IbIe baud or tall 

tbou&b. _ ..woWd. uwua thatNcb rUernl 

ill bl::Iproper, Ulua t.be "rouuzae" 11M Of aueb 

recot"lIa &Dd INbeKUoa (b) (Il znllht be "Pproprlatet, CIIllaGrutcl to petmlt the lDtem.t 

Roa"Due a.rne. to lIat til It.. l'elfuJ.UONl 

a\lith a nfernl .. a "rouUlle UN." 

NOnas 

Aaa1ll. U a hderal agellcf 'ue!1 .. Lb. ~Il&: e.o4 tttblul. Dn-elopzn,nt ~_

z-nt or u... Ul&Il Bu.me. A~l:k:a

wen 10 e-r • P-t_ baledw.at 

Idl.eme lD ODe ot Ita It COlIId ""IoD. 

UMIf"'... It dote SOd&y. mG' the nl"'aDt 

or the 8I:DaJJ. BI.la1nna Mm1Il1at$UGD 

l.D..-tJptory vm. tb& PBL 

Mr. C1aIrm&D. the bill obnllUlJ' I.e DOt 

JDtellde4 to prohibit .uch D-.y u_ 

changee. ot InformatioD. pl'O'Ikllltf: II.. rule. 

malllnc pcvmd.urw an JolkJonod. Ie .. 

lIl~ 10 probJI)lt ~tultoQa, eel boc, .ot-w.. 

eezalDau.:.D for prt...t.e Of ot.benriM tJnc1:I. Ia:r P1l!'pOH&. To thlll aMI. It tI'OIIlcI be aua. 

dent If aD ICCl:IC7 publ1lbee .. a ""1'CNUlW 

11M" of IQ lDfgrm.UoIl ptbend hi an.r 

P'aal that all appanDt 'IlolaUon of \be Ie", 

wUl be refernd to t.be appropra.t.e I•••D: 

fOC"CeUJellt authorlu.. for tIl...uea.UOQ. aIld 

~lble at.aun.l. PZ'llMO:UUOIl. et'fU OOtIrt ac. 

tIon. or ~toryordu. (COftgrUfiOlICl~_

0I'lt. NODrJnber Zl. J"4, p. HIDH2) 

In dlscusaInl' the l'lnal I.ancuaa'e ot the 

Act.. 8eDator E:n1n aDd eonare-m.an 

Koorbead, In a1mUar .catementl aa1d 

that. "[t.lbe compromise de1l.n1Uon aboUld. 

serve as a caution to agenela to th1nt 

out. In advance what. usa It wtll make ot 

lD1ormaUon. 'lb1a Ad. ia not mt.eDded. to 

Impose undue burdet::III on the tranater 01 

tnrormaUon to the 'I'reaswy ~t.

to COtIUIIet.e PQrOU ebeeb, the recdp' 

ot tnrormaUoo by the 8oc1&l8ec.urlty Adm1n1lrtraUoo to complete Quarterl:r' port.. 

q ot accounts, or other -uch bouHteeptna measures and neces:sarU,. trequent Int.eracenc.y or Intra-agency tran&l'en of 

1.ntormat.1oo. It ta, however. Intended to 

d1acourace. the unneeas&J"J' bchanle or 

WormatJon to oU1er penona: orlo agen­ da who may not be: as senalUve to the 

coDeetlnl' agency'. raaona tor 1W:n1 &Dd 

Interpret.ing the matutal." (Congruriml. 

at RUOf'rI. December 17, li7., p. SnaIl! 

and December 1'8. 1974. p. H12244). Th1a 

ImpUes. at. least, that a "rouUne \1aIt" 

must. be Dot. only compaUble with. but 

ret-ted to, the PUrPOre tor which the rec. ord Is matntalned; e.... denlopment or a aamptin. frame (or an evaluation study or other .tatlaUcal PUJl)OllN. 

There are certain "routine uses" which are applicable to a subetanUal number 

oC Systems or reccrlla but. which are only 

Perm1s&lble It prOPerly establJ.shed by 

28953 

SUllSECTIOtf lb) CONDITIO~Sor 

'1U<L06UU 

SubIIiecUon (b) "No &l'eaq abaD d1s:­

dose U1.J' reeord wh1ch .. contained in 

a Qat.aD of records by &D;J' me&nI 01 

COInU'Iunler.t1on to IUI7 penon., or to 

anotber agency. uoept. PW'SU&Dt to " 

written reqUU\ by. or ..Ub the prior 

written conaen~ of. the 1nd.induaJ. to 

wboz:n the record pert.alna. UDlesa disclosure of the record would. be-" . 

Thi& aubsecUOn pnmdes that _n 

agem:y may lIot. d.1aclo5e &n7 record con­ t.alned In 1J'st.em or reeon1a. as deftned 

In .ubsectioa (a) (5) above. to &D7 per_ 

IOD or to any other aa:ency un1esa the 

ageney "hIeb malntaina the record 15 

reqnest..ed to do ao by the Indh1dual to 

whcl:n the record PeJ1a1na or the agency 

bu obtained the written ecmaent. or the 

lDd.1ridu&l or U:Ie cl1aeloeure woUld. talJ 

wttbl.o one or more of the cUel"arWs 

I!rl.um!r'&ted kl. aw:-eUona (bUll 

t.hroua:h (11). below. The Phrase "by any 

meana of commun1c:atlon" meana any 

type 01 d18c.lasure (e.... aral disclosure, 

written d1sclOBW"e, electronic or meehankIJ. U'an&fua bet.ween c.omput.era 01 the 

CClrIteDta oIa reeord.J. 

Diaclosure. bo1revu. Is Penn1sIIi1ve not. 

mandator,.. An &gUlC)' ia aU~rl2led to 

.. record tor an,' PtUPCI5e 

enumerated below when 1t. deem. that. 

dJKlosura to be appropria.te &I1d con­ alatent. with the letter and Intent. or the 

Act and tbae KU1deI.1na.. 

Notb.in& In the privacy act. IbouId be 

Interpreted to auUtortu or compel dadosures or: records. not. ot..benr1ae per_ 

m.lt.ted or requIred. to an.yone other than 

the 1nd1Yidual to whom a record. perta1M 

punuant to a requeat bJ' the Indtndual 

for &c.C8U to It. 

Acencles shall not automaUcally d1I. 

dace a record to aomeone other than U1e 

1nd1V1duaJ to whom It. perta1nI almpl1 be­ cause such a d1sc.Iosure Is permJtted by 

I.b.1s SUbsection. Anodes sh&U cooUnue 

to abide by other "eo11SU'alnta on their 

auUtority to dIsClose inConnatian to a U11rd party lnelud.lnr, where appropriate, 

the l1kely e1feet upon the individual ot 

making that disclosure. Except as pretala11led .tat.ementa on a arant. appllca. A disclaeure rnay be eJt.her the transfer 

aC a record or Ute mnUn, ot ac.cesa to tIon or sU&PeCted (raud on a cont.ract. 

a record. O1&closurea to an lnvestliaUve _,eDC)' The ract that. &n tnd1"t1duaJ \s In­ In the proeeu ot requeatlnl that. a backtOrmed 01 Ute PW'POSeS lor which iDlor­ ground or aul.tabWt7 InvesUgation be maUon w1ll be used when WormaUOn Is conducted on 1Jld.hotduals being cleared collected pursuant. to sUbsecUon (e) (3) tor aceesa to c1as&1fted 1nJ'0rmaUon, em­ does not. eonsUtute consent. 

ployment 011 oontracta, 01' appointment. 'lbere are two In.ltances In whIch con­ to a poslUon WIthin the aamcy. sent to d1acIose a record tDJrht be acThe Act tivelY &Oucht. by an agenc,. 11 e wIth_ lurther UmJt8 the extent to 

out. waldna" (or the Indhidual ·fequest. which clisclosurea can be made as ~rou­ 1hat. a dbc.losure be made). tiDe uses" by an agency to eI­ DLscIosure woukI properJ:y be a "rout.ahI.1sh the "f'OUt1De uses· oIWormat.ion Une U3e" (b) (3» but. d1lJcloeure Ia pro-­

In each anWn or recor'dl wbk:h It maiD. PQIed to be made before the 30 day 

t.aiDs by P1lbIlsblnJ a deelanUon 01 in­ noUce period: e.g.. the agenq hi developing a aampl1na- hame (or an en.Iuation tent In the Fna.u. R&cJaTU." thereby RUdy or a stat1st1cal pragram dlrect.1y pennJttln. publk re'9'lnr and. c:ommeni related to the J1'UI'1I08e tor which the (au~ (e) (11». record.,.. establlp"'~

each agency:	 scribed. In .ubaecUon (dHI), (indivIdual 

Dlsclosures aceesa to 1"flCOrd.s) t.h1s Act. does nat re­ to a la" entorcement Quire disclosw-e at a record to &J1YOI1e 

pected In connection with the adm1nIa­ othu than the lndlY1dllBJ to whom the a,MlCY When cr1mI.na.I mIseonduet. Ia aua­

_nl...;aIm. traUon or a prorram; e.I.• apparently 

nOllAl. tfGIstn. VOL 40, NO. U2-WlDNlSDAY, JUly 9, 197' 
28954 

DisclOsure 15 unrelated to the purpose 

tor which the record Is maintained but 

the indJvldual may wish to eject to have 

his or her record disclosed; e.g., to have 

lnlormation on a: Federal employment 

application referred to State agencies or to pennlt information on such an applIcation to be checked against other Federal agency's records. 

In either case, bowever. care must be 

exercised to assure that the language of 

the request is not coercive and that any 

consequences of refusing to consent are made clear. It is particularly important 

that the impression not be created that 

consent to disclose is a prerequisite to 

obtaining a beneftt when It 18 not. 

The consent provision ot this subsec· 

tlOD was not intended to permit a blanket or open-ended consent clause; l.e" one which would permit the agency to disclose a record without Undt. At a mlnl~

mum, the consent clause shouJd state the 

general purposes tor, or types of recipients, to Which disclosure may be made. 

A record in a system ot records may be 

d1IlclOlled without elUter II. request from or the written consent ot the indlvldual 

to whom the record pertains only 1t disclosure 111 authorized below. 

DfIlclosure within the A"enct/. Subsection (b)(l) "To those'omcers and em· 

ployees ot the agency which mainta.tns 

the record who have a need tor the rec­ ord in the performance of Uleir duties;" 

ThIB provb1on ls based on a "need to 

know" concept. Bee also definition ot 

"agency," (11.)(1>. It ls recognized that 

agency personnel require access to rec­ ords to dischallle their duties. In discus· 

alng the conditions ot dbcloaure provla10n generally, the House Committee 

said that "It Is not the Committee's intent to impede the orderly l:anduct of 

government or delay services performed 

in the Interest.s ot the individual. Under 

the condItional disclosure provisions of 

the bill, 'routine' transfers wW be permitted without the necessity ot prior 

written consent. A 'non_routine' transfer 

is generally one in which the personal 

information on an individual Is used for a purpose other than originally intended." (House Report 93-1416, p. 12). 

This discussion suggests that some constralnt.s on the transter of records 

within the agency were intended irrespective of the deOnition of asencY. Min1mally, the recipient omcer or employee 

must hl\ve an omclal "need to know," 

The language would also seem to imply 

that the use should be generally related 

to the purpose for which the record is 

maintained. 

Movement of records between personnei of dlfteI'f:nt agencies may in some instances, be vIewed as Intra-agency disclosures 11 that movement Is In connec­ Uon wtUl an inter-agency support agreement. Por example, the payroll records 

compUed by Agency A to support Agency 

B In a crOll8-service arrangement are, 

arguably, be1n&' maintained by Agency A as It It were an employee of Aa'ency B, 

WhUe such trlUlSfers woulll meet the 

criteria both for Intra-agency disclosure 

and "routine use," they should be mated as Intra·ageocy dl.sclOSUEeIlI tor pl1J'P086S 

of the accounUng requllemenu (e) (0. 

NOTICES
 

In this case, however, Aa'ency B would 

remain responsible anll liable tor the 

malDtenance of such records In coo­ formance with the Act. 

It should be noted that the conditions 

of disclosure la~age makes no specLflc 

provision for disclosures expressJy re­ qu1red by law other than 5 U.S.C. 552. 

Such disclosures, which aI'f: In "effect eon· gresslonally-mandated "routine uses:' 

should stID be established as "routine 

uses" pUtSl,lant to SUbsections <e) UI) 

and (e) (4) (D). This Is not to suggest 

that a "routine use" must be specl1lcallY 

PI'f:scribed in law. 

DUCJ08UTt to the Publtc. SubsecUon 

(b) (2) "ReQuired under section 652 of 

this title;" Subsection (b) (2) 1s intended 

"to preserve tbe status quo as Interpreted 

by Ule court.s regarding Ule disclosure of 

personal information" to the public undel' Ule Freedom of Information Act 

(Congre,rtonal Record p. 821817, December 1'1', 1974 and p. H12244, December 18, 

19'14), It absolves the agency of any obligation to obtain the consent of an IndivIdual. before dlacloslng a record about 

him or her to a member of Ule public to 

whom the agency Is required to disclose 

lJuch Information under the Freedom of 

Information Act and permlt.s an agency 

to withhold a record about an IndiVidual 

from a member of the public only to Ule 

extent that It Is permitted to do so under 

closed (I.e.. they are permitted to be 

552(b)). Given the use of the term "required", agencies may not voluntarUy 

make public any record which they are not required to release <l.e., those that 

they are permitted to withhold) wIthout 

the consent of Ule Individual unless that 

d1scloaure is permitted under one of Ule 

other par..lons of th1a swbsectJon. 

Records which have traditionally been 

consIdered to be in Ule public domain 

and are required to be d1sc.Iosed to the 

pubUc, such as many of Ule final ordJ!rs 

and opinions of quasi-judicial agencies, 

press releases, etc. may be released under 

Ulis provision without waiting for a specific Freedom of Information Act request. 

For example, opinions of Quasi-judicial 

agencies may be sent to counsel for Ule 

parties and to legal reporting services, 

and press releases may be Issued by 

agen,cles deallng with. publ1c record ma.tters ",uch B.lI suits commenced or agency 

proceedings Initiated. Records which Ule 

agency would eJect to dtsclose to the pubI1c but which are not required to be disclosed (I.e.. they are permitted to be 

wUhheld· under the FOIA) may only be 

released to the publlc under the "routine 

use" provision (subSection (b) (3»). Note, 

however, that an agency may not rely on any provb1on of the Freedom of Informatton Act as a blllJ1ll for refusing access to a record to the individual to whom It 

pertaIns. unless such refusal of access is auUlorized by an exemption within the 

PrIvacy Act. see subsections (d)'<1) and 

(g) below. 

DUclosure lor a "Routine Utlt". Subsection (b) (3l "For a routine use all detined in subsection (a) ('1) of this IJeCtion 

and descrJbed. under subsection (e) (4) 

(D> ofthlsseetion:" 

Records may bf: dLscl.osed without the 

prior consent or the indhidual for a 

"rouUne use", as deftned above, U that 

"routine use" has been established and 

described In the publIc notice about the 

system published pursuant to subsections 

(e) (4) (D>, and (e) (11) below. 

Df$closure to the Bureau 01 the CensUS. 

Subsection (b) (4l "To the Bureau ot the 

Ce,nsus for purposeS of planning or carryIng out a census or survey or related activity pursuant to the provIsJons of title' 

13:" 

Aa'encles may disclose records to Ule 

Census Bureau in indIvidually jdenUft~

able form for use by the Census Bureau 

pursuant to Ule provisiol'Ul of llUe 13, 

(TItle 13 not only ltmlts the uses which 

may be made of these records-but also 

makes them Immune from compulsory disclosure) , Disclosure lor Statistical Research and 

Reportln". Subsection (b) (5) "To a recipient who has provided the agency 

wlUl advance adequate written assurance tqat the record wID be used solely as a 

statistical research 01' reporting record, 

and the record Is' to be transferred In a form that is not Individually Identifiable:" 

Agencies may disclose records for sta~

tlstlcal purposes under limited conditions. The use of the phrase "In a form 

that is not individually idenWlable" means not only that the Jnformatlon 

disclosed or transferred must be 

stripped of Individual Ident1fters but 

also that the Identity of the tndlvJduaJ can not I'f:asonably be deduced by any· one ftom tabulations or other presentations of the Information (i.e., the 

Identity of the IndiVidual can not be de_ 

termined or deduced by combining vari­ ous statistical records or by reference to 

public records or other avaUable sources of information.) See also the discussion 

of "statistical record" ((a) (6l), above. 

Records, whether or not statistical 

records defined In (a) (6), above, may 

be disclosed for statistical research or reporting purPOSeS only alter the alJency 

which maintains the record has received 

aNd evaluated a written statement 

which: 

States the purpose for requesting Ule 

records; and 

Certifies that they w1l1 only be used as statistical records. 

Such written statements will be made 

part of the agency's accounting of disclooures under subsection (e) (1). 

Fundamentally, agencies disclosing 

records under this provisIon are re­ quired to assure Ulat Intonnatlon disclosed for use as a statistical research or reporting record cannot reasonably be 

used in any Way to make determinations 

about individuals. One may Infer from 

the legislative history and other portlODll 

of the Act that an objective of this provision is to reduce the POsslblllty of 

matching and analyaLs of sta~lstical rec­ ords wttlf oUler records to I'f:construct 

Individually Identifiable records. An accounting of disclosures Is not reqUIred 

when agencies pubUsh aggregate data so 

long as no individual member of the 

population co~red can be Identlfted: 

for example, statlstlea- on employee turnover rates. a1clI: leave usaae rate&. 

ffOEtAl 'fOISTU, YOlo .0, NO. 132_WEOHESOA,Y, JULY 9, 197$ 
NOTICES 

Vtewed trom the perspective ot the 

recipient agencies, material thus transterred would not constitute records tor 

its purpooes. 

Disciosure to the Natlona! Archives, 

Subsection (b) (6) "To the National Archives of the United States as a record 

which has sufll.clent historical or other 

value to warrant its continued preservation by the United States Government, or for evaluation by the Admlnlstrator of 

General Services or his designee to determine whether the record has such 

value," 

Agencies may disclose records to the 

National Archives of the United States 

pursUlmt to Section 2103 of Title f4 of 

the United States Code which provides 

for the preservation of records "of his· 

torlcal or other value", This subsection 

«'b) (6» allows not only the transfer of 

records for preservation but also the dis· 

closure of records to the ArchiVist to 

permit a determination as to whether 

preservation under Title 44 is warranted. 

Bee subsections (1) (2) and (1) (3) for a dlscus.slon of constmlnts on the main~

tenance of records by the Archives, 

Records wh'lch arc transferred to Fed~

eral Records Centers for safekeeping or storage do not fall within this category, 

Such transfers are not considered to be 

disclosures within the terms of this Act 

siDce the records remain under the con~

kol of the transferring agency. Federal 

Records Center personnel are acting on behalf of the agency which controls the 

records. See subsection (I) (1), below. 

Disclosure :or Law Enforcement Purposes. Subsection (b) ('1) "To another 

agency or to an Instrumentality of any 

governmental jurisdiction within or un· der the control of the United States for a cIvil or crimlnaJ law enfbrcement activity if the activity is authorized by law, 

and If the head of the agency or instru· 

mentality has made a written request to 

the agency which maintains the record 

specifying the particular portion desired 

and the law enforcement activity for 

which the record Is sought:" 

An agency may, upon receipt of a written request, disclose a record to another 

agency or unit ot State or local government tor a cI.1I or criminal law enforcement activity. The request must specify 

The la.w enforcement purpo,se for 

whJch the record Is requested; and 

The patt1cuIar record requested, 

Blanket requests for all records pertaining to an individual are not permit~

ted. Agencies or other entities Eeeking 

dlscloaure may, of course, seek .a court 

order as a basis for disclosure. see sub· 

section (b) (11). 

A record may also be disclosed to a law 

enforcement agency at the initiative ot 

the agency which maintains the record 

wheI?- a vJolation of law Is suspected; 

provided, That such disclosure has been 

established In advance as a "routine use" 

and that misconduct Is related to the 

purposes tor whIch the records are main· 

talned, For example. certain loan or em· ployment appUcation tnfornlJl.tion may 

be obtal.ned with the understandlni that 

Individuals who knowingly and willfully 

provide lnaccurate or erroneous Information will be subject to criminal prosecu~

tlon. This usage was expliciUy addressed 

by Congressman Moorhead In explaining 

the House bill, on the floor of the House: 

It should be noted that t-he "routine use" 

exception lA In addition to the ex"",ptlon 

provided ror dL'<IIemlnation ror law enrorcement activity under ftubseetlon (b) (7) or the 

bill. Thus a requested record may be dlssem. 

Inated under either the "routine use" e",""'ptlon, the "law enforcement" e",ception, or both sectlons, depending on the clrcumstencea or the case. (ConQresalonal Record November 21, 1974, p. H10962.) 

In that same discussion, additional 

guidance was provided on the term "head 

of the agency" as that term is used In this 

subsection ub»): 

The words "head of the ftgency" de..erve 

elaboration. The conunlttee recognizes thllt 

the heads or Government departments can~

not be e"pected to personally request ench 

or the thousands or records which may pro~

perly be dlSllemlnated under this subsection. 

It that were reqnlred, such onlclllls could not perlorm their other duties, and In many 

Calli'S, the}' could not even pertorm record re~

questing dutlPS alone. Such duties may be 

delegated, like other duties, to other onlclals, 

when absolutely ne"",sasry but never below s 

section chief. and this Is what Is comemplated by .subsection (b)(7). The Attorney 

Oeneral, lor exsnlple. will have the power to delegate the authority to request the thou~

sands or records which may be required lor 

the operation of the Justke Dopartment Under tblS M!etlon. 

It should be noted that this usuage is 

somewhat at variance with the use of the 

term "ageucy head" in SUbsectiOllS 0), 

and (k), rules and exemptions, where 

delegations to this extent are neither 

necessary nor appropriate. 

This subsection permits disclosures for 

law enforcement purposes only to gov~

ernmental agencies "within or under the 

control of the United States." Dfs~

closures to to foreign (as well as to State 

and 10ca1) law enforcement agencies 

may, when appropriate, be established as "routine uses." 

Records in law enforcement systems 

may also be disclosed for law enforcement purposes when that disclosure has 

properly been established as a "routine 

use"; e.g" statutorily authorized re­ sponses to properly made queries to the 

National Driver Register; tmnsfer by a law enforcement agency of protect.lve 

intelllgence tnfonnation to the Secret 

ServIce. 

Disclosure under Emergency Circumstances. Subsection (b) (8) "To a person 

pursuant to a showing of compelling clr~

cumstances affecting the health or safety 

of an individual if upon such disclosure 

notification Is transmitted to the last 

known address of such individual;" 

AgencIes may disclose records when, 

for example, the time required to obtain 

the consent of the individual to whom 

the record pert8Jns might result In a delay whJch could Impair the health or safety of an individual; as in the release 

ot medical records on a patient under~

going emergency treatment, The Indlvid_ 

uaJ pertaining to whom records are 

disclosed need not necessarily be the in~

dlvldual whose health or safety is at 

peril; e,g., release of dental records on several Individuals In order to identify an individual who was injured in an accIdent. 

Disclosure to the Congress. Subsection 

(b) (9) "To either House of Congress, or, 

to the extent of matter within Its juris· 

diction, any commIttee or subcommittee 

thereof. any jolnt committee of Congress or subcommittee of any such joint 

committee;" 

This language does not authorize the 

disclosure of a record to members of 

Congress acting In their Individual ca­ pacities without the consent of the IIl~

dividual. 

Disclosure to the General Accounting 

Ot!iee. Subsection (bHIO) "To ·the 

Comptroller General, or any of his au~

thorl7.ed representatives, In the course of 

the performance of the duties of the 

General Accounting Office;" 

Disclosure Pursuant to Court Arder, 

Subsection (bJ (II) "Pursuant to the 

order .of a court of competent judsdlc­ tiOI1... 

SUllSlo:CT10N (c) ACCOUNTING OF C£RTAIN 

DISCLOSURES 

Subscction eCI "Each agency. with re­ spect to each system of record under 

its control, shall-" 

When Accounting Is Required. Sub· 

section (c) (1 I "Except for disclosures 

made under subsections (b) (1) or (b) 

(2) of this section, keep an a"curate 

accounting of­

"IA) The date. nature, and purpose of 

each disclosure of a record to any person or to another agency made under subsection (b) of this section; and 

"(B) The name and addrcss of the 

Person or agency to whom the disclosure 

is made;" 

An accounting Is required 

For disclosures outside the agency even when such disclosure Is at the re· Quest of the Individual with the written 

consent or at the request of the individual; 

For disclosures for routine uses (see 

(bJl3» ; 

For disclosures to the Bureau of the 

Census (see (b) (4» ; 

}<'or disclosures to a person or another 

agency for staUsUcal research or reporting purposes (St:e (bJ (fi) I ; 

For disclosures to the ArchiVes (see

(b)(6»; 

For disclosures for a law enforcement 

activity consistent with the provislom; 

of subsection (see (b) (7» ; 

For disclosures upon a showing of 

"compelling circumstances" (s~ ,hi 

(8» ; 

For disclosures to the Congress ai' UIC 

Comptroller General (:&l:Ie tb) (9) and 

nO); or For disclosw·t:ll purSUlUlt to U cvuI"T 

order (see (bHll)L 

An acCOWltlng oC du,clc>;urell 1s rwr 

requIred 

For disclosures to t:mploye.::< of \.I.", 

agency malutaLoil,.. Ul<: n~t,;on1 WHO n:.t\ •.. 

a need to have acct:0>511l th~ Pt:cfvuua"",,· 

of their ottlcial dutleti fur thl¢ lttM'O:.'·, 

HDfIAL tEGlsnl. VOL 40, NO, 13'l_WEDNESDAY, JULY 9, 1975 
28956 

(Agencies are requ1red to estabUsh wepardi. punuani to mb6ecUoo (eHIO>, 

to tiIlat 1nd1v1duala -who do no4; 

have a "need to know" wiD not·have ac~

cess'> (see (bl(1));or 

For disclosures to members of the public which would be reqUired under the 

Freedom of InformatIon Act (see 

(b) en). 

(NO'l'Il: That the &Ccountlnc requirement 

11 not one nom wbleb N1 eonergy may 

seek all exemptton under aubeeetlODt 0) 

and (Ir.).) 

"The term 'accounting' rather than 

'record.' (waa used] to Ind1c&te that an qene1 need not make a not~IOD on 

a single document of every dl8elosure or a partJeular record. The a.lJency may use any system It desires tor keeping 

notations of diSCIOIIUres, provided tJ1at 

1t can eonstruct from Ita system a document Ustl.n&: of aJl dlsclosurell." <Bouse 

RepOrt 93-1416, p. 14). For exaniple, U a list of names and other pertinent data 

necessary to Issue payroll or benefit 

checks 18 transferred to a disbursing office outside the agency, the agency transferring the record need not maintain a separate record of such transfer In e&.cll 

individual rec<lrd provided that it can construct the required aecountlni" tnfor~

matton when requested by the 1nd1vldual (subsection (cJ (3» or when neces­ lIary to 1.n.1'0rm previous reciplent.s of any 

corrected. or disputed 1n!ormation (lIubsection (c) (4». The aceountJng should 

also provlde a cross-reference to the 

basis upon which the release was made 

1ncludin&" any written documentation as 

18 required In the case of the release oc. records for statistical or law enforcement 

purposes. 

In some instances, (e.g., InvelitigaUon or prosetution of suspected criminal ac­ tivity) a d1sclo.sure may consist of a con­ tinuing dialogue between two agencies over a period of weeks or months, In 

such a sltuaUon, It may be approprIate 

to make a general notation that, as of a speclfted date, such contact was tnitiated and will be maintained untH the 

conclusion of the case. 

WhHe the accounting of disclosures, 

when maintained apart from the record, 

might be considered a system of records 

under the Act, this could lead to the situation of having to maintain an accountIng of disclosures from the original ac­ counting and having to maintain that 

second accounting for five years, etc. 

Note that subsection <cJ (3) gives an in_ 

dividual a right of access to the accounting which would not have been necessary 

if the accounting were constdered a separate system of record, Therefore, it would seem that the intent was to view the 

accounting of'disclosures as other than a system of records and to conclude that an accounting need not be maintained for 

disclosures from the accounting of disclosures. 

