PRIVACY ACT OF 1974

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700150086-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 12, 2016
• Document Release Date: January 10, 2002
• Sequence Number: 86
• Publication Date: December 17, 1974
• Content Type: OPEN

ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FROM:
OLC
EXTENSION
NO.
7D35 HQ
6136
DATE 18 December 1974
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1.
Attached is the text of the
Privacy Act, S. 3418, as it
2.
passed the Senate. Our
exemption is section (j)(1).
Note that section (c)(4) on
3.
page S. 21813 was erroneously
included in our exemption; it is
4
being dropped by the House.
House passage is expected without
change and the bill should go
5.
to the President for signature
on Friday, 20 December.
6.
ST
TINTL
7,
Assistant Legislative Counsel
8.
9.
10.
11.
12.
13.
14.
STATINTL
15.
Approved For Releas
2002/0
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00527R000700150086-4
3-62 610 USE EDITIO S ^ SECRET
^ CONFIDENTIAL ^
INTERNAL UNCLASSIFIED
USE ONLY
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'%" - 1808 CONGRESSIONAL RECORD - SENATE December 17, 1974
airmail rates, and shall further consider the
competitive disadvantage to U.S. flag air
carriers resulting from foreign air carriers
receiving Universal Postal Union rates for the
carriage of U.S. mail and the national origin
mail of their own countries."
Mr. CANNON. Mr. President, this
amendment simply eliminates the re-
quirement that the UPU be paid for car-
riage of foreign mail transportation and
requires that that must be a factor taken
into consideration by the Civil Aeronau-
tics Board in fixing the rates.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment.
Mr. GOLDWATER. Mr. President, I
have a question of the Senator from
Nevada. Would this have a salutary
effect on Pan American's-
Mr. CANNON. Yes. The answer to the
question is that this would have a salu-
tary effect. The provision that we have
requires the Board to act immediately in
fixing a temporary rate pending the out-
come of the mail rate case that is now
under consideration before the Board.
The passage of this bill would result in
an increased payment to Pan Am upon
the determination of the fair and reason-
able rate to be paid, which has to be
determined by the end of this month by
the Civil Aeronautics Board.
In addition, it has certain policy mat-
ters set forth in the bill that we have
already acted on that are going to re-
quire the Department of State and the
Board to get off the dime and try to
help the U.S. air carriers, to try to pro-
hibit discrimination against U.S. air car-
riers that is carried on at the present
time.
Mr. GOLDWATER. I thank the Sena-
tor very much.
Mr. CANNON. Mr. President, I move
that the Senate concur in the House
amendment, with the amendment that
we have just submitted.
Tb . SIDING OFFICER. The ques-
tion is on agreeing to the motion.
The motion was agreed to.
PRIVACY ACT OF
Mr. ERVIN. Mr. President
Chair to lay before the Sen
sage from the House of Rep
on S. 3418.
The PRESIDING OFFICE
fore the Senate the amendm
House of Representatives
(S. 3418) to establish a Priv
1974
, I ask the
ate a mes-
resentatives
R laid be-
ents of the
to the bill
acy Protec-
tion Commission, to provide manage-
ment systems in Federal agencies and
certain other organizations with respect
to the gathering and disclosure of in-
formation concerning individuals, and
for other purposes, as follows:
Strike out all after the enacting clause,
and insert: That this Act may be cited as
the "Privacy Act of 1974".
SEC. 2. (a) The Congress finds that-
(1) the privacy of an individual is di-
rectly affected by the collection, mainte-
nance, use, and dissemination of personal
information by Federal agencies;
(2) the increasing use of computers and
sophisticated information technology, while
essential to the efficient operations of tha
Government, has greatly magnified the harm
to individual privacy that can occur from
any collection, maintenance, use, or dis-
semination of personal information;
(3) the opportunities for an individual to
secure employment, Insurance, and credit,
and his right to due process, and other legal
protections are endangered by the misuse
of certain information systems;
(4) the right to privacy is a personal and
fundamental right protected by the Consti-
tution of the United States; and -
(5) in order to protect the privacy of in-
dividuals identified in information systems
maintained by Federal agencies, it is neces-
sary and proper for the Congress to regulate
the collection, maintenance, use, and dis-
semination of information by such agencies.
(b) The purpose of this Act is to provide
certain safeguards for an individual against
an invasion of personal privacy by requiring
Federal agencies, except as otherwise pro-
vided by law, to-
(1) permit an individual to determine
what records pertaining to him are collected,
maintained, used, or disseminated by such
agencies;
(2) permit an Individual to prevent rec-
ords pertaining to him obtained by such
agencies for a particular purpose from being
'used or made available for another pur-
pose without his consent;
(3) permit an individual to gain access
to information pertaining to him in Federal
agency records, to have a copy made of all
or any portion thereof, and to correct or
amend such records;
(4) collect, maintain, use, or disseminate
any record of identifiable personal informa-
tion in a manner that assures that such ac-
tion Is for a necessary and lawful purpose,
that the information is current and accurate
for its intended use, and that adequate safe-
guards are provided to prevent misuse of
such information;
(5) permit exemptions from the require-
ments with respect to records provided in
this Act only in those cases where there Is an
important public policy need for such exemp-
tion as has been determined by specific stat-
utory authority; and
(6) be subject to civil suit for any dam-
ages which occur as a result of willful, arbi-
trary, or capricious action which violates any
individual's rights under this Act.
,SEc. 3. Title 6, United States Code, is
amended by adding after section 552 the fol-
lowing new section:
"i 552a. Records maintained on individuals
"(a) DEFINITIONS.-For purposes of this
section-
"(1) the term 'agency' means agency as
defined in section 562(e) of this title;
"(2) the term 'individual' means a citizen
of the United States or an alien lawfully ad-
mitted for permanent residence;
"(3) the term 'maintain' includes main-
tain, collect, use, or disseminate;
"(4) the term 'record' means any collec-
tion or grouping of information about an
individual that is maintained by an agency
and that contains his name, or the Identify-
ing number, symbol, or other identifying
particular assigned to the individual;
"(5) the term 'system of records' means
a group of any records under the control of
any agency from which information is
retrieved by the name of the individual or by
some identifying number, symbol, or other
identifying particular assigned to the individ-
ual; and
"(6) the term 'statistical research or re-
porting record' means a record in a system
of records maintained for statistical research
or reporting purposes only and not used in
whole or in part in making any determina-
tion about an identifiable individual, except
as provided by section 8 of title 13.
" (b) CONDITIONS or DISCLOSURE: NO agen-
cy shall disclose any record which is con-
tained in a system of records by any means
of communication to any person, or to an-
other agency, except pursuant to a written
request by, or with the prior written consent
of, the. individual to whom the record per-
tains, unless disclosure of the record would
be-
"(1) to those officers and employees of
the agency which maintains the record who
have a need for the record in the perform-
ance of their duties;
"(2) for a routine use described under sub-
section (e) (2) (D) of this section;
"(3) to the Bureau of the Census for pur-
poses of planning or carrying out a census or
survey or related activity pursuant to the
provisions of title 13;
"(4) to a recipient who has provided the
agency with advance adequate written assur-
ance that the record will be used solely as
a statistical research or reporting record, and
the record is to be transferred in a form that
Is not individually identifiable;
"(5) to the National Archives of the United
States as a record which has sufficient his-
torical or other value to warrant Its con-
tinued preservation by the United States
Government, or for evaluation by the Ad-
ministrator of General Services or his desig-
nee to determine whether the record has
such value;
"(6) to another agency or to an Instru-
mentality of any governmental jurisdiction
within or under the control of the United
States for a law enforcement activity if the
activity is authorized by law, and if the
head of the agency or instrumentality has
made a written request to the agency which
maintains the record specifying the partic-
ular portion desired and the law enforcement
activity for which the record is sought;
"(7) to a person who is actively engaged
In saving the life of such individual, if upon
such disclosure notification is transmitted
to the last known address of such individual;
"(8) to either House of Congress, or, to the
extent of matter within its jurisdiction, any
committee or subcommittee thereof, or any
joint committee of Congress or subcommit-
tee of any such, joint committee; or
"(9) pursuant to the order of a court of
competent jurisdiction.
"(c) ACCOUNTING OF CERTAIN DLsCLO-
suREs.--Each agency, with respect to each
system of records under its control, shall-
"(1) except for disclosures made under
subsection (b) (1) of this section or dis-
closures to the public from records which by
law or regulation are open to public inspec-
tion or copying, keep an accurate account-
ing of-
"(A) the date, nature, and purpose of
each disclosure of a record to any person or
to another agency made under subsection
(b) of this section; and
"(B) the name and address of the person or
agency to whom the disclosure is made;
"(2) retain the accounting made under
paragraph (1) of this subsection for at least
five years after the disclosure for which the
accounting Is made;
"(3) except for disclosures made under
subsection (b) (6) of this section, make the
accounting made under paragraph (1) of
this subsection available to the individual
named in the record at his request; and
"(4) inform any person or other agency
about any correction or notation of dispute
made by the agency in accordance with sub;
section (d) of this section of any record that
has been disclosed to the person or agency
within two years preceding the making of
the correction of the record of the individ-
ual, except that this paragraph shall not
apply to any record that was disclosed prior
to the effective date of this section or for
which no accounting of the disclosure is re-
quired.
"(d) ACCESS TO RECORDS.--Each agency
that maintains a system of records shall-
"(1) upon request by any individual to
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December 17, 1971 CONGRESSIONAL RECORD - SENATE
State must report back to the Secretary
of Transportation *yho, with the ap-
involved as a condition
country.
The Secretary of the
cretary of
payments
in order to compensate the,
money they are forced to pay
for the
are necessary to create a mechanis
those payments.
teruational agreement of the various na-
tiorLal postal administrations, including
the United States, in the Universal Postal
Un'on-UPU. According to testimony in
our hearings, foreign flag airline com-
petitors received from the U.S. Govern-
ment last year a mail transportation rate
over six times higher than that paid to
the U.S.-flag airlines.
In contrast, most other nations of the
world pay their international airlines
the higher, internationally agreed upon
mail rate for the transportation of inter-
national mail. U.S. airlines compete in
passenger and cargo markets with these
same airlines at rates that are agreed
to by International airlines and their
governments to assure international
parity for similar air transport services.
However, in the case of mail payments,
the third major source of international
airline revenue, such parity does not
exist. As a result ofthis disparity in mail
when the U.S. Government arranges for
the movement of people or goods to or
between foreign ports. The Comptroller
General of the United States is author-
ized to approve payments to other car-
riers only when there is a showing that
it was necessary to engage their services
in the particular Instance.
Section 6 amends section 2 of the In-
ternational Travel Act of 1961 (22
U.S.C. 2122) in order to direct the Sec-
retary of Commerce to promote and en-
courage travel to and from the United
States on U.S. air carriers.
Mr. President, the only controversy
over this bill arises out of differing views
on the question of postal rates paid for
the international carriage of airmail-
rates paid by the United States to our
carriers, rates paid by the United States
to. foreign carriers, and rates paid by
foreign govennients to their carriers and
others for the transportation of air mail.
Section 4 of the House-passed bill con-
tains an amendment passed on the House
floor by a narrow margin which was not
supported by the Senate or by the House
Committee on Interstate and Foreign
Commerce when it reported this bill to
the House floor. The amendment Is
known as the Murphy amendment or the
UPU amendment to most of my col-
leagues. This provision amends the Fed-
deral Aviation Act to eliminate discrimi-
nation which now exists in rates paid to
U.S.- and foreign-flag airlines by the U.S.
Postal Service for the transportation of
U.S. international mail. The provision
precludes payment by our own Govern-
ment of mail transportation rates to
U.S.-flag airlines lower than those paid
to foreign-flag airlines.
The Federal Aviation Act empowers the
CAB to set the rate to be paid U.S.-flag
airlines for the transportation of Inter-
national air mail. The rate being paid
today, basically unchanged since 1968,
averages $0.31 per ton-mile despite sub-
stantial increases in airline costs and de-
spite substantial increases in postal serv-
ice revenue for international mail.
foreign flag airlines up to $1.73 per ton- board finds appropriate. However, the
mile for letter class mail, and 57.7 cents amendment admonishes the Board in
per ton-mile for all other classes of mall. setting such rates that-
This higher payment is the maximum It shall take into consideration rates paid
rate for the air transportation of mail for transportation of mail pursuant to the
which is established periodically by in- universal postal union convention as rati-
craft in foreign air transportati In estab-
Iishing such rates, the Board shal ake into
consideration rates paid for transportation
of mail pursuant to the Universal Postal
Union Convention as ratified by the United
States Government, shall take into account
all of the rate-making elements employed by
the Universal Postal Union in fixing its
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tine inefficiencies of
s,ir carriers.
In effect, we believe th U mate is all
Indirect subsidy for carr g the mail
which many nations choose pay their
air carriers and other air car rs with-
out regard to realistic costs. Ile we
realize that this Indirect subsi ation
provides a competitive advanta to
lnanv foreign airlines. we do not beve
S 21807
fled by the United States Government, shall
take into account all of the rate-making
elements employed by the Universal Postal
Union in fixing its airmail rates and shall
further consider the competitive disadvan-
tage to U.S. flag air carriersresulting from
foreign air carriers receiving universal
postal union rates for the carriage of U.S.
mail and the national origin mail of their
own countries.
Mr. President, we think that this is a
fair and equitable amendment and will
result in mail rates that are just and
reasonable taking into account all car-
riers' costs, including the ever-rising cost
of fuel and a reasonable return on in-
vestment. While we are aware that there
has been considerable lobbying of the
Congress by Pan American Airways and
its employees over the UPU postal rate,
we still do not believe that that rate is
justified by the facts. We In the Com-
merce Committee feel that this bill as
I have proposed to amend it will be very
helpful in the future in making a better
competitive climate in the international
area without the need for indirect sub-
sidy from the international arena. .
I urge my colleagues to support this
bill as I have proposed to amend it and
send it back to the, House in hopes that
the House might accept our amendment
so as to Insure final passage and Presi-
dential signature this year.
Now, Mr. President, there was a hold
placed on the bill by both Senators Mc-
GEE and PRoxMIRE. The amendment that
I am offering is satisfactory to' them.
The proposed amendment has been ap-
proved by the Commerce Committee, as I
have stated, as of this morning.
Mr. President, I send the amendment
to the desk and ask that It be stated.
The PRESIDING-OFFICER. The clerk
will report.
The assistant legislative clerk read as
follows;
On page 4, strike section 4 In its entirety
and insert in lieu thereof: "Rates for trans-
portation of United States mail in foreign
air transportation."
that that fact requires that the Unifd xne amendmenT, is as Iouows:
States indirectly subsidize its privately on page 4, strike section 4 in its entirety
owned airlines. Second, If the United and insert in lieu thereof;
States paid the UPU postal rates to all TES FOR TRANSPORTATION OF UNITED STATES
U.S. international airlines, the rate in- AIL IN FOREIGN AIR TRANSPORTATION
crease would go to the financially healthy . 4. Subsection (h) of section 406 of
International carriers as well as the rela- the eras Aviation Act of 1958 (49 U.S.C.
tively weak. In other words, U.S. 1376) 1 mended by inserting "(1)" Imme-
carriers not now experiencing financial diately r "(h) ", and by adding at the end
thereof th
difficulty would receive windfall revenues "(2) following new paragraph:
r
under the UPU rate which we do not Breac of State
taekeanall and d the h necessary
a
master Gener each h shall take believe are justified. and appropria actions to assure that the
Accordingly, the Senate Commerce rates paid for e transportation of mail
Committee today approved all amend- pursuant to the versal Postal Union Con-
ment to S. 3481, as passed by the House, vention shall not higher than fair and
which would strike the mandatory UPU reasonable rates for uch services. The Sec-
postal rates from the House bill and sub- retary of State and e Postmaster General
stitute a provision similar to the Origin al shall oppose any pres t or proposed Uni-
versal Postal Union ra which are higher
Senate bill. than such fair and re unable rates.
In effect, the committee amendment "(3) The Civil Aeronauti Board shall act
continues to leave with the CAB the re- expeditiously on any propo d changes in
for U.S. carriers at a level no
the current Universal Postal
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December 17, 1974 CONGRESSIONAL RECORD -SENATE
gain access to his record or to any informa-
tion pertaining to him which is contained in
the system, permit him to review the record
and have a copy made of all or any portion
thereof in a form comprehensible to him;
"(2) permit the individual to request
amendment of a record pertaining to him
and either-
"(A) make any correction of any portion
thereof which the individual believes is not
accurate, relevant, timely, or complete; or
"(B) promptly inform the individual of
its refusal to amend the record in accord-
ance with his request, the reason for the
refusal, the procedures' established by the
agency for the individual to request a re-
view by the agency of that refusal, and the
name and business address of the official
within the agency to whom the request for
review may be taken;
"(3) permit any individual who disagrees
with the refusal of the agency to amend his
record to request review of the refusal by the
official named in accordance with paragraph
(2) (B) of this subsection; and if, after the
review, that official also refuses to amend the
record in accordance with the request, per-
mit the individual to file with the agency a
concise statement setting forth the reasons
for his disagreement with the refusal of the
agency;
"(4) in any disclosure, containing infor-
mation about which the individual has filed
a statement of disagreement, occurring after
the filing of the statement under paragraph
'(3) of this subsection, clearly note any por-
tion of the record which -is disputed. and,
upon request, provide copies of the state-
ment and, if the agency deems it appropriate,
copies of a concise statement of the reasons
of the agency for not making the amend-
ments requested, to persons or other agen-
cies to whom the disputed record has been
disclosed; and
"(5) nothing in this section shall allow
an individual access to any information com-
plied ,in reasonable anticipation of a civil
action or proceeding.
"(e) AGENCY REQUIREMENTS.-Each agen-
cy that maintains a system of records
shall-.
