E. System of Records

"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 individual." 5 U.S.C.  552a(a)(5).

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The OMB Guidelines explain that a system of records exists if: (1) there is an "indexing or retrieval capability using identifying particulars [that is] built into the system"; and (2) the agency "does, in fact, retrieve records about individuals by reference to some personal identifier." OMB Guidelines, 40 Fed. Reg. 28,948, 28,952 (1975). The Guidelines state that the "is retrieved by" criterion "implies that the grouping of records under the control of an agency is accessed by the agency by use of a personal identifier; not merely that a capability or potential for retrieval exists." Id. (emphasis added).

The Court of Appeals for the District of Columbia Circuit addressed the "system of records" definition in the context of computerized information in Henke v. United States Dep't of Commerce, 83 F.3d 1453 (D.C. Cir. 1996), and noted that "the OMB guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person's name, but the agency must in fact retrieve records in this way in order for a system of records to exist." Id. at 1460 n.12. The issue in Henke was whether or not computerized databases that contained information concerning technology grant proposals submitted by businesses constituted a "system of records" as to individuals listed as the "contact persons" for the grant applications, where the agency had acknowledged that "it could theoretically retrieve information by the name of the contact person." Id. at 1457-58. The D.C. Circuit looked to Congress's use of the words "is retrieved" in the statute's definition of a system of records and focused on whether the agency "in practice" retrieved information. Id. at 1459-61. The court held "that in determining whether an agency maintains a system of records keyed to individuals, the court should view the entirety of the situation, including the agency's function, the purpose for which the information was gathered, and the agency's actual retrieval practice and policies." Id. at 1461. Applying this test, the D.C. Circuit determined that the agency did "not maintain a system of records keyed to individuals listed in the contact person fields of its databases" because the agency's "purpose in requesting the name of a technical contact [was] essentially administrative and [was] not even necessary for the conduct of the [program's] operations," nor was there "any evidence that the names of contact persons [were] used regularly or even frequently to obtain information about those persons." Id. at 1456, 1461-62; cf. Alexander v. FBI, No. 96-2123, 2000 WL 329249, at **6-7 (D.D.C. Mar. 29, 2000) (applying Henke and finding maintenance of system of records, considering "purpose for which the information was gathered and the ordinary retrieval practices and procedures") (appeal pending); Smith v. Henderson, No. C-99-4665, 1999 WL 1029862, at *5 (N.D. Cal. Oct. 29, 1999) (applying Henke and finding that "locked drawer containing a file folder in which [were] kept . . . notes or various other pieces of paper relating to special circumstances hires" did not constitute a system of records because the agency "did not utilize the drawer to systematically file and retrieve information about individuals indexed by their names") (appeal pending). But cf. Williams v. VA, 104 F.3d 670, 674-77 & n.4 (4th Cir. 1997) (although remanding case for further factual development as to whether records were contained within system of records, and noting that it was "express[ing] no opinion on the Henke court's rationale when applied to circumstances where a plaintiff seeks to use retrieval capability to transform a group of records into a 'system of records,' as in Henke," nevertheless finding the "narrow Henke rationale . . . unconvincing" in circumstances before the court where there "appear[ed] to exist already a formal system of records," where "published characteristics of the agency's formal system of records ha[d] not kept current with advances in and typical uses of computer technology," and where record was "poorly developed" on such point).

Two district courts have also reached this result in the context of computerized information. See Fisher v. NIH, 934 F. Supp. 464, 472-73 (D.D.C. 1996) (applying Henke and stating: "[T]he primary practice and policy of the agency [during the time of the alleged disclosures] was to index and retrieve the investigatory files by the name of the institution in which the alleged misconduct occurred, rather than by the name of the individual scientist accused of committing the misconduct. The fact that it was possible to use plaintiff's name to identify a file containing information about the plaintiff is irrelevant."), summary affirmance granted, No. 96-5252 (D.C. Cir. Nov. 27, 1996); Beckette v. United States Postal Serv., No. 88-802, slip op. at 19-22 (E.D. Va. July 3, 1989) (Although the plaintiff demonstrated that the agency "could retrieve . . . records by way of an individual's name or other personal identifier," that fact "does not make those records a Privacy Act system of records. The relevant inquiry is whether the records or the information they contain are [in fact] retrieved by name or other personal identifier.").

The D.C. Circuit in Henke, in looking to the "purpose" for which the information was gathered, also drew a distinction between information gathered for investigatory purposes and information gathered for, in that case, administrative purposes. The court stated that where information is compiled about individuals "primarily for investigatory purposes, Privacy Act concerns are at their zenith, and if there is evidence of even a few retrievals of information keyed to individuals' names, it may well be the case that the agency is maintaining a system of records." 83 F.3d at 1461; see also Fisher, 934 F. Supp. at 473 (quoting Henke but determining that agency's "primary practice and policy" was to retrieve investigatory files by name of institution rather than by name of individual).

Recently, the Court of Appeals for the Tenth Circuit, in Pippinger v. Rubin, finding the approach in Henke "instructive," held that, "consistent with Henke, a properly 'narrow' construction of 5 U.S.C.  552a(a)(5)" led it to the conclusion that an Internal Revenue Service database containing an "abstraction" of information from two existing Privacy Act systems did not constitute a new system of records because it could be "accessed only by the same users, and only for the same purposes, as those published in the Federal Register for the original 'system[s] of records.'" 129 F.3d 519, 526-27 (10th Cir. 1997).

The highly technical "system of records" definition is perhaps the single most important Privacy Act concept, because (with some exceptions discussed below) it makes coverage under the Act dependent upon the method of retrieval of a record rather than its substantive content. See Baker v. Department of the Navy, 814 F.2d 1381, 1384 (9th Cir. 1987); Shannon v. General Elec. Co., 812 F. Supp. 308, 321 (N.D.N.Y. 1993); see also Crumpton v. United States, 843 F. Supp. 751, 755-56 (D.D.C. 1994) (although records disclosed to press under FOIA contained information about plaintiff, they were not retrieved by her name and therefore Privacy Act did not apply), aff'd on other grounds sub nom. Crumpton v. Stone, 59 F.3d 1400 (D.C. Cir. 1995). Indeed, a major criticism of the Privacy Act is that it can easily be circumvented by not filing records in name-retrieved formats. See Privacy Commission Report at 503-04 & n.7. A recognition of this potential for abuse has led some courts to relax the "actual retrieval" standard in particular cases (examples given below). Moreover, certain subsections of the Act (discussed below) have been construed to apply even to records not incorporated into a "system of records."

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