FURTHER GUIDANCE ON IMPLEMENTING THE PRIVACY ACT OF 1974 (P.L. 93-579)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000600120020-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 19, 2016
• Document Release Date: October 25, 2005
• Sequence Number: 20
• Publication Date: May 6, 1975
• Content Type: MEMO

UNCLASSIFIED '~I CONFIDENTIAL SECRET I
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SUSPENSE
poird;rar Releee 2105/11/21 CIA-RDP7`7:
 EXECUTIVE OFFICE OF THE PRESIDENT C&Al
WASHINGTON, D.C. 20503 L z
vi-Ay ~0, fq'7
TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS
SUBJECT: Further. guidance on implementing the Privacy Act
of 1974 (P.L. 93-579)
This memorandum provides additional substantive guidance on
Privacy Act implementation and requests designation of an
agency point of contact for future communications on this
subject.
My memorandum of March 12, 1974 provided draft guidelines
for implementing the Privacy Act, requested that agencies
submit plans for implementing the Act and comments on the
draft guidelines, and indicated that the Justice Department
had been asked to ~rovide advice on several questions of
statutory interpretation.
The Justice Department response (attached) provides advice
on two issues of particular significance to all agencies:
the definition of the term "agency" and Civil Service
Commission responsibilities with respect to civilian
personnel records. It. is being provided in advance of the
release of the final guidelines document because the answers
to these questions are necessary to the development of
individual agency rules and procedures.
This advice from the Justice Department as well as the many
constructive suggestions from other agencies will also be
incorporated into the final guidelines and procedures.
To facilitate future communications on this subject,
agencies are requested to designate a point of contact for
Privacy Act implementation coordination. The name, mailing
address, and telephone number of the designated individual
should be provided by May 9, 1975 and may be directed to the
Information Systems Division, OMB, Washington, D.C. 20503.
Agencies which indicated a point of contact in connection
with their implementation plans and comments on the draft
guidelines document need not re:, and again.
Attachment
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 fesR rAN'e ATTORNEY GENERAL
C.T"u-i Qfi LEGAL CQIUN5fL
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APR 14 19/5
Honorable James T. Lynn
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Lynn:
The Attorney General has referred to this Office
your letter of March 12, 1975 requesting views on
several issues arising under the Privacy Act of 1974.
We have had occasion to consider the definition
of the term "agency contained in the 1974 Amendments
to the Freedom of Information Act - - which, as you
note, the Privacy Act incorporates by reference.
5 U.S.C. 552a(a)(1). There is a discussion of its
meaning at pages 24 to 26 of the Attorney General's
Memorandum on the 1974 Amendments to the Freedom of
Information Act.
The new definition of "agency" was designed
principally to clarify and expand the coverage of the
term (1) by explicitly referring to government cor-
porations and government-controlled corporations, and
(2) by explicitly referring to the Executive Office
of the President. See S. Rept. 93-1200, pp. 14-15.
As to the former, the legislative history indicates
that mere receipt of appropriated funds does not make
a corporation subject to the Act, but that Federal
chartering or control is necessary. The Corporation
for Public Broadcasting is mentioned as a specific
example of a corporation not covered.
As to application of the amendment to the Executive
Office of the President, the legislative history makes it
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clear that not all portions of that organizational entity
are intended to be covered.
"With respect to the meaning of the term 'Execu-
tive Office of the President' the conferees intend
the result reached in Soucie v. David, 448 F.2d 1067
(C .A.D .C . 1970). The term is not to be interpreted
as including the President's immediate personal staff
or units in the Executive Office whose sole function
is to advise and assist the President." S. Rept.
93-1200, p. 15.
Concerning the-issue of which particular units within
the Executive Office of the President are covered by the
definition, 1 enclose for your use a copy of that portion of
an earlier memorandum to the White House dealing with the
general question. More specific advice will have to be
rendered on a unit-byp-unit basis, with full information
concerning the precise function and makeup of the particular
component of, the Executive Office involved. It is essential,
of course, that we apply the same conclusion to both the
Freedom of Information Act and the Privacy Act.
With respect to the second portion of your first
inquiry, pertaining to the issue of whether subsidiary
units within a larger governmental entity such as a depart-
ment must be considered separate "agencies" for purposes
of the Freedom of Information Act and Privacy Act: We do
not regard the 1974 Amendments as making any change with
respect to this issue. As noted above, the congressional
focus in adopting those amendments was upon the overall
scope of the coverage and not on the issue of how far
government entities are to be subdivided for purposes of
applying the Act. Thus, the statement in the new subsection
552(e) that the terra agency "includes any executive depart-
ment" is not intended to imply that subagencies within the
Department of Health, Education, and Welfare, for example,
cannot be treated as separate units for purposes of admin-
istering the Freedom of Information Act. The statement in
the Senate Report that "it is not intended that the term
'agency' be applied to subdivisions, offices or units
- 2 -
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within an agency" is of course entirely circular, in our
opinion, it is not meant to forbid reasonable administrative
decentralization of the sort just mentioned but rather to
prevent the conferral of agency status upon a unit that
does not have "substantial independent authority in the
exercise of specific functions." The latter phrase is
taken from Soucie v. David, 448 F.2d 1067, 1073 (D.C.
Cir. 1971), which was endorsed in the sentence immediately
following the excerpt from legislative history quoted above.
Had it been the intention of the new amendments to forbid
the widespread and well-known practice of several Depart-
ments to consider certain of their subdivisions separate
"agencies" for purposes of the Freedom of Information. Act,
it is :,in our view certain that some specific expression
of this concern would appear in the legislative history,
which it does not.
In short, it is our firm view that the 1974 Amendments
require no change in the principle which has been applied
under the original Act, that it is for the over-unit -- the'
Department or other higher-level "agency" -- to determine
which of its substantially independent components will
function independently for Freedom of Information Act
purposes. Moreover, as the Attorney General noted in
that portion of his Memorandum dealing with the subject,
"it is sometimes permissible to make the determination
differently.for purposes of various provisions of the Act for example, to publish and maintain an index at the over-
unit level while letting the appropriate subunits handle
requests for their own records." Attorney General's Memo-
randum at 26. In our view, this practice of giving variable
content to the meaning of the word "agency" for various
purposes can be applied to the Privacy Act as well as the
Freedom of Information Act. For example, it may be desirable
and in furtherance of the purposes of the Act to treat the
various components of a Department as separate "agencies"
for purposes of entertaining applications for access and
ruling upon appeals from denials, while treating the Depart-
ment as the "agency" for purposes of those provisions limit-
ing intragovern.mental exchange of records. (of course,
dissemination among components of the Department must still
be only on a "need-to-know" basis. 5 U.S.C. 552a(b)(1).)
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Needless to say, this practice must not be employed invidi-
ously, so as to frustrate rather than to further the purposes
of the Act; and there should be a consistency between the
practice under the Privacy Act and the practice for comparable
purposes under the Freedom of Information Act. For this
reason it seems to us doubtful (though not entirely impossible)
that a Department or other over-unit which has treated its
components as separate agencies for all purposes under the
Freedom of Information Act could successfully maintain that
all of its components can be considered a single "agency"
under the Privacy Act, simply to facilitate the exchange of
records.
On the basis of the foregoing comments, we would
suggest revision of the first paragraph on page 4 of your
proposed guidelines. It does not seem to us desirable to
indicate the existence of any ambiguity on the point whether
there can be an "agency within an agency" for the purposes
of the Freedom of Ingormatjon Act and the Privacy Act. In
our view this point is clear. The extensive quotation from
Congressman Moorhead, consisting mainly of a hypothetical
using the Department of Justice as an example, is not help-
ful, since this Department has for almost all purposes
chosen to consider itself a single "agency" under the
Freedom of Information. Act. We would replace this paragraph
with advice concerning the permissible and impermissible
use_ of the "agency within an agency" concept, similar to
that which we set forth above.
We agree with the ixterpretation of the Civil Service
Commission that civilian personnel records can be treated
as a single system of records under the control of the
Civil Service Connission. These are records required to
be maintained by Civil Service regulations and they are
kept on standard forms approved by the Civil Service Connni.s-
s:i.on. The fact that duplicate copies are kept by agencies
and by components of agencies does not require that each
set of duplicates be treated as a separate system of records.
If Civil Service personnel records are treated as a
single set of records, however, care must be taken to assure
that they are indeed uniform. It may be that some agencies
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include within personnel files material developed within
the agency in addition to standard personnel forms. If so,
it may be necessary for those agencies to publish an addendum
or supplement to the Civil Service notice describing the
system, which details the additional information their files
contain. Using an addendum, rather than a separate notice,
would accomplish the purposes of the Act without unnecessarily
expanding the required compilation of information systems.
We would also note that if Civil Service publishes a
single notice of personnel systems it should take care that
individual access to records remains convenient to the
employee. Thus, the notice might specify that examination
of records can take place in the particular agency or agency
component, rather than at the Commission offices; and agencies
might indicate in an addendum the location where records in
their possession may be examined. In the alternative, Civil
Service could publish, as part of the notice, a directory
of personnel offices where records. can be examined.
There may be other records which could be similarly
consolidated in a single notice. For example, the financial
statements required of certain employees are kept on identical
forms. While they are not held in a central location, it
may nevertheless be possible to describe them as a single
system of records, explaining in the notice that they are
kept on an agency by agency, or office by office basis rather
than in a central repository.
Your inquiry concerning procedures to be fol-lowed with
respect to litigation was referred to the Civil Division of'
this Department. Attached is a memorandum from that Division
setting forth its views on the guidelines with. respect to
civil litigation.
Antonia Scalia
Assi,tant Attorney General
Office of Legal Counsel
Attachment
(Attachments not provided)
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