"(1) inform each individual whom it asks
to supply information, on the form which
it uses to collect the information or on a
separate form that can be retained by the
Individual-
"(A) which Federal statute or regula-
tion, if any, requires disclosure of the in-
formation;
"(B) the principal purpose or purposes
for which the information 1s intended to be
used;
"(C) other purposes for which the informa-
tion may be used, as published pursuant
to paragraph (2) (D) of this subsection; and
"(D) the effects on him, if any,. of not
providing all or any part of the requested
information;
"(2) subject to the provisions of para-
graph (5) of this subsection, publish in the
Federal Register at least annually a notice
of the existence and character of the sys-
tem of records, which notice shall Include-
"(A) the name and location of the sys-
tem;
"(B) the categories of individuals on
whom records are maintained in the system;
"(C) the categories of records maintained
in the system;
_"(D) each routine purpose for which the
records contained in the system are used
or intended to be used, including the cate-
gories of users of the records for each such
purpose;
"(E) the policies and practices of the
agency regarding storage, retrievability,
access controls, retention, and disposal of
the records;
"(F) the title and business address of
the agency official who is responsible for
the system of records;
"(G) the agency procedures whereby an
Individual can be notified at his request if
the system of records contains a record
pertaining to him; and
"(H) the agency procedures whereby an in-
dividual can be notified at his request how
he can gain access to any record pertaining
to him contained in the system of records,
and how he can contest its content;
"(3) maintain all records which are used
by the agency in making any determination
about any individual with such accuracy,
relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to
the individual in the determination;
"(4) maintain no record concerning the
political or religious belief or activity of any
individual, unless expressly authorized, by
statute or by the individual about whom
the record is maintained: Provided, however,
That the provisions of this paragraph shall
not be deemed to prohibit the maintenance
of any record of activity which is pertinent
to and within the scope of a duly authorized
law enforcement activity; and
"(5) at least 30 days prior to publication
of information under paragraph (2) (D) of
this subsection published in the Federal
Register notice of the use or intended use of
the information in the system, and provide
an opportunity for interested persons to sub-
mit written data, views, or arguments to the
agency.
"(f) AGENCY RULES.-In order to carry out
the provisions of this section, each agency
that maintains a system of records shall
promulgate rules, in accordance with the re-
quirements (including general notice) of
section 553 of this title, which shall-
"(1) establish procedures whereby an in-
dividual can be notified in response to his re-
quest if any system of records named by the
individual contains a record pertaining to
him;
"(2) define reasonable times, places, and
requirements for identifying an individual
who requests his record or information per-
taining to him before the agency shall make
the record or information available to the
individual;
"(3) establish procedures for the disclosure
to an individual upon his request of his
record or information pertaining to him,
including special procedure, if deemed neces-
sary, for the disclosure to an individual of
medical records, including psychological rec-
ords, pertaining to him;
"(4) establish procedures for reviewing a
request from an individual concerning the
amendment of any record or information per-
taining to the individual, for making a de-
termination on the request, for an appeal
within the agency of an initial adverse
agency determination, and for whatever addi-
tional means the head of the agency may
deem necessary for each individual to be able
to exercise fully his rights under this section;
and
"(5) establish fees to be charged, if any,
to any individual for making copies of his
record, excluding the cost of any search for
and review of the record.
The Office of the Federal Register shall an-
nually compile and publish the rules pro-
mulgated under this subsection and agency
notices published under subsection (e) (2)
of this section in a form available to the
public at low cost.
"(g) (1) CIVIL REMEDIES.-Whenever -any
agency (A) refuses to comply with an indi-
vidual request under subsection (d) (1) of
this section, (B) fails to maintain any record
concerning any individual with such accu-
racy, relevance, timeliness, and completeness
as is necessary to assure fairness in any de-
termination relating to . the qualifications,
character, rights, or opportunities of, or ben-
efits to the individual that may be made on
the basis of records and consequently a de-
termination is made which is adverse to the
S 21809
individual, or (C) fails to comply with any
other provision of this section, or any rule
promulgated thereunder, in such a way as
to have an adverse effect on an individual,
the individual may bring a civil action
against the agency, and the district courts of
the United States shall have jurisdiction in
the matters under the provisions of this sub-
section.
"(2) (A) In any suit brought under the
provisions of subsection (g) (1) (A) of this
section, the court may enjoin the agency
from withholding the records and order the
production to the complainant of any agency
records improperly withheld from him. In
such a case the court shall determine the
matter de novo, and may examine the con-
tents of any agency records in camera to de-
termine whether, the records or any portion
thereof may be withheld under any of the ex-
emptions set forth in subsection (k) of this
section, and the burden is on the agency to
sustain its action. -
"(B) The court may assess against the
United States reasonable attorney fees and
other litigation costs reasonably incurred in
any case under this paragraph in which the
complainant has substantially prevailed.
"(3) In any suit brought under the provi-
sions of subsection (g) (1) (B) or (C) of this
section in which the court determines that
the agency acted in a manner which was will-
ful, arbitrary, or capricious, the United -
States shall be liable to the individual in an
amount equal to the sum of-
"(A) actual damages sustained by the in-
dividual as a result of the refusal or failure;
and
"(B) the costs of the action together with
reasonable attorney fees as determined by
the court.
"(4) An action to enforce any liability
created under this section may be brought in
the district court of the United States in the
district in which the complainant resides, or
has his principal place of business, or in
which the agency records are situated, or in
the District of Columbia, without regard to
the amount in controversy, within two years
from. the date on which the cause of action
arises, except that where an agency has ma-
terially and willfully misrepresented any in-
formation required under this section to be
disclosed to an individual and the Informs-,
tion so misrepresented is material to the
establishment of the liability of the agency
to the individual under this section, the
action may be bought at any time within
two years after discovery by the individual of
the misrepresentation.
"(h) RIGHTS OF LEGAL GUARDIANS.-For the
purposes of this section, the parent of any
minor, or the legal guardian of any individ-
ual who has been declared to be incompetent
due to physical or mental incapacity or age
by a court of competent jurisdiction, may
act on behalf of the individual. -
"(i) (1) CRIMINAL PENALTIES.-Any officer
or employee of the United States, who by
virtue of his employment or official position,
has possession of, or access to, agency rec-
ords which contain individually identifiable
information the disclosure of which is pro-
hibited by this section or by rules or regu-
lations established thereunder, and who
knowing that disclosure of the specific ma-
terial is so-prohibited, willfully discloses the
material in any manner to any person or
agency not entitled to receive it, shall be
fined not more than $5,000.
"(2) Any person who knowingly and will-
fully requests or obtains any record concern-
ing an individual from an agency under false
pretenses shall be fined not more than
$5,000.
"(j) GENERAL EXEMPTIONS.-The head of
any agency may promulgate rules, in accord-
ance with the requirements (including gen-
eral notice) of section 553 of this title, to
exempt any system of records within the
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agency from any part of this section except
subsections (b) and (e) (2) (A) through (F)
and (i) if the system of records is-
"(1) maintained by the Central Intelli-
gence Agency; or -
"(2) maintained by an agency or compo-
nent thereof which performs as its principal
function any activity pertaining to the en-
forcement of criminal laws, including police
efforts to prevent, control, or reduce crime
or to apprehend criminals, and the activities
of prosecutors, courts, correctional, proba-
tion, pardon, or parole authorities, and
which consists of (A) Information com-
piled for the purpose of identifying individ-
ual criminal offenders and alleged offenders
and consisting only of identifying data and
notations of arrests, the nature and disposi-
tion of criminal charges, sentencing, con-
fineinent, release, and parole and probation
status; (B) information compiled for the
purpose of a criminal investigation, includ-
ing reports of informants and Investigators,
and associated with an identifiable individ-
ual; or (C) reports identifiable to an in-
dividual compiled at any stage of the proc-
ess of enforcement of the criminal laws from
arrest or indictment through release from
supervision.
"(k) SPECIFIC EXEMPTIONS.-The head of
any agency may promulgate rules, in accord-
ance with the requirements (including gen-
eral notice) of section 553 of this title, to
exempt any system of records within the
agency from subsections (c) (3), (d), (e) (1),
(e).(3) (G) and (H), and (f) of this section
if the system of records is-
"(;) subject to the provisions of section
552(b) (1) of this title;
"(3) investigatory material compiled for
law enforcement purposes, other than ma-
terial within the scope of subsection (j) (2)
of this section: Provided, however, That If
any individual is denied any right, privilege.
or benefit that he would otherwise be entitled
by Federal law, or for which he would other-
wise be eligible, as a result of the mainten-
ance of such material, such material shall be
provided to such individual, except to the
extent that the disclosure of such material
would reveal the identity of a source who
furnished information to the Government
under an express promise that the identity
of the source would be held in confidence,
or, prior to the effective date of this section,
under an implied promise that the identity
of the source would be held in confidence;
"(2) maintained in connection with pro-
viding protective services to the President of
the United States or other individuals pur-
suant to section 3056of title 18;
"(E) required by statute to be maintained
and eased -solely as statistical research or re-
porting records;
"(f;) investigatory material compiled solely
for the purpose of determining suitability,
eligibility, or qualifications for Federal civil-
ian employment, military service, Federal
contracts, or access to classified information,
but only to the extent that the disclosure of
such material would reveal the identity of
a source who furnished information to the
Government under an express promise that
the identity of the source would be held in
confidence, or, prior to the effective date of
this section, under an implied promise that
the identity of the source would be held in
confidence;
"(IS) testing or examination material used
solely to determine individual qualifications
for appointment or promotion in the Federal
service the disclosure of which would
com-pmise the objectivity or fairness of the
testing or examination process; or
mi"(i) evaluation material used to deter-
ne potential for promotion in the armed
services, but only to the extent that the
disclosure of such material would reveal
the identity of a source who furnished In-
formation to the Government under an ex-
press promise that the identity of the source
would be held in confidence, or, prior to
the effective date of this section, under an
Implied promise that the Identity of the
source would be held in confidence.
"(1) (1) ARCHIVAL RECORDS.-Each agency
record which isaccepted by the Administra-
tor of General Services for storage, process-
ing, and servicing In accordance with sec-
tion 3103 of title 44 shall, for the purposes
of this section, be considered t:) be main-
tained by the agency which deposited the
record and shall be subject to the provisions
of this section. The Administrator of Gen-
eral Services shall not disclose the record
except to the agency which maintains the
record, or under rules established by that
agency which are not inconsistent with the
provisions of this section.
"(2) Each agency record pertaining to an
identifiable individual which was transferred
to the National Archives of 'he United
States as a record which has sufficient his-
torical or other valve to warra:at its con-
tinued preservation by the United States
Government, prior to the effective date of
this section, shall, for the purposes of this
section, be considered to be maintained by
the National Archives and shall not be styb-
ject to the provisions of this section.
"(3) Each agency record pertaining to
.an identifiable individual which is trans-
ferred to the National Archieves of the
United States as a record which has suffi-
cient historical or other value to warrant
its continued preservation by the United
States Government, on or after the effec-
tive date of this section, shall, for the pur-
poses of this section, be considered to be
maintained by the National Archives and
shall be subject to all provisions of this
section except subsections (e) (4); (d) (2),
(3), and (4); (e) (1), (2) (H) and (3);
(f) (4); (g) (1) (B) and (C), and (3).
"(m) (1) MORATORIUM ON THE USE OF THE
SOCIAL. SECURITY ACCOUNT NUMSER.-No Fed-
eral agency, or any State or local govern-
ment acting in compliance with any Fed-
eeal law or federally assisted program, shall
deny any individual any right, benefit, or
privilege provided by law by reason of such
individual's refusal to disclose his social se-
curity account number.
(2) This subsection shall not apply-
(A) with respect to any system of rec-
ords in existence and operating prior to
January 1, 1975; and
"(B) when disclosure of a soc:.al secur).y
account number is required by Federal law.
"(3) No Federal agency, or any State or
local government acting in compliance with
any Federal law or federally assisted program,
shall use the social security account number
for any purpose other than for verification
of the identity of an individual unless such
other purpose is specifically authorized by _
Federal law.
"(n) ANNUAL REPORT.-The PreEadent shall
submit to the Speaker of the House and the
President of the Senate, by June 30 of ea--h
calendar year, a consolidated report, sep-
arately listing for each Federal agency the
number of records contained in any system
of records which were exempted from the
application of this section under the provi-
sions of subsections (j) and (It) of this
section during the preceding calendar year,
and the reasons for the exemption ?, and such
other information as indicates efforts to ad-
minister fully this section.".
SEC. 4. The chapter analysis of chapter 5
of title 5, United States Code, is amended ?;y
inserting:
"552a. Records about individuals."
immediately below:
"552. Public information; agency rules, opin-
ions, orders, and proceedings.".
SEC. 5. The amendments made by this Act
shall become effective on the one hundred
and eightieth day following the date of en-
actment of this Act.
Amend the title so as to read: "An act
to amend title 5, United States Code, by
adding a section 552a to safeguard in-
dividual privacy from the misuse of Fed-
eral records and to provide that indi-
viduals be granted access to records con-
cerning them which are maintained by
Federal agencies."
Mr. ERVIN. Mr. President, on Novem-
ber 21, just before the Thanksgiving re-
cess, both the Senate and the House
adopted in different forms--
The PRESIDING OFFICER. Will the
Senator suspend briefly until the Chair
gets order in the Senate.
I would like to ask the Members of the
Senate to please bring order to the
Chamber because the Senator from
North Carolina is entitled to be heard
and he cannot be heard. Would those
members conversing please remove
themselves to the cloakroom.
The Senator will continue to suspend
until there is order in the Chamber.
The Senator may proceed.
Mr. ERVIN. On November 21, just be-
fore the Thanksgiving recess, both the
Senate and the House passed in differ-
ent forms Federal privacy legislation.
Because of the limited amount of time
available between the time of the recon-
vening of Congress after the recess and
the end of the session of Congress mem-
bers of the Government Operations
Committee of the Senate and the House
agreed that they would have the different
versions studied by their respective staffs
during the recess.
After the recess the members of the
staffs who had made this study reported
?to- the members of the two committees,
and after that the members of the two
committees met informally and agreed
on the amendments that I will offer in
behalf of all the original cosponsors of
the privacy bill.
We thought this was a better way of
doing it without having a conference and
I have been assured by the members of
the House Government Operations
Committee interested in privacy legisla-
tion, that the House will accept these
amendments which I propose on behalf
of myself and all of the original co-
sponsors of the bill.
The main differences between the two
versions which are reconciled here was
that instead of establishing a privacy
board, as the Senate bill did,, that we
will have a privacy study commission to
study the subject and report back to the
President, to the Senate, and to the
House.
We also eliminated, in deference to
the House, provisions of the bill dealing
with the private sector and we also elim-
inated some of the provisions. dealing
with law enforcement agencies.
Now, Mr. President, on behalf of the
original cosponsors of the Senate bill
and myself, I make this motion.
Mr. President, I move that the Senate
agree to the engrossed amendments of
the House to the bill (S. 3418) to estab-
lish a Privacy Protection Commission, to
provide management systems in Federal
agencies and certain other organiza-
tions with respect to the gathering and
disclosure of information concerning in-
dividuals, and for other purposes, with
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the following amendments to such en-
grossed amendments:
In lieu of the matter proposed to be
.inserted by the House to the text of the
bill, insert the following amendment
which I now send to the desk.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk pro-
ceeded to read the amendment.
Mr. ERVIN. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
In lieu of the matter proposed to be
inserted- by the House to the text of the
bill, Insert the following:
Tha this Act may be cited as the "Privacy
Act of 1974".
SEc. 2. (a) The Congress finds that-
(1) the privacy of an individual is directly
affected by the collection, maintenance, use,
and dissemination of personal information
by Federal agencies;
(2) the increasing use of computers and
sophisticated information technology, while
essential to the efficient operations of the
Government, has greatly magnified the harm
to individual privacy that can occur from
any collection, maintenance, use, or dissemi-
nation of personal information;
(3) the opportunities for an individual to
secure -employment, insurance, and credit,
and his right to due process, and other legal
protections are endangered by the misuse
of certain information systems;
(4), the right to privacy is a personal and
fundamental right protected by the Consti-
tution of the United States; and
(5) in order to protect the privacy of in-
dividuals identified in information systems
maintained by Federal agencies, It is neces-
sary and proper for the Congress to regulate
the collection, maintenance, use, and dis-
semination of information by such agencies.
(b) The purpose of this Act is to provide
certain safeguards for an individual against
an invasion of personal privacy by requiring
Federal agencies, except as otherwise pro-
vided by law, to-
(1) permit an Individual to determine
what records pertaining to him are collected,
maintained, used, or disseminated by such
,agencies;
(2) permit an individual to prevent records
pertaining to him obtained by such agencies
for a particular purpose from being used or
made available for another purpose without
his consent;
(3) permit an individual to gain access
to information pertaining to him in Federal
agency records, to have a copy made of all or
any portion thereof, and to correct or amend
such records;
(4) collect, maintain, use or disseminate
any record of identifiable personal informa-
tion in a manner that assures that such
action is for a necessary and lawful purpose,
that the information is current and accurate
for its intended use, and that adequate safe-
guards are provided to prevent misuse of
such information;
(5) permit exemptions from the require-
ments with respect to records provided in
this Act only in those cases where there is
Am important public policy need for such ex-
emption as has been determined by specific
statutory authority; and -
(6) be subject to civil suit for any dam-
---ages which occur as a result of willful or in-
ternational action which violates any indivi-
dual's rights under this Act. -
SEc. 3. Title 5, United States Code, is
amended by adding after section 552 the fol-
lowing new section:
"I 552a. Records maintained on Individuals
"(a) DETINITIONS.-For purposes of this
section-
".(I) the term 'agency' means agency as
defined in section 552(e) of this title;
"(2) the term 'Individual' means a citizen
of the United States or an alien lawfully ad-
mitted for permanent - residence;
"(3) the term `maintain' includes main-
tain, collect, use, or disseminate;
"(4) the term 'record' means any item,
collection, or grouping of information about
an individual that is maintained by an
agency, including, but not limited to, his
education, financial transactions, medical
history, and criminal or employment history
and that contains his name, or the identi-
fying number, symbol, or other identifying
particular assigned to the individual, such
as a finger or voice print or a photograph;
"(5) the term 'system 9f records' means a
group of any records under the control of
any agency from which information is
retrieved by the name of the individual or
by some identifying number, symbol, or other
identifying particular assigned to the in-
dividual;
"(6) the term 'statistical record' means a
record in a system. of records maintained for
statisical research or reporting purposes only
and not used in whole or in part in making
any determination about an identifiable in-
dividual, except as provided by section 8
of title 13.
"(7) the term 'routine use, means, with
.respect to the disclosure of a record, the use
of such record for a purpose which is com-
patible with the purpose for which It was
collected.
