OVERVIEW OF THE PRIVACY ACT OF 1974

DEFINITIONS

A. Agency

"any Executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the [federal] Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C.  552a(1) (incorporating 5 U.S.C.  552(f) (1994 & Supp. II 1996), which in turn incorporates 5 U.S.C.  551(1) (1994)).

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The Privacy Act--like the Freedom of InformationAct, 5 U.S.C.  552--applies only to a federal "agency." See OMB Guidelines, 40 Fed. Reg. 28,948, 28,950-51 (1975); 120 Cong. Rec. 40,408 (1974), reprinted in Source Book at 866; see also, e.g., NLRB v. United States Postal Serv., 841 F.2d 141, 144 n.3 (6th Cir. 1988) (Postal Service is an "agency" because it is an "independent establishment of the executive branch"); Ehm v. National R.R. Passenger Corp., 732 F.2d 1250, 1252-55 (5th Cir. 1984) (Amtrak held not to constitute a "Government-controlled corporation"). But cf. Alexander v. FBI, 971 F. Supp. 603, 606-07 (D.D.C. 1997) (although recognizing that definition of "agency" under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President's immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, nevertheless rejecting such limitation with regard to "agency" as used in Privacy Act due to different purposes that two statutes serve), petition for permission to appeal from interlocutory order denied, No. 97-8059 (D.C. Cir. Oct. 10, 1997), subsequent related decision, No. 96-2123, 2000 WL 329249 (D.D.C. Mar. 29, 2000), mandamus denied per curiam sub nom. In re Executive Office of the President, No. 00-5134, 2000 WL 656113, at *4 (D.C. Cir. May 26, 2000) (stating that the White House "remains free to adhere to the position that the Privacy Act does not cover members of the White House Office"); Shannon v. General Elec. Co., 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) ("no dispute" that GE falls within definition of "agency" subject to requirements of Privacy Act where pursuant to contract it operated Department of Energy-owned lab under supervision, control, and oversight of Department and where by terms of contract GE agreed to comply with Privacy Act).

Thus, state and local government agencies are not covered by the Privacy Act, see Ortez v. Washington County, Or., 88 F.3d 804, 811 (9th Cir. 1996); Brown v. Kelly, No. 93-5222, 1994 WL 36144, at *1 (D.C. Cir. Jan. 27, 1994) (per curiam); Monk v. Teeter, No. 89-16333, 1992 WL 1681, at *2 (9th Cir. Jan. 8, 1992); Davidson v. Georgia, 622 F.2d 895, 896 (5th Cir. 1980); Markun v. Hillsborough County Dep't of Corrections, No. 97-208, 1999 WL 813949, at *1 (D.N.H. Sept. 17, 1999); Ferguson v. Alabama Criminal Justice Info. Ctr., 962 F. Supp. 1446, 1446-47 (M.D. Ala. 1997); Williams v. District of Columbia, No. 95CV0936, 1996 WL 422328, at **2-3 (D.D.C. July 19, 1996); Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 WL 411590, at **1-2 (D.D.C. July 11, 1996), summary affirmance granted, No. 96-5262 (D.C. Cir. Sept. 22, 1997); Mamarella v. County of Westchester, 898 F. Supp. 236, 237-38 (S.D.N.Y. 1995); Reno v. United States, No. 4:94CV243, 1995 U.S. Dist. LEXIS 12834, at *6 (W.D.N.C. Aug. 14, 1995) (state national guard); Connolly v. Beckett, 863 F. Supp. 1379, 1383-84 (D. Colo. 1994); MR by RR v. Lincolnwood Bd. of Educ., Dist. 74, 843 F. Supp. 1236, 1239-40 (N.D. Ill. 1994), aff'd sub nom. Rheinstrom v. Lincolnwood Bd. of Educ., Dist. 74, No. 94-1357, 1995 U.S. App. LEXIS 10781 (7th Cir. May 10, 1995); Malewich v. United States Postal Serv., No. 91-4871, slip op. at 19 (D.N.J. Apr. 8, 1993), aff'd, 27 F.3d 557 (3d Cir. 1994) (unpublished table decision); Shields v. Shetler, 682 F. Supp. 1172, 1176 (D. Colo. 1988); Ryans v. New Jersey Comm'n, 542 F. Supp. 841, 852 (D.N.J. 1982), nor does federal funding or regulation convert such entities into covered agencies, see St. Michaels Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981); Adelman v. Discover Card Servs., 915 F. Supp. 1163, 1166 (D. Utah 1996).

