STATISTICAL-REPORTING, AND RESEARCH PURPOSES

Section 201 sets forth standards and procedures to govern all stages of decision-making for and operation of the information systems of each department and agency of the executive branch.

Subsection 201 (a). This subsection is the provision of the bill specifically directed to the constitutional and legal control of the invasion of individual privacy by government. It reflects the intent of the Committee to follow the recommendations of the report of the National Academy of Sciences, that "in terms of privacy there should be a general policy to extend the zones of personal and group freedom from compulsory data collection so that matters that ought not to be considered in making decisions about individuals do not become part of the formal record at all."

Beyond that, this section, together with subsection 201 (b) (1) and (7), reflects another dimension of the privacy issue, which is that, under our Constitution, there are, or may be, some human activities of which Government should not take note for any purpose at all because of the detrimental effect on freedom, and that this is true whether or not the information is intended to be used to make decisions about specific individuals.

This section reflects the Committee's effort to insert considerations of privacy in the decision-making process involving management of information systems. As the Academy report states, privacy is "the primary civil liberties issue, since both confidentiality and due process questions disappear if the data are not gathered in the first place, or once they are destroyed."

The section is designed to insure that a Federal agency weighs strongly the rights of personal privacy against its authority and need to gather personal information for a public purpose. Before an information-gathering program may be implemented, the agency must make a determination that its action is authorized and warranted to carry out a statutory obligation. This provision affirms a basic principle of good management in public administration in that it is designed to require that the kind of information about individuals which an agency seeks to gather or solicit, and the criteria for programs to investigate individuals will be, judged by an official at the highest policymaking level to be relevant and necessary to a statutory purpose of the agency.

The section is designed to implement the following policy judgments in the report:

Not only should the need for and relevance of specific items of personal data have to be established in positive terms but serious consideration should be given to whether some entire record-keeping programs deserve to be continued at all; this was the basic question raised about the Army's domestic intelligence watch over civilian political activity in the late 1960's. A further consideration where need for collecting data

is at issue is whether records should be retained beyond their
period of likely use for the purposes for which they were
originally collected.

A related but more complicated question concerns the
continued existence of files of information which is no longer
supposed to be used for making decisions about individuals.
Many cumulative records about individuals in various sectors
of the organizational world are filled with facts and evalua-
tions set down in an earlier time, under a different socio-
political ethos. In this setting, it is not enough to say "from
now on we will not . . ."; steps need to be taken to remove
from historical records in high schools, colleges, commercial
reporting agencies, law-enforcement files, and other organiza-
tions the personal information previously gathered about
political, racial, cultural, and sexual matters that would not
be put in the files under present rules. To the extent that
evaluators today have such records to consult, especially for
decisions that are not visible to the individual, the presence of
such information represents a dead (and improper) hand
from the past.

Most of these provisions contain terminology which will allow administrative definitions to fit particular agency needs and programs. They are intended to be implemented by the model guidelines developed by the Commission which may then be adopted by the agencies or altered as found necessary. This will, for instance, allow for development by Commission experts, in consultation with other Federal officials, of careful, workable definitions of such terms as "accurate,” "timely," "complete," and "relevant."

Such a process is also envisioned for determining precise details of the contents of the notices of data banks required to be filed for the Federal Register and with the Commission. These can be discussed and determined with the assistance of the Commission in accordance with an agency's unique problems and record-keeping methods.

Subsection 201 (a) (1). Provides that each Federal agency shall collect, solicit and maintain only such personal information as is relevant and necessary to accomplish a statutory purpose of the agency.

This section, therefore, governs the first phase of the process which is the gathering of the information in the first place. The provision reaffirms the basic principles of good management and public administration by assuring that the kinds of information about people which an agency seeks to gather or solicit and the criteria in programs for investigating people are judged by an official at the highest level to be relevant to the needs of the agency as dictated by statute. Second, it requires a decision that the collection of information or investigation of people along certain information lines is necessary in that the needs of the agency and goals of the program cannot reasonably be met through alternative means.

Where there are difficulties in linking a personal data program to statutory authority, it is to be expected that some agencies may face hard decisions of whether or not to seek additional authority, to reject certain programs entirely or to alter investigative standards.

A third element in this decision process is the fact that the information which officials propose to collect must be maintained and

integrated into the agency record-keeping system. Thus the decision on the relevance and need for certain gathering of information and investigating of citizens requires consideration of how that data will overlap or conflict with existing data banks and information programs of the agency.

This section is designed to assure observance of basic principles of privacy and due process by requiring that where an agency delves into an area of personal privacy in the course of meeting government's needs, its actions may not be arbitrary, but rather, must be authorized, and found to be not only reasonable, but warranted by the overriding needs of society as the agency is responsible for administering to those needs.

The provision is the legislative reflection of the conclusion of a panel of the Committee on Scientific and Technical Information of the Federal Science Council which recommended that "an agency should formulate as precisely as possible the policy objectives to be served by a data-gathering activity before it is undertaken. Agencies are encouraged to think carefully about the legitimacy of the activity, the significance of the data for the agency's program, the potential burden on the respondents and the possible availability of the data from some other source. This may make it possible to achieve a reduction in the burden being put on citizens and to harmonize governmental questionnaires and surveys. Great care should be exercised in framing information requests to be certain that the desired information is captured initially and that multiple requests for information is captured initially and that multiple requests for information are avoided, and that no more sensitive personal information is collected than necessary."

Subsection 201(a)(2). Provides that each Federal agency shall collect information to the greatest extent practicable directly from the subject where the information may result in adverse determinations about the individual's rights, benefits, and privileges under Federal programs.