Retaining the Accounting 0/ Disclosures. Subsection (c) (2) "Retain the 

accounting made under p'aragra.ph (1) 

oC this subsection for at least five years 

or the HCe of the record, whichever is 

NOTICES
 

loDPr, atter1he cl1Ieloaure for which the ~tlni'Is made;" 

''!'be P'\lIPOI'llB of the acoount1nl are (1) 

to a.llow tndh1duaJa to learn to wbom 

recorda about tbemllelvee have been disclosed (sub&ectlon (d (3»; (2) to provide a basis for subsequently advls1nl re­ ciplentl of recordll of any corrected or disPuted reconl8 (suhaect1on (c) (4) ; 

and (3) to pro'llide iUl audit tra.ll for subsequent reviews of aa:ency compliance 

with subeect10c (bl <condiUoIUI of dls~

closure), lIZ, d16CUSBed above, with respect 

to maintaining the accountln., the s.c. counUng need not be retained on a record 

by record basis as long as the procedures 

adopted by the agency permit It to satisfy 

these obJect1ves. While the accounting Is 

required to be maintained for at least 

five years. nothing In the Act requires 

the retention of the record Itself where 

the record could otherwise lawfully be 

disPOSed of sooner, 

TIle accountlni" Is required to be re­ tained for fl.ve years from the date of 

the dlsclooure unless the record is re­ tained longer. Record retention standards remain as prescribed In appll~able

law and GSA reiUlaUons. 

Making tlu Account'nO' 0/ Disclo.sure" 

Available to the Indivld:uaL Subsection 

(c) (3) "Except for disclosures made 

Wlder subsection (b) (7) of this sectton, 

make the accounting made under paragraph (l) of this subsection available to 

the individual named In the record at hJs 

request;" 

Upon request of the Individual to whom 

the record pertains an agency must make 

aVailable to that lndlvtdual all informa_ 

tion In its accounting of disclosures ex· 

cept those pertaining to disclosures to 

another agency or government instrumentality for law enforcement purposes 

pursuant to subsection (b) (7) tmIess the 

System has been exempted :rom this provision pursuant to subsections (j) or (k). 

Agencies may wish to maintain the ac­ counting of disclosure in such a manner that notations ot disclosures pursuant to 

(b) (7) are readily segregable In order to 

facllltate timely release of the disclosure 

accounting when requested. by the individual. Since the accounting will often 

not be maintained In a form which Is 

rearltly comprehenslb:.e to the individual, 

the process ot "making the ll.CCoWlting 

available" may entail some transformation of the aceountlng by the agency so 90S to make it intelllg1ble to the indivIdual. 

This may require the agency to compile, 

from the accounting, a list of those to 

whom the record was disclosed. 

In/orming Prior Recipients 0/ Cor· 

rected or Disputed: Records. SUbsection 

(c) (4) "Inform any person or other 

agency about any correction or notation 

of dispute made by the agency In accord· ance with subsection (d) of this section 

of any record that has been disclosed to 

the person or agency If an accounting of 

the disclosure was made," 

When a record is corrected at the re­ quest of an individual acting in accord_ 

ance with subsection (dl (2) or a statement of dispute Is filed as provtded In 

subsection <d) (3), the agency malntalntns the record shall notify tech acencY or person to which Ute record bas been 

d18cloeed. of·the exact nature of the cor· raction or that a notation 01 dlIpu. has 

made, If \;be reclpient '9118.11 another 

agency, that agency is requIred. in tum, 

to notify those to whom It d1scloeed ~e

record, 

nus requtremmt does not apply to 

disclosures to per&Onnei within the 

agency with a "need to know" or to the 

pubUc under t.he Freedom or lnforma· 

tlon Ad (subsectl.OIUI <b) (I) and (2») 

or to disclosures made prior' to 8eptember 27, 1975 for which no aceounUng was nw1e. (Note that the language in sub· 

section (c) (4) dl1I'ers from the COrTe· 

spending language In H.R. 18373 80 tha.t 

the Bouse rePOrt discussion of this pro· 

vision is no longer applicable). 

Given the definition at "record" (a 

record may be construed to be a part of 

another record) and the language ot 

SUbsection (d) (4), below, It would a.ppear 

that the notification of correction or of 

the nlins of a statement 01' d.1.sqreement 

Is required only to. the extent that the 

correction or disagreement pertaiN to 

the 1n!ormatlon actually dIscloaed; 1.e., 

recipients of a. portJon of a. record other 

than the portion whlch Is 8UbeequentlY 

corrected or disputed need not be informed. Where there Is any doubt as to 

whether the corrected 1n!orma.tlon was 

included In or might be releV&l\t to l\. 

previous dlsclosure, aa:enctes should 

notify the recipients in QUestion.. 

The language of thm subsection ex­ plicitly requires only that prIor recipients 

be notified of corrections made pursuant 

to a request to amend a record by an individual and does not address records 

corrected for other reasons: e.g., agency 

statr detects erroneous data or a. third 

party source provtdes corrected 1n!orma.-­

tion. Nevertheless, agencies are encour· aged to provIde corrected 1n10nnaticm to 

prevIous recipients, irrespective ot the means by whlch the correction was made 

whenever It is deemed feasible to do so If Information included In a. previous dis~

closure was changed particularly when 

the agency is aware that the correction 

is relevant to the recipient's uses Irre~

specttve of the means by whlch the cor­ rection Is made. 

SUIS£CTION (d) ACCESS TO R£COROS 

Subsection (dl "Each agency that 

maJntains a system of record shall....,.-" 

individual Access to Records. Subsection (dl (II "Upon request by an individual to gain access to his record or to 

any information pertaining to him which 

is contained In the system, permit him 

and upon his request, a person of his own choosing to aCCl>mpany him, to review 

the record and have l\. COpy made of all or any partlon thereof in a fonn com~

prehensibJe to him, except that the 

agency may require the Individual to 

furnish a written statement authorizing 

discussion of that Individual's record In 

the accompanying person·s presence;" 

An agency must, upon request: (l \ 

Inform an individual whet.her a system or records cont~ins a record or records 

FEDERAL REGISTER, VOL 40. NO. 132_WEO~U~OAY, JULY 9. 1975 
pertalnlng to him. (2) permit an tndl· 

vidual to review any record perta1n1ng 

to him which Is contained In a system 

of records, (3) permit the individual to 

be accompanied for the purpose by a person of his choosing, and (4) permit 

the Individual to obtain a copy of any 

such record tn a form comprehensible to 

him at a reasonable cost, This provision 

It should be noted, gives an individual 

the right of access only to records which are contained In a system of records, 

See (a) (5), above. 

This language further suggest.'> that 

the Congress did not Intend to require 

that an individual be given access to Information which the agency does not 

retrieve by reference to his or her name or some other Identifying particular. See 

subseetlon (a) (5), It an Individual Is 

named 10 a record about someone else 

(or some other-type of entity) and the 

agency only retrieves the portion pertaining to him by re'ference to the other 

person's name (or some organIzationl 

subject Identlner), the agency Ls not re­ Quired to grant him access. Indeed, If 

thls were not the case, It would be nec­ essary to estatl1sh elaborate cross­ references among records, thereby Increasing the potential for privacy abuses. 

The follOWing examples Illustrate some applications of thts standard. 

1. A record on Joan Doe as an employee 

In a ftle of employees from which mate_ 

rtal is accessed by reference to her name (or some identifying number). ThLs 1s 

the simplest case of a record In a system 

of records and Joan Doe would have a rtght ot access. 2. A reference to Joan Doe In a record 

about James Smith In the same me. This 

Ls also a record within a system but Joan 

Doe would not have to be granted access unlesB the agency had devised and used an lodex1nll' ea,pabUlty to gain access t.o 

her record 10 James-Smith's ftJe. 

3. A record about Joan Doe In a con­ tract source evaluation file about her 

employer, Corporation X, which is not 

accessed by reference to individuals' 

names, or other identifying pa.rt1culars. 

Thls is a record which Is not 10 a system 

of recorda and,' therefore, Joan Doe 

would not have a right of access to It. 

If, as In 2, above, an indexing capabWty were developed and used, however, such a system woUld become a system of reeords to which Joan Doe would have a right of access. Aienctes may establish fees for making 

copies ot an indIVIdUal's record but not 

tor the Cotlt of &ellJ'Chlng for a record or reVlewtns: It (subsection en (I)). When 

the ~ncy makes a copy ot a record as a necesstU'Y part of Its process of making 

the record avallable for reVIew (as dlstt.ngu1ahed trom reapondina to a request 

by an Individual tor a copy ot a record). 

no fee may be charged. ItshoUld be noted 

that this prov:IsJon ditl'ers from the ~­

cess and toes provtaiOO$ ot the Freedom 

of Information Act.. 

The rrantinl' of acoess may not be eon·' 

dltioned upon &D1 reQU1rement to sta.te a reason or otherwise Jwtuy the need to raln-. 

NOTICES 

All"encles shall establish requirements 

to verily the identity of the reqUester. 

Such requlremenUl shall be kept to a minImum. They shall only be established 

when necessary reasonably to assure that an indiVIdual Is not improperly granted access to records pertaining to another 

Individual and shall not unduly Impede 

the Individual's right of access. Procedures for verlIylog Identity wUl vary de- . pending upon the nature of the records 

to which access Is sought. For example, no verification of Identity will be re­ Qulred of individuals seeklnll" access to 

records which are otherwise avallable to 

any member of the public under 5 U.S.C. 

552, the Freedom of Information Act. 

However, far more strlogent measures should be utilized when the records 

sought to be accessed are medical or other sensitive records. 

For individuals who seek access in ,Person, requirements for verltl.catlon of 

identity shoUld r~ limited to information or documenUl which an lodlvldual Is 

llkely to have readily available (e.g., a drlver's license, employee identiflcatlon 

card, Medicare card). However, if the Individual can provide no other suitable 

documentation, the agency should re­ Quest a signed statement from the individual asserting his or her identity and 

stJpulatlng that the Individual under· 

stands that knowingly or willfully seeking or obtaining access to records about 

another Indivi"':ual under talse pretenses 

Is punishable iJy a flne of up to $5,000. 

(Subsection (I) (3).) 

For Systems to which access Is granted by mail (by virtue of their location) 

verltl.catlon of Identity may consist of the 

providing of certain mlnlmum IdentifyIng data; e.g., name, date of birth, or system personal Ident1tl.er (If known to 

the Individuall . Where the sensitivity at 

the data warranUl it; (I.e., unauthorized access could cause harm or embarrassment to the indivIdual), a signed notarized statement may be required or other 

reasonable means of verltying Identity 

which the agency may determine to be 

necessary, depending on the degree of 

sensitivity of the data Involved. 

Non:: That aectlon 7 of the Act forblda an agency to deny an Individual any right (In­ cluding I.Cce!53 to .. record) tor retuelng to 

d1aCl08e .. Social. Security Number unleea dls_ 

cloaul'1l ill reqUired by Federal atatute or by other laws or regulations adopted prior to 

January I. 1976. 

Agencies are also permitted to require 

that an individual who wishes to be accompanied by another pe¥SOn when re­ viewing a record furnish a. written sbite. 

ment author!z1ng discussion of his or her 

record In the presence of the accompanyina person. Th1s provision may not be 

used to require that indiVIduals who re­ quest access and wish to authorize other 

persons to accompany them provide any 

reasons for the a.ceesa or tor the accompanying person's presence. It 1B deaill"ned 

to avoid disputes over whether the In· 

dividual poa.nted pennlsalon tar' d18cloaute ot information to the accomp&l1J1ng 

".,.,... 

28957 

Agency procedures for complying with 

the individual acces:; provisIons will nec­ essarily vary depending upon the size 

and nature ot the system of records. 

Large computer-based Systems of rec­ ords clearly reqU1re a different approach 

than do small, reglonA.lIy dispersed, man­ ually mA.intaincd systems. Nevertheless 

the basic requlremenUl are constant, 

namely the right of the Individual to 

have access to a record pertaining 1.0 

him and to have a COpy made of all or any portion of such records In a form 

which Is comprehensible to him. Putting 

information Into a comprehensible form 

suggests converting computer codes to 

their literal meaning but not necessarily an extensive tutorial In the agency's procedures In which the record Is used. 

Neither the requirements to grant ac­ tess nor to provide copies necessarUy 

require that the physical record Itself be 

made available. The form In which the 

record Is kept (e,g., on magnetic tape) or the context of the record (e.g.. access to a elocument may disclose records about 

other individuals which are not relevant 

to the request) may require that a rec­ ord be extracted or translated In some manner; e.g.. to expunge the Identity 

of a confidential source. Whenever possible, however, the requested record 

should be made available in the form in 

which It Is maintained by the agency and 

the extraction or translation process 

may not be used to withhold information 

in a record about the individual who rep 

queSUl it unless the denial ot access Is 

speciflcally provided for under rules Isw 

sued pursuant to one of the exemption 

provisions (subsections (J) and (kl). 

Subsection (f) (3) provides that agencies may establish "a special procedure, 

it deemed necellSary, for the disclaaure 

to an individual of medical recordll, Including psychological records, pertalntng to him." In addressing thla provision the House committee aatd: 

If, In the JUdgment of the agency. the 

tnmllml&slon or lIledlcal Information dlreo=tIy to a requeBtlng Individual could bave an adveree elfect upon Buch individual. the 

rules whIch the agency promUlgates should 

proVide lIleane whet'<!by an Indlvld"lal who 

","ou.ld be advenely alleo=ted by receipt of 

lIuch data may be apprleed of It In • manner which ","ould not cause s"Ich adveme ellecl.5. 

An example of a rule Mlntlng lIuch purpOlle

wou.ld be tnmsmllllilOll. to a doc!.ol' n~ed. by 

the requesting Individual. (Hou.se Rflport 93­

Ho16, pp. UJ-17) 

ThUS. wblle tbe right of lndlvlduals to 

bave access to medical and psychological 

records pertaln1ng to them 1a clear. the 

nature and circumstances of the dlscloBure may warrant special procedures. 

While the Act provides no apeelftc 

guidance on this subject, agencies should 

acknowledge requests for access to rec­ ords within 10 days of receipt of the re­ Quest (excluding saturdays, Sundays, 

a.nd legal public bo11days). Wherever 

prtl(:tlcable, that acknowledgement 

ahould indicate whether or not 8CU8S 

can be granted and. if so, when. When 

accees Ia to be granted, agencies wUl 

normaJJy provide to a record 

within 30 dan (excludlnr Satw'daYB, 

ROnAL 1EGtsrn, VOL 40, NO. 132_WEDNESDAY, JU~Y 9. 1975 
28958 

SundaYs, and. lea:aJ pUbllc hol1da:YI) unIesI, tor .004 C&uae abown, the)' are unable to do 110, In which caae the individual should be informed In wrttlng within 

30 days lL! to tbo8e reMOm and when it 

Is anticipated that access w1ll be IrT'anted. 

A "good cause" might be the- tact that 

the record .la inactive and stored in a records eenter and, therefore, not as readily accessible. See subsection (l) (1). 

Presumably, in such cases the rbk ot an adverse deternunatton beIng made on the bases ot a record to which access Is 

sought and whleh the Individual mi.ht 

choose to ehallenge J.s relatively low. 

Reque,tI lor Amending ReeonU. Subsection (d) C;U "PennJt the Jnd1Vtdual to 

request amendment ot a record pertain1ng to h1m and-" 

Ageneles mall establish procedures to 

give individuals the opportun1ty to reqllest that their records be amended. The 

procooW'es may permit the Individual 

to present a request either in person, by 

telephone, or through the mall but the 

process shoUld not normally require that 

the Individual present the request in 

person. 11 the ageney deems It appropriate, It may require the requests be made 

in writing, whether' presented in person or through the mail. Instructlom tor 

the preparation ot a request and any 

forms employed should be as brief and as simple as p(W;lbie. 11 a request is re­ ceived on obher than a prescribed form, 

the agency should not reject It or request 

resubmlsslon unless additional Information Is essential to process the. request. 

In that case, the inquiry to the individual should be limited. to obtaln1ng the 

needed additional information, not re­ submission ot the entire request. Incomplete or inaccurate requests should not 

be rejected categorically. The individual 

should be asked to clarify the request as needed. Requests presented In person 

should be screened briefly while the IndIvidual Is stili present, wherever possible. 

to assure that the request Is complete so that clarlfteation may be obtained on the 

spot. 

These provlslons for amending records are not intended to permit the alteration 

of evidence presented In the course of Judicial. quasi-Judicial or quasi-legislative 

proceedings. Any changes In SUch records 

should be made only through the established procedures consistent with the adversary process. These provisions are not 

designed to permit collateral at~ack upon 

that which has already been tlle subject 

o( a judicial or quasj.judlcial action. For 

example. these provisions are not de-­

signed to permit an Individual to challenge a conviction for a criminal offense 

received in another torum or to reopen 

the assessment of a tax liability, but the 

indiVidual would be able to challenge the 

fact that CQlIvlction or liability has been 

inaccurately recorded in his records. 

The agency shOUld also require verification of Identity to assure that the re­ questors are seeking to amend records 

pertaining to themselves and not, Inadvertently or Intentionally, the records o( 

other indiViduals. 

Acknowledgement 01 RNuests to 

NOTICES
 

Amend Recordl. Subsection (d) (2) ('A) 

"Not la-ter than 10 days (excluding. Baturda-ys, Sunday&, and legal pubUc holtdan) a-tter the date of receipt ot such 

request, acknowledge In writing such re­ ceipt: and" 

A written acknowledgement by the 

agency ot the receipt of a request to 

amend a record must be provided to the 

indIvidual within io days (excluding 

Saturdays, Sundays, and legal public 

holidays). The acknowledgement shoUld 

clearly descr1be the request (a copy ot 

the request fonn may be appended to the 

acknowledge-ment) and advise the indlvldual when he or Ilbe may expect to be 

advised ot action taken on the request. 

No separate acknowledgement of re­ ceipt Is necessary it the request can be 

reviewed, processed, and the individual 

advised o( the resUlts of the revlew 

(whether complied with or denied) 

wIthin the 10-day pertod.: 

For requests presented in person, wrltl.C'n acknowledgement should be provided 

at the time the request is presented. 

ActWn3 Required on ReQuests to 

Amend Records. Subsection (d) (2) (B) 

"PrompUy, either 

(I) Make any eornoctlon at any p<.!rtlon there(>t which the Indlvlduel believes lB not 

accurata, relevant, timely. or completa: or (Uj Inform the l.Ddlvtdu&1 or ItII refusal to amllnd the record In accordance with hili re­ quest, the reuon tor the ffltUaaJ, tbe proce­ durea establls.hed. by the agency tor the Individual to request a fflvlew of the refuaal by tbe head ot tbe agency or an omcer desig­ nated by the hllad of thll agency, and the 

namll and buelneu addl'eee ot that omclal; 

In reviewing an Individual's request to 

amend a record, agencies should, wher­ ever practicable, complete the review 

and advise the Individual of the results 

within 10 days of the receipt of the re· quest. Prompt action Is necessary both 

to assW'e tQat records are as aCcurate as possible nnd to reduce the administrative ellort which would otherwise be 

Involved in Issuing a separate acknowledgement ot the receipt of the request 

and subsequently Informing the indJvidual of the acUon taken. It the nature 

of the request or the system of records 

precludes completing the review within 

10 days, the required acknowledgement 

(subsection (d) (2) (A) above.> must be 

provided within ten days and the review 

should be completed as soon as reason­ ably possible, normally within 30 days 

from the re<:elpt of the request (excluding Saturdays, Sundays. and legal public 

holidays) unless unusual circumstances 

preclude completing action within that 

time. (The number of cases on which 

the agency was unable to act within 30 

days will be included In the annual re­ port (subsection (p». It the expected 

completion date tor the review indicated 

in the acknowledgement cannot be met, 

the individual should be advised of that 

delay ltnd of a revised date when the 

review may be expected to be completed. 

"Unusual circumstances" can be 

viewed as sltuatloJlJl in which records 

cannot be reviewed Ulfough the agency's 

Dormltl process. By definition, such cases would, statistically, be the exception. A 

review which enmUs obta1DJna: a\lPP'OriIna data from retired recorda or trom 

another agenCY and. which COUld not, 

therefore be completed wIthin the required time might quality. 

In reviewing a record in respo!'lBe to a request to amend It, the agency mould 

assess the accura.cy, relevance, ttmellness, or completeness ot the record in 

terms of the criteria established in subsection (e) (5), I.e., to assure fairness to 

the Individual to whom the record pertains In any determination about that 

Individual which may be made on the 

basis ot that record. 

With respect to requests to delete Intormatlon, agencies must heed the criteria established In subsection (e) (1). 

namely, that the Infonnatfon must be 

". • • relevant and necessa.ry to ac­ complish a statutory purpose or the 

agency required to be aceompllshed by 

law or by executive order ot the President." This is not to suggest that agencies may routinely maintain Irrelevant or unnecessary Information unless It is 

challenged by an Individual, but rather 

that receipt of a request to delete Information shoUld cause the agency to re­ consider the need tor such 1n1onnatton. 

Reviews In connection with the development of a system, the preparation at trle 

public notice and the description ot the 

purposes Cor which It Is maintaIned and 

perlod1c reviews of the system, to assure that only· information which is neces­ sary tor the lawful pW'poses tor which 

the system ot records was established Is 

maintained In It wlil be the primary 

vehicles for assuring that only relevant 

and necessary information Is maintaIned. 

Agency standards for reviewing records 

In response to a request to l'Ullend them 

may, at the agency's option. be included as part ot the rules promulgated pursuant to subsection ([1(4). Generally, it 

would seem reasonable to conclude that 

such standards for review need be no more stringent than Is reasonably neccs­ sary to meet the general criteria in sUbse<:Uons fe) (1) and (e) (5) for accuracy, 

relevance, timeliness, and completeness. 

Judicial review Is avaUable for agency 

determinations to grant an indivIdual 

aCCe3S and to amend or not amend a record pertaining to the Individual. While 

the definite burden of proof for granting access Is upon the agency in such judicial 

review, In the judicial review of Ute re­ fusal of an agency to amend a record 

then is no similar burden upon the 

agency. An analogous standard may be 

utilized by the agencies in establishing 

standards for review of Individual re­ quests for amendments of records. The 

burden of going forward coUld be placed 

upan the individUal who In tno6t Instances will know better than the agency 

tbe rea.sollS why the record should be 

amended. It would be appropriate. in 

agency regUlations setting torth the 

standards they wtll use upon review of 

such request, Ulat Ule individual be re­ quired to supply certain IDfocmatton in 

support of his request (or amendment of 

the record. The request would then be 

FI.DEIAL I£GISTU, VOL 40, NO. 132_WEDNHDAY, JULY 9, 1915 
28959 

approprtate for resolution uJ)On deter'­

m1n&Uon of Xl"'pooderanoe ot e'rideuce, 

U the ....ency &grees with the lDdlvictual'lI request. to amend a ~rd,. Ule 

"OOCY ohaIl­ AdY1ae tne IndtvidutJ; 

OOrTflCt t.he ncord acoocdJ.D&.bt; and 

Where an ac:couDUni of d1acloIures ha.s 

been mack,. ac1Y1ae all prevloUi reclpients 

of the record or the filet. UlaI. the cor­ neUm Willi made and. the aubst&nce of 

lbeeorrecUon. 

If t.he agency, after Ita 1n1t1aJ. review of 

a request. to amend a record., c1.llIIIcr'ee:l 

w1t.h all or any porUon thereof, \.he 

81ency shall 

To the ext.ent that the aa:eney 

with any part of 'Ule indivldu.al'lI request 

to amend, proceed &II deacribed above 

with respect to those portloDII of the 

record which 11. has amended. 

Advise the individual of Ita refusal and 

the reaaona therefor lncludl.na: t.he crU.e· 

rt& for detenn1nina: accUr&ey which were employed by t.he aa:ency \n conducting 

the review: 

Inform the lndIvldual that he or she 

may request. & turt.ber review by the 

aa:eocy belld or by an oMcer of the ageney 

dell1plated by the a.cency head: and 

Deecrlbe the procedures for request.1n&" 

lIuch a review iDcJuc1tDa: the name and 

addreIIII of the omcl&l to whom t.he reqDe8t aboWd be ~ted.. The procedures 

abould be .. 81mple and brier u POUlble 

arul should 1nd1cate where the individual 

can IIeek advice or I15Sllltance in obta1n1na: 

such a review. 

U the recipient of the corrected InformaUon Ls an qeJ1Cy and 15 maint&1n1ng 

the lnformaUon whIch wu tlOrrected in a antem of recorda, 11. must correct Ita 

recorda and, undu subsection (c) (4), apprise any agency or person to wh1ch 11. 

had d15closed the record. of the ntb6tance 

of the correction. Sub6equent recipient 

acenclea should similarly correct their 

records and advJ.se those to whom they 

had d.l3closed Jt. Agenclu are encouraged 

to eatabUsh in their rea:uJaUons, time 

11m.lt.a by whlch, except under unUllua1 

ctrcum..stancea:, tranafereee of any 

amendment to a record. 

RequuUng a Remew 0/ the Agencu'~

Re/wal To Amend a Record. Subsection 

(d) (3) "PermU the individual who d1s­

&([tftlI with the refusal of the agency to 

amend hl.s record to request a review of 

such refUll&1, and not later than 30 days 

(exc!ud1n&' Saturdays, Sundays, and legal 

pubUc hoUcan) from the date on whIch 

the I.ndJvlduai requesta such review, complete such review, and make a 11n.al determ1Datlon unless, for rood cause shown, the head. of the agency extends 

luch 3O-day period; and if. after hili re­ mw, the revlewtna' omc1al aIaord'uaea to 

&mend t.be record in accordance with the 

request., permI~ the tndJvidUal to tue with 

the aleney a eonc1se statement aettlnl' 

forth the reasons for hla d.l..aqreement 

wIth the refusal of the &a:eney, &net notify 

the tnd.Jvidu.al of the prov1al.ons for Judldal review of the rev1ewinl o1!lclaJ.'l de­

\ermlDatlon UDder aubeectlon(a:) (I) (A) 

ot thlll section;" 

NOTICES 

An mdi"ridual wbe c1I.aaa:reea wltb. an 

acencTI tn1t1al reIuISal to amend a record 

ma.y me a rtlql.lellt for furt.ber review 01 

tbal detumlnaUon. 'Ihe ..eney head 01' 

an oflloer of the ....ency desl.a:nated tn 

wrl.ttng by the ..mey head Ihol.Ild undertake an independent review of the InItial de\erm1naUon. If someone other 

than the aeency head III designated to 

conduct the review, 11. abouJd be an ofll­ eer who III orpnl.u.UonaU,y Independent 

of or 5eI1ior to the oftker or employee who 

made the InltJal de1.ennlnaUon. For purposes of th15 section. an "oniou" ts del'lned to be ". " " a Justice or judl:e of 

the Unlted States and an individual who 

I>­

(I) RequIred b, law to be appo1.D.ted. lIl. 

the ch'U lor mllltat)'l" M"Ie. by one of t.be 

followllll act1ll1 In an 0lIk1al caploCltyI"lt I....utDed that, wbU. the lanf\lap 

abo"e does not speclflcall, CO'fer It, a mliltary omen otherwlM qUalUI.~ SolI the reviewing 

otllcW would be permUte<! to Mne SolI the 

reviewing otllclal.] , 

(A) The P""ldent: 

(B) A court or the United St.tes:
 

(CJ The he&<:!. of an EUl;uthe agene,: or
 (D) The 8eerel.f,.ry of • D1J1.ltar}' departID.6nt; 

(2) Ena:"It'd In the performance or a P'ederal function under authority of ta. Of' an. BueuU.. act.: LEllt 

(3) 8ubl~ to tht' ,upenlalon of an au· 

thortty named. by pangrapb (1) of thla sec­ tion, or Uw .Judldal Oonfenu,CII of tbe 

UDlted Slates, wbUe In tbe ~rton:Dano!. ot the duUes of ba otI.lee. (.5 U.s.C. 

2104(a» • 

DelegaUona mUllt be made tn writing. 

In conducUnc the review, the review1na 

omclal should uae the c:rit.erla of accumcy, relevance, timeliness, and. com­ pleLene55 c11scusaed above. The reviewtna: 

oniclal may, at hill or her OPtion, seell: 

such add.lttonal1n!onnat1oD &1115 deemed 

necessa.ry to saUlty th06e criteria: ie., 

to estabUsh that the record contalna 

only that tnfonnat.lon which ts necessary 

and 15 as accurate, Unlety, and complete 

as DeCe&5&ry to UIIure fa1rne55 in any det.ermlnaUon which may be made about 

the ind1viduaI on U!.e basla ot record. 

