CLARIFYING THE RELATIONSHIP BETWEEN THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200160019-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 21, 2016
• Document Release Date: December 11, 2008
• Sequence Number: 19
• Publication Date: January 31, 1984
• Content Type: OPEN SOURCE

Il ~
H 310 CONGRESSIONAL RECORD - HOUSE January 81, 1984
would use a system of kickbacks to en- "(B) 50 percent of the value of such arti- tempting to overturn this well-estab-
courage token funneling of certain cle as of the time it is brought into the lished interpretation of the law. The
products through Puerto Rico. I United States. new "interpretation" is based on the
"(3) PROHIBITION OF FEDERAL EXCISE TAX proposition that the Privacy Act of
deeply regret that some individuals SUBSIDIES.- 1974 was intended to prevent rather
have seen the need to abuse what is a "(A) IN GENERAL.-No amount shall be than foster an individual's right rather
ut himself.
generous and helpful provision for the transferred under subsection (a)(3) or (b)(3) rticle if access
deteimposed on an
that aaFederal JusticetoDepartmenrecords that the
The government of Puerto Rico. thesS taxes
The legislation I have introduced excise tax subsidy was provided by Puerto privacy Act provides authority to
or th he articles Rico or the Virgin Islands (as the case may withhold records that would otherwise
in the Puerto Rico definition
produced clarify
produced d in Virgin be) with respect to such article. be available to an individual under the
Islands for determining the amounts ..(B) FEDERAL EXCISE TAX SUBSIDY.-For Fof Information Act. This ar-
of Federal revenues transferred. It purposes of this paragraph, the term 'Feder- Freedom reedo has been rejected by several
would require that to be eligible for a al excise tax subsidy' means any subsidy- cigument
rcuit courts, although a few courts
section 7652 tax transfer, distilled spir- "(i) of a kind different from, or
its brought into the United States "(ii) in an amount per value or volume of have accepted it. The Justice Depart-
would Puerto to be originally in production greater than, ment position however, is consistent Vir
gene allyo tier Indust ies prio- Act with a myopic view of the Privacy
only Puerto Rico or the Vrgin Islands. The Islandssoffers which
the legislation would prohibit tort generally Rico ducing articles not subject to Federal excise Congress enacted a code of fair In-
and excise cise tax where wherere Rico the taxes formation practices in the Privacy Act
an lend the e Vie "(4) DIRECT COSTS OF PROCESSING OPER- in order to provide safeguards against
money was being used for improper ATIONS.-For purposes of this subsection, privacy abuses by GovernmeIt agen-
subsidies. Specifically, improper subs!- the term 'direct costs of processing oper- pies. One of the major elements' of
dies would be those where the Secre- ations' has the same meaning as when used
tary determines that the subsidies are in section 213 of the Caribbean Basin Eco- sic such a code of fair the information
rprac-Recovery Act. -and of
i kind different from r are o or the no" 5i> EXCEPTIONS.-This subsection shall of the Privacy Act-is to grant an indi-
V gin Islands than Puerto Rico t the not apply- vidual the right to gain access to infor-
irin Islands offers generally to in "(A) to rum (as defined in subsection mation pertaining to himself or her-
(d)(3)), and self in Federal agency files.
to Federal excise taxes. The provisions "(B) to any article consumed in Puerto Act also included otheher
of the bill would not be applicable to Rico or the Virgin islands (as the case may The features Privacy code of fair laded o r
rum or any article consumed in Puerto be)." practices, such as a notice of informa-
January would effective on made by subsection (a) shall appply witheet tion practices, limitations on disclo-
brought 30, 1984, for or all articles to articles brought into the United sure of records to third parties, and
brouahrought into the he United States after States on or after January 31, 1984.0 collection and maintenance restric-
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m
tilled spirits. The scam also has the ' The SPEAKER pro tempore. Under The purpose of the exemptions was
exemptions was
potential for an increase of up to $200 a previous order of the House, the gen- to adapt the code the fair information
to $300 million a year depending upon tleman from Oklahoma (Mr. ENGLISH) to the nof govern-
Puerto Rico's ability to fund rebates is recognized for 60 minutes. practices repo the a necessities ess The exemp-
cut off
The increase their distillation capacity. ? Mr. ENGLISH. Mr. Speaker, today I mental s were not intended The
The text of the bill follows: have introduced a bill intended to clar- bon that had already been granted
H.R. 4702 ify the relationship between the Free- rights s in the hat had of Information led
Be it enacted by the Senate and House of dom of Information Act and the Priva- d the ee Af do not at on cA ut
Representatives of the United States , of cy Act of 1974. Recent judicial deci- a those rivdcsoy .
