STATEMENT OF THOMAS S. MC FEE DEPUTY ASSISTANT SECRETARY FOR MANAGEMENT PLANNING AND TECHNOLOGY DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE BEFORE THE FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE OF THE COMMITTEE ON GOVT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700130010-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 42
• Document Creation Date: December 12, 2016
• Document Release Date: April 9, 2001
• Sequence Number: 10
• Publication Date: February 26, 1974
• Content Type: TRANS

UNCLASSI Flftprovecnr Ifib 2002/09/03: CIA-RDf M60MIR~9130010-9 ^ SECRET
^ u USE ONLY
ROUTING AND RECORD SHEET
OLC
TO: (Officer designation, room number, and
building)
25X1A
25X
OS (1
DDO
RAB/I1DM&S
(61-
OFFICER'S
INITIALS
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comment.)
Attached HEW comments for
your review. Excellent analysis,
particularly as bill affects non-
sensitive holdings, e. g. , personn 1
and medical records. The
Committee staff does not consider
our comments necessary, but we
may want to do so where it serve
our interest.
OMB accepted our suggested
change agreed to at our meeting
yesterday. Hopefully, our langua e
will be included in the draft to
be circulated tomorrow.
OMB has requested that we direct
our report to the Committee to
all three bills. I am preparing a
first draft accordingly. If you
have any comments on H. R. 13872
(Abzug), please advise me
soonest.
25X1A
AsI
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USE PREVIOUS
FORM
EDITIONS
610
7_A')
^ SECRET ^ CONFIDENTIAL ^ USEE ONLY ^ UNCLASSIFIED
 FOR RELEASE UPON DELIVERY
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DEPA'.-trMENT OF HEALTH, EDUCATION, AND WELFARE
STATEMENT
OF
THOMAS S. MC FEE
DEPUTY ASSISTANT SECRETARY FOR
MANAGEMENT PLANNING AND TECHNOLOGY
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
BEFORE THE
FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
TUESDAY, FEBRUARY 26, 1974
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Mr. Chairman and Members of the Subcommittee:
I am Thomas S. McFee, Deputy Assistant Secretary for
Management Planning and Technology in the Office of the
Assistant Secretary for Administration and Management,
Department of Health, Education, and Welfare. I am accom-
panied by Mr. Frank Samuels, who is Deputy Assistant Secre-
tary for Congressional Liaison and Mr. David B.H. Martin,
who is a Special Assistant to the Secretary and serves as
head of our Fair Information Practice Staff. The Depart-
ment is pleased to respond through me to your request for
comments on H.R. 12206, a bill to amend Title 5 of the
United States Code by adding immediately after Section 552
thereof a new section 552a. entitled Individual records.
As you know, the Department is very sympathetic to the
objectives of this proposed legislation. We have, for some
time, been concerned particularly about the impacts on the
rights of citizens resulting from computerized record-
keeping. In. fact, it was this concern that led former
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Secretary . Elliot. L. Richardson to establish the Advisory
Committee on Automated Personal Data Systems. This Com-
mittee, whose report, Records, Computers, and the Rights
of Citizens, was issued last July and endorsed by Secretary
Caspar W. Weinberger, recommended that the Congress enact a
Code of Fair Information Practice. The objectives of
H.R. 12206 are consistent with many of the principles set
forth by the Advisory Committee.
The Department is moving to implement as many of the
recommendations of this Committee as possible. We have
recently established a Fair Information Practice Staff that
has picked up from the work of the Advisory Committee and
is presently laying out an overall plan of action for the
Department. We are sure you recognize that the implementa-
tion of such far-reaching recommendations in an organiza-
tion as complex and as large as HEW, requires careful
planning and a commitment fr9m the top management of the
Department. In establishing the new staff, Secretary
Weinberger said, and I quote:
"Until the implementation plan to be developed
...has been approved, the recommendations in
the [Advisory Committee] report should be re-
garded as general guidance for all offices and
agencies of the Department. No action at vari-
ance with any recommendation in the report
should be taken in regard to any program, activ-
ity or data system managed or funded by HEW with-
out first obtaining my explicit approval."
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It is the intention of the Department to develop a permanent
institutional capability for the Department not only to
implement the recommendations of the Advisory Committee
report, but to assure continuous application of fair infor-
mation practice safeguard re=quirements to the on-going
management operations of the Department. It was for this
reason that the Secretary chose to locate the new Fair
Information Practice Staff as part of my office. The Office
of Management Planning and Technology is charged with the
overall policy direction of the Department's management and
organizational systems. It is our purpose to ensure that
the Department makes use of the most modern technological
advances in the administration of its programs. We think
it is appropriate that the Fair Information Practice Staff
be located in this office: to be in the main stream of
management policy-making within the Department, to impact
on future legislative proposals with information systems
implications; and to be at the core of the technical expertise
that must be made sensitive to the need for safeguards for
personal privacy. The Staff is independent of the other
functions of my office, and I have charged it with main-
taining a consciousness of the societal impacts of our
technological applications.
The Advisory Committee's concept of "fair information
practice" is cast in the form of safeguard requirements for
each of two major categories of automated personal data
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systems: (i) administrative systems, which are used to
affect individuals as individuals; and (ii) statistical-
reporting and research systems which are not intended to
have a direct effect on any given individual. The Advisory
Committee was concerned mainly with computer-accessible
records, but we see no reason why its recommendations could
not also be applied to non-automated (manual) records.
