CONFIDENTIALITY OF FEDERAL STATISTICAL RECORDS ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200030002-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 90
• Document Creation Date: December 22, 2016
• Document Release Date: November 7, 2008
• Sequence Number: 2
• Publication Date: March 18, 1983
• Content Type: FORM

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LEGISLATIVE ANALYSIS
F e: J-_!~
I_J
Bill 140. OMB draft bill Report No.
Companion No.
Title; "Confidentiality of Federal Statistical Records Act"
Sui) ject.
STATiltacts
various statues including Paperwork Reduction, Internal Revenue
Code and aws governs
Conclusion: No Agency objection
Agency objection and/or needs amendment
Analysis. I reviewed the captioned legislation. This is the same
complicated piece of legislation which OMB has been attempting to introduce
for the last several years; I don't think that it has been ever introduced-,
The bill would provide increased protection to information obtained
.by federal agencies in the business of compiling statistics such as the
Census Bureau, the Department of Commerce, the Internal Revenue Service
the National Science Foundation and the Department of Agriculture.
In addition, it would permit those agencies to share among themselves
information otherwise protected.
The Agency is not involved in this area. To the extent that there
is any involvement at all, however, it would be in two areas: obtaining STAT
information from protected files and providing information to such
agencies. In regard to the former, I confirmed with of the
DDI that, as with last year's bill, this bill would not present any obstacles
to the Agency obtaining the types of information it may need.
In regard to the latter, we had recommended to OMB in regard to last
year's bill that they strengthen the disclosure section (see copy of
our letter to ORB-attached). This year, however, the bill has been
changed substantially in this area. The protections afforded to any
intelligence information which might, by some wild stretch of the imagniation,
creep into such files, have been strengthened under Sections 7-11
of the bill. In particular, I believe that the provisions of
Section 10 (b) will meet the concerns we raised last year, albeit that
this is a different bill in this regard.
~- Accordingly, I conclude that there are no Agency objections to
this bill and we should so inform OMB.
STAT
(nanie)
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CENTRAL INTELLIGENCE AGENCY
WASF;:r.:;TOni. D.C 2VS:s
CGC S2-01012
22 April 1"82
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This letter will supplem,:-nt our telephonic response
to your request for comments on the draft legislation
'Confidentiality of Federal Statistical Records Act.'
The Central Intelligence Agency has no objection to
this legislation insofar as it embodies the concept of
increased protection for individually identifiable
statistical information gathered by federal statistical
agencies, and insofar as it permits federal statistical
agencies to share such information among themselves more
freely as needed. Our concern is to avoid any adverse
impact which the legislat9~a co+,i .)n the national
intelligence mission or the a;er,cies in the Intelligence
Community. In Its present fora, the proposed legislation
does not appear to address or iffect that mission or
those agencies. Accordingly we wish to withdraw the
objections to sections 109(e) and 112 of the legislation
which were noted In our initial telephonic response.
We are concerned, however, tkat the proposed
legislation could have an unintended inimical effect on
intelligence information in the files of a federal
statistical agency. In order to prevent such a result
and to clarify the protection which the proposal accords
intelligence and foreign policy information, we suggest
that section 110(f) be amended as follows:
Should the on inating agency refuse to disclose
the requested individually identifiable records,
the rer,iesting agency may appeal to the Chief
Statistician for a determination of the need for
the requested records. The Chief Statistician-may
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(6) -the-disclosure-ts-pcohtbited-by-statue-in-
-the-Interest-cf-national-security-or-foreign-policy,
the head'of the on inatin a enc or his
designee tort yes that the ~nforsaat~on ~s
protected from ~isciosure b statute o 5
Blass ie purs_3rit to Executive or er in the
interest of nations securit or forei n po tc
legislative We ppreciate the opportunity to comment on this
proposal, and we would like to be kept
informed as it proceeds through the revision process.
Sincerely,
. Stanley Sporkin
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
March 11, 1983
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer
3--oao 5/3
SUBJECT: Proposed OMB draft entitled, "The Confidentiality of
Federal Statistical Record Act"
Note: (This is a revised version of a draft bill
which was circulated last spring.)
A-19.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
,,.,,,-Please provide us w' h your views no later than Thursday,
March 24, 1983. S IS A FIRM DEADLINE.
Jam41 'C. Murr'for
Assistant Director for
Legislative Reference
Direct your questions to Maurice E. White/(395-3856), the
legislative analyst in this office or toAerry, offey/(395-3087).
cc: B. Martin R. Adkins J. Walker J. Tozzi
P. DuSault D. Crabill D. Kleinberg K. Newman
C. Wirtz H. Loweth D. Sitrin
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Distribution:
Department
of
Commerce
Department
of
Labor
Department
of
Energy
Department
of
Education
Department
of
Agriculture
Department
of
Health and Human Services
Department
of
Housing and Urban Development
Department
of
Defense
Central Intelligence Agency
Department of Justice
National Security Council
Department of the Interior
Department of State
Department of Transportation
Department of the Treasury
Veterans Administration
Small Business Administration
Environmental Protection Agency
Federal Emergency Management Agency
National Aeronautics and Space Administration
Office of Personnel Management
General Services Administration
National Science Foundation
Security and Exchange Commission
Federal Reserve Board
Federal Trade Commission
Federal Home Loan Bank Board
Consumer Product Safety Commission
Civil Aeronautics Board
Interstate Commerce Commission
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
Dear Mr. Speaker/Dear Mr. President:
I am transmitting, for referral to the appropriate Committee, a
legislative proposal entitled the "Confidentiality of Federal
Statistical Records Act."
This legislative proposal responds to two major impediments to
the effectiveness and efficiency of the Federal Government in
collecting and compiling statistical information to meet public
policy needs. The first is the lack of an enforceable guarantee
of the confidentiality of information collected--a problem which
can and does affect the quality of the data supplied, especially
when reporting is voluntary. Increasingly, the right of
statistical agencies to deny access to individually identifiable
information for non-statistical purposes is subject to challenge
in the courts.
Second, existing statutes restricting sharing of data among
agencies create substantial inefficiencies in the development of
Federal statistics. For example, agencies are forced to
duplicate the collection of certain data previously collected by
another agency, because the information cannot be shared.
Similarly, the utility of statistical studies by one agency is
inherently limited because it cannot obtain certain records from
another agency which would provide additional relevant
information to policymakers and program administrators.
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The objectives of this legislative proposal, therefore, are two
fold. The first is to ensure that information collected or
compiled by the Federal Government for exclusively statistical
purposes will in fact be used only for those purposes. The
second objective is to lessen the reporting burden on and expense
to the public by allowing interagency exchange of individually
identifiable data for statistical purposes under strong and
enforceable confidentiality safeguards.
A section-by-section analysis and a fact sheet are also enclosed
for your information.
The legislative proposal is directly supportive of the
President's goals of reducing governmental intrusion into the
affairs of citizens and improving the efficiency of Executive
Branch programs.
Sincerely,
David A. Stockman
Director
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The proposed legislation:
Provides a statutory basis for traditional promise of
confidentiality long given respondents to statistical
collections.
Provides for restricted sharing of individually
identifiable records for exclusively statistical
purposes with named statistical agencies whose
confidential records are provided statutory protection
under this legislation.
The proposed legislation:
Will not expand the types of records provided
confidentiality protection.
Will not affect the control which program agencies have
over the use of their own administrative data files.
Will not change the limited degree of access which
non-statistical agencies have to statistical records.
Will not provide a hiding place for non-statistical
records.
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Background
This legislation incorporates into a single proposal the
provisions of several previous legislative proposals relating to
the confidentiality and disclosures for statistical purposes of
Federal statistical records.
Recommendations of the Privacy Protection Study
Commission for "functional separation" of statistical
records relating to individuals.
Recommendations on confidentiality and privacy of the
Commission on Federal Paperwork.
Similar recommendations by a 1971 Presidential
Commission and a 1980 Reorganization Study on the
Federal Statistical System which cover individual and
business records collected or compiled for statistical
purposes.
Specific conditions developed by the Department of
Commerce in a legislative proposal to make the directory
of business establishments developed and maintained by
the Census Bureau available to agencies and States under
strong safeguards to prevent the use of this information
for non-statistical purposes.
Provisions of individual agency proposals to provide a
statutory basis for the traditional promise to protect
the confidentiality of individually identifiable records
collected or maintained for statistical purposes.
The proposed legislation is intended to be consistent with and to
achieve the objectives of all of these separate initiatives, and
to avoid the problems of duplication, monopoly behavior, and
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incompatible restrictions that are created when each statistical
agency operates under different statutory provisions for
confidentiality.
Why is legislation needed?
Two major problems seriously threaten the effectiveness and
efficiency of the Federal Government in collecting and compiling
statistical information to meet public policy needs:
1. Federal statistics have long been collected under a
promise to those providing data that individually
identifiable records would be confidential. A few
statistical agencies, notably the Census Bureau and the
National Center for Health Statistics, have strong
confidentiality statutes that ensure that the use of
their individually identifiable records is restricted to
statistical purposes. Many other agencies collect
information for statistical purposes but do not have
statutory authority making it possible to guarantee
similar confidentiality protection to persons
(individuals and businesses) supplying information.
Lack of such a guarantee can affect the completeness and
quality of the data volunteered, particularly in an
environment where the right of statistical agencies to
deny access to individually identifiable information for
non-statistical purposes has been subject to challenge.
2. The collection, preparation, and analysis of federal
data necessary for the formulation of public and private
economic and social policy occurs in statistical units
scattered among the executive departments. Although
each unit has its own specific mission, many of the
items collected and the respondents surveyed by the
various units are duplicated. Additional duplication of
effort occurs in the processing and classification of
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the data. Many of these inefficiencies derive from
existing legislation and confidentiality policies that
prohibit data exchange even when it would further the
statistical missions of the affected agencies. Any such
sharing of data needs to be restricted to statistical
agencies under conditions which guarantee that the data
will be used by the recipients solely to develop or
report statistics--i.e., aggregates or anonymous
information. Removing statutory impediments and
establishing uniform policies for such exchange should
result in significant cost savings for the government
and for the general public; similarly, it should result
in an improvement in the comparability and reliability
of the data produced.
Objectives
The objectives of this legislation are:
To ensure that sensitive information about persons
(individuals and businesses) collected or compiled by
the Federal Government for statistical purposes will be
used only for those purposes. This is the current and
long followed practice, but frequently lacks a statutory
basis.
To improve the efficiency of operation of Federal
statistical programs by permitting the exchange of
individually identifiable data among named agencies for
exclusively statistical purposes under strong uniform
confidentiality safeguards. This will reduce the costs
of duplicative data collection and processing and the
resulting costs and paperwork burdens on the public.
These two objectives are potentially in conflict. The
legislation tries to balance them in a reasonable way.
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Main provisions of the legislation
1. Establishment of protected statistical centers:
- The following agencies and units are designated as
protected statistical centers:
Bureau of the Census, DOC
Bureau of Economic Analysis, DOC
Bureau of Labor Statistics, DOL
National Center for Health Statistics, HHS
Office of Research and Statistics, SSA, HHS
Statistical Reporting Service, USDA
Division of Science Resources Studies, NSF
The bill provides for future designation of
additional protected statistical centers by the
President, subject to tests in the legislation to
ensure that candidate organizations can provide the
same level of statistical confidentiality
protection as the designated centers listed above.
2. Establishment of protected statistical files:
All files created or maintained by a protected
statistical center for exclusively statistical
purposes, and where confidentiality protection is
clearly warranted either because of an explicit or
implied agreement with the respondent or a duty
imposed on an agency or other custodian from whom
the records are received, become protected
statistical files.
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Statistical files created or maintained by other
agencies or units may, on their initiative, and
with the concurrence of the Director of OMB, be
designated as protected statistical files by the
agency head once specific conditions of the
legislation, are satisfied.
Identifiable records in protected statistical files
may only be used for the limited nonstatistical
purposes specified in the draft legislation, and
disclosures for exclusively statistical purposes
may only be made when the specific conditions of
the legislation are satisfied. In both cases,
disclosures must be authorized by the agency head.
- Records in protected statistical files are immune
from mandatory disclosure under Federal, State and
local law and their disclosure cannot be compelled
for any administrative, regulatory, legislative,
judicial or other proceeding.
3. Rules for statistical use of records not in protected
statistical files:
Disclosure to protected statistical centers of
identifiable information not in protected
statistical files is permitted under controls which
maintain existing agency protection or assign
stronger protection. However, other uses of such
files retained by the releasing agency are not
restricted in any way.
All intentional violators of the limitations on
disclosure under this Bill are subject to penalties
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of fine and imprisonment, and are also subject to
applicable sanctions under Title 13, Title 26 and
other law.
Cost impact
The expected impact of this legislation will be a reduction in
the net cost to the Federal Government of collecting and
compiling the data needed by policymakers and other users of
Federal statistics.
Additional costs to Federal agencies will be incurred primarily
by the protected statistical centers. Small professional and
support staffs will be needed to prepare, monitor and update
regulations for compliance with the provisions of the
legislation, and to assist the Director of OMB in carrying out
the functions assigned to him or her by the Bill.
The costs of compliance by agencies will be incurred mostly by
agencies that are named in the bill or later become protected
statistical centers. Staff requirements for compliance can be
met largely by existing staff responsible for dealing with
privacy, confidentiality and freedom of information matters. For
the most part physical security of records and other safeguards
in these agencies are already in place or are being met in
response to the Privacy Act of 1974 and other statutory
requirements.