Althoolh there III no requJcetnent. for a formal hea.rlna:, pursuant to the provtslons of 5 U.S,C, 556, the aa:ency may 

elect generally or on a ca&e by case buill 

to use such or s1mllar procedures. The 

procedures elected by the q:ency, however, should tnaure fa.lmeas to the individual and. prom.ptnees tn the tletenntnaUon. The procedures mould provide 

thM as mUch of the lnfoanaUon upon 

whtc.h the det.ermlnat1on 11 baaed u possible 18 part of the written record concerning the appeal. The recorda of the 

appeaJ procesa should be maintained by 

agendes only IIlI lona: u 18 reasonably 

necessa.ry for PUJ'P()IWlII of Judicial review 

of the agency', refusal to ammd a record 

UPOn_ 

U, a.tter conducuna: this review, the 

reviewtng otlk:laI a1ao re!w;es to amend 

the record in accordance with the indi. 

vidual's request, t.he aaeoey IIha1llldvtse 

the 1od1vtdua1: 

Of It.a refUM1 and the reasons therefor; 

Of hill or her rlaht to ftle a conclR 

statement ot the Ind.lvldual's rea.sons for ~Ina with the dedalon ot the 

agency: 

Of the prooedW"eS for tw.ne a statement of disagreement: 

'I'ha.t. any such statement wID be made 

available to anyone to whom the record 

1s aubsequenUy dis<:losed together WIth, 

It the acency deems It appropriate, a brief statemenl by t.he aaenc:r Iwhmarlzlna Ita reUOll5 for refUll1nc to 

amend the record: 

That prior recJplent.s of the dJsputed 

record w1ll be provided a copy of an,y 

statement of dispute to the v:tenl U1at an accountllia: ot dIseIosures 1'1&11 maJnta1ned (see INb6ecUon (c) (4»: and 

Ot hill or her right to :seek JudIcial review of the lIII'eIlCY'S refusal to amend a record prov1ded for In aubeectlon 

(g) (I) (A). below. 

U the reviewing oniclal determines that 

the record ahould be amended In accord­ ance with the individual's request, the 

aaency shoWd proceed all prescribed In 

subsection (d) (2) (B) (J), above: namely, 

correct Lhe record, advl5e the individual, 

and Inform prevlous recipients. 

A notaUon of a dispute III reQU1red to 

be made only It an Indlvidual1n!orma the 

agency of hili or her dIsa~t with 

the ..eney's determlnaUon under subsection <dl (3) (appeals procedure) not 

to amend a record. 

A Anal qenc.,y det.e.rm.l.naUon on the 

individual's request for a reflew of an 

..ency'.lnItI.al refusal to amend a record 

must be completed within 30 days unless 

t.he ....ency helld dete.n:nlnes that a fair 

and equJtable review cannot be completed 

In that Ulne. U IIdditional time 111 required, the Jndlvfdual shoUld be Infonntd 

in writing of the reasoDa for the delay 

and of the approz.lmate date on "INch 

the review 15 expected to be complettd. 

SUch extensions should not be rouUne 

and should not normally exceed an addJ· 

tional thirty days. AgeneJeII wW be re­ qulrf!d to report the nUmber of cases tn 

which review was not completed within 

30 days u part of the annual report

(subsection (pl). 

DLscl08ure of disputed Information. 

Subsection (d) (01) "In any d.lscIOlure, 

contalnJ.ng lnformaUon about which the 

Individual has ftJed & statement of dJaagreement, occurring after the nUna: of 

t.he statement under paragraph (It) of 

th15 SUbsection, clearly note any J)Ortlon 

of the record which III dUiputed and provide copies of the statement and. U the ..eney deems It approprtat.e, copies of a 

concise statement of the reasons of Ule 

&lency for not mak1n&' the a.mendmenta 

requested, to persons or other qencles 

to whom the disputed record has been 

d1sclO6ed"; 

When an lndJvidual tuea a statement 

with the aeeney'. declaion 

not to amend a record, the agency shOUld 

clearly annotate the record 10 that the 

fact that the record is disputed 111 apparent to an,yone who may .w.eque.nUy 

access, use, or dlscloee It. The notaUon 

ItseU moUld be tntegraJ to the record 

I'lDlIAL 1I01STtl, VOL 4(1, NO. 132-WEnNUDAY, JULY'. 1'7J 
28960 

and apecU\c to the POrUon 1n dispute.

For automated 8)'.tema of reeords, the 

not.aUOD may constat of a special ind1ea~

tor all. the enUre record or the specl1lc PlU't of the record In dispUte. The statements of dispute need not be 

malnta1ned as an lnt.ea'ral part of the 

records to wbleb they pert&1n. They should, however, be fUed in such a man­ ner aa to permit them to be retrieved 

readIly whenever the disputed portion of 

the record ls to be dtaclo8ed. 

U there 15 any queat10n loll to whether 

the dlspute pertaln.s to Jntonnation beJng 

disclosed, the statement of dispute 

should be Included. 

When lntormaUon which 16 the subject 

of a statement of dispute Is subsequenUy 

disclosed, agenc1es must note that the In· 

formation Is d!.sputed and provide a copy 

of the individual's statement. 

Agencies may. at their discretion. include a brie1' summ&rY of t.helr reasons lor not ma~ a correction when disclosing dlsputed tnfonnation. Such statement.s will normallY be Umited to the reasons stated to the lndh1dual under 

subsection Cdl (2) (B) (U) and (d) (3), 

above. Copies of the qency's statement 

need not be maintained as' an integraJ. 

part of the record but wUl be treated as part of the tncUvldual's record for purposes of lI'a~tlng the 1nd1vlduaJ. access. subsection (d) (1). However, the agency's 

statement will not be lIubJect to subsections (d) (2) or (3) (amendlili records). 

Acus! to /nlormatiMl CompUed in 

Anticipation 01 ~vlJ Action. Subsection 

(d) (~) "HoUma; tn th1ll section ahallllJlow an individual access to any Information compUed in reasonable anticipation 

of a civU action or proceeding." 

This prov1sl.0n Is not intended to predude access bY an lndlvidual to records 

which are avaUable to that individual 

under other procedures (e.g., pre-trial 

discovery). It Is Intended to preclude es­ tablishing by this Act a basis for access to material being prepared for use in 

litigation othel' than that estabUshed 

under other processes such as the Pree~

dom of Information Act or the rules of 

civU procedure. 

Excerpt".a from the House ftoor debate on thb provision 8U"est that this prov:isian was not intended to cover access to 

systems of records complied or used for 

purposes other than litlption. 

Mr. Ea.l.hf__• Mr. Cbalnnton. u I Undefetand It. the purpoM at the amendment g to 

protect, as an elemple, the IUe or the U.s. 

attorney or the sollcltor the.t 18 pre~d In 

e.ntlcl.l"otiOD or the defense ot a suit asa1nst 

the United. Statu tor accident or eome such 

tll1n.? 

Mr. DtlTt.D. 'Fhat 1s the eubleet we he.ve tn 

mind. 

Mr. EIIu:N8OllR. I appreciate tbe sentleman'. concern. I th1nlr. It 1$ a real conce,Ul, 

alld that protec\l.OIl. ought to be atrorded. 

The only problem I flnd. w.tth that amendmellt Is this: It would. presupp__ tntel.lCied. tbe dell.ulng or "reoon1 SYlft.em." to 

pr......lutle that type o! ffloorel. I do not- thln1r. 

ope 'Ud. 

H tn...e ..orb or I'«lOJ'de .... to be eon­

~Idel'\'d a r<loCOl'd 5)'S- uncler ~he &ct, Ul.en 

rI,.., ~e,,~, waul(! have to go tlU'Ough an tbe 

f"nn,,1 prOCeed1np or dedtl1ng the system. ,~~ rullUI.\l u:.es, and publlsbll.lS In tile Fln· 

• "A'_ 1"",1:;1(;&. 

NOTICES
 

Pta.nkly, 100 not th1Dk the attorney'. Illea 

that are coU"::~ In ~Uelp&t1OD or a law· 

sutt .lhould be su-t1}ee~ to tbe appUcatlon ot 

the act In aoy lJUl,t&nee, muc!1 leu the access provlBlOD. It Is OW' conCN'n 1D the .c_proY18lon the.t It may th8n preeuppCll5e It 

cover«! In the other prov18lone. and I do not think It shOUld be. 

)(ro. BV"tLQ. Mr. Chairman, I s!:lar8 Uu 

gent.leman·" OOlleern. When thlll amenel­ ment was originally drafted, It eta-ted "ac­ e_ to any reeord" and we struck the word, 

"record," and Inserted "lnrlN'matlon.'· 

80 we made It perteotly cle!U' we were not elen.ting an In1'eetlllatlon wtth the word, 

"record. to the status or fll'COl'd8. We d1d 

want to make It clear there was not to be 

suel> acceM, be<:.use that ac<:l_ would be 

within tile usual rul... or clYJI proeedun. 

Ml". EltLl:HSoaH. Mr. Cbe1rm.n, It the gentleman wiU yield rurther, It IS the sentle­ man·s contentIOn. under hia Interpr&tatlon 

of the act. that the other p1'Ov18lone would not apply to the attorn8y'e flls as well; 18 

that correct? 

Mf. BUTLJ:II. Th8 gentleman 18 correct. (CongTessiol'lol Reco.-d, NOYembef 21, Hl'l4 

p. HI0955). 

While the above pe.ssage refers pri· 

marlly to the defense of suJts by Ute 

government it Is, of course, equally appltcable to the assembly of informt\tion 

In anticipation of guvemment-tnJt.lat:ed 

law sUlts. 

The mere fact that records in a sys· 

tern of recorda are frequently the lNbJeet of Utipt.1oD. does not. bring tho.se 

systems oC records within the scope at 

this provision. The information must be 

"compiled in reasonable anticipation of 

a civil action or proceed1na:" and t.herefore the purPOSe of the compUatJon 10VernB the appUcabtllty of this provision. 

It would seem that in a 8U1t in which 

governmental action or lnacUon 111 chaJ.­

lena:ed the provision generally would not 

be available untU the tnJt1atlon of Utiiatlon or untJI In!onnatlon begllll to be 

compiled In re&.6Qnable anticlpat.1on of 

such litigation. Where the IOvemment. Is 

prosecut.1n1 or seeklnc enforcement of its 

laws or regulations. this provls1on may be 

applicable at the outset it information 

Is being compiled In reasonable a.nt1cl.pa~

tton of a civil actlon or proceeding. The 

term dvH proceedinl( was intended to cover those quasj.judictal and preliminary Judicial steJl6 whk':b are the coun­ terpart. In the civIl sphere of erim1na.L 

proceedinp as OPPOSed to criminal Utlgation. Althouch this PrGvtsJon could 

have Ute etrect at an exemption It 15 not 

subject to t.b.e formal rule-maltlni; procedures which govern t.b.e exemptions 

set forth in Bub6eetion 0) and (It), 

Neverthe1e&s, agencies should utiU.se tbe 

speci1lc exemptions set. forth in sutleec~

tlol:LS (j) aDd (It) to the extent tha.t they 

are applicable before utlll2ing tJUa 

provision. 

SECTION (e) ACEHCY REQUfBEM.UTS 

section. (e) "Each aaeDCY that main· 

t&1Ds a system of records ahall-" 

Restrictiom on CoUicUnl1lnformation 

about IndividtuJl3. Subsection (e) (1) 

"Maintain in its records onb' such information about an individual u Is relevant 

and necessary to accomplish a P\lll)Olle 

of the agency irequired to be accom· 

pUshed by statute or by executive order 

of the Prestdent.;" 

A Itey objective of the Act is to redllce 

the amount of personalinformatlon collected by FedersJ agencies to reduce the 

risk of IntentJonally or inadvertentlY improper use or personal data. In simplest 

terms. Information not collected. about 

an indiVidual cannot. be misused. The Act 

;recognizes, however, tbat agencies need 

to maintain information about. indl~

viduals to discharge t.helr responsibilities etrectively. 

Agencies can derive authority to collect Information aboUt. individuals In one of two ways: 

By the Constitution, a statute, or Executive order explicitly authorldng or directing the maintenance of .a system 

of records; e.g., the Constitution and title 

13 of the United States Code with respect 

to the Cens\ls. 

By the Constitution, a statute, or Ex· 

ecutlve order authorizlnlJ or dlrect1nJr the 

agency to perform a function. the dis· 

charging of which requires the main· 

tenance of a system of records. 

Each agency shall. with respect to each 

system of records which It maintains or proposes to maintain. identity the specillc provision In law which authorizes 

that activity. While the Act does not specifically require it, where feasible, thts 

statutory authority should also be cited 

in the annusJ public notice about the 

system publ1llhed pur8U8.nt to subsection 

Ie) (4). The authority to maintain a SyStem of reeords does not give the agency 

the authority to maintain any information which It deems useful. Agencies shall 

review the natpre of the information 

which they maJntain In their systems of 

records to assure that It i.s, In fact, "relevant and necesu.ry". Information may 

not be maintained merely because it is 

,relevant; it must.be both relevant and nec~, While this determination is, 

In the final analysis, JUdimentaJ., the fol~

low1.og types of quest.lons shall be considered in mllJdna such det.ermlnatlorul: 

How does the information relate to the 

purpose (in law) for whlcb the system 

Is maintaiMd? 

What are the adverse consequenc:es, i1 

any, of not collectina' that information? 

COuld the need be met through the use 

of iDfOrmJitlOD that Is not In lndjvldually 

Ident.1J1abie form? 

Does the InfonnaUon need to be collected. on every individual who is the 

subject of a record in the system 0·· 

would a samplinB' Procedure su!!k:e1 

At what point will the information 

have satisfted the pUl'])(l6ll for which it 

was eoUected; i.e.. how Iona' Is it ne:ces~

aaJ'T to ntain the Information? Consistent with the PedentJ Records.Act and 

related regulations could part of the 

record be pttl"ge(1? 

What 1$ the ftna.nc1al C08t. Of malnt.p.ln~

inr the record aa compared La tbe rlsu! 

adw:rse consequences of not maintaining 

it? 

Is the in!onnat.1oD.. whl1e generally 

~vant and nec6seery to accomplillh a statutory purPOll8, specIfically releY8IIlt 

and necessary only in cert&1n eases? PUr 

example in establishing ftnanc1al need as part of assessing ellglbU1ty for a pro· 

gram for which need Is a IClJltlmate 

F!OEllAtHGI$TEI; VOl. 40. NO. 132_WEIlNESOAY, JULY 9, 197$ 
28961 

criterion, parental income may be relevant only tor certa1n applicants. 

SUbsection (e) (7), below, provides additional criteria goveming the maint.e­ nance of records on the activities of Indlviduals In exeroising their rIghts under 

the First Amendment. 

This provision does not authorize 

agencies to destroy records which they 

aTe required to retain Wlder the Federal 

Records Act. 

Agencies shall assess the legality of, 

need for, and relevance ot the information contained or proposed to be con­ tained In each of its systems of records 

at various t1mes: 

In preparini Initial public notices 

(subsection (e) (4)). 

In connection with the inItial design of a new system of records (subsection (0) ). 

Whenever any change Is proposed in 

system of records (subsection (0». 

At least annually, as part of a regular 

program of review of Its record-keeping 

practices. Thlis should be done for each 

system prior to relssuance of the public 

notice unless a comprehensive review of 

the system or records was conducted 

within the previous year in connection 

with the Initiation of the system or Jmplementatlon of a change to the system. 

This provIsion does not require that 

each agency conduct a detailed review of 

the contents of each record In Its possesslon. Rather, agencies shall coIllSlder the 

relevance of, and nec.ess.lty for. the general categories ot intormatlon maintained and, Incident to using or disc1osing any individual records, examine their 

content to assure compliance with this 

provlslon. 

Itshould be noted that subsection (e) 

Is not intended to interfere with the presentation of evidence by the parties before a quasi-judicial or quasi-legislative 

body, For example, a quasi-Judicial board or commission need not reject otherwise 

admissible evidence because it Is proffered by a part other than the individual 

to whom It relates or because It Is Dot 

"necessary" to the decisIon or Is 'not 

"complete." The normal rules of evidence 

would contains to govem In such sltuations. 

tnformation is to btl CoUected Directlll 

from the tndfmdU4l. Subsection <e) <2f 

"Collect information to the greatest ex­ tent practicable directlY from the subject Individual when the information 

may result in adverse determinations 

NOTICES
 

cable". The notion of protecting the indlvidual lI,g'alnst adverse determinations 

based on Information supplied to other 

agencies tor other purposes Is also em­ bodied in the provisions of sUbsection (b) 

which constrains the transfer of reeords 

between age'ncies: subsection (d) (2), 

which gives individuals the opportunity 

to challenge the accuracy of agency ree­ ords pertaining to them; and subsection 

(e) (4) which prohibits the keeping of 

secret files. 

Except for certain "statistical records" 

(subsection (a) (6»), which, by definition, are "not In whole or In part In makIng a determination about an Individual • 0 0", virtually any other record could

be used, in making a "determination 

about an individual's rights, benefits, or privileges 0 • 0" Including employment.

TIle practical etrect of this provision Is to 

require that information collected for inelusion in any System of records, other 

than "statistical records", should be obtained directlY from the individual when­ ever practicable. 

Practical considerations (indudlng 

cost> may dictate that a third-party 

source, including systems of records 

maintained by another agency, be used as a source of information in some cases. In analyzing each situation where it proposes to collect personal Information 

from a third party source, agencies 

should consider 

The nature of the program: I.e., It may 

well be that the kind of Information 

needed can only be obtained from a third 

party such as Investigations of possible 

criminal misconduct; 

The cost ot collecting the information 

directiy fTOm the indivIdual as compared 

with the cost of collecting it from a third 

party; 

The risk that the particUlar elements 

of Information proposed to be collected 

from third parties, If inaccurate, could 

result In an adverse determination: 

The need to insure the accuracy of In_ 

formation supplied by an Individual by 

verifying it with a third party or 1;0 obtaln a qualitative assessment of his or her 

capablllties (e,g.. In connection with re­ views ot applications tor grants. contracts 

or employment>; and 

Provisions for verifying, whenever pussible, any such third-party information 

with the individual before making a determination based on that Information. 

It should be noted that a determlnaabout an Individual's rights, benefits and· tlon by Agency (A) that It Is in its best 

privileges under f'ederal programs;" 

'I1l.1s provi$l.on stems from a concern that individuals may be denied benefits, 

or that other adverse determinations 

aftectlni them ma.y be made by Federal 

agencies on the basts of information obtalned trom third party sources which 

could be erroneous, outda.l:ed, irr'~levant,

or biased. Th1s provLstOb establishes the 

requirement that decisions under Federal 

Programs which atreet an individual 

should be made on the ~1s or Informatlon supplied by that IndiVldU:ll1 for the 

purpose ot making those determInations 

but reoogn1ses the limitations 

0( this by 1(1mJlIying 1M. requirement 

wUh the wwds "to the extent Pract1­

Interest and consistent with this aubsection to obtain intormation about an 

indiVIdual from Agency (B) instead of 

directly from .the individual does not 

constitute, in a;:td of itself, su1liclent 

grounds for Agency (B) to release that 

Intonnatlon to Agency (A). Agency (Bl 

is minimally required to meet the re­ qulrements of any statutory constraints on the permlssJbllity or making a dis· 

closure to.,Agency (A) Includina: the con­ dItions of dlscIGSure, In subse<:tlon (b). 

'Ibe st.andards and procedu:res set forth 

in the Federal Reports Act (u USC 3501) as they apply to other than individuals as det1ned by this Act remain the same. When Information is sought, however. 

from ten or more indiViduals, as defined 

by,the Privacy Act, In response to Identical questions, the Federal Reports Act 

requirement that the reporting burden 

upon individuals be reduced to a mini­ mum should not be construed to override 

the later enacted requirement that, to 

the greatest practicable extent, information pertaining to Individuals be collected 

directly from them. 

tnforming Individuals from Whom tnformation is Requested. Subsection (e) 

(3) "Inform each individual whom It 

asks to supply Information'. on the form 

which it uses to collect the information or on a separate form that can be re­ tained by the Individual-" 

This provision Is Intended to assure that individuals from whom information 

about themselves Is collected are Informed of the reasons for requesting the 

information, how it may be used, and 

what the consequences are, If any, of not 

providing the information. 

Implicit In this subseetion Is the no­ tion of informed consent since an individual should be provided with suMc1ent 

tntormatlon about the request for Information to make an informed decision on whether or not to respond. Note however. 

that the act of informing the Individual 

of the purpose(s) for which a record may 

be used does not, in and of itself, satisfy 

the requirement to obtain consent for 

disclosing the record. see subsection (bl, 

condItions ot disclosure. 

The Information called (or In paragraphs (A) through (D) below, should 

be included on the information collection 

form, on a tear-otr sheet attached to the 

form, or on a separate sheet which the 

Individual can retain, whkhever ls most 

practical. When Information ls being collected in an Interview, the interviewer 

shoUld provide the Individual with a statement that the Individual can retain. 

However, the Interviewer shoUld also 

orally summarize that informaUon before the interview begins. Agencies may, 

at their discretion, ask the individuals 

to acknowledge in writing that they have 

been duly lnfonned. 

While this pra:vision does not explicitly 

require it, agencies should, where feasible, lnIorm third-party sourees of the 

purposes for which Intonnation which 

they are asked to provide wtU be used. 

In addition, the agency may, under cer­ tain circumstances, assure a source that 

his or her Identity wUl not be revealed 

to the subject of the record (see subsection (k) (2), <$), and <'n). The appropriate use of third-party sources Is discussed. ·In subseetlon (e) (2) above. 

In providing the information required 

by subeectlons (e) (3) (A) through (0), 

below, care shoUld be exercised to assure that eMily understood language is used 

and Ulat the material Is explicit and 

informative without being so lengthy as 

to deter an individual from reading it. 

Intonnation provided pursuant to this 

requirement would not, tor example, be 

as extensive as that contained in the system notice (sub6ectJon <e) (4)). 

It was not tbe lntent or. ihts aubseeUon 

create a rtght the nOnObservance of. 

which, would preclude the use of the 

ffDElAl 1£GlnO, vOt.. 40, NO. lU_WEOHlSOA'(, JUt, 9. 19'75 
2896"l 

informatlon or voId an action taken on 

the bub of that information, Por eJI:&mpIe, a taUure t.o comply with tbil section, 

in collectlna- crop yield data from .. fanner, was not Intended to vlttate a crop Import quot.a based. In part., upon 

such. InfOrmation. However. 6Ueh an Individual may have srouncla for ('Ivil 

action under subsection (I) (1) (D) If he 

can show harm 80S a resUlt of that 

determination. 

Subsection (e) (3) CA) "The auUlority 

(.....hether granted by stat.ute. or by exec­ uUve order or the PresIdent) whJch 

aUlhori%es the solicitation of the Information and whether d1ae!Ollure of such 

InformaUon is mandatoJ7 or voluntary;" 

The agency ahould cite the speclt'lc 

provLs1on in alatute or Executive order 

wb.k:h authorizes the aleney to collect 

the requested.1ntormaUon (see aub5ecUoD 

Ce) (1) above). the brtet title or subject 

or thlt.t. statute or order, and wether or not the collecting agency Ls required to 

Impose penalties for ffLlllnr to respond or is authorIZed to Impose penaltIes. Where 

the system is malnt.a.Jned pufliuan~ to 

5Oml! morl! .Wl!ra1 requlrl!mwt or authority, It should be cited., Thl! question of whether compliance is mandatory or voluntary ls dureren~ from the 

question or whether there are any con­ &eQuwces of not. providlnl' lnformatlon; 

I.e., the law may no~ rl!(lwre lndivlduals 

to apply for a beneftt. but clearly, tor 

.some types of voluntary programs, to 

apply without IIUPPlyln, certain minimal 

Information might preclude an a,ency 

trom makJnl' an Intormed Judltnen$. and 

thl!reby prevent an Individual from 

obtalnlng a beneftt. lBee sUh5l!ctlon 

(e) (S) (D) re,arding the requlrementl!i to 

intorm JDt'llvldual! 01 the dl'ects, 1! any, 

or not prOvidlnl InformatIon.) 

In some llllltances it may be necessary 

to Include required and optional lntormatlon on the same data collection torm. 

This should be avoided to ~he exten~

poaslbll! since the likely effect on some rellpondenta may be coercive: J.e.. they 

may fear that, even though portlollll 

of an Information request are voluntary, 

by falling to respond, I:ttey may be per~

celved to be uncooperative and their 

opportW'llties would thereby be prejudiced, (Bee U U,S.C. 3511, the Federal 

Reports Act.) 

Subsl!CUon Ie) (3) (8) "The principal 

puJ'J)O&e or purposes for which the Information Is Intended to be used;" 

The individual should be Informed of 

the princlpal pur~(s) for which the 

Information 91111 be used; e.g., to evaluate suitability. to 18IIue beneftt payments. 

The de&Crlptlon of purpose(s) mUllt include all major put"pous for which the 

record .....111 be used by the agency which 

mnlntalns It and particularly thOl>f! likely 

1.0 entail determinatloM as to the individual',. rlahts, beneftts, etc. & in &1l 

othl!!r porlJons of the In!ormatlon collection process, pul"J)OSea should be staled 

with suftielent. apeeindty to communicate to an Individual witbout being .50 

lengthy ILS to dlacoura,e reading of the 

noUce. Generally, t.he PUl"POSe!J w1l1 be 

dlreetJ,y relaled to. and necessary tor, 

the PUf'P(l&e authol'1zed by the statute or 

I!!xecuUve order cited above. 

NOTlC!S 

SUbse<:t1on (e) (3) Ie) "The NuUne 

ttSe8 wh1ch may be made ot the 1ntormatlon, as pubUahec1 pursuant paraarapb 

(4) (D) ot thIs subsection; and" 

"Uses" can be d1stinluished fram 

"purpose&" in that "PUrJ)04e.lI" describe 

thl! objl!Ctlves for collecUIli" or maintain· 

1ng Information, whereaa "usea" are the 

specl1lc wayS or processes in which the 

lntonnation is employed lncludlIli" the 

persoDli or agencies to whom the record 

may b6.dlsclosed. For example, the purposes for colll!Cting Information may be 

to evaluate an application for a vetenms' 

benefit and Issue chl!Cb. Usea might inclUde verlfl.eatlon of certain information 

with the Department ot DeteDllC! and release ot cheek-wue data to the TreNUry 

Department, or disclosure to the JwUce 

Department that the appUcant apparenlJ,y lntentionally provided false or mla. 

leading tntonnatlon. 

The term "routine use" is deftned In 

sub6ectlon (a) ('1) to mean the dlsclOlliure 

of a record ". • • for a pUtpol!e whim 

Is compatible with the PW'POle for whlch 

It waa collec~." A "routine use" II one which Is relatable and necessary to a 

putpo6e described pursuan~ to sub6ectlon 

'e) (3) (8), and lnvolves disclosure ou~­

side the agency which maintains the 

rl!COrd. "Routine uses" mwt be included 

not only in the public notice about the 

system of recorda publlshed in accord­ ance with 6ubsectJon (el (4). below, but 

also established In advance by notice In 

the F'KDIIRAL RCClSTU to permit publ1c 

comment. See subsection (e) (II), below. 

The description of "routine uses" provided to the individual at the time Intormation is colll!Cled wtll frequently be a summary of the material pubUshed in 

the public notice pursuant to sub.sl!ctlon 

(e) (4) (D). & with other portions of the 

notlftcatlon to the individual. care should be exercised to tailor the lenath 

and tone of the notice to the circumstances: I.e., the public notIce published 

pursuant to subsection (e) (4) can be 

much more detailed than the notice to 

the Individual appended to an Information colleetlon form. 

SubsecUon (e) (3) (D) "The etreclll on 

him, 1t any, of not provldln. all or any 

part of the reque8ted Information"; 

The Intent of thl6 sUbsection is to allow an individual from whom personal in· 

formation 1a requested to know the effect4 

(benenclal and advel'lle), It any, of not 

providing any part or allot the requested 

Infonnatlon so·that he or she can make 

an Informed decision as to whether to 

provide the tntorrnatlon requested on an :Information collection form or in an 

Interview. 

The individual should be lntormed of 

the deets, 1t any, of no~ respondlD&". 

ThIs should be stated In a manner which 

relates to the purposes tor which the information Is coUl!Cted: e.,., the Intormatlon Is needed to evaluate disabled Yet­ erans for special counael1nl' and tralnln, 

and it a Is not provided, no additional 

tralnlna Will be considered but disabWty annuiUe6 payments 'WlU contJnue. Particular care must be enrelsed in the 

draft1n&: or the worcUnl" of the noUce to 

a.ssure that the respondent to the information ~uest 1a not mbled or inadvertently coerced. 