The concept of "fair information practice" on which
the Advisory Committee's recommendations are based is not
fully articulated in the subject bill. However, some of
its provisions do resemble certain safeguard requirements
proposed in the Advisory Committee's report. For this
reason, and because of the Department's commitment to
carrying out the Advisory Committee's recommendations, our
comments on the bill will be made in the light of the
Committee's report. All page references to the report are
to the Government Printing Office edition of Records, Com-
uters, and the Rights of Citizens, a copy of which has been
sent to each member of the Congress. In the course of this
statement, I shall speak of provisions of the bill and refer
to them by their designation in the bill as provisions of
its proposed new section 552a, and with page and line
references to the bill.
Scope of the Bill
At the outset, we would like to offer two observations
on the scope of the bill. First, the use of the word
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'"person" in Subsection 552(a) (line 8, page 1) would appear
to make the bill apply not only to records about individuals
but also to records about all types of organizations and
associations. This results from the definition in paragraph
(2) of section 551 of Title 5, United States Code, which
establishes the meaning of the word "person" as used in
subchapter II of Title 5 (to which the bill's proposed new
Section 552a would be added). By this definition "person"
includes not only an individual but also a partnership,
corporation, association, and public or private organization
other than a Federal agency.
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We are inclined to believe that it would be preferable
for the bill to apply only to records about individuals.
The situation of organizations with respect to records that
contain trade secrets, financial data, or information whose
disclosure might adversely affect their reputations is not
the same as the situation-of individuals with respect to
information recorded about themselves. Depending on the
circumstances, records about organizations may deserve
protections commensurate with the protections afforded
records about individuals. As a general rule; however, the
interests that must be balanced in deciding how records
about organizations are to be treated are different than
those that must be taken into consideration when records
about individuals are at issue. Thus, it is our view that
the two types of records should be dealt with separately in
separate legislative initiatives.
The second observation we would offer is that the bill
draws no distinction between administrative records and
records that are used exclusively for statistical-reporting
and research, even though the two types of records are functionally
very different. Administrative records, by definition, are
created and used to affect individuals directly, i.e., for
making determinations relating to people's qualifications,'
character, status, rights, opportunities, or benefits as
individuals. Statistical-reporting and research records
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on the other hand, although they may contain individually
identifiable information, are not intended to be used to
affect individuals directly. For any given individual to
be harmed by the information contained in a statistical-
reporting or research record, the record would have to be
used for some purpose other than that for which it was
originally created.
Given this central functional distinction between the
two types of records, it is clear that if the requirements
of H.R. 12206 were made applicable to records maintained
exclusively for statistical-reporting and research, they
would grievously interfere with the conduct of statistical-
reporting and research activities--to no useful end. If an
agency can guarantee that a record it maintains about an
individual will be used only for statistical-reporting and
research, nothing will be gained (and indeed a great deal
of time and effort may be lost) if the individual is per-
mitted to see and copy the record at will. By the same
token, if it can be assured that a record about an individ-
ual will never be available for any purpose other than
statistical reporting and research, it becomes superfluous
to require that every access to the record be duly noted so
that the individual presumably can be told, if he asks, by
whom and for what purposes the record has been used. Most
important, if individuals are permitted to alter information
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about themselves in statistical-reporting and research re-
cords (if they are permitted, for example, to revise or up-
date their responses on a survey questionnaire), the value
of such records for analysis is likely to be greatly dimin-
ished.
In sum, we urge that the same considerations that led
the Secretary's Advisory Committee to treat statistical-
reporting and research records differently from administra-
tive records (Chapters IV and VI of the Committee's report),
also require excluding from the scope of H.R. 12206 records
that are maintained exclusively for statistiical-reporting
and research, and which, by law, cannot be used for any
other purpose. Useful guidance on. appropriate safeguards
for statistical-reporting and research records will be found
in Chapter VI of the report of the Secretary's Advisory
Committee.
Operative Provisions of the Bill
Consistent with our observations on the practicable
scope of the bill, we have confined our comments on H.R. 12206
to its provisions as they would apply to the administrative
records that government agencies maintain about identifiable
individuals. That is, our comments are made as if records
about organizations and records used exclusively for statis-
tical reporting and research were not included within the
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Notice of the Existence of a Record
An earlier version of the bill, viz. H.R. 667, contained
a provision that would have required each agency that main-
tains or is about to maintain a record concerning an identi-
fiable individual to so notify the individual by mail. We
are pleased to see that this requirement has been omitted
from H.R. 12206, because we believe that it would entail
substantially greater cost and administrative burden than is
necessary to assure that no individual is prevented from
finding out whether an agency maintains a record about him.
The Advisory Committee's report suggests alternative approaches
to assuring that an individual is able to learn of the
existence of records about himself. These approaches are
described in 11(9), the Public Notice Requirement (pp. 57-58,
87, 99-101), and safeguard requirement 111(2), the right of
an individual to be informed, upon his request, whether he
is the subject of a record (p. 59).