Immediate savings under this legislation will result primarily
from the provision which permits interagency sharing of lists of
businesses for statistical purposes. Costs of direct collection
of data are substantially reduced when the collecting agency has
access to a complete and accurate list of the universe to be
studied. Cost savings result not only from avoiding the
substantial expenses of developing a new list, but also from the
ability to select and use more efficient and hence smaller
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samples. We believe that the additional costs will be more than
offset by these savings. In fact, the savings that can be
realized by permitting the Census Bureau and the Statistical
Research Service of the Department of Agriculture to use the same
farm lists for the censuses of agriculture and for periodic
sample surveys would by themselves likely exceed the compliance
costs associated with this legislation.
It is not expected that this legislation will in itself produce
significant change in the amount of information collected
directly from individuals or businesses for statistical purposes.
The volume of such data collections, which is quite small in
comparison to data collections carried out for regulatory and
administrative purposes, is determined almost entirely by other
considerations, including the statutory requirements placed on
agencies to collect such information, the budget appropriations
to statistical agencies, and the effectiveness of the reports
management and statistical policy activities carried out by OMB.
The legislation does create a potential means of reducing
duplicative elements in statistical programs, by permitting
limited sharing of data collected for statistical purposes,
better access to regulatory and administrative information for
statistical purposes, and enhanced capabilities in statistical
agencies to use existing data to meet new requirements. As these
procedures are developed and refined, they are expected to fill
many needs which would otherwise be met by special purpose data
collections.
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To provide safeguards for the confidentiality of records
maintained by the federal statistical system, and to improve the
efficiency of Federal statistical programs by permitting limited
sharing of records for statistical purposes under strong
safeguards.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled:
Sec. 1. This Title may be cited as the " afidenti.ality of
Federal Statistical Records Act*4
FINDINGS AND STATEMENT OF PURPOSES
Sec. 2. The Congress finds that--
(a) Strong and effective statistical programs are necessary
for sound governmental and private decisionmaking;
(b) Accurate, consistent and timely data are essential to
the conduct of statistical programs;
(c) Information collected or compiled by Federal agencies
for statistical purposes should not be used in individually
identifiable form to make decisions affecting the person to whom
the information pertains;
(d) There is a need to permit the sharing of individually
identifiable data for statistical purposes among the Federal
agencies, and those performing statistical activities for them,
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in order to reduce paperwork burden and improve the quality of
Federal statistical data; and
(e) Such sharing should be limited to statistical purposes
that are of sufficient importance to justify interagency exchange
of identifiable data.
Sec. 3. The purposes of this Act are --
(a) To provide that individually identifiable information
furnished to the Federal Government by persons about themselves
for statistical purposes shall be used only for such purposes and
shall not be used or disclosed for any other purpose without
their consent;
(b) To prohibit the use, in individually identifiable form,
of any information collected, compiled or maintained solely for
statistical purposes under Federal authority, or with Federal
funds, to make any decision or take any action directly affecting
the rights, benefits, and privileges of the person to whom the
information pertains, except with the person's consent;
(c) To reduce the reporting burden and expenses on the
public and reduce the costs of statistical programs by
establishing safe conditions for inter-agency exchange, solely
for statistical purposes, of individually identifiable
information;
(d) To reduce the risk of unauthorized disclosure of
statistical information by designating organizational units to
maintain individually identifiable statistical information, and
by prescribing the conditions under which they may make
disclosures;
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(e) To establish the basis for exempting a defined class of
statistical information from compulsory disclosure in response to
Freedom of Information Act requests, and for providing immunity
from certain other compulsory disclosures that would conflict
with the statistical purposes for obtaining the information; and
(f) To establish consistent procedural standards for
safeguards and disclosures of statistical records maintained by a
statistical unit or transferred to another statistical user.
Sec. 4. For purposes of this Act, the term--
(a) "Director" means the Director of the Office of
Management and Budget or any officer of that agency to whom
authority to administer certain functions has been lawfully
delegated.
(b) "Agency" means anti executive department, military
department, government corporation, government controlled
corporation, or other establishment in the executive brancPl of
the government (including the Executive Office of the President),
or any independent regulatory agency.
(c) "Employee" means any employee or officer of an agency,
as defined in 5 U.S.C. 2104 and 2105, and any other personnel
retained by the agency under contract or otherwise, including
employees of agency contractors and employees of agencies or
units of State government participating in cooperative
statistical agreements with an agency.
(d) "Person" means an individual, family, household,
corporation, company, association, firm, partnership,
proprietorship, business, institution, establishment, religious
body, or organization of any nature whatsoever but not including
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agencies, the governments of the States, the District of
Columbia, the territories and possessions of the United States,
and their various subdivisions, and local governments.
(e) "Record" means any item, collection, grouping of
information or data or any portion thereof, about a person.
(f) "Individually identifiable record" mejans a record about
a person, obtained from any source, that could reasonably be
uniquely associated with the identity of the person to whom it
pertains.
(g) "Individual form" means a mode of maintaining or
disclosing a file in which the grouping of information into
records is preserved, regardless of whether explicit identifiers
or other elements of information have been suppressed or
modified.
(h) "Federal files". means collections or groupings of
individually identifiable records in the possession of an agency,
as well as those maintained for the agency under Federal contract
(including contracts with State or local governments) or pursuant
to a cooperative statistical agreement.
(i) "Statistical purpose" means an analytical,
informational, or reporting objective for which the identity of
specific persons is not materiallto the intended uses of the data
an& the results are tt tied is , b a way that the identity of
specific persons is not disCe Mble4
(j) "Statistical file" means a Federal file created or used
for statistical purposes.
(k) "Protected statistical file" means a file used
exclusively for statistical purposes and designated for
protect4on andet the provisions d , a} Ac it.
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(1) "Protected statistical center" *eals an agendy or
organizational unit within an agency dsslgnated for protection
. under4the provisions of this Actt
(m) "Cooperative statistical agreement" means an agreement
under which an agency or a State government, or unit thereof,
(exclusive of State universities) participates with an agency, or
unit thereof, in the collection, compilation, or analysis of
statistics. A cooperative statistical agreement is undertaken
for the mutual benefit of the participants and for statistical
purposes only.
Sec. 5. A Federal file shall acquire and, regardless of
subsequent disclosure, shall retain the status of a protected
statistical file when$
(a) the file is created or maintained by a protected
statistical center for statistical purposes ou134 and the
information that constitutes the file was or will be obtained:
(1) from of on behalf of. & person to whom such record
or information pertains, and Bu",` person requires or expects
assurance of confidentiality-' as a condition of furnishing such
information; or
(2) from a federal or state agency that has a duty
imposed by law to protect the confidentiality of such record or
information;
(b) the file combines information in a protected
statistical file with information in individual form from any
other source; Or9
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(c) 'the f ile is designated as a protected statistical file
by the head of the agency '(other than a protected statistical
center) collecting or maintaining the information, after
notification of the proposed designation has been published in
the Federal Register with an opportunity for public comment. In
the case of a planned information collection such notification
and designation shall occur prior to the collection of the
information. In all cases such designation shall be made only,
when the agency head has, ii' th Ithe -oo urtene* of the Director,
determined that:
(1) the file consists of information that was or will
be obtained for statistical purposes only under the conditions of
paragraph (a) (1) or (a) (2) of this section;
(2) the file was not or will not be created under the
authority of a statute that requires disclosures that conflict
with the provisions of this Act; and
(3) the agency has established and maintains
appropriate administrative, technical, and physical safeguards to
ensure the integrity, confidentiality, and security of the
records in the file.
PROTECTED STATISTICAL CENTERS'
(a) The Bureau of the Consuls and the Bureau of Ecoio it
Aaaly$is within the Department of Commercq; the Bureau of 4sbW
Statistics within the Department of Labor; the National Center
for Health Statistics anj3 the Office of Research and Statistics
of the Social Security Adtninistratidn within the Department of
Health and Human Services; the :Stitis,tical Reporting Service.
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within the Department of AgriCulturef; and the Division of Science
Resources Studies within the Rational Science Foundatioq are
hereby designated as protected statistical centers.
(b) The President may designate an agency or organizational
unit within an agency as a protected statistical center upon the
written request of the head of the agency, if the President
determines that:
(1) the 1pri"ry activity , of the agency or
organizational unit is to perform a 01 1atiCal purpose, and its
Federal files are psado*inantly protected statistical files;
(2) the agency or organizational unit keeps its
protected statistical files separated from files required for
internal administrative purposes or for purposes not exclusively
statistical;
(3) the particular agency or organizational unit is
not expressly required by its substantive law to operate under
disclosure rules that conflict with provisions of this Act; and
(4) the agency or organizational unit has established
and maintains adequate administrative, technical and physical
safeguards to ensure the integrity, confidentiality, and security
of the protected.statistical files and to assure that such files
will be used and disclosed exclusively for statistical purposes,
and that no data from a protected statistical file will be placed
in a file that is not a protected statistical file.
(c) Upon its designation as a protected statistical center,
an agency or organizational unit must preserve the status of any
protected statistical file that it receives, and must assign the
status of a protected statistical file to any file that satisfies
the conditions of subsection 5(a).
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(d) The President may suspend or revoke the designation of
a protected statistical center, including those designated in
subsection 6 (a) , whenever he determines that the standards in
section 6(b) are no longer being met.
(1) Such suspension or revocation shall not affect the
status of the protected statistical files being maintained by the
agency or organizational unit.
(2) Whenever necessary to ensure public confidence in
the protection of confidential statistical files the Director of
the Office of Management and Budget may suspend the designation
of a protected statistical center pending review by the
President.
(e) The President shall publish all designations of a
protected statistical center in the Federal Register, in
accordance with 5 U.S.C. 553. All revocations of such
designations shall be published in the Federal Register.
CONFIDENTIALITY OF RECORDS CONTAINED
IN PROTECTED STATISTICAL FILES
(a) Except-ad provided it sections 8, 9, and 11 bf this
Act, no agency, employee of an agency, or any other person sh.l:
(1) Disclosg in an individually identifiable form anj#
record contained in a protected statistical file4
(2) Publish or otherwi -l dieclosd any tafor*ation,
compiled or obtained from a protected statistical file unless in
a manner or statistical form that could not reasonably be
expected to reveal, in an individually identifiable form, any
information contained in that file; or
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(3) Us4 the individually identifiable information
contained in a protected statistical file for any purpose other
than a statistical pur~ose.
(b) Any employee who will have access to records or
information in a protected statistical file shall be fully
informed of his responsibilities under this Act and shall swear
(or affirm) or certify in writing that he understands and accepts
these responsibilities and is aware of the sanctions which may be
imposed for violations of this Act.
DISCLOSURES FROM PROTECTED STATISTICAL FILES
FOR STATISTICAL PURPOSES
Sec. 8. Records contained in$protected statistical files,
may be disclosel in individually identifiable fork exclusively
for statistical purposet under one or morel of the following
conditions. Such disclosures may be made:
(a) To a protected statistical centet provided that:
(1) the protected statistical center requests in
writing the disclosure of the protected statistical file or
relevant portions thereof, certifies that the protected
statistical file will be used only for a statistical purpose that
cannot be achieved efficiently without individually identifiable
information, and provides reimbursement for appropriate costs;
(2) the receiving center shall remove the individual
identifier or identifiers associated with the records at the
earliest time such removal can reasonably be accomplished
consistent with the purpose of the statistical project;
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(3) having removed the identifiers from the file, the
receiving center shall also destroy those identifiers at the
earliest time at which such destruction can reasonably be
accomplished consistent with the purpose of the statistical
project;
(4) the receiving center shall not make any further
use or disclosure of records in individual form without the
written authorization of the originating agency; and,
(5) the receiving center shall obtain the concurrence
of the originating agency in any plan to publish in summary form
information based in substantial part on records disclosed by the
originating agency under this subsection.
(b) To a protected statistical center and its employees who
have a need for the records in the performance of their
statistical duties, under the terms of a reimbursement agreement"
wherein a protected statistical center collects, processes,
analyses, or maintains information for the specific and
exclusively statistical purposes of another protected statistical
center;
(c) To those employees who have a need for the records in
the performance of their statistical duties within an agency, or
unit thereof, or. protected statistical center, that establishes
or maintains the records. If under this provision, disclosure is
to persons performing work for an agency under a contract or
cooperative statistical agreement, use of the records disclosed
must be restricted to the statistical purposes specified in the
contract or cooperative statistical agreement;
(d) To an agency or to a unit of a State government under a
cooperative statistical agreement, provided that the person to
whom the record pertains was informed, prior to the collection of
the information, that the information was to be given on a
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voluntary basis and that the information would be used jointly by
the collecting agency and the agency or unit to which it is to be
disclosed; or
(e) To an agency, a unit of a State government, or any
person provided that:
(1) the information to be disclosed was obtained from
a unit of State government that collected the data under its own
legal authority; and
(2) the State official who has legal custody of the
original records gives written consent to the disclosure.