America in Congress assembled, sions and changes in regulations pro ann f t ose rrate the absurdity of the po
SECTION 1. CLARIFICATION OF DEFINITION OF AR- posed by the Reagan administration
TICLES PRODUCED IN PUERTO RICO have ? so confused the situation that it sitioon n t toraken by t ab the etatus Justice ce t Deepart-
art-
OR THE VIRGIN ISLANDS. is now advisable to enact legislation in mo
(a) GENERAL RuLE.-Section 7652 of the order to make sure that the original tral files of the Federal Bureau of In-
Internal Revenue Code of 1954 (relating to intent of the Congress will be fol- vestigation. These files are completely
shipments to the United States) is amendon lowed. exempt from first-party access under
(d r nd by inter subsection (c) as subsb) t the he The confusion over this issue is the provision of the Privacy Act
fo) owi g ew subse t ion: subsection (b recent in origin. For many years, there exempting criminal investigatory
following new su b eODUCE records. However, the FBI has always
?(c> ARTICLES pRIICED Ix PUERTO Rlco has been no dispute about how the accepted and processed similar re-
OR THE VIRGIN ISLANDS.-For purposes of Freedom of Information and Privacy rests under the Freedom of Infornl-
subsections (a)(3) and (b)(3)- Acts mesh. An individual seeking q e Ac r course, ior Infor
"(1) DISTILLED SPIRITS BROUGHT INTO THE access to his or her own record was under FOIA if its disclosure
UNITED sTATEs.-Any article containing dis- always considered to be entitled to the exempt would interfere with ongoing law ere
pried ced shall in no Ri evothe virgin as maximum amount of information that
is the virgin Ib- is disclosable under either the Free- forcement proceedings, identify infor-
produced in ss Puerto o Rico or
ilandt unreal the original led spirits n sub- dom of Information Act or the Privacy mats, disclose investigative techniques,
artile occle occurrlred d in the Pue erto Rirto Rioco o or i the in such Virgin Act. This was the original understand- or interfere with other important gov-
rt
Islands (as the case may be). ing of those who drafted the Privacy ernmental withstanding or the private FOI interests. exempt Not-
ot
"(2)?VALUE ADDED REQUIREMENT.-Any arti- Act of 1974, and the OMB Privacy Act have been able ti see
cle (including distilled spirits) shall in no guidelines have always reflected this most t theiro ding FBI fdua s Isn whole eenn ble t.
event be treated as produced in Puerto Rico position. Agencies, including 'the De-exemptio or the Virgin Islands unless- partment of Justice, have followed the a f PivTc dcs from access uoperate nder the
"(A) the sum of (i) the cost or value of the same interpretation.
materials produced in Puerto Rico or the Consistent with its demonstrated FOIA as well, then why has the FBI
the di ect cos s of pro case may be), plus er- lack of interest in the public availabil- responded to first-party requests
ds ity of information in Government under. FOIA for all of these years?
forded in Pue o Rico or Vi OVirrgin Islan Islands
(y als or exceeds files, the Reagan administration is at- Why has the FBI sought amendmen
(as t the he as caase e m may R be), ico equ th
that date.
While final revenue figures have not
been compiled yet, initial indications
are that this scam cost the Federal
Treasury approximately $100 million
1983 in lost excise taxes from dis-
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tions. Since not all of these features
CLARIFYING THE RELATION- were appropriate for law enforcement,
SHIP BETWEEN THE FREEDOM intelligence, and other sensitive Gov-
. OF INFORMATION ACT AND ernment records, the act permitted se-
THE PRIVACY ACT OF 1974 lected records systems to be exempted
me of these requirements.
f
m so
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January 31, 1984 CONGRESSIONAL RECORD - HOUSE H 311
to the FOIA designed to restrict first- formation about that same individual Information Act,. and the Department
party access rights? Given the com- from Government files if the informa- has asked the Supreme Court to aid
plaints made by the FBI over the tion would otherwise be made availa- and abet that revision of history.
years about the FOIA, it is hard to be- ble to the individual under the Free- The Department has complained to
lieve that compliance with so many dom of Information Act. the Congress about the impact of the
FOIA requests has been entirely vol- Put another way, the issue is wheth- FOIA on law enforcement agencies. I
untary. er the Privacy Act of 1974 prevents an am sympathetic to the concern that
It is equally hard to believe that individual from seeking records about convicted felons use the FOIA to seek
Congress passed the Privacy Act with himself through the Freedom of Infor- information about themselves con-
the intent of completely cutting off mation Act when those records have cerning informants. Carefully tailored
first-party rights of access to FBI files. been exempted from disclosure under changes to FOIA's seventh exemption
In fact, those associated with the pas- the Privacy Act. This bill provides the are awaiting action by the other body
sage of the Privacy Act have consist- answer. "No." in S. 774. Perhaps the Department is
ently said that no diminution of first- This issue was raised and resolved frustrated that, while those changes
party Freedom of Information Act during the period of initial implemen- are relatively noncontroversial, they
rights was intended. tation of the Privacy Act of 1975. That lie dormant on the congressional cal-
Treating the Privacy Act as authori- resolution was embodied in - policy endar. But the Department's proposed
ty to withhold information under the guidance issued by OMB and in imple- change in policy would create unrea-
FOIA leads to another absurdity. menting regulations issued by the De- sonable and unwarranted results,
Under the Justice Department argu- partment of Justice: An individual re- beyond their stated purpose.