Similarly, private entities are not subject to the Act, see, e.g., Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999); Mitchell v. G.E. American Spacenet, No. 96-2624, 1997 WL 226369, at *1 (4th Cir. May 7, 1997); Gilbreath v. Guadalupe Hosp. Found., 5 F.3d 785, 791 (5th Cir. 1993); Locke v. MedLab/Gen. Chem., No. 99-2137, 2000 WL 127111 (E.D. Pa. Feb. 3, 2000); Davis v. Boston Edison Co., No. 83-1114-2, 1985 U.S. Dist. LEXIS 23275 (D. Mass. Jan. 21, 1985); Friedlander v. United States Postal Serv., No. 84-773, slip op. at 5-6 (D.D.C. Oct. 16, 1984); Marshall v. Park Place Hosp., 3 Gov't Disclosure Serv. (P-H)  83,088, at 83,057 (D.D.C. Feb. 25, 1983); see also Bybee v. Pirtle, No. 96-5077, 1996 WL 596458, at *1 (6th Cir. Oct. 16, 1996) (appellant did not state claim under Privacy Act because Act does not apply to conduct of individuals who refused to hire him due to his failure to furnish his social security number or fill out W-4 forms for income tax purposes); Steadman v. Rocky Mountain News, No. 95-1102, 1995 U.S. App. LEXIS 34986, at *4 (10th Cir. Dec. 11, 1995) (Privacy Act claims "cannot be brought against defendant because defendant is not a governmental entity"); United States v. Mercado, No. 94-3976, 1995 U.S. App. LEXIS 2054, at **3-4 (6th Cir. Jan. 31, 1995) (appellant's retained defense counsel not an "agency"), nor does federal funding or regulation render such entities subject to the Act, see Unt v. Aerospace Corp., 765 F.2d 1440, 1448 (9th Cir. 1985); United States v. Haynes, 620 F. Supp. 474, 478-79 (M.D. Tenn. 1985); Dennie v. University of Pittsburgh Sch. of Med., 589 F. Supp. 348, 351-52 (D.V.I. 1984), aff'd, 770 F.2d 1068 (3d Cir. 1985) (unpublished table decision); see also United States v. Miller, 643 F.2d 713, 715 n.1 (10th Cir. 1981) (finding that definition of "agency" does not encompass national banks); Boggs v. Southeastern Tidewater Opportunity Project, No. 2:96cv196, 1996 U.S. Dist. LEXIS 6977, at **5-9 (E.D. Va. May 22, 1996) (rejecting plaintiff's argument concerning entity's acceptance of federal funds and stating that "[i]t is well settled that the Administrative Procedures [sic] Act, 5 U.S.C.  551 . . . applies only to Federal agencies").

Note also that federal entities outside of the executive branch, such as a grand jury, see Standley v. Department of Justice, 835 F.2d 216, 218 (9th Cir. 1987), a probation office, see Schwartz v. United States Dep't of Justice, No. 95-6423, 1996 WL 335757, at *1 (2d Cir. June 6, 1996), aff'g No. 94 CIV. 7476, 1995 WL 675462, at *7 (S.D.N.Y. Nov. 14, 1995); Callwood v. Department of Probation of the V.I., 982 F. Supp. 341, 343 (D.V.I. 1997); Chambers v. Division of Probation, No. 87-0163, 1987 WL 10133, at *1 (D.D.C. Apr. 8, 1987), or a federal bankruptcy court, see In re Adair, 212 B.R. 171, 173 (Bankr. N.D. Ga. 1997), are not subject to the Act. Similarly, the Smithsonian Institution, although having many "links" with the federal government, "is not an agency for Privacy Act purposes." Dong v. Smithsonian Inst., 125 F.3d 877, 879-80 (D.C. Cir. 1997), cert. denied, 524 U.S. 922 (1998).

An exception to this rule, however, is the social security number usage restrictions, contained in Section 7 of the Privacy Act, which do apply to federal, state, and local government agencies. (Section 7, originally part of the Privacy Act, Pub. L. No. 93-579, was not codified; it can be found at 5 U.S.C.  552a note (Disclosure of Social Security Number)). This special provision is discussed below under "Social Security Number Usage."

