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OMB Privacy Act Implementation, Guidelines and Responsibilities

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Citation Edit

Office of Management and Budget, Privacy Act Implementation, Guidelines and Responsibilities, 40 Fed. Reg. 28948 (July 9, 1975) (full-text).

Overview Edit

These Guidelines define responsibilities for implementing the Privacy Act of 1974 to assure that personal Information about individuals collected by Federal agencies is limited to that which is legally authorized and necessary and is maintained in a manner which precludes unwarranted intrusions upon individual privacy.

These Guidelines have been supplemented in particular subject areas over the years:

  • 40 Fed. Reg. 56,741-43 (Nov. 21, 1975) (full-text) ("system of records" definition, routine use and intra-agency disclosures, consent and Congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to Freedom of Information Act (FOIA));
  • 48 Fed. Reg. 15,556-60 (Apr. 11, 1983) (full-text) (relationship to Debt Collection Act);
  • 52 Fed. Reg. 12,990-93 (Apr. 20, 1987) (full-text) ("call detail" programs);
  • 54 Fed. Reg. 25,818-29 (June 19, 1989) (full-text) (computer matching);
  • 56 Fed. Reg. 18,599-601 (proposed Apr. 23, 1991) (full-text) (computer matching);
  • 61 Fed. Reg. 6,428, 6,435-39 (Feb. 20, 1996) ("Federal Agency Responsibilities for Maintaining Records About Individuals") (full-text).

See also:

  • OMB Circular No. A-130 — Memorandum for Heads of Executive Departments and Agencies, Subject: Management of Federal Information Resources, 61 Fed. Reg. 6428 (Feb. 20, 1996), as amended, 65 Fed. Reg. 77,677 (Dec. 12, 2000) (full-text);
  • OMB Memorandum M-09-29, Memorandum for Heads of Executive Departments and Agencies, Subject: FY 2009 Reporting Instructions for the Federal Information Security Management Act and Agency Privacy Management (Aug. 20, 2009) (full-text).

Judicial decisions Edit

As a general rule, these OMB Guidelines are entitled to the deference usually accorded the interpretations of the agency that has been charged with the administration of a statute.[1] In Sussman, the Court of Appeals for the District of Columbia Circuit discussed this standard:

Congress explicitly tasked the OMB with promulgating guidelines for implementing the Privacy Act, and we therefore give the OMB Guidelines "the deference usually accorded interpretation of a statute by the agency charged with its administration."[2]

With regard to the 1975 guidelines, the court stated:

The OMB apparently invited no public comment prior to publishing its guidelines, and after we decided Albright, Congress pointedly replaced its original grant of authority to the OMB with one that expressly required the OMB to respect such procedural niceties before its guidelines could be binding. But Congress made clear the change was not meant to disturb existing guidelines. Hence, the old OMB Guidelines still deserve the same level of deference they enjoyed prior to the 1998 amendment. Sussman, 494 F.3d at 1120 n.8 (citations omitted).

Numerous cases have applied this standard of deference.[3] However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute.[4]

References Edit

  1. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1120 (D.C. Cir. 2007) (full-text).
  2. Id. (citing Albright v. United States, 631 F.2d 915, 920 n.5 (D.C. Cir. 1980) (full-text) (citation omitted)).
  3. See, e.g., Maydak v. United States, 363 F.3d 512, 518 (D.C. Cir. 2004); Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1460 n.12 (D.C. Cir. 1996); Quinn v. Stone, 978 F.2d 126, 133 (3d Cir. 1992); Baker v. Department of the Navy, 814 F.2d 1381, 1383 (9th Cir. 1987); Perry v. FBI, 759 F.2d 1271, 1276 n.7 (7th Cir. 1985), rev'd en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986); Bartel v. FAA, 725 F.2d 1403, 1408 n.9 (D.C. Cir. 1984); Smiertka v. U.S. Dep't of the Treasury, 604 F.2d 698, 703 n.12 (D.C. Cir. 1979); Rogers v. U.S. Dep't of Labor, 607 F. Supp. 697, 700 n.2 (N.D. Cal. 1985); Sanchez v. United States, 3 Gov't Disclosure Serv. (P-H) ¶ 83,116, at 83,709 (S.D. Tex. Sept. 10, 1982); Golliher v. USPS, 3 Gov't Disclosure Serv. (P-H) ¶ 83,114, at 83,703 (N.D. Ohio June 10, 1982); Greene v. Veterans Administration, No. C-76-461-S, slip op. at 6-7 (M.D.N.C. July 3, 1978); Daniels v. FCC, No. 77-5011, slip op. at 8-9 (D.S.D. Mar. 15, 1978); see also Martin v. Office of Special Counsel, 819 F.2d 1181, 1188 (D.C. Cir. 1987) (OMB interpretation is "worthy of our attention and solicitude").
  4. See Doe v. Chao, 540 U.S. 615, 622 n.11 (2004) (disagreeing with dissent's reliance on OMB interpretation of damages provision and stating that the Court does "not find its unelaborated conclusion persuasive"); Scarborough v. Harvey, 493 F.Supp.2d 1, 13-14 n.28 (D.D.C. 2007) (personal/entrepreneurial distinction); Henke v. U.S. Dep't of Commerce, 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); Kassel v. Veterans Administration, No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); Saunders v. Schweiker, 508 F. Supp. 305, 309 (W.D.N.Y. 1981) (same); Metadure Corp. v. United States, 490 F. Supp. 1368, 1373-74 (S.D.N.Y. 1980) (subsection (a)(2)); Florida Med. Ass'n v. Department of Health, Edu. & Welfare, 479 F. Supp. 1291, 1307-11 (M.D. Fla. 1979) (same); Zeller v. United States, 467 F. Supp. 487, 497-99 (E.D.N.Y. 1979) (same).

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