DISCLOSURES FROM PROTECTED STATISTICAL FILES
FOR NONSTATISTICAL PURPOSES
Sec. 9. kaoAs contained in/ a protected statistical fill
may be r* eas*d in an individually identifiable form fort a
nonstatistical ipurpose fly by or with the concurrence of the
head of the agentunder whose authority such records were
originally collected/ and under one or more of the conditions
that follow. Such disclosure may be made:
(a) To the person to whom the record pertains or to that
person's heir, successor, or authorized agent pursuant to a
written request from or on behalf of that person;
(b) To the National ArchfA es of the United States, as
authorized by 44 U.S.C. 2103 and 2104;
(c) To authorized and properly identified persons for the
purpose of conducting a program evsluatiort or audit relating to
the collection, compilation, processing and use of information in
protected statistical files, provided that:
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(1) the use of individually identifiable records is
indispensable for this purpose;
(2) the audit or evaluation is authorized by federal
statute to be conducted by an Inspector General;
(3) no information so disclosed shall be used as
evidence in any administrative, regulatory, legislative,
judicial, or other proceeding against anyone other than the
agency or protected statistical center maintaining the files, or
its employees;
(4) no information so disclosed shall be used as
evidence or redisclosed in a manner that would reasonably be
expected to reveal the information contained in individually
identifiable records; and
(5) no recontact of persons to whom the records in the
protected statistical file pertain will be made unless the
auditor or evaluator with the concurrence of the head of the
agency or protected statistical center maintaining the files
determines that:
(A) recontact is necessary to accomplish the
audit or evaluation; and
(B) the recontact will be made in a manner that
minimizes both the risk of harm or embarrassment to the person
and the risk of adverse consequences to the statistical activity
being audited or evaluated;
(d) In compliance with an administrative summons or
subpoena or with a judicial order, including a search warrant or
grand jury subpoena, where the purpose of the disclosure is to
assist investigation or prosecution of violations of the,
provisions of this Act by an agency maintaining protected
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statistical files or by an employee or other person responsible
for the violation, or to the attorneys representing the
Government in such investigation or proceedings, provided that:
(1) no information so disclosed shall be used as
evidence in any administrative, regulatory, legislative,
judicial, or other proceeding against anyone other than the
agency or protected statistical center maintaining the files, or
its employees or other persons responsible for the violation;
and,
(2) no information so disclosed shall be used as
evidence or redisclosed in a manner that would reasonably be
expected to reveal the information contained in individually
identifiable records; or
(e) *y. a federal Agency tha C collects information fair
statistical purposes under a federal statute mandating truthful
response and imposing sanctions for refusing to respond or making
false reaponst, fir.'.tb* purpose of the disclosure is to assist
investigation or prosecutionIof violations of such mandatory
collection authority, provided that:
(1) no information so disclosed shall be used as
evidence in any administrative, regulatory, legislative, judicial
or other proceeding against anyone other than the person charged
with refusing to respond or making false response; and
(2) no information so disclosed shall be used as
evidence or redisclosed in a manner that would reasonably be
expected to reveal the information contained in individually
identifiable records.
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DISCLOSURE OF FILES OTHER THAN PROTECTED STATISTICAL FILES
TO PROTECTED STATISTICAL CENTERS
(a) Notwithstanding any other provision of law, except a
federal law restricting disclosure to protect the national#
security", an agency is authorized to release a file, or any part
or copy of such file, that`i`> art, a protected statistical file tab
a protected statistical deer "20't` "a statistical purpose,
provided that such disclosure shall not restrict the disclosing
agency from any lawful use or disclosure of the file or
information that it retains.
(b) When an agency releases to a protected statistical
center a file that is not a protected statistical file, and such
file is not required by section 5 to acquire the status of a
protected statistical file, the agency that releases/the file is
authorized to prescribe procedures for the use of such file" and
to limit any further disclosure of information from it in
accordance with the releasing agency's rules,
(c) When an agency releases to a protected statistical
center a file that is not a protected statistical file, and such
file is required by section 5 to acquire the status of a
protected statistical file, the receiving protected statistical
center shall consult the releasing agency prior to any subsequent
disclosure permitted under section 8 or 9 of this Act.
(d) When a protected statistical center proposes to enter
into a contract with an organization other than an agency to
obtain individually identifiable data which that organization
collects for its own purposes, any proposed limitations on
disclosures otherwise permitted under this Act will be reviewed
and approved by the Director before incorporation of these
limitations into the contract. If approved by the Director, such
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limitations will become binding on the Director and the protected
statistical center.
Sec. 11. A Standard Statistical Establishment List
(hereinafter referred to as SSEL) and a Limited Establishment
List (hereinafter referred to as LEL) shall be compiled and
maintained by the Secretary of Commerc* through the Bureau of the
Census from information collected by that Bureau and by other
Federal and State agencies.
(a) The SSEL will include information on all types of
economic units, within the scope of the Standard Industrial
Classification and Enterprise Standard Industrial Classification
and may contain the following types of information for each
enterprise (corporation, partnership, sole proprietor,
cooperative, non-profit, government entity, etc.) and its
constituent establishments: name, physical location, establish-
ment and tax identification numbers; parent company affiliation,
standard industrial classification and other product and activity
designations; legal form of organization; and employment and
business receipts and other data needed for statistical purposes.
The Standard Statistical Establishment List is a protected
statistical file of the Bureau of the Census. SSEL information
shall be made available to protected statistical centers and
employees under their direct supervision and control and their
contractors who provide secure data processing and
telecommunications services provided that:
(1) the protected statistical center requests in
writing the disclosure of the SSEL or relevant portions thereof,
certifies that the SSEL will be used only for a statistical
purpose that cannot be achieved efficiently without individually
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identifiable information, and provides reimbursement for
appropriate costs;
(2) only those items of SSEL information that are
necessary for protected statistical centers to carry out their
statistical purposes will be made available;
(3) the receiving center shall not make any further
use or disclosure of records from the SSEL without the written
consent of the Secretary of Commerce;
(4) SSEL information based on returns and return
information as defined in 26 USC 6103(b) shall not be disclosed
to employees who are personnel retained by a protected
statistical center under contract or in a cooperative statistical
agreement if such employees may have access to such returns or
return information under any provision of 26 USC 6103 other than
subsection 6103(j);
(5) at the determination of the Secretary of Commerce,
SSEL information based on information either collected or
maintained by the Bureau of Census under authority of Title 13,
United States Code, may be disclosed to any employees of a
protected statistical center who have a need for the information
in the performance of their statistical duties; and
(6) a protected statistical center's use for any
purposes--statistical, nonstatistical, or joint--of individually
identifiable data derived from other sources will not be
construed as incompatible with that protected statistical
center's access to SSEL information for statistical purposes.
(b) The Limited Establishment List will include information
on all types of economic units within the scope of the Standard
Industrial Classification and Enterprise Standard Industrial
Classification and may contain the following types of information
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for each enterprise (corporation, partnership, sole proprietor,
cooperative, non-profit, government entity, etc.) and its
constituent establishments: name, physical location, standard
industrial classification codes and enterprise standard
industrial classification codes and other product and activity
codes, employment and business receipts size codes.
The Limited Establishment List is a protected statistical file of
the Bureau of Census that has exceptional status. The
disclosures of the LEL are governed by the conditions of this
section and not section 8. At the determination of the Secretary
of Commerce, the LEL may be made available to an agency, or unit
thereof, or to a State or unit thereof and to their employees who
have a need for the records in the performance of their
statistical duties, provided that:
(1) the written request for disclosure of the LEL, or
relevant portions thereof, must be approved in writing by the
Secretary of Commerce;
(2) the LEL information will be used solely for a
statistical purpose and is necessary for the compilation or
collection of statistical data;
(3) in the case of a State or unit thereof,
(A) the LEL information must be necessary to
fulfill a cooperative statistical agreement with that State, and
(B) the names of the employees to whom the
material will be disclosed must be included in the written
request;
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(4) the Secretary of Commerce is satisfied that the
recipient unit has established appropriate administrative,
technical, and physical safeguards to ensure the integrity,
confidentiality, and security of the records to be released to
it;
(5) any further use or disclosure of the LEL
information is prohibited without written consent of the
Secretary of Commerce;
(6) LEL information based on returns and return
information as defined in 26 USC 6103(b) shall not be disclosed
to employees who are personnel retained by an agency or unit
thereof, or state, or unit thereof, under contract or in a
cooperative statistical agreement if such employees may have
access to such returns or return information under any provision
of 26 USC 6103 other than subsection 6103(j); and
(7) use of individually identifiable data derived from
other sources for any purposes--statistical, nonstatistical, or
joint--will not be construed as incompatible with access to LEL
information for statistical purposes.
(a) There is hereby established a Statistical Advisory
Council. The members of this Council shall be the heads of all
protected statistical centers and the Director, who shall chair
the Council. The Council shall review all proposals to designate
protected statistical centers, shall review all proposed rules,
policies, or procedures for implementing this Act, and shall
advise the Director on these and other matters relating to
federal statistical activities as the Director may prescribe.
The Council shall meet at the call of the chairperson but not
less than once every six months.
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(b) Such administrative support and such funds as may be
determined necessary by the Council to support the functions of
the Statistical Advisory Council shall be provided by the member
organizations.
RELATIONSHIP TO OTHER J# LAWS
(a) Relationship to Title 13 CEY1'i .
Records or information collected or maintained by the Bureau of
the Censut under the authority of Title 13, United States Code
that are protected from disclosure by the provisions of 13 U.S.C.
9(a) shall be deemed to constitute protected statistical files.
Except as provided in section 11 of this Act such records or
information may be disclosed only to the extent and in the manner
provided in sections 7, 8, 9, and 10 of this Act, provided
further that:
(1) the information was not collected under the
authority of Title 13 prior to the effective date of this Act
under any pledge of confidentiality that is inconsistent with
provisions of this Act; and
(2) when such disclosure is to be made under
subsection 8(a) of this Act, the Secretary of Commerce, after
consultation with the Director and any affected agency head,
shall impose as many of the following additional limitations on
the protected statistical center requesting the information as he
determines necessary:
(A) prohibit disclosure to any person other
than individuals identified by name and approved in advance,
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(B) prohibit disclosure to a contractor or
class of contractors acting as employees of the protected
statistical center requesting the information,
(C) prohibit disclosure to any party to a
Cooperative Statistical Agreement, and
(D) require an opportunity to review and
agree to the procedures and safeguards to be used in handling
such information;
(3) when after consultation with the Director and any
affected agency head, the Secretary of Commerce determines one or
more of the specific limitations in paragraph (2) of this section
to be necessary to discharge his responsibility to protect the
confidentiality of information collected under the authority of
Title 13, such limitation shall be binding on the Protected
Statistical Center receiving the information and any disclosure
that violates such limitation shall be deemed inconsistent with
and a violation of this Act.
(b) Relationship to Title 26t "10A
Returns or return informatiop u defined in 26 USC 6103(b) that
are disclosed to a protected statistical center for exclusively
statistical use as provided in 26 USC 6103(j) shall be deemed to
constitute protected statistical files. Except as provided in -
section 11 of this Act, returns or return information may be
disclosed for exclusively statistical purposes only to the extent
and in the manner provided in sections 7, 8, 9, and 10 of this
Act, provided further that:
(1) when such disclosure is subject to the conditions
of subsection 10(c) of this Act, the ,,Rscr*tary of the Treasury,
after consultation with the Director and any affected agency
head, shall impose as many of the following additional
limitations on redisclosures by the protected statistical center
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to which such returns or return information have been disclosed
as he determines necessary:
(A) prohibit redisclosure to any person in
another agency or unit other than individuals identified by name
and approved in advance,
(B) prohibit redisclosure to any contractor
or class of contractors acting as employees of another protected
statistical center requesting the information,
(C) prohibit redisclosure to any party to a
Cooperative Statistical Agreement acting as an employee of
another Protected Statistical Center requesting the information,
(D) require an opportunity to review and
agree to the procedures and safeguards to be used in handling the
information subsequent to a lawful redisclosure;
(2) when after consultation with the Director and any
affected agency head, the Secretary of the Treasury determines
one or more of the specific limitations in paragraph (1) of this
section to be necessary to discharge his responsibility to
protect the confidentiality of returns or return information,
such limitation shall be binding on the protected statistical
center receiving-the information and any disclosure that violates
such limitation shall be deemed inconsistent with and a violation
of this Act.
(c) Relationship to the Paperwork Reduction Act,.,
The Directoi, in exercising his authority under section 3510 of
Title 44 Vrhe Paperwork Reduction Act of 1980).shall not be bouns
by any determination+ made by a Federal employee under'
discretionary authority conferred on that employee by suctions 8,4
9, 10 or 11 of this 'Act. The Directo may' independently
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determine that a dieclasu a ,p e[sitte&. under those sectionl. is not
inconsistent with this Acooftl*s9l
(1) the data were collected solely for statistical
purposes prior to the effective date of this Act and with an
express guarantee of confidentiality that precludes such
disclosures;
(2) the data do not satisfy the condition of paragraph
(a)(1) of this section;
(3) the data were collected or obtained under
contracts, or cooperative statistical agreements executed prior
to the date of enactment of this Act, the terms of which prohibit
such disclosures;
(4) the disclosure is prohibited under the terms of a
contract approved by the Director as provided in section 10(d);
(5) the data were obtained from State agencies and
such disclosures are prohibited by State law or regulation;
(6) the infornatic n is protected from disclosure ine
the interest of national security or foreign policy by statute or
by security classification pursuant to Executive Order; or ,
(7) such determination would conflict with
discretionary authorities specifically reserved to the Secretary
of Commerce or the Secretary of the Treasury by this section.