The Public Notice Requirement would oblige each govern-
ment agency that maintains records containing personal data
to publish, and have available for distribution, a notice
containing the following information about the pertinent
record-keeping system:
- The name of the system;
The nature and purposes of the system;
The categories and number of persons on whom data
are maintained;
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- The categories of data maintained, indicating
which categories are stored in computer-accessible
files;
- The agency's policies and practices regarding data
storage, duration of retention of data, and disposal
thereof;
- The categories of data sources;
- A description of all types of use made of data,
indicating those involving computer-accessible files,
and including all classes of users and the organi-
zational relationships among them;
The procedures whereby an individual can (i) be
informed if he is the subject of data in the system; (ii)
gain access to such data; and (iii) contest their
accuracy, completeness, pertinence, and the necessity
for retaining them;
- The title, name, and address of the person immediately
responsible for the system.
In addition, safeguard requirement 111(2) would obligate the
agency to inform an individual, who asks to know, whether he is the
subject of data in the system and, if he is, to make such
data fully available to him, if he wants to see it, in a form
that will be readily comprehensible to him.
We believe that these two safeguard requirements, in
combination, would provide an effective means of enabling
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an individual to learn that a government agency maintains a
record of information about him. We suggest'that the Ad-
visory Committee's recommended Public Notice Requirement
might be enacted as an addition to subdivision (a)(1) of
Section 552 of Title 5, United States Code (the so-called
Freedom of Information Act). If this were done, however,
it would be essential for subsection (c) of Section 552 to
be amended simultaneously so as to assure that the exemp-
tions therein provided would not apply to the Public Notice
Requirement, and would therefore not constitute a means of
contravening the cardinal principle of fair information
practice, viz., that there Iust be no personal-data record-
keeping system whose very existence is secret.
Although the suggested means of accommodating the public
notice requirement is only one of several possibilities, we
do feel it vital that the change suggested, or an equivalent
change, be incorporated in the present bill. Requiring a
Public Notice of this kind would not only make possible the
compilation of a "Citizen's Guide to Files" along the lines
suggested in the report of the National Academy of Sciences
Project on Computer Databanks. [Alan F. Westin (Project
Director) and Michael A. Baker (Assistant Project Director),
Databanks in a Free Society (New York: Quadrangle Books),
1972, pp. 362-864.1, but might also fulfill the objective
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of subdivision (c) of H.R. 12206, which now requires the
President to report annually to'the Congress on the number
of records and files to which the exemptions provided in
subdivision (d)(1)-(2) are considered to apply.
Notification of Disclosure
The bill contains a provision, subdivision (a)(1)(A)
(lines 4-16, page 2), requiring that an individual (or his
family or guardian) be notified by an agency maintaining
a record about him of any disclosure of information from
that record to another agency or to any person not employed
by the agency. We are very skeptical about the utility of
this provision. It seems to assume that unless an indi-
vidual receives actual notification of every disclosure of
information about himself to someone or some agency outside
the agency in whose custody the information resides, he will
not know of such disclosures. We believe that this is un-
realistic. We agree that an individual should be able to
know what disclosures and uses are being made of record in-
formation about him. However, we believe this goal can be
effectively achieved by requirements that would be much less
burdensome than this provision. For example, the disclosing
agency could. simultaneously be required (i) to publish and
have available for distribution a notice describing each
record system in which it maintains personal record infor-
mation and the types of uses and disclosures that are made of
such information, and (ii) to respond affirmatively to a
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request by an individual that he be notified of the particu-
lar uses and disclosures that have been made of his record.
This is the approach taken by the Advisory Committee through
its safeguard requirement 11(9), the Public Notice Require-
ment, coupled with its safeguard requirement III(4), which
permits an individual to be informed, upon-his request, of
all uses made of data about him. The Advisory Commit-
tee's safeguard requirement 111(3) would further require
that the individual's informed consent be explicitly ob-
tained (not just that he be notified) before any use of
individually identifiable data is made which is not within
the stated purposes of the system as reasonably understood
by the individual.
The Advisory Committee's approach to apprising an indi-
vidual of disclosures of record information about himself
seems to us an effective means of accommodating both the
individual's interest in knowing when and to whom informa-
tion about him is disclosed and the disclosing agency's
interest in assuring that the functions for which it main-
tains records about individuals are not uselessly encumbered.
In one single operation of the Social Security Administration,
for example, transfers of information from the earnings re-
cords of approximately 1 million individuals are made each
quarter to the State agencies that administer the unemployment
compensation program. If each year those 1 million individuals
had to be notified 4 times, the resulting blizzard of paper
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14
would not only innundate the mails and substantially increase
the operating costs of the Social Security Administration,
but it would also be contrary, we strongly suspect, to the
reasonable expectations and preferences of most of the indi-
viduals involved.
The bill also contains a provision, subdivision (a)(1)(B)
(lines 17-21, page 2), which requires that if a record must
be disclosed under Section 552 (the Freedom of Information
Act), the individual "concerned shall be notified by mail
at his last known address of any such required disclosure."
This requirement seems to us too broad. In its present
form, the Freedom of Information Act contains only one dis-
closure requirement to which the bill's provision (and the
Advisory Committee's safeguard requirement 111(3), viz.,
that an individual's prior, explicit, informed consent be
obtained before disclosing any data from a record about
him if such disclosure is not within the stated purposes of
the system as reasonably understood by the individual) would
seem pertinent.
Subdivision (a)(3) of the Act requires each agency to
make available identifiable records upon request subject
to an exemption from the requirement for each of nine cate-
gories of "matters" listed in the Act's subsection (b).
Seven of these exemptions are discretionary with the agency.
