Privacy Act

AuthorWilliam Funk - Jeffrey S. Lubbers
5 U.S.C. § 552a (2012), enacted December 31, 1974, by Pub. L. No. 93-
579, § 3, 88 Stat. 1897; significantly amended by Pub. L. No. 94-183, §
2(2), 89 Stat. 1057, December 31, 1975; Pub. L. No. 97-365, § 2, 96 Stat.
1749, October 25, 1982; Pub. L. No. 97-375, title II, § 201(a), (b), 96 Stat.
1821, December 21, 1982; Pub. L. No. 97-452, §2(a)(1), 96 Stat. 2478,
January 12, 1983; Pub. L. No. 98-477, § 2(c), 98 Stat. 2211, October 15,
1984; Pub. L. No. 98-497, title I, §107(g), 98 Stat. 2292, October 19, 1984;
Pub. L. No. 100503, §§ 28, 102 Stat. 2507-2514, October 18, 1988; and Pub.
L. No. 101-508, title VII, §7201(b)(1), 104 Stat. 1388-(3), November 5,
1990; Pub. L. No. 103-66, title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107
Stat. 611, August 10, 1993; Pub. L. No. 104-193, title I, § 110(w), 110 Stat.
2175, August 22, 1996; Pub. L. No. 104-226, § 1(b)(3), 110 Stat. 3033,
October 2, 1996; Pub. L. No. 104-316, title I, § 115(g)(2)(b), 110 Stat.
3835, October 19, 1996; Pub. L. No. 105-34, title IX, subtitle C, § 1026(b)(2),
111 Stat. 925, August 5, 1997; Pub. L. No. 105-362, title XIII, § 1301(d),
112 Stat.3292, November 10, 1998; Pub. L. No. 108-271, 118 Stat. 814,
July 7, 2004; Pub. L. No. 111-148, Title VI, § 6402(b)(2), 124 Stat. 756,
March 23, 2010; Pub. L. No. 111-203, Title X, § 1082, 124 Stat. 2080, July
21, 2010; Pub. L. No. 113-295, Div. B, Title I, § 102(c), 128 Stat. 4062,
December 19, 2014.
Lead Agency:
Office of Management and Budget, 725 17th Street, NW, Washington,
DC 20503, (202) 395-4852.
The Privacy Act of 1974 represents the Congressional response to con-
cerns about government uses of information collected about private individu-
als. The Act gives individuals greater control over gathering, dissemination,
and ensuring accuracy of information collected about themselves by agen-
cies. (Miller v. U.S., 630 F. Supp. 347 (E.D.N.Y. 1986)). The main purpose
of the Act is to forbid disclosure unless it is required by the Freedom of
Information Act. (Lovell v. Alderete, 630 F.2d 428 (5th Cir. 1980)). To pro-
tect individual privacy, the Act constrains executive branch recordkeeping,
defines the individual’s right to access certain records, limits agency disclo-
sure of records containing an individual’s private information, establishes
safeguards to protect records concerning individuals, and provides remedies
for agency violation of the Act’s provisions.
Scope. The Act covers records maintained by agencies as defined in FOIA.
The Act applies to Cabinet level departments, independent regulatory agen-
cies, military departments, and government corporations (5 U.S.C. §
552a(a)(1)). It does not apply to the legislative branch, national banks (U.S.
v. Miller, 643, F.2d 713 (10th Cir. 1981)), or Amtrak (Ehm v. National R.R.
Passenger Corp., 732 F.2d 1250 (5th Cir. 1984), cert. denied, 469 U.S. 982
(1984)). See Alexander v. FBI, 971 F. Supp. 603, 606-07 (D.D.C. 1997)
(although recognizing that the definition of “agency” under Privacy Act is
same as in FOIA and that courts have interpreted that definition under FOIA
to exclude the President’s immediate personal staff and units within Execu-
tive Office of the President whose sole function is to advise and assist the
President, nevertheless rejecting such limitation with regard to “agency” as
used in Privacy Act due to different purposes that the two statutes serve);
Shannon v. General Elec. Co., 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y.
1993) (“no dispute” that GE falls within definition of “agency” subject to
requirements of Privacy Act where pursuant to contract it operated Depart-
ment of Energy-owned lab under supervision, control, and oversight of de-
partment and where by terms of contract GE agreed to comply with Privacy
A record is a collection or grouping of information about an individual
that, for example, may include educational, financial, or biographical infor-
mation, together with personal identifiers such as names, photos, numbers, or
fingerprints. (5 U.S.C. § 552a(a)(4)). It does not apply to all government
records and documents that may contain an individual’s name or other pri-
vate information. For example, it does not include private notes of a supervi-
sor if such notes are not used by the agency to make decisions (Johnston v.
Horne, 875 F.2d 1415 (9th Cir. 1989)), but such notes may become subject to
the Act if they become part of an agency’s decision. (Chapman v. NASA, 682
F.2d 526 (5th Cir. 1982), cert. denied, 469 U.S. 1038 (1984)). It also does
not apply to information in documents obtained from independent sources of
information, even though identical information may be in an agency’s system
of records (Thomas v. DOE, 719 F.2d 342 (10th Cir. 1983)).
The Act focuses on “systems of records” established, maintained, or con-
trolled by an agency. A “system of records” is a group of any records where
individual names or other individual identifiers can be used to retrieve the
information (5 U.S.C. § 552a(a)(5)). Agencies may maintain records cov-
ered by the Act only when they are relevant and necessary to accomplish the
agency’s purpose (5 U.S.C. § 552(e)(1)). The Court of Appeals for the Dis-
trict of Columbia Circuit addressed the “system of records” definition in the
context of computerized information in Henke v. U.S. Dep’t of Commerce, 83
F.3d 1453 (D.C. Cir. 1996), and noted that “the OMB guidelines make it
clear that it is not sufficient that an agency has the capability to retrieve
information indexed under a person’s name, but the agency must in fact
retrieve records in this way in order for a system of records to exist.Id. at
1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is re-
trieved” in the statute’s definition of a system of records and focused on
whether the agency “in practice” retrieved information. Id. at 1459-61.
Access to Records. Where the agency is authorized to keep records cov-
ered by the Act, an individual has a right of access to records concerning him
or her. This is a central protection of the Act for individuals. The individual
has a right to:
Copy any or all of the record (§ 552a(d)(1));
Request amendment of the record (§ 552a(d)(2)) and to file a con-
cise statement of disagreement if the agency refuses to amend the
record that will be provided to all persons to whom the record is
disclosed (§ 552a(d)(4));
Request an accounting from the agency on the date, nature, and pur-
pose of each disclosure of the record (§ 552a(c)).
The individual has an absolute right to access and need not provide any
reason for seeking access (FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980)).
Agency Requirements. For each system of records an agency main-
tains, it must:

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