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IMMUNITY FROM LEGAL PROCESS OF RECORDS IN
PROTECTED STATISTICAL FILES
(a) Except as provided by this Act, all records in .'
protected statistical files and all individually identifiable
records extracted or derived from such files:
(1) shall be is une from legal process and shall not
be admitted as evidence or used for any purpose in any Federal,
State, or local action, suit, or any judicial, administrative,
regulatory, legislative, or any other proceeding; and
(2) shall not be disclosed pursuant to any Federal,
State, or local law, iaWlediay < they. ite+ of Inforaati&n Act (5
U.S.C. 552).
(b) The provisions of section 14(a) shall also apply to
records not in protected statistical files that:
(1) are in the possession of the person to whom they
pertain; and
(2) are file copies of a Federal, State, or local
statistical report form, the sole purpose of which is to obtain
information for inclusion in a protected statistical file, except
that persons in possession of such copies are not restricted from
disclosing them voluntarily.
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SANCTIONS AND PENALTIW
(a) Wrongful disclosure of information, misuse of
information.
In addition to any other penalties imposed by law--
(1) Whoever, being in possession or control of
statistical files or portions thereof, willfully publishes or
communicates any information the disclosure of which is known or
should be known by such person to be prohibited under the
provisions of this Act shall be found guilty of an offense
against the United States. Any act set forth in this provision
shall be punishable by a fine of not more than $10,000 or
imprisonment of not more than 5 years or both.
(2) Whoever--
(A) intentionally procures by fraud,
misrepresentation, or other unlawful act, access to or
information from protected statistical files, or portions
thereof; or
(B) knowingly uses or attempts to use the
authority of this Act to establish files for non-statistical
purposes; or
(C) knowingly places, causes to be placed, or
attempts to have placed in a protected statistical file any
information, records or materials other than statistical files in
order to avoid an otherwise lawful disclosure or a prohibition on
maintaining such information; shall be guilty of an offense
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against the United States. Any act set forth in these provisions
shall be punishable by a fine of not more than $10,000 or
imprisonment of not more than 1 year or both.
(3) Whoever, other than a unit of State government,
being a contractor under a contract with an agency to carry out a
statistical purpose for such agency, violates any provision of
this Act shall be found guilty of an offense against the United
States. Any act set forth in this provision shall be punishable
with a fine not more than $50,000 or the value of the contract
whichever is less.
(h) Right of redress J
In addition to any other penalties imposed by law--
(1) any person aggrieved by a violartion of this Act
with respect to information that pertains to that person may
maintain a civil action for specified damages and for equitable
relief against the United States or against a person responsible
for the violation other than a person who at the time of the
violation was an employee of an agency acting in the scope and
course of employment. The agency or the person responsible for
the action shall be liable for all actual specified damages
sustained by the aggrieved person as a result of the violation.
(2) In addition to any damages awarded under paragraph
(1), any agency, any employee acting outside the scope and course
of employment, or any other person who violates a provision of
the Act shall be liable to the aggrieved person for such general
compensatory damages as the court may allow, but not more than
$10,000. In determining the amount of general compensatory
damages to be awarded, the court shall consider, among other
relevant factors, losses including future lost income sustained
as a consequence of the violation.
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(3) Upon application by an aggrieved person, the
appropriate United States district court may grant such equitable
and declaratory relief as is necessary to enforce the
requirements imposed under the Act.
(4) In a successful action brought under paragraph
(1), (2), or (3), the costs of the action, together with
reasonable attorney's fees as determined by the court, may be
awarded in addition to any damages.
(5) Any action under this section may be brought in
the appropriate United States district court without regard to
the amount in controversy.
(c) Administrative Sanctions
(1) A contractor under contract with an agency to
carry out a statistical purpose for such agency who knowingly
violates the provisions of this Act shall be subject to debarment
from participation in any contract with the Federal government
for a period of time commensurate with the seriousness of the
cause, generally not to exceed three years. The determination to
debar and the terms of the debarment shall be made by the
debarring official, who shall be either the agency head or his
designee. Such determination shall be made under debarment
procedures established by the agency; the procedures shall be as
informal as practicable, consistent with due process and the
principles of fundamental fairness.
(2) A State government of its unit whose official or
employee knowingly violates the provisions of this Act shall be
subject to termination of any agreement covered by this Act and
such other sanctions as the Director may deem necessary.
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(3) An agency that maintains protected statistical
files shall establish and inform its employees about rules and
requirements for safeguard, use and disclosure of those files,
and shall instruct each employee with respect to such rules and
requirements, and the penalties for noncompliance.
(d) Government contractors
Any contractor, or a subcontractor thereof, who performs any
function on behalf of a Federal agency that requires the
contractor to collect, maintain or have access to information
contained or to be contained in protected statistical files shall
be subject to the sanctions and penalties of this Act, and for
any such contract agreed to on or after the effective date of
this Act--
(1) any such contractor or any employee of such
contractor shall, for purposes of the criminal penalties of this
section be considered to be an employee of the agency;
(2) any such contractor shall, for purposes of the
civil remedies of subsection (b) of this section be considered to
be an agency, except that the damages, attorney fees, and
litigation costs under subsection (b) shall be assessed against
the contractor instead of against the United States; and
(3) no official or employee of any agency shall
include, or authorize to be included, in any such contract any
provision indemnifying the contractor from the civil remedies of
subsection (b).
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(a) The head of each agency, other than an independent
regulatory agency (as defined in the Paperwork Reduction Act),
that is to contain one or more protected statistical centers Or
that is to maintain one or more protected statistical files shall
obtain the concurrence of the Director in any regulations
necessary to carry out the provisions of this Act. The heads of
independent regulatory agencies shall consult the Director prior
to promulgating such regulations. All such regulations shall be
promulgated in accordance with the requirements of the
Administrative Procedures Act. The heads of agencies containing
protected statistical centers designated in section 6(a) shall
promulgate regulations to become effective on the effective date
of this Act.
(b) Not later than 180 days following enactment of this Act
the Director shall publish guidelines for agency regulations to
implement the Act.
(c) Not later than the effective date of this Act the
Director shall promulgate general regulations for carrying out
the provisions of this Act in all agencies that shall not have
promulgated regulations to implement the Act.
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Sec. 17. The provisions of section 12 and section 16 shall
take effect immediately upon enactment. All other provisions of
this Act shall take effect three hundred and sixty five days from
the date of enactment.
Sec. 18.
(a) Conforming amendment to the Privacy Act of 1974.
Section 552a of Title 5, United States Code, is amended--
(1) by deleting the word "and" at the end of
subsection (a) (6) , deleting the period at the end of subsection
(a) (7) and adding a semicolon, followed by the word "and," and
adding the following:
"(8) the term 'protected statistical file'
means a statistical file designated for
protection under the provisions of the
Confidentiality of Federal Statistical
Records Act".
(2) by deleting the word "or" at the end of subsection
(b)(11), deleting the period at the end of subsection (b)(12) and
adding a semicolon, followed by the word "or", and adding the
following:
"(b)(13) to a protected statistical center for a statistical
purpose, as provided in section 10 of the Confidentiality of
Federal Statistical Records Act."
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(3) by adding after subsection (q) the following new
subsection:
"(r) RECORDS IN PROTECTED STATISTICAL FILES
(1) Records in protected statistical files shall be
exempt from the provisions of this section, except subsections
(b) (4) , (b) (6) , (e) (3) (A) , (B), and (D), (e)(4) (A) , (B), (C),
(E), (F) and (I), (e) (9) , and (e) (10) , (1), and (o).
(2) Records in protected statistical file shall be
governed by the provisions of the Confidentiality of Federal
Statistical Records Act."
(b) Conforming amendments to statutes governing
confidentiality of statistical files maintained by or for
agencies or units named as protected statistical centers in
sections 7(a) of this Act.
(1) Conforming amendment of Title 13, United States
Section 9(a)(3) of Subchapter I of Chapter 1 of Title 13,
United States Code is amended by deleting the period at the end
thereof and adding:
"except to the extent and in the manner permitted by
the Confidentiality of Federal Statistical Records
Act."
(2) Conforming amendment to Title 15, United States
Code
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Section 176a, Title 15, United States Code is amended
to read as follows:
"The confidentiality of information furnished to the
Bureau of Economic Analysis under the provisions of
this title shall be governed by the provisions of the
Confidentiality of Federal Statistical Records Act"
(3) Conforming amendment to the Public Health Service
Section 308(d) of the Public Health Service Act, as
amended (42 USC 242m(d)) is amended by renumbering the
existing subsection (d) as paragraph (d) (1) and adding
the following paragraph:
"(2) Notwithstanding any other provision of this
section, protected statistical files as defined in the
Confidentiality of Federal Statistical Records Act
shall be governed by the provisions of that Act."
(4) Conforming amendment to the Social Security Act.
Section 1106 of the Social Security Act is amended by adding
after subsection (e) the following new subsection
"(f) Notwithstanding any other provisions of law, the
confidentiality of individually identifiable records in
protected statistical files maintained by or for the
Office of Research and Statistics of the Social
Security Administration, Department of Health and Human
Services will be governed by the provisions of the
Confidentiality of Federal Statistical Records Act."
(c) Conforming amendment to section 6103 of the Internal
Revenue Code
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Section 6103 of Title 26--Internal Revenue Code is amended--
(1) by amending that part of subsection (j) (1) which
follows (j) (1) (B) to read as follows:
"as the Secretary may prescribe by regulation for the
purpose of, but only to the extent necessary in, the
structuring of censuses and national economic accounts, the
maintenance of the Standard Statistical Establishment List,
and conducting related statistical activities authorized by
law."
(2) by amending subsection (j)(4), replacing the
period at the end of the amended subsection with a comma, and
adding the words "except as provided by the Confidentiality of
Federal Statistical Records Act."
(d) Conforming amendments to allow the designation of
protected statistical files by statistical units of the Depart-
ment of Energy and the Department of the Treasury.
(1) Section 205 of the Department of- Energy
Organization Act (42 U.S.C. Section 7135) is amended by --
(a) striking the period at the end of subsection (f) and
inserting in its place: "except that the Administrator is not
required to disclose to such administration, commission, or
office any energy information that was obtained soley for
statistical purposes under subsection (i) of the section."
(b) inserting after subsection (h) the following new
subsection (i):
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"(i)(1) Before starting a data collection effort and after
consultation with affected organizations within the Department,
the Administrator shall determine whether the information to be
collected qualifies for designation as a protected statistical
file under the terms of section 5 of the Confidentiality of
Federal Statistical Records Act, and shall make appropriate
recommendation to the Secretary.
(2) Notwithstanding any other law, the disclosure of
information from a protected statistical file, designated in
accordance with the provisions of section 5 of the
Confidentiality of Federal Statistical Records Act, by employees
(as defined in that Act) of the Energy Information Administration
shall be completely governed by the provisions of that Act."
(2) Section 7214 of Title 26--Internal Revenue Code is
amended by striking paragraph (8) of subsection (a) and inserting
in its place:
"(8) who, having knowledge or information of the
violation of any revenue law by any person, or of
fraud committed by any person against the United
States under any revenue law (except knowledge or
information gained by virtue of having access to
records in or from a protected statistical
file--as defined in the Confidentiality of Federal
Statistical Records Act--), fails to report, in
writing, such knowledge or information to the
Secretary or his delegate; or"
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Section by Section Analysis
Title I. Confidentiality of Federal Statistical Records
SHORT TITLE
Section 1 gives the short title for the proposed legislation:
"Confidentiality of Federal Statistical Records Act".
FINDINGS AND STATEMENT OF PURPOSES
Sections 2 and 3 outline the objectives of the bill.
DEFINITIONS
Section 4 provides definitions that set the scope of the bill.
The bill is designed to protect the confidentiality of informa-
tion about a "person" obtained by the Federal Government for
statistical purposes from any source. The term "person" includes
both legal and natural persons as well as any institution,
business organization, family, household, or other association,
but does not include any units of government.
The concept of confidentiality protection requires that informa-
tion which is protected under this bill be used only for a
"statistical purpose." A statistical purpose is defined as an
objective to develop or report aggregate or anonymous
information, where the end use of the information does not
require the specific identity of any person, and the information
may not be used in making any determination about an identifiable
person.
The bill is concerned with the disclosure of "individually
identifiable records", i.e., "records" which directly or
indirectly can reasonably be related to information supplied by
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or associated with a particular person. Whenever a record is
collected for a statistical purpose and is contained in a file
designated as a "protected statistical file," its disclosure in
individually identifiable form is severely limited.
Individually identifiable records are of two kinds. Some records
include obvious identifiers such as name, address, telephone
number, social security number, or employer's identification
number. Others do not, but because of their detailed information
content might be recognized as referring to a particular person.
Both kinds are considered to be individually identifiable and are
covered by this bill.
Release of information in "individual form" does not necessarily
constitute a disclosure in individually identifiable form. A
public use file is a type of statistical release that is in
individual form, but where explicit identifiers have been removed
and other steps have been taken to prevent the linkage of the
information released with the identify of the persons to whom it
pertains. Because of the special problems in this type of
release, limitations on release in this form are contained in the
bill.
Another concept central to the bill is that of a "protected
statistical center." Such a center is either an entire agency
(as defined in 5 USC 552(e)) or an organizational unit of an
agency. Subsequent sections of the bill establish that the data
holdings of such a center must be predominantly "protected
statistical files" and require that such protected statistical
files be kept separate from other statistical and nonstatistical
files. Particularly stringent safeguards of confidentiality must
exist within such centers since subsequent sections of the bill
provide privileged access by such centers to virtually all
protected statistical files on a need to know basis, and broad
access to information not in protected files.
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Units of agencies may enter into "cooperative statistical
agreements" with other units of agencies or units of State
governments in order to collect, compile, or analyze statistics
for the mutual benefit of the two organizations.