Publication 0/ the Annl/.4l Notice 0/ 

Sllstenu 01 &corW. BuhsectJon {e> (4) 

"Bubjl!Ct to the provts.10Dll of paragraph 

(11) of thIs subsection, publ.1sh in the 

F'KJ)UAL Rl:GlSJ'D at least annually a. no­ tice ot the e1lst.ence and character ot the 

sy8tem of records, wh1cb notice &hall 

include---" 

The publlc noUce provislon II central. 

to tl'Ie achievement ot one of the bulc 

objectives of the Ac~; t06terin£ agency 

aceountabWty through a ~tem ot publlc 

scrutInY. The pubUc notice provtslon Is 

premJsed on the concept that there 

should be no system at records whose very 

exlstence Is secret. 

The purposea; of the notice are to inform the publ1c. of the exiatence of aystems ot reeorda; 

The kinds ot information maintained; 

The IUncb of lndividua15 on whom information is malntaJned; 

The PUl'p05f!:S for which they are used; and 

Ho'lll' individuals can exercise their 

rl,ht5 under the Act. 

AU ayllems of records D1&.IntaJned by 

an aaency are subject to the annual public notice nqU1rement. (The ,eneral and 

special exempUon sectloDli permit aeendes to omit portions of the notice fOT 

certain aystems. They do nM exempt any 

aaency trom publ.lshJna: a pub11c notice on any sYStem of recorda) . 

Care must be eltercised to aasure that 

the tone, lanauage, level at detaJi IUld 

length of the publIc noUce are considered 

to asaure that the noUce ach}evea the 

obJI!CUve of lntonntng the publlc of the 

nature and P\lfP05eS of agency mtems 

of rl!Cords. 

Dl!ftninl" what consUtutes a "IIY8tem" 

for purposes of preparing a notice wm be 

leIt to agency discretion within the general Ifu1dl!llnes contained herein. (Bee 

also subsection (a) (5». A system can be a small grOUP of rl!Cords or, conceivably, 

the entire complex ot rl!Cords used by an 

agency for a particular program. Several 

factors bear on the determination by the 

agency as to what will conatltute a sys­ tem; 

U each small grouping of records is 

treated as a separate system, then public notices and procedures will be re­ quired tor each. The pubI1catJon of 

numerous noUces may have ths effect or limiting the Informatlon value to the 

public. 

U a large complelt of records is 

treated &8 a 6Ingle system, only one no~

tlee will be requlred but that notice and 

Ule procedures may be oonslderably more complex. 

.A&:encles can f!%pect to be required to 

respond to individual requests for ac­ cess to records pertaJnlng to them at the 

level of detail In their pubUc notices, 

i.e., if an &lency treats Ita reeords tor a particular program as a slnlle syatem, 

i~ may be caUed upon by an Jnd1viduai 

to be I":!ven access to &1l JDlormaUon in 

records perta1n1ng to t.b.at Indh1duaJ. tn 

t.b.e system. 

The p\U'J)05f!la) of a. system is the mod 

JmPOrtant crlterloo in &t6m1nIng 

whether a system 15 to be treated as Ito 

a1nI"1e ayatern or several ayst.ema for the 

PUf"POaeI of the Act. U each of Rveral 

Irl'OUpmp ot aaeDCY records 11 \IIIf!d for a 

FlDllAl tlGlml, VOL 40, NO. 1:l2_WIDNISOAT, JUlT " 1975 
28963 

uniQue IlUl'POSe or set or purpoaes,. -&$ 

del1Deate4.. in aubleciion (e) (3) (B) 

aboVe.· ea.eb ma:y appropriately tle 

treated &II a separate- syat.em. AifSldes 

should keep in mind. that. .. ·maJor purPOISe of the Ad 11 not; the restructur1Dlir 

ot ex1st.inlr l!Iystems of records, bu~

raUter the pubUc1zI.ni- of what those systems are and how they are used. It does 

not, at course. preelude such restruct.urIng where otherwise necessary or appropriate such as to reduce the risk at 

ImproPer access, 

Geograph1c decentrallzation wUl not 

in and at Itself be considered a criterion 

for vlewinlir .. system ot records as sev­ eral systems. An agency may treat a decentraUzed system as a lI1ngle system 

and specify several locations and an 

alenc)' omcJal reeJ)()lWble for the system at each location. See subsections 

(e) (4,) (A) and (P'). While the development. ot central Indexes for s)'!tems 

which do not presently require such Indexes should be avoided wherever possible, Ind1v1duals wbo seek to learn 

whether a geographically decentraliZed 

s)'Stern ot records contains a record pertaining to them (subsection (tl (1)) 

should no~ be required to query each 

location. (In decldlng whether or not to 

construct an Index, agencies mus~ weigh 

the POtent1a1 threat ot mIsuse posed by 

making individual records more acces.slble against. the capability to meet the 

needs ot those Individuals for access to 

their records). It may, however, be pas.slble to guIde Individuals as to which 10­

caUon may have a record pertaining to 

them: e.g., systems segmented by location of birth, or by range of Identification number. In any case, "If a system 

Is located In more than one place, each 

location must be listed." (House Report 

93-1416, p. 15) see subsection (e) (4) (A). 

A major criterion in determining 

whether a grouping of records constl· 

tutes one system or several, for purposes of the Act, will be the ability to 

be responsive to the requests of the indiVidual for access to records and generally to be Wormed. 

Systems, ho\\'ever, shOUld not be subdivided or reorganized so that information whicb would otherwise have been 

subject to the act is no longer subject to 

the act. F'Or example, if an agency main· 

tains a series of records not arranged by name or personal Identifier but uses a. 

separate index file to retrieve records 

by name or personal Identifier it should 

not treat these flies as separate systems. 

A public notice is required to be 

published: 

For each system In operation on september 27, 1975 on or prior to that date 

and the notice shall be republished, Including any revisions, on or before August 30, each year thereafter. 

For new systems, before the system 

of records becomes operational; i.e., befOl'e any information about Individuals 

Is collected, 

It should be noted that each "routine 

use" of a system must have been established in a notice published for public 

comment at least 30 days prior to the 

NOtKES 

d1&do6ure of I/o record tor that "routine 

UIe" aa apecl.tled in lIubsect104 (e) (11), 

For major chlW8ft: to exbt!nB" systems. a revised public notice is yequired before 

that change is etfe.=t1ve. U the chana:e 

to an existing system involves chang~

to "routine uses", they are subject to the 

"30 day advance notice provisions of subsection Ce)(U). The nature of the 

changes in a sYstem which would require 

!.he issuance of a revised public notice 

before the next annual public notice is 

described for each element of the public 

noUce in the succeeding paragraphs. 

Generally. any chana:e In a system wh1ch 

has the etfect of expandlng the categories of records maintained, the categories of individuals on whom records are maintained, or the potential reclpi· 

entS of the Information. will require the 

publication of a revised public .notlce 

before the change Is put Into effect. In 

addition, any modiftcation tbat alters 

the procedures by which Individuals ex­ ercise their rights under the Act (e.g.. for gaining access) wUl require the publication of a. revised notice before that 

change becomes etrective. 

Changes of the type described above 

Will typically also require the preparation 

of a "Report on New ·Systems" under 

subsection (0), below. Any other change 

wUl be Incorporated into the next annual 

revision at the notice. 

The General services Administration 

(OMce of the Federal Register) wm Issue more detailed guidance on the tormats 

to be used by agencies In publishing their 

public notices. The formats prescribed 

by GSA are to be used to facllltate the 

annual compllatlon at the notices and to assure that notices are produced In a 

consistent manner to make them more useful ro the pubJlc, 

Describ!nQ the Name and Location of 

the $lIstem in the Public Notice. Subsection (e) (4) (A) "The name and location 

of the system" 

Agencies will specify each city/rown 

and site at which the system of records 

is located. For a geographically dispersed 

system each location should be listed. A 

change in the :~t of locations will not 

require publication ot a revised notice. 

WhJle the House report language cited 

above clearly Indicated that the location 

of each site at which the system Is main_ 

tained Is to be listed, exceptional situations may dictate not inclUding the listing in the body of the notice; e,g.. military personnel records which are kept at several hundred installations or certain farmer records which are kept 

at several thousand county extension 

agent offices. To Include the list of locatlor.s in each applicable notice woUid 

only serve to Inflate the size and thereby 

reduce the readability of the notice. In 

these inst.'\nces, It may be appropriate to 

publish a single list of field stations. or to refer in the notice for all Systems at 

those sites ro a list which is generally 

available, 

DescribinQ Categories 0/ Individuals in 

the Public Notice, Subsection (e) (4) (8) 

"The categories of Individuals on whom 

records are maintained In the system;" 

"The PUI'POSe of this requirement kl 

tor &D. 1nd1v1d.ual to determine U informaUon on him might. be in Ct.beJ 8,Y&tem. 

The description of the ca~orles should 

therefore be clearly stated In non-technical terms understandable to individuals unfamiliar with data collection 

techniques." (House Report 93-1416. p. 

15), For example, the no~ mliht indlcs.te that the records are mainta.tned on students -who applied tor loans under a student loan program, not. persons who 

filed form X or who are eligible under 

section ABC-OOO. 

Any change which has the effect of 

adding new categories of Individuals on whom records are maintained will re· 

quire publication of a revised. public 

notlce, If, in the absence of a revised 

notice. an Individual who Is the subject 

of a record In the SYstem would not 

recognize that fact, a revision should be 

Is.sued. before that change is put. tnto 

effect. A narrowing of the coverage of the 

system does not require advance issuance 

of a revised notice. 

.De!lcrlbinQ Categories of Record! in 

the Public Notice. Subsection (e) (4) (C) 

"The categorJes at records maJntalned 

In the system;" 

This portion at the notice should 

briefly describe the types of Information 

contained In the system; e.g.. employment history or earnings records. !fj; with 

the previous item, non-technical terms 

should be used. The addition of any new categories ot records not wlthin the categories described In the then current 

public notice wUl require the Issuance of a revised public notice before that change 

Is put Into effect. The addttlon ot a new data element clearly wlthin the scope of 

the categories In the noUce would not re­ quire the Issuance of a revised notice. 

Describing Routine Uses in the Public 

Notice. Subsection (e) (4) (0) "Each 

routine use of the records contained in 

tbe system, including the categories of users and the purpose of such use;" 

In describing the "routine uses" of the 

system in the public notice, the notice 

should be sufl1clently explicit to com­ mUnicate to a reader unfamiliar with the 

technical aspect.s of_ the system or the 

agency's program, 

For a more extensive discussion of 

"routine uses," see subsections Ca) (71 

(dennltlons). (b) (3) (conditions of disclosure). (e) (3) W) (notlftcatlon to the 

individual), and (e) (II) (notice of 

routine uses). 

AllY new use or signiftcant change In 

an existing use of tbe system which has 

the effect of expanding the availability 

of the information in the system will re­ quire publication of a revised publlc no­ tice. AnY such change in a routine use must also be described in a notice In the 

FEDERAL REGISTER to permit publlc com­ ment betore It is implemented. 

Describing Records Management Policies and Practices in the Public Notice. 

Subsection (e) (4) (E) "The policIes and 

practices of the agency regarding storage, retrievability. access controls, re­ tention, and disposal of the records"; 

fEDERAL IEGlSTER, VOL. 40, NO. 1J2_WlONESOAY, JULY 9. 1975 
28964 NOTICES 

This portion of the public noUce should 

describe how Lhe l'eCorda ara malnt.a.lned. 

how they are l81e.uarded. what cateaortl!S of omelaa within the .seney are permJUed to have acceu. and how Ion. 

rtc1lrds are ~Ullned both on the aa:ency's 

prem1aell and at secondarY stor.,e atta. 

In deacrtbtna" record "lItoraae". the 

agency ahould indIcate the medIum In 

whJcb the recorda are maintained (11:-8'•• 

roe Colden. macneUc tape). "RetrtevabUJty" covers the c:apab1lltles in the U'at.em ot recorda to Indo: and &cceU • 

record (C-8'_, b1 name. comblnaUona of 

penoDa1 chara.e\erllUca. idend1leaUon 

numbe:n). "Acceu eootroll" dmcrlbea.ln 

general terms, wbat measures have been 

taken to prt;ftIlt unauthor1Ud dlsc1oIun: 

of rKOrda (e..... pb)'Sk:a1 aecurtt,-, peraonnd acrecmn.) and wbat eatqorlea of 

lndh1duala wlUltn the aceDC)' haft &1:­

ce&&. '"Ret!11Uon" and "d1spouJ" COftf 

t.b.e rules on how 1001 record& are maint.a1ned. II and when tbeJ' are moved to • R.ecorda cenw or to the Archives, tf and bow are destroyed. 

The descrlpUon 6hIJ1 not deser1be se­ curity safeauards in such detail as to 

tncreue the r1ak of unauthorized acces5 

to t.be recorda. 

Cbanaea In thla ltan wtll not normallY 

nquln! Immediate pubUcation of • revised pubUc DOUCe WlJeu they retlec:t an 

exPan&1oo In the avau.abWty of or acceu 

to the sY5t.em or recorda. 

I/kflU/¥fJtf1 ODlC;iaH,) R.upoyuible 1M 

tM S~,um In t1'U PvbUc Notice, 8ub5eeUon (e) It> (P) '~e tiue and buslneu 

address of the acency o1ftclal who l.s resp!>Dllble for the IY1Item of recol"d.!"; 

Thls portion of the noUce must include 

the tiUe and addraa of the alency olftclal 

who II respoDilble for the pollclu and 

practices IOvemlna the sYltern described 

in (e) (4) (El, above. For leosr&pbleal1y 

dliperJe(1 ..y.lema, wbere indivlduBJa must 

deal d1recUy wIth alenCy otrlclall at eacb 

locatIon In order to exercise their rights 

under the Act (e.l.. to aaln access), the 

title and addresll of the responsible o1ftclal at each toeatlon ahould be listed in 

addition to the agency o1ftclal responalble 

for ttle entire SYltern. Bee dlacusalon of 

llub&cctlon (el C41 CAl, above, for special 

treatment of certain multiple location 

systeml. 

A rev1l;ed publIc notice Ihall be IllIued 

before the Implementation 01 any cha.nle 

In the addreal to wblch I.nd.lviduala may 

preaent themael.vea in penon to Inquire 

whether they are the .ubject DI a record 

in t.he sy.tem or to .~k aceeu to a record 

Dr In the addresl to which individuals 

may man inqulrlea, unless the arency has 

established internal procedu.re.a to a.uure that mall wW be forwarded promptly so 

that the areDC'J' will be able to respond 

to -Inqulrlea wUhin the tIme COIlItnJnl.a 

establlsbed in lubMcUon (d). (knerall)'. 

chanl:ea of th1a type in the interim between the annual publ1caUoRll of the 

compilation of ooUcel abould be a\'Olded 

U at all pou.1bIe. Ind1viduall are more Ukel.1 to rely upon the annual comDUation and are not u Ukel:r to be aware of 

modlncaUonl pu.bUcbed. onl1 by me&DI 

of .epan.te DOUce In the P'l:Daw. R&G. 

una. 

De$crlbf1tl1 PrOCl!durel lor Ddermlnjnl1 jf a Sy$tl!m Contain, a Rl!cord on an. IftdividlWl jn thl! PtWlfc NoUce. Subeee· 

tlon (e) (4) (0) ''The aamey proceduru 

wbereby an individual can be noUfted at 

hla request it the I)'It.l!m of records con­ ta.1ns a record perta.lnln&: whim;" 

Tb1s pottJoD of the nmlce ahould specify u a m1n1mum, the loDowina': 

The addresI of the aaeney otlke to 

wb.icb lnqutries ahould be r.ddre:ued or addresae$ of the loeaUon(a) at which the 

individual may praen~ a requeu in per­ son. Wherever practicable, th1a 111~

ahouJd be the same u the lilt 01 olIIdalI 

J"e5P(ln41bJe for the ayatem in subilecUon 

(e) (4) (p). abon_ U II the cue, It 

need D()\ be reported. 

What ldenWyq lntormaUon Ia re­ quIred to aecertaIn wbd,ber or DOt \he 

system cont&lns a record about tbe 

inquirer. 

The aeeDCY may require prooC 01 identity only where It bas made a determlnaUOn thaI. kno.-1ed&'l! oC \he CuI. Ulal. a record aboUI. an inttlridual u1&tI ww1d nm be reqUIred to be 411C1oIed to a mem­ ber of the pu1IUc under aecUOn 552 of 

title 5 of \he t1n1ted Statel Code (the 

Preedom of InformaUOO Act). Pol" exam­ pie. an agency may determ1De \hat diIclorure of a record io a me \0 

con1Uct.s of interests would be a clear17 

unwarranted 1Dva.slon of J)erIIOnal prlvacy. wltbiD tbe me:anlnl' of 5 U.s.C. r.n lb) (8). and in t.hla instance the ~mc;y

may require proof ot ldenUt,r. 

A rev1sed pubUc noUce 1PiUl be 1Uued 

before_effecUnl' any chan&:e .-hich meetl 

the cr1terta ouWnel1 In lubK.cUon (el 

(4HP), above. 

This portion ot the noUce m.WI. be oema1st.ent wi\b aal!ncy rule. promu!&ated 

pursuant to lubseCUDn ([)(I), AnY 

change in these procel1ures II subject to 

the requirements of !.be AdmJnl.s1.raUve 

Procedure Act as spec1ned in subsectlon (f). 

Dl!Jcrtbing Procedurl!' lor Gaining AcCl!U in. the Public Notice. Subsection Ce) 

(4) (H) "The agency procedures whereby 

an in41vldual can be notlned at hla re­ quest how he can gain aCCl!lI8'to any rec~

ord perteJnlng to him contained In the 

aystem of records. and how he can con­ test Its content; and" 

n11s portion of the pubUc notice must 

1nclude the maUlna addru.(ee) and. U 

POMlble. thl! telephDne number(l) 01 oCt1.c1aHa) .-ho can proVIde aaslttaoce; and 

the location ot omces to which the In41­

vidual may go W a~k intormatiDD. 

This provis!Dn does not speclnea1ly re~

q~ that thl! actual proeedu.re.a Cor Dbta1nl.ng access or tor contestlng the ac­ curacy of a ncord be Included In the 

pubUc notice. It onlY requirft that Indlviduals be adriaed of the meana b, 

which they can obta1D Intonnation on \bose procedures. HoRver, It Ihould be 

noted that, PUl"SU&Dt W aub&ecUon (I), 

acencles are required to pIlb11ab rutel 

1Ifhl.ch atlpulate &be procedur. whereby 

the IndlYidual caD exerd.se ncb of &heBe 

rights and Wat these rute. are required 

to be Into the annual 0Dmpfiation at ooticeI; and ru1eI pu.blIIbed 

Lbe omce of \be Federal ReclIter. 

A reVlaed pubUe notice shaU be l.aaued 

before effe<:tml any change about which 

the ·individual would have to know in 

order to exercise hla or her rights tmder 

the Act. Chanles or th1s type in the 

interim between the annual pub11caUons 

oC the compUation ot notices should be 

avoided it at an J)OSS1ble. 

ThJI portion of the notice muat be 

oona1&&ent with aaencY rules promUlpted PllrIuant to subsections m (2) and (3)' 

An, chanae 1n these procedures Is lubjeet 

to the requir'ementa of the Admlnlatra~

Uve Procedure Act u spec;.Ul;ed in 1IiubaecUon W. 

DucrJbfJtg Ccugoria 01 l.,onn.ct.ioa 

Sotln:CI in. tM Public Notice. Bubsec:Uon 

fe)(4HI> -rbe categories of sources of 

recorda in the 1Y1Item.;" 

Por ~tema of records wh1cb cootafn 

tnIon:naUon obtaIned !rom aoun:ft; otbe.r 

than the 1n41l'Jl:hDLl to whom the recorda 

Perta!n. the notice abould list the types 

oC 1Ouree& used; ~_.

PruioUi emPloyen.. 

P1n:anda.IlnlIitltutioDs, 

EdueaUonal lDaUwti0n5 attended or Pftr re-.1ewera (such. u In connecUon 

wlth recorda of tbe review of propou.Ia for rsearch project.) 

The notice should indIcate if U1e tndi't1dual to whom the records perta10 II a 1Ol1n:e of the tnIorma.~ in Ule record. 

Ot.herwbe an the notices w1ll appear to 

be viotattna the reqiurement that indlriduaJs be the main source Df information perta1ning to them. 

8Peclfte individuals or lmtItutioDi 

need not be ide:nWled. tru1danee on wben 

the identity of a IIOUree may be withheld 

11 contained in lub5ection (tJ (2) (5) and (7). • 

Stander"" 01 Aecvraetl'. Subsection (e) 

<51 "Malntaln all records which are used 

by the aal!ncy In m.aking any detenn1Jla... 

tlon about any individual with such ac~

curacy, rell!vance, timeliness. and com­ pleteness as la reasonablY necesaa.ry to 

asllure fairness to the IndiVIdual in the 

determination;,. 

The objectlvl! of tWs provision Is to 

minimize. If not eliminate. the risk that 

an agency will make an adverlle determination about an Individual on the baals 

oC inaccurate, incomplete. Irrelevant. or 

outwo!-date records that It maintain... 

Stnce the ftnaI determInation as to ac· curaCy 11 necessarily JUdgmental, It 13 

particularly critical that this judament 

be made with an understanding oC the 

Intent or the Act.. 

The Act recognizes the di1!1eulty DC l!ItabllshJn, absolute standards or data 

qua1Jt., by condltionlng thl! requirement 

with the lanllJ,aae "u is reasonably nee­ e&S81Y to aaaure Cairness to 'be IndiVIdual • • .... n11s place:;; the empha.sls on 

&SIurID. the quamy of the record in 

te:rma of the use of the record in makina 

decls.lona a!feeUna' t.be rights. bendl.ts. 

entlUemenl$, or opportw:llt.lea tinc.lud1Dl' 

employment) oC the indi'f1duAl. 

A eorol1arJ' provision (5UhaecUon (e) 

(.). below) requires that acenclea apply 

the ume ltanda.rd to records which are d1KJosed, exeept when the7 are dlsc10Ied 

to a member of the pubUc undl!r the 

FreedOm of lntonnaUOIl Act or w anotbel' qency. <An ....ency .-ould be subflDRAl IlfGtSTB. VOL 40, NO. IJ2-WlDNUDAY. JUly t. lt1S 
MOnas 

ject to the Act and. 1here!0I:e. would. h&" 

to appJ,y ita own stand.a%:dI or 1oCC\U'I.C7. etc.) 

A&'enciea may 4eve1oP to1era.D.ceI for 

"accuracy" and. ntfJneJJneM;" il~ CODsideration to t.be I1Jre1lbood that. errors within t.boIe t.olen.nces. could. reeult III. u. erroneous declldon wtt.h adverse conse­ quences to the individual (e.;., den1&J. of 

right&, bene1lts, ent1uemen~. or employment>. Fw uample, tor ita p\U"pe8eI in 

determinlna entItlementa b&&ed OIl income, it may only be necessary tor an agency to record the fact that income was lITeater than or lees than a stipulated 

level rather than to ascertain and record the prec1ae amount. In questionable 01­

stances, reveriftcatkm of pertinent 1ntor_ 

matioo with the !ndIvjdual to whom It 

pert.a.ln.s may be appropriate. 

Usetul crUeria for a&lurlng "relevance" 

and "completeness" may be somewhat more di1llcult to develop. The pursuit of 

"completeness" could result in the collection of irrelevant inlorrnatlon which, 

it taken Jnto account in making an agency determination could pnjudlce 

the deeLslon. AgencJes must llmit their 

records to thOlle element6 of inlormatlon 

which clearly bear on the determIna­

,t1on(s) tor whlcb the recorda are in_ 

tended to be used, and assure that au ele· 

menl:lJ necessary to the determinations are present before the determlnation is 

made. 

Vali4Dffng Recorl6 Before m!clo­

!ure. SubeecUon (e) (6) "PrIor to dissemtnatlnr any record about an Individual to any person other than an agency, unless the dbsemlnatlon 18 

made pursuant to subsection (bl (2) ot 

this section, make reasonable etrom to 

assure that such records are accurate, 

complete, timely, and relevant for 

agency purposes;" 

While the Act recognizes that an agency cannot guarantee the absolute 

accuracy of Ita SYlltems ot records, any 

record disclosed to a person out6lde the 

agency (e:r::cept another agency) must 

be as accurate 88 appropriate tor purposes of the agency which ma1ntained 

the record. (Bee SUbsection (e)(5) >. The 

onIy exceptions to this requirement are for disclosures to another agency or to 

the public under the Freedom of Intor· 

matlon Act which may not be delayed or Impeded, 

Rec:ognLz1ng that an agency properly 

disclosing inlormatlon (pursuant to subsection (bl. conditions of disclosu.l'e) Is 

often not 1n a position to evaluate accept· 

able tolerances of error for the purposes 

ot the recipient of the infonnatlon, the 

primary objective ot this provision is, 

nonetheless, to assure that reasonable 

etrorts are made to 88llure the quality 

ot records d1sclosed to persons who are not subject to the provlsloru; of subsection (e) (5). The llieney must, therefore, make reasonable effort.!! to assure -that a record It discloses 18 as accurate, 

relevant, timely, and complete as would 

be reasonably necessary to essure talr· ness In any determtnatlon that it mJ:ght 

make on the basla of that record. It 

may, tor example, be appropriate to advise r~lplentB that the Information dIscloIed wu aecurat.e &I o! a specl11c 

date, such as the last daU on wblcb 

a deMrm' netk>n ...... ma4e bJ' the apnCJ em 'be bM1a ot t.be record or at 

othu lI:Down lim.ItI on 1\& accuracy 1'.1., 

ita toUrce. 

Recorc:b 0'* &Zivio1U or Political A.cUvUiu. Su1»ectJon (e) (1) "J4aintaln no record deserlbiDI how-any Ind1v1d. 

ua1 eJtercJBee rlahtl ~teecl by the 

First Amendment unless e:r::press!y au­ thorized by statute or by the individual 

about whom the record is malnLa1ned or unless pertinent to and wUhln the 

scope of an authorIZed law enforcement 

actlvlty;" 

Whereas sub8ecUon (e) (1) lenerally 

enjoins. aaencles trom collectinl intor· 

mMdon not "relevant and necessary to 

accomplish a purpo.se ot the aaeney," 

thla provis~ons establishes an even more rigorous standard govemJna: the ma.1ntenance of records l'e8'ardinr the e:r::er· c1se ot First Amendment rights. These 

Include, but are not l1m1ted to rellgloU8 

and political beliefs, freedom of speech 

and of the I'RM, and treedom of assem­ bly and petitlon. 

In determining whether or not a particular activity constitutes the exer· clae ot a right" guaranteed by the Fint 

Amendment", agencies wUl apply the 

broadeat reasonable interpretation. 

Records describing the ezerc15e of 

the3e rlghta rnay be maintained only if 

one ot the followinl conditiON b met: 

A statute Ilpeciftcally authorizes It. 

Speclftc authorization mellJ1S that a statute expllcJtly provides that an agency 

may maintain records on activities whose 

exercise is covered by the First Amendment; not merely that the agency is au­ thorized to establish a system of records. 

However, the statute need not addrellS It_ 

selt specifically to the maintenance ot 

records of First Amendment activities U 

It specl1les that such activities are relevant to a determination ooncern1ng the 

individual. Por example, since the Immigration and Nationality Act makes the 

posslblUty ot rellilous or political persecution relevant to a stay of deportation, 

the information on these subjects may be 

admitted Jn eVIdence, and theretore 

would not be prohibited by this provision. 

The Individual expressly authorizes it; 

e.g., a member of the armed forces may 

Indicate a rellglous preference 50 that, It 

seriously injured or killed while on duty, 

the proper clergyman can be called. The 

individual may also volunteer such information and It he dOCll so, the agency 

Is not pre4:luded trom accepting and re­ taining it. Thus, It an appllcant for poUtical appointment should Ust his political 

amIlatIon, association memberships, and 

religious actiVities, the agency may re­ tain th1s as part of his appllcatJoD me or Include It in an omclat biography. SimIlarly, if an individual volunteers information on civic or religious actlvlUes 

in order to enhance his chances of re­ ceiving a benent, such as executive clemency, the agency may cONlder Intormatlon thus volunteered. However, nothing 

In the request for Intonnatlon should in 

any way suggest that intormatlon on an individual's First Amendment activities 

is required. 

The record 18 requIred. by the arency 

fw an t.uthorlze(ll&. enfOrterneDS functlaa. 