"(b) CONDITIONS Or DISCLOSURE.-No
agency shall disclose any record which is con-
tained in a system of records by any means
of communication to any person, or to an-
other agency, except pursuant to a written
request by, or with the prior written consent
of, the individual to whom the record per-
tains, unless disclosure of the record would
be-
"(1) to those officers and employees of the
agency which maintains the record who have
a need for the record in .the performance of
their duties; -
"(2) required under section 552 of this
title;
"(3) for a routine use as defined in subsec-
tion (a) (7) of this section and dbscribed un-
der subsection (e) (4) (D) of this section;
"(4) to the Bureau of the Census for pur-
poses of planning or tarrying out a census or
survey or related activity pursuant to the
provisions of title 13;
"(5) to a recipient who has provided the
agency with advance adequate written assur-
ance that the record will be used solely as a
statistical research or reporting record, and
the record is to be transferred in a form that
is not individually identifiable;
"(6) to the National Archives of the United
States as a record which has sufficient his-
torical or other value to warrant its con-
tinued preservation by the United States
Government, or for evaluation by the Admin-
istrator of General Services or his designee
to determine whether the record has such
value;
"(7) to another agency or to an instru-
mentality of any governmental jurisdiction
within or under the control of the United
States for a civil or criminal law enforce-
ment activity if the activity is authorized by
law, and if the head of the agency or instru-
mentality has made a written request to the
agency which maintains the record specify-
ing the particular portion desired and the
law enforcement activity for which the
record is sought;
"(8) to a person pursuant to a showing of
compelling circumstances affecting the
health or safety of an individual if upon such
disclosure notification is transmitted to the
last known address of such individual;
11(9) to either House of Congress, or, to
the extent of matter within its jurisdiction,
any committee or subcommittee thereof, any
joint committee of Congress or subcommit-
tee of any such joint committee;
"(10) to the Comptroller General, or any
of his authorized representatives, In the
course of the performance of the duties of
the General Accounting Office; or
"(11) pursuant to the order of a court of
competent jurisdiction.
"(c) ACCOUNTING Os' CERTAIN DISCLO-
sUREs.-Each agency, with respect to each
system of records under its control, shall-
"(1) except for disclosures made under
subsections (b) (1) or (b) (2) of this sec-
tion, keep an accurate accounting of-
"(A) the date, nature, and purpose of
each disclosure of a record to any person or
to another agency made under subsection
(b) of tAis section; and
"(B) the name and address of the person
or agency to whom the disclosure is made;
"(2) retain the accounting made under
paragraph (1) of this subsection for at
lease five years or the life of the record,
whichever is longer, after the disclosure for
which the accounting is made;
"(3) except for disclosures made under
subsection (b) (7) of this section, make the
accounting made under paragraph (1) of
this subsection available to the individual
named in the record at his request; and
"(4) inform any person or other agency
about any correction or notation of dis-
pute made by the agency in accordance with
subsection (d) of this section of any record
that has been disclosed to the person or
agency if an accounting of the disclosure
was made.
"(d) AccESS To RECORDS.-Each agency
that maintains a system of records shall-
"(1) upon request by any individual to
gain access to his record or to any informa-
tion pertaining to him which is contained
in the system, permit him and upon his re-
quest, a person of his own choosing to ac-
company him, to review the record and have
a copy made of all or any portion thereof
in a form comprehensible to him, except that
,the agency may require the Individual to
furnish a written statement authorizing dis-
cussion, of that individual's record in the
accompanying person's presence;
"(2) permit the individual to - request
amendment of a record pertaining to 'him
and- . -
"(A) not later than 10 days (excluding
Saturdays, Sundays, and legal public holi-
days) after the date of receipt of such re-
quest, acknowledge in writing such receipt;
and
"(B) promptly, either-
"(1) make any correction of any portion
thereof which the individual believes is not
accurate, relevant; timely, or complete; or
"(ii) inform the individual of its refusal
to amend the record in accordance with his
request, the reason for the refusal, the pro-
cedures established by the agency for the in-
dividual to request a review of that refusal
by the head of the agency or an officer desig-
nated by the head of the agency, and the
name and business address of that official;
"(3) permit the individual who disagrees
with the refusal of the agency to amend his
record to request a review of such refusal,
and not later than 30 days (excluding Satur-
days, Sundays, and legal public holidays)
from the data - on which - the individual re-
quests such review, complete such review
and make a final determination unless, for
good cause shown, the head of the ' agency
extends such 30-day period; and if, after
his review, the reviewing official also refuses
to amend the record in accordance with the
request, permit the individual to file with
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CONGRESSIONAL RECORD - SENATE December 17, 1974
the agency a concise statement setting forth
the reasons for his disagreement with the
refusal of the agency, and notify the indi-
vidual of the provisions for judicial review of
the reviewing official's determination under
subsection (g) (1) (A) of this section;
4) in any disclosure, containing informa-
tion about which the individual has filed
a statement of disagreement, occurring after
the filing of the statement under paragraph
(3) of this subsection, clearly note any por-
tion of the record which is disputed and
provide copies of the statement and, if the
agency deems it appropriate, copies of a con-
cise statement of the reasons of the agency
for not making the amendments requested,
to persons or other agencies to whom the dis-
puted record has been disclosed; and
"(5) nothing In this section shall allow an
individual access to any information com-
piled in reasonable anticipation of a civil
action or proceeding.
"{e) AGENCY REQUIREMENTS.-Each agency
that maintains a system of records shall-
" 11) maintain in its records only such in-
formation about an individual as is relevant
and necessary to accomplish -a purpose of the
agency required to be accomplished by
statute or by executive order of the
President;
"12) collect Information to the greatest
extent practicable directly from the subject
individual when the information may result
in adverse determinations about an individ-
ual's rights, benefits, and privileges under
Federal programs;
"(3) inform each individual whom it asks
to supply information, on the form which
it uses to collect the information or on a
separate form that can be retained by the
individual-
"(A) the authority (whether' granted by
statute, or by executive order of the Presi-
dent) which authorizes the solicitation of
the information and whether disclosure of
such information is mandatory or voluntary;
"(B) the principal purpose or purposes for
which the information is intended to he
used;
"(C) the routine uses which may be made
of the information, as published pursuant
to paragraph
(4) (D) of this subsection; and
"(D) the effects on him, if any, of not pro-
viding all or any part of the requested in-
formation;
"(4) subject to the provisions of para-
graph (11) of this subsection, publish in the
Federal Register at least annually a notice
of the existence and character of the system
of records, which notice shall include-
"(A) the name and location of the system;
"(B) the categories of individuals on whom
records are maintained in the system;
"(C) the categories of records maintained
in the system;
"(D) each routine use of the records con-
tained in the system, including the cate-
gories of users and the purpose of such use;
"(E) the policies and practices of the
agency regarding storage, retrievability, ac-
cess controls, retention, and disposal of the
records;
"(F) the title and business address of the
agency official who is responsible for the
system of records;
"(a) the agency procedures whereby an
individual can be notified at his request if
the system of records contains a record per-
taining to him;
"(H) the agency procedures whereby an in-
dividual can be notified at his request how
he can gain access to any record pertaining
to him contained In the system of records,
and how he can contest its content; and
"(I) the categories of sources of records in
the system;
"(5) maintain all records which are used
by the agency in making any determination
about any Individual with such accuracy,
relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the
individual In the determination;
"(6) prior to disseminating any record
about an individual to any person other than
an agency, make reasonable efforts to assure
that such records are accurate, complete,
timely, and relevant;
"(7) maintain no record describing how
any individual exercises rights guaranteed
by the first amendment unleis expre=sly
authorized by statute or by the individual
about whom the record is maintained or _in-
less pertinent to and within the scope of an
authorized law enforcement activity;
"(8) make reasonable efforts to serve ro-
tice on an individual when any record on
such individual is made available to any per-
son under compulsory legal process when
such process becomes a matter of public
record;
"(9) establish rules of conduct for per-
sons involved in the design, developnicsnt,
operation, or maintenance of any system: of
records, or in maintaining any record, and
instruct each such person with respect to
such rules and the requirements of this ?cc-
tion, including any other rules and proce-
dures adopted pursuant to this section and
the penalties for noncompliance:
"(10) establish appropriate administrative,
technical, and physical safeguards to insure
the security and confidentiality of records
and to protect against any anticipated
threats or hazards to their sec arity or in-
tegrity which could result in substantial
harm, embarassment, inconvenience, or _m-
fairness to any individual on whom inor-
mation is maintained; and
"(11) at least 80 days prior to publication
of information under paragraph (4) (D) of
,this subsection, publish in the federal Reg-
ister notice of any new use or intended use
of the information in the system, and pro-
vide an opportunity for interested pers:,ns
to submit written data, views, oc arguments
to the agency.
"(f) AGENCY RULEs_ In order to carry cut
the provisions of this section, each agency
that maintains a system of records shall
promulgate rules, in accordance with the
requirements (including genera; notice) of
section 553 of this title, which shall-
"(1) establish procedures whereby an In-
dividual can be notified in response to its
request if any system of record; named by
the individual contains a record pertaining
to him;
"(2) define reasonable times, places, ned
requirements for identifying an individual
who requests his record or information -p=er-
taining to him before the agency shall make
the record or information available to the
individual;
"(3) establish procedures for the disclosure
to an individual upon his request of his rec-
ord or information pertaining to him, incl tid-
ing special procedure, If deemed necessary,
for the disclosure to an individual of medeal
records, including psychological records, per-
taining to him; -
"(4) -establish procedures for reviewing a
request from -an individual concerning the
amendment of any record or information
pertaining to the individual, for making a
determination on the request, fcr an appeal
within the agency of an initial adverse
agency determination, and for whatever ad-
ditional means may be necessary for each
individual to be able to exercise fully his
rights under this section; and
"(5) establish fees to be charged, if any,
to any individual for making copies of his'
record, excluding the cost of any search for
and review of the record.
The Office of the Federal Register shall an(
nually compile and publish the rules promul-
gated under this subsection and agency
notices published under subsection (e) (4)
of this section in a form available to the
public at low cost.
"(g) (1) CIVIL REMEDIES.-Whenever any
agency
"(A) makes a determination under sub-
section (d) (3) of this section not to amend
an individual's record in accordance with
his request, or fails to make such review in
conformity with that subsection; -
"(B) refuses to comply with an individual
request under subsection (d) (1) of this
section;
"(C) fails to maintain any record con-
cerning any individual with such accuracy,
relevance, timeliness, and completeness as is
necessary to assure fairness in my deter-
mination relating to the qualifications, char-
acter, rights, or opportunities of, or bene-
fits to the individual that may be made on
the basis of such record, and consequently
a determination Is made which is adverse
to the individual; or
"(D) fails to comply with any other pro-
vision of this section, or any rule promul-
gated thereunder, in such a way as to have
an adverse effect on an individual,
the individual may bring a civil action
against the agency, and the district courts
of the United States shall have jurisdiction
in the -matters under the provisions of this
subsection.
"(2)(A) In any suit, brought under the
provisions of subsection (g) (1) (A) of this
section, the court may order the agency
to amend the individual's record in accord-
ance with his request or in such other way
as the court may direct. In such a case the
court shall determine the matter de novo.
"(B) The court may assess against the
United States reasonable attorney fees and
other litigation costs reasonably incurred in
any case under this paragraph in which the
complainant has substantially prevailed.
"(3) (A) In any suit brought under the
provisions of subsection (g) (1) (B) of this
section, the court mayenjoin the "agency
from withholding the records and order the
production to - the complainant of any
agency records improperly withheld from
him. In such a case the court shall deter-
mine the matter de novo, and may examine
the contents of any agency records in camera
to determine whether the records or any por-
tion thereof may be withheld under any of
the exemptions set forth in subsection (k)
of this section, and the burden is on the
agency to sustain its action.
"(B) The court may assess against the
United States reasonable attorney fees and
other litigation costsreasonably incurred in
any case under this paragraph in which
the complainant has substantially prevailed.
"(4) In any suit brought under the pro-
visions of subsection (g) (1) (C) or (D) of
this - section in which the court determines
that the agency acted In a manner which
was intentional or willful, the United States
shall be liable to the individual in an amount
equal to the sum of-
"(A) actual damages sustained by the in-
dividual as a result of therefusal or failure.
but In no case shall a person entitled to
recovery receive less than the sum of $1,000;
and
"(B) the costs of the action together with
reasonable attorney fees as determined by
the court.
"(5) An action to enforce any liability
created under this section may be brought
In the district court of the United States in
thedistrict in which the complainant resides,
or has his principal place of business, or
in which the agency records are situated, "or
in the District of Columbia, without regard
to the amount in controversy, within two
year from the date on which the cause of
action arises, except that where an agentty
has materially and willfully misrepresented
any information required under this section
to be disclosed to an individual and the In-
formation so misrepresented is material to
the establishment of the liability of the
agency to the individual under this section,
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December 17, 1974 CONGRESSIONAL RECORD -SENATE
the action may be bought at any time within
two years after discovery by the individual
of the misrepresentation. Nothing in this
section shall be construed to authorize any
civil action by reason of any injury sustained
as the result of a disclosure of a record prior
to the effective date of this section.
"(h) RIGHTS OF LEGAL GUARDIANS.-For the
purposes of the section, the parent of any
minor, or the legal guardian of any Indi-
vidual who has been declared to be incom-
petent due to physical or mental incapacity
or age by a court of competent jurisdiction,
may act on behalf of the individual.
"(i) (1) CRIMINAL PENALTIES.-Any officer
or employee of an agency, who by virtue of
his employment or official position, has pos-
session of, or access to, agency records which
contain individually identifiable information
the disclosure of which is prohibited by this
section or by rules or regulations established
thereunder, and who knowing that disclosure
of the specific material is so prohibited, will-
fully discloses the material in any manner
to any person or agency not entitled to re-
ceive it, shall be guilty of a misdemeanor
and fined not more than $5,000.
"(2) Any officer or employee of any agency
who willfully maintains a system of records
without meeting the notice requirements of
subsection (e) (4) of this section shall be
guilty of a misdemeanor and fined not more
than $5,000.
"(3) Any person who knowingly and will-
fully requests or obtains any record
concern- ing an individual from an agency under false
pretenses shall be guilty.of a misdemeanor
and fined not more than $5,000.
"(j) GENERAL EXEMPTIONS.-The head of
any agency may promulgate rules, in accord-
ance with with the requirements (includ-
ing general notice) of sections 553 (b) (1),
(2), and (3), (c), and (e) of this title, to
exempt any system of records within the
agency from any part of this section except
subsections (b), (c)(1), (2), and (4),
(e)(4)(A) through (F) (e) (6), (7), (9), (10),
and (11), and (1) if the system of records
is-
"(1) maintained by the Central Intelli-
[ence Agency; or
"' (2) maintained by an agency or compo-
neat thereof which performs as its principal
function any activity pertaining to the en-
foi'fiement of criminal laws, including police
effol to prevent, control, or reduce crime
or to gpprehend ciriminals, and the activities
of prosecutors, courts, correctional, proba-
tion, pardon, or parole authorities, and which
consists of (A) information compiled for. the
purpose of identifying individual criminal
offenders 'and alleged offenders and consist-
ing only o4 identifying data and notations of
arrests, ti3~e nature and disposition of crimi-
nal charges, Sentencing, confinement, release,
and parole and probation status; (B) infor-
mation compiled for the purpose of a crimi-
nal investigation, Including reports of in-
formants and investigators, and associated
with an identifiable individual; or (C) re-
ports identifiable to an individual compiled
at any stage of the process of enforcement of
the criminal laws from arrest or indictment
through refuse from supervision.
At the time rules are adopted under this sub-
section, the agency shall include in the state-
ment required under section 553 (c) of this
title, the reasons why the system of records
is to be exempted from a provision of this
section.
"(k) SPECIFIC EXEMPTIONS.-The head of
any agency may promulgate rules, in accord-
ance with the requirements (including gen-
eral notice) of sections 553(b) (1), (2) and
(3), (c), and (e) of this title, to exempt any
system of records within the agency from
subsections (c) (3), (d), (e) (1), (e) (4) (G),
(H), and (I), and (f) of this section if the
system of records is
"(2) investigatory material compiled for
law enforcement purposes, other than mate-
rial within the scope of subsection (j) (2) of
this section: Provided, however, That if any
individual is denied any right, privilege, or
benefit that lie would otherwise be entitled
by Federal law, or for which he would other-
wise be eligible, as a result of the mainte-
nance of such material, such material shall
be provided to such individual, except to the
extent that the disclosure of such material
would reveal the identity of a source who fur-
nished information to the Government under
an express promise that the identity of the
source would be held in confidence, or, prior
to the effective date of this section, under an
implied promise that the identity of the
source would be held in confidence;
"(3) maintained in connection with pro-
viding protective services to the President
of the United States or other individuals
pursuant to section 3058 of title 18;
"(4) required by statute to be maintained
and used solely as statistical records;
"(5) investigatory material compiled solely
for the purpose of determining suitability,
eligibility, or qualifications for Federal
civilian employment, military service, Fed-
eral contracts, or access to classified informa-
tion, but only to the extent that the dis-
closure of such material would eveal the
identity of a source who furnished informa-
tion to the Government under an express
promise that the identity of the source would
be held in confidence, or, prior to the effec-
tive date of this section, under an implied
promise that the identity of the source would
be held in confidence;
"(6) testing or examination material used
solely to determine individual qualifications
for appointment - or promotion in the Fed-
eral service the disclosure of which would
compromise the objectivity or fairness of the
testing or examination process; or
"(7) evaluation material used to deter-
mine potential for promotion in the armed
services, but only to the extent that the
disclosure of such material would reveal the
identity of a source who furnished informa-
tion to the Government under an express
promise that the identity of the source would
be held in confidence, or,' prior to the effec-
tive date of this section, under an implied
promise that the identity of the source
would. be held in confidence.
At the time rules are adopted under this
subsection, the agency shall include in the
statement required under section 553(c) of
this title, the reasons why the system of rec-
ords is to be exempted from a provision of
this section.
"(l) (1) ARCHIVAL RECORDS.-Each agency
record which is accepted by the Administra-
tor of General Services for storage, processing,
and servicing in accordance with section 3103
of title 44 shall, for the purposes of this
section, be considered to be maintained by
the agency which deposited the record and
shall be subject to the provisions of this sec-
tion. The Administrator of General Services
shall not disclose the record except to the
agency which maintains the record, or under
rules established by that agency which are
not inconsistent with the provisions of this
section.
"(2) Each agency record pertaining to an
identifiable individual which was transferred
to the National Archives of the United States
as a record which has sufficient historical or
other value to warrant its continued pres-
eryation by the United States Government,
prior to, the effective date of this section
shall, for the purposes of this section, be
considered to be maintained by the National
Archives and shall not be subject to the pro-
visions of this section, except that a state-
ment generally describing such. records
(modeled after the requirements relating to
records subject to subsections (a) (4) (A)
"(1) subject to the provisions of section through (G) of this section) shall be pub-
552(b) (1) of this title; fished in the Federal Register.