All provisions of the bill relate to records in a "Federal file"
wher-e this term is defined to include files in the possession of
agencies as well as those maintained for agencies (1) by a State
or local government agency under a Federal contract or pursuant
to a "cooperative statistical agreement" or (2) by the private
sector under Federal contract.
Files created and maintained for their own use by units of State
and local government or private organizations, under contracts or
cooperative statistical agreements with agencies, are not
considered to be Federal files, even though the cooperating
agency may also make use of information from these files in
individually identifiable form. Therefore such files cannot be
designated as protected statistical files in the hands of State,
local, or private organizations. In particular, files held by
grantees would not be included as "Federal files" unless they are
covered by cooperative statistical agreements, since otherwise
Federal agencies tend to have little control over files created
by grantees. However, any records in individually identifiable
form disclosed from such files to the sponsoring agency may be
designated as "protected statistical files" and must be so
designated if they are disclosed to a protected statistical
center for statistical purposes only and they qualify for
protection.
Under the terms of a cooperative statistical agreement several
organizations can then share the protected statistical files
involved in the project, provided that they are able to meet the
bill's requirements in terms of ability to protect the
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confidentiality of individually identifiable data in the files.
The prerequisites for disclosure vary depending on the purposes
of the agreement.
The-term "employee" is broadly defined to include not only agency
employees but also contractors and their employees, employees of
agencies or State units participating in cooperative statistical
agreements with an agency, and any person retained by an agency
under any arrangement to perform a function of the agency,
whether or not such persons are remunerated. The intention is to
extend all provisions of the bill, including its sanctions, to
any person to whom the agency may properly grant access to
identifiable records contained in a protected statistical file.
"Director" refers to the Director of the Office of Management and
Budget or his lawful designee. While references to the Director
throughout the Act relate to authorities for which he is
ultimately responsible, these may be and in some instances are
required by other law to be delegated to another official in OMB.
Section 5 establishes the conditions under which a statistical
file acquires the status of a protected statistical file. They
involve either the nondiscretionary designation of statistical
files in protected statistical centers (subsection (a)) and
merged files containing a protected component (subsection (b)),
or the special designation of files maintained by agencies
outside of protected statistical centers (subsection (c)).
Any statistical file must meet two tests to become a protected
statistical file. First, the purposes of creating or maintaining
the file must be exclusively statistical. Second, the
confidentiality protection must be clearly warranted, either
because of an explicit or implied agreement with the respondent
or a duty imposed on an agency or other custodian from whom the
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records are received. Two aspects of the implied agreement are
unusual and dictate that the test include expectations of
confidentiality as well as any explicit condition required by the
person to whom the information pertains.
In many cases the information may be reported on behalf of rather
than by the person to whom it pertains--for example a member of a
household may report on all other members of that household.
Another more difficult problem arises if a substantial number of
respondents are willing to let the information pertaining to them
be disclosed. Disclosure of a substantial number of individually
identifiable responses may make it difficult or impossible to
protect the confidentiality of other responses reported in
summary or unidentifiable form. In these cases the expectation
of confidentiality rather than any explicit request governs
whether confidentiality protection is warranted.
This qualification test for protection is necessary to prevent
abuses of the system created by this Act. Since the protections
of this Act foreclose non-statistical governmental uses as well
as private access through the Freedom of Information Act, they
must not be applied `without due consideration of the need for
protection.
Existing or planned files in a protected statistical center that
meet these tests automatically acquire the status of protected
statistical files (subsection 5(a)). This includes previously
unprotected files that qualify for protection and have been
released to a protected statistical center under the terms of
section 10. Likewise files that contain protected components are
automatically protected (subsection 5(b)). In some cases when
protected and unprotected files are merged a copy of the
unprotected file may need to be retained to meet legitimate
requests for disclosures. This is particularly true when the
unprotected file is not available from other sources, since the
merged file may only be disclosed as provided in this Act.
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A free standing protected statistical file (either existing or
planned) may be created by action of an agency head responsible
for the file (subsection 5(c)). In addition to meeting the two
tests in subsection 5(a) such a file must be free of any
statutory disclosure encumbrance that conflicts with this Act and
the_ protection must be supported by adequate physical and
administrative safeguards (these two conditions are always met by
protected statistical centers).
Since this designation is discretionary two other conditions are
imposed on the agency head to guard against arbitrary action--the
proposed designation must be subject to public notice with an
opportunity to comment and must be concurred in by the Director
of the Office of Management and Budget or his designee. It is
also intended that status of a protected statistical file will be
indicated in any Privacy Act notice pertaining to records in such
file.
Section 6 establishes how an agency or organizational unit of an
agency can be designated as a protected statistical center.
There are two methods of designation:
(a) Explicit designation in the bill. The agencies
explicitly designated in the bill are the Bureau of the Census
and the Bureau of Economic Analysis of the Department of
Commerce; the Bureau of Labor Statistics of the Department of
Labor; the Statistical Reporting Service of the Department of
Agriculture; the National Center for Health Statistics and the
Office of Research and Statistics of the Social Security
Administration within the Department of Health and Human
Services; and the Division of Science Resource Studies of the
National Science Foundation.
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(b) After the passage of the bill the President may, by
Executive Order, designate additional protected statistical
centers when the head of the agency submits a written request for
the designation and the President is satisfied that:
(1) the agency or agency unit is truly primarily a
statistical organization, as most of its activities are to
perform statistical purposes and most of its files qualify as
protected statistical files;
(2) the agency or unit carefully keeps its protected
statistical files separated from other types of files;
(3) the agency or unit does not operate under a law
that specifically requires it to disclose information from its
files in a manner that conflicts with the provisions of this Act;
and
(4) the agency or unit has established and maintains
reasonable administrative, technical, and physical safeguards to
ensure the protection of the confidentiality of all records, and
to assure that the files will be used only for statistical
purposes, and that no data from a protected statistical file will
be placed in another file that is not safeguarded as a protected
statistical file.
The organizational units designated in subsection 6(a) as
protected statistical centers are all major statistical units
that collect and compile substantial amounts of general or
multiple-purpose statistical data. Their programs are well known
and their roles as statistical organizations and as integral
parts of the Federal Statistical System have been firmly
established and accepted.
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Some other agencies and units have already expressed an interest
in being designated as protected statistical centers. Because
the statistical activities of these organizations are more
closely tied to specific programs or are subject to laws that may
be inconsistent with this Act, it was considered desirable to
make the designation of these agencies and units as protected
statistical centers conditional on passage of the legislation,
establishment of guidelines, and a careful review to determine
that the standards for protected statistical centers are met.
The designation is reserved to the President to ensure that the
full authority of the Executive branch stands behind the
designation. Unlike the designation of protected statistical
files, which simply limits discretionary disclosure authority,
the designation of a protected statistical center confers the
privilege of access within the limitations of this bill to any
protected statistical file. To assure full public faith and
confidence in the protections provided in this bill, the
designation decision should be made at the highest level.
Condition (3), however, is designed to ensure that the President
is not able to override Congressional intent by making a
designation that conflicts with the substantive law of that
agency.
Subsection 6(c) provides that each protected statistical center
must treat any protected statistical file it receives as a
protected statistical file, and must assign the status of
protected statistical file to any file it maintains that
satisfies the conditions of subsection 5(a).
Subsection 6(d) provides authority to the President to suspend or
revoke the designation of a protected statistical center whenever
the standards required for such designation are no longer being
met. This authority applies both to protected statistical
centers named in subsection 6(a) and to any named subsequent to
the effective date of this legislation, as provided in subsection
6(b). Even though the designation of an agency or unit of an
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agency as a protected statistical center can be revoked, the
protected statistical files of that center remain protected. The
protection of the confidentiality of individually identifiable
records cannot be withdrawn since that would jeopardize the
interests of persons who may well have provided the data
initially on the understanding that it will be held confidential.
However, once an organizational unit has had its designation as a
protected statistical center suspended or revoked, it can no
longer have access to individually identifiable records
maintained by other agencies as provided in sections 8, 10 and
11, nor will the new statistical files that it creates have
protected statistical file status until the President determines
that the appropriate standards are being met. The safeguards
each protected statistical center provides must include a
contingency plan for protecting files in its custody if its
status is revoked (or suspended).
Whenever the Director of the Office of Management and Budget
deems it necessary to assure public confidence in the protection
of confidential statistical files, the Director of OMB may
suspend the designation of any protected statistical center
pending review by the President. This provision assures that
quick action can be taken to isolate this system from violations
or poor judgment in a single protected statistical center.
The President must publish all designations and all revocations
of designations of protected statistical centers in the Federal
Register. Publication of designations and revocations will be
made in accordance with the requirements of the Administrative
Procedures Act.
CONFIDENTIALITY OF RECORDS CONTAINED
IN PROTECTED STATISTICAL FILES
Section 7 establishes the nature of protection of individually
identifiable records in protected statistical files.
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Subsection 7(a) specifies that, except for the provisions of
sections 8, 9, and 11 of the bill, no agency, employee of an
agency, or any other person may disclose to anyone or to any
entity any information from a protected statistical file in any
manner that would reasonably be expected to reveal individually
identifiable information about a person. Paragraph 7(a) (1)
prohibits disclosure of an individually identifiable record.
This would also preclude any disclosures of individually
identifiable data in the file in response to a Freedom of
Information Act request, except for the disclosures explicitly
permitted in sections 8, 9, and 11.
Paragraph 7(a) (2) prohibits, in addition, the publication or
other release of any information compiled or obtained from a
protected statistical file in a manner or statistical form that
could reasonably be expected to reveal identifiable information
derived from the file. The intent of paragraph 7(a)(2) is to
prohibit the publication or release of statistical aggregates,
averages, distributions, or other measures, or releases in
individual form (such as public use data tapes) , unless such
release is accomplished in a manner or statistical form that
effectively guards against linkage with other available
information leading to likely identification of records in a
protected statistical file. Since current methodology cannot
with absolute certainty eliminate all possibility of such
indirect disclosure, the prohibition applies to those cases where
there is a reasonable expectation of disclosure.
Paragraph 7(a)(3) also prohibits agencies, their employees, or
any other person from using the individually identifiable
information contained in a protected statistical file for any
purpose that is not statistical. The intent is to prohibit use
of the information contained in such records in any
administrative, regulatory, legislative, judicial, or other
action undertaken against or in relation to a particular
individually identifiable person. It also prohibits the use of
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information from the file in an individually identifiable form by
an employee of an agency for private gain.
Representatives of the Treasury and Justice Departments have
expressed concern that the strong protections granted to data in
statistical files not be extended to the point where the health
and =safety of individuals is unnecessarily endangered. It is not
intended that the prohibition on disclosure in section 7 apply to
information about individually identifiable persons that is
obtained incidentally by an employee of an agency in connection
with the collection or compilation of information for a protected
statistical file, but has no relation to the information intended
for that file, and the employee made no pretense that it did.
Thus, an interviewer in an employment survey who learned, in the
process of collecting survey information, that the individual
being interviewed was planning to commit a violent crime, might
feel compelled by conscience to report this to law enforcement
authorities. Indeed, in some cases the interviewer might be
legally or morally obligated to report such information.
However, under no circumstances might the interviewer disclose
information collected for the survey or in any way related to the
content of the survey, or unrelated information whose disclosure
would not serve to protect the health and safety of individuals.
Subsection 7(b) establishes a uniform requirement for informing
all agency employees who are to have access to a protected
statistical file of the confidential nature of the file
information, the restrictions on use and disclosures of
information contained in the file, and the sanctions imposed for
violations of the Act. Each employee with such access would be
required to swear or certify in writing that he understands and
accepts these responsibilities and is aware of the sanctions
imposed for violations of this Act.
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The necessary but strictly limited disclosures to be permitted or
required from protected statistical files are set forth in
sections 8, 9, 11, and 13. Section 8 provides for the
disclosures that may be made from protected statistical files for
statistical purposes only; section 9 provides for the few legally
necessary incidental disclosures for nonstatistical purposes;
section 11 deals with the special provisions relating to
disclosures from two particular protected statistical files, the
"Standard Statistical Establishment List" and the "Limited
Establishment List;" and section 13 defines specific additional
authorities and limitations needed to preserve confidentiality
rights and expectations conferred on the public by current law,
and defines the oversight role of the Director of OMB with
respect to discretionary provisions of the Act.
Section 8 details the very limited conditions under which
individually identifiable information may be disclosed, even for
strictly statistical purposes. Subsection 8(a) provides for the
most common types of disclosure anticipated in the Federal
Statistical System--the disclosure of a protected statistical
file, or a part thereof, made voluntarily by the agency or center
maintaining the file to a protected statistical center. In order
for such a disclosure to take place, all of the following
conditions must be met:
(1) The protected statistical center requesting the file
must do so in writing, certifying that the statistical purpose
for which the data will be used cannot be realized without
individually identified data and that the receiving center will
reimburse the providing unit for appropriate costs, as mutually
agreed upon.
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(2) The receiving center agrees to remove identifiers
associated with records as soon as this can be done without
interfering with the purpose of the statistical project. It is
recognized that some projects may require that identifiers be
retained in the file for a period of years in order to accomplish
the- project, but with many projects the identifiers can be
disposed of quickly.
(3) In some instances it may be necessary to retain the
identifiers in a separate file from the remaining information, so
that they may be matched with data occasionally to meet special
processing needs, such as in statistical editing. The receiving
center agrees that the identifiers will also be destroyed as soon
as practicable.