In the cI1Icusaion8 on. the Door of the 

Rouse rerardlna the authority to maintain suell recorda tor law enforcement 

purposes, It was stated that the objective of the law enforcement qual1tlcatJon on the general prohibition was "to make 

certaf!l that political and nUg!ous ac­ tivities are not used as a cover tor illegal or subversive activities." However, It was agreed tba\ "no file would be kept of per_ 

sons who are merely exercisina their constitutional rights· ••" and that in ac­ cepting this quallflcaUon "there was no Inten~on to interfere with Plrst Amendment rights" (Conllreuiona! Ruord, 

November 20, 1974., HI0892 and November 21, 1974,810952) 

Notiftcation for Dtsclosurel under Com· 

palsOr1l Lell4l Process. Sub6ectlon (e) (8) 

"Make reasonable etrorts to serve notice on an indJvIduaI when any record on such individual is made avaUable to any 

person under compulsOry legal process 

when such process becomes a matter of 

public record;" 

WheJ1 a record is disclosed under com­ pUlsory legal process (e.I., pursuant to 

subsection (b) (11», and the issuance ot 

tbat order or subpoena Is made public by 

the court or agency which Lssu'ed It, 

agencies mu!t make reasonable etrorts to 

noWy the individual to whom the record 

pertatns. Thla may be accompJJ.sbed by 

notifying the individual by mall at his or her last known address. The moet recent 

address in the agency's records will suffice tor this purpose and no sepante addre&! records are reqUIred. Upon being 

served with an order to disclose a record, 

the agency should endeavor to determine 

whether the issuance ·of the order is a matter of public record and, If It Is not, 

seek to be advised when It becomes public. An accounting ot the dlsclosure, pursuant to subsection (c) (1), Is aI60 re­ quired to be made at the time the agency 

complies with the order or subpoena. 

Rule! 01 Conduct for Agencll Per!onnel. 

Subsection (e) (9) "Establlsh rules of 

conduct for persons Involved in the design, development, operation, or maintenance of any system of records, or in 

malntatnJDg any record, and Instruct 

each such person with respect to &uch 

rules and the requirements of thb sec­ tion, Including any other rules and procedures adopted pursuant to this section 

and the penalties tor noncompliance;" 

EtrectIve compliance with the provl· 

slons of this Act will require informed 

and active support of a broad cross sec­ tion of agency personnel. It. is imJ)O("tant 

that all personnel who in any way bave acceas to systems ot records or who are engaged In the development of pro· 

cedures or Systems for handling records, 

be informed ot the requirements of the 

Act Md be adequately trained in agency 

procedures deVeloped to implement the 

Act. Personnel with partIcular concerns InclUde, but are not limited to, those en­ gaged In personnel management, paperwork management (reports, torms, rec­ ords, and related tunctlons), computer 

systems development and operations, 

commwlIcations, statIsUcal data collecUDElAl REGISTU, VOL 40, NO. 132._WEDNESDAY, JUlY 9, 1975 
28966 

tion and analysis, and program evaluation. (The Communications Act 01 1934 

prescribes standards and penalties tor 

personnel engaged In handling interstate 

communications and shall also be con­ Gulled. where applicable, when agency 

rUles of conduct afC being developed). 

Activities under this provision will 

Include 

The Incorporatlon of provisions on privacy into aaency standards of 

conduct: 

The discussion of Individual employee 

responsibilities under the Act in general 

personnel orientation programs: and 

The Incorporation of training on the 

specific procedural requirements of the 

Act into both formal and Informal <onthe-job) tralnJng programs. 

Concurrently, those agencies with 

broad policy development and tnllning 

responsibilities (e.g., the General ServIces AdminIstration, the Civil service 

Commission) will also be reVising their 

programs as appropriate to augment 

agency activities In thIs area. This provision is also important in en­ suring that individuals who <ore potentially criminally liable or whose actions 

could expose the agency to civil suit (under subsections (I) and (g), respectively) are fully Informed of their obligations 

under the Act. 

Administrative, Technical and Physical Safeguards. Subsection (e) nO) "Establlsh appropriate administrative, technical, and physical safeguards to insure 

the security and conftdentlallty of rec­ ords and to protect against -any anticipated threats or hazards to their secur­ ity or Integrity which could re~mlt In 

substantial harm, embarrassment, Inconvenience, or unfairness to any IndiVidual on whom information is 

maintained;" 

The development of appropriate admlnJstratlve, technical, and physical 

safeguards will, necessarily, have to be 

tailored to the reqwrcments of each system of records and other related requirements for security and confldentlallty. 

The need to assure the integrity of and 

to prevent unauthorized access to, systems of records will be determined not 

only by the requirements of this Act but 

also by other factors like the requ1T1!­

ment for continUity of agency operations, 

the need to protect proprietary data., applicable access restrlctlona to protect the 

national security, and the need for ac­ curacy and reUabWty of aaency Information. 

While the teehnol~ of system secu­ rity (both for computer-based and other 

systems of rreor(f5l is well developed as 

It relates to materials classlfl.ed for rea­ son of national defense or foreign polley, 

few standards currently exist to guide 

the "ciVIl" agency In this area. VnW 

8uch standards are developed and promulgated, agencies will be required to 

analyze eaeh sYStem aa to the rtsk of improper dlscloeure of records and the coat 

and avaUabWty of mea.sute.S to min1m.1ze 

thoae risks. The Department of Com· merce (National Bureau of Standards) 

wID be lsliul.Da' guldeUnes and standards 

to assist aa:encie8 in evaJuat!nl' varSous 

technolopceJ approaches to providfng 

NOTICES
 

security safeguards tn their sYstem and 

for assessing risks. 

Notice lor NewjRevfsed Routine Uses. 

Subsection (e) (1) "At least 30 days 

prior to publJcation of Information under paragraph (4) (0) of this subsection, 

publish In the FEDERAL REGISTER notice 

of any new use or Intended use of the 

Information In the system, and provide an opportunity for tnterested persons to 

submit written data, views, or argwnent.1 

to the agency." 

Agencies are required to pubUsh in the 

FEDERAL REGV>TER a notice of their intention to establish "routine uses" for each 

of their systems of records. Although 

this provision is designed to supplant the 

informal rule-making provisions of 5 

U.S.C. 553, the accommodation of the 

public comments in the judicial review 

of the rule-making exercise was intended 

wherever practicable. Agencies should 

furnish as complete an explanation of 

the routine uses and any changes made or not made as a result of the public 

comment as possible so that the public 

will be fuUy informed of the proposed use. This Is to give the public an opportunity to comment on the appropriate­ ness of those uses before they come into 

effect. This notice should be published 

sufficiently in advance of the proposed 

effectlve date of the use to permit time 

for the public to comment and for the 

agency to revIew those comments, but in no case maya new "routine use" be used 

as the basis for a disclosure less than 30 

days after the publication of the "routine 

use" notice In the FEDERAL REGISTER. A 

revised public notice (subsection (e) (4» 

must be published before a "routine use" 

I.s put into effect; I.e., before a record is 

disclosed for such a use. It is clearly permissible to publish the 

entire system notice (prescribed by SUbsection (e) (4) as the notice of "routine 

use" provided that such "routine uses" are not put into effect until the requIred 

30 day notice period. U an enUre system 

notice Is not published, the notice of 

"routloe usc" Issued pursuant to sub· 

section (e) (11) must, as a minimum, 

contain 

The name of the system of records for 

which the "routine use" I! to be establl!hecl: 

Where feasible, the authority for the 

system (.see discussion ot subsection Ie) 

(H, and the required notice to the individual in subsection (e) (3) (A». 

above) ; 

The catea:ories of records malnta.lned; 

The proposed "routine use(s) "; 

And the categories of recipients for 

each proposed "routine use". 

For new "routine uses" of systems for 

which a pubUc notice under lJUbsection 

(e) (4) has alreadY hem pubUahed, refer­ ence should be made to that public no­ tle~.

A notice in the F'EOERAL REGISTER invitpublic comment on a proJ)06ed new "routine use" is required. 

For all existing SystemB of records not 

later th&n AUgust 28, 1915. (Since 30 

days advance notIce of .."routine use" 15 

requ1red., an agency that falla to publish 

necessary notices for exl.atJDi systems on 

or prior to AU6USt 28 may find that It Is 

preclUded from making necessary interagency transfers until It has compIled 

with this provision) ; 

For an existing system of records, 

whenever a new "routine use" Js proposed. A new "routine use" is one which 

involves disclosure of records for a new purpose compatible with the purpose for 

which the record Is maintained or 00 a new recipient or category of recipients 

(even if other uses arc 'concurrentlY cur­ talled) : and 

For any new systems of records for 

which "routine uses" are contemplated. 

SECTION (n ACINCY RULES 

Subsection (n "In order to carry out 

the provisIons of this section, each agency 

that maintains a system of records shall 

promulgate rules, In accordance with the 

requlrement.1 (InclUding general notice) 

01 section 553 of this title, whIch shaIl-" 

Agencies must promulgate rules to Implement the provisions of the Act in ac­ cordance with the requirements of sec­ tlon 553 of title 5 of the United States 

Code including publication of the rules 

in the Fl:DERAL REGISTER so that interested persons can have an opportunity to 

comment. A "rule" Is defined as "the 

whole or a part of an agency statement 

of general or particular applicablilty and 

future effect designed to implement, interpret,' or prescribe law or policy or describing the 9rganization, procedures, or Practice requirements of agency • • ." 

(5 U.S.C. 551(4)). Formal hearIngs are 

not required with respect to rules issued 

under this section. However, fonnal hearings are not precluded by this section 

and, In particUlar instances, agencies 

may elect to use the formal hearing pro­ cedure. 

Two d15tinct objectives must be satisfied by the rules promulgated pursuant 

to this subsection: 

They must provide the public with 

sufficIent information to understand how an agency 15 complying with the law: 

and 

They must provJde sufficient Information for indiViduals to exercise their 

rights under the Act. 

RUles promUlgated under this subsection differ from notices under subsection (e) in several ways: 

Rules promUlgated under this sub6ee. 

tlon are subject to requirements of sec­ tion 553 of the AdminIstrative Procedure Act governing the publJcation of 

proposed rules for public comment before issuing them as final rules.., 

Rules must only be publlsbed twiceas noUce of rule makin&' and when theY are promulgated as llnal rules·unless 

they subsequently modifted..' ('!'hey 

W1lI, however, be Included in en annual 

compllaUon pubUshed by GSA.) 

A separate set of rules need not be 

published for each system of records that an agency maintains. The development 

or a single tet or agency rules Is en­ couraged wherever approprtal.e. 

Agencies are required to publJab proPOSed rules under thIs subSecUon allowing. at lee.st 30 days for publJc comment 

prior to publlshJ.ne them as &aJ. rules. 

(Pot systems which will be 1n use on 

September 21, 1975, &i'enc1ee will bave 

flORAL lfOtSTll, VOL 40, NO. lU_WIONESOAY, JUtY '. 197' 
28967 

to publish rules not later than August 28, 

1975J No further repubUcaUon of 

agency rules is reqwred (other then their 

Inclusion In the annual compilation published by the oMce of the Federal RegIster) unless a change is proposed. 

The langUage of subsection (f) ex~

pUcitly requires "general notice;" I.e., 

section 553 (b> of title 5 which pennlts 

agencies not to publlsh a general notice 

if "persons subject thereto are 'ntuned 

and either personally served or otherwise 

have actual notice· .••." shall not apply 

to rules promulgated under this subsection. Agencies should also· be aware or 

the fact that, although th,e presumpti<fn Is of the validity of the prOPOSed 

rule, judicial review under the Administrative Procedure Act will be available 

to assure against arbitrary or capricious 

actions. 

Rules lor Determining iJ an Individ_ 

ual is the Subject oj a Record. SUbsection (I) (1) "Eslabltsh proc~ures whereM 

by an Individual can be notifi~ In reM 

sponse to his request If any system of 

records named by the Individual con­ tains a record pertaining to him:" 

The procedures for Individuals to deM 

termlne If a system of record!! contains 

record!! pertaining to them shoul4 be 

kept as simple as possible, The published 

procedures should speclfyTo whom the request should be directed. Aa dlscwsed above (SUbsection

(e) (4), for geographically decentralized 

systems, the Individual should not be 

required to query each location unless 

the Individual can reasonably be ex­ pected ro be able to discern which location would have'.a record If one existed: 

e.g., by place of birth, place of employment. While the development of central 

Indexes to satisfy the requirements of 

this provision' Is discouraged, such indexes may be necessary in some instances. 

The Information necllllsary to IdenM 

tify the record. Where the system em­ ploys a specialized Identiftcatton scheme, 

the IndiVIdual should not be required to 

provide such a number or symbol as an absolute requirement, although the Individual mlght be requested to supply It 

If he or she ca.n reasonably be expected 

to know It. Instead, alternative combinations of personal characteristics may be 

used to Identify individuals who may 

have lost, forgotten, or are unaware 01 

their Identiftcatlon numbers or symbols. 

For example, the combination of name, 

date of blrth, place of birth, and father's 

first name may be sut'fl.<:lent to identify an indivllfual without the use of a SYSM 

tern Identlficatlon number. As was sug_ 

gested above, the development of new retrieval a.nd indexing capabillties'ls not 

encoura.sed, rather oaencles should eXM 

plolt existing capabilitIes to serve individual needs. Restrictions 'on the use of 

the Social Security Number as an IdenM 

tlfter established by Beetlon 7 of th.Is Act 

should a180 be noted where applicable, 

Any requirements for verification of Identlty. These may only be ImJ)08ed 

when the fact of the existence of a record would not be requIred to be disclosed under the Freedom of Information 

Act (5 U.S.C, 552). 

NonCES 

Agency procedures should provide for 

acknowledgement of the Inquiry Within 

10 days (exclUding se.turdays, Sundays, 

and legal public holidays), 

Rules for HandUng RoequesU for Accen, Subsection <f) (2) "Define reason­ able times. places, and re(j,ulrements for 

Identlfylne an Individual who requests 

his record or information pertalnlng to 

him before the agency shall make the 

record or Infonnatlon available to the 

Individual;" 

The development of procedures for 

individuals to identify themselves for the 

purposes of gaining access to their rec­ ords will necessarily VE\.I'Y depending on the nature, location, and Sensitivity of 

the records in the system. Care mwt be 

exercised to assure that the requirements 

for verification of Identity are not so cumbersome as 'to prevent Individuals 

from gaining access to records to which 

they are entitled to have access. The 

requirements pertaining to verification 

of identity contained In subsection 

(fl rll, above, should also be noted. 

"Reasonableness" will be measured In 

terms of 

The risk of access being granted w an IndIvidual who is not entitled to access weighed against the probable harm (inM 

cluding embarrassment) to the Individual to whom the record pertains which 

would result from unauthorized access: and 

The standards for verification of identity which a typical Individual about 

whom fecOTd Is maintained could be eJltpetted to meet, 

When agencies specify that Individuals 

may (or must) present themselves In 

person to verIfy their Id.entlty, hours and 

locations sJ)e<:lfled should take Into ac­ count the kinds of Individuals 'about 

whom records are malnta1ned. For ex­ ample, It may be appropriate to ask a 

current employee who 'seeks access to his 

record to present himself to the agency 

personnel office during normal working 

houl'S. No requirements may be estabM 

IIshed which would have the effect of impeding an individual In e'Cerclsing his or her right to accesa, 

Agencies which maintain systems of 

records on widely dispen;ed groups of Individuals and which have fteld oMces 

equipped to do so; are encouraged to use those omces as sites at which an individual can present a request for access even though his or her records may not be 

maintained at any one of those fl.eld 

omces, The Information necessary to 

Identify individuals shoUld be kept to the 

absolute min1murn and neither this provision nor any other provision of the Act 

should be used for the p\.lrPOSe of acquirIng and storing additional Infonnatlon 

about an Individual, 

The published rules prescribing procedures for veriftcation of idel1t1ty will 

IncludeA list of the locations and/or mailing 

addresses of locations to which the re­ quest may be presented: 

When in-person verlfl.C&tlon is re. 

qUlred or permItted, the hours when 

those locations are open <Including the 

dates of holidays on whIch they are 

closed) : and 

Documents which the agency wUl re· quire, If any, to establish the Identity of 

the Individual (specifying as many alternatives as possible) . 

Rules for Granting Acce.!'s to Records, 

SubsectJon (n (3) "Establish procedures 

for the disclosure to a.n Individual upon 

his request of hls record or information 

pertaining to him, including special procedure [sic], If deemed necesaary, for the 

dLsch:ltiure to an IndiVidual of medlcal records Including psychological records, pertaining to him: 

Individuals may be granted access to 

their record!! either In person or by having copies malled to them, The nature of 

the system and of the individuals on whom records are maintained wUl determine which method ts appropriate. U an agency determines that It can il'ant s.c. cess to records only by providing a copy 

of the record througb the mall because It 

cannot provide "reasonable" means for 

Individuals to have acces.s to their ree· ords In person, It may not charge a fee 

for making the copy, 

The issue of access to medical records was the subject of extensive discussion 

during the development of the Act, As 

written, the Act provides that Individuals have an unqualified right of access to records pertaining to them (with cer..:­ tain exceptions spec1tl.ed In SUbsections 

(jl and (k), below) but that the process 

by wblch individuals are granted access to ,medical records may, at the discretion of the agency, be moditl.ed to prevent hann to the individual. {Bee subsetUon (d) (1) ,J 

As a minimum, rules Issued pursuant 

to this SUbsection shall be consistent witb 

the requirements of subsection (d) (ll 

and should IncludeBorne indication, for requests presented in person, ILS to whether the indiVidual can e'Cpect to be gnmted immediate acces.s to the record and, for 

written request, the expected time loa, 

tt any, between receipt of a request for 

access and the granting of that access (see sUbsection (d) (2) for guidance on maximum response times) : and 

The locations at which indlvldual:s wUl 

be granted access to their records or the fact that access will be granted by 

providing copIes by mall; 

Notice that an Individual when re­ vlewlni" a record in person, may be accompanied by another Individual of hls 

or her choosing and the agency's re­ quirements, It any, for a written statement authorizing that Individual's pres­ ence. SUch autho.rlwtlon statements.. if 

employed, should be as brief as PQ6S.!ble. 

Rules for Amending Records. SUb&ectlon (0 (4) "Establish procedures for 

reviewing a request from an Individual 

concerning the amendment of any record or Intonnation pertaining to the individual. for making a detennination on the request, for an appeal within the 

agency Of an Initial adverse oaency determination, and for whatever additional means may be necessary for each IndiM 

vidual to be able to exercise fully his 

rights under thl! section;" 

Agency procedures for permlttlng an 

Individual to request amendment of a record shall be consistent with subsecFEDll.U .EGfSTH:, VOL 40, NO. 132_WfON(SDAY, JULy:. 9, 1975 
NOJ'CiS 

ttou (4) (2) and (3) and abaU .... m1n1mWIJ. specify- . 

The omclal<s) to whom the request 

is to be directed: 

The IdenWying information required 

tQ relate the request to the appropriate 

record; 

The oflleial(s) to whom a request for a revIew ot an 1n1UlLl adverse determlnaUon on request to amend 

be t.alc:en; aQd • Omces/ofBe1a1s from whom assistance can be obtained In preparing a request 

to amend a record or to appeal an 1nIt1al adverse determination or to learn 

further of the' provl.alons tor judIcial 

review. 

U the agency deems it appropr1a.te to 

est4bJ..lsh <or II.1relLdy has) .. formal re­ v1ewiD8" mec~ tor &11188lln8' the t.ecW'tI.CY of Ita reconts or tor reconciling dlsputes. \hat mecha.nJ.lm pr bo6rd should 

be In ita. rules publ1llhed pursuant to tbll IUbfJection. This provtsion 

does not require the est&bUshment or new, separate review mecban1sma where 

such ca.J)t\b1llties exist and are. or can be 

modUied to be. in conformance with this 

Act. . R~ Regarding Fees. Subsection (!) 

(5) "EltabllSh rees to be charaed.if any. 

to any1nd.lvldual ror rna.Id.nlr caPles of his 

record, excludlnlr the c06t 9f any search 

tor and review ot the record." 

Feel may be charged to an individual 

under thl.s section onlY tor the makinll" or copies or records when requested by the 

individual. All stated above (subsection (n (3». when copies a.re made by the 

aa-ency 1Dcldent to (l1'1l,Dtl.ne access to a record. a fee may not be char&"ed. <It 

should be noted that the provl&lons on tees Char'led to an Individual under this 

Act dI1fer from t.h068 1I"0verning tees 

charged'to the public. see 5 U.s.C. SS2. 

aa amended.. the Freedom ot Information 

Act. tor Il"U1dance on tees for coples or records made ava1la.ble to the public,) 

"(Anlagency ma.y not charge the Indlvtdual tor time spent searching for re· Quested reeords or tor time spent In re­ viewing records to detenntne it they faU 

w1thln the d1sclo6ure requirements ot the 

Act." <House Report 93-1416. p. 17.)· 

When an individual requests a COpy ot a record. pursuant to subsection <d) (I) 

<access to recorda) , the tee ch.lU1l"ed may 

not exceed the direct C06t of making the 

copy (Prlntlna'. typing. or photocopylnll" 

and n1ated penonnel and equipment 

costs) and ma.y not Include any c~t of 

retrJevInIl" the Information. In establJsh~

ing fee schedules. asencles should aLso 

cons1der the C06t of collecting \be tee in 

deterInJD1Il& when tees are appropriate. 

Anl'UU.iI Publicqtion of Notices and 

Rule.!. Subsection (f)·(tlnal pa.raeraph.­

unnumbered) "The Otllce of the Federal 

Regl.ster shall annuallY compile a"nd publish the rules promulgated under tbb 

section and q:ency notlces publlshed 

under section (e) (4J of th.Ls sectlon in a 

form aV&llable to the public at low C06t." 

The fUU\ual compllation of public not1ces <subeeCtlon (e) (4» and aa«1CY 

Tules (sub&ection (f) (I) through US» 

will be produced In a fonn whtch promotes the es:m:Lse of Indtvidual rtlhts 

under thls Act. 

Tha General BerviC:a; AdministraUon 

will, 1saIe iU1d&Dee on the tormat and 

timInI tor ll1bm1aaIan or rWe8 and. notlces to reduce. the coat 01 prepN1ng and· 

pub11ahlni' tb.il rulasand noticee, to mInJredundancy wherever possible. and 

otherwise to enh&Dce the ut1llty ot t.heae 

publIcations. For example, the various 

prov1s1ona of sub6ecUon (e) (4) and <n, 

(I) tAroUll"h (4) eaJ.l1ni' for lists of names and a.ddreMes need not be treated aa separate portions ot the annual notl.ce tor 

each system. 

SUlSECTrolf (gJ CIViL RbEDIQ 

ThIs sUb6ectlon prescribes the circumstances under which an Indlvldual ma.y 

seek court. relief in the event tbat a Federal agency vJoD.tes any requirement ot 

the Privacy Act or any rule or l'eIl"U1aUon 

promulgated thereunder, the basis tor 

Judicial IntervenUoJ;1. and the remedies 

which the courta may prescrIbe. Itshould 

be noted tha.t an indlvIdual may )lAve 

ll"J'Ounds for acUon.under other provisions 

of the 1a.w in addIUon to th06e provided 

In this secUon. For exampleAn Individual may seek Judicial review 

under oUler provlalons of the Admlnla~

t.ra.Uve Proced1lJ'e Act (APA). 

An Indlvidual may file a compla.l.nt tJ-· 

legtng lXl68ible criminal misconduct under section (I). below. 

A Federal employee may flIe a arlev­ ance under Personnel procedwu. It 

should also be noted. that an agency/emploYee responsible for an adverse action 

apinst an iDdIvtdual ma.y be personallY 

subject to civU sUIt, particularlY where 

the agency/employee acted in a manner that wuinte:ntlotlaJ or wilUul. 

Judamenta. COflt.B. and attorney's fees 

ap1nst the United States under 

this sub6ectJon would apPea.r to be payable from the public funds rather than 

agency funds. 28 U.s.C. 2414: and 31 

U.S.C. 72480 (Payment.' ot Judgmenta); 

28 U.S.C. 192" (Costs). WhUe It Is not 

the purpose of these guidelines to discuss 

the jur18dlctlon ot the district courts or the proced.uree In such cases, It should be 

noted that most cases arising under subsection (g) will be handled by the General LiUgation Section of the Civil Dlvi· 

&Ion ot \he Depa.rtment of Justice. In 

\bese ca..sea, upon receipt ofa copy of the summons and compla.int served upon the 

Attorney General aDd notltl.cation of Its 

tu1ni by the UnJted States Attorney (see 

Rule 4. PedertrJ Rules of CivU Procedure). 

the General Litigation section will re­ Quest the agency to tUrnIsh a litigation 

report. 

Some agencies are authorized to con~

duct theIr own Htllatlon. Where ita au­ thoril;¥ permlUi. the agency may decide 

to handle ita own cases under th1s Act. 

In view of the general litigation responsibility which the Department ot Justlce 

bas tor all other departmenta and agencies in the executive branch, It Is important that qenc1es handling their own litigation under this Act kef!P the Department ot Justice currently Intornied 

01, their Pl"Oll"nl8S. and torward to the 

Civil Division copIes or slgnUleant 'docu~

menta	 which are flled In such cases. 

Each agency should ma.1ntaln a complete and ca.retul record ot the adm,1n1atn.tlve p;l:ocedures followed. 1D. proceaa.

Ina: this statute. '1be record. should tte 

malnt&lned so that It can be reac:Wy certUled lUI the complete adQllnMtntive rec­ ord of the pl'J)Ce(ilngs '" a bu1s for poa­ .sible use In IlUptlon. 

Ground.t lor Action. Sl,lbIection (I) 

(l) "Civil Remedies. Whenever any 

~ncy"

The subsectlon authortzlna ciVil ac­ tions by indiViduals Is designed to usure that an indIvidual who (I) was WlllUCcesstul in an attem.pt to. have an llIency 

amend his or ber ·record; (2) was improperly denied access to biS or her rec­ ord or to tntonnatlon about him or her 

in a record; (3) was' adversely afleeted 

by an alency ·actlon baaed upon an tmproperlY consUtuted record; or (4) was otherwise Injured by an agency action 

In violation of the Act will have a remedY 

In tile Fedp.ra.l D1atrict courts. 

&/wlll to Amend a Record. Subsection 

(g)(1)(..\) "Makes a determlnaUon under subsectlpn <d) (3) ot tb1B secUon not 

to amend an individual's. record In ac" 

cordance 'I1Ii'~tb b1a request, or faIJa to 

make such review in conformity with 

that subsectlon;" 

An lndlvidual may seek jucUcial re­ view ot an a.a:ency·s determination not 

to amend a record pursuant to a re­ quest me<t UDder subsectIOn <d) (2) under eIther one ot two conditions-­

The indlvidual b88 exhauste4 bls· or her recourse under the procedures established by the qeDCY pursuant to subeectlon (d) (3) (a.ppeaJ.s on the ~Y's

refusal to amend) and tJle reviewing 

omcial has also refused to amend the 

record. or The indlvIdual cohtendl tbat the 

agency baa not conaIdered the request 

to review In a Umely manner or otherwise bas not acted J.n • manner con­ sistent with the reqUlreMenW of sub­ ~Uon (d)(3). Such an action coUld 

presumably involve a chaJ.let\&e either to 

the agency's procedures publlahed under 

subsectlon (f) (f) or to the asency head's 

decialon to extend the perIod of review 

"tor good cause shown" under subsection 

<d)(3) . 

An individual may abo bring a clvll 

action based on allegedlY l.naccurate rec­ ords It It can be shown that a decision 

adverse to the lndlvldual resulted trom 

that Inaccuracy. see subaectlon <g) (I) 

(C). However. no t.e8t of Injury Is re~

quired to br1ng an acUon under subsection <g)(1)(A). 

The DUIa for Judicial review and the 

avaUable remedies In actions brought 

under thJs subsection are found in sub­ ~tlon (g)(~V.

Dental 01 Access to a Record. Subsection (1I")(I)(B) ."Retuses to comply with an individual request ·under subsection 

(d) (1) ot th1s section;" 

Under thJs subsectIon, Indlviduals may 

chaJlenge a decision to deny- them access to records to whicl) they consider themselves entitled (under subsection (d) 

(1»). The action gIving rise·to the suit 

ma.y be the agency head's determJnation 

(:PurSuant to subsection (k). specl1'l.c exemptions) to exempt a'system of records 

from t.be requlrement8 that iDdIviduaJs 

be granted access. "SJ.nce access to a file 

FlORAL IIOISTE.I, VOL 40, NO. 132_W£OH£SOAY, JULY 9. 1915 
28969 

Is the key to lnsuring the citizen's rilht 

of accuracy, cOtnpIet.eneY, and relevanc" a denIal of access affords the citizen the 

right to ra.lse these issues in court. 'Ib1s 

would be the means by whlcb a clUzen 

could challenge any exemption from the req~entaoC (the Act.J." (senate RePOrt 93-1183. p. 82>. It should be no~

that. sys\oellLs of recorda covered under 

aubsecUon Ij) (general ezemptlona) are pe-nnitted to be exempted from tbh 

provtalon, 

'Ib1a provlslon 11 also the one by which 

individuals may cont.e5t an agency's refusal to arant acees.s as a result. of 11.15 

JnterpretatJon of the deftnlUona In !.be 

Act as they apply to lnConnatton maintained by an agency and for the exolusion set. forth tn subsection (dH5), 

denial of access to records compiled In 

rea.!lonable anticipation of litigation. No 

test of Injury Is required to bring action 

under subsection (g)(I)(B). The bBllls 

tor jud1claJ. review aUd available rem­ edies are found In l:iubsectlon (g) (3). 

