OVERVIEW OF THE PRIVACY ACT OF 1974

AGENCY REQUIREMENTS

Each agency that maintains a system of records shall--

C. 5 U.S.C.  552a(e)(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 President) 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 be 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 providing all or any part of the requested information."

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The OMB Guidelines note that "[i]mplicit in thissubsection is the notion of informed consent since an individual should be provided with sufficient information about the request for information to make an informed decision on whether or not to respond." OMB Guidelines, 40 Fed. Reg. 28,948, 28,961 (1975). The OMB Guidelines also note that subsection (e)(3) is applicable to both written and oral (i.e., interview) solicitations of personal information. Id.

There is some authority for the proposition that subsection (e)(3) is inapplicable when an agency solicits information about an individual from a third party. See Truxal v. Casey, 2 Gov't Disclosure Serv. (P-H)  81,391, at 82,043 (S.D. Ohio Apr. 3, 1981); see also Gardner v. United States, No. 96-1467, 1999 U.S. Dist. LEXIS 2195, at *19 (D.D.C. Jan. 29, 1999) (noting that although it is correct that Privacy Act mandates actual notice of routine uses, "information in the instant case was not gathered from Plaintiff, but from third parties"), summary affirmance granted on other grounds, No. 99-5089, 1999 WL 728359 (D.C. Cir. Aug. 4, 1999); McTaggart v. United States, 570 F. Supp. 547, 550 (E.D. Mich. 1983) (individual lacks standing to complain of insufficient Privacy Act notice to third party). The OMB Guidelines support this view, but suggest that "agencies should, where feasible, inform third-party sources of the purposes for which information they are asked to provide will be used." OMB Guidelines, 40 Fed. Reg. at 28,961. The practice of not providing notice to third parties was condemned by the Privacy Protection Study Commission, see Privacy Commission Report at 514, and, indeed, several courts have disagreed with Truxal and the OMB Guidelines on this point. See Usher v. Secretary of HHS, 721 F.2d 854, 856 (1st Cir. 1983) (costs awarded to plaintiff due to agency "intransigence" in refusing to provide information specified in subsection (e)(3) to third party); Kassel v. VA, No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (in light of "the express language of (e)(3) and the Privacy Act's overall purposes . . . (e)(3) applies to information supplied by third-parties"); Saunders v. Schweiker, 508 F. Supp. 305, 309 (W.D.N.Y. 1981) (plain language of subsection (e)(3) "does not in any way distinguish between first-party and third-party contacts").

In Covert v. Harrington, 876 F.2d 751, 755-56 (9th Cir. 1989), a divided panel of the Court of Appeals for the Ninth Circuit held that an agency component's failure to provide actual notice of a routine use under subsection (e)(3)(C), at the time information is submitted, precludes a separate component of the agency (an Inspector General) from later invoking the routine use as a basis for disclosing such information. See also United States Postal Serv. v. National Ass'n of Letter Carriers, 9 F.3d 138, 146 (D.C. Cir. 1993) (citing Covert with approval and remanding case for factual determination as to whether (e)(3)(C) notice was given). But see OMB Guidelines at 28,961-62 ("It was not the intent of [subsection (e)(3)] to create a right the nonobservance of which would preclude the use of the information or void an action taken on the basis of that information.").

It has been held that "[n]othing in the Privacy Act requires agencies to employ the exact language of the statute to give effective notice." United States v. Wilber, 696 F.2d 79, 80 (8th Cir. 1982); see also Field v. Brown, 610 F.2d 981, 986-88 (D.C. Cir. 1979); Glasgold v. Secretary of HHS, 558 F. Supp. 129, 149-51 (E.D.N.Y. 1982). Thus, for example, subsection (e)(3)(D) does not require an agency to provide notice of the specific criminal penalty which may be imposed for failure to provide information. See, e.g., United States v. Bressler, 772 F.2d 287, 292-93 (7th Cir. 1985); United States v. Bell, 734 F.2d 1315, 1318 (8th Cir. 1984) (per curiam); United States v. Annunziato, 643 F.2d 676, 678 (9th Cir. 1981); United States v. Rickman, 638 F.2d 182, 183 (10th Cir. 1980); United States v. Gillotti, 822 F. Supp. 984, 988 (W.D.N.Y. 1993); see also United States v. Bishop, No. 90-4077, 1991 WL 213755, at *4 (6th Cir. Oct. 23, 1991) (citing Bressler and holding that IRS form 1040 instruction booklet informing taxpayers of obligation to file return or statement with IRS is sufficient notice under Privacy Act); Beller v. Middendorf, 632 F.2d 788, 798-99 n.6 (9th Cir. 1980); Field, 610 F.2d at 987 (requirements of Privacy Act satisfied where Privacy Act statement provided that failure to provide information would result in "notification to the Department of Justice" for appropriate action).


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