S 21813
"(3) Each agency record pertaining to an
identifiable Individual which is transferred
to the National Archives- of the United States
as a record which has sufficient historical
or other value to warrant its continued pres-
ervation by the United States Government,
on or after the effective date of this section,
shall, for the purposes of this section, be
considered to be maintained by the National
Archives and shall be exempt from the re-
quirements of this section except subsections
(e) (4) (A) through (0) and (e) (9) of this
section.
"(m) GOVERNMENT CONTRACTORS.-when
an agency provides by a contract for the
operation by or on behalf of the agency of a
system of records to accomplish an agency
function, the agency shall, consistent with
its authority, cause the requirements of this
section to be applied to such system. For
purposes of subsection (1) of this section
any such contractor and any employee of
such contractor, if such contract is agreed
to on or after the effective date of this sec-
tion, shall be considered to be an employee
of an agency.
"(n) MAILING LISTS.-An individual's name
and address may not be sold or rented by an
agency unless such action is specifically au-
thorized by law. This provision shall not be
construed to require the withholding of
names and addresses otherwise permitted to
be made public.
"(o) REPORT ON NEW SYSTEMS.-Each
agency shall provide adequate advance no-
tice to Coiigress and the Office of Man-
agement and Budget of any proposal to es-
tablish or alter any system of records in or-
der to permit an evaluation of the probable or
potential effect of such proposal on the pri-
vacy and other personal or property rights
of individuals or the disclosure of infor-
mation relating to such individuals, and its
effect on the preservation of the constitu-
tional principles of federalism and separa-
tion of powers.
"(p) ANNUAL REPORT.-The President shall
submit to the Speaker of the House and
the President of the Senate, by June 30 of
each calendar year, a consolidated report,
separately listing for each Federal agency
the number of records contained in any sys-
tem of records which were exempted from
the application of this section under the
provisions of subsections (j) and (k) of this
section during the preceding calendar year,
and the reasons for the exemptions, and.
such other information as indicates efforts
to administer fully this section.
"(q) EFFECT OF OTHER LAWS.-NO agency
shall rely on any.' exemption contained in
section 552 of this title to withhold from
an individual any record which is otherwise
accessible to such individual under the pro-
visions of this section.".
SEC. 4. The chapter analysis of chapter 5
of title 5, United States Code, is amended
by inserting: .
"552a. Records about individuals."
immediately below:.
"552. Public information; agency rules, opin-
ions, orders, and proceedings.".
SEC. B. (a) (1) There is established a Pri-
vacy Protection Study Commission (here-
inafter referred to as the "Commission")
which shall be composed of seven members
as follows:
(A) three appointed by the President of
the United States,
(B) two appointed by the President cf
the. Senate, and
(C) two appointed by the Speaker of the
House of Representatives.
Members of the Commission shall be chosen
from among persons who, by reason of their
knowledge and expertise in any of the follow-
ing areas-civil rights and liberties, law,
social sciences, computer technology,. busi-
ness, records management, and State and
local government-are well qualified for serv-
ice on the Commission. .
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S 21814 CONGRESSIONAL. RECORD -SENATE December 17, 197:
(2) The members of the Commission shall and other symbols to identify individuals in violate an Individual's right of privacy,
elect a Chairman from among themselves. data banks and to gain access to, integrate, should be prohibited by statute from col-
(3) Any vacancy in the membership of or centralize information systems and flee; lection by Federal agencies; and
the Commission, as long as there are four and (4) upon request, prepare model legisla-
members in office, shall not impair the (D) the matching and analysis of statis- tion for use by State and local governments
power of the Commission but shall be filled tical data, such as Federal census data, with in establishing procedures for handling,
in he same manner in which the original other sources of personal data, such as auto- maintaining, and disseminating personal in-
appointment was made. mobile registries and telephone directo ies, formation at the State and local level and
(4) A quorum of the Commission shall in order to reconstruct individual responses provide such technical assistance to State
consist of a majority of the members, except to statistical questionnaires for commercial and local governments as they may require
that the Commission may establish a lower or other purposes, in a way which tea rlts in the preparation and implementation of
number as a quorum for the purpose of in a violation of the implied or explicitly such legislation.
taking testimony. The Commission is au- recognized confidentiality of such infor na- (e) (1) The Commission may, in carrying
thorized to establish such committees and Lion. out its functions-under this section, conduct
delegate such authority to them as may be (2) (A) The Commission may include Ii. its such inspections, sit and act at such times
necessary to carry out its functions. Each examination personal information activities and places, hold such hearings, take such
member of the Commission, Including the in the following areas: medical; insurance; testimony, require by subpena the attend-
Chairman, shall have equal responsibility - education; employment and personnel; credit, ance of such witnesses and the production
and authority in all decisions and actions banking and financial institutions; credit of such books, records, papers, correspond-
of the Commission, shall have full access to bureaus; the commercial reporting indussry; ence, and documents, administer such oaths,
all information necessary to the performance cable television and other telecommunca- have such printing and binding done, and
of their functions, and shall have one vote. tiors media; travel, hotel, and entertainment make such expenditures as the Commission
Action of the Commission shall be deter- reservations; and electronic check process- deems advisable. A subpena shall be issued
mined by a majority vote of the members 1ng. only upon an affirmative vote of a majority
present. The Chairman (or a member desig- (13, The Commission shall include in its of all members of the Commission. Subpenas
noted by the Chairman to be acting Chair- examination a study of- shall be issued under the signature of the
man) shall be the official spokesman of the (1) whether a person engaged _n interstate Chairman or any member of the Commission
Commission in its relations with the Con- commerce who maintains a mailing list designated by the Chairman and shall be
gress, Government agencies, other persons, should be required to remove an individual's served by any person designated by the
and the public, and, on behalf of the Com- name and address from such list upon re- Chairman or any such member. Any mem-
mis.sion, shall see to the faithful execution quest of that individual; her of the Commission may administer oaths I
of the administrative policies and decisions (ii) whether the Internal Revenue Ser"ice or affirmations to witnesses appearing be-
of the Commission, and shall report there- should be prohibited from transferring in- fore the Commission.
on to the Commission from time to time or dividually indentifiable data to other ag'n-
as (2) (A) Each department, agency, and in
the Commission may direct. ties and to agencies of State governments; strumentality of the executive branch of th:
(5) (A) Whenever the Commission sub- . (iii) whether the Federal Government Government is authorized to furnish to the
mits any budget estimate or request to the should be liable for general damages in- Commission, upon request made by the
President r the office of Management
mat a copy curred by an individual as the result of a Chairman,, such information, data, reports
Budget, It shall concurrently py willful or intentional violation of the pr(-vi- and such other assistanceas the Commission
of that request to Congress. sions of sections 552a
(B) Whenever the Commission submits (g) (1) (C:) or (D) of deems necessary to carry out its functions
title 5, United States Code; and under nder this 'section. Whenever the head head of
any legislative recommendations, or testa- (iv) whether and how the standards for any such department, agency, or instrumen-
mor.y, or comments on legislation to the security and - confidentiality of records re- tality submits a report pursuant to section
President or Office of Management and oulred under section 552a (e) (10) of such 552a(o) of title 5, United States Code, a copy
Budget, shall concurrently transmit
or a title should be applied when a record is of such report shall be transmitted to the
copy thereof to the Congress. disclosed to a person other than an ages cy Commission.
agercy of the authority to require U td States have
raby (C) The Commission may study such (B) In carrying out its functlol,, and ex-
aut foex-
authority to legislative recommendations, Commission to - other personal information activities neces- ercising its powers under this section, the
mi its or comments latti- sary to carry out the congressi:onaI policy Commission may accept from any suc,)1 de-
fioer or agy n she United ion, tto o a rt tsubn of- embodied in this Act, except that the Com- partment, agency, independent trumen-of ap proval, comments, or review, prior to the mission shall not investigate information tality, or other person any individl. tUy jde&,.
submission of such recommen, r review prior tet- systems maintained by religious organl-'a- tifiable data If such data is necescar
bons. carry out such powers acrd funct y to
mony, or comments to the Congress. (3) In conducting such study, the Com-+
(b) The Commission shall- case In which the Commission
mission shah--
(1 i make a study of the data banks, auto- (A) determine what laws, Executive ord,=rs, such information, it shall a the p .; 1a$
mated data processing programs, and in- which it is used only for upon p
regulations, directives, and judicial decisions which t is provided, and upon ~ liar
formation systems of governmental, regional, govern the activities under study and the of that purpose such inform ba
and private organizations, in order to deter- on
extent to which they are consistent with ~ ire destroyed or returned to such tih ~l
mine the standards and procedures in force rights of privacy, due process of law, and i*&eAt.
for the protection of personal information; sonn, te.
other guarantees lnthe Constitution; son from independent
which hich it it is is obtained, as as q ,per
(B) determine to what extent goves?n- uRliate
(3) The Commission shalln haw
(2) recommend to the President and the mental and private information systems t,:~_
Congress the extent, if any, to which the affect Federal-State relations or the pr n- pr
requirements and principles of section 552a ciple of separation of powers; ( ) executive appoint and director, the sucji nsation of
of title 5, United States Code, should be ape (C) examine the standards and criteria staff personnel , and ess r y, wit on t
plied to the information practices of those as may be nfchout
governing g programs, policies, and practices regard ard to dersoth the provisions of title ; ,wititle 5, United
tion, or an zatio s voluntary adoption ad mi such tree relating to the collection, soliciting, process- States Code, governing appointments in the
org
Ing, use, access, Integration, dissemination, competitive service, and without regard to
such otherslegislative and n recommendations as it ancdi transmission of personal information; chapter 51 and subchapter III of chapter 53
may determine to be necessary to protect the of such title relating to classification and
rivac of individuals while meetin the (D) to the maximum extent cai:ae, General Schedule pay rates, but at rates not
p y g collect and utilize findings, reports, , studies, in excess of the maximum rate for GS-18 of
legitimate needs of government and society hearing transcripts, and recommendations of the General Schedule under section 5332 of
for information. governmental, legislative and private bodies, such title; and
(c) (1) In the- course of conducting the institutions, organizations, and individuals
study required under subsection (b) (1) of which pertain to the problems under study (B) procure temporary aas in uth rized
this section, and in its reports thereon, the by the Commission. services to the same extent as is authorized
section 3109 of title 5, United States
Commission may research, examine, and (d) In addition to its other fu:ctions the Code.
analyze- Commission may- C(A) interstate transfer of information (1) request assistance of the heads of The Commission may delegate any of its
about individuals that is undertaken through appropriate departments, agencies, and in- functions to such personnel of the Commis-
manual files or by computer or other elec- strumentalities of the Federal Government, sion as the Commission may designate and
tronic or telecommunications means; of State and local governments, and otter may authorize such successive redelegations
(B) data banks and information programs persons in carrying out its functions under of such functions as it may deem desirable.
and systems the operation of which signifi- this Act; (4) The Commission is authorized-
cantly or substantially affect the enjoyment (2) upon request, assist Federal agencies (A) to adopt, amend, and repeal rules and
of the privacy and other personal and prop- In complying with the requirements of sec- regulations governing the manner of its
erty rights of individuals; tion 552a of title 5, United States Code; operations, organization, and personnel;
(C) the use of social security numbers, (3) determine what specific categories of (B) to enter into contracts or other
license plate numbers, universal identifiers, information, the collection of which would arrangements or modifications thereof, with
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December 17, 1974 CONGRESSIONAL RECORD-SENATE
any government, any department, agency, or
independent instrumentality of the United
States, or with any person, firm, association,
or corporation, and such contracts or other
arrangements, or modifications thereof, may
be entered into without legal consideration,
without performance or other bonds, and
without regard to section 3709 of the Revised
Statutes, as amended (41 U.S.C. 5) ;
(c) to make advance, progress, and other
payments which the Commission deems
necessary under this Act without regard to
the provisions of section 3648 of the Revised
Statutes, as amended (31 U.S.C. 529); and
(D) to take such other action as may be
necessary to carry out its functions under
this section.
(f) (1) Each member of the Commis-
sion who is an offictr or employee of the
United States shall serve wtihout additional
compensation, but shall continue to receive
the salary of his regular position when
engaged in the performanec of the duties
vested in the Commission.
(2) A member of the Commission other
than one to whom paragraph (1) applies
etiyll receive per diem at the maximum daily
rate for OS-18 of the General Schedule when
engaged in the actual performance of the
duties vested in the Commission.
(3) All members of the Commission shall
be reimbursed for travel, subsistence, and
other necessary expenses incurred by them
in the, performance of the duties vested in
the Commission.
(g) The Commission shall, from time to
time, and in an annual report, report to the
President and the Congress on its activities
in carrying out the provisions of this see-
tion. The Commission shall make a final re-
port to the President and to the Congress
on its findings pursuant to the study re-
quired to be made under subsection (b) (1)
of this section not later than two years
from the date on which all of the members
of the Commission are appointed. The Com-
mission shall cease to exist thirty days after
the date on which its final report is sub-.
Initted to the President and the Congress.
(h) (1) Any member, officer, or employee
of the Commission, who by virtue of his
employment or official position, has posses-
sion of, or access to, agency records which
contain individually, identifiable informa-
tion the disclosure of which is prohibited
by this section, and who knowing that that
disclosure of the specific material is so pro-
hibited, willfully discloses the material in
any manner to any person or agency not en-
titled to receive it, shall be fined not more
than $5,000.
(2) Any person who knowingly and will-
fully requests or obtains any record con-
cerning an individual from the Commission
under false pretenses shall be fined not more
than $5,000.
SEC. 6. The Office of Management and
Budget shall-
(1) develop guidelines and regulations
for the use of agencies in implementing the
provisions of section 552a of title.5, United
States Code, as added by section 3 of this
Act; and
(2) provide continuing assistance to and
oversight of the implementation of the pro-
visions of such section by agencies.
SEC. 7. (a) (1) It shall be unlawful for any
Federal, State or local government agency
to deny to any individual any right, bene-
fit, or privilege provided by law because of
such individual's refusal to disclose his
social security account number.
(2) The provisions of paragraph (1) of
this subsection shall not apply with respect
to-
(A) any disclosure which is required by
Federal statute, or
(B) the disclosure of a social security
number to any Federal, State, or local agency
maintaining a system of records in existence
and operating before January 1, 1975, if
such disclosure was required under statute
or regulation adopted prior to such date to
verify the identity of an individual.
(b) Any Federal, State,.or local govern-
ment agency which requests an individual to
disclose his social security account number
shall inform that individual whether that
disclosure Is mandatory or voluntary, by
what. statutory or other authority such num-
ber is solicited, and what uses will be made
of it.
SEC. 8. The provisions of this Act shall be
effective on grid after the date of enactment,
except that the amendments made by sec-
tions 3 and 4 shall become effective 270 days
following the day on which this Act is en-
acted.
SEC. 9. There is authorized to be appropri-
ated to carry out the provisions of section 5
of this Act for fiscal years 1975, 1976, and 1977
the sum of $1,500,000, except that hot more
than $760,000 may be expended during any
such fiscal year.
In lieu of the engrossed amendment to the
title, insert the following:
'Amend the title so as to read: "An Act to
amend title 5, United States Code, by adding
a section 552a to safeguard individual pri-
vacy from the misuse of Federal records, to
provide that individuals be granted access
to records concerning them which are main-
tained by Federal agencies, to establish a Pri-
vacy Protection Study Commission, and for
other purposes."
Mr. ERVIN. We preserve most of the
essential elements of the Senate bill
with these few minor changes.
I have been asked by the distinguished
Senator from Louisiana, as chairman of
the Finance Committee, the question
whether these amendments would inter-
fere with the practice of the Internal
Revenue Service in furnishing informa-
tion to the State taxing authorities and
to congressional committees, and my as-
surance is that that will not be inter-
fered with in any respect whatever.
I would like to address more specifi-
cally some other questions raised about
how the bill will work with respect to
tax information and tax returns. Spe-
cifically, the questions relate to the
ability of the IRS to disclose tax infor-
mation under the provision of the bill
that allows disclosure for a routine use
under a purpose which is compatible
with the purpose for which the informa-
tion is collected.
State and local tax agencies now
heavily rely an Federal tax information
and investigations when State agencies
enforce their tax laws. For example,
when the IRS sets up a deficiency against
a taxpayer who lives in a State, the IRS
frequently sends information on this
deficiency to the State, or local, tax
agency. The States use this information
in collecting their own taxes. This infor-
mation may be sent before the State it-
self conducts any tax investigation on
the individual.
Under the bill, this is intended to con-
stitute a routine use for a purpose com-
patible with the purpose for which the
information was collected, so the IRS
could continue to send this information
to the State and local tax agencies as is
presently done.
Also, the IRS sends to State, and lo-
cal, tax agencies the Federal tax returns
of individuals who live in the State so
the State agency can check to see if the
S 21815
individual has reported the same income
and deductions on his Federal and State,
or local, tax returns. Again, the States
rely on this information in enforcing
their own tax laws. Also, this informa-
tion may be sent to a State before it
conducts a tax investigation on its own.
Under the bill, it is intended that this
would be a routine use for a purpose
compatible with the purpose for which
the information is collected so the IRS
can continue to send tax information to
State and local tax agencies in this way.
The IRS, of course, provides tax infor-
mation on individuals to the Justice De-
partment when the Justice Department
is preparing a tax case against the in-
dividual. This inforiiiation is used by the
Justice Department in investigating and
preparing tax cases and also is disclosed
in court as the Justice Department pre-
sents evidence against the individual.
This disclosure both to the Justice De-
partment and in court.would represent
a routine use of the tax information
compatible with the purpose for which
it was collected and this disclosure would
continue to be possible under the provi-
sions of the bill.
Under the bill tax returns and other
tax information can-as under present
law-be disclosed to the tax committees
of the Congress-the Senate Finance
Committee, the House Ways and Means
Committee, and the Joint Committee on
Internal Revenue Taxation.
Under the bill this information can
also continue to be disclosed to the staffs
of these committees, as under present
law.
Under the bill an agency can disclose
tax returns to either House of Congress
or to committees of Congress-to the ex-
tent of matters within their jurisdiction.
Since tax returns can be disclosed by an
agency to the Senate and House, it is
intended that-as under present law-
the committees which have received tax
returns can also disclose them to the
Senate or House, just as the Joint Com-
mittee on Internal Revenue Taxation did
with the tax information on President
Nixon.
I have also prepared an analysis of
these amendments which I submit en-
titled "Analysis of House and Senate
Compromise Amendments to the Federal
Privacy Act," which explains the pro-
visions of the amendments.
Mr. President, I ask unanimous con-
sent that this statement be printed at
this point in the RECORD. .