(4) The receiving center is forbidden any subsequent use or
disclosure of records from the file in "individual form" without
the written authorization of the originating agency. Thus, the
receiving center is precluded even from releasing unidentifiable
individual data from the file--such as in the form of a public
use data file--without the express authorization of the
originating agency.
(5) The originating agency's concurrence in any publication
plan utilizing the disclosed data must be obtained by the
receiving agency. This is intended to enable the originating
agency to make sure that the various publications planned for
data in the file do not, in combination, result in inadvertent
statistical disclosures of identifiable data.
In paragraphs B (a) (4) and B (a) (5) the "originating agency" for a
protected statistical file means the agency or unit that
originally designated the file as a protected statistical file
pursuant to subsection 5(c), or the agency, unit, or protected
statistical center under whose authority the file initially
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acquired the status of a protected statistical file pursuant to
subsection 5(a) or 5(b). A file that combines information from
several protected sources may have several originating agencies,
each bearing responsibility for preserving the confidentiality of
information to which it originally assigned protection.
Subsection 8(b) provides that when one protected statistical
center enters into a reimbursement agreement with another
protected statistical center to have statistical work, such as
data collecting, processing, analysis, or maintenance, performed
on a protected statistical file, both centers and their employees
may share access to individually identifiable information to the
extent necessary to accomplish that work.
Subsection 8(c) provides for disclosures to an employee of the
agency maintaining the file, but only on a "need to know" basis
having to do with the statistical purpose of the file. If a
protected statistical center is part of an agency (as opposed to
being an entire agency) , disclosure is only permitted by this
subsection to employees of the center. Disclosure may be made
under this provision to personnel of a contractor or of an agency
or a unit of another agency or State government that is a party
to a cooperative statistical agreement with an agency or a
protected statistical center, but only for the specific
statistical purposes provided for in the contract or cooperative
statistical agreement with the agency or protected statistical
center that maintains the protected statistical file from which
the disclosure is made.
Subsection 8(d) permits disclosure to an agency or a unit of
State government under a cooperative statistical agreement,
provided that the information to be disclosed was collected
without a requirement of mandatory response and that the person
from whom the information was obtained was informed of the
intended disclosures before the data were collected. The intent
of this subsection is to reduce reporting burden where this can
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be achieved through the collection of data to be used for
statistical purposes by more than one agency, but only under the
control of the person providing the information. Since the
original response was voluntary, this control can be exercised by
the person through refusal to provide the information. (This
provision governs cases where the statistical purposes of a
cooperating party are not subsumed in the purposes of the
responsible agency or center and thus that party cannot be deemed
to be performing work for that agency as required in 8(c)).
Subsection 8(e) permits disclosure to an agency, a unit of State
or local government, or any person, provided that the agency or
protected statistical center maintaining the file obtained the
information from a unit of State government that collected the
information under its own legal authority. Written approval for
such disclosures must be obtained from the State official having
legal custody of the original records.
Unlike other disclosure provisions in this section, subsection
8(e) permits disclosure of information (obtained from a unit of
State government) for statistical use to persons who have no
direct link to the Federal Government through a contract or
cooperative statistical agreement. The primary purpose of this
provision is to ensure wide access for legitimate statistical
purposes to such files as vital records information maintained by
the National Center for Health Statistics (NCHS) and based
entirely on vital records obtained from the States. Access to
these files through NCHS will substantially facilitate and reduce
the cost of studies relating to mortality, fetal mortality, and
natality. Such disclosures are permitted under existing law
governing the confidentiality of information furnished to NCHS
(42 U.S.C. 242m).
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DISCLOSURES FROM PROTECTED STATISTICAL FILES
FOR NONSTATISTICAL PURPOSES
Section 9 details the specific instances in which the head of an
agency or a protected statistical center may disclose
individually identifiable information from protected statistical
files for nonstatistical purposes. Such purposes must be
incidental to an agency or center's purposes for establishing or
maintaining the file, otherwise the criteria for designating a
protected statistical file would be violated. The head of the
agency that originally collected the information serves as the
single point of control for these disclosures. This prevents the
protected statistical centers from becoming conduits for
nonstatistical disclosures that cannot be made by the agency
which collected the data. Individually identifiable information
may be disclosed:
(a) to the person to whom the particular record to be
disclosed pertains, or to his legal representative (the person's
heir, successor, or authorized agent) in response to a written
request from that person or his legal representative.
(b) to the National Archives pursuant to the provisions of
the National Archives Act. This provisions permits disclosure to
the National Archives of individually identifiable records that
have sufficient historical or other value to warrant their
continued preservation by the United States Government.
Confidentiality of records so disclosed will be governed by the
National Archives Act and by any agreements reached, under the
provisions of that Act, with the agencies or protected
statistical centers that collected the data. This provision
permits disclosure to the Administrator of the General Services
Administration or his or her designee to determine whether
records meet the criteria for preservation in the National
Archives, but is not intended to modify existing law.
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(c) to qualified and properly identified persons for
evaluating or auditing activities of agencies and their employees
relating to the development and maintenance of protected
statistical files, but only in those cases where the use of
individually identifiable records is clearly necessary to
accomplish the audit or evaluation. The audit or evaluation must
be authorized by statute to be performed by an Inspector General.
Such disclosure is subject to the condition that the information
so obtained cannot be used as evidence in any administrative,
regulatory, legislative, judicial, or other proceeding against
anyone other than the agency or protected statistical center
maintaining the file, or its employees. Furthermore, it is
explicitly forbidden to use the information as evidence or
otherwise redisclose it in a manner that would reasonably be
expected to reveal the information contained in an individually
identifiable record. Recontact of persons to whom the records
refer is permitted only when essential to the purpose of the
audit or evaluation, with the concurrence of the head of the
agency or protected statistical center maintaining the file.
Recontacts must be made in a manner that minimizes the risk of
adverse consequences to the person and to the statistical
activity that is being audited or evaluated.
(d) in compliance with an administrative summons or subpoena
or with a judicial order, including a search warrant or grand
jury subpoena, where legal action is being brought against an
agency maintaining protected statistical files or an employee or
some other person for violation of the provisions of this bill,
or in connection with investigation of possible violations. To
protect the person to whom the information in the record
pertains, the information shall be used as evidence only under a
protective order and shall not be made public. This section also
permits disclosure, where necessary, to departmental or agency
general counsel or to Justice Department attorneys representing
the government in such investigations or proceedings;
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(e) where a federal agency collects information for
statistical purposes under a federal statute mandating truthful
response and imposing sanctions for refusing to respond or making
false response, to officers of the court in relation to an
investigation or prosecution of suspected violations of such
statute. Disclosures in such cases are limited to the records
relating to the person being investigated or prosecuted and other
directly relevant records. Records so disclosed must be
protected from public disclosure in the same manner as in
subsection (d).
The purpose of section 10 is to eliminate existing barriers to
the reduction of response burden by ensuring full access to
administrative, regulatory, and program records by protected
statistical centers for statistical purposes.
Subsection 10(a) provides that any agency may release all or any
part of any file, or a copy thereof, other than files precluded
from release by a federal law to protect the national security,
to a protected statistical center for a specified statistical
purpose. The releasing agency may retain a copy of the file and
use or disclose it for any lawful purposes; indeed, if the law
requires that the agency use the file for particular
nonstatistical purposes, then the agency must retain a copy of
the file for such uses.
If an agency releases to a protected statistical center a file
that is not already a protected statistical file, the file may or
may not become a protected statistical file in the center,
depending upon whether it meets the qualifications set forth in
section 5. If it meets these qualifications, the file must be
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treated as a protected statistical file in the protected
statistical center; if it does not meet these qualifications, it
may not be given the status of a protected statistical file. if
files qualify as protected statistical files, they will be fully
protected from disclosure by provisions of this Act, and their
subsequent use by the recipient for any nonstatistical purpose
will be prohibited.
If the file released to the protected statistical center does not
qualify to become a protected statistical file, then the
originating agency may, in accordance with its own rules,
prescribe the uses and any redisclosures that the protected
statistical center may make from the file (Subsection 10(b)).
But if the file does qualify and becomes a protected statistical
file in the protected statistical center, then the receiving
center must consult with the releasing agency prior to any
subsequent disclosure from the file (Subsection 10(c)). The
receiving center determines what subsequent disclosure may be
made consistent with the provisions of this Act since that
determination often requires statistical expertise. The
consultation requirement assures that the center responsible for
provisions of this Act is fully informed of other uses and
disclosures made by the releasing agency.
When a protected statistical center needs to use a statistical
file maintained by an organization outside the Federal Government
and offers to purchase the file under contract, it sometimes
finds that it cannot obtain the data unless it can guarantee the
contractor that no further uses or disclosures of the data will
be made by the center. Subsection 10(d) provides that in such an
instance the protected statistical center may write a contract
with the outside organization, stipulating to the use limitations
demanded by that organization, even though these limitations
prevent certain uses or disclosures otherwise permitted by this
Act, but only with the approval in advance of the contract by the
Director or his designee. An example of this is a professional
organization that will release its file of characteristics of
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practitioners to a center for statistical purposes, but only if
the center can guarantee that it will not redisclose the file to
other centers or agencies.
It is anticipated that the Director or his designee will work
closely with the protected statistical centers to develop
standard contractual language consistent with the objectives of
this Act. Only exceptional situations would require review and
approval of an individual contract.
STANDARD STATISTICAL ESTABLISHMENT LIST AND LIMITED
ESTABLISHMENT LIST
Section 11 describes two forms of list information for
establishments--the Standard Statistical Establishment List
(SSEL) and the Limited Establishment List (LEL). These two lists
both differ in some important aspects from the list described in
past proposals of the Department of Commerce. This section
assigns the responsibility for the compilation and maintenance of
the SSEL and the LEL to the Secretary of Commerce through the
Bureau of the Census. The sources of information will be
substantially the records of the Bureau of the Census,
supplemented by information from the IRS and Social Security
Administration tax systems, from the Bureau of Labor Statistics
and its cooperative state agencies and from specialized federal
statistical agencies.
Subsection 11(a) STANDARD STATISTICAL ESTABLISHMENT LIST
This subsection describes the information that is contained in
the Standard Statistical Establishment List for each enterprise
and its constituent establishments. These items correspond to
the items specified in the list proposed to be released by the
Department of Commerce with the distinction that the quantitative
items on the SSEL would not necessarily have to be coded as was
previously proposed.
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The SSEL is a protected statistical file of the Bureau of the
Census, and the Bureau of the Census is considered to be the
originating agency. At the determination of the Secretary of
Commerce that conditions (a)(1) through (a)(6) are satisfied, the
SSEL information shall be made available exclusively to protected
statistical centers and employees under their direct supervision
and control and contractors who provide secure data processing
and telecommunications services. Conditions (a)(1) through
(a) (6) are tailored to the specifics of the content and use of
the SSEL. Where applicable, these conditions are consistent
with, and in addition to, the conditions of section 8(a) that
govern the permissive disclosures of protected statistical files
to protected statistical centers.
Paragraph (a) (1) is identical with condition (8) (a) (1) with
"SSEL" inserted in the place of "protected statistical file."
Paragraph (a)(2) requires that only the specific records and
elements of records necessary to achieve the specified
statistical purpose will be made available.
Paragraph (a)(3) prohibits the protected statistical center
receiving the file from making any further use or subsequent
disclosure of the information (other than that specified in the
original request) without the written consent of the Secretary of
Commerce. This condition is analogous to 8(a)(4) with the "SSEL"
inserted in the place of "protected statistical file", and
Secretary of Commerce" inserted in the place of the "originating
agency."
Paragraph (a) (4) limits the use of SSEL information based on
returns and return information by employees of a protected
statistical center who are personnel retained by a protected
statistical center under contract or in a cooperative statistical
agreement. If such personnel have access to returns or return
information under any provision of 26 USC 6103 other than
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subsection 6103(j) they will not be permitted access to any SSEL
information based on returns and return information. This
limitation ensures that taxpayer privacy will not be compromised
through potential matching of a file containing tax return data
released by Treasury to assist States in their tax collections
and for other purposes (some of which are required by law) with
SSEL information obtained under a contract or cooperative
statistical agreement with a State.
Paragraph (a) (5) permits the Secretary of Commerce to determine
when SSEL information collected or maintained by the Secretary of
Commerce under authority of Title 13 may be disclosed to
personnel retained by a protected statistical center who do not
meet the test for required disclosure specified above. This
provision gives the Secretary additional control over disclosures
of Title 13 information within the protected statistical centers.
Paragraph (a) (6) assures that protected statistical centers may
maintain their own individually identifiable files for any
purposes without sacrificing their access to the SSEL.
Subsection 11(b) LIMITED ESTABLISHMENT LIST
This section describes the information that is contained in the
Limited Establishment List for each enterprise and its
constituent establishments. The content of LEL records is more
restricted than corresponding SSEL records--all information with
the exception of name and physical location would be coded.
The LEL is a protected statistical file of the Bureau of the
Census, and the Bureau of the Census is considered to be the
originating agency. Disclosures from the LEL will be made for
limited statistical purposes only at the discretion of the
Secretary of Commerce. The LEL has an exceptional status as a
protected statistical file in that it may be disclosed to
agencies or units thereof that are not protected statistical
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centers or to States or units thereof, and to the employees of
those organizations who have a need for the records in the
performance of their statistical duties. Also, the LEL is
exceptional in that the disclosures of the LEL are governed by
the conditions of this section without regard for consistency
with section 8.
