Since a number of agencies already apply some of the safeguards to certain of their files, and since the Act will require little or no further effort on their part for those files, this certainly will affect the cost of implementation. Furthermore, experience under the practices of those agencies and with provisions which are somewhat similar in the Fair Credit Reporting Act and other statutes shows that the workload is not unreasonable and, in some cases under those laws, did not meet expectations. The very existence of the statutory guarantees apparently tended to reassure citizens that government and organizations were following certain guidelines pursuant to administrative and legislative oversight. The HEW report addressed the problem of costs and the Committee agrees with the commonsense observations there: The safeguards we recommend will not be without costs, The Office of Management and Budget has been unable to provide an accurate cost estimate. ROLLCALL VOTE ON FINAL PASSAGE In compliance with section 133 of the Legislative Reorganization Act of 1946, as amended, rollcall votes taken during Committee consideration of this legislation are as follows: FINAL PASSAGE: Ordered reported: 9 yeas-0 nays While Commission employees are also subject to the same Federal criminal laws and government-wide regulations penalizing all other Federal employees who disclose information, this section creates sanctions uniquely applicable to them. This is deemed necessary since in exercise of its powers and performance of investigative duties, the Commission may obtain or examine all kinds of administrative documents and data relative to executive branch implementation and enforcement of the Act, as well as information on individuals needed to determine violations of the Act. In addition, for purposes of its research and studies, it may engage in similar activities with respect to certain data banks and systems of the private sector and in State and local governments. In light of such special auditing, inspection and study functions, strong penalties were deemed necessary to reassure government agencies and citizens that the deterrents to improper disclosure are so severe that they need not worry about improper or illegal disclosures. Section 303 CIVIL REMEDIES Section 303 provides for civil judicial enforcement of the Act by persons affected by violations of the Act. In keeping with general legislative practice, this bill not only establishes certain administrative requirements and grants certain rights to citizens, but gives authority to the citizen to defend his rights by taking the initiative of court action. Such a right is doubly important since the revised bill gives no enforcement authority to the Commission. Subsection 303(a). Gives a cause of action to a citizen aggrieved by a denial of access to his own file. Since access to a file is the key to insuring the citizen's right of accuracy, completeness, and relevancy, a denial of access affords the citizen the right to raise these issues in court. This would be the means by which a citizen could challenge any exemption from the requirements of sections 201 and 202 made pursuant to the procedures outlined in section 203. A person seeking access to a file which he has reason to believe is being maintained on him for the purposes of determining its accuracy and completeness, for example, or to take advantage of the rights afforded him under section 201, could raise the question of the propriety of the exemption which denies him access to his files. In deciding whether the citizen. has a right to see his file or to learn whether the agency has a file on him, the court would of necessity have to decide the legitimacy of the agency's reasons for the denial of access, or refusal of an answer. The Committee intends that any citizen who is denied a right of access under the Act may have a cause of action, without the necessity of having to show that a decision has been made on the basis of it, and without having to show some further injury, such as loss of job or other benefit, that might stem from the denial of access. Since it is often exceedingly difficult for a citizen to learn of such consequences, or if he knows, to establish a "cause and effect" relationship between the information in his file and some subsequent damage to him, the Committee has decided that it would frustrate an individual's ability to assert his rights if he had to allege and prove use or such consequential harm. In order to state a cause of action, it should be enough that he be able to assert that the presumptive right of access granted him by the Act has been denied him. Subsection 303(b). Affords the Attorney General and any aggrieved person authority to enforce the Act as against existing or threatened violations of the Act by seeking a Federal District Court injunction against such acts or practices. This subsection has a two-fold purpose. First, it gives the Attorney General the obligation to challenge in court any violation of the Act which might affect the public at large, but which does not yet affect any particular citizen sufficiently to give him constitutional standing to sue, or which may not be such as to induce a private person to endure the practical difficulties of litigation. Second, the grant of a cause of action to any "aggrieved person" is designed to encourage the widest possible citizen enforcement through the judicial process. This is necessary, as mentioned, since the Act does not give any administrative body authority to ensure compliance with the Act. The Committee intends the use of the term "aggrieved person" to afford the widest possible standing consistent with the constitutional requirement of "case or controversy" in Article III, Sec. 2 of the Constitution. In this respect, the provision is designed, among other things, to supply certain deficiencies in standing and