ment, a Privacy Act exemption oper- questing records about himself is enti- Implementation of the Department's
ates to deny access'to the subject of?a tied to the maximum access available change of policy would result in the
record under both the Privacy Act and under either of the acts. anomaly that a third party would have
the FOIA. However, a request from a Thus, if an individual makes a re- greater access to an individual's files
third party made under the FOIA quest of, say, the FBI for records than the individual himself.
cannot be denied using a Privacy Act about himself, any such records in a As one who has worked for a number
exemption. Thus, it is possible that a system of records exempt from disclo- of years on regulatory reform legisla-
third party will be able to obtain more sure under the Privacy Act would still tion, I am highly critical of agencies
information about an individual using be subject to search, review, and dis- using rulemaking power to effect a 180
the FOIA than the individual will be closure under FOIA.to the extent that degree shift in policy when there has
able to obtain about himself under the the records are not exempt from dis- been no change in their underlying
Privacy Act. This possibility has closure under FOIA or the Bureau legislative authority. That is what has
become known as the "third-party chooses not to assert any applicable happened here. And, I have urged the
anomaly." - exemptions-of which there-several. Department not to put this policy
How often will this happen? Much A change in litigating position at the change into effect.
information about an individual can be Department of Justice, has fostered Since the Department is trying to
denied?to a third party under the per- conflict in the courts and, thus, the force the Supreme Court to rule that,
sonal privacy exemption of the FOIA. Supreme Court. has been asked to re- for the last 10 years, everyone's under-
However, an individual can waive his solve a question -of legislative intent. standing of what Congress did when it
privacy rights and permit personal in- Meanwhile, last August the Depart- - enacted the Privacy Act was wrong, I
formation to be'disclosed to another ment of Justice proposed a change in think we here in the Congress should
person. If the Justice Department per- its rules for handling Freedom df In- eliminate any room for question or
sists in its interpretation of the Priva- formation Act and Privacy., Act re- quibble; and save the Court the trou-
cy Act, this is likely to become a regu- quests which reflects that change in ble.o
lar occurrence. litigating position. Current policy?:and ? Mr. ERLENBORN. Mr. Speaker, I
The bill that I am introducing today rules, which reflect what I believe to am pleased today to join Representa-
is very short. it adds following new be- legislative intent, ? have been tive GLENN ENGLISH and others in in-
naragraah to the Privacy Act of effect since 1975. troducing a bill to clarify the relation-
T4; The position recently taken by the ship between the Freedom of Informa-
(q)(2) No agency shall rely on any exemp- Justice Department means that if an ton Act and the Privacy Act of 1974.
tion in this section to withhold from an in- individual asks for,.records about him Mr. Speaker, I was one of the au
dividual any record which is otherwise ac- self and they reside in a system of thorn of the Privacy Act of 1974 and
cessible to such individual under the provi- records exempt under the Privacy Act,
sions of section 552 of this. title. that individual gets nothing. This is the 1974 amendments to the Freedom
This language will not actually the result even when another person, of Information Act. I managed both of
result in any change in the Privacy asking for the same records under the those bills here on the house floor and
Act. It will simply. clarify that the Freedom of Information Act, must be was intimately involved in the negotia-
longstanding interpretation of the in- given the material. tions that ' led to the compromises
terrelationship between. the Privacy This is almost exactly the situation which facilitated passage of those
Act and the Freedom of Information the Congress faced 10'years ago when measures.
Act is correct. But for a few erroneous court decisions interpreting the origi- Freedom of information and privacy
court decisions and some poor. policies nal seventh exemption to the Freedom protection may appear to be antitheti-
that the Reagan administration is at- of Information Act virtually closed all cal concepts when what is at stake is
tempting to implement, this bill would access to law enforcement files. the disclosure of information in Gov-
be completely unnecessary. That was remedied by Congress in ernment files. But, to repeat what I,
I am pleased that Representatives its 1974 amendments to the Freedom said on the day the House considered
BROOKS, KINDNESS, ERLENSORN, and of Information Act. I. the Privacy Act-which, by the way,
HORTON have joined with me in spon- On the same day in 1974 that the was the same day we overrode the
soring this legislation.e House overrode the President's veto of President's veto of the 1974 Freedom
? Mr. KINDNESS. Mr. Speaker, I join the ' FOIA amendments,'. the House of Information Act amendments:
today with Mr. ENGLISH of Oklahoma considered and passed its -version of It has been quite an effort to walk a tight-
in introducing a bill to add a little the Privacy Act. One month 'later the rope in the one bill to. provide the maximum
clarifying language to the Privacy Act House took-final action on the Privacy. access to information on the part of the
of 1974. If enacted, the bill would Act. public, and in the other bill to limit access
make it clear beyond quibbling, that The Department of Justice would to protect an individual's d.
There has been a tendeivacyency, I think, to
the Privacy Act should not be con- now have us believe that, by passing view these often as conflicting, but I think
strued by any agency or court to pre- the $rivacy Act, the Congress undid that we have successfully walked that tight-
vent an individual from obtaining in- . the changes it made in the Freedom of rope and have, in both of these pieces of leg-
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