A Privacy Act lawsuit is properly filed against an "agency" only, not against an individual, a government official, or an employee. See, e.g., Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989); Petrus v. Bowen, 833 F.2d 581, 582-83 (5th Cir. 1987); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir. 1987); Hewitt v. Grabicki, 794 F.2d 1373, 1377 & n.2 (9th Cir. 1986); Unt, 765 F.2d at 1447; Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir. 1983); Windsor v. The Tennessean, 719 F.2d 155, 159-60 (6th Cir. 1983); Bruce v. United States, 621 F.2d 914, 916 n.2 (8th Cir. 1980); Parks v. IRS, 618 F.2d 677, 684 (10th Cir. 1980); Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 23 (D.D.C. 1997), summary affirmance granted sub nom. Armstrong v. Federal Bureau of Prisons, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30, 1998); Claasen v. Brown, No. 94-1018, 1996 WL 79490, at **3-4 (D.D.C. Feb. 16, 1996); Lloyd v. Coady, No. 94-5842, 1995 U.S. Dist. LEXIS 2490, at **3-4 (E.D. Pa. Feb. 28, 1995), upon consideration of amended complaint, 1995 U.S. Dist. LEXIS 6258, at *3 n.2 (E.D. Pa. May 9, 1995); Hill v. Blevins, No. 3-CV-92-0859, slip op. at 4-5 (M.D. Pa. Apr. 12, 1993), aff'd, 19 F.3d 643 (3d Cir. 1994) (unpublished table decision); Malewich, No. 91-4871, slip op. at 19 (D.N.J. Apr. 8, 1993); Sheptin v. United States Dep't of Justice, No. 91-2806, 1992 U.S. Dist. LEXIS 6221, at **5-6 (D.D.C. Apr. 30, 1992); Williams v. McCausland, 791 F. Supp. 992, 1000 (S.D.N.Y. 1992); Mittleman v. United States Treasury, 773 F. Supp. 442, 450 (D.D.C. 1991); Stephens v. TVA, 754 F. Supp. 579, 580 n.1 (E.D. Tenn. 1990); B.J.R.L. v. Utah, 655 F. Supp. 692, 696-97 (D. Utah 1987); Dennie, 589 F. Supp. at 351-53; Gonzalez v. Leonard, 497 F. Supp. 1058, 1075-76 (D. Conn. 1980); cf. Stewart v. FBI, No. 97-1595, 1999 U.S. Dist. LEXIS 21335, at **15-22 (D. Or. Dec. 10, 1999) (magistrate's recommendation) (actions of two Air Force officers assigned to other agencies were not attributable to Air Force; neither were their actions attributable to State Department, because although they both physically worked at embassy and ambassador had supervisory responsibility over all executive branch agency employees, neither reported to State Department or ambassador), adopted, No. 97-1595, 2000 U.S. Dist. LEXIS 2954 (D. Or. Mar. 15, 2000). Note, however, that a prosecution enforcing the Privacy Act's criminal penalties provision, 5 U.S.C.  552a(i) (see "Criminal Penalties" discussion below), would of course properly be filed against an individual. See Stone v. Defense Investigative Serv., 816 F. Supp. 782, 785 (D.D.C. 1993) ("Under the Privacy Act, this Court has jurisdiction over individually named defendants only for unauthorized disclosure in violation of 5 U.S.C.  552a(i)."); see also Hampton v. FBI, No. 93-0816, slip op. at 8, 10-11 (D.D.C. June 30, 1995) (citing Stone).

However, some courts have held that the head of an agency, if sued in his or her official capacity, can be a proper party defendant. See, e.g., Hampton, No. 93-0816, slip op. at 8, 10-11 (D.D.C. June 30, 1995); Jarrell v. Tisch, 656 F. Supp. 237, 238 (D.D.C. 1987); Diamond v. FBI, 532 F. Supp. 216, 219-20 (S.D.N.Y. 1981), aff'd, 707 F.2d 75 (2d Cir. 1983); Nemetz v. Department of the Treasury, 446 F. Supp. 102, 106 (N.D. Ill. 1978); Rowe v. Tennessee, 431 F. Supp. 1257, 1264 (M.D. Tenn. 1977), vacated on other grounds, 609 F.2d 259 (6th Cir. 1979). Further, leave to amend a complaint to substitute a proper party defendant ordinarily is freely granted where the agency is on notice of the claim. See, e.g., Reyes v. Supervisor of DEA, 834 F.2d 1093, 1097 (1st Cir. 1987); Petrus, 833 F.2d at 583. But cf. Doe v. Rubin, No. 95-CV-75874, 1998 U.S. Dist. LEXIS 14755, at *9 (E.D. Mich. Aug. 10, 1998) (granting summary judgment for defendant where plaintiff had named Secretary of the Treasury as defendant and had filed no motion to amend).


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