ripeness which the courts found in the Environmental Protection Agency v. Mink, 410 U.S. 73 (1973), Laird v. Tatum (408 U.S. 1(1972), and Stark v. Schultz, 42 U.S.L.W. 4481 (Apr. 1, 1974)). Subsection 303 (c). Provides that any person found to have violated provisions of the Act or any rule, regulation, or order issued under it shall be liable to the aggrieved person for actual damages sustained by the individual, punitive damages where appropriate, and in case of successful action, the cost of the action, with reasonable attorney's fees to be determined by the court. In addition to damages, the aggrieved person would receive the benefit of any other appropriate remedies, including injunctive or mandatory relief, which the court deems appropriate. The final subsection makes clear that the Federal courts will have jurisdiction regardless of the fact that the amount claimed is less than $10,000. Section 304 JURISDICTION OF DISTRICT COURTS Subsection 304 (a). Gives jurisdiction to the Federal courts to hear cases brought under section 303 and to examine information in camera to determine whether the information or any part of it may be withheld under any of the exemptions in section 203 of the Act. The agency has the burden of sustaining the legality of its actions. Venue would most likely be either in the plaintiff's jurisdiction, or in Washington, D.C., although other venue is possible. The section also ensures that the court will have the power to examine in camera any contested information necessary to a determination of the litigation, thus among other things, remedying the lack of reviewing power which the Supreme Court found in the Mink case. Since the burden of justifying the withholding of information is on the agency, this will enable the court to make a full de novo determination of the propriety of the grounds asserted by the government for keeping the information from the plaintiff. Such a provision is necessary in order to provide a full and complete hearing to the issues being litigated and to provide justice to the aggrieved individual. •Subsection 304(b). Provides that in any action to obtain judicial review of a decision to exempt any personal information from any provision of this Act, the Court may examine such information in camera to determine if all, or any part of it, is properly classified with respect to national defense, foreign policy, or law enforcement intelligence or investigative information and may be exempted from any provision of this Act. The burden is on the Federal agency to sustain any claim that such information may be so exempted. Section 305 EFFECTIVE DATE Provides that the Act shall become effective one year after the date of enactment, except that the provisions of title I shall become effective on the date of enactment. This provision is designed to allow the agencies lead time to develop their regulations and to seek such additional resources or assistance as they may need to meet their obligations under the Act. By allowing the immediate implementation of the provisions establishing the Commission, the Committee intends to permit the Commission time to develop its model guidelines, establish any needed interagency councils, and generally to prepare for full implementation of the Act. Section 306 AUTHORIZATION OF APPROPRIATIONS Authorizes appropriation of such sums as may be necessary to carry out the provisions of the Act. NEW TITLE The title is amended so as to read: "A bill to establish a Privacy Protection Commission, to provide management systems in Federal agencies and certain other organizations with respect to the gathering and disclosure of information concerning individuals, and for other purposes." ESTIMATED COST OF THE LEGISLATION The Committee has received a broad variety of generalized statements of the estimated costs of implementing the safeguards and guarantees provided in this legislation. No precise estimate of costs can be established until the Commission develops model guidelines and until the Act is applied to specific information programs and administrators have reviewed their resources for implementing it in accordance with their own rules. The Committee believes that good faith enforcement of the standards and procedures for review will result in substantial savings to Federal agencies. We are mindful, for instance, of testimony describing the Navy's destruction of 15 tons of records upon review of its program needs for retention of records. Similar patterns showed up in the review by the Army of the relevance to its statutory programs to the personal information it collected and maintained on individuals who had no dealings with the armed services. Since a number of agencies already apply some of the safeguards to certain of their files, and since the Act will require little or no further effort on their part for those files, this certainly will affect the cost of implementation. Furthermore, experience under the practices of those agencies and with provisions which are somewhat similar in the Fair Credit Reporting Act and other statutes shows that the workload is not unreasonable and, in some cases under those laws, did not meet expectations. The very existence of the statutory guarantees apparently tended to reassure citizens that government and organizations were following certain guidelines pursuant to administrative and legislative oversight. The HEW report addressed the problem of costs and the Committee agrees with the commonsense observations there: The safeguards we recommend will not be without costs, The Office of Management and Budget has been unable to provide an accurate cost estimate. ROLLCALL VOTE ON FINAL PASSAGE In compliance with section 133 of the Legislative Reorganization Act of 1946, as amended, rollcall votes taken during Committee consideration of this legislation are as follows: FINAL PASSAGE: Ordered reported: 9 yeas-0 nays |