There being no objection, the analysis
was ordered to be printed in the RECORD,
as follows:
ANALYSIS OF HOUSE AND SENATE COMPROMISE
AMENDMENTS TO THE FEDERAL PRIVACY ACT
The establishment of a Privacy Protection
Study Commission. Only the Senate bill pro-
vided for an oversight and study commission
to assist in the implementation of the act
and to explore areas concerned with indi-
vidual privacy-which have not been included
in the provisions of this legislation. The
compromise measure will establish a Privacy
Protection Study Commission of seven
members instead of the five provided in the
Senate bill. Three of these members will be
appointed by the President, two by the
President of the Senate, and two by the
Speaker of the House of Representatives.
The membership should be represenata-
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CONGRESSIONAL RECORD -SENATE December 17, 1974
tive of the public at large who, by reason of
their knowledge and expertise in the areas
of civil rights and liberties, law, social sci-
ences, and complete technology, business,
and State and local government are well
qualified for service on the Commission.
While there is no statutory requirement, the
Committees could expect that no more than
flu members of the Commission could be
members of one political party.
3t is intended that this commission, which
wi'l serve for a period of two years, will be
solely a study commission. In that capacity
it is hoped the commission can assist the
Executive Branch and the Congress in their
examination of Federal government activi-
ties-and their impact on privacy as well as
representatives of State and local govern-
ments and the private sector who are at-
tempting to deal with this Important
problem.
The scope of the commission's study au-
thority is outlined specifically within the
legislation. In subsection (c) (2) (b), the
commission is directed to examine certain
issues which are not included in the com-
promise between the House and Senate bill,
such as a requirement that a person main-
taining mailing lists remove an individual's
name upon request; the question of prohib-
iting the transfer of individually identifiable
data from the Internal Revenue Service to
other agencies and to Senate governments;
a question of whether the Federal govern-
ment should be liable for general damages
occuring from a willful or intentional viola-
tion of the provisions of (g) (1), (C) or (D)
or this act; and the extent to which require-
ments for security and confidentiality of rec-
ords maintained under this act should be
applied to a person other than an agency.
The commission shall from time to timd
and in an annual report, report to the Con-
gre:us and to the President on Its activities,
and it shall submit a final report of its
findings two years from the date the mem-
bers of the commission are appointed.
Ia addition, the commission is authorized
to provide necessary technical assistance
and prepare model legislation upon request
for State and local governments interested in
adopting privacy legislation. Strict stand-
ards and penalties are placed 'upon com-
mission members and employees with regard
to the handling and unl#wful distribution of
information about individuals which it re-
ceives in the course of carrying out its
functions.
While the provisions of the rest of this act
do not go into effect until 270 days from
the date of enactment, the commission is
authorized to go into effect immediately upon
the appointment of its members in order
that some of its work may be available to
the Congress and the Executive Branch by
the time the remainder of the legislation
becomes effective.
ROUTINE USE
The House bill contains a provision not
provided for in the Senate measure exempt-
ing certain disclosures of information from
the requirement to obtain prior consent
from the subject when the disclosure would
be for a "routine use". The compromise
would define "routine use" to mean; "with
respect to the disclosure of a record, the
use of such records for a purpose which is
compatible with the purpose for which it
was collected."
Where the Senate bill would have placed
tight restrictions upon the transfer of-per-
sonal Information between or outside Fed-
eral agencies, the House bill, under the rou-
tine use provision, would permit an agency
to describe its routine uses In the Federal
Reg:ester and then disseminate the irfforma-
tion without the consent of the individual
or without applying the standards of ac-
cursacy, relevancy, timeliness or completeness
so long as no determination was being made
about the subject.
The compromise definition should serve-
as a caution to agencies to think out in ad-
vance what uses it will make of informa[on.
This act is not intended to impose us due
burdens on the transfer of information to
the Treasury Department to complete pay-
roll checks, the receipt of information by the
Social Security Administration to complete
quarterly posting of accounts, cr other .uch
housekeeping measures and necessarily fre-
quent interagency or intra-agency trans-fern
of information. It is, however, intended to
discourage the unnecessary exchange of in-
formation to another person or to agencies
who may not be as sensitive to the colled-Aug
agency's reasons for using and interpresing
the material.
INFORMATION ON POLITICAL ACTIVTTM3
The House bill tells agencies that they may
not maintain a record concerning the poli-
tical or religious beliefs or activities of any
individual unless maintenance of the record
would be authorized expressly by statute or
by the individual about whom the record is
maintained. The House bill goes on to pro.
vide that this subsection is not deemed. to
prohibit the maintenance of any retort, or
activity which is pertinent to and -within
the scope of a duly authorized law enfo-?ce-
ment-activity.
The Senate- bill constitutes a prohibition
against agency programs established- for the
purpose of collecting or maintaining In-
formation about how individuals exercise
First Amendment rights unless the agency
head specifically determines that the pro-
grarn Is required for the administration of a
statute.
The compromise broadens the House pro-
visions application to all First Amendment
rights and directs the prohibition against
the maintenance of records. However, as in
the House bill, it does permit the mainte-
nance, use, collection or dissemination of
these records which are expressly authorized
by statute or the Individual subject or are
pertinent to a duly authorized law enforce-
ment activity.
CONFIDENTIAL SOURCES OF INFOR 5ATION
The compromise provision for themairte-
nance of information received from con-
fidential sources represents an acceptance
of the House language after receiving an
assurance that. In no instance would that
language deprivean individual from know-
ing of the existence of any information main-
tained in a record about him which was re=
ceived from a "confidential source." The
agencies would not be able to claim that dis-
closure of even a small part of a particular
item would reveal the identity of a confiden-
tial source. The confidential :information
would have to be characterized in some gen-
eral way. The fact of the item's existence.
and a general characterization of that item
would have to be made known to the in-
dividual in every case.
Furthermore, the acceptance of this sec-
tion in no way precludes an individual from
knowing the substance and source of con-
fidential information, should that informa-
tion be used to deny him a promotion it a
government job or access to classified re-
formation or some other right, benefit or
privilege for which he was entitled to bring
legal action when the government wished to
base any part of its legal case on that
information.
Finally, it is important to nose that the
House provision would require that all fu-
ture promises of confidentiality to sources of
information be expressed and not implied
promises. Under the authority to prepare
guidelines for the administration of this act
it is expected that the Office of Manage-
ment and Budget will work closer with agen-
cies to insure that Federal investigators make
sparing use of the ability to make express
promises of confidentiality.
STANDARDS APPLIED TO DISSEMINATION OUTSIDL
? THE GOVERNMENT
H.R. 16373 requires that all records which
are used by an agency in making any deter-
mination about an individual be maintained
with such accuracy, relevance, timeliness and
completeness as is reasonably necessary to
assure fairness to the individual in the deter-
mination. S. 3418 goes much further and re-
quires that agenda apply these standards at
any time that access is granted to the file,
material is added to or taken from the file,
or at any time it is used to make a deter-
mination affecting the subject of the file.
The difference between these two measures
represents a difference in philosophy regard-
ing the handling of personal information.
The Senate measure is designed to comple-
ment the requirement that agencies main-
tain only information which is relevant and
necessary to accomplish a statutory purpose.
The standard of relevancy should be that
statutory basis for an information program
which is now set forth in (e) (1) of the com-
promise measure. By adopting this section,
the Senate hoped to encourage a periodic re-
view of personal information contained to
Federal records as those records were used
or disseminated for any purpose.
The House provision 'would have applied
these important standards for maintenance
of information in records at any time a de.
termination is made about an individual.
The House bill goes on to permit additional
"routine uses" of information which may
not rise to the threshhold of an "agency de-
termination" without requiring that the in-
formation be upgraded to meet these stand-
ards.
The compromise amendment would adopt
the section of the House bill applying the
standards of accuracy, relevance, timeliness
and completeness at the time of a determi-
nation. It would add the additional require-
ment, however, that prior to the dissemina-
tion of any record about an individual to any
person other than an other agency, the send-
ing agency shall make a reasonable -effort to
assure that the record is accurate, complete,
timely, and relevant. This proviso was in-
cluded because Federal agencies would be
governed by a requirement to clean up their
records- before a determination is made and
limited by a requirement to publish each
routine use of information In the Federal
Register, but the use of information by per-
sons outside the Federal government would
not be governed by this act. Therefore, agen-
cies are directed to be far more careful about
the dissemination of personal information to
persons not governed by the enforcement
provisions of this bill.
THE FREEDOM OF INFORMATION ACT AND
PRIVACY
Perhaps the most difficult task in drafting
Federal privacy legislation was that of de-
terminingthe proper balance between the
public's right to know about the conduct of,
their government and their equally impor-
tant right to have information which is per-
sonal to them maintained with the greatest
degreeof confidence by Federal agencies. The
House bill made no specific provision for
Freedom of Information Act requests of ma-
terial which might contain information pro-
tected by the Privacy Act. Instead, in the
committee report on the bill, it recognized
that:
"This legislation would have an effect on
subsection (b) (6) of the Freedom of Infor-
mation Act (8 U.S.C., Section 552) which
states that the provisions regarding disclo-
sure of information to the public shall not
apply to material 'the disclosure of which
would constitute a clearly unwarranted In-
vasion of personal privacy.' H.R. 16373 would
make all individually identifiable Informa-
tion in government files exempt from public
disclosure. Such disclosure could be made
available to the public only pursuant to rules
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December 17, 1974 CONGRESSIONAL RECORD - SENATE: S 21817
published by agencies In the Federal Register
permitting the transfer of particular data
to persons other than the individuals to
whom they pertain."
The committee report went on to express
a desire that agencies continue to make cer-
tain individually identifiable records open
to the public because such disclosure would
be In the public interest. -
The Senate bill reflected the position of
an earlier draft of the House measure in
Sec'Eion 205 (b) where it provided that noth-
in in the act shall' be construed to permit
th'e withholding of any personal information
wich is otherwise required to be disclosed
by law or any regulation thereunder. This
wsection was intended as specific recognition
of the need to permit disclosure under the
Freedom. of Information Act.
The compromise amendment would add
an additional condition of disclosure to the
House bill which prohibits disclosure with-
out written request of an individual unless
disclosure of the record would be pursuant
to Section 552 of the Freedom of Information
Act. This compromise is designed to preserve
the status quo as interpreted by the courts
regarding the disclosure of personal infor-
mation under that section.
A related amendment taken from the Sen-
ate bill would prohibit any agency from re-
lying upon any exemption contained in Sec-
tion 552 to withhold from an individual any
record which is otherwise accessible to such
individual under the provisions of this sec-
tion.
CIVIL REMEDIES
Under the House bill an individual would
be permitted to seek an injunction against
an agency only to produce his record upon
a failure of an agency to comply with his
request. An individual would be able to sue
for damages only if an agency failed to main-
tain a record about him with such accuracy,
relevance, timeliness and completeness as
would be necessary to assure fairness and a
determination about him, and consequently
an adverse determination was made. A suit
for damages would also be in order against
an agency if it fails' to comply with any
other provision of this act in such a way to
have an adverse effect on the individual.
Under the Senate bill Injunctive relief
would be available to an individual to en-
force any right granted to him. And an in-
dividual would be permitted to sue for dam-
ages for any action or omission of an officer
or employee of the government who violates
a provision of the act.
The standard for recovery of damages un-
der the House bill would have rested on the
determination by a court that the agency
acted in a manner which was willful, arbi-
trary, or capricious. The Senate bill would
have permitted recovery against an agency
on a finding that the agency was negligent
in handling his records.
These amendments represent a compromise
between the two positions, permitting an
individual to seek injunctive relief to correct
or amend a record maintained by an agency.
In a suit for damages, the amendment re-
flects a belief that a finding of willful, arbi-
trary, or capricious action is too harsh a
standard of proof for an individual to exer-
cise the rights granted by this legislation.
Thus the standard for recovery of damages
was reduced to "willful or intentional" ac-
tion by an agency. On a continuum between
negligence and the very high standard of
willful, arbitrary, or capricious conduct, this
standard is viewed as only somewhat greater
than gross negligence.
Both the House and Senate bills povided
for an individual to recover reasonable at-
torney fees and costs of, litigation. The com-
promise amendments adopt the standard of
the House bill permitting the court to award
attorney fees and reasonable costs to an in-
dividual where the complainant has sub-
stantially prevailed, in an injunctive action.
Fees would be required to be paid with any
award of damages.
ACCESS AND CHALLENGE TO RECORDS
The House bill would apply a standard of
promptness to agency considerations of re-
quests for access to records and requests to
challenge or correct those records. In addi-
tion, it allows the individual to request a
review of a refusal to correct a record by the
agency official named in its public notice
of information systems.
The Senate bill requires the agency to
make a determination with respect to an in-
dividual's request for a record change within
60'days of the request and to permit him a
hearing within 30 days of a request for one,
with extension for good cause permitted. The
individual would have the option of a formal
or informal hearing procedure within the
agency upon a refusal of a request to correct
or amend a record. The compromise amend-
ment would require the agency to respond
within 10 working days to acknowledge an
individual's request to amend a record. Fol-
lowing acknowledgement, the agency must
promptly correct the information which the
individual believes Is not accurate, relevant,
timely or complete or inform the individual
of its refusal.
If the individual disagrees with the re-
fusal of the agency to amend his record, the
agency shall conduct a review of that refusal
within 30 working days, provided than an
extension may be obtained for good cause.
We expect that agency heads will conduct
these reviews themselves or assign officers of
the rank of Deputy Assistant Secretary or
above to review them.
The House bill would not have permitted
a Federal District Court to review de novo
an agency's refusal to amend a record. The
compromise adopts the Senate provision
which would require a de novo review. of such
refusal and to order a correction where
merited. Finally, the compromise requires
that in any disclosure of information sub-
ject to disagreement that the agency include
with the disclosure a notation of any dispute
over the information or a copy of any state-
ment submitted by the individual stating
his reasons for disagreement with the
Information.
,,. ACCOUNTING FOR DISCLOSURES
Section c of the House bill requires an
agency to ,inform any person or another
agency about a correction or notation of
dispute regarding a record that has been dis-
closed to that person or agency within two
years before making the correction or nota-
tion. It would not apply if no accounting of
the disclosure had been required. No such
limitation was placed upon accounting for
disclosures In the Senate bill and the Com-
promise measure would require any person
or agency receiving, the record at any time
before a notation or dispute is made to be
notified if an accounting of the disclosures
were made.
The House bill requires an agency to main-
tain an accounting for disclosures for only
five years. The Senate bill places no limita-
tion on the length of time for maintaining
such disclosures. The compromise amend-
ment would require maintaining of the dis-
closure for five years or the life of the rec-
ord, whichever is longer.
LIMITATIONS ON THE TYPES OF INFORMATION
COLLECTED. AND THE USE OF THIRD PARTY
INFORMATION
The Senate bill requires Federal agencies
to maintain only such information about an,
individual as is relevant and necessary to
accomplish a statutory purpose of the agen-
cy. The House bill did not address this
issue. The compromise amendment modifies
the Senate provision to permit the collection
of information which would be required to
accomplish not only a purpose set out by a
statute but also a purpose outlined by a
Presidential Executive Order.
The provision is included to limit the col-
lection of extraneous information by Federal
agencies. It requires that a conscious deci-
sion be made that the information is re-
quired to meet the needs of an agency as
dictated by a statute. Agencies should for-
mulate as precisely as possible the policy
objectives to be served by a data gathering,
activity before it is undertaken. It is hoped
that multiple requests for information will
be reduced and that agencies will collect no
more sensitive personal information than Is
necessary.
The Senate bill- also requires agencies to
collect information to' the greatest extent
practicable directly from the subject when
that information could result in an adverse
determination about an Individual's rights
and benefits and privileges under a Federal
program. The House bill had no provision,
but the compromise amendment accepts the
Senate. language. This section is designed
to discourage the collection of personal in-
formation from third party sources and
therefore to encourage the accuracy of Fed-
eral data gathering. It supports the principle
that an individual should to the greatest
extent possible be in control of information
about him which is given to the government.
This may not be practical in all cases for
financial or logistical reasons or because of
other statutory requirements. However, it is
a principle designed to insure fairness in
information collection which should be in-
stituted wherever possible.
ARCHIVAL RECORDS
The House bill provides that records ac-
cepted by the Administrator of General
Services for temporary storage and servicing
shall be considered for purposes of this act,
to be maintained by the agency which de-
posits the records. Records transferred to the
National Archives after the effective date of
this Act for purposes of historical preserva-
tion are considered to be maintained by the
Archives and are subject only to limited
provisions of the Act. Records transferred to
the National Archives before the effective
date of this Act are not subject to the provi-
sions of this Act.
The Senate bill provides that records ac-
cepted by the Administrator of General Serv-
ices for temporary storage and servicing shall
be considered, for purposes of this Act, to be
maintained by the agency which deposits the
records. All records transferred to the Na-
tional Archives for purposes of historical
preservation are considered to be maintained
by the Archives and are subject only to those
provisions of this Act requiring annual pub-
lic notice of the existence and character of
the information systems maintained by the
Archives, establishment of appropriate safe-
guards to insure the security and integrity of
preserved personal information, and promul-
gation and implementation of rules to in-
sure the effective enforcement of those safe-
guards.
The compromise amendment subjects rec-
ords transferred to the National Archives for
historical preservation to a modified. require-
ment for annual public notice. It is intended
that the notice provision not be applied sep-
arately and speef cally to each of the many
thousands of separate systems of records
transferred to the Archives prior to the ef-
fective date of this Act, but rather that a
more general description be provided which
pertains to meaningful groupings of record
systems. However, record systems transferred
to the Archives after the effective date of this
Act are individually subject to the specific
notice provisions. This coverage is intended
to support and encourage improvements in
the organization and cataloging of records
maintained by the Archives, both to make
authorized access to such records simpler and
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CONGRESSIONAL RECORD-SENATE December 17, 1 9 74
to insure broader application to Archival
records of safeguards for data security and
confidentiality.
MORATORIUM ON THE USE OF THE SOCIAL
SECURITY ACCOUNT NUMBER
The House bill provides that a Federal
agency, or a State or local government act-
ing in compliance with Federal law or a
federally assisted program, is prohibited
from denying to individuals rights, benefits
or privileges by reason of refusal to disclose
the social security account number. Any
such governmental agency is further pro-
hibited fronf utilizing the social security
account number for purposes apart from
verification of individual identity except
where another purpose is specifically au-
thorized by law. Exempt from these prohibi-
tions are systems of records in existence
and operating prior to January 1, 1975. Ex-
emption is further granted where disclosure
of a social security account number is re-
quired by Federal law.
