Understanding the Disclosure of Records in a System of Records under the Privacy Act

The Privacy Act of 1974, codified at 5 U.S.C. § 552a, is a pivotal piece of legislation that governs how federal agencies collect, maintain, use, and disclose personal information about individuals. This act is designed to protect the privacy of individuals while allowing federal agencies to perform their functions effectively. One of the most critical components of the Privacy Act is the regulation surrounding the disclosure of records contained in a system of records.

In this blog post, we will explore the conditions under which agencies can disclose records, the exceptions to the general rule of non-disclosure, and the implications for both individuals and agencies.

The General Rule: No Disclosure Without Consent

The Privacy Act establishes a fundamental principle: no agency shall disclose any record contained in a system of records by any means of communication to any person or another agency without the prior written consent of the individual to whom the record pertains. This is articulated in 5 U.S.C. § 552a(b), which emphasizes the importance of individual consent in protecting personal information.

The Importance of Consent

The requirement for consent serves several purposes:

1. Protection of Individual Privacy: It ensures that individuals have control over their personal information and can decide who has access to it.
2. Transparency: It promotes transparency in government operations by requiring agencies to inform individuals about how their information is used and shared.
3. Accountability: By requiring consent, agencies are held accountable for their handling of personal information.

Exceptions to the No Disclosure Rule

While the Privacy Act strongly favors individual consent, it also recognizes that there are circumstances where disclosure may be necessary or appropriate. The Act outlines twelve specific exceptions under which agencies may disclose records without consent. These exceptions are detailed in 5 U.S.C. § 552a(b)(1) through (b)(12) and include:

1. Need to Know Within Agency: Disclosure to officers and employees of the agency who need the record to perform their duties (5 U.S.C. § 552a(b)(1)).
2. Freedom of Information Act (FOIA) Disclosure: Required disclosures under the FOIA (5 U.S.C. § 552a(b)(2)).
3. Routine Uses: Disclosure for routine uses that are compatible with the purpose for which the record was collected (5 U.S.C. § 552a(b)(3)).
4. Bureau of the Census: Disclosure to the Census Bureau for planning or carrying out a census or related survey (5 U.S.C. § 552a(b)(4)).
5. Statistical Research: Disclosure for statistical research if the record is de-identified (5 U.S.C. § 552a(b)(5)).
6. National Archives: Disclosure to the National Archives for records management purposes (5 U.S.C. § 552a(b)(6)).
7. Law Enforcement Requests: Disclosure to law enforcement agencies for law enforcement purposes (5 U.S.C. § 552a(b)(7)).
8. Health or Safety of an Individual: Disclosure to protect the health or safety of an individual (5 U.S.C. § 552a(b)(8)).
9. Congressional Investigations: Disclosure to either House of Congress for congressional investigations (5 U.S.C. § 552a(b)(9)).
10. Comptroller General: Disclosure to the Comptroller General or authorized representatives for the performance of duties (5 U.S.C. § 552a(b)(10)).
11. Court Order: Disclosure pursuant to a court order (5 U.S.C. § 552a(b)(11)).
12. Consumer Reporting Agencies: Disclosure to consumer reporting agencies in accordance with specific provisions (5 U.S.C. § 552a(b)(12)).

Implications of Exceptions

These exceptions provide agencies with the flexibility to share information when necessary, but they also come with responsibilities. Agencies must ensure that any disclosure made under these exceptions is compliant with the specific conditions outlined in the Privacy Act. For instance, disclosures made for law enforcement purposes must be justified and documented appropriately.

Accounting for Disclosures

The Privacy Act also mandates that agencies maintain an accounting of disclosures made from their systems of records. According to 5 U.S.C. § 552a(c)(1), agencies must keep a record of:

1. A brief description of the record disclosed.
2. The date, nature, and purpose of the disclosure.
3. The name and address of the individual, agency, or other entity to whom the disclosure was made.

This accounting must be retained for at least five years or for the life of the record, whichever is longer. This requirement ensures transparency and accountability in the handling of personal information.

The Role of the Office of Government Ethics (OGE)

The Office of Government Ethics (OGE) plays a crucial role in overseeing the implementation of the Privacy Act within the executive branch. The OGE's regulations, as outlined in 5 CFR Part 2606, provide guidance on how federal agencies should handle records and disclosures. The OGE emphasizes the need for compliance with the Privacy Act's provisions, particularly regarding the treatment of personal information.

OGE's Guidelines for Disclosure

Under OGE guidelines, disclosures should only occur when they meet the criteria established by the Privacy Act. For example, disclosures made to employees within the agency must be based on a demonstrated need to know. Additionally, when records are disclosed for routine uses, agencies must ensure that the use aligns with the original purpose for which the records were collected.

Individual Rights Under the Privacy Act

The Privacy Act not only regulates agency disclosures but also grants individuals specific rights regarding their records. Individuals have the right to:

1. Access Records: Individuals can request access to records maintained about them, allowing them to review the information held by federal agencies.
2. Amend Records: If individuals believe that their records are inaccurate, irrelevant, or incomplete, they have the right to seek amendments to those records.
3. File Complaints: Individuals can file complaints if they believe their rights under the Privacy Act have been violated.

These rights empower individuals and provide a mechanism for them to challenge any inaccuracies or unauthorized disclosures of their personal information.

Conclusion

The disclosure of records in a system of records under the Privacy Act is a complex process governed by strict rules and exceptions. While the general principle is that no agency may disclose records without consent, the twelve exceptions provide necessary flexibility for agencies to fulfill their responsibilities.

Understanding these rules is crucial for both individuals and agencies. Individuals must be aware of their rights and the circumstances under which their information may be disclosed, while agencies must navigate the requirements of the Privacy Act to ensure compliance and protect individual privacy.

In an era where personal information is increasingly at risk, the Privacy Act serves as a vital safeguard, balancing the need for government transparency and efficiency with the fundamental right to privacy.

References

1. eCFR :: 5 CFR Part 2606 -- Privacy Act Rules. https://www.ecfr.gov/current/title-5/chapter-XVI/subchapter-A/part-2606
2. Privacy Act. https://armyrotc.army.mil/privacy-act/
3. BigID. Government Agencies and the Privacy Act 1974. https://bigid.com/blog/what-government-agencies-need-to-know-for-privacy-act-1974/
4. FOIA.gov - Freedom of Information Act: Frequently Asked Questions (FAQ). https://www.foia.gov/faq.html
5. Office of Privacy and Civil Liberties | Overview of the Privacy Act: 2020 Edition. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties