Record

In the Privacy Act of 1974, the term record is defined as:


 * any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. 5 U.S.C. §552a(a)(4).

To qualify as a Privacy Act "record," the information must identify an individual.

The OMB Guidelines state that the term "record" means "any item of information about an individual that includes an individual identifier," and "'can include as little as one descriptive item about an individual.'"

Several courts of appeals have articulated tests for determining whether an item qualifies as a "record" under the Privacy Act, resulting in three different tests for determining "record" status:

(1) Consistent with the OMB Guidelines, the Courts of Appeals for the Second and Third Circuits have broadly interpreted the term "record." The Third Circuit held that the term "record" "encompass[es] any information about an individual that is linked to that individual through an identifying particular" and is not "limited to information which taken alone directly reflects a characteristic or quality." The Second Circuit, after analyzing the tests established by the other courts of appeals, adopted a test "much like the Third Circuit's test." The Second Circuit did so for three reasons: First, it found the Third Circuit's test to be "most consistent with the 'broad terms' . . . of the statutory definition." Second, it found the Third Circuit's test to be the only one consistent with the Supreme Court's decision in DOD v. FLRA,ref>510 U.S. 487, 494 (1994). which held that federal civil service employees' home addresses qualified for protection under the Privacy Act, Bechhoefer, 209 F.3d at 61; and, finally, it found the Third Circuit's test to be supported by the legislative history of the Privacy Act and by the guidelines issued by OMB, id. at 61-62. Emphasizing that "the legislative history makes plain that Congress intended 'personal information' . . . to have a broad meaning," the Second Circuit held that the term "record" "has 'a broad meaning encompassing,' at the very least, any personal information 'about an individual that is linked to that individual through an identifying particular.'" Id. at 62 (quoting Quinn and holding that letter containing Bechhoefer's name and "several pieces of 'personal information' about him, including his address, his voice/fax telephone number, his employment, and his membership in [an association]," was record covered by Privacy Act).

Other courts have also applied a broad interpretation of the term "record." See, e.g., Williams v. VA, 104 F.3d 670, 673-74 (4th Cir. 1997) (citing Quinn, inter alia, and stating that "[w]hether the Tobey court's distinction [(discussed below)] be accepted, the legislative history of the Act makes it clear that a 'record' was meant to 'include as little as one descriptive item about an individual,'" and finding that "draft" materials qualified as "records" because they "substantially pertain to Appellant," "contain 'information about' [him], as well as his 'name' or 'identifying number,'" and "do more than merely apply to him" (quoting legislative history, Source Book at 866)); Unt v. Aerospace Corp., 765 F.2d 1440, 1449-50 (9th Cir. 1985) (Ferguson, J., dissenting) (opining that majority's narrow interpretation of term "record" (discussed below) "is illogical, contrary to the legislative intent, and defies the case laws' consistent concern with the actual effect of a record on a person's employment when assessing that record's nature or subject"); Sullivan v. USPS, 944 F. Supp. 191, 196 (W.D.N.Y. 1996) (finding that disclosure to job applicant's employer of fact that applicant had applied for employment with Postal Service constituted disclosure of "record" under Privacy Act; although no other information was disclosed from application, rejecting Postal Service's attempt to distinguish between disclosing fact of record's existence and disclosing information contained in record, as applicant's name was part of information contained in application and Postal Service disclosed that particular applicant by that name had applied for employment); Henke v. United States Dep't of Commerce, No. 94-0189, 1996 WL 692020, at *3 (D.D.C. Aug. 19, 1994) (holding that names of four reviewers who evaluated grant applicant's proposal are applicant's "records" under Privacy Act), aff'd on other grounds, 83 F.3d 1445 (D.C. Cir. 1996).

(2) The Courts of Appeals for the Ninth and Eleventh Circuits have limited Privacy Act coverage by adopting a narrow construction of the term "record" -- requiring that in order to qualify, the information "must reflect some quality or characteristic of the individual involved." Boyd v. Sec'y of the Navy, 709 F.2d 684, 686 (11th Cir. 1983) (per curiam) (although stating narrow test, finding that memorandum reflecting "Boyd's failure to follow the chain of command and his relationship with management" qualified as Privacy Act record); accord Unt v. Aerospace Corp., 765 F.2d 1440, 1448-49 (9th Cir. 1985) (letter written by employee -- containing allegations of mismanagement against corporation that led to his dismissal -- held not his "record" because it was "about" corporation and reflected "only indirectly on any quality or characteristic" of employee).

(3) The Court of Appeals for the District of Columbia Circuit also has adopted a narrow construction of the term by holding that in order to qualify as a "record" an item must contain "information that actually describes the individual in some way." Tobey v. NLRB, 40 F.3d 469, 471-73 (D.C. Cir. 1994). Examining the Third Circuit's statement in Quinn that information could qualify as a record "'if that piece of information were linked with an identifying particular (or was itself an identifying particular),'" the D.C. Circuit rejected the Third Circuit's interpretation "[t]o the extent that . . . [it] fails to require that information both be 'about' an individual and be linked to that individual by an identifying particular." Id. In order to qualify as a "record," the D.C. Circuit ruled, the information "must both be 'about' an individual and include his name or other identifying particular." Id. at 471. On the other hand, the D.C. Circuit rejected "as too narrow the Ninth and Eleventh Circuits' definitions" in Unt and Boyd, and stated that: "So long as the information is 'about' an individual, nothing in the Act requires that it additionally be about a 'quality or characteristic' of the individual." Tobey, 40 F.3d at 472. Ultimately, the D.C. Circuit, "[w]ithout attempting to define 'record' more specifically than [necessary] to resolve the case at bar," held that an NLRB computer system for tracking and monitoring cases did not constitute a system of records, because its files contained no information "about" individuals, despite the fact that the case information contained the initials or identifying number of the field examiner assigned to the case. Id. at 471-73. Although the court recognized that the case information could be, and apparently was, used in connection with other information to draw inferences about a field examiner's job performance, it stated that that "does not transform the [computer system] files into records about field examiners." Id. at 472-73.

Several other courts have also limited Privacy Act coverage by applying narrow constructions of the term "record." See Tripp v. DOD, 193 F. Supp. 2d 229, 236 (D.D.C. 2002) (citing Tobey and stating that salary information for position for which plaintiff had applied "is not 'about' plaintiff -- the fact that she could receive that salary had she been chosen for the position does not convert this into information 'about' plaintiff"); Voinche v. CIA, No. 98-1883, 2000 U.S. Dist. LEXIS 14291, at **8, 11-12 (D.D.C. Sept. 27, 2000) (citing Tobey and Fisher, infra, and finding that records regarding plaintiff's administrative appeal concerning a prior access request and the case files of plaintiff's prior Freedom of Information Act litigation, "while identifying plaintiff by name, are not 'about' the plaintiff, but rather are 'about' the administrative appeal and prior litigation under the FOIA"); Hassell v. Callahan, No. 97-0037-B, slip op. at 3-5 (W.D. Va. Aug. 7, 1997) (finding that public sign-up sheet that asked for name of claimant and name of his representative for disability benefits did not constitute "record"; stating that "this court is not inclined to lump the name of a person's representative within the same category as information regarding his medical or financial history"); Fisher v. NIH, 934 F. Supp. 464, 466-67, 469-72 (D.D.C. 1996) (following Tobey and finding that information in database about articles published in scientific journals that contained bibliographic information including title of article and publication, name and address of author, and summary of article and also included annotation "[scientific misconduct -- data to be reanalyzed]," provides "information 'about' the article described in each file and does not provide information 'about' [the author]," even though information "could be used to draw inferences or conclusions about [the author]"; "The fact that it is possible for a reasonable person to interpret information as describing an individual does not mean the information is about that individual for purposes of the Privacy Act."), summary affirmance granted, No. 96-5252 (D.C. Cir. Nov. 27, 1996); Wolde-Giorgis v. United States, No. 94-254, slip op. at 5-6 (D. Ariz. Dec. 9, 1994) (citing Unt with approval and holding that Postal Service claim form and information concerning estimated value of item sent through mail was "not a 'record' within the meaning of the [Privacy Act]" because it "disclosed no information about the plaintiff" and did not reflect any "'quality or characteristic' concerning the plaintiff"), aff'd, 65 F.3d 177 (9th Cir. 1995) (unpublished table decision); Ingerman v. IRS, No. 89-5396, slip op. at 6 (D.N.J. Apr. 3, 1991) ("An individual's social security number does not contain his name, identifying number or other identifying particular. . . . [A] social security number is the individual's identifying number, and therefore, it cannot qualify as a record under . . . the Privacy Act."), aff'd, 953 F.2d 1380 (3d Cir. 1992) (unpublished table decision); Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 36547, at *10 (D. Colo. Mar. 18, 1991) (names of FBI Special Agents and other personnel held not requester's "record" and therefore "outside the scope of the [Privacy Act]"), aff'd, 973 F.2d 843 (10th Cir. 1992); Doe v. United States Dep't of Justice, 790 F. Supp. 17, 22 (D.D.C. 1992) (applying Nolan and alternatively holding that "names of agents involved in the investigation are properly protected from disclosure"); Shewchun v. United States Customs Serv., No. 87-2967, 1989 WL 7351, at *1 (D.D.C. Jan. 11, 1989) (letter concerning agency's disposition of plaintiff's merchandise "lacks a sufficient informational nexus with [plaintiff] (himself, as opposed to his property) to bring it within the definition of 'record'"); Blair v. United States Forest Serv., No. A85-039, slip op. at 4-5 (D. Alaska Sept. 24, 1985) ("Plan of Operation" form completed by plaintiff held not his "record" as it "reveals nothing about his personal affairs"), appeal dismissed, No. 85-4220 (9th Cir. Apr. 1, 1986); Windsor v. A Fed. Executive Agency, 614 F. Supp. 1255, 1260-61 (M.D. Tenn. 1983) (record includes only sensitive information about individual's private affairs), aff'd, 767 F.2d 923 (6th Cir. 1985) (unpublished table decision); Cohen v. United States Dep't of Labor, 3 Gov't Disclosure Serv. (P-H) ¶ 83,157, at 83,791 (D. Mass. Mar. 21, 1983) (record includes only "personal" information); AFGE v. NASA, 482 F. Supp. 281, 282-83 (S.D. Tex. 1980) (determining that sign-in/sign-out sheet was not "record" because, standing alone, it did not reveal any "substantive information about the employees"); Houston v. United States Dep't of the Treasury, 494 F. Supp. 24, 28 (D.D.C. 1979) (same as Cohen); see also Drake v. 136th Airlift Wing, Tex. Air Nat'l Guard, No. 3:98-CV-1673D, 1998 WL 872915, at **1-2 (N.D. Tex. Nov. 30, 1998) (stating that list of names of witnesses is not record, as it "does not include personal information regarding any particular individual"), aff'd, 209 F.3d 718 (5th Cir. 2000) (unpublished table decision); Benson v. United States, No. 80-15-MC, slip op. at 4 (D. Mass. June 12, 1980) (permitting withholding of OPM investigator's name where identities of informants were properly excised under subsection (k)(5)); cf. Topuridze v. FBI, No. 86-3120, 1989 WL 11709, at *2 (D.D.C. Feb. 6, 1989) (citing Unt with approval and holding that letter written about requester, authored by third party, cannot be regarded as third party's record; it "does not follow that a document reveals some quality or characteristic of an individual simply by virtue of the individual having authored the document"), reconsideration denied sub nom. Topuridze v. USIA, 772 F. Supp. 662, 664-65 (D.D.C. 1991) (after in camera review, although reaffirming that "[i]n order to be about an individual a record must 'reflect some quality or characteristic of the individual involved,'" stating that document "may well be 'about' the author," as it discussed author's family status, employment, and fear of physical retaliation if letter were disclosed to plaintiff, and ultimately ruling that it need not reach issue of whether or not letter was "about" author and denying reconsideration on ground that letter was without dispute about subject/plaintiff and therefore must be released to him).

For a further illustration of conflicting views concerning the meaning of the term "record" in the subsection (d)(1) access context, compare Voelker v. IRS, 646 F.2d 332, 334 (8th Cir. 1981), with Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 36547, at *3 (D. Colo. Mar. 18, 1991), aff'd, 973 F.2d 843 (10th Cir. 1992), and DePlanche v. Califano, 549 F. Supp. 685, 693-98 (W.D. Mich. 1982). These important cases are further discussed below under "Individual's Right of Access."

One district court, in a case concerning the Privacy Act's subsection (b)(3) routine use exception, has held that a plaintiff may choose which particular "item of information" (one document) contained within a "collection or grouping of information" disclosed (a prosecutive report indicating a potential violation of law) to denominate as a "record" and challenge as wrongfully disclosed. Covert v. Harrington, 667 F. Supp. 730, 736-37 (E.D. Wash. 1987), aff'd on other grounds, 876 F.2d 751 (9th Cir. 1989). Purporting to construe the term "record" narrowly, the district court in Covert ruled that the Department of Energy's routine use -- 47 Fed. Reg. 14,333 (Apr. 2, 1982) (permitting disclosure of relevant records where "a record" indicates a potential violation of law) -- did not permit its Inspector General to disclose personnel security questionnaires to the Justice Department for prosecution because the questionnaires themselves did not reveal a potential violation of law on their face. 667 F. Supp. at 736-37. Covert is discussed further under "Conditions of Disclosure to Third Parties," "Agency Requirements," and "Civil Remedies," below.

Note also that purely private notes -- such as personal memory refreshers -- are generally regarded as not subject to the Privacy Act because they are not "agency records." See Johnston v. Horne, 875 F.2d 1415, 1423 (9th Cir. 1989); Bowyer v. United States Dep't of the Air Force, 804