The Senate bill provides that a Federal
agency, or a State or local government, is
prohibited from- denying to individuals
rights, benefits or privileges by reason of
refusal to disclose the social security account
number. Persons engaged in the business of
commercial transactions or activities are
prohibited from discriminating against any
individual in the course of such activities
by reason of refusal to disclose the social
security account number. Exempt from
these prohibitions are systems of records in
existence and operating prior to January 1,
1975. Also exempt are disclosures of the so-
cial security account number required by
Federal law. This section further provides
that any Federal, State or local government
agency or any person who requests an indi-
vidual to disclose his-social-security number
shall inform that individual whether that
disclosure is mandatory or voluntary, by
what statutory or other authority such
number is solicited, what uses will be made
of it, and what rules of confidentiality will
govern it.
The compromise amendment changes the
House language by broadening the coverage
of State and local governments so as to pro-
hibit any new activity by such a government
that would condition a right, benefit or
privilege upon an individual's disclosure of
his social security account number.
To clarify the intent of the Senate and
House, the grandfather clause of this section
was re-stated to exempt only those govern-
mental uses of the social security account
number continuing from before January 1,
1975, pursuant to a prior law or regulation
that, for purposes of verifying identity, re-
quired individuals to disclose their social
security account number as a condition for
exercising a right, benefit, or privilege. Thus,
for illustration, after January 1, 1975, it will
be unlawful to commence operation of a
State or local government procedure that
requires individuals to disclose their social
security account number in order to register
a motor vehicle, obtain a driver's license or
other permit, or exercise the right to vote
in an election. The House section was
amended to include the Senate provision
for informing an individual requested to dis-
close his social security account number of
the nature, authority and purpose of the
request. This provision is intended to permit
an individual to make an informed decision
whether or not to disclose. the social security
account number, and it is intended to bring
recognition to, and discourage, unnecessary
or improper uses of that number.
MAILING LISTS -
The Senate bill prohibits the sale or rental
of an individual's name and address by a
Federal agency unless such action is specifi-
cally authorized by law. This section further
provides that upon written request of any In-
dividual, any person engaged in interstate
commerce who maintains a mailing list shall
remove the individual's name and address
from such list.
The compromise amendment accepts the
Senate prohibition of the sale or rental of
mailing lists by Federal agencies. Names and
addresses associated with other personal in-
formation obtained by Federal agencies pur-
suant to statute or executive order, or by
unauthorized means, are thus not permitted
to be sold or rented to the publio. Public dis-
closure of mailing lists by authority of Sec-
tion 552(b), the Freedom of Infcrmatign Act,
or by authority of other Federal law, is not
prohibited. Public disclosure would be per-
mitted in certain other circumstances w',ere
the agency determines that the potential for
adverse effects from such disclosure on the
privacy or other rights of persons on a trail-
ing list are inconsequential wad that the
benefits likely to- accrue to such persons and
to the general public are clear and signifi-
cant. In this regard, a directive from, the
OfficeOf Management and Budget forbidding
disclosure by Federal agencies of a person's
name absent his specific conse:it woulc be
relevant to the intent of this subsection.
RULEMAKING PROCEDURES FOR MAKING
EXEMPTIONS
To obtain an exemption from certain pro-
visions of this Act under the House hill,
agencies entitled to those exemptions Would
berequired to public notice of the proposed
exemptions in the Federal Register pursuant
to Section 553 of the Administrative Proce-
dures Act permitting comments. to be ?ub-
mitted in writing for inclusion in the Reword
with such exemptions.
The Senate bill applied a much more
stringent standard and would have required
agencies to hold adjudicatory hearings as
provided in APA Sections 556 and 557. 'rhe
compromise agreement would no longer re-
quire full adjudicatory preceeding -by any
agency seeking an exemption permitted
under the act. However, agencies would ,till
be required to publish notice of a proposed
rulemaking in the Federal Register and could
not waive the 30 day period for such publica-
tion. In addition it is specifically provided
in this act that agencies obtaining such ex-
emptions state the reasons why the system
of records is to be exempted. Should ob-
jection be filed with the Commission to any
rulemaking exemption, It is expected ttiat
the agency would respond specifically to
each objection In setting forth its reason in
support of the exemption.
DUTIES OF THE OFFICE OF MANAGEMENT
AND BUDGET
Under the Senate bill the Priwwacy Protec-
tion Commission was directed to develop
model guidelines and conduct certain over-
sight of the implementation of this Act to
Federal agencies. Since the compromise
amendment would change the scope of .au-
thority of the commission, it wcs felt there
remained a need for an agency within the
government to develop guidelines and regu-
lations for agencies to use in implementing
the provisions of the Act and to provide con-
tinuing assistance to and oversight of the
implementation of the provisions of this
Act by the-agencies.
This function has been assigned. to _he
Office of Management and Budget.
REPORTS ON NEW SYSTEMS
Under the Senate bill the Privacy Pro-
tection Commission was to have a central
role in evaluating proposals to establish or
alter new systems of information in the Fed-
eral government. If the commission had de-
termined that such a proposal was not in
compliance with the standards established
by the Senate bill the agency which prepared
the report could not proceed to establish
or modify an information system for 60
days in order to give the Congress and the
President an opportunity to review that re-
port and the commission's recommendations.
The compromise amendment still would
require that agencies provide adequate ad-
vance notice to the Congress and to the Of-
fice of Management and Budget oi any pro-
posal to establish or alter a system of records
in order to permit an evaluation cif the 'pri-
vacy impact of that proposal. Irk addition
to the privacy impact, consideratlpn sho a:id
be given to the effect the proposal .may have
on our Federal system and on the $eparatidn
of powers between the three branches cif
government. These concerns are expressed iii
connection with recent proposals by thc; Gen-
eral Services Administration and Depart-
ment of Agriculture to establish-a giant data
facility for the storing and sharing .of In-
formation between those and perhaps other
departments. The language in tl a Senate
report on pages 64-66 reflects the Cgnceyn at-
tached to the inclusion of this laiigiz:age in
S. 3418.
The acceptance of the compromise amend-
ment does not question the motivation or
need for improving the Federal government's
data gathering and handling capabilities. It
does express a concern, however, that the
office charged with central management and
oversight of Federal activities and the Con-
gress have an opportunity to examine the
impact of new or altered data systems on
Our citizens, the provisions for confiden-
tiality and security in those systems and the
extent to which -the creation of the system
will alter or change interagency or intergov-
ernmental relationships related to informa-
tion programs.
GOVERNMENT CONTRACTS
The Senate bill would have extended its
provisions outside the Federal government
only to those contractors, grantees or par-
ticipants in agreements with the- Federal gov-
ernment, where the purpose of the contract.
grant or agreement was to establish or alter
an information system. It addressed a con-
cern over the policy governing the sharing
of Federal criminal history information with
State and local government law enforcement
-agencies and for the amount of money which
has been spent through the Law Enforcement
Assistance Administration for the purchase
of State and local government criminal in-
formation systems.
The compromise amendment would now
permit Federal law enforcement agenciesto
determine to what extent their information
systems would be covered by the Act and to
what extent they will extend that coverage
to those with which they share that infor-
mation or resources.
At the same time it is recognized that
many Federal agencies contract for the op-
eration of systems of records on behalf of
the agency in order to accomplish an agency
function. It was provided therefore that such
contracts if agreed to on or after the effective
date of this legislation shall provide that
those contractors and any employees of those
contractors shall be considered to be em-
ployees of an agency and subject to the pro-
visions of the legislation.
DEFINITION OF RECORD
The definition of the term "Record' as
provided in the House bill has been expanded
to assure the intent that a record can in-
clude as little as one descriptive item about
an individual and that such records may in-
corporate but not be limited to information
about an individual's education, financial
transactions, medical history, criminal or
employment records, and that they may con-
tain his name, or the identifying number,
symbol, or other identifying particularly as-
signed to the individual, such as a finger or
voice print or a photograph. The amended
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?i
definition was adopted to more closely re- Mr. President, I am pleased to note that I wish to acknowledge also the valuable con
flect the definition of "personal informa- the compromise which has been reached be- tributions of the Committees special con-
tion" as used in the Senate bill. tween the Senate and the House on this pri- sultant, Professor Alan F. Westin of Colum-
DEFINITION OF THE TERM AGENCY vacy legislation will provide for the estab- bia University, whose testimony in June and
Some questions have been raised regard- lishment of a Privacy Protection Study expert counsel through the summer provided
ing the applicability of H.R. 16373 and S. Commission. While the scope of the com- the basis for policy judgments and for de-
3418 to the U.S. Postal Service, the Postal mission's authority is not as broad as we tailed amendment of the bill in order that a
Rate Commission and similarly related en- had sought in the Senate bill, it should workable proposal could be reported to the
as an important function in provid- Senate. Professor Christopher Pyle of the
titles.
H.R. 16373 defines "agency" to mean an
agency as defined in Section 552(e) of Title
V. S. 3418 defines the term "Federal agency"
to mean any department, agency, instru-
mentality, or establishment in the Execu-
tive Branch of the Government of the United
States and includes any officer or employee
thereof.
A compromise agreement adopts the def-
inition by reference to section 552(e) as
provided in H.R. 16373. It is the Intention of
the House and Senate that the Federal Pri-
vacy Act clearly apply to the Postal .Service,
the Postal Rate Commission, and government
corporations or government controlled cor-
porations now in existence or which may be
created in the future as provided in Public
Law 93-502, the amendments to the Free-
dom of Information Act.
While Section 410(a) of Title 39 of the
U.S. Code exempts the Postal Service and
Postal Rate Commission from legislation
generally applicable to Federal agencies,
barring a clear expression of Congressional
intent to the contrary, is the considered in-
tent of the committees which consider this
legislation that it should apply to the Postal
Service and Postal. Rate Commission, not-
withstanding the operation of Title 39 Sec-
tion 14(a) of the United States Code.
Mr. ERVIN. Mr. President, I have also
' prepared a statement giving credit to
members of the Government Operations
Committee, and another statement giv-
ing credit to members of the Subcom-
mittee on Constitutional Rights, which
worked on privacy matters for many
years,, commending them for their work.
I would like to ask unanimous consent
these be printed in the RECORD at this
point.
There being no objection, the state-
ments were ordered to be printed in the
RECORD, as follows:
STATEMENT TO MEMBERS OF THE GOVERNMENT
OPERATION COMMITTEE
Mr. President, S. 3418 represents the cul-
mination of many months of work by the
Committee on Government Operations to
fashion legislation that will guarantee the
rights of all Americans with respect to the
gathering, use, and disclosure of information
about them by the Federal Government.
Again, I want to express my gratitude to
two members of this committee who have
helped make this legislation possible Senator
Percy from Illinois, the ranking minority
member, and- Senator Muskie from Maine,
the chairman of the Subcommittee on Inter-
governmental Relations.
Their efforts, and that of their staffs have
been indispensible in helping to reach the
compromise reflected in the amendments
adopted by the Senate today.
Great credit also is due to Senator Ribicoff,
Senator Javits and the other cosponsors of
this legislation as well as to all the members
of the Committee on Government Opera-
tions. Without their many valuable contribu-
kind and caliber of information about prob-
lems related to privacy in the public and
private sectors which are needed to make
informed decisions.
I believe that this bill also strengthens
the ability of the individual to enforce the
rights granted to him under this act from
the provisions which were contained in the
House measure.
Finally the compromise bill contains the
minimum recommendations made for pro-
tecting privacy and for establishing rules
of due process for the Government's use of
computer technology for personal data sys-
tems.
It is in keeping, with the recommenda-
tion of the Committee on Government Opera-
tions which stated the purpose of the Sen-
ate bill is to:
Promote government respect for the pri-
vacy of citizens by requiring all departments
and agencies of the executive branch and
their employees to observe certain constitu-
tional rules in the computerizing, collection,
management, use and disclosure of personal
information about individuals.
It is to promote accountability, responsi-
bility, legislative oversight,, and open gov-
ernment with respect to the use of computer
technology in the personal information sys-
tems and data banks of the Federal gov-
ernment and with respect to all of its other
manual or mechanized files.
It is designed to prevent the kind of il-
legal, unwise, over-broad, investigation and
record surveillance or law-abiding citizens
which has resulted in recent years from ac-
tions of some over-zealous investigators, from
the curiosity of some government admini-
strators, and from the wrongful disclosure
and use of personal files held by Federal
agencies.
It is to prevent the secret gathering of
information or the creation of secret infor-
mation systems or data banks on Americans
by employees of the departments and
agencies of the Executive branch.
It is designed to set in motion a long-
overdue evaluation of the needs of the Fed-
eral government- to acquire and retain per-
sonal information on Americans, by requir-
ing stricter review within agencies or criteria
for collection and retention of such infor-
mation.
It is also to promote observance of valued
principles of fairness and individual privacy
by those who develop, operate and admini-
ster other major institutional and organiza-
tional data banks of government and society.
While this is a momentous day for the Sen-
ate, it's work in the field of privacy is not
completed with the adoption of this legis-
lation. It will require aggressive oversight by
the Committee on Government Operations,
and I would hope that Senator Muskie
through his Subcommittee on Intergovern-
mental Relations, and that Senator Percy, as
the ranking minority member of the Com-
mittee on Government Operations, will con-
tinue to exercise their leadership in this re-
gard.
tions, we would have been unable to develop STATEMENT TO MEMBERS OF THE SUBCOMMITTEE
the sensible bill that the committee reported - ON CONSTITUTIONAL RIGHTS
unanimously to the Senate. Mr. ERVIN. Mr. President, when the Senate
Finally; the Committee wishes to express approved S. 3418 in November, I paid tribute
appreciation for the valuable time and effort to the contributions of the members and the
devoted to the drafting of this legislation by staff of the Government Operations Com-
Mr. Bill Ticer, in the office of the Senate mittee and to t he staffs of the members of
Legislative Counsel. - the Committee who had worked on the bill.
John Jay College of Criminal Justice in New
York, also. rendered valuable assistance to
the Committee, as he has during his service
as a consultant of the Constitutional Rights
Subcommittee.
Much credit is also due to Lawrence Baskir,
former chief counsel of the Constitutional
Rights Subcommittee, Mark Gitenstein, pres-
ent chief Counsel of the Subcommittee, Irene
Margolis, Dorothy Glanzer and the rest of
the Subcommittee staff who helped immeas-
urably in the development of the bill and
report during the joint hearings and study.
Furthermore, no person who has walked
on Capitol Hill merits greater commenda-
tion in this connection than Marcia Mac-
Naughton, who served for a substantial, time
on the staff of the Subcommittee on Consti-
tutional Rights and made herself most
knowledgeable in respect to privacy and the
threats to it. During past months she left
the academic world temporarily to aid the
Senate Committee' on Government Opera-
tions in the drafting of S. 3418.
I believe the comprehensive hearings and
studies of the Constitutional Rights Sub-
committee have helped to provide the Con-.
grass with an excellent basis for this and
other needed legislation in years to come.
I hope- the many published volumes of the
result of the Subcommittee's work on pri-
vacy, computers and data banks will aid,
those working on this subject in the future.
The members who serve on that Subcommit-
tee have made many contributions to the
protection of privacy by their sponsorship
of legislation and their support and partici-
pation of the investigations and reports
which were needed to draft legislation. They
have also provided the Executive Branch with
the background and information for reports
and action to protect privacy and I hope
officials in all federal departments and agen-
cies will continue to take advantage of this
research and this documentation of public
concern over governmental incursion on in-
dividual freedoms.
Since the Senate and the House passed
their respective privacy bills, Jim Davidson
has labored tirelessly to reconcile their
varying provisions and thus make the en-
actment of legislation to protect the rights
of privacy of Americans possible. I will al-
ways be grateful to him for his most help-
ful assistance to me.
Mr. ERVIN. Mr. President, I would
urge all Members of. the Senate to sup-
port these amendments- with my assur-
ance that I have been informed by the.
House that the House will immediately
take them and send the bill to the White
House and we will have, for the first time
in the history of our Nation, some effec-
tive privacy legislation.
Mr. PERCY. Mr. President, the com-
promise privacy bill we bring before the
Senate today is a remarkable achieve-
ment. It marks the culmination of more
than 10 years of concern and attention
by the Congress to the fundamental issue
of personal privacy. It represents the
continuing efforts by the distinguished
senior Senator from North Carolina (Mr.
ERVIN) to cultivate that concern and I
believe this legislation is a fine tribute
to Senator ERVIN's work.
I would like to strongly commend the
staff of the Government Operations Com-
mittee In their efforts to produce a com-
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CONGRESSIONAL RECORD -SENATE December 17, 1974
promise with the House. Their diligent
efforts have been quite crucial to the
successful resolution of extremely diffi-
cult policy differences. In this regard, I
would like to give a special commenda-
tion and extend my appreciation to M.
Bill Ticer, office of the Senate Legislative
Counsel, for his dedicated assistance to
the committee staff during the past d
months. I understand that his partiei??
pation was of immense value in clarify..
Ing difficult portions of the legislation.
I also commend Congressman MOOR-
-HEAD' Of Pennsylvania, Congressman
ERLENBORN, and Congressman GOLD.
WATER for their diligent efforts in con-
nection with this legislation.
I am pleased to note that the com??
promise which has been reached does in-
elude a provision for a 2-year Privacy
Protection Study Commission. While this
Commission does not retain some of the
enforcement powers afforded to it in the
Senate-passed bill, S. 3418, I believe that
It is certainly equipped to perform the
functions intended by the Senate. The
Commission will be responsible for as-
sembling experts in the fields of com-
puter science, law, social sciences, busi-
ness, and Government to study and rec
onmlend solutions to privacy problems
not adequately addressed by this bill. I
believe that the Commission will serve
to keep focused attention on this im-
portant issue of public policy so that
Federal agencies, State and local govern-
ments, and private organizations will
continue to implement the basic prin-
ciples of fair treatment for personal data
contained in this bill.
I am pleased that the compromise bill
contains the provision, introduced by
Senator GOLDWATER and myself, to limit
abuses of the social security number. I
look forward to a more final solution to
the problems associated with this num-
ber, which is widely used as a universal
identifier in this country. The Privacy
Protection Study Commission will study
the problem and bring back to the Con-
gress policy recommendations on this
matter.
Finally, I am pleased that Congress has
acted with authority to establish, across
the board In the Federal Government,
fundamental protections of personal pri-
vacy. The challenge now rests with the
Federal agencies to adopt regulations and
implement procedures to carry out the
intent of this statute. We Intend to work
with the agencies and we hope that they
will cooperate fully, in return, withthe
Government Operations Committees of
both Houses, in their oversight capacity,
and with the Privacy Protection Study
Commission, In its study capacity.
Mr. MUSKIE. Mr. President, this is a
momentous day for the Senate and for
every citizen of this country on whom
the Government maintains a record.