Failure to Maintain a Record Accuratelv. Subseetlon Ig) (J) {Cl "Fails to 

malnWn any record concerning any in_ 

dividual with such accuracy, relevance, 

t1meUneY, and completeness LlI Is neees· sary to assure fairness in llllY detennlnation reJating to the QualUlcations, 

character, rlihts, or opportunities, of, or 

beneftl.l5 to the IndividuiLI that may be 

made on the basls of such record, and 

consequently a determlnation is made 

whleb 11 adverse to the Individual;" or 

AD. indJv1dual mgy brin, all scUon 

under tbla subsection only tr It. can be 

shown that the detlclency In the record 

resulted In an adverse determination by 

the scency Which maintained t.he reccrd, 

on the basis of the record. "An act-kin 

&1&0 Uea If the agency makes an lI.dverse 

detl:rmlnaUon ba.sed upon a record whk:.h 

Is Inaccurate, untimely, or Incomplete. 

However. In order to slUtaln buch action. 

the Individual must. demonstrate the 

causal relallonshlp between the adverse 

detennlnatlon and the Incompleteness. 

Inaccuracy. Il'relevance or ulltimeUnf.'SS 

of the record." (Hou~e Report 93-10118, 

~17) . 

An adver:se action 15 one resulUn, In 

the denial ot a right. benefit, enUtle· 

ment. or employment b~' all agency 

which thc Individual could reasonably 

have been ex:pected to have been given 

If the record had not been deficient. This 

provision. In ess.ence. aUows an Individual 

to test the agency's colllpll:lI1Ct: with subsection (el (:'1. 

It should also be nOled that, under 

th1a subsection, an agency may be Uable 

as a consequence of Ita failure to maintain a record accurately only It It bi 

shown that Its fajlure haa been "lllten· 

tJonal or 1i"illful" (subsection (,)(41), 

(No ~ucb test Is required under the pro­ visions of subsection (g) (I) (A), above, 

under which an individual ca.n set'k " 

review of the accuracy of a record.l 

Neither this subsection nor SUbsection 

(i'fllfA) waa Intended to Pennlt an 

IndIvidual collaterally to attack Information In records pertaining to hIm whIch 

hi'll already been the subject of or for 

NOTICES 

whleb adequate judicial review is available. For eX8mJ)le, tbese provtslons were 

not designed to lLfIord an lndJvldual an 

aJternate forum in which be can challenge the baais for a crtmlnal conviction or an asserted ta.x ddlciency. 

The ba.6ls for judicial review and available remedies are found 1n sUbsection 

(g)(4>. 

OtheT Failure. to ComplJ/lDith tM Act. 

Subsection (,) (1) (D) "FaUs to compIy 

with a.ny other provision of this section, or any rule promulpted thereunder, In 

such a way 8& to have an adverse effect on all individual," 

In addItion to the Ifounds speclticd In 

subsections (I) (1) (A) throu,b (C) 

above, an lndlvldual may bring an action for any other aJIqed failure by an 

agency too comply with the requ1rements 

of the Act or failure to cornply with any 

rule published by the agency to Implement the Act (subl!ectlon (f» provided It can be shown that-­

The a.etlon waa "Intentional or willful" ; 

The agency's act.lon had an "adverse 

effect." upon the Individual; and 

The "adverse errect" W&5 causally re­ lated to the agency;s actions. 

The basls for judicial review and avan· able remedies provIded by this Act are found in subsecUon (,) (4). 

Basb lor JUdidtd Revf~w and Remed~~ Jor ReJusallo Amend a Ruord. Bubsection (g)(2) "(AI In any sUlt. brought 

under the provlslons of slIbsecUon l" 

(ll fA) of this section, the court may 

order tbe aacney to amend the Individual's record In accordance with b.ls re­ quest or In such other way as the court 

mal' direct. In .such a cau t.he court. ~hall

determine the matter de novo. "(B) TIle court may asses.s against the 

United States reasonable attorney fees 

II.nd other litIgation costs reasonably Incurred In any case under this paragraph 

In which the complainant. has substantially prevailed." 

When an Individual seeks Judicial re­ view of ~he accuracy. timeliness. com. pleteness. 01' relevance of a record eltller 

as a resun of a challenge to the agency's 

refusal to amend a record or because the 

Ind!\'ldual alleges that the agency's process for review does not conform to subsect.ion (d) IJ I, t.he court Is required to 

review the matter as If It were an Initial 

determination (de novol. Such a review 

rna}' extend to the agencY'1 criteria established in conformance with subsections 

(el (11 and (51 for "accuracy, relevance. 

tlmelJness, and completeness" a.s they relate to the pUJ'})OSt:a for which the agenc)' maintains the record. 

Unlllr.e t.he judicial review of II. denial 

of aCCe56 to a record, In a review of re­ fusal to amend II record the bUrden to 

jusUfy Its acUon is not expressly placed 

upon \he agency by the PrIvacy Act. TIlls 

WlU! Intended to result in placing the 

burden of challengln, the accuracy of 

the record uPOn the tndJllldual. AJ> a re­ sult, agencies abOUld not. m..lntaln additional re<:ords s:)lely for the purP05e of 

validating the accuracy. tlmellness. and 

completeness or relevance of other rec­ ords thE'Y maintain. 

U the coon ftnds for the indiVIdual 

a,amst the agency It may 

Dlrect. the Biency to amend the TCCoro or to take IUch other stePs &5 It 

deems appropriate. 

Require the agency to pay court costs 

and atklmey fees. "It. ls Intended that. 

such award of fees not be automatic, but 

rather, that the courts conald.er the cn­ terla as dellneated In the ezistlrJ&" body 

of law governing the award of fees." 

(Bouse RePOrt 93-1416, p. l'J) 

Ban. lor Judicial RevfC'ID aM Rem.­

edies lor Denial 01 Acces,. Sub6ecUon 

(g) (3)"{A) In any sUlt broullht under 

the provision Cg) (1) (B) of t.h1s St:(:t1on, 

the court. may enjoin the agency from 

withholdfnll" the TCCOrd! and order the 

production to the complaJnant of any 

agency records Improperly withheld 

from him. In such a case the court shall 

determine the matter de novo, and may 

examine the contents of any agency records In camera to detennlne whether the 

records or any portion thereof may be 

wIthheld under any of the exemptions 

set forUlln subsection (k) of this section, 

and the burden is on Ule agency to sus­ tain Its action. 

(D) The court may _ agalnat the 

Unltell 8tat.Q reuonatlle attorne,. teft and 

other litigation oosU reasonabl,. l.neurTed In 

any cue under th1l paragraph in ..,hkh the 

complaln.ant h ... flIbataDtlall,. pre....Ued. 

In conductln,Its review, 

"[TIlle court Is required to determine lueh 

matters Ife 1IQPO and the burclen or proof II 

upon \he agene,. to IUltaln the esempUon."

(HoWIe Report i3-14UI. p. 11) In "lew or the 

aelll!Uvlty of .cme or the ~ds to "hleb aa::e.. ma,. be lOught. the court. In IlfamInll18' \hOH I'ti:Orlb: rna,. do 10 In camera. "/\ pet.co _kln8 acc_ to a rue ",hlCh he 

baa reason to believe 11 tieing maintained on lllm ror the purposes of determining Ita ac­ curacy and tompletenes.s, tor example, or to 

ttJte advantage ot Ule rights all'ordect him 

• • , could r"lse the qutlStlon or the pro­ ptlety or the exemptlon whiCh denlea hLm acc:ua to his ftlee. In decldln8 whether Ihe 

cltlzen has .. right to see his me or to lellrn 

whether the agency hIlS a nle on him. the 

court would of necelllllty have to decide the 

legLtlmacy of the agency's relUlOnl for the 

denial or accellll. or rdullal of an anawer. The COmmlt""e intends that any citizen who 

is denLed; a rLght or ae<,;ellll under the Act may have a caule ot action, without the neceaalty or having to ehow that .. decIsion ha. been 

mad.e on the baal. or It, and without h.....lng to tho.... .IOme rurther Injury, luch ... Iou or lob or other beneftt, that might Item trom 

the denial of ae<,;ess." (Bena"" Report 93-1183. 

p.82.) 

If me courL nnds for the Indh1du:1(

against the agency. it lIlay_ 

Direct the agenC)' to grant the IootvidUal access as prO\'lded under Sll~Ctlon (dl (I •. above. 

Require the agency to pay court costs 

and aLtorney fees. "It. is intended thllt. 

/Such award of rees not be automatic. but, 

rather. that the courb consider t.he criteria as delineated In the existing body 

of law ,o\'t:mlng the award of ft:e".'· 

(HODU RE'port9J-1416. p. IV 

Basil Jor Judicial Review and nellie. 

din lor Adllene DeterminatiOtl alld 

Otlier Failure! to Comply. SUbsection 

Ig)(41 "fn Ilny suit brought undE'r the 

fEOfllAl IEOISTU, VOL. 40, NO. 132-WEONUOAY, JULY 9, 1975 
NOtJaS -

provlsJOI1B" of suJMeetJon (8').(1) (e) or (0) of th~ section in which the court 

cIetel'1nInes \hat ageru:y acted 1D a. manner which was 1n~tiona1 or wUlful, 

the United States shaU be Uable to the 

1nd1vldl.1a1 in an l\IJlouot equal t4 the 

sum of­

"(.~ Actll&l damages suste.1ned bY 

the 1nd1¥1dual aa a re&ult of the refusal 

til' fallure, but. in no- cad shall a person .nt1~ to recovery receive less than the awn ot $1,000; and 

"(B) The COS" of the action toiether 

with reasonable attorney reM as determined by-the court." 

In any action brought for fallure to 

comply with Uie provisions of the Act, 

other than U106e covered 1n subsection 

(8) (lJ (A) and IB) (refusal to amend 

a record or d,en1al of access) it must be 

showutbatThe fa1lure of the aienCy to comply was "intentional or wUUu1:" 

There was injury or harm to the Ind!· 

vidual; and 

The lnjury was causally related to the 

alleged agency failure. 

loB 1nd1ca.ted above, these crlteria do 

not apply to suits brought to amend a record pursuant to subsection (g) U) (Al 

so that an individual may, under certain 

circumstances, properly bring an action 

either Wlder subsections (8') (1) (A) or (g)(l) (C). 

When the court finds that an agency 

has acted willfully or IntentloneJly in 

violation of the Act In such a manner as to have an adverse effect upon the individual, the United States will be re· qUired to pay 

Actual damages or $1,000, whichever 

isgreat.er 

Court costs and attorney fees. 

Unlike subsections (g) (2) and (3) 

above, which make the award of court 

costs and attorney fees discretionary In 

successful suits brought under subsections (g) (I) (A) and (B), such awards 

are required to be made In actions tn 

which the individual has prevailed undcr 

subsections {g)(ll (C) and (D). See 

House Report 93-1416, pp. 17-18 and the 

Congressfonal Record. December 18. 

1974, P.H. 122445 for further discussion 

of this point. 

Jurisdiction and Time Limits. Subsec· 

tJ.on (g) (5) "An action to enforce any 

llabUity created under Ulls section may 

be brought In the district court of the 

United States in the district In which the 

complainant resides, or has his principal 

place of business, or In which the agency 

records are situated, or In the District 

of Columbia, without regard to the 

amount In controversy, within two years 

from the date on which the cause of 

action arises, except that where an agency has materially and willfUlly misrepresented aI)y information required 

under this section to be disclosed to an Individual and the information so misrepresented Is material to establLShment 

of the liability of the agency to the individual under this section, the action 

may be brought at any time within two 

:'ears after discovery by the individual 

of the misrepresentation. Nothing In this 

section shall be construed to authorize 

any clvU acUon b,y reason ot aD¥ InJurY 

sustained as tile reliUlt or a d1lIclo6ure 

of a· r~ prior to the effective date 

of tbls sectloD." 

A.ctJon may be bro~t in the dIstrlct 

court for the jur1.sd1cUon In which thelnd1vidual resldes, or has a place of bU5l­ n~ or In wh.lch the agency records are 

situated, or In the DIstrict of Cohunbta. 

"The statute of limitations is' two 

years trom the date upon which the 

'cause of acUon ar1ses. excePt tor e&Sell 

In wh.lch the qency has materially or wUUul1y misrepresented any lnfonnatlon 

required to be diselosed and when such 

misrepresentation Is mAU:ria.I to the 11&­

blllty of the agency. In such cues the 

statute ot limitations Is two years from 

the date ot discovery by the Individual of 

the misrepresentation." (House Rel'ort 

93-14.16, p. 18) 

A suit may not be brought on the basts 

of injury which may have occurred as a result of an agency's disclosure of a record prior to Beptember 27. 1975: e,g.. dlscl05ure wlUlout the consent of the In­

'd!vidual or an adverse action resulting 

from a disclosure. This languaie is intended to preclude agencies from being 

held liable, under this law, for actions 

taken prior to Its effective date. 

SUBSECTION (hI RIOHTS OF LJ:CAL 

GUARDIAlfS 

SUbsection (h) "For the purposes of 

this seetion, the parent of any minor, or the lepJ guardJan of any Individual who 

has been declared to be tncompetent due 

to physical or mental incapacity or aie 

by a court ot competent jUrisdiction, may 

act on behalf of the individual." 

This section is Intended to ensure that 

minors or Individuals who have been 

declared to be legally lncoml'etent have a means of exercising their rights under 

the Act. It also h8l:l the effect of making 

indiViduals acting in loco parentis to 

minors. parents. legal guardians, and 

custodians the same as the Individual for 

purposes of giving consent for disclosure 

(subsection (b» and being lntonned 01 

the PUl'Poses for which records are maln· 

talned (subsection (e) (3», 

It should be noted that this provision 

Is discretionary and that Individuals who are minors are authorized to exercise the 

right.<; given to them by the Privacy Act 

or, in the alternative, their parents or those acting in loco parentis may exercise 

them In their behalf. 

(iJ CRIMINAL Pt;NAUn;s 

This subsection establishes crlmlnal 

sanctions for three possible violations 

Unauthorized disclosure. 

FaUw'e to publish a public noUce or a system of records liubJect to the Act. 

Obtaining access to records under false 

pretenses. 

The first two are directed at actions of 

officers and employees of Federal agencies and (pursuant to subsection (m) 

certain contractor personnel Agencies 

should ensme that all personnel are InM 

formed of the reqUlrements of the Act 

and, pursuant to subsectl(!n (e) (9), rules 

of conduct, are given periodic training In 

this area. 

Crfmt7Ull PenaJUu for Unauthorfzed 

DbCfcnurT. Subieetiou men "Any om M 

Ce!' or empfC):ree· qf an IIC'l!ftC,., who by 

vtrtue-ot his employment or amei&I Poaitkm..has ~lm or; or- lICCllID- to, 

agettcy recoT<ls wMclr eontatn indh1dually IdettWlabie tntormat1on the d1sc1osure of whleh'ls prch1blted by thls seet16'f1 

or by rules or l"C8"l11atl(oM established 

thereunder, and who knowing that dis· 

c1Daure" of the speeI.fle material hi so prohJblted', willtUlly dls.eloees the mate'rlal 

1n any manner to any person or &pncy 

not entitled to reee1ve it, MaD be guUty 

01 a misdemeanor and tined not more than $S,ooo." . 

It Ia a criminal notation of the pro_ 

v1s.ions at the Act If an employee, trio;wlng that disclosure is prohibited. willfullydiscloses a record without the written 

·consent of the individUal to whom It pertains, at h.Is or her request, or for one of 

tbe re8.ll0ns set forth in subsections (b) 

(l) thrOUih (11), condItions Of disclosure. 

CrilnlnaI Penalties for FaUure To Pub· l~ a PubUc Notice. Subsection (1) (2) 

"Any officer or employee or any 8li:ency 

who willfUlly maintains a lIYstem 01' rec. ords without meeting the notice requirements of sUbsection (e) (4)" of this section 

shall be guilty of a misdemeanor anQ 

tlned not more than $5,000." 

As was dIscussed In connection with 

subsection (e) (4), above, a basic objee· 

tlve of the Act is: to assure that there Is 

no system of records whose very eXistence 

Is kept secret. An agency is: reqUired to 

I'ublish a public notice about each system 

of records which It maintains. It is a criminal violation of the Act willfully to 

maintain a. system of records and not to 

publish the prescribed public notice. The 

-exemption	 provlsloIl$, subsections 0) 

and (k), do not aUow an agency head to 

exempt any system of records from the 

requirement to publish a public notice 

of It.<; existence, although that notice may 

be somewhat abbreviated. (See subsections (a) (5), definitions, and (e) (4), 

pubUc notice, for gUidelines on what con­ stitutes a system.) It should be noted 

that, under agency procedures, the officer or employee who maintains the system 

may not be the one who Is responsible 'for 

publishing the notice, Agency procedures 

should make the responsibtlltles of each 

clear. The officer or employee who maintains the system' has an obligation to no· tlfy the one responsible for publishing 

the notice. Similarly the officer or em­ ployee responsible for publishing the 

notice, once notified of the existence of a system, must make that fact public. 

Criminal Petwlttes lor Obtaining 

Records under False Pretenses, 6ubsec· 

tion (i) (3) "Any person Who knowingly 

and willfully request.<; or obtains any rec· ord concerning an Individual from an agency under false pretenses shall be 

guilty of a misdemeanor and fined not more than $5,000." 

This provision makes it a criminal act 

knowingIy and willfUlly to request or gain access to a record about an Individ· 

ual under talse pretenses. It is Ukely that 

the principel application of tbta provision will be to deter indlvtduais from 

FEDERAL lEGISnR, VOl. -40, NO. l3t_WEDNESDAY. JUlY 9, 1915 
28971 

makina: fraudulent requests under subsection (d) (1), access to records. 

Su-ancnONS <J) AlfD (k) ExEMPTIONS 

The drafters of the Act recognized that 

the appllcatlon of all of the requirements 

of the Act to certaJ.n catelories of records 

would have had undesirable and often 

unacceptable effects upon agencies In the 

conduct of necessary public business. 

Two categories at exemptions are established: General exemptions (subsection (J» and specl1l.c exemptions (sub· 

section (kl). The principal difference 

between the two categories Is that systems of records exempted under subsection (j) may be exempted from more provlslons ot the Act than those exempted 

under subsection (k). Exemptions under 

subsection (j> may be exempted from 

the civil remedies provision and, in 

particular. the JUdicial review under subsections (g)(U(B) and (g)(3). civil 

remedies. 

In applyine any ot the exemption provisions' of the Act, It Is Important to 

recognize the tollowing: 

No system of records Is automatically 

exempt trom any provision ot the Act.. 

To obtain an exemption for a system 

from any requirement ot the Act, the 

head of the agency that maintains the 

system must make a determination that 

the system tails within one 'of the 

categories of systems which are permitted to be exempted. and publish the 

determination as a rule In accordance 

with the requiremen16 (Including general notice) of section 553 ot the Administrative Procequre Act. That notice 

must include the .specl1l.c provisions tram 

which the lIystem is proPQ6ed to be ex­ empted and why the agency considers 

the exemption necessary. 

The requirement to pubHsh a public 

notice (subsection (e) (4), above) applies 

to all SysteIIUl ot records maintained by an agency. Certain other provisions such as conditions ot disclosure (b), accountingfordlsclosures«cl (1) and (2» and 

restrictions on maintaining records on First Amendment activities (e) ('l') 

also appJy to aU sntema ot records. 

Agencies'may not exempt any system. as defined In subsection (a) (5) from any at 

these requirements. 

In some instances, Systems may con­ tain tei:ords which are subject to exemp· 

tlon under more than one subsection In 

SUbsections (J) or (k). In those cases the 

notices claiming exemptiOI\ should. It 

possible, speclty which types of records are subject to which exemption. 

Agency records which are part ot an exempted system may be d1Sl1emlnated 

to other agencies and Incorporated into 

their non·ezempt records systems. The 

publlc polley which d1ctatea Ute need tor 

exempting records trom some at the provisions of the Act Is baaed on the need to 

protect the contents ot the records In the 

system-not the location ot the records. 

ConsequentlY, In responding to a request 

tor acce6S where doeumentl 'of another 

agency are Involved. the agency receiving the requelt should consult the originatln&' agency to determine It the ree· ords In Question have been exempted 

NOTICES 

trom partieular provlslona of the Act. A 

copy of the request may be forwarded to 

the orlglna.tinI agency tor handling at 

Its document" where such a procedure 

would result In a more rapid responae to 

the request tor acCellS but the agency 

receiving the request remains responsible 

tor assuring a prompt response. 

Agencies which elect to invoke exemptions are encouraged to adopt procedures 

similar to those prescribed by the Act 

wherever approprIate. For example. it 

may be appropriate to seek an exemption 

from the access prov1slon «d) (1) for 

certain prisoner records because they 

contain court controlled pre-sentence re­ ports. but a more limited access procedure may be appropriate. 

SUBS£CTlOJf (J) -GENERAL EUaP'TIOH5­

APPLICABILITY AND NOTICE REQUIRSNENTS 

Subsection 0) "The head of any 

agency may promulgate rules, in accord­ ance with the requirement$ (Including 

general notice), of sections 553 (b) (1). 

(2), and 13>, (c), and (e) ot th1s title, to 

exempt any system ot records within the 

agency from any part at thla section ex­ cept subsections Ib), (c) (I) and (2), 

(e)(4) (A) through (P), (e) un, <7>, 

(9), (10). and (11). and (j) it the system 

of tei:ords is­

"(1) ••• 

"(2) ••• 

"At the time rules are adopted under 

this subsection, the agency shall Include 

In the statement required under section 

553 (c) of t.h1s title, the reasons why the 

system of records Ia to be exempted trom a provision of this section." 

This section permits agency heads to 

exempt systems of records which are maintained by the Central InteIll&'ence 

Agency or for criminal law enforcement 

purposes. as further discussed in lJubsec· 

tions (j) (1) and (2), below. trom all 

provisions of the Act except the-­

Conditions ot di&eIO&Ute. <(b)) ; 

Accounting tor disclosures and retention of the accountln&'. ((c) (1) and 

<211 : Annual public notice except tor procedures tor Identifying' a record. ga.lniog acc.eas to It, contesting it" acouraey. 

and Identifying the sources ot records, 

«e)(4) (A) throush(P»; 

Obligation t.o check the aocumey. relevance, tlmeIlneu. and completeness ot 

records before dJscloolDlI' them to " per­ son other than another. l'loiCncy or to the 

public under the Freedom of Information Act. He) (6»; 

ReStrlCtioWl on maintalnina records on FIrst Amendment activities. 

(e) (1») ; 

EstabUshment ot rules of conduct and 

administrative, technical. and phySical safeguards, «e) (9) and (10), respectively) : 

Publication of "routine use" notices 

(e)(ll);and 

Criminal penalties, «(j), 

When the head of an &lency deter· 

mines that " system of recorda m.a1D.­

tabled by the agency should be exempted 

from cert&ln provl8loo8 of the Act. a notice must be publJahed in the Pl:DUAL RSGlSTSIl wh1eb specl1les, aa a mint­ mum: 

The name ot Ule System (ThI5 should 

be the B&ffie as that given in the annual 

pubUc notice under subsection (e) (4) : 

and 

The sPeci1lc provlslons of the Act trom 

which the system Is to be exempted and 

t.he reasons therefor. A separate reason need not be stated tor each provision 

trom which the system is being ex­

:en:~~ ~~~~~nat~~n:~it::~~e~;~~~n~1I The agency head's determination 

considered to be a rule under the Administrative Procedure Act IAPA) and 

.b subject to the requirements of general notice and public comment of that 

Act. 5 U.S.C. 553. WhI1e general notice 

of a propo.sed rule Is not required under 

the APA when "persons subject thereto are named a.nd either personally served or otherwise have actual notice there~

ot • • .;" the use ot the phrase "Including general notice" means that Individual notifications will not sumce. The systems of records and the num­ ber ot records (I.e., Indlvldua.ls) In each, 

which were exempted from any at the 

provisions of the Act under this subsection will be required to be included in the 

annua.l report prepared as reqUIred by 

subsection (p). It should be emphasized 

that the exemption provWons are permissive; i.e.. an agency head Is "uthor~

ized, but not required, to exempt a system 

from all or any portion ot selected proviSions ot the Act when he or she deems 

it to be In the best interest of the government .and consistent with the Act and 

these guidelines. In commenting on this 

provision. the House Commlttee 1l;O~:

Th" Committee also wlllhee to IJtrol!Sll that
 

thlll section 18 not Intended to I'flIwre the
 

C.I.A. aDd criminal Justice -cenCI!!s to withhold all thou penonlll reeordf; from th" lndlvlduau to whom tbey pertain. W" \U1rO those 

a.gencles to keep open Whatever lUes are presently open and to mAke available In th" 

future whatever files c.,n be made Ilvallable 

without c1ellrly Infringing on the ability or the agencl... to tulflll tbelr ml6eiona. (HoUse 

Report 113-1418. p. Ill) 

To the extent practicable, records permitted to be exempted tram the Act 

should be separated trom those which are not. Further, while the language Permits agency heads to exempt systems ot 

records, agencies should exempt only 

portions of systems wherever tt is possible. 

Geneta! Exemption for the Central 

rntelUgence Agencv. Subsection (j) (J) 

"Maintained by the central Intelllgence A~ncy: or" 

General Ezemptkm for Crimi7UI1 Law 

EnJorcement Record&. suh6ectlon (j) (2) 

"Maintained by an agency or component 

thereof which' pertonns as Its principal 

tunctlon any acUvity pertaln.lnc to the 

enforcement of crlmlnal lawl)" including 

police efforts to prevent, control, or re­ duce crime or to apprehend criminals, 

and the activities ot prosecutors, courts. 

correctional. probation, pardon, or paroie 

authorities, and whlc:b consisLs of (A) 

tnformation compiled tor' the pUJ'l)Ose ot 

Identifying individual erimlnal offenders 

and alleged oII'endel'B and consisting only or ldentitylng data :aDd notatkml otkI'. 

rests. the naWn and. disPosition of crimFlDftAl. ~STU, VOL 40; NO. U2-WIONlSDA.Y, JULY 9, 1'171 
NOTICES 

lnal chargel, aenunclng, con1lnement, 

releaae. and parole and probatton ltatm; 

(B) lnformaLion complIed for the pur_ 

pose of a crhnlnal Investlaatton, Includ_ 

In, reports of InfonnanLs and Investi,a_ 

tora, and associated with an idenUfiable 

Individual: or (C> rtpOr'ta IdentlnabIe to an IndlYldual compiled at. any Il.aI:e Df 

the process of enlon:ement. of the crImJ_ 

nat laWl from arrat. or tnd1ctment 

throUCh rdease from ~n."

Slnacnoft (k) 8P&cJnc .EnxPnOJfS 

APPUcGbUU.. and Nottee Req1llr~.

BUblIectlon (k) "The bend of any agenc,. 

may promuliatoe ruI~. in accordance 

wiUJ. Ute uqulrementa (lnclud1n& aen­ eraJ. notIce) of sectlons 553(b) (II. (2). 

and (3). (c). and Ce) of thLs UUe, to 

exem.pt &n7 IYltem of recorda within the 

arene,. from wb&«:Uons (e) (S•• Cd). 

Ce)(l). (eH4) (0). (8l. and ('I) and. 

<f) or thiI section If the lyltoem ot ree­

_10-" 

~(I) •• 

~(.,) . "At the time Nee are adopted under 

thIa lubsectfon, the agency IhaU Include 

in the ltatement required under .secUon 

WCe) of tb.II tlUe, the re&aons wb7 the 

IYSWn of recon:Ia II to be exempted from .. ):In)VIAon of thiI aecUon... 

Tb1s ~Uon PeJmlta acenc,. 

to exempt anteml 01 recorda from a 11m1t.ed number of proriaIona of the ACt.. 

