OVERVIEW OF THE PRIVACY ACT OF 1974

DEFINITIONS

B. Individual

"a citizen of the United States or an alien lawfully admitted for permanent residence." 5 U.S.C. 552a(a)(2).

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Compare this definition with the FOIA's much broader "any person" definition (5 U.S.C.  552(a)(3) (1994 & Supp. IV 1998)). See, e.g., Fares v. INS, No. 94-1339, 1995 WL 115809, at *4 (4th Cir. 1995) (per curiam) ("[Privacy] Act only protects citizens of the United States or aliens lawfully admitted for permanent residence."); Raven v. Panama Canal Co., 583 F.2d 169, 170-71 (5th Cir. 1978) (same as Fares, and comparing "use of the word 'individual' in the Privacy Act, as opposed to the word 'person,' as more broadly used in the FOIA"); Cudzich v. INS, 886 F. Supp. 101, 105 (D.D.C. 1995) (A plaintiff whose permanent resident status had been revoked "is not an 'individual' for the purposes of the Privacy Act. . . . Plaintiff's only potential access to the requested information is therefore under the Freedom of Information Act.").

Deceased individuals do not have any Privacy Act rights, nor do executors or next-of-kin. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,951 (1975); see also Monk v. Teeter, No. 89-16333, 1992 WL 1681, at *2 (9th Cir. Jan. 8. 1992); Crumpton v. United States, 843 F. Supp. 751, 756 (D.D.C. 1994), aff'd on other grounds sub nom. Crumpton v. Stone, 59 F.3d 1400 (D.C. Cir. 1995).

Corporations and organizations also do not have any Privacy Act rights. See St. Michaels Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981); OKC v. Williams, 614 F.2d 58, 60 (5th Cir. 1980); Dresser Indus. v. United States, 596 F.2d 1231, 1237-38 (5th Cir. 1980); Cell Assocs. v. NIH, 579 F.2d 1155, 1157 (9th Cir. 1978); Stone v. Export-Import Bank of the United States, 552 F.2d 132, 137 n.7 (5th Cir. 1977); Committee in Solidarity v. Sessions, 738 F. Supp. 544, 547 (D.D.C. 1990), aff'd on other grounds, 929 F.2d 742 (D.C. Cir. 1991); United States v. Haynes, 620 F. Supp. 474, 478-79 (M.D. Tenn. 1985); Utah-Ohio Gas & Oil, Inc. v. SEC, 1 Gov't Disclosure Serv. (P-H)  80,038, at 80,114 (D. Utah Jan. 9, 1980); see also OMB Guidelines, 40 Fed. Reg. at 28,951.

The OMB Guidelines suggest that an individual has no standing under the Act to challenge agency handling of records that pertain to him solely in his "entrepreneurial" capacity. OMB Guidelines, 40 Fed. Reg. at 28,951 (quoting legislative history and stating that it "suggests that a distinction can be made between individuals acting in a personal capacity and individuals acting in an entrepreneurial capacity (e.g., as sole proprietors) and that th[e] definition [of 'individual'] (and, therefore, the Act) was intended to embrace only the former"). However, there is a split of authority concerning OMB's personal/entrepreneurial distinction as applied to an individual. Compare Shermco Indus. v. Secretary of the United States Air Force, 452 F. Supp. 306, 314-15 (N.D. Tex. 1978) (accepting distinction), rev'd & remanded on other grounds, 613 F.2d 1314 (5th Cir. 1980), and Daniels v. FCC, No. 77-5011, slip op. at 8-9 (D.S.D. Mar. 15, 1978) (same), with Henke v. Department of Commerce, No. 94-189, 1995 WL 904918, at *2 (D.D.C. May 26, 1995) (rejecting distinction), vacated & remanded on other grounds, 83 F.3d 1453 (D.C. Cir. 1996); Henke v. United States Dep't of Commerce, No. 94-0189, 1996 WL 692020, at **2-3 (D.D.C. Aug. 19, 1994) (same), aff'd on other grounds, 83 F.3d 1445 (D.C. Cir. 1996); Metadure Corp. v. United States, 490 F. Supp. 1368, 1373-74 (S.D.N.Y. 1980) (same); Florida Med. Ass'n v. HEW, 479 F. Supp. 1291, 1307-11 (M.D. Fla. 1979) (same), and Zeller v. United States, 467 F. Supp. 487, 496-99 (E.D.N.Y. 1979) (same). Cf. St. Michaels Convalescent Hosp., 643 F.2d at 1373 (stating that "sole proprietorships[] are not 'individuals' and thus lack standing to raise a claim under the Privacy Act").

Privacy Act rights are personal to the individual who is the subject of the record and cannot be asserted derivatively by others. See, e.g., Parks v. IRS, 618 F.2d 677, 684-85 (10th Cir. 1980) (union lacks standing to sue for damages to its members); Word v. United States, 604 F.2d 1127, 1129 (8th Cir. 1979) (criminal defendant lacks standing to allege Privacy Act violations regarding use at trial of medical records concerning third party); Dresser Indus., 596 F.2d at 1238 (company lacks standing to litigate employees' Privacy Act claims); Sirmans v. Caldera, 27 F. Supp. 2d 248, 250 (D.D.C. 1998) (plaintiffs "may not object to the Army's failure to correct the records of other officers"); Shulman v. Secretary of HHS, No. 94 CIV. 5506, 1997 WL 68554, at **1, 3 (S.D.N.Y. Feb. 19, 1997) (plaintiff had no standing to assert any right that might have belonged to former spouse), aff'd, No. 96-6140 (2d Cir. Sept. 3, 1997); Harbolt v. United States Dep't of Justice, No. A-84-CA-280, slip op. at 2 (W.D. Tex. Apr. 29, 1985) (prisoner lacks standing to assert Privacy Act claims of other inmates regarding disclosure of their records to him); Abramsky v. United States Consumer Prod. Safety Comm'n, 478 F. Supp. 1040, 1041-42 (S.D.N.Y. 1979) (union president cannot compel release of records pertaining to employee's termination); Attorney Gen. of the United States v. Irish N. Aid Comm., No. 77-700, 1977 U.S. Dist. LEXIS 13581, at *12 (S.D.N.Y. Oct. 7, 1977) (committee lacks standing to sue in representative capacity). But see National Fed'n of Fed. Employees v. Greenberg, 789 F. Supp. 430, 433 (D.D.C. 1992) (union has associational standing because members whose interests union seeks to represent would themselves have standing), vacated & remanded on other grounds, 983 F.2d 286 (D.C. Cir. 1993).

Note, however, that the parent of any minor, or the legal guardian of an incompetent, may act on behalf of that individual. See 5 U.S.C.  552a(h); see also Gula v. Meese, 699 F. Supp. 956, 961 (D.D.C. 1988). The OMB Guidelines note that subsection (h) is "discretionary and that individuals who are minors are authorized to exercise the rights given to them by the Privacy Act or, in the alternative, their parents or those acting in loco parentis may exercise them in their behalf." OMB Guidelines, 40 Fed. Reg. at 28,970; see also OMB Guidelines, 40 Fed. Reg. 56,741, 56,742 (1975) (noting that "[t]here is no absolute right of a parent to have access to a record about a child absent a court order or consent").


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