The compromise agreement which has
been worked out between the Senate and -
the House under the able leadership of
the chairman of the Committee on Gov-
ernment Operations, Mr. ERVIN, repre-
sents the first major assault on the inva-
sion of privacy in recent decades.
. Mr. President, I would like to note the
outstanding work in the development of
this bill by Mr. James H. Davidson, of
the staff of my Subcommittee on Iliter-
governmental Relations, who has spent
countless hours working on this legisla-
tion.
The passage of this legislation will
rightfully earn for this Congress the rep-
utation as the Privacy Congress.
While the courts have begun to recog-
nize the capacity and the practices of
the government to invade the privacy of
its citizens, it is the responsibility of the
Congress to develop the legislative pro-
teelion against those invasions.
The Federal Privacy Act draws upon
the constitutional and judicial recogni-
tion accorded to the right of privacy and
translates it into a system of procedural
and substantive safeguards against ob-
trusive Government information-gather-
ing practices.
Until now we have allowed techno-
logical advances In Federal recordkeep-
ing to outpace our efforts to control and
safeguard the information-we have col-
lected. This act would restore balance
against those advances by adding new
protections for every citizen.
I am pleased to notethat this act has
developed an important balance between
the rights of privacy of each of our citi-
zens and the public need for disclosure of
Government materials under the Free-
dom of Information Act.
Mr. President, this legislation incor-
porates fundamental rights of fair in-
formation practices into Federal infor-
mation systems. It is an Important be-
ginning. And I hope to be able to follow
the implementation of this act in the
next Congress through the 'work of my
Subcommittee on Intergovernmental
Relations.
Mr. BROCK. Will the Senator yield?
Mr. ERVIN. I yield to the Senator
from Tennessee.
Mr. BROCK. Mr. President, may I
take a moment to express my gratitude
to the Senator from North Carolina for
his leadership in a matter in which I
have had, as so many others have had, a
great, continuing, and growing concern.
The privacy bill Is a much-needed piece
of reform legislation which I am proud
to have sponsored. -
There Is no questionabout the abuse
of personal privacy in this country, and
it is growing at a geometric rate each
year. I understand, for exan:;ple, that it
is presently possible to have every tele-
phone in America bugged.
Privacy is not a privilege, it is a basic
right, a fundamental freedom which is
deeply rooted in our American heritage.
It is the ability to be secure in our
homes, persons, and papers. We simply
must take firm and specific action to
protect the people of this Nation from
the erosion of their personal libertie=.
This bill, which addresses itself to the
use and abuse of Federal data banks, es-
tablishes several basic standards. First,
only relevant personal information can
be collected, and the individual must. be
informed as to which data i s required,
which is voluntary, why it is needed, and
under which authority. Second, cnly
timely data may be maintained and dis-
seminated, and access to, and security
of, the data must be regulated. Addition-
ally, the nature of all data banks must
be announced. Individuals will have ac-
cess to inspect their records and must be
told the source of the data and how it
is used. Finally, information challenged
by an individual must be reinvestigated
and, where proper, modified or corrected.
I personally want to express my great
debt to the Senator from North Caro-
lina for his efforts to remedy this
problem.
We did have differences with the
House, but the compromise is an effort
to deal with those differences in a very
frank and very healthy way.
I appreciate the result of the labors of
the gentleman and I want him to know
it.
Mr. ERVIN. I thank my friend from
Tennessee and want to commend him
for the work he did in the Government
Operations Committee in this legislation.
Mr. President, I ask for the yeas and
nays on the motion.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
Mr. ERVIN. I yield the floor.
Mr. HRUSKA. Mr. President.
The PRESIDING OFFICER. The Sen-
ator from Nebraska.
Mr. HRUSKA. Mr. President, I yfelc
to the Senator from West Virginia, re-,
serving my right to the floor, for a brief
statement.
AMENDMENT OF THE SOLID WASTI
DISPOSAL ACT
Mr. RANDOLPH. Mr. President, I"--
port from the Committee on Public
Works H.R. 16045, and ask unanimous
consent for its immediate consideration.
The PRESIDING OFFICER. The bill
will be stated by title.
The assistant legislative clerk read as
follows:
A bill (H.R. 16045) to amend the Solid
Waste Disposal Act to authorize appropria-
tions for fiscal years 1975 and 1976 and to
make certain technical and conforming
changes, reported with an amendment.
The PRESIDING OFFICER. Is there
objection to the consideration of the bill.
There being no objection, the Senate
proceeded to consider the bill (H.R.
16045) which had been reported from
the Committee on Public Works with an
amendment to strike out all after the
enacting clause and Insert:
That paragraph (2) of subsection (a) of
section 216 of the Solid Waste Disposal Act,
as amended (87 Stat. 11), is amended-by
striking "and not to exceed $76,000.000 for
the fiscal year ending June 30, 1974." and in-
serting in lieu thereof ", not to exceed $76,-
000,000 for the fiscal year ending June 30,
1974, and not to exceed $76,000,000 for the fis-
cal year ending June 30, 1975."
The amendment was agreed to.
The amendment was ordered to be
engrossed and the bill to be read a third
time.
The bill was read the third time, and
passed.
The title was amended so as to read:
"To amend the Solid Waste Disposal Act
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December 17, 1974 CONGRESSIONAL RECORD- SENATE S 21821
to authorize appropriations for fiscal
year 1975."
ORDER OF BUSINESS
Mr. ROBERT C. BYRD. Will the Sen-
ator from Nebraska yield for 30 seconds
without losing his right to the floor?
Mr. HRUSKA. I am happy to yield.
Mr. ROBERT C. BYRD. With ' the
understanding his remarks not be inter-
rupted in the RECORD.
Mr. ROBERT C. BYRD. Mr. President,
for the information of the Senators,
following this rollcall I would anticipate
another measure that will be coming up
that would very likely generate another
rollcall.
I thank the Senator.
PRIVACY ACT OF 1974
The Senate continued with the con-
sideration of the message from the House
of Representatives on the bill (S. 3418)
to establish a Privacy Protection Com-
mission, to provide management systems
in Federal agencies and certain other
organizations wtih respect to the gather-
ing and disclosure of information con-
cerning individuals, and for other
purposes.
The PRESIDING OFFICER. The Sen-
ator from Nebraska.
Mr. HRUSKA. Mr. President, I rise to
suggest that the consideration of the in-
stant bill, S. 3418, pursuant to the mo-
tion of the Senator from North Carolina,
is not exactly in keeping with the better
traditions of this body regarding con-
sideration of legislative of this gravity.
I am not going to take very long, but I
would like to recite briefly the chronology
of this legislation and what we are doing
here today.
Last month, Mr. President, S. 3418 was
approved by this body and sent to the
other body. The bill, incidentally, as
passed by the Senate, was about 40
printed pages in length.
The House also passed a measure, at
approximately the same time, H.R. 16373,
which dealt with the question of privacy
individuals' records. While many provi-
sions of the House and Senate bill were
similar, the Senate version contained
provisions establishing a privacy com-
mission, with far reaching powers, and
providing extensive coverage of law en-
forcement records, features not found in
the House bill.
The other body took the Senate bill
S. 3418, and, upon consideration thereof,
voted to strike all but the enacting clause
and insert entirely in place therein the
text of H.R. 16373, which consisted of
approximately 20 printed pages. Appar-
ently, the members of the Senate Gov-
ernment Operations Committee were dis-
pleased with the House version. There
was contact established between the
staff of the Government Operations
Committee of the Senate and the staff of
the Government Operations Committee
of the House. There emanated there-
from, Mr. President, the text and the
substance of the motion now pending by
way of an -amendment to the House bill,
which I understand was completed
yesterday.
This text, Mr. President, was sub-
mitted to my, office less than 24 hours ago.
it consists of approximately 40 pages of
typewritten material. It is in many
respects from the bill as passed by the
Senate in the original instance. And it is
different than the text of the bill that
was approved by the other body.
In addition to that text, I was fur-
nished by the very courteous and dis-
tinguished Senator from North Carolina
with a copy-of his remarks, consisting of
an analysis of House and Senate com-
promise amendments to the Federal
Privacy Act.
Let me suggest, Mr. President, that
this occurred about 24 hours ago. I be-
lieve I received these remarks probably
at 4 o'clock yesterday afternoon and the
actual text of the amendment shortly.
after 6 p.m.
We adjourned the Senate, Mr. Presi-
dent, at about 6:40 p.m. yesterday. We
convened at 9:30, as I remember it. I
have been in committee most of the day.
I started my first committee meeting at
9:30 this morning.
I know all of my colleagues have been
very busy in the later part of this ses-
sion, in the closing hours of this session.
I make no apology for the fact that I
did not have time to read and to study
this bill, nor the remarks of the Senator
from North Carolina. I did impose upon
my staff for the consumption on their
part of a little midnight oil. I find, Mr.
President, it is not quite as easy to ex-
plain the lack of difference between the
House bill and the compromise bill as we
might imagine.
There are some things that are of real
substance. There are some items that
are of very substantial difference; and,
in my judgment, some items, on the
basis of this staff analysis, that would
bear close study and scrutiny, and which
should receive a little more deliberate
treatment than a mere consideration of
the motion of amendment as proposed,
and which we are considering now.
Let me suggest, Mr. President, first of
all there is the suggestion, and there is
the representation made, that the law
enforcement files are exempted. Of
course, that was one of our original ob-
jections to the bill as approved by the
Senate. When I say "our" I mean those
who are interested with me in the
preservation of the integrity of law en-
forcement' files, particularly the inves-
tigatory files, and to prevent a. com-
promise thereof.
As I suggested at that time, the area
of law. enforcement files is of such com-
plexity that it should not be dealt with
on the same terms as civil records. I
believe it can be readily understood that
criminal justice or law enforcement in-
formation gives rise to problems requir-
ing treatment different from that of in-
formation used to carry out the social,
health, or money benefit programs in
which the Government may be involved.
Law enforcement records should be
treated in separate legislation.
The Senate Constitutional Rights
Subcommittee presently has such legis-
lation before it, S. 2963 and S. 2964.
Many 'hours of hearings and research
have gone into perfecting the provisions
of this legislation in order to strike a
proper and equitable balance between
the individual's rights to privacy and
society's interest in receiving good and
effective law enforcement.
This legislation, represented by S.
2963 and S. 2964, is well along and near
resolution. It is expected that similar
legislation will be reported to the Sen-
ate floor early next year. It is my under-
standing that the Members in the House
similiarly expect to act ox} legislation
dealing with law enforcement files early
in the next Congress. It is further my
understanding that this was the reason
that H.R. 16373 contained an exemption
from most of its provisions for criminal
law enforcement files and records, an
exemption which I found acceptable.
The staff compromise we have before
us in the form of the amendment in
question, however, narrows the law en-
forcement exemption, by making addi-
tional provisions of the bill applicable
to law enforcement.
For example, the requirement that
an accounting of all disclosures of a
record be kept for a period of 5 years,
"or for the life of the record, whichever
is the longer" would now be applied to
law enforcement files.
It should be noted that the statute of
limitations for civil suits related to im-
properly disclosed records is only 2 years.
The provision that all future disclosures
of the record be accompanied by notice
of disputes as to its accuracy is also ap-
plied to law enforcement records.
Similarly, law enforcement would be
covered by the requirement that pro-
posed rulemaking hearings be held with
respect to a statement of the routine uses
to which records would be subject.
The expanded coverage of the law en-
forcement files is objectionable as a mat-
ter of principle, and may raise serious
practical problems of which we may be
unaware after only a brief study of the
amendment.
Mr. PERCY. Would my distinguished
colleague mind just a brief comment? If
the distinguished Senator from Nebraska
has finished the history of what hap-
pened on this legislation, I think for pur-
poses of accuracy it would be well to
make one insertion.
Mr. HRUSKA. I will yield briefly for
that purpose. I do not want to detain the
Senate too long. I shall cite one other
example of detriment in the proposed
amendment. Then I shall put the rest of
this statement into the RECORD. If it is a
brief comment, I will be happy to yield.
Mr. PERCY. I very much appreciate
the deep interest that our distinguished
colleague has taken in this legislation.
It would be, I believe, unfair to the
Senate to assume, however, that what
has resulted is a result only of staff dis-
cussions between the House and Senate.
Obviously, on this legislation, as in most
legislation, staff has done a great deal of
work. But we cannot overlook the fact
that Senator ERVIN and myself, as the
chairman and the ranking minority
member of the Senate Government Op-
erations Committee, and Congressman
MOORHEAD of Pennsylvania, and Con-
gressman ERLENBORN, of Illinois, as the
House Foreign Operations and Govern-
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CONGRESSIONAL RECORD - SENATE December 17, 1974
merit Information Subcommittee chair-
man and the ranking minority member
of the House Government Operations
Committee, met together for a very ex-
tended session to discuss our respective
bills.
We worked out compromises. We nego-
tiated differences. We came to an accord.
and we put the stamp of approval oftwc
Senators and two Congressmen, repre-
senting the chairmen and ranking mem-
bers of the respective committees, before
it was brought before the Senate today.
I believe that this one additional point
would update and complete the historical
account of this legislation up to this
point.
I thank my distinguished colleague.
Mr. HRUSKA. I am happy to accept
that supplement to the description of
the history of this bill, Mr. President.
It was not my intention to exclude from
the consideration of the amendment be-
fore us the participation by members of
the committee. But the bulk of the work,
I am confident, was done by the staff.
Many of the changes pertaining to law
enforcement may have been inadvert-
ently included with a full realization of
their total effect.
Mr. President, -I am just going to out-
line one other change. That has to do
with the access to law enforcement rec-
ords intelligence information by the pri-
vacy commission. The compromise with
which we are now confronted would
create a seven-member study commission
with a broad mandate to examine pri-
vacy considerations as applied, Mr. Pres-
ident, to Federal, State, and private
records.
The study commission would have full
access to all information relating to the
performance of their function, and it
could Issue subpenas as to enforce its
request for information. I am concerned,
Mr. President, that individual's rights
may be offended by fishing expeditions
by the commission into the raw back-
ground files maintained by the Govern-
ment and into other particularly sen-
sitive law enforcement and intelligence
records.
[ feel the compromise gives the com-
mission too broad authority to examine
Government records under the language
in the bill. -
I ask unanimous consent, Mr. Presi-
dent, that this memorandum, which was
prepared by staff and- from which I have
quoted, and which I have checked with
the text of the bill and its proposed
compromise, be printed in the RECORD at
this point.
There being no objection, the memo-
randum was ordered to be printed in the
RECORD, as follows:
MEMORANDUM
The "final" staff compromise which Is
now before the Senate presents real-prob-
lenns for law enforcement generally.
Exemption of law -enforcement files. H.R.
16.373 contained an exemption from most of
its provisions for criminal law enforcement
files and records. It was acceptable in this
regard. The staff compromise narrows the
law enforcement exemption, thus making
additional provisions of the bill applicable
to law enforcement. For example, the re-
quirement that an accounting of all dis-
closures of a- record be kept for a period of
five years "or the life of the record wh ich-
ever Is longer" would now be applied to law
enforcement files. (Note that the statu?.e of
limitations for civil suits relating to improp-
erly disclosed records Is only two years). The
provision that all future disclosures of the
record be accompanied by notice of disputes
as to its accuracy is also applied to law en-
forcement records. Compare p. 24 with page
9. Similarly, law enforcement would be cov-
ered by the requirement that proposed rule
making hearings be held with respect to a
statement of the "routine uses" to which
such records would be subject. p. 17. The
expanded coverage of law enforcement files
Is objectionable as a matter of principle and
may raise serious practical problems.
New provisions concerning law enforce-
ment. The staff compromise defines records
as including not only collections of infoi!na-
tion about Individuals but also an "item" of
information about an individual. The intent
of this change Is not clear but it could be
read so broadly as to include any single
piece of paper bearing an individual's name
within the meaning of record even though
it may be filed as part of an investigatory
file on a corporation or on some other Indi-
vidual. This would, among other things, re-
quire that- annual notice of ouch "Items"
be published in the Federal Register. See
?3(a)(4) [p.51
The new definition of record also includes a
reference to fingerprints, voice prints and
photographs. The same reference is not. In-
chided, however, in the description of those
law enforcement files which may be exempted
from provisions of the bill such as Individual
access to records or limitations on disclosure
without the individual's consent. While it
would be ludcrous to Interpret the bill to re-
quire a fugitive's consent before his ph.oto-
graph is displayed on a wanted roster, the bill
literally has this effect. Moreover, it may be
read to permit individual access to photo-
graphs or voice prints in an investigatory
file even though access to the file Itself is not
permitted by the bill. 3(a) (4) [p. 5]
"Routine" exchanges of inforrmation among
government agencies--see 3(a) (7) [p. 6] 3
(b) (3) [p. 6]-are permitted by the bill so
long as annual notice describi:ig such rou-
tine exchanges is published. We were suc-
cessful in obtaining a flower explanation of
routine exchange In the House which would
be helpful to law enforcement. The bill, how-
ever, has added a definition of "routine use"
which may present problems for law enforce-
ment. "Routine" use is defined as that which
is compatible wtih the purpose or which. the
information was originally collected. There
may be numerous exchanges of information
with the FBI that are now undertaken by
non-law enforcement agencies which would
not fall within the scope of this definition,
for example, Information concerning possible
civil disturbance activities. If such exchanges
do not fall within the definition of routine
use then it would be necessary to- secure the
consent of the individual before furnishing
it to the FBI or It would be necessary for the
Director to make a written request for the
information.
Since the information is of -;he sort nor-
mally brought to our attention only when
it is voluntarily provided to us, the provision
for requesting such records is virtually
meaningless.
Among the new provisions added to the
staff compromise is a requirement that be-
fore disseminating a record the agency must
assure that the record is accurate, com-
plete, timely and relevant. No standard is
provided as to the proper application of
these terms. The provision Is applicable to
law enforcement files as well as all other
records. It would, of course, put the burden
on the Identification Division no assure the
completeness and relevance, as well as ac-
curacy, of all rap sheets before disserrina-
tion. Moreover, it would appear to require
that investigatory files be accurate, complete,
timely and relevant before they are dis-
seminated regardless of the purpose of the
dissemination. Presumably this would even
apply to old Investigatory records made
available pursuant to the historic records
policy adopted under the Freedom of In-
formation Act.-See ? 3(e) (6) p. 16
Access to law enforcement records. The
staff compromise would create a seven mem-
ber study commission with?a broad mandate
to examine privacy considerations as applied
to federal, state and private records.. The
study commission would have "full access to
all information relating to the performance
of their functions" and could issue sub-
poenas to enforce its requests for informa-
tion. This could include requests for "raw
files" and other sensitive law enforcement
and intelligence records. The staff compro-
mise, we feel, gives the Commission top
broad authority to examine government
records. [p. 381 ? 5(e) (1)
Civil law enforcement problems. The bill
requires that whenever an agency seeks in-
formation from an individual it must in-
form him of the source of Its authority to
seek the information, the purpose for which
it Is sought, routine uses- that may be made
of it, and the effects of not providing the in-
formation. Criminal law enforcement is
exempt from these provisions but civil law
enforcement is not. In certain cases such as
civil frauds, civil rights investigations, anti-
trust investigations, etc. this may produce
an inhibiting effect on a potential witness.