In addiUon to the proY1sJona from wblch 

DO .,..tem may be exempted under IUbsection 0), a "Item. wblch fa111 under 

any one of the &eyen categories lLsted in 

tb.Ia lubsecUon may not be exempted 

from the foUmnt' J)rOViI1ons: 

InformiDl' prior reclplenlA of cor. reek!<! or disputed records. Hc) (4»; 

CoUeetlna lnformaUon to be used in 

determinaUons about an indiY1dual dl­ ~U7 from the 1nc11Y1dual to whom It 

perta.lnl. He) (2» ; 

Intormlni' indlVlduals aated to aupply 

lnformaUon of the authorlty by and 

purpoeea for which It la coUected and 

Whether or not Pl'ovldhl' the Information 11 mancfatory. «e) (3» ; 

M&l.nta1nin& recorda with aucb &Ceur&e7. completeneu. UmeUntllll. and rete­

'Yance .... l'MaOnable for the ....ency·. 

PUl'IlCR&. He} (5» ; 

NoUfylnJ the .ubJeclA Of records 

dlacloeed under compubory proeeu. «e) (I) ; aDd 

CIvil remedJea. (.). 

& with rubsectJon (j), Upon determ1nlq that a .",t.em Ls to be uem~

under t.h1IaeeUon. the aaency head is required to pUblIah that detenntnauon .. a rule under the AdmJ.niltraUve Proc:edure 

Ad aubJect to publ1e comment. That 

DOUce mud.. u a m1nimum.IIledf:r 

The name of the cntem CU in the 

U1DualDOUce UDder IUbsecUon (e) (U): .... The .pedfk prorisioDi of the Ad from. 

whk:h the antem II to be exempted and 

the reason t.bI!rd'or. 

The aeeDC1 head'. detuminaUon 11 

considered to be a rule under the AdmtnlatraUn: Procedure Ad (APA) and" 

IUbjeet to tbe requJl'emenw of ameral 

noUce and public comment of that Act. 5 

U.s.C. 553. WhIle pneral notice of a proposed rule ill not requlnd. under the 

APA when "persow .ubJect thereto are ~amed. and either personally served or otherwise have actual notice thereof • • .... the lanpa,e "Ineludtna; ,eneral noUce" melJlS that individual noUn­

<:aUon will not I~

In addltkm, the 57.terM of recorda and 

the number of recorda In each. whleb were exempted from an,. of the proYl­

.ions of the Act under tb.1I aect10D wtll be 

requlred to be Included In the annual 

report requIred by subsection (p,. 

It shOUld also be noted that the ex· emption provisions are permlsslve: I.e.• an agency head 14 authortud. but not 

rll!Quired. to exempt a .y.tem wben he or &he deenl6 It to be In the best interest of 

Lhe COft-rnment and cooaIste:nt with the 

Act and U1e:&e pJdelJnea. "Also ....1th 

aecUon tJ) records. the CommIttee \1rJ:ea 

aaencies malntatnln&' aecUon (k) ra:orda 

to oPeD. those docwnmtl to the tncUYld­ ual~ named in them m.oJ'ar .. aueb 

actJon would not impair the proper fUnctioning of those agencies." (House Report 9~1'16, P. 20) 

In the proceu of utWzin& any of these 

uemptlons, aaenc:les should, whereyer 

practicable. aearepte thoee POrUons 

of SYSt.erns for whkh an uempUon Is 

coD51dered neceaaq -a ... to bold to the 

mlnlmum the amount of materlal which 

11 exempted. WhUe the lanllU&Ce per_ 

mlta agency heads to exempt enUre 17'­ ~ms of reeord.!. U1e lanrua,e of certain or the 3peelftc provblona ,)I!low lunestl 

that It may. In some lnatanees, be ap_ 

propriate to exempt only portions of SYItems where It la; not poulble to 

IeIUPte enUre systeml. For example. records conta!n1ne c.l.aAtfted material to 

wh1eb ac:eea may be denIed under (k) (I) 

mould be screened to pennlt &eCelli 

to unclau:lfted material, and only these 

portions or inyesUpUve material wh.lch 

meet all or the crlterla In (k) (2) or Ui) 

Ihould be withheld. However, In the case 

of records which are permitted to be ex­ empted. to the extent that their dbctOllure 

would reveal the Identity of • con­ tldential source. extreme care Ihould be 

exerelse<1 to ensure that the content of 

any recorda be1n, aerreaated doeI not. 

dJacl:ose the JdenUI;r of the.auree. 

Eumptkm lor CJ4"f./kd Matutol. 

Bub&eeUon ct) (I) "Subject to the proYlIlona of IC!Ctlon 552(b) (I) 01 tb.la UUe:" 

Tb1s aubsecUon pennik ..,ency heada 

to exempt. from certain proVillons of 

the Act. those ayltema of reoordl whleh 

are "fA) apeetncall,. authorlzed under 

criteria establilhed by an Executive order to be kept aecret in the In\ereat of 

naUooal defense or forelan polley and 

CB) are in fad Pr"OPerl7 c1us'''ed PUtIUant to xueb EzecuUye Order:' (5 U.8.C. 

552(b)(l). aa amended b,. PubUe Law 

''-002> 

The Preedom of lnformaUon Act.... 

amended b,. PL. 93-602. auUlor1Ult de 

novo judlclal renew at an ....enc:,.-. deel. 

lion to cl.uai!,. a document. tncIud1nI 

in c.amera eltfD11naUon 01 the document 

wben the court dem1a It nece:uary to re­ -alve a dJapute .. to whether a doc:ummt 

11 pmperb' beInc wiU1beld under the proVlIlona of subsection (b) (1) or the P"reedom of Information Act. See the Conference Report on B.R. 12471, House 

Report 93-1380, pp 8-9. 

Userul lrnidance In the application of 

this provIsion 11 found in the Benate 

Committee report d.Lscus&I.on af a almilar 

proVillon an c1a.s&l.fted materla1l: 

The potfntta.l r... RJ1ou& cu..zu.p to the 

ruulonaJ defense or fOftlp pollq oou)d an. 

If the deKrlb1ng a.n1' lDformaUOD 

.,..tem LDduded ct.~1es ... iK>IlI"l:w of laformation ••• or pI'O'Ill1ed 1.1J4b14\lA1s K_ _ to !lIN matntatned .bout them ••• 

The Committee don DOt b1' thla Ioefta1atton 

Intend to Jeop&rdtze the collection of Intel. 

llCf'nce Information ",Iated to I:l.Atlol:lal defel:tM or forel&D pall~1', 01' open to InspecUon 

lnfonnatlon ct...llled pUlIUAnt to Eueutl... Ord. 11852 to penona who do DOC. haft aD 

e.pP!'Opriate _nnt1' deanDoc:e Of aeecl to 

'-. 

TlIla Ret.. Ia not latende4 to pro'I'lde a blaDbt ItUmptk>a to all 1.DJ'00000tioa .,... 

t.eiDS 01" ll.1N malnl.NDed by' a.n ....ne1' wbleb 

dMJ wlUll DaUor>al det..... and torete1l po"'" tnlonn.Uop. Ida.ny pl!IIODael filet and oUloer 

.J'6t.e1Dt ms.1' QOt be 1Ubje« to _w1t1' 

cluel.fteattou 01' D:la1' DDt ........ damage to 

Ull. national detente 01" forelp pollc1' e1mpl1' 

b,. permlttlDl the .ubJecta: of .ueh fli. to 

1De;pect thern a.nd toeek in thel:r _­

'len,. uDder UW Act.. (Scnatoe Repon.llS-ll81 p.?, • 

B'zemptfora lor I.PeStf9atory JlGtD1GI 

CompUrcf 1M LaID B'./orcemetIt Ptarpocu. 

SUbsection (k) (2) "'IDyestiptolY material COlnpUed for law enforcement purPOlleI, ather than material wtth1n the 

SCOPe of subsection (J) (21 of this section: 

Protllded. h~l.ler. That 11 any indly.ldual 

11 denied any rl'ht. pnyUea:e. or beneftt 

that he would otherwt.s~ be enUUed by 

Federal law. or for which he would otherwlae be elJgtble, ... a result or the maintenance of .uch material, IUCb materlal 

Ihall be provided to such indlYk1ual, ex­ cept to the ~nt that the diIcIosure of 

rnc.h material would rneal the k1entity 

of a aoun::e who furn1shed ~onnatlon

to the Government under an express 

P1"OUl1ae that the JdenUt,. 01 the source would be held in confidence. or. prior to 

the effeetJve date of th.1I IeCUon. under an implJed promiae tha.t the ldentlty 

ot the source would be held in confl.­

denee: 

Tbla provtsion alloWI -.eney headl to 

exempt a ayatetn of reeorda compUed. in 

the course of an lnYe5t1&'atIon of an al. 

Ieaect or lUSpec:ted rioIation of dvU la",... lncludlne YIolatloaa of the Uniform COde 

of M11Jt&ry Just1ce and aasoc:tak!<! reru~

latJona. except to the eztent that the 

BYatem 11 more broadly exempt under the 

proYllJon. coyer1nI recorda maintained 

by an acmey whole prindP&l function. 

perta.In,a to the enforcement of erim1nal 

Ian <-tIbsectioll (J) (2»). Th1a exemption ...... drafted because "UJDdlYklual 

aoc:eM to cert&In law enfOtt:eml!D& me. 

could impaIr inYelUpUona. puUc.ularl7 

tbclN wh1ch tnl'Olve complex and con. UDu1n.I' p&tte~ of behaVIor. h would 

alert IUbJeelA of Ihyestiptlons that theJ.r 

actIYlt1m are be1nI' ICrut1nlztd, and thw 

allow them time to tu:e JJLeUures to pre­ yen\. ddecUOll of Wep1 aeUao or escape 

PtORCUUOD." (Bouse B.epon ~11.1'.

p. 11.) 

f'8lftA1.~na, VOL 40. NO. lJ1-WIDHlSDAT. MT t. I,.,.S 
28913 

The phrase "inYe8t1gatory material 

complled tor law ent'oroemmt P\1l'PDlle8" 

is the same pbrue u opened nemptlon 

(b) (7) to the Preedom or Int'orma\1oD 

Act pl10r to ita recent ameDdm&nt (f"Ub.. 

lie Law 93-502), wtU1 the ·exception of 

the use ot the word "material" in the 

Privacy Act tor the word "tues" in the now amended F'reedom ot Infonnatlon 

Act exemptlon. The intent waa to hAve 

the same meaning firlven to tb.1.s phrase 

In the Priv8oCJ' Act &II had been firlve:n to it 

In the Freedom. ot Information Act ex­ cept that the phrase'would apply to ma­ terial as opposed to entire IDes. The case law. then, whk:h bad in'terpreted "10­

vestlptory" and "complIed" and "law 

enforcement PUJ'P(llle&" tor the now amended portlons ot eZelnptlon (b) (7) 

01 the Freedom ot InIormation Act 

should t)e utilized In denn1ng those terms as they appear tn subsection (k) (2) 01 

the Privacy Act.. 

It was lurther recognized that "due 

prO"...ess" in both elvU act10n and crlmlnaJ, 

prosecution wtll as.sure that individuals 

have a reasonable opportunity to learn 

of the existence of, and to challenge, 

!nvestlp.tory recorda which are to be 

used in legal proceedingl. 

To the extent that luch an invest.!· 

gatory record is used u a b&llis lor denyIng an individual any right., privllere, or beneftt Uncludlni employment) to whJch 

the Individual would be entitled in the 

absence ot thAt reeord, the indIvidual 

must be granted acceM to that record ex­ cept to the extent that acces.s would re­ veal the Identity of a confidential source. The language permitting an Ramey to 

withhold records used as a bas1s tor 

denying a benefit to the extent tha.t the 

record would reveal the Identity of an individual who furnished information in 

con.1Jdence is very narrowly drawn and 

must be treated carefully (see abo subsections (k) (5) and (7), below). Pol' 

Information collected on or subsequent to 

the effective date of this lectlon (September 211 1975) a record may only be 

withheld to protect the Ident.!ty of a source 11 

An express guarantee was made to the source that hI.& or her .Identity would 

not be revealed. (Such guarantees should 

be made on a aelective basis; I.e., indiViduals trom whom Jnformation b sollcited tor law enforcement. purposes 

should be advised that. their Identity may 

be d1Iclo&ed to the individual to whom 

the record pertains unless a source ex· pressly requests that hb or her Identity 

not be revealed as a condition ot furnlshtng the information.) ; and 

The record, It stripped 01 the Identity 

of the source would nontheless by Its 

content reveal the Identity to the subject. 

It was recognized that the type of investigatory record covered by sub6ection 

(k) (2) currently contains substanttallnformation which was obtained with the 

tacit understanding that the Identity of 

the source would not be revealed. For 

this reason the Act provides that Information in such reoords that was collected 

prior to the el!ectlve date of the Act may 

be withheld from the individUal to whom 

It perta1nl to the extent that It was colleoted. under an implied promise that Its 

60urce would not be revealed. and dJs· 

closing It would reveal the Identity of the ....,.,.. The pbrue ''to the extent tbat." 18 partlcWarlY tmpor\ant. AI Impl1ed above, Jt 

a record oaA be d1Wosed. In NCb a W&I" 

M to conoeaI itl BOUI'Ce,. JU'OrID.\5e of OODftdentlallty to the 1OUJ'ee is not eumctent 

grounds for withholding It. ObvtOWlly, 

the content of certain reoords is 8Uch 

that It reveab the Identity 01 the source even If the name of the source or other 

.ldentltyJng pe.rticUlars are removed; e.g.. the record contalns information that 

could only have been turnished by one individual known to the IUbJect. Only in 

thO&e eases, may Ute substance ot the 

record be wtthheId to protect the Identity 

ot a source and then only \0 the extent 

necessary to do 110. It Is recogniZed, however that it may In some .Instances be 

very dimeutt for an &8'ency to know 

whether tbe content of a record would, 

In and of Itself, reveal Ita aource. Therefore, It may be appropl1ate In light ot the 

Intent underlying th1I ezempUon, to 

exempt a record when any reasonable 

doubt exlst6 as to whether U.s d1aclosure 

would reveal the Identity of a confidential 3Ouree. 

Addttlonal guidance on the circumstances under which an agency may 

withhold a record on the grounds that 

its dlscI06ure would reveal the Identity 

of a source who provided information 

under a pledge of conJl.dentlaJJty Is found 

tn senator Ervin's statement on the compromise bill on tbe floor ot the Senate. 

The oompromt&e prov18lon tor the mlOoin_ 

!.flnance ot IntormaYon received trom oonlldentlal lIOurC"" npre&entll an acceptance 

ot ttltl HOWle language alter rece-Ivlng an Mllurance that in no INltanee WO\lld that 

language deprive an Indlvtdu.1 tl'OUl 00111"­

Illi of the eX18t6n<:e or any intor_Yon ....Intalned In • record .bout blm which 1II"as 

received from. "con.lldentl.l 1IOUl'(ltl." Tbe 

agencies would DOt be able to claim tb.t 

disclosure of even a small part of a partlcular 

Ittlm woUld reveal the Identity of • conlldtlntlal llOUrce. The con.t1dentlal Information 

would have to be charac!.flrlzed In eo:ne gen_ 

eral wOoy. 'I'I1efa.;e o( the l!.flm'a exll;tence 

and a general oh....acterl....Uon of that Item ....ould have to be made known to tbe Individual In every C&8tl. 

Furtbermore, the acceptance of th\fllectiOn 

In nO wa, precludee an Indl~dual from 

knowlng the su~tan<:e .nd lIOurce of OOn_ 

t1.dentlal Information, Ihould th.t Intonna_ 

tlOD be ueed to deny blm .. promotIon In a goverllDlent Job or acCtlll to clMllI1led. Information or some other right, benellt or prlvlleBe for wbleh be Wall enUtted. to bnng 

legal .ctlon when the llOverllDlent wllhed to 

base .ny p.rt of Its leg8J cue on that 

Informa.t1on. 

~na1ly, It Ia Important to note that the 

House provision would require tbat all tutu", proml$ell of eonftdentl.ltty to llOurcel 

of Information b& expreued. and not lIn_ 

pl\ed proml8ee. Under the autborlty 10 prep.re guldellnllll for tbe admlnletration of 

thlll \Ioet It II expected tbat the omee of 

Manage...ent ..nd BUdget wUl worX elo.er 

with agenel.,. to Insure tha' Federal investigators make s~lng UlIe or the ..blllt, to m..ke UpreM promt.ees of eonftdentlallty. 

(Congrll88lonat Record, December 17, 197~,

p. S 21810) 

The toregolng discussion with respect 

to conndentiaUty of oIIOW'Ces Is also ap. 

plicable to tbe provisions ot subsections 

(k) (5) anrl (7), below. 

J:x..:mptfon lor Be:eor4s Maintained To 

p,.ovf4k PTotecttDe Sertricu. Subsection 

(k) (I) "Maintained In ecmnectlon with 

provktin.. protective services to the PresIdent ot the United States or_other IndlvtduaJa pursuant to M!ctlon 30541 ot title 

18'"Thill exemption eovenl records which are not clearlY ",,!tobin the ecope of law 

enforcement recorda covered. under lubsection (k) (2) but wh1ch are necesaary 

to assuring the safety of Individuals 

protected pursuant to 18 U.S.C. 30M. 

It was noted that "access to 8eeret 

Service Inteutgence tlles on certa1n Indtvtduall would vitiate a critical pe.rt of 

Secret service worll: which was 1pec-1:fI.­

callY recommended by the Warren Comm1aB1on that investigated the a.ssasalnation of President KennedY and funded 

by Congress." <House Report 9S-1416, 

p.19) 

ExemptiOn Jor Statistical .Recor4.t. 

Subsection til:) (~) "ReqUlred by .statute 

to be maintained and used solely as 

statistical recordll;" 

A "statistical record" 1s deftned in 

subsection (a) (6) &II "a record in a BYStem of reeordll maintained tor staUs· 

tical research or reporting purposes 

only and not used In whole or in part 

In making any determ1natton about an Identtnable individual, except all provided by sxtion 8 of title 18." 

It Is .the Intent ot this provision to 

permit exemptions for those systems ot 

records which by operation of statute 

cannot be used to make a determination 

about an Individual. 

This provision permlt.s an agency 

head to exempt a system ot records 

which Is UIled only for statistical, re­ search, or program evaluation PW'J)OlleS, 

and which is not used to make decisions 

on the rIghts, benefits, or entitlements 

01 Individuals except as permitted by 

section 8 of Title 13. The use of the 

language "required by statute to be 

'maintained· •• only" suggestll that systems of records which quality to be ex­ empted under thit> provision are those 

composed exclusively of reeoTds that by 

statute are prohibited trom being used 

for any purpose InvolVing the maklng of a determination about the Indlvtdual to 

whom they pertain: not merely that the 

agency does not engage In such uses. 

Dl&closul'll ot statlsUc.1 recordB Ito the 

Individual I In mOllt In.!tan~$ would not pro'l"lde .ny benellt to anyone, for th_ 

record. do not have a direct lllreet on an)" 

given Ind.1vl(iua1: It WOUld, h01ll"llvllll'. tl:1ter_ 

fel'll with a legltlmate, CODgrelllllonllllyllanctloned activity. (Hou8f: Report 93­

1416. p.19) 

Exemption Jor Investigatory Material 

Compiled Jor Determining Suitabilitll Jor 

Federal Employment or MUUary Service. 

SUbsection /k) (5) "Investigatory material compUed solelY for the purpose of 

determining lultabtllty, eligibility, or quallll.cations lor Federal civilian emplo)'ment. military service, Federal contracts, or access to classlned information, but only to the extent that the dis· 

cl08ure ot such material would reveal 

the Identlty of a 8Ou.rce who turn10llhed 

information to the OOvernment under an 

express promise that the Identity ot the 

fEDERAL IIEGISUt, VOL 40, NO. 132-WEDNESDAY, JUlY., 1915 
28974 NOTICES
 

source would be held l.n con11dence. 01'. 

prior to the effective da'te ot tb1a section, 

under an ImpUed prom1le that the IdeotIty of the source would be held in 

contl.dence"; 

Thb provialon permIts an agency to 

exempt material from the IwUvlduaI ac­ cess provbton 01 the Act which would cause the IdenUty of a conndent1aJ. source to be revealtd only U all 01 the following 

condIUons art met: 

The material ia maintained only tor 

P\U'POIICS or det.erm1n1nr aD lndlvldual's 

QuaIl!I.caUona, dta1bWty or suitabWty for 

mllllarY service. employment in the c1­

villan service or on .. Federal contract, or acceu to cluslfted material. By ImpUcatlon. employment would 1nclude ap_ polnLments to ~ua1 advtsocy eommn­ teet or to me.mber&h.lp aaencle.s, whether OJ' -.J.ar1ed; 

The material Is conaidered relevant 

and necessary to makln, a Judicloua det.uminatlon as to quallftcatlons. dlgibUtty or auJt&bWty and could only be 

obtained by provtdinc assurance to the 

5OW'Ce that his or her IdenUty would not 

be revealed to the subject of the record; 

e.I_, tor "critical senal"ve positions;" 

and 

DlacJ.Ol5ure ot lhe record with the 

Identity ot the source removed would 

llkdy reveal the Identity of the source; 

e.g., the record cootalns InfonnaUon 

which could only have been furnished by 

one of several IndJvldu.... !r.nown to the 

subject. 

<Since Information collected prior to 

the effective date of the Act ml.y bave 

been gathered under an implied proml.se 

of confidentiality, that pledle may be 

honored and those records exempted U 

the other crlt.erla are met.) 

Bee subsection <!r.) (2), above, for a more extensive dlscw.alon of the circumstancell under which records may be 

withheld to protect the Identity of a con· tl.dentlal source. Thla language was Included to ta!r.e 

into account the fact that the screening 

of personnel to assure that only those 

who are properly qualt.ned and trustworthy are placed In lovernmental posl. 

tiona will, from time to time, require In. 

formation to be collected under a pledge 

of con1ldentlallty. Such pledges wlJl be 

Umlted. only to the moat cornpeUlna: circumstances; I.e.. Without the Information thw ob. 

talned, unquaHtl.ed or otherwise unsuitable Individuals might be seleeted; or The potential source would be unwilling to prov1cle needed InformaUon without a guarantee that h.Ia or her Identity 

will not be revealed to the subject; or To be. of value In the personnel screen­ Ins: and often highly compelltlve assess­ ments In which It will be used, the information must be of such a degree of 

frankness that It. can only be obtained 

under an express prom.Lse that the Identu.y of Its source will not be revealed. 

The C1vll service COmmlsalon and tbe 

Department of D!lense (for mllltary 

personnel) wlll lsaue rea:ul&Uons estab1.Ish1n8' pro«dwu for determ1nJnr when 

a pledie of conftdentlallty I.s to be made 

and otherwise to Implement th1I I\lbsec. 

tlon. These regulatIons and any Lmp1ementina: procedures will not provide that 

all information collected on 1ndI'f1duala 

being conaldered for any partleul&r cat,e. 

gory of poaItloDl wW automatically be 

collected under a guarantee that the 

ldentlU' of the aouree wW not be revealed 

to tbe eubject of the ~rd.

Th1s prov151on hal been amonl the 

most m.iIIundentood In the Act. Itshould 

be noted that It gran~ authority to 

ez.empt recorda oDly under wry Um1ted 

ctrcumstances. "It will not be the eua~

tomary t.hlng to make t.hese promises of 

contIdenuaJlty. eo that moat all of the 

biformaUon Un investigatory recorda) 

will be made aVll.Uable." (ContreSSlonal 

Record, November 20, 1974, P. 10887.) 

The tenD "Federal conuacta.. coven 

Invfl5UgatorY mac.erJ.a.l on indJviduata beIDa: considered for employment on an ex1lstlng Federal contract as well .. invesUgatory material complied to evaluate 

the capabWtlfl5 of ftrmlI being considered in a competlt.lve procurement. 

Ezemption Jor Testing or Ezamimltion Material. SubueUon I!r.) un '"Teac..­

iDg or enm1nation material used solelY 

to detennJne individual qualUl.cationa 

for appointment or promotion In the 

Federal service the disclosure of which 

would comprombe the obJectlvlt.y or faIrness of the testing or examlnaUon 

process;" 

"I'h1ls provision permits an alency to 

exempt..-testlni' or examination material 

used to assess the qualll:l.cations of an indJvidual for appointment. or promotion in the mllltarY or ctvlllan service 

only It dJsc10sure of the record to the 

individual woull;l reveal Inform&tJon 

about. the testing procellII which would 

pot.entlaJ.ly give an IndJvldual an unfair 

competitive advantage. Pol' example, the 

ClvU Service CommIssion and the mWtary departments g1ve written examInations which cannot be revi5ed in U1elr 

entlret.y each time they are oaered. Ac­ cess to the examination Questions and answers could give an Individual an un­ fair advantage. This language also covers certain of the materials ueed In 

rating: Individual QuaUncations. ThIll 

lIub.'section permits the Rlency to withhold a record only to the extent that 11.1I 

disclosure would reveal test questions or answers or testing proeedurell. 

It was not the Intent of th1e 8ubsecUon 

to pennit exemptions of Information 

which are requlred to be made avallable to employees or members or are, In 

faet, made available to them all a matter of current practice. The presence of 

exemption (It) ('1') I.s an indlcaUon or U1e 

intended narrow coveraa:e of the exemp· tlOD.! set forth In <!r.) (6) and, simitarly, 

the exempUoD/J or (!r.) (7) and l!r.) (6) 

:Indicate the Intended narrow ooverqe 

ot the exempUon set forth tn eubsectlon 

(t) (5). 

ErempUon Jor Mate1ial U$ed To Eva1­

IUIte Potential lor Promotion In the 

Armed Sertricu. 6absecUon <t) (7) 

"Evaluation mater1al U5ed to determine 

patenUal for prOlDot.lon in the armed 

&er7lees. but only to the extent that the 

clbclO5Ul'e of IUCb material wOUld reveal 

the Sdentl.ty of • source who tum.1sbed 

information to the Government under an 

exprellll'promise that. the identl0' of the 

eource would be held m coD1ldence. w, 

priorio the etiectlve date of tb.II aeetkm, 

under an ImpUed promI.ee that the identity at the lOUl'Ce would be beld in con­ l:l.depce." 

The dbcussloDl of subsection (!r.) (2) 

and (5), above, ehould be Tevlewed In 

applylna' this provision. The &&me rationale regardJDg when and how the 

confldenL1allty of sources may be protected appUea here. 

The mllltary departments will publ.l.ah 

rerutaUons specifying ~06e categories 

of pcl6UioDl. In the Armed Services for 

whtch pledges of con:l'l.dent1alJty may be 

made wben obtaInIng information on an 

individual's sultabWty for promotion. 

These catea"ories will be narrowly drawn. 

SUBSECTION CD A.ClI1VA.L REcoUls 

This subsection addresses IJ1e maIntenance of tboee ~rds which are tl"&nsterred to tbe General services AdmlnistraUon. It shoUld be noted that. there Is a substantial difference between 

Records ....hIch have been placed in 

records centers opera.ted by the Adm1nLs_ 

trator of General Services for "storage 

processing and servicing" punuant to 

section 3103 of Title 44; and 

Records which are accepted by U1e 

Ad.minIstrator of General service.! "for 

deposit in the National ArCbtvell of the 

United States I because they] h&ve sum­ clent h13torkal or other value to warrant. 

their conUnued preservation by tht: 

United States Oovernment." pursuant to 

Section 2103 of TItle 44. 

The former, those for which the 

General Bervlces Administration III essentially a custodian, are addressed in 

subsection ()) (l). The latter. archival 

records whlcb have been tra.nsferred to 

the Arehlvfl5 and are malntatned by the 

Archivist, are addressed in subllectiona 

(J) (2) and (l) (3).
 

RecordJ Stored in GSA Records
 

Center!. Subsection Ol (1) "E&.Ch agency
 

record which Is accepted by the Adminls­


tra.tor of General services for storage,
 

processing, and servtclni' in accordance
 

with section 3103 of title 44 shall, for the
 

purp&es of this section, be considered to
 

be maintained by the agency which de­


J)O!tted the record and shall be eubJect to
 

U1e provlllions of this section. The
 Adm1nbUatorof~eralservt~s~

not disclose the record except to the 

apncy which matntains the record, or under rules establlsbed by that. agency 

which are not. Inconsistent with the provlstons of this section." 

Records whICh are sent to the General 

services AdmlnJBtratton for starale as a result of determination by the agency 

bead that. to do so would "eWeet substantial economies or increase operating 

dftclency." (44 U.s.C. 3103), art: deemed 

to be part of the records of the ageney 

which &ent. them and are subject to the 

Act. to the same extent t.bat they would be 

11 mainta.:lned on the agency's premIses. 

ThIs language, in effect, constitutes a 

clarltleatloo of U1e term. "malnla1n" 

<subseclJon <a) (3» with respect to 

records which have been physically 

FlDHAI. IfGlSTEJ. VOL 40, NO. 132-WlONISDA.... JUl.V 9, 197.$ 
transferred to GBA for storage. WhUe 

records are stored in a records center. 

the a&"6DCY wh1ch sent them to storap 

remains accountable for them and the 

General Berv10ea At:lm1n18traUon etrecUve1y funcUons a.s an agent of that 

agency and maintains Ulem pursuant to 

rules established by that a&ency. 