Paragraph (b)(1) states that any agency or State or unit thereof
desiring the LEL must make a written request for disclosure of
the LEL and this request must be approved in writing by the
Secretary of Commerce.
Paragraph (b)(2) states that the LEL information may only be used
for statistical purposes involving compilation or collection of
statistical data. This test is more restrictive than the
"exclusively statistical purposes" condition employed elsewhere
in this Act.
Paragraph (b)(3) indicates that use of the LEL by a state agency
or unit thereof must be necessary to fulfill a cooperative
statistical agreement with that state. In addition, the written
request must include the names of employees to whom disclosures
will be made.
Paragraph (b) (4) states that the Secretary of Commerce must be
satisfied with the safeguards that the recipient agency has
established to ensure the integrity, confidentiality, and
security of the records to be released to it.
Paragraph (b) (5) for the LEL is similar to paragraph (a) (3) for
the SSEL in that it prohibits any further use or subsequent
disclosure (other than that specified in the original request)
without the written consent of the Secretary of Commerce.
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Paragraph (b) (6) for the LEL is analogous to Paragraph (a) (4)
with "LEL" inserted in place of "SSEL", and "agency, or unit
thereof, or state, or unit thereof" inserted in place of
"protected statistical center".
Paragraph (b) (7) assures that any agency, or unit thereof, or
state, or unit thereof, may maintain their own individually
identifiable files for any purposes without sacrificing their
access to the LEL. This ensures that maintenance by that
organization of individually identifiable information from other
sources for regulatory and other programs is not construed as
incompatible with access to LEL information for the limited
statistical purposes permitted in paragraph (b)(2).
Section 12 provides for the establishment of a Statistical
Advisory Council to be made up of the heads of all the protected
statistical centers and the Director of OMB or his designee who
is to be its chairperson. Representatives of other agencies of
the federal statistical system are expected to be invited to
participate in the Council's deliberations, to assure that it is
broadly representative of federal statistical programs. The
Council will meet as often as the Director or his designee
determines necessary, but at least once every six months.
The Council would be specifically charged to review all proposals
to designate protected statistical centers and all proposed
rules, policies, and procedures for implementing this Act, and to
advise the Director of OMB on these matters. But the Director or
his designee may also prescribe that the Council look into any
and all other important matters relating to federal statistical
activities. It is anticipated that the Council will become a
high-level forum for the discussion of all serious statistical
concerns of federal agencies and for making recommendations to
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resolve them. The Council would also be expected to resolve
disputes that may arise among statistical units respecting the
implementation of this and related acts.
Subsection 12(b) provides that the direct costs and staffing of
the Council, which should be nominal, would be met by the
respective protected statistical centers, with the amounts and
allocations to be determined by the Council as a group.
Section 13 allows the protections and disclosure rules of this
Act to be applied in a manner consistent with the objectives of
three existing statutes. Two of these statutes, Title 13 (the
Census Code) and Title 26 (the Internal Revenue Code), have
provided long standing confidentiality protection for the
comprehensive files of information collected in support of the
missions authorized by these titles. Both titles employ
"statistical use tests" in determining allowable disclosures but
each title also contains "eyes only" restrictions which are not
consistent with the objectives of this Act. These restrictions
further limit disclosures that meet the "statistical use test" to
named organizations within the Federal establishment. This Act
employs a similar principle in designating organizations by name
as protected statistical centers, but the named organizations do
not coincide with those in Title 13 and Title 26.
The practical effect of such restrictions is to assure the
uniform administration of confidentiality procedures and
safeguards and to limit the total number of individuals given
access to confidential information. Uniform administration and
limited access contribute significantly to public confidence that
the protections guaranteed in law can be realized in practice.
Subsections 13(a) and 13(b) assign to the Secretary of Commerce
and the Secretary of the Treasury responsibility to preserve the
confidentiality privileges enjoyed by individuals and
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organizations under current law, and provide the means consistent
with the objectives of this Act to mitigate the effects of
differences between this Act and current law.
Subjection 13(a) requires the Secretary of Commerce to extend the
protections of this Act to all information protected by section
9(a)- of Title 13. Paragraph 13(a)(1) prohibits the disclosure of
such information (other than that contained in the SSEL and the
LEL) that was collected prior to enactment of this Act under a
confidentiality pledge inconsistent with disclosures permitted by
this Act. Paragraph 13(a) (2) requires the Secretary to impose
any of four specific limitations on disclosures of protected
statistical files containing Title 13 information (other than the
SSEL) requested by a protected statistical center under section
8(a), whenever he determines that such limitations are necessary
to discharge his responsibilities under Title 13.
The first three limitations allow the Secretary when necessary to
limit specific forms of access permitted in this Act that are not
permitted under Title 13. Taken together they have an effect
similar to the current Title 13 authority to disclose information
to "specially sworn employees" (13 USC 23) except that the
disclosure may be for any legitimate statistical purpose of a
protected statistical center rather than the specific purposes of
Title 13.
The fourth limitation guarantees the Secretary of Commerce an
opportunity to review the specific procedures and safeguards to
be used in handling the confidential information and to consult
either directly with a protected statistical center or with the
corresponding agency head concerning disclosure risks such
procedures and safeguards might entail. If the consultation
process does not produce agreement, however, the Secretary of
Commerce may not impose his views on a protected statistical
center in another agency (since each protected statistical center
is individually accountable through its agency head to the
President for the adequacy of such safeguards and procedures).
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In such case the Secretary's responsibilities under this Act and
Title 13 may oblige him to report the alleged inadequacies to the
Director of OMB or the President for possible action under
section 6.
None of these additional obligations and authorities apply to the
SSEL and LEL, which are completely governed by section 11, nor to
future work by the Bureau of the Census under reimbursement
agreements governed by subsection 8(b).
Subsection 13(b) imposes obligations on the Secretary of the
Treasury similar to those imposed on the Secretary of Commerce by
subsection 13(a). The differences are due to the fact that
initial disclosures of returns and return information are
governed by section 10 rather than section 8 of this Act.
Under current tax law, returns and return information may not be
designated protected statistical files while in the custody of
the Treasury Department. (Section 7214 of the Internal Revenue
Code requires disclosures inconsistent with this Act and thus the
conditions of section 5 cannot be satisfied.) Once such
information is disclosed to a protected statistical center for
exclusively statistical purposes it must acquire the status of a
protected statistical file pursuant to subsection 5(a) of this
Act. (Return information disclosed to a protected statistical
center for statistical and other purposes may not be protected
under subsection 5(a) but initially retains the protection
afforded by Treasury regulations as provided in subsection 10(b)
of this Act and may also become subsequently protected pursuant
to subsection 5(b).)
If the general provisions of subsection 10(c) were applied to
protected statistical files of return information they would have
the effect of relieving the Secretary of the Treasury of any
responsibility for the confidentiality of return information
transferred among protected statistical centers. While each such
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center is fully accountable for maintaining the confidentiality
of information disclosed to it under this Act, the number and
variety of disclosures made by the Treasury Department under
provisions of the Internal Revenue Code make it difficult to
assess the risk of indirect disclosure without the direct
participation of the Treasury Department.
For these reasons subsection 13(b) reaffirms the responsibility
of the Secretary of the Treasury for redisclosures of tax return
information and provides specific means to discharge that
responsibility consistent with the objectives of this Act. The
limitations that may be unilaterally imposed on redisclosures are
also intended to provide an incentive for protected statistical
centers to deal directly with the Treasury Department whenever
possible.
Subsection 13(c) clarifies the authorities of the Director of the
Office of Management and Budget under section 3510 of Title 44
(as amended by the Paperwork Reduction Act of 1980) in relation
to disclosures permitted by this Act. Under section 3510, the
Director may order an agency to disclose information to another
agency when the disclosure is not inconsistent with any
applicable law. This subsection asserts the intent of this Act
that discretionary decisions or determinations not to make
permitted disclosures do not bind the Director to find such
disclosures inconsistent with this Act except under certain
specified conditions--(c) (1) through (c) (7) .
The exceptions cover seven specific situations. The first three
cover cases where disclosure would violate contracts or
confidentiality pledges made in good faith prior to this Act.
The fourth, fifth and sixth cover respectively, contract terms
agreed to by the Director, disclosures prohibited by State law or
regulation, and disclosures prohibited in the interest of
national security and foreign policy. The final exception
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excludes from OMB oversight those specific authorities reserved
to the Secretary of Commerce and the Secretary of the Treasury in
this section (paragraphs 13(a)(3) and 13(b)(2)) as a means of
preserving protections expected by the public under current law.
Subsection 14(a) establishes the legal immunity of records in
protected statistical files. All such records and all
individually identifiable records extracted or derived from
protected statistical files are immune from mandatory disclosure
under any Federal, State, or local law, including the Freedom of
Information Act. No agency, protected statistical center or
their employees can be compelled to disclose individually
identifiable records in protected statistical files in any
Federal, State, local or other civil, criminal, administrative,
regulatory, legislative or other proceeding, except as provided
in subsection 9(d) in connection with alleged violations of the
provisions of this Act, and in subsection 9(e) in connection with
enforcing a requirement for truthful response.
Subsection 14(b) extends the same immunity to file copies of
statistical reports when these copies are in the possession of
the persons to whom the reports pertain. It is not intended,
however, that such protection be extended to administrative or
program records or reports, whether in the possession of an
agency or a person, even though identifiable information from
such records or reports may be incorporated into a protected
statistical file. Therefore, the immunity provided by subsection
14(b) applies only to copies of reports whose sole purpose is to
obtain information for inclusion in a protected statistical file.
Since file copies in the possession of the persons to whom the
reports pertain are not records in a protected statistical file,
there is no reason to prohibit voluntary disclosure of these
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copies by such persons. Such disclosure is permitted under
subsection 14(b).
Section 15 provides for sanctions and penalties for violations of
the-provisions of the bill.
(a) Wrongful disclosure of information, misuse of information.
This provision deals with criminal violations, and sets the fine
at not more then $10,000 for violation of the nondisclosure
provisions of the bill, for unlawful access, or for improper use
of protected statistical files to accomplish nonstatistical
purposes or to conceal nonstatistical information. A longer term
of imprisonment is provided for unlawful disclosure than for the
other prohibited acts to reflect the greater potential harm to
persons whose information is in files. The penalties may be
applied to any person who violates the provisions regardless of
whether the access to protected statistical files is lawful or
unlawful. A larger fine may be applied to a government
contractor, not more than $50,000 or the value of the contract.
(b) Civil Liabilities - Right of redress. This subsection
provides a civil right of action for a person aggrieved by any
violation of the Act. Agencies having access to individually
identifiable records from protected statistical files must be
made accountable to the persons to whom the records pertain. It
is anticipated that private enforcement action will be a powerful
tool in ensuring compliance with the Act's requirements by
agencies.
Paragraph (1) gives a right to recover any specified damages
sustained by a person resulting from a violation of the Act. The
agency is held accountable for injury resulting from the actions
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of its employees in the course of their duties. Other persons
are individually liable for damages resulting from their actions.
Paragraph (2) gives the right to recover general compensatory
damages in addition to any award for specified damages. General
damages may be based on the nature and seriousness of harm
suffered by the person.
(c) Administrative sanctions. This subsection provides for
agency action against conractors who violate the bill. A knowing
violation would be a matter for an agency to consider in
evaluating the qualifications of a contractor before making a new
award. Repeated violations make the contractor liable to
debarment from participation in Federal contracts for the
collection, compilation or use of individually identifiable
records for or from protected statistical files for up to three
years. Adjudication proceedings would be held in accordance with
the Administrative Procedure Act.
Section 16 sets forth the requirements for development of
regulations to implement this Act. Each agency with one or more
protected statistical centers and/or one or more protected
statistical files, is required to promulgate regulations for
implementing the Act (subsection 16(a)). For agencies with one
or more protected statistical centers these regulations are to be
developed in time so that they become effective on the effective
date of the Act, 365 days after the bill is signed by the
President. Independent regulatory agencies are to consult with
the Director or his designee on their regulations; other agencies
are required to obtain the approval of the Director or his
designee for their regulations. Regulations must, of course, be
promulgated in accordance with the Administrative Procedure Act.
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The task of developing regulations and conforming them across
government (through OMB review) will be difficult and time
consuming. Thus OMB is required to publish guidelines to assist
the agencies by 180 days after enactment (subsection 16(b)), and
OMB staff are expected to advise and assist the agencies in
regulation development throughout that process.
OMB is also required to publish regulations by the effective date
of the Act to cover all agencies that will not have promulgated
regulations to implement the Act by that date (subsection 16(c)).
Agencies will still be able to publish (with the concurrence of
the Director or his designee) regulations relating to
implementing the Act in those agencies at later dates, and when
they do these specific regulations will supersede the general OMB
regulations.
Sec. 17. This section allows the immediate establishment of
the Statistical Advisory Council and commencement of the process
of developing implementing regulations so that this process can
be completed when other provisions of the Act become effective
one year after the bill is signed by the President.
(a) Conforming amendment to the Privacy Act of 1974.
Some, but not all records in protected statistical files will be
"records" as defined in the Privacy Act of 1974. In particular,
records for living individuals that are part of a "system of
records" as defined by the Privacy Act will be covered by that
Act. On the other hand, records for deceased individuals and for
legal persons are not covered by the Privacy Act.
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For those records in protected statistical files that are also
Privacy Act records, it is important that the generally more
restrictive use and disclosure limitations of this bill apply.