This section, as originally introduced, had no qualifications, but reflected the basic principle of fairness recommended by several reports, that where government investigates a person, it should not depend on hearsay or "hide under the eaves", but inquire directly of the individual about matters personal to him or her.

In order to meet agency objections about the needs of certain civil and criminal law enforcement programs requiring intelligence and investigative information to be collected from other sources, the section was limited to instances where the information sought could affect a person's qualifications to be considered by government for employment or other rights, benefits and privileges. This is the minimum standard of fair procedure, although there may be instances where it cannot be observed. It is expected however that these will be kept to a minimum. Cases may arise for instance, where it is not practical (1) for logistical or financial reasons, or (2) for reason of conflicting, more restrictive, statutory requirements which cannot, after consultation with the Commission, be resolved, or (3) where the information is on hand from other disclosures made by the individual and he has specifically consented at the time of disclosure or later to have it used for other or related purposes within the agency or b another agency.

At the same time as it assures accuracy and fairness to data subjects by this provision, the Committee does not wish to defeat the purposes of the Federal Reports Act to promote the efficient, economical exchange and sharing of information; nor does it wish to impose undue burdens on individuals from whom information is solicited. However when the cause of ordinary efficiency and small economies is weighed against the interest of personal privacy and confidentiality of sensitive information, the Committee expects the balance would tilt in favor of the latter. However, the Act looks to a conscientious weighing of the interests by administrators, and to decisions made on the record pursuant to the discretion allowed by this section.

Even where information is acquired from other sources, an agency should, in the interest of the standards of accuracy and efficiency to be promoted under subsection 201 (b) make efforts to have it reviewed by the subject individual. For example, by sending him a copy of the information and affording him an opportunity to affirm, deny or explain it. Such review may constitute compliance with subsection 201(a)(2). This section reflects the committee's adoption of the conclusion of the COSATI panel that "Information should not be collected on a hearsay basis or from people who have only a tenuous association with the data subject and therefore are not in a position to report data from a high probability that it will be accurate.

Subsection 201 (a) (3). Requires that each Federal agency shall inform any individual requested to disclose personal information for any purpose whether that disclosure is mandatory or voluntary, by what statutory authority it is solicited, what uses the agency will make of it, what penalties and specific consequences for the individual, which are known to the agency, will result from the nondisclosure, and what rules of confidentiality will govern the information.

This requirement, in various forms, has been universally recommended by commentators and government and private groups, the HEW Report, information specialists, congressional witnesses and others, as basic to the protection of the individual from the arbitrary information power of the Federal Government.

The Committee intends it to remedy the many documented complaints from citizens that they were pressured, coerced, or induced by deceptive means into responding to governmental questionnaires seeking highly personal information for administrative programs, or for census and other statistical and research purposes of the Federal agencies; that they were not told and, furthermore, were frequently unable to learn, even with legal assistance, whether compliance was voluntary or mandatory, what statutes authorized it, what penalties attached to nonresponse, or exactly why the Federal Government wanted the information in the first place.

The section anticipates that Federal requests or requirements for personal information henceforth shall be accompanied by written or oral notices presented in obvious or highly visible manner, which use the specific terms "mandatory" or "voluntary" in describing the nature of the individual's desired response, and providing the other requisite information concerning the authority of the agency to conduct the survey, initiate the inquiry, or, in the case of administrative programs, to ask particular questions of the applicant. The Committee believes that an agency should be able to communicate to the individual, without intimidation, whether he is required to comply with

a request for information and what the likely consequences are of his refusal. To further clearify the consequences of these options, the notices should also include an explanation of the limits on the agency's ability to keep information confidential; for example, under compulsory legal process.

The Committee is not impressed with executive branch arguments and those of some information users which hold that such candor on the part of government represents "poor psychology" and will destroy the integrity of statistical surveys and other data programs, or that it will discourage cocperation with official inquiries. The Committee believes, rather, that just the opposite results will be obtained. Furthermore, the spirit of constitutional considerations of due process and self-incrimination should pervade the conduct of such inquiries for administrative, regulatory, or other such governmental‍ data

programs.

In defining the purposes of this section, the Committee endorses the recommendations of the HEW report that "the requirement is intended to discourage organizations from probing unnecessarily for details of people's lives under circumstances in which people may be reluctant to refuse to provide the requested data. It is also intended. to discourage coercive collection of personal data that are to be used exclusively for statistical reporting and research."

We also endorse the explanation of the COSATI panel of the need for such protections to avoid "the use of coercion or intimidation in the course of gathering information." We agree with the Panel that: "unless disclosure has been made mandatory by Act of Congress, personal information must never be extracted from an individual without securing his informed, express consent *** In gathering information from individual citizens, Federal agencies have an obligation to disclose to them the purpose for which the information is being collected, to state clearly the use or uses to which it will be put, to identify the governmental and non-governmental individuals and organizations that will be given access to it, and to indicate whether the individual's name will be associated, either directly or indirectly, with the information.

"The type of disclosure is particularly important when the individual's participation in a data-gathering activity is voluntary in character, and is one way of assuring that the voluntary consent of the individual is meaningful. It enables him to evaluate the risk he may be assuming by revealing personal information, and in some cases, permits him to weigh that risk against the advantages of participating in a particular governmental program. It also should contribute to preventing alienation and should encourage participation in the datagathering process. For the same reasons, it is imperative that the agency's understanding with the individual be honored.

"When an individual is required to furnish information by act of Congress as is true for the decennial census, informed consent of the type described in the preceding paragraph is not necessary. Nonetheless, it is desirable to provide individual respondents with as much information concerning the data activity as possible."

Of particular concern to people subjected to governmental inquiries is the general lack of precise information afforded at the time of collection about the penalties for and consequences of nondisclosure. Where compliance is mandatory or where untrue response is punishable, with