Rec«da stored. in records centers otten 

consUtute the Inactive portion of aystems 

of recorda. the remainder of whleb are 

kept on aeency prem!z;es; e..... agency 

payroll and personnel records. Whenever practJcable, these lnac~ve records 

should be tnated as part 01 the totalSystem of records and be subject to the same rules and procedures. In no case may they 

be subject to rules which are inconsl.atent 

wIth the Privacy Act. 

To assure tbe orderly and enectlve OPeration of the records center and,comlstent with ita authority to issue regulations 

governing Federal agency records management policies (under title 44 of the 

United States Code), the Privacy Act and 

these i'Uidelines; the General Services 

Administration shaU issue ieneral iWdeUnes to the agencies on preferred methods for handling systems of recordl 

stored in Federal records centers. In view 

of the intent underlying thb provision. 

agencies may. consider that the rt'COrds 

stored In Federal recor!b centers are t-ran.sferred intra-agency and need not 

publ1511 noUce of "routine uses" to enable 

these transfers. 

Reeord.s Archived Prior to Sepfember 

27,1975. Sub5eet1on (I) (2) "Each acency 

record pertaining to an Ident1t1able individual ",-bleb was transferred to the 

NaUOnal Archives of the United States 

Qovernment as a record which has sutt1.clent historical or other vaiue to war­ rant Its continued preservation by the 

Unlted States Government. prior to the 

etrectlve date of t.hls section, &bali, for 

the pul')XlSC5 of this section, be considered 

to be maintained by the NaUonal ArchIves and shall not be subject to the 

provisions of this se<:tJon. except that a statement generally descrIblni such records (modeled atter the requJrements re~

iatlng to records 8ubJect to subsections 

(e) (4) (Al through (0) of this section) 

shall be publlshed In the FII:DEIlAI. ReGISTER:' 

Records transferred to the Archives for 

"preservation" pursuant to 44 U.s.C. 

2103, prior to September 27,1975 are con­ aldered to be maintained by the ArchIves 

but are not subject to other provisions of 

the Act. . 

However, the National Archives ls required to wue general noUces desc.rlblne 

its current boldings which cover, to the 

extent applicable. Ule elements specU'led 

in subsection (e)(41. These &bould include. as a mlnimumThe catCll:orles of indIviduals on wbom 

records a.re maintained; 

The types of tntormation in Lb06e records; and 

Pollc1e5governing accCSll and retrieval. 

"It Is Intended that the notice provJ­ 1 ion not be appUed separately and specifIcally to each of the many tbousands of 

ceparate Systems of records tranaCerred 

to the Areb1eves prior- to the etrecUve 

date of this Act, but rather that a more 

NOTICES 

general description be provided which 

pertains to mea.ntnatul POupings of rec· 

ord SYstems." (COD&res6lonal Record, December 18, 1974, p. B12245) 

U, for any reason, a record currently 

In the Archlves Is disclosed to an agency 

for use by that aiency In ma.kI.n&: a determination all to the rtahts, benefits, or enUUements of an individual. It becomes 

subject to the provisions of the Act to the same extent as any other record maintained by that aceney, 

Records Archived: On or Alter September 27. 1975. SubsecUon (1)(3) "Each 

agency record pertaJ~ to an identlfl.­

able individual which is transferred to 

the National AreblVC5 of the United 

States as a record whicb ba.a sumclent 

historical or other value to warrant Its 

continUed preservation by the United 

States Government, on or after the effective date of this section, shall. for the 

purposes of this section, be considered 

to be maintained by the National Archives and shall be exempt from the re­ quirements of this section except subsections (e) (4) (A) through (Q) and (e) (9) 

of this ,Section." 

Records transferred to the Archives 

pursuant to 44 U.s.C. 2103 (for "preservation") on or after September 27, 1975 

are considered to be maintained by the 

ArchlvC3 fQr purposes or the Act but are 

only subject to selected provisions of the 

Act. "(They] are subject only to those 

provisions of th1fI Act requJr:lng annual 

public notice of the existence and character of the InformaUon systems maintained by the Archives, establlsbment of 

appropriate safeguards to iNure the security and integrIty of preserved personal 

information, and promulgation and implementation of rules to imure the etrective enforcement of those safeguards:' 

(Congressional Record. December 18. 

1974, p. H 12245.) 

The notice required for these records Is on a system by system bnsl.s. "Since the 

records would alreadY have been organIzed In confol·mIty with the requirements of this section by the agency 

transferring them to the Archives, maintaining them In continued conformity 

with this law would not requIre any special etrort:' (HOWIe RePOtt 93-1416. 

p.20.) 

The excltlllion ot archival records from 

the provWons of the Act establishing the 

right to have access or to amend a record WIU also dlscussed in the HOWIe Report: 

under" Lb_ COI3ttol of the An:hLVeB 

1roUld not, howenr, be ....bJect to the pro­

.,Islons of this kw which permit eh&ngeB In 

documen.... at tbe request or the lndh'k1u&! 

n&med In them.. A bule archival rule hoi" 

t.b.&t an:hlvlat. mI., not remon or amend Information In an, TkOrcb placeod In their CUIItad,.. The prtnelple of malntoalnlnc the Int.egrltr or ff!C:IOr'dll .. oonaldered one of the most lmport.ant nlIe. of prof~onal oondud. 

It Ia Important ~U80 blatorlan.l qult& 

properl, 'lli"LDt to leun \he true eouc11UoD or 

paAt government reeonla wtaen dotng ftRUCh; they freqUi'ntl,. ftnd the fact that. 

reoord 1II'U Inaoeurate 1e at leut .. Important 

.. the fact that .. record w.. &eeurate. 

The Committee believes tbat this rule b 

emlnentl, reasonable .nd ahould not be 

brea.ebed enn In the case Of Indlvlduall, 

ldentlftable reconSe. Once !.hOM documeny ....e glven to the Archive., they are no longer 

28975 

uaed to I:Il&U any df,termJ.naUOn about an, 

Indlv\(lu&!, eo amendment of them would not 

.Id .n,one. PUl'\hermore. the Archl,... hM no ..a, or kllOwlnC the crUtl .tattl ot contfttecl 

lnfon:n.aUon, .me. it doea not admlnloetel' tbe 

program fot whleb th. data ..... coUected; n 

eaDJ10t malr.. Jucllmeny .. \0 wb.UIer rae­ mould be &!lUed. (BDUlill Report. 83­

14111, p. 21). 

The Arehlvist b required to establlsh 

rules of conduct for GSA pet;90nnel to &11­

sure that records In the Archives are uaed 

onlY In a manner consistent with 44 

U.s.C. 2103 and that Archives personnei are properly Instructed In the rules IOVernlng access to and use of archival 

records. 

However, when a record whIch has 

been deposited in the Archives J..a dbclosed to an agency and becomes part of 

any agency's records which could be tilled 

In making a detennlnatlon about an tn· 

dlvldual, that record would aga.ln be subject to the other applicable provisions ot 

the Act. 

SUBSECTION (m) GoVERNMENT 

CoHTlACTOIIS 

Subsection (m) "When a.n agency providea by a contract for the operation by 

or on behalf or the ageru:y of .. IYstem 

of records to aceompUsb an agency function, the agency ahall, comistent with Its 

authority, cause the requirements or thla 

section to be appUed to such system. Por 

PUfl)O&U ot aubsecUon m of lJ1la section 

any auch contractor and any employee 

of such con~, if such contract l.a 

agreed to on or after the etrecUve date of 

thla section. shall be considered to be an employee of an aieney... 

The extent to which the provisions of 

the Act would apply to records other than 

th05e physically maintained by PederaJ 

acency personnel was one of the principal. areas of difference between the Senate and Bouse privacy bills (5.3418 and 

H.R.163'13)' 

The Sen.te blll would h&ve enendecl lie 

provllions O\ll.lilde the ....der.1 government 

only to thOle contr.ctors, grantees or par_ 

llclp.nte in .greements with the Feeler.1 

government, .....here the purpose ot tbe cOn_ 

tract. grant or .greement was to e.t.blleh or .Iter an Inform.tlon 1IY.l.em. It addrellHd • concern over the policy governlnk tbe abar_ 

Ing of Federal crimln&! bleto.., InformatIOn .....Ith State and local government 1.\11' en_ 

forcement -senclea .nd tor the amount or money wblch baa been epent through tb. Law 

Enforcement AMI.tance Admln.l~f&t60n for 

tile purchue of Statio &nd local government 

erl.mJnal tnform.tlon .,.temL The compromlMl amen4ment WQUld no_ 

permit Peder&! t.w enforcement agenclee to 

determine to whet e:nent tbeir lllfocmation 

s,etema would be co«.red. by Ul. ACt &lJ4 

to wb.t OlIten~ they win ntend Ulat co.,.,r_ 

age to tm- with whleh they IIhan= Ulat Information or ~eouroa.

At the umllltlme I~ Ie recognized that man, 

Feder&! &&enc1.. COI:ltf1ll:t fot the operaUon of 

.y.te.... of reconU on behalf o[ the ageney 

In order to accompllllb .n &genet functIOn. It 

..... pro.,tcleel thenl!fore th.t eucb oonU'aCte 

If to o.a or after lJIe elrecU.,., date of 

IJIle legl&l.Uon lIball pro.,tde th.t thoM COntrac!.()rS and .ny emplo~Cll or thOM oontrae· 

toD eh.1I be coru.ldered. to be lmlployeee Of an 

.genc, and eubJeet to the provlelol1ll of the 

Icglel.tlon. (CoDgresalonal Record. Dee. 17. 

197., p. 821818) 

fEOUAl REGiStER, VOl. 40, NO. U2_WEDNESDAY, JULY 9. 1975 
28976 

It WlI.S also agreed that the Privacy 

Protection Study Comm1ssion should be 

directed to study the appl1cabillty ot the 

provisions of the Privacy Act to the prl~

vate sector and make recommendations 

to the Congress and the President (Bee 

SUbsection 5(b) of the Act). 

The effect oC this provision Is to 

clarify. further, the definition of the 

term "maintain" as It establishes agency 

accountability for systems of records. 

(See sUbsection (a) (3). It provides that 

systems operated under a contract which are designed to accomplish an agency 

function are, In effect, deemed to be 

maintained by the agency. It was not in· 

tended to cover private sector record 

keeping systems but to cover de facto as well as de jure Federal agency systems. 

"Contract" covers any contract. written or oral, subject to the Federal Procurement Regulations (FPR's) or Armed 

S e r v Ice s Procurement ~gUlatlons

(ASPR's), but only those which provide ,.. • • for the operation by or on behalf of the agency of a system of records 

to accomplish an agency function * ••" 

are subject to the requirements of the 

subsection. While the contract need not 

have as It:> sole purpose the operation 

of such a system, the contract would nor­ mally provide that the contractor operate such a system formally as a speclftc 

requirement of the contract. There may 

be some other Instances when this provision will be applicable even though the 

contract does not expresslf provide for 

the operation of a system; e.g., where 

the contract can be performed only by 

the operation of a system. The re­ quirement that the contract provide for 

the oPeration of a system was intended 

to ease administration of this provision 

and to avoid covering a contractor's syStem used as a result of his management 

discretion. For example, it was not intended that the system of personnel 

records maintained by large defense con­ tractors be subject to the provIsions of 

the Act. 

Not only must the terms of the con­ tract provide for the operation (as op,; 

posed to design) of such a system, but the 

operation of the system must be to ac­ complish an agency function. ThIs was Intended to limit the scope of the cover­ age to those Systems actuaJly taking 

the plaee of a FederaJ system which, but 

[or the contract, would have been performed by an agency and covered by the 

Privacy Act. Information pertaIning to 

individualS may be maintained by an agency (according to subsection (e) (1» 

only if such information Is relevant and 

necessary to a purpose of the agency 

required to be accomplished by statute or Executive order of the President. Although the statute or Executive order 

need not specifIcally require the creation 

of a system of records from thIs Information, the operation of a systeJT. of records 

required by contract must have a direct nexus to the accomplishment of a statutory or PresIdentially directed goal. 

If the cont.ract provides for the operation of a system 01 records to accompUsh 

an ..ency function, then ". • • the 

agency shall, consistent with Its &uthorNOTICES
 

Jty, cause the requirements ot this sec­ tion to be applied to such system." 

The clause " ••• consistent with its 

authority ••• " makes it. clear that the 

subsection does not give an agency any new authority additional to What It 

otherwise uses. The subsection clearly 

Imposes new respooslbUitIes upon an agency but does not confer any new authority to implement It. Although the 

method by WhiCh agencIes cause the re­ quirements of the section to be applied 

to systems Is not set forth, the manner of doing so must be consistent with the 

agency's existing authority. The method 

of causing was envisioned to be a clause 

in the contract, but as. with the "Buy 

America" provision In Government con­ tracts, the breach of the clause was not 

necessarlIy Intended to result tn a termination of the contract. In addition, 

several of the requirements of the Privacy 

Act are simply not appl1cable to systems 

maintained by contractors, and this 

clause was a method of Indicating that an agency was not required to impose 

those new standards. Agencies were given 

'Somc discretion in determining the method or methods by Which they would cause the otherwise appllcable requirements to 

be applied to a system maintained under 

contract. This sUbsection does not merely 

require that an agency Include provisions 

consistent with the Privacy Act In its 

contracts. It requIres, in addition, that 

the agency cause the requirements of the 

Act to be applied, limited only by Its 

aulhorlty to do so. Because of this agency 

accountability-which underlies many of 

the prOVisions of the Privacy Act-there 

should be an Incentive for an agency to cause It:> contractors who are subject to 

this subsection to apply the requirements 

of the section In a manner which is en~

forceable. Otherwise, the agencies may 

end up performing those functions in 

other to satisfy the activity ot the "c\mse" 

requirement. 

The decision as to whether w contract 

for the operation of the system or to 

perform the operation "in-house" was not intended to be aJtered by this subsection. Furthermore, this SUbsection was not Intended to significantly alter GSA 

and OMB authority under the Brooks 

Act (P.L. 89-306) or Executive Order NO. 

11717 dated May 9, 1973, concerning the' 

method of ADP procurement. The principles concerning reliance, upon the private sec\.(lr In OMB Circular No. A-76, 

and related provisions were also not 

Intended to be changed. 

The provisions would apply to all systems of records where, for example-­

The determinations on benef1t.s are made by Federal agencies; 

The records are maintained for administrative functions of the Federal agency 

such as personnel, pe..yroll, etc: or Health records being maintained by an outside contractor engaged to provide 

health services to agency personnel. 

The provisions woUld not apply to systems of records where: 

Records are maintained by the con­ tractor on individuals whom the con­ tractor employs In the process ot pro· 

v1d1D.&" goods and Services to Federal 

wovernment. 

An agency contracts with a state or private educational organlzatlon to provide training and the records generated on contract students pursuant to their 

attendance (admission forms, grade re­ por1.s) are similar to those maintained on other students and are commingled 

with their records on other stUdents. 

When a system of records is to be 

operated by a contractor on behalf of an agency for an agency function, the con­ tractual Instrument must specify, to the 

extent consistent with the agency's au­ thority to require It, that those records 

be maIntained in a<:eordance with the 

Act. Agencies will modify their procurement procedures and practices to ensure that all contracts are reviewed before 

award to determine whcther a system of 

records within the scope of the Act is 

being contracted for and, lf so. to Include 

approprIate language regarding the 

maintenance ot any such systems. 

For systems operated under contracts 

awarded on or after September 27,1975, 

contractor employees may be subject to 

the criminal penaltles of subsections· (1) 

(1) and (2) (for disclosing records the 

disclosure of which is prOhibited by the 

Act or for failure to publish a public 

notice). Although the language is not 

clear on this point, It Is al1fuable that 

such criminal liability only exists to the 

extent that the contraetual Instrument 

has stiPulated that the provisions ot the 

Act are to be applied to the contractually 

maintained system. However, an agency 

which falls, within the limits of Its au· thority, to require that systems operated on its behalf under contracts, may be 

civilly liable to IndiViduals injured as a consequence ot any subsequent failure 

\.(I maintain records in conformance 

with the Act. The reference to contractors as employees is Intended only for 

purposes of the requirements of the Act 

and not to suggest that, by Virtue of this 

language, they are employees for any 

other purposes. 

SUBSECTION (n) M.uLlNCl LIsTS 

Section (n) "An individual's name and 

address may not be sold or rented by an agency unless such action is specifically 

authorized by law. TIlis provision shall 

not be construed to require the withholding of names and addresses otherwise 

permitted to be made publtc:' 

The language In this section Is sus­ ceptible of various interpretations and 

must be read in the context of relevant 

legislative history. It is clear, however, 

that this provision seeks to reach the sale or rental of lists of names and addresses 

for commeri:lal or other solicitation purJ)06es not related to the purposes tor 

which the Information was collected. 

Language Ineluded in the legtalatlon would 

prohibit the twJe or rental ot m-.lUng lau, 

narnes and adl1re_, by Federal ~nelM

maintalulng them. The phll0s0phy beb.lnd. 

this amendment Is tbat tbe hderal Qovernment Is Dot In the mailing l18t bwdn_, and 

It should not be FedenJ. polley $0 make .. profit from tbe routine bu.ln_ ot (lOvern. 

ment, putle\l.larly wben the ral._ 01 lueh 

U.&ta hall been autbOl'l:l.ed under the Preedom 

olltltonnatlon Aet. In other worda, lJUeh IIstli 

ean not be withheld. by an ageney, unlMll It 

detflrmlnM that the I1It_' would conatltutfl 

nDElAl IfGlsnl, VOL 40, NO. 132-WEDNESDAY, JULY 9, 1975 
28977 

a clearly unwarranted tnva310n ot prillacy 

Under section 552(b) (6) ot title 5. UnIted 

S""tes Coo1e. 

ThUll, the tangutoae ot the bill befo" us doetl not ban tbe reteue of auch l18ta wbere 

either sale or "ntal Is not Involved.. (COO· ~Ional Record. December 18. 1974, p. 

HI2246). 

Whlle the reference to the FOIA speaks 

only of "a clearly unwarranted invasion 

of personal privacy" ,(see 5 U.S.C. 552 

(b) (6)) agencies may presumably wlthhgld lists ot names and addresses trom 

the public under any of the exemptions to 

the FOIA (5 U.S.C. 562<b» when they 

deem it appropriate to doso. 

lt is apparent that what is prohibited 

Is "sale or rental" of such lists and the 

language may be read to prohIbit "the 

sale or rental of lists of names and ad· 

dresses by Federal agencies unless the 

sale or rental Is specifically authorized by 

Jaw. (emphasis added!." <senate Report 

93-1183, p. 30 

The senate report, when read In com· bination with the House fioor discussion 

cited above, suggests that age.s may 

not sell or rent mailing lists for commer· clal or solicitation purposes unless they are authorized speeiflcal!y by law to sell or rent such lists. It is equally apparent 

that this language in no way creates an authority to withhold any reeords otherwise required to be disclosed under the 

Freedom of Information Act (5. U.S.C. 

552), It Is problematic whether the language·"may not be sold or rented." precludes the changing of fees authc.rlzed 

under the Freedom of Information Act. 

It would seem reasonable to conclude 

that fees permitted to be charged for 

materials required to be disclosed under 

the Freedom of InlormaUon Act are not 

precluded and that lists, such as agency 

telephone directories, which are cur­ rently sold to the publlc by the Superintendent of Documents can continue to 

be sold. 

Finally, this provision appears not to 

have been Intended to reach the disclo­ sure of names and addresses to agencies or oUter organIzations other than for 

commercial or solicitation purposes, 

Other disclosure <e.i"., the disclosures of names and addresses for a'· statistical 

study or to Issue checks) would be subject to the requirements ot section (b). 

SECTION (oj REPORT ON NEW SYSTEMS 

section (0) "Each agency shall provide adequate advance notice to Congress and the OMce of Management and 

Budget of ani proposal to establish or 

alter any system of records in order to 

permit an evaluation at the probable or 

potential etrect of such proposal on the 

privacy and other personal or property 

rights of Individuals or the disclosure ot 

information relating to such Individuals, 

and its effect on the preservation of the 

constitutional principles of federalIsm 

and separation of powers." 

This sUbsection Is intended to assure 

that proposals to establish or modify systems of records are made krlo1m in ad. vance 80 that 

NOliCES 

There is a basis for monitorini the 

development or expansion of agency 

record-keeping actlvJtY", 

The Commission establishel ;'y section 

5 can review trends tn the use vf personal 

information and the application of technology. 

This provision resulted from the discussions surrounding the need for an In· 

dependent agency to regulate and oversee the Implementation of the Act: 

The compromise amendment still wotlld 

require that agenCies provl(1e- adequate ad· 

lIance noU"e to the CongreSs and to the 

Ollie" of Management and 8udget or any 

proposal to eJltabllab or alter a ayaum or "corda In order to permit au evaluation or the privacy Impact of that proposal. In atldl· 

Hon to the prlllacy Impact, conSideration 

should pe slven to the effect the proposal 

may have on OUr FederaJ ayaU!m and tm the 

separation or powera between the three 

bl"$nches of gOllernment. These concerns. are expressed In connection with recent pro· 

pooals by the General serllices Admlnlstralion and Department or AgriCUlture to e$tab. 

lI&h a giant data facility tor the storing and 

sharing or Intormatlon between tho&e and 

perhaps other department.!. The language In 

the Senate report reflect.! the concern at· tached to the Inclusion or thla language In 

8.3418. (senate Report 93-1183, page 64----(0). 

The acceptance ot the compromise amend_ 

ment does not question the motivation or need tor Improlling the Federal sovermnent's 

data gatherIng and handllng capabllltiea. It 

doea expre38 a concern, however, that tbe 

omce charged with centra.l mana~ment and 

ollerslsht ot Federal activities and the Con· 

gr.ello/l have an opportunIty to examIne the 

Impact or ne"," or altered data systems on our cltl~ns, the provisions for conftdentlallty 

and ......curlty In those systeme and the utent to which the creaUon ot the sy,.tem will 

alter or chans" Interagency or InterS0lletn· 

mental relallol14b1ps related to Information 

programs. (Congre88lonal Record, Decem· 

ber 17. 1974, p. S 21818) 

A report is required to be submitted 

for each proposed new system of records 

and for changes to existing systems. The 

criteria for determinIng what constitutes a change in an existIng system requiring 

the preparation of a report under this 

subsection are substantially the same as those discussed under subsection (e) (4), 

the public notice; namely any change whtch: 

Increases the number or types of In. 

dividuals on whom records are maintained; 

Expands the type or amount of lnfor· 

matlon maintained; 

Increases the number or categories of 

agencies or other persons who may have 

Mcess to those records; 

Alters the manner in which the records are orsanlzed so as to change the nature or scope of thoee records; e.g., the com­ bIning of two or more existing systems: 

Mod1f\es the way in which the system 

operates or its Iocation(s) tn such a manner as to alter the process by which 

tndlvldua.Is can exercise their rights 

under the Act: e.g., to seek Mcess or re· quest amendment of a record; or Changes the equipment configuration on which the system Is operated so as to 

create the potential for greater acCi!SS; 

e.g., adding a telecommunications capa­ blllty. 

The reports required under this sec­ tion are to be submitted to the COlliress, 

to the Director of the Oftl.ce of Management and Budget (Attn: Information 

Systems DivLsion) and to the Privacy 

Protectton Study Commission. 

The Omce of Management and Budget 

will issue. under separate cover, more detailed guidance on the format, timing, 

and content of the reports. 

SuasEcTloN (p) ANNUAL RIPORT 

Subsection (pI "The President shall 

submit to the Speaker of the House and 

the President of the Senate, by June 30 

of each calendar )'ear, a consolidated re· port, separately listing for ea.ch Federal 

agency the number of records contained 

In any system of records which were ex­ empted from the application of this '$ec. 

tion under the provisions of subsections 

(j) and (kl of this section during the 

preceding calendar year, and the reasons for the exemptions, and such other information as Indicates efforts to admlrt1Ster fully this section." 

This sUbsection provides that the 

President submit to the Congress a list of 

sYstems exempted from the Act under the 

terms of section (j) or (kL "Also to be 

Included In the annual report woUld be 

the reasons for such exemptions and 

other information Indicating etror1.<l to 

comply with the law. It is hoped that aU 

such Information would be made public. 

I!, however, the nature of any such ex­ emption requires a security classl1lcation 

marking, It should be placed In a separate 

part. of the report so a.s not to atrect the 

remainder of the annual report." (House 

Report 93-1416, p. 21.1 

Agencies will be required to prepare 

reports to the Oftl.ce of Management and 

.Budget (Attn: Information Systems Division) by Apr.il 30 of each year (beginning April 30, 1976) covering their activities under the Act durlng the precedfng 

calendar ~ar. Tht;!: Offlce of Management 

and Budget will analyze data contained 

in the agency reports and prepare the 

required Presidential report to the Congress. The information required in the 

ineltvldual agency reports will Include not 

only the mlnjmum information required 

for inclusion In the report to Congress 

but also such Infonnatlon as is needed to 

evaluate the overall etreetiveneM of the 

Privacy Act Implementation, Identify 

8reas In which tmplementlng policies or procedures shOUld be changed, and assess the Impact of Federal data manaiement 

activities. 

Agency reports shall Include but not be 

limIted to the following: 

Summary-A brief management sum· mary of the status of actions tail:en to 

comply with the Act, the results ot these 

efforts, any problems encountered and 

recommendations for any changes In legIslation, policies or procedures. 

Aecompllshments--A sUltll1t1Ll'Y of ma· jar accompll.shments; I.e., improvements 

In agency information ·practlces and 

safeguards. 

Plans-A summary ot major plans for 

activities In the upcoming Year, e.g., area 

of emphasis, additional securlni of facUlties planned. 

Exemptlons-A list of systems which 

are exempted durilli the year from any 

fEDEtAl Rf(;lsnl, VOL 40, NO. 132_WEONESOAY, IULY 9, 197$ 
NOTICES
 

of the ()peraUve PTOv1s1ons of thts law 

penn.lU:.ed under the terms of subsections 

(J) and (It), whether or not the,exemption was obtained during the Year, the 

number of records in each system exempted from each specific provision and 

re9.sons for Invoking the exemption. 

Number of s)'stems-A brief summary

of changes to the total inventory of personal data systema subject to the provisions or the Act including reasons tor 

major changes: e.g. the extent to which 

review of the relevance of an necessity 

tor records has resulted In elimination 

of all or portions of systems of-records 

or any reduction in the number or in· 

dJviduals on whom records are malntwned. Aieneles wlll also be requested to 

provide OMB with eo detailed listing of all 

their systems of records, the number of

records in ea.ch and certain other data 

to t'acWta~ oversight of the 1Inple~

mentation of the Act. (Detailed report­ 1nI' procedures wUl be isSued under 

lleParate cover.) 

Operational ExpertenceS-A leneral 

description of operaUonal eXJ)erlences 

inclucting eat1mo.te.s of the number of Individuals On rela.tion to the tot&l number of records in the Ilystem) reQuesting 

Information on the existence of records 

pertaining to them, refusing to provide 

information, requesting access to their. 

records, appeaUng initial refusals to 

amend records, and seeking redress 

throua:h the ~ourts,

More extensive data will be requested 

on those taIles where the agency was unable to comply with the requirements of 

the Act or these quJdellnea: e-l., acet!Il8 

was not. granted or a request. to amend 

could not. be acknowledged within pre· 

scribed time limits. 

More detalled 1n.stl'uctlons OD. t.be 

format., content and tbn1ng of these reports will be Issued by OMB. 

SECTION CqJ EFF«T or QTHJ:R LA.ws 

SubllecUon (q) "No agency shall relY on any exemption contained In secUon 

552 of this title to withhold from an individUal any record which III otherwise 

accessible to such individual under the 

provisions of this section." 

This provision makes It. explicit. that an truUvidual may not be denied accCSll 

to a record perta1J;lina: to him under subsection <d) (1). access to records, beeause 

that record Is permitted to be withheld 

from members of the public under the 

Freedom of IntoJ:PL8t1on Act. The only 

grounds for denying an indiVidual access 

to a record per1;a1n1nr to him are the 

exemptions stated In thLs Act, subsections (jJ and (k), and subsection (1) 

archival records. In addition consideration may have to be given to other statutory provlaions which may govern specltlc agency records. 

IPR Doe.75-'\TJ7" l"Ue<l7-8-76;3:(lO PI21! 

GPO sa·ll7 flORAL IIGtSne. YOL .... NO. I32-WlDNUOA'f, AlLY 9. 19"