This is the primary objective of the proposed conforming
amendment to the Privacy Act. In addition, the amendment permits
certain disclosures for statistical purposes that are not
provided for in the Privacy Act and exempts records in protected
statistical files from certain provisions that are appropriate
only for records used to make decisions about or take actions
affecting specific individuals.
Subsection 18(a)(1) adds the definition of "protected statistical
file" used in this bill to the definitions in the Privacy Act.
Subsection 18(a)(2) adds a new condition for disclosure of
Privacy Act records to the list of conditions in 552a(b) . This
new condition, (b)(13), permits disclosure of records to
protected statistical centers, for statistical purposes, as
provided in section 10 of this bill. It applies only to records
not in protected statistical files. The disclosure of records
that are in protected statistical files will be governed by the
provisions of this bill.
Subsection 18(a)(3) adds protected statistical files containing
Privacy Act records to the categories of systems of records which
agency heads may exempt from certain provisions of the Privacy
Act.
Subsection 18(a)(4) provides that Privacy Act records in
protected statistical files will be subject to the provisions of
this bill, and will be exempt from provisions of the Privacy Act,
except for the following:
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(b) (4) Disclosure to the Bureau of the Census, to carry out
the provisions of Title 13;
(b) (6) Disclosure to the National Archives, when historical
value warrants;
(e) (3) (A) , (B) , and (D) Notice to the individual at the time
of collection (except notice of routine uses);
(e) (4) (A) , (B), (C), (E), (F), and (I) Publication of system
notice for establishment of revision of a system of records
(excluding access procedures and notice of routine uses);
(e)(9) Employee rules of conduct;
(e)(10) Safeguards;
(1) Archival records; and
(o) Report to Congress and OMB of new and revised systems.
Records in protected statistical files would be exempt from
Privacy Act requirements that would negate the strong protections
of this bill or would burden agencies or units maintaining
statistical files with procedures that are appropriate only for
records used to make decisions about or take actions affecting
individuals.
Thus, identifiable records in protected statistical files would
be exempt from all of the disclosures in 552a(b) except for
(b)(4), to the Census Bureau and (b)(6), to the National
Archives. Other disclosures permitted under this bill are more
limited than those permitted by the Privacy Act. Disclosures
without consent must be for statistical purposes or for audits or
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law enforcement purposes directly related to the development and
maintenance of protected statistical files and to compliance with
the provisions of this bill.
For example, intra-agency disclosures are permitted (section 8(c)
of this bill), but only for statistical purposes, and if the
protected statistical file is held by a protected statistical
center, such disclosures are limited to employees of that center.
Disclosures for audits and evaluations are permitted (section
9(c) of this bill) but only where the audit or evalution relates
to the collection, compilation, processing and use of information
in protected statistical files. Disclosures for law enforcement
purposes are permitted only in connection with alleged violations
of this Act or a statute mandating truthful response to a
statistical inquiry, and any use of information as evidence must
be made under a protective order prohibiting disclosure to the
public.
Other provisions of the Privacy Act from which records in
protected statistical files are exempted are:
(c) Accounting of Certain Disclosures: The purpose of
requiring an accounting of disclosures from Privacy Act systems
of records is twofold: to allow individuals to know who has had
access to information about them and why, and to facilitate the
propagation of corrections or amendments to the record. The
former purpose is obviated by the strict limits in the bill on
who can have access to records in protected statistical files and
for what purpose. The propagation of corrections, which is vital
when information is used to take actions affecting individuals,
is not important to an individual in the statistical context,
where no decisions are made on the basis of the records.
(d) Access to records: The purpose of access is to allow
individuals to see and correct information that is used or
disclosed to make decisions or take actions affecting them.
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Since records in protected statistical files, by definition, are
not used to make decisions about individuals, access is of little
or no benefit to the subject. The Privacy Act already exempts
records that are "required by statute to be maintained and used
solely as statistical records" from individual access; this bill
extends that exemption to statutorily-protected records in
protected statistical files. (Of course, agencies would not be
precluded from allowing individuals to have access to their own
records.)
(e) (1) Maintain only relevant and necessary information: A
standard of "relevant and necessary" is important when informa-
tion is used to make decisions. However, in a statistical
context, the usual standard of relevance is meaningless since
there are no individual decisions by which to judge relevance or
necessity.
(e) (2) Collection from individuals for determinations: No
"determinations about an individual's rights, benefits, and
privileges" are made on the basis of research records, so this
provision of the Privacy Act would not be applicable to records
in protected statistical files.
(e)(3)(c) and (e)(4)(d) require notice to be provided of
routine uses that may be made of information (at the discretion
of an agency) in addition to the principal purposes for which
information was collected: In the case of a protected
statistical file, all routine uses that are compatible with the
exclusively statistical purposes of the file are completely
specified in section 9 of this bill. Since agencies have no
discretion to define any other routine uses, there will be no
occasion to provide notice of such action.
(e)(4)(G) and (H) System notice concerning access procedures:
Because this bill does not provide for access to records in
protected statistical files, the requirement for a notice of
access procedures would not apply.
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(e) (5) Accurate records for determinations: No determina-
tions are made based on records in protected statistical files,
so this provision of the Privacy Act would not apply.
-(e)(6) Dissemination of only accurate information outside the
Federal Government: Decisions affecting individuals are not
based on information from protected statistical files, so there
is no need to require greater accuracy than the design of the
statistical data system will already assure.
(e) (7) No First Amendment collection without consent or
statutory authorization: This prohibition is important when
information is used to make individual decisions, because
individuals must not feel that their rights, benefits, or
privileges can be affected by the exercise of their First
Amendment rights. However, the strict protections that this bill
provides for such information will allow statistical studies to
be conducted without having a "chilling effect" on an
individual's exercise of his First Amendment rights. Statistical
studies which preserve the anonymity of respondents should be the
preferred method of addressing any question concerning the
exercise of First Amendment rights.
(e) (8) Notice before disclosure under legal process: Infor-
mation so disclosed can only be used as evidence under a
protective order, and cannot be disclosed to the public, so the
interests of the individual are protected.
(e)(11) Publication of notice of change in routine uses: All
routine uses of records in protected statistical files are
completely specified in section 9 of this bill. Any change in
these routine uses would require an act of Congress.
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(f) Agency rules for access and contest: Access and contest
are not required for records in protected statistical files, so
the provision that agencies establish procedures is not
applicable.
(g), (i) Civil remedies, criminal penalties: These sanctions
which are geared to violations of the Privacy Act, apply only to
agencies and a few contractors and include only fines, actual
damages, and attorney fees. Section 15 of this bill provides for
higher fines, actual and general damages, injunctive relief, and
attorney fees, and apply to any agency, contractor, or other
person that violates the Act. Such strict penalties are
necessary to provide a strong deterrent to the disclosure of
sensitive information in protected statistical files.
(h) Rights of legal guardians: The Privacy Act does not
cover the records of deceased individuals, who can only exercise
their rights through their wills. Section 9(a) of this bill
details who can consent to disclosure of records including those
of a decedent.
(j), (k) General exemptions, specific exemptions: Records in
protected statistical files would have a separate exemption under
this bill, so they would not be subject to the provisions of the
other types of exemptions.
(m) Government contractors: This bill specifically subjects
Federal contractors to all of its provisions instead of the
limited application of this subsection of the Privacy Act.
(n) Mailing lists: The Privacy Act only prohibits the
unlawful disclosure of names and addresses for mailing lists.
This bill would absolutely prohibit the use of records in
protected statistical files for any non-statistical purpose.
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(q) Effect of other laws: This section of the Privacy Act
prohibits an agency from using another part of 5 U.S.C. section
552 to deny an individual access to his own records if the
Privacy Act permits such access. Since this bill would eliminate
the-requirement to grant access under the Privacy Act, this
Privacy Act provision would not be applicable.
(b) Conforming amendments to statutes governing confiden-
tiality for named protected statistical centers.
Seven agencies or organizational units are named as protected
statistical centers in section 6 of the bill.
For three of these units--the Bureau of Labor Statistics,
Department of Labor; the Statistical Reporting Service,
Department of Agriculture; and the Division of Science Resources
Studies, National Science Foundation--specific statutory
requirements for confidentiality are either non-existent or less
restrictive than those contained in this bill. No conforming
amendments were considered necessary for these three units.
Three other units--the Bureau of the Census and the Bureau of
Economic Analysis, Department of Commerce; and the National
Center for Health Statistics, Department of Health and Human
Services--have existing statutory confidentiality provisions
which would in some degree prohibit the disclosure of
individually identifiable information to other protected
statistical centers, as provided in section 8 of this bill. In
addition, the disclosure of establishment lists for statistical
purposes, as provided in section 11 of this bill, would not be
possible where the lists originated with these agencies. Within
the Executive branch, considerable work has already been done on
the drafting of legislation to make possible the disclosure for
statistical purposes of one particular kind of list--the Standard
Statistical Establishment List--access to which is urgently
needed by statistical agencies to reduce the cost of conducting
business surveys and to improve the quality and comparability of
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economic data compiled by different agencies. The provisions of
that draft legislation have been incorporated into this bill.
Conforming amendments for these three units provide that the
confidentiality of information furnished to them for statistical
purposes shall be governed by the provisions of this bill.
A conforming amendment to section 1106 of the Social Security Act
is included to permit the Office of Research and Statistics of
the Social Security Administration, Department of Health and
Human Services to function as a protected statistical center. In
addition to making the statistical files maintained by the Office
of Research and Statistics subject to the provisions of this
bill, this amendment protects individually identifiable informa-
tion in those files from disclosure for use in connection with
the Child Support Enforcement Program, as is now required by
section 1106.
(c) Conforming amendment to section 6103 of the Internal
Revenue Code.
The Tax Reform Act of 1976 substantially revised the conditions
under which "return information" can be disclosed to other
agencies and persons. Disclosure is prohibited except where
permitted under one of the specific provisions of section 6103 of
the Internal Revenue Code. These provisions specify what kinds
of return information shall or may be disclosed, to whom, and for
what purposes. Subsection 6103(j) permits disclosure of certain
kinds of return information for statistical use to four agencies
or organizational units--the Bureau of the Census and the Bureau
of Economic Analysis in the Commerce Department (6103(j)(1)), the
Division of Financial Statistics in the Bureau of Economics of
the Federal Trade Commission (6103(j)(2)), and to units within
the Department of Treasury (6103(j)(3)) such as the Office of Tax
Analysis. All such disclosures must be requested in writing
stating the specific kinds of return information needed and the
statistical uses to be made of the information.
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The benefits to be derived from the disclosure of IRS return
information, even for statistical purposes, must be carefully
weighed against the overriding importance of being able to assure
taxpayers that extraordinary precautions will be taken to prevent
misuse of the information they are obliged to provide to IRS.
Disclosure of some return information for statistical purposes to
agencies and organizational units other than those presently
named in subsection 6103(j) of the Internal Revenue Code could
lead to substantial benefits in terms of improving the quality
and lowering the cost of statistical data needed for public
policy purposes. Although direct collection of data for
statistical purposes accounts for only a small part of the total
paperwork burden, there is a potential for further reduction of
the burden from this source.
The most important example of such potential benefits occurs in
connection with the Standard Statistical Establishment List
(SSEL). The SSEL is an up-to-date directory of business
establishments maintained by the Bureau of the Census. Because
it includes some return information, it cannot be made available
to other agencies for statistical purposes, as was originally
intended while it was being developed. Consequently, business
surveys conducted by other agencies cost more than they otherwise
would and the results lack comparability with census data.
This bill provides for the disclosure of SSEL information from
the Census Bureau to other Federal agencies for statistical
purposes only. This would be accomplished by amending 26 U.S.C.
6103(j)(1) to permit IRS to disclose returns and return
information to the Census Bureau for the purpose of maintaining
the SSEL. Amending 26 U.S.C. 6103(j)(4) permits redisclosure of
SSEL information to other Federal agencies for statistical
purposes only and gives effect to the special protections for tax
return information provided in sections 11 and 13 of this bill.
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(d) Conforming amendments to allow the designation of
protected statistical files by statistical units of the
Department of Energy and the Department of the Treasury.
The amendment to section 205 of the Department of Energy
Organization Act relieves of the EIA Administrator of disclosure
requirements which conflict with the creation and use of
protected statistical files. The first paragraph of the new
subsection (i) provides a procedure consistent with the mission
of the Energy Information Administration for designating
protected statistical files. (Under subsection 5(c) of this
bill, the necessary determinations must be made by the Secretary
with the concurrence of the Director of OMB).
The second paragraph relieves employees of the Energy Information
Administration of any disclosure obligation with respect to
protected statistical files which would otherwise conflict with
the provisions of this bill. It also allows EIA to lawfully
enter into cooperative statistical agreements with other agencies
or units that create or maintain protected statistical files.
The amendment to section 7214 of Title 26 allows statistical
employees of the Department of the Treasury to preserve the
confidentiality of information in protected statistical files
without violating the provisions of that section. In the case of
a protected statistical file derived from return information,
this change would have little effect on the objective of section
7214 since the same information would be available to other
Treasury employees from the original administrative files for the
detection of tax violations and fraud. The amendment would
however allow statistical units of the Department to participate
in cooperative statistical projects with other statistical units
which might entail some
another agency. In
would be required to
could do so without
Revenue Code.
access to protected statistical files of
this case Treasury statistical employees
abide by the provisions of this bill and
violating section 7214 of the Internal
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