(There isalso the Incidental burden of in-
cluding all of this information on all appli-
cant forms as well.)
. In a related vein, each agency is required
to publish annually a description of its rec-
ords systems. Except in the case of law en-
forcement, national defense, and similar files,
a description of the "categories of sources"
Is to be included in the description. This too
may present difficulties with respect to civil
rights, fraud, and antitrust investigations
where sources may require as much protec-
tion as they do in criminal cases.
An agency would be required to serve no-
tice on an individual when a record pertain-
ing to the individual is to be disclosed sub-
ject to "compulsory legal process." While
law enforcement records would be exempt
from this requirement, civil investigatory
files would not be. Again this-may present
particular problems with respect to those
civil actions which are quasi-criminal In na-
ture. Moreover, it places an enormous bur-
den on agencies and may, through motions
to quash and similar interventions, seriously
delay civil litigation.
Relationship to Freedom of Information
Act. The Staff draft expressly provides that
nothing in the Freedom of Information Act
permits withholding a record from the sub-
ject of that record. This presents no serious
problems since the bill itself permits with-
holding investigatory and similar files from
the individual. The bill also provides, how-
ever, that disclosure is not permitted with-
out an individual's consent unless disclosure
would be required under FOI. Since the FOI
Act itself authorizes the refusal of disclosure
where this would constitute an "unwar-
ranted invasion of privacy" the privacy bill's
disclaimer of any intent to affect FOI is
circular. In the face of the disclaimer, the
government's efforts to mesh the two bills
when faced with litigation over the nondis-
elcsure of records to protect privacy may
meet considerable difficulty.
Mr. HRUSKA. Mr. President, the mo-
tion before us and the amendment before
us may be a good one. It may have merit.
Maybe that would be the ultimate re-
sult of the action taken by the Senate.
As I indicated when S. 3418 was before
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December 17, .197.E CONGRESSIONAL RECORD -SENATE S 21823
us last month, Mr. President, I share the
objective of my good friend from North
Carolina to protect Americans in their
right to privacy. The declared purposes
of this bill are desirable and worthy. It
is, Mr. President, only some of the spe-
cific features of the bill, which I have
mentioned briefly, with which I have
question.
I do not know how many copies of this
40-page typewritten manuscript which
contains the compromise measure have
been made, or how many are available.
As I indicated, I did not get one in my
office until 6:30 last night. I have not
made inquiry as to its distribution. It
just seems to me that notwithstanding
the lateness of this session, this subject
and this measure are entitled to a little
more deliberate, proper, and complete
consideration by the Senate. It is an
important subject and I hope that in our
rush to enact this legislation that we are
not inadvertently including provisions
that will trouble us later.
I have no disposition to get into the
matter of proposing an amendment at
this time. If I did, Mr. President, I would
propose an amendment by way of a sub-
stitute to reinstate, a substitute for the
Ervin amendment, by way of a substitute
to that, the text of the bill as originally
passed by the House, which was under-
standable, which had been closely stud-
ied; and with which we have had some
familiarity. I shall not do that, because
to do that at this late hour would be
putting the Senate in the same position
with regard to that substitute measure
that it is placed in with regard to the
principal amendment-to wit, we would
not have that discretion and we would
not have that amplification upon the
content of the amendment, and that
would not be'fair.
So I submit again, Mr. President, that
it is a mistake to proceed at this late
hour with the consideration of the pend-
ing amendment. It is my hope that it
will not be approved. If the amendment
before us does not succeed, we will have
before the House version of the privacy
bill which I find an extremely meritorous
measure. It will readily achieve the ob-
jectives of the protection of privacy we
seek and would receive my strong sup-
port.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the motion of the
Senator from North Carolina. On this
question the yeas and nays have been
ordered, and the clerk will call the roll.
The legislative clerk called the roll.
Mr. ROBERT C. BYRD. I announce
that the Senator from Texas (Mr. BENT-
sEN), the Senator from Nevada (Mr.
BIBLE), the Senator from Alaska (Mr.
GRAVEL), the Senator from Rhode Island
(Mr. PASTORE), the Senator from Cali-
fornia (Mr. CRANSTON), the Senator from
Mississippi (Mr. EASTLAND), the Senator
from Arkansas (Mr. FULBRIGHT), the
Senator from Louisiana (Mr. JOHNSTON),
the Senator from Arkansas (Mr. Mc-
CLELLAN), the Senator from Connecticut
(Mr. RIBIcoFF), and the Senator from
Georgia (Mr. TALMADGE) are necessarily
absent.
I further announce that the Senator
from Montana (Mr. MANSFIELD) is ab-
sent on official business.
I also announce that the Senator from
Maine. (Mr. HATHAWAY) Is absent be-
cause of a death in the family.
I further announce that, if present
and voting, the Senator from Rhode Is-
land (Mr. PASTORE) would vote "yea."
Mr. GRIFFIN. I announce that the
Senator from Oklahoma (Mr. BELLMON)
and the Senator from Utah (Mr. BEN-
NETT) are necessarily absent.
The result was announced-yeas 77,
nays 8, as follows:
[No. 567 Leg.]
YEAS-77
Abourezk
Goldwater
Moss
Allen
Griffin
Muskie
Baker
Hansen
Nelson
Bartlett
. Hart
Nunn
Bayh
Hartke
Packwood
Beall
Haskell
Pearson
Eiden
Hatfield
Pell
Brock
Helms
Percy
Brooke
Hollings
Proxmire
Buckley
Huddleston
Randolph
Burdick
Hughes
Roth -
Byrd,
Humphrey
Schweiker
Harry F., Jr.
Inouye
Scott, Hugh
Byrd, Robert C. Jackson
Scott,
Canrton
Javits
William L.
Case
Kennedy
Sparkman
Chiles
Long
Stafford
Church
Magnuson
Stennis
Clark
Mathias
Stevens
Cook
McClure
Stevenson
Dole
McGee
Symington
Domenici
McGovern
Thurmond
Dominick
McIntyre
Tunney
Eagleton
Metcalf
Weicker
Ervin
Metzenbaum
Williams
Fannin
Mondale
Fong
Montoya
NAYS-8
Aiken
Gurney Tower
Cotton
Hruska Young
Curtis
Taft
NOT VOTING-15
Belliuon
Eastland
Mansfield
Bennett
Fulbright
McClellan
Bentsen
Gravel
Pastore
Bible
Hathaway
Ribicoff
Cranston
Johnston
Talmadge
So Mr. ERVIN'S motion to concur in the
House amendment with amendments was
agreed to.
Mr. ERVIN. Mr. President, I move to
reconsider the vote by which the Senate
amendments were agreed to.
Mr. CHURCH. Mr. President, I move
to lay that motion on the table..
The motion to lay on the table was
agreed to.
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that the Sen-
ator from Washington (Mr. JACKSON)
may proceed for 1 minute.
The PRESIDING OFFICER. Without
objection, it is so ordered.
LOWELL HISTORIC CANAL DISTRICT
Mr. JACKSON. Mr. President, I move
that the Committee on Interior and In-
sular Affairs be discharged from the con-
sideration of H.R. 14689, and that it be
laid before the Senate for immediate
consideration. Mr. President, this matter
has been cleared with the minority. It
is a very minor bill. Both Senators from
Massachusetts have expressed their in-
terest in it.
The motion was agreed to.
The PRESIDING OFFICER. The bill
will be stated by title.
The legislative clerk read as follows:
A bill (H.R. 14689) to provide for a plan
for the preservation, interpretation, develop-
ment, and use of the historic, cultural, and
architectural resources of the Lowell Historic
Canal District in Lowell, Massachusetts, and
for other purposes.
Mr. JACKSON. Mr. President, this is
a House-passed bill which calls for the
expenditure of no more than $150,000 to
study and prepare a plan for the historic
preservation of the Lowell Canal District
in Lowell, Mass.
I have cleared the matter with the
minority. Both Senators from Massa-
chusetts have expressed'a strong interest
in this legislation, and I hope that the
Senate will take appropriate action.
Mr. KENNEDY. Mr. President, I rise
in support of H.R. 14689, the Lowell His-
toric Canal District bill. The Lowell area
has been one of the hardest hit in the
Nation in our deepening recession. This
bill will provide a significant step to-
ward restoring Lowell to its potential
place in our economy, while helping re-
store Lowell's historic significancc to the
State of Massachusetts and to the Na-
tion at large.
This bill provides $150,000 for the de-
velopment of a plan for the preserva-
tion, development, interpretation, and
use of the historic, cultural, and archi-
tectural resources of Lowell, Mass. The
nine-member Commission, composed
of private citizens as well as government
officials, is to produce a plan for protect-
ing and restoring the historic properties
in Lowell and make specific recommen-
dations for its implementation. The com-
pleted plan is to be submitted to Con-
gress within 2 years. Further congres-
sional action will then be necessary to
authorize any Federal commitment in
implementing the recommendations.
Lowell, Mass., represents an important
and often neglected chapter,of Ameri-
can history. The coming of the indus-
trial revolution, with all its concomitant
social and economic effects, is the story
to be told here.
The falls of the Merrimack River at-
tracted the attention of the pioneering
New England industrialists in the early
19th century. They realized the power of
the water falling through the locks of a
transportation canal which bypassed the
rapids could be harnessed to drive the
textile machinery that was then being
developed. The Merrimack Manufactur-
ing Co. Pioneered the growth of Lowell,
improving the canal and constructing the
first Of the major industries to locate in
what was then a remote and thinly set-
tled area.
Of signal importance in this process
was that the industrialists, recognizing
the need for a stable labor source as well
as the water power Lowell had to offer,
developed the area as a planned indus-
trial community. Their intent was to dis-
pel the fears of the evils of industrial
change which had grown out of the early
factory complexes in England. To ac-
complish this, the companies constructed
a model community in which even the
off-duty hours of employees were super
The early years of this industrial de-
velopment saw Lowell hailed as an indus-
trial utopia. The management of the
town by the companies, while classified
by modern standards as paternalistic,
represented -a major departure from
many of the exploitative aspects, of the
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S 21824 CONGRESSIONAL RECORD-SENATE December 17, 1974
industrial growth of that era. Lowell
drew admiring visitors from both the
United States and abroad, and the area
drew wide attention for its success in
combining industrial and social values.
The experiment that was- Lowell at last
began to change. Following the Civil
War, increased competition, lower labor
coats in other areas, and poor manage-
ment all played a part in leading to the
decline in prominence of the Lowell area.
Now there is widespread support from
the citizens of Lowell as well as historians
and other interested parties for preserv-
ing and restoring the structures and
areas which interpret the significance of
Lowell. Perhaps the single event which
catalyzed this interest was the demolish-
in?: of the original Merrimack Manufac-
turing Co. mill to make way for a high
rise structure. It became apparent that
without some organized approach, the
imrortant reminders of Lowell as a part
of our growth as a Nation will disappear
through attrition. H.R. 14689 is the vehi-
cle through which a plan that takes ac-
count of the history and the present and
future needs of this area- can be devel-
oped.
In addition to the $150,000 provided
in this bill, it is gratifying to know that
the State of Massachusetts has pledged
$9,700,000 in further support of the proj-
ect associated with this legislation.
Mr. President, I wish to thank the Sen-
ator from Washington (Mr. JACKSON)
the chairman of the Interior Committee
and the Senator from Nevada (Mr. Br-
BLF) the chairman of the subcommit-
tee for their support and aid in steer-
ing this legislation to consideration by
the Senate.
This bill will help restore Lavell's place
in the Nation's history and help strength-
en its present economic situation. I urge
the Senate to pass this bill.
Mr. BROOKE. Mr. President, today is
a day the citizens of Lowell, Mass., have
long been waiting for. The city of Lowell
is one of America's oldest industrial cen-
ters and possesses what is probably the
finest set of working canals and mills in
this country. The Senate action today
has all but insured that much of this
great city will be preserved for all Amer-
icans as an example of the kind of indus-
trial center that made this country what
it it today.
This bill sets in motion a study which
wit', decide exactly what the best course
of ,-reservation should be for this great
city. It will only cost $150,000 and in re-
turn the people of this country will be
able to see for themselves what indus-
trial America looked like In the 10th
century.
I commend Senator JACKSON and the
Senate Interior and Insular Affairs Com-
mittee for their prompt action on this
bill and I commend my colleagues for
the'.r support. I would also like to take
this opportunity to commend the dili-
gent work of Representative PAUL
CRONIN. He has skillfully managed this
measure through the House and deserves
much of the credit for Its success In this
session of the Congress. We have insured
that future generations will have a first-
The PRESIDING OFFICER. The bill
is open to amendment. If there be no
amendment tobe proposed, the quese-ion
is on the- third reading of the bill.
The bill (H.R. 14689) was Ordered :o a
third reading, was read the third tine,
and passed.
EXTENSION OF AUTHORIZATIONS
FOR THE STRIKING OF COMME'M-
ORATIVE MEDALS
Mr. ROBERT C. BYRD. M.r. President,
I understand that this request has been
cleared on both sides of the aisle, spe-
cifically with the Senator from Oregon
(Mr. PACKWOOD) and the Senator from
Pennsylvania (Mr. ScxwElitER) on the
other side of the aisle, and with the
Senator from Idaho (Mr. CHURCH), the
Senator from California (Mr. CRANSTON),
and the Senator from Wisconsin ( Mr.
PROXMIRE) on this side of the aisle. I
make the request on behalf of the Sena-
tor from Illinois (Mr. STEVENSON).
I ask unanimous consent that the
Chair lay before the Senate a mess age
from the House of Representatives on
H.R. 17556.
The PRESIDING OFFICE- laid before
the Senate H.R. 17556, an act to extend
for 2 years the authorizations for the
striking of medals in commemoration of
the 100th anniversary of the cable car in
San Francisco and in commemoration of
Jini Thorpe, and for other purposes.
Mr. ROBERT C. BYRD. I ask uni..ni-
mous consent that the bill be considered
as having been read the first and :;ec-
and time, and that the Senate proceed
to its immediate consideration.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The Senate proceeded to consider he
bill.
Mr. ROBERT C. BYRD. I ask unani-
mous consent, this request having been
cleared with the aforementioned Sena-
tors, that there be a time limitation of
one-half hour on the bill, to be equ'.lly
divided between the Senator from Illinois
(Mr. STEVENSON) and the Senator from
Pennsylvania (Mr. SCHWEIKEr.), and that
there be a time limitation on any amend-
ments of 20 minutes, and a time limita-
tion on any debatable motion or appeal
of 10 minutes, and that the agreement be
in the usual form, with the exception of
one amendment which will be offered by
the Senator` from Illinois (Mr. STEV N-
SON), which is not germane.
The PRESIDING OFFICER. Without
objection, it is so ordered. The bill is open
to amendment.
Mr. STEVENSON. Mr. Pres:.dent, I call
up an amendment which I have at the
desk, and ask for its immediate consider-
ation.
The PRESIDING OFFICER. Will the
Senator send his amendment to-the desk?
The amendment will be stated.
The legislative clerk read as follows:
The Senator from Illinois (Mr. STEVENSon)
proposes an amendment, at the end of the
bill, to Insert a new section entitled "Chi ter
Amendments."
Mr. STEVENSON. Mr. President, I ask
unanimous consent that further reading
Mr. STEVENSON's amendment is as fol-
lows:
At the end thereof, insert the following:
CHARTER AMENDMENTS
SEC. 5. Section2aO (1) of the Export-Im-
port Bank Act of 1945 is amended---
(1) by inserting in the third sentence im-
mediately after "other evidences of indebted-
ness;" the following: "to guarantee, insure
coinsure, and reinsure against political and
credit risks of loss;";
(2) by inserting in the third sentence im-
mediately after "competent jurisdiction;"
the following: "to represent itself or to con-
tract for representation in all legal and ar-
bital proceedings outside the United States;
and
(3) by Inserting after the- fourth sentence
the following new sentence: "The Bank is
authorized to publish. or arrange for the
publication of any documents, reports, con-
tracts, or other material necessary in con-
nection with or in furtherance 'of its ob-
jects and purposes without regard to the
provisions of section 501 of title 44. United
States Code, whenever the Bank determines
that publication in accordance with the pro-
visions of such section would not be prac-
ticable. ".
POLICY
SEC. 6. Section 2(b) (1) of the Export-Im-
port Bank Act of 1945 is amended to read as
follows:
"(b) (1) (A) It Is the policy of the United
States to foster expansion of exports of goods
and related services, thereby contributing to
the promotion and maintenance of high
levels of employment and real income and to
the increased development of the productive
resources of the United States: To meet this
objective, the Export-Import Bank is di-
rected, in the exercise of its functions, to
provide guarantees, insurance, and exten-
sions of credit at rates and on terms and
other conditions which are competitive with
the Government-supported rates and terms
and other conditions available for the financ-
ing of exports from the principal countries
whose exporters compete with United States
exporters. The Bank shall, in cooperation
with the export financing Instrumentalities
of other governments, seek to minimize com-
petition in government-supported export
financing. The Bank shall, on a semiannual
basis, report to the appropriate committees
of Congress Its actions in complying with
these directives. In this report the Bank shall
Include a survey of all other major export-
financing facilities available- from other gov-
ernments and government-related agencies
through which foreign exporters compete
with the United States exporters and in-
dicate in specific terms the ways in which
the Bank's rates, terms, and other condi-
tions compare with those offered from such
other governments directly or indirectly.
Further, the Bank shall at the same time
survey a representative number of United
States exporters and United States commer-
cial lending institutions which provide ex-
port credit to determine their experience in
meeting financial competition from other
countries whose exporters compete with
United States exporters. The results of this
survey shall be included as part of the semi-
annual report required by the subpara-
graph. The Bank shall also include in the
semiannual report a description of each loan
by, the Bank involving the export of any
product or service related to the production,
refining or transportation of any type of
energy or the development of any energy
resource with a statement assessing the im-
pact, if any, on the availability of such prod-
ucts, services, or energy supplies thus de-
veloped for use within the United States,
"(B) It Is further the policy of the United
States that loans made by the Bank shall
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erest at rates determined by the
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