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139 "Routine Uses" and Exemptions

Records in a system of records subject to the Act may not be disclosed by "any means of communication to any person or to another agency," 5 U.S.C. Sec. 552a(b), without the prior written request or consent of the individuals to whom the records pertain. However, the Act sets forth twelve exceptions to this general restriction:

  1. To officers and employees of the agency maintaining the records who have a need for the records in the performance of their official duties;

  2. As required by the Freedom of Information Act (a discretionary disclosure under FOIA does not satisfy this exception, also an actual FOIA request must have been received for the information);

  3. For a routine use published in the Federal Register in a notice of the system of records;

  4. To the Bureau of the Census in connection with a census or survey;

  5. For statistical research or reporting purposes to someone who has provided advance, adequate written assurance to the agency that the records will only be used for these purposes, provided the records are transferred in a form that does not identify the subjects of the records individually;

  6. To the National Archives and Records Service (NARS) of the General Services Administration (GSA) if the records have sufficient historical value to warrant continued preservation;

  7. To another agency for authorized civil or criminal law enforcement activity, if the head of that agency makes a written request for the records and specifies the particular portions of the records being sought and the law enforcement activity involved;

  8. To a person upon a showing of compelling circumstances affecting the health or safety of the individual to whom the records pertain if at the time of such disclosure notification thereof is sent to the last known address of the individual;

  9. To the Congress, congressional committees and subcommittees, and joint congressional committees and subcommittees;

  10. To the General Accounting Office (GAO);

  11. Pursuant to a court order (including state and local as well as federal courts of competent jurisdiction); and

  12. To a consumer reporting agency in accordance with Section 3711(f) of Title 31.

With two important exceptions, Section 3(c) of the Act requires an agency to keep an accurate accounting of the date, nature, and purpose of each disclosure of a record or records to another agency or to any person and the name and address of the person or agency to whom the disclosure was made. The first exception is with respect to disclosure to officers and employees of the agency in the performance of their official duties. See 5 C.F.R. Sec. 552a(b)(1). The second exception is for a disclosure required by the FOIA. See 5 U.S.C. Sec. 552a(b)(2).

In addition, this provision requires that a copy of the accounting made available to the individual who is the subject of the record disclosed except for disclosure to another agency for authorized civil or criminal law enforcement activity . See 5 U.S.C. Sec. 552a(b)(7). Finally, this provision requires that any person or agency to which disclosure of a record has been made must be informed about any subsequent correction or notation of dispute made by the agency as to that record, unless the agency was not required to make an accounting of the earlier disclosure .

Another principal requirement set forth in Section 3 of the Act is the right of an individual (with certain exceptions to be discussed) who is the subject of a record to access and, to a lesser extent, to seek to correct and control the accuracy of the record. Specifically, Subsection (d) of Section 3 requires that the agency permit the individual and upon that individual's request, a person of his/her choosing to gain access to the record to review its contents. In addition, if the individual requests the agency to amend or correct the record, the agency must acknowledge in writing its receipt of the request within 10 working days after the date the request is received and promptly:

  1. Correct any portion of the record which the individual believes is not "accurate, relevant, timely, or complete," See 5 U.S.C. 552a(d)(2)(B)(i); or

  2. Inform the individual that the agency will not amend or correct the record, the reasons why the agency will not do so, and notify the individual of his/her right to appeal this determination to a designated official within the agency.

    However, certain systems of record are exempt from this accessing correction requirement. In addition, Section 3(d)(5) states that:

    Nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding. See, 5 U.S.C. § 552a(d)(5).

The Act permits an agency to limit or prohibit an individual from being granted access, and/or amending or correcting his/her records, pursuant to Section 3(j) and (k) of the Act. See 5 U.S.C. Sec. 552a(j) and (k). Section 3(j) permits an agency to promulgate regulations to prohibit both access and amendment/correction of systems of records:

  1. Maintained by the Central Intelligence Agency (CIA); and

  2. Maintained by a criminal law enforcement activity for such purposes (consult specific language of 5 U.S.C. Sec. 552a(j)(2)(A) to (C) as to the scope of the exemption).

October 1997 EOUSA Resource Manual 139