One, exemption (5), is for "personnel and medical files and
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similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy."
Noting that the Freedom of Information Act fails to
provide for participation by an individual in a decision
by an agency to release information about him which the
agency might otherwise withhold under one of the discre-
tionary exemptions, the Advisory Committee recommended
that the Act be amended
to require an agency to obtain the consent of
an individual before disclosing in personally
identifiable form exempted-category data about
him, unless the disclosure is within the pur-
poses of the system as specifically required
by statute. (pp. 64-66)
We suggest that the Advisory Committee's recommendation
would be preferable to the bill's provision. It accepts
the fact that there are records about individuals which
are "public," i.e., disclosable to the public either be-
cause of a specific statutory requirement or because they
are subject to the general disclosure requirement of the
Freedom of Information Act, and do not fall within one of
the Act's exempted categories. As to such "public records,"
the Advisory Committee's view was that the individual need
not necessarily be notified, at the agency's initiative, nor
need his consent to the disclosure necessarily be obtained.
Rather, an individual need only be afforded the right to
learn, upon his request, that information in such records has
been disclosed--a right that would be guaranteed by the
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Advisory Commir.. ;;4's recommended sr4fp guard requirements 1 (6) ,
that a record of all disclosures be kept, and III(4), that
the individual be informed of all disclosures if-and-when
he asks to know. (p. 62)
(p.56)
Access by Agency Employees
The bill contains a provision, subdivision (a)(2) (lines 22-
25, page 2, and lines 1-2, page 3) that would prohibit the
disclosure of record information within each agency to any
individuals (presumably agency employees) other than those
who need access to it in order to do their jobs. We would
be surprised to discover any agency that does not now have
some rules and procedures designed to limit access to its
records by its own employees. At a minimum, an agency will
want to discourage employees who have no job-related need
to consult or work with its records from wasting their time.
An agency is also likely to be concerned about protecting
the integrity of its records (it does not want them lost or
misplaced) and-about their disclosure or use for unintended
purposes (always a potential source of embarrassment to an
agency). However, we suspect that the restrictiveness of
these internal access-limiting rules and procedures varies
widely, and that in some. cases the rules could be more effec-
tively enforced. Accordingly, we support the provision of
H.R. 12206 which proposes to establish, as one legally re-
quired restriction, that access by agency employees be job-
related.
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The Identity of Record Users
The bill contains a provision, subdivision (a)(3) (lines
3-6, page 3), requiring agencies to maintain records of the
names and addresses of persons to whom record information
is divulged and the purposes of such divulgence. Presumably,
is intended that these records of divulgence will become
part of, or easily associable with, the record information
available for inspection by the individual to whom the
record pertains (pursuant to another provision of the bill).
If so, this provision corresponds to the Advisory Committee's
safeguard requirements 1(6), to maintain a complete and
accurate record of every access and use of any data in the
system, including the identity of all persons and organiza-
tions to which access has been given, and 111(4), to inform
an individual., upon his request, about the uses made of
data about himself, including the identity of all persons and
organizations involved and their relationship with the record-
keeping system (pp. 56 and 62).
We believe these requirements are sound and, for most
systems, feasible, without costly modification of recording
and storage. capability. Since questions have been raised as
to the feasibility and cost of this requirement, other agencies
will doubtless wish to expand on this issue. However, we be-
lieve that the protection these requirements would afford the
individual subject of a record is so fundamental to fair in-
formation practice that it should be relaxed only in very
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exceptional cases, and then only where comparable protection
can be guaranteed through other arrangements. Yet, for these
very reasons we feel strongly that this protection must be
provided in such a way as to assure that the record-keeping
operations to which it is made applicable can continue to
function effectively.
Subdivision (a)(3) could have monstrous administrative
consequences for the Social Security Administration, for
example, since it is susceptible to the interpretation that
a record must be maintained of every access to every agency
record about each of the millions of individuals who are
covered by SSA programs--records to which hundreds of SSA
employees routinely have access for use in connection with
the day-to-day administration of those programs.
Similarly, the Department's personnel officials contend
that if this provision were interpreted to require detailed
documentation of every access to ordinary personnel records
about Department employees--records that are frequently used
or consulted by authorized persons in connection with routine
personnel actions--not only would the added administrative
burden be horrendous, but the lack of an apparent useful pur-
pose would make the provision difficult to enforce. A record
is now kept of all accesses to security records pertaining to
Departmental personnel, but these records are maintained on
only a small fraction of our employees.
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Then too, officials of the Public Health Service have
observed that it is accepted practice in hospitals and
clinical centers to maintain a single record on each patient
so that the record is constantly available for reference
and updating each time there is contact between the patient
and the professional staff. To maintain an accurate record
of every person to whom information in such a record is
divulged in staff meetings, clinical rounds, and patient
care, we are told, would place a grave, wholly unnecessary
burden on the staffs of hospitals and clinical centers.
We are certain that subdivision (a)(3) is not intended
to bring entire administrative record-keeping operations
to a grinding halt or to add disproportionately to the admin-
istrative costs of record-keeping operations.
For example,
the provision need not require that a record be made of the
disclosure to an individual or..to an indi.vidual's.authorized
representative of information in the individual's own record.
Nor does it seem necessary to require that detailed records
be kept about routine transfers or disclosures that constitute
a normal part of the administration of the program, service,
or treatment for which the records in question have been estab-
lished and are being maintained. In the case of bulk transfers
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of information about individuals, a log containing dates and
names and addresses or other appropriate symbols sufficient
to identify with certainty the agency, office, or organiza-
tion to which such transfers have been made, should make
possible for an agency to inform an individual, with
reasonable accuracy, when and to'whom information about
him has been routinely disclosed. This would hold whether
the disclosure were to another operating unit within the same
agency or to an outside agency or organization with whom the
disclosing agency routinely interacts.
By the same token, however, it would be necessary, and
as far as we can tell it would also be practical, to keep a
detailed record of every disclosure of information about an
individual which is not part of the normal administration
of the activity for which the disclosed information is
maintained and which, signally, is beyond the reasonable
expectations of the individual as evidenced by the absence
of a clear and specific statement in the system's public
notice that such disclosures are routinely made. We do not
think, for example, that there is any need to keep individuals
in the dark about the circulation.of their personnel records
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among Federal.agencies, nor are we persuaded that consumer
reporting agencies should have undocumented access to the
records that a hospital or clinic maintains about its patients.
These, in our view, do not constitute routine disclosures of
personal information and should not be treated as if they
were.
Individual Right of Access
The bill contains a provision, subdivision (4).(lines
7-10, page 3), designed to assure that individuals may
inspect their records and obtain copies at their own expense,
with a limitation on the charge that an agency may make for
such copies. This provision corresponds to the Advisory
Committee's safeguard requirement 111(2) (pp. 59-611). We
regard this as a desirable provision, and would like to see
it stipulate further that if an individual so requests, re-
cord copies must be made- available to him in..a form he can
easi -rrpreind. We also think that care should be exer-
cised in defining the phrase "inspect his own record" and
in setting "cost to the agency" as the maximum that an indi-
vidual may be cAarged for a copy of his record. Inspecting
a record should not be restricted to mean "in person,"
visual scanning, for this might effectively vitiate the
utility of the right sought to be given the individual, but
rather should assure that an individual can (1) learn in a
manner that is reasonably simple and efficient for him what
information is in a record about him, and (2) obtain a copy
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of a record containing information.. about him... without- app, 6a.-iing
in person to ask for it or to pick it up.
Cost can be a significant determinant of the ease with
which an individual can obtain a copy of his record. De-
pending on the character of its records--their scope, form,
location, indexing, etc.--an agency's cost for providing
a copy may vary from nominal to substantial. For example,
searching to find a record or assembling it from several
scattered sources might be very expensive and might be
interpreted as a necessary element of the cost of providing-
a copy. If so, the charge to the individual might be so
great as effectively to vitiate his right to obtain a copy.
An individual should not be required top.ay.a high fee,
even though cost-related, for a copy, of his record,
especially if the expense to the agency is due to its failure
to adopt record-keeping practices that would enable it to
respond efficiently and. economically to. individual requests.
Within the scope of agency records covered by the bill,
this provision would give an individual the right to inspect
and have copies of all types of information about himself.
.The bill, in this respect, is completely in harmony-with the
Advisory Committee's report (pp. 59-.61). Yet, as the Advisory
Committee recognized, such a right to full access is incon-
sistent with existing practice in some situations. The
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medical profession, for example, often withholds from a
patient his own medical records, if knowledge of their con-
tent is deemed harmful to him. In some situations a patient
might be led to despair or ever.: suicide if he were given
uninterpreted information from the record of his treatment
for a psychiatric illness. In other situations, premature
release to a patient of information in his medical records
.could seriously impair therapy.
It should be clear that an agency could establish, by
regulations adopted after public notice and comment, proce-
dures designed to assure that the timing of a disclosure or
interpretation to the individual of information in his re-
cord will not seriously harm the health, safety or welfare
of the individual. Of course, any such regulations must not
serge to frustrate completely the individual's right of
Accuracy of Records
The bill contains a provision, subdivision (a)(5) (lines
11-14, page 3)., which gives an individual the right to supple-
ment his record with information that he deems pertinent to
it, and a further provision, subdivision (a)(6) (lines 15-17,
page 3), designed to assure that an individual may have
erroneous information removed from his record and have other
agencies and persons to whom the erroneous material has been
communicated notified of the removal. These provisions cor-
respond closely to the Advisory Committee's safeguard require-
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ment 111(6), which obligates a record-keeping organization
to have procedures that (i) allow an individual who is the
subject of information in a record to contest its accuracy,
completeness, pertinence, and the necessity for retaining
it; (ii) permit the information to be corrected or amended
when the individual to whom it pertains so requests; and
(iii) assure, when there is disagreement with the individual
about whether a correction or amendment should be made, that
the individual's claim is noted and included in any subse-
quent disclosure or dissemination of the disputed informa-
tion (p. 63). In the Advisory Committee's report, however,
this safeguard requirement is reinforced by two others for
which there are no corresponding provisions in H.R. 12206.
one, safeguard requirement 1(7), exposes a record-keeping
organization to civil suits if it does not maintain its
records with such accuracy, completeness, timeliness, and
pertinence as. is necessary to assure accuracy and fairness
in any determination relating to an individual's qualifica-
tions, character, rights, opportunities, or benefits that
may be made on the basis of information in its records. The
other, safeguard requirement 1(8), would also place a record-
keeping organization in peril of suit if it did not eliminate
stale information from its computer-accessible files.
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Disclosure of Identity of Information Sources
The bill contains a provision, subdivision (d), (lines
10-13, page 4), to the effect that it shall not be held
to permit disclosure of the identity of any person who has
furnished information contained in an individual's record.
The Advisory Committee took a clear and firm position in its
report on the issue of giving individuals the right to know
the sources of recorded information about themselves.
..we cannot accede in general to the claim
that the sources of recorded comments of third
parties should be kept from a data subject if he
wants to know about them. Disclosure to the data
subject of the sources of such comments may be
difficult for organizations that have promised
confidentiality. Modifying the data subject's
right of access in order to honor past pledges
may be necessary. However, the practice of
recording data provided by third parties, with
the understanding that the identities of the data
providers will be kept confidential, should be
continued only where there is a strong, clearly
justified societal interest at stake. Elementary
considerations of due process alone cast grave
doubt on the propriety of permitting an organiza-
tion to make a decision about an individual on
the basis of data that may not be revealed to
him or that have been obtained from sources that
must remain anonymous to him.... (p. 61)
As a matter of principle, we are strongly attracted by
the Advisory Committee's reasoning. We are aware that the
issue of confidentiality of sources of information is
controversial. For example, the Department's investigative
officials contend that the practice of-seeking information
.from confidential sources is important to the current program
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of security and suitability investigations conducted by the
Federal government.
Personnel officials concede that some confidential
respondents provide information that is not accurate or fair
but state that such responses can usually be discerned and
discounted by comparison with other reports. They also
point out that the individual, in any event, is protected
by procedures that assure that when any adverse action is
proposed, all pertinent information is disclosed to him--
with the identity of the source protected by preparing sum-
maries of the information.
It is clear that the present practices with regard to
records of information collected and maintained in security
and suitability investigations for Federal employment derive
from Executive Orders and regulations of the Civil Service
Commission, both of which are outside the scope of authority
and competence of any single Federal agency. All agency
comments about the impact that any provision of the bill
would have on such records, and about Federal personnel
records generally, must therefore defer in considerable
measure to the views of the Executive Office of the President
and of the Civil Service Commission.
The Department of Health, Education, and Welfare has
relatively few positions whose sensitivity derives from
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considerations of the adverse impact which their incumbents
can have on matters relating to the national defense or the
conduct of foreign policy. The present scope of application
of "security" and "suitability" investigations (with re-
liance on confidential-sources whose identity, in accordance
with current rules and practices would not be disclosed to
individual applicants and employees) is far broader than the
range of those positions.
Whatever the justification for using confidential
sources in investigations for some range of jobs in the
Federal government, we are confident that a blanket pro-
hibition on disclosing the identity of sources of record
information to the record subject would constitute unsound
public policy--particularly in legislation whose purpose
is to recognize and protect the interest of individuals in
records that-government agencies maintain about them.
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Exemptions
The bill contains three significant exemptions from
all its provisions: (i) records that consist exclusively
of information obtained directly from the individuals to
whom the records pertain (subdivision (a), lines 1-2,
page 2); (ii) records required by Executive Order to be
kept secret in the interest of national defense and
foreign policy (subdivision (b)(1), lines 18-20, page 3);
and (iii) investigatory files compiled for law enforce-
ment purposes (subdivision (b)(2), lines 22-24, page 3,
lines 1-3, page 4). By way of comment on these exemptions,
we would first call attention to the Advisory Committee's
discussion of the possibility of making exemptions from
its recommended safeguard requirements.
....because the safeguards we recommend are so basic
to assuring fairness in personal data record keeping,
any particular system, or class of systems, should
be exempted from any one of them only for strong
and explicitly justified reason.
If organizations maintaining personal data systems
are left free to decide for themselves when and to
what extent to adhere fully to the safeguard
requirements, the aim of establishing by law a
basic code of fair information practice will be
frustrated. Thus, exemptions from, or modifications
of, any of the safeguard requirements should be made
only as specifically provided by statute, and there
should be no exemption or modification unless a
societal interest in allowing it can be shown to be
clearly paramount to the interest of individuals in
having the requirement imposed. 'Societal interest,'
moreover, should not be construed as equivalent
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to the convenience or efficiency of organizations
that maintain data systems, the preference of a
professional group, or the welfare of individual
data subjects as defined by system users or oper-
ators.... (pp. 52-53)
(i) The first exemption provided for in the bill is
implicit in the language of subdivision (a) which describes
the types of records to which the bill applies: "...records
concerning any person...which contain any information ob-
tained from any source other than such person...." The
effect of this language is to exclude from the protections
afforded by the bill all records consisting exclusively of
information obtained from individuals to whom the records
pertain. We find this puzzling not only because a large
proportion of the records that government agencies maintain
about individuals are of that character, but also because
the information in such records is almost as likely as information
provided by third parties to be erroneously recorded,
incomplete, stale, and copied, or transferred to others.
Accordingly, we believe that records composed exclusively
of information that individuals have provided about themselves
should be subject to the same rules as records containing
information obtained from other sources.
(ii) We are also concerned about the exemption pro-
vided in the bill for records required to be kept secret
in the interest of national defense and foreign policy.
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The terms "secret" and "interest of national defense and
foreign policy" are susceptible to subjective, overly
broad, and therefore controversial, interpretation. This
is likely to lead, at best, to conflict over interpreta-
tions of the exemption, and at worst, to frustration of
the bill's objectives with respect to sizeable categories
of records maintained by government agencies. We suggest
that any provision designed to exempt records in the
interest of national defense and foreign policy be
drafted so as to describe as specifically as possible
particular types of records about individuals and particular
factual circumstances to which the exemption applies,
further suggest that such a provision be limited in its effect
to enabling an agency to refuse to give access and copies to
an individual of particular information in his record
(as distinct from the entire record) if disclosure to the
individual of that particular information would adversely
affect the national defense or the conduct of foreign
policy as determined with reference to carefully speci-
fied standards for applying the concepts of "adverse
effect," "national defense," and "conduct of foreign
policy."
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(iii) The exemption for records that are "investi-:.
gatory files compiled for law enforcement purposes" is
presumably intended to prevent individuals who are under
investigation as alleged or suspected violators of law
from having the rights provided by the bill. Such an exemp-
tion reflects the desirable purpose of assuring the effec-
tiveness of the work of law enforcement agencies which might
be undermined if individuals being investigated for suspected
criminal conduct could, for example, gain access to the
records of the investigation. The billb provision contains
two exceptions from this exemption: one for stale investi-
gatory records, i.e., records that "have been maintained
for a longer period than reasonably necessary to commence
prosecution or other action"; the other for investigatory
records that are "available by law to a party other than
an (other] agency. "
We have several comments about this exemption.
The scope of the exemption is susceptible to a broader
interpretation than may be intended and than we would
regard as desirable. Its scope could be clarified by
changing the phrase "investigatory files compiled for law
enforcement purposes,..." (lines 22-23, page 3) to "compiled
for the purpose of investigating or prosecuting criminal
conduct,..." As it stands, the term "law enforcement
purposes" might be interpreted to encompass almost any
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public administration function. The change we suggest
would confine the exemption to investigatory records compiled
for enforcement of laws whose violation is a criminal offense.
By so limiting the exemption, an individual's protection
vis-a-vis the use of an investigatory record would be that
now afforded by the Constitutional guarantee of due
process and by laws that establish limitations on the exer-
cise of the police power, including civil remedies and
penalties that may be imposed to enforce such limitations.
Similarly, the purposes of the two exceptions from the
exemption for investigatory records need to be clarified.
We assume that one purpose of both exceptions is to provide
protections not now afforded individuals in the event that
information from investigatory records about them is made
available or used for purposes other than criminal law
enforcement. This would explain the exception for stale
investigatory records--the first exception--which should
encourage their destruction or their retention in some form
that would make them difficult to retrieve or that would make
it impossible to identify the individuals to whom they pertain.
It would also explain -the second....exception for.,inues.tigatory
.records that are transferred to "a party other than an agency."
In our view, however, this second exception is in need of
further refinement.
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As it now reads, its effect would be to apply the
bill's requirements to investigatory records that may by law
be made available to third parties other than another Federal
agency. In other words, if a Federal agency that compiles
a criminal investigatory record on an individual is authorized
by law to share that record with some non-Federal agency(a
third party that is not an agency according to the terms of
the exception),the investigated individual would, for example,
be entitled to gain access to the record once it had been
transferred. Obviously, there are difficulties here--both
from the standpoint of assuring the efficacy of criminal law
enforcement and also from the standpoint of protecting
the individual. What is needed, we think, is for the
exception to take more detailed account of the character
of accessibility of the investigatory record outside the
agency compiling it. From the agency's standpoint, the
exemption for criminal investigatory records should not be
affected by reason of the records' being available to any
other public agency (whether Federal, State or local) for
the sole purpose of criminal law enforcement. From the indi-
vidual's standpoint, the exemption should not deprive him of
the bill's protections when investigatory records are made
available to anyone outside the agency compiling them for
any purpose other than criminal law enforcement. As the
exception now reads, however, the exemption would apply only
when records are available by law to a _party other than a
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Federal agency r without regard to the purpose of_ avail-
ability.
The interests of both law enforcement agencies and
individuals could be accommodated by changing the second
exception from the exemption for criminal investigatory
records to make clear that such records are exempted only
when their availability is strictly limited to other public
law enforcement agencies for purposes of criminal law
enforcement. In this way the bill's protections for indi-
viduals would apply to investigatory records whenever such
records are available--by law, custom, policy, or in fact--
to any party other than the compiling agency for any purpose
other than criminal law enforcement.
if this exemption were modified in the way we suggest,
the bill would be more effectively responsive to the wide-
spread public concern about inappropriate uses of investigatory
files.
Application to "Confidential" Records
The bill contains a provision, subdivision (g) (lines
1-3, page 5), to the effect that it shall not be construed
"to permit the transfer or similar distribution of any
information deemed confidential by other statutes." We
appreciate the need to assure that no agency will interpret
the bill's stricture on the disclosure of record information
about an individual without notifying him that it is doing
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so, subdivision (a)(1)(A)., as a license to transfer to any
other agency,, or to any other person than the individual
to whom it pertains, information in a record whose dis-
closure is now prohibited by statute. We are not certain,
however, that this is the problem to which subdividion (g)
is addressed.
Read literally, the provision would exempt all records,
or any information in a record "deemed confidential by other
statutes;' from the bill's requirement that an individual be
allowed to inspect and have copies of a record about himself.
Since a principal objective of H.R. 12206, as we understand
it, is to give individuals a general right of access to
the records that agencies maintain about them--a right
which, in our view, is fundamental to the concept of fair
information practice--we are troubled by the possibility of
such a literal reading. For a general right of access to be
fully effective, we feel that it must not be susceptible to
curtailment by agency claims that in the absence of any
specific statutory requirement to the contrary, information
deemed confidential by law should not be accessible even to
the individual concerned.
We have already stated our views on the issue of with-
holding from individuals the identities of sources of
information in records about them. Essentially, our position
was that there should be no blanket prohibitions on the
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disclosure of sources and we suggest that the same rule ought
to apply here. If the individual's right of access to
information in a record about him is to be curtailed at all,
it should be done by specifying the particular. types of
records, or information in records, to which the individual
is to be denied access, rather than through general
language which invokes unspecified provisions of other
statutes.
Sanctions
We come now to the mechanisms for making effective
the requirements in the bill. The bill would require
implementing regulations to be issued by each agency,
subdivision (e) (page 4), and would impose a $1,000 fine
on any agency employee who knowingly and.wili lly violates,
or permits a violation, of any requirement under the color
of agency authority, subdivision (f) (page 4). The bill,
however, makes no provision for individuals to seek court
enforcement of its requirements.
In this regard, the Advisory Committee's approach to
making its safeguard requirements effective may_be__of some
help. (pp. 42-44). The Committee recommended that any
statute establishing a code of fair information practice should
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o Define "fair information practice" as adherence
to specified standards--the safeguard requirements;
o Prohibit violation of any safeguard requirement
as an "unfair information practice";
o Provide that an unfair information practice be
subject to both civil and criminal penalties;
o Provide for injunctions to prevent violation of
any safeguard requirement;
o Give individuals the right to bring suits for un-
fair information practices to recover actual, liqui-
dated, and punitive damages, in individual or class
actions; and provide for recovery of reasonable
attorneys' fees and other costs of litigation in-
curred by individuals who bring successful suits.
The purpose of these provisions was clearly to estab-
lish individual rights and to provide means for individuals
to assert their rights. In this way, the Committee sought
to create incentives for record-keeping organizations,
including government agencies, to adhere closely to basic
principles of fair information practice.
Compared with the Committee's recommendations, we
believe that the enforcement mechanisms in H.R. 12206 lack
much in likely effectiveness. Specifically--
o A signal deficiency of the bill is its failure to
provide individuals the right to seek court enforce-
ment of their rights. Any such provision should
also provide for recovery by successful litigants
of litigation costs and attorneys' fees which are
otherwise likely to constitute substantial disin-
centives to the prosecution of enforcement suits
by individuals.
o The provision in the bill imposing fines on
individual agency employees for acting under color
of agency authority appears to us>: to be unsound
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as a matter of policy. The requirements imposed
by the bill create agent obligations. Liability
for their violation should therefore be imposed
on the agency, which in turn should be required
to impose established sanctions for the improper
conduct of its individual employees. If there is
to be individual employee liability, it should not
be avoidable because the: employee's actions were
not asserted to be authcrized by the agency--or
because he was ignorant of the law.
Effective Date
The bill would make its requirements regarding agency
records effective 90 days after enactment. We believe that
this does not provide enough time for agencies to make the
substantial changes in record-keeping policy and practice
that are called for by these requirements.
Conclusion
We wish to summarize our position as follows.
o We oppose enactment of H. R. 12206 as drafted.
o We are equally committed to the objectives of
the bill.
o The problems which enactment of this bill would
create suggest the need for further review.
Many of the issues with which the bill seeks to deal are
addressed in the Advisory Committee's report, from which we
have drawn extensively in this statement. Nevertheless,
more needs to be learned about the cost and other operational
implications of a number of the Advisory Committee's approaches
before we can be assured that the practices that would result
will not cause abuses as onerous as those we are attempting
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We anticipate that other agencies of the government may
have views about some issues dealt with by the bill which
differ from ours. We would urge that opposition to require-
ments of fair information practice should not be honored in
a blanket fashion, but, if at all, only in the form of very
narrowly and specifically drawn exemptions, and then only
where a clear and convincing demonstration has been made of
societal interest paramount to that of individual record-
subjects.
We recognize that the concept of "paramount societal
interest" is a rather general and abstract standard. To
sharpen this standard, we suggest that assertions of custom,
bureaucratic convenience, and professional preference be
distinguished from societal interest. Any claims for ex-
ception or exemption should be well documented--not just
asserted. If financial costs, manpower deficiencies, adminis-
trative or technical difficulties, or other similar practical
obstacles are argued to require relief from fair information
practice requirements for particular records or types of re-
cords, such arguments should be carefully scrutinized to sub-
stantiate these claims. In the absence of more specific
standards and criteria, we are faced with the equally undesirable
alternatives of broad categorical exemptions or the broad,
abstract standard of paramount societal interest.
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Barriers to establishing policies of fair information
practice are likely to include bureaucratic intransigence,
psychic resistance to change, and the inertia of present
practices. They must not be allowed to frustrate the
desirable objectives of fair information practice.
The President has recognized the need for firm action by
establishing a Domestic Council Committee on the Right of
Privacy to address the thorny issues which confront us.
it is clearly time to translate abstract principles into
concrete policies and practices. Through the legislative
process and. the: parallel but complementary actions of the
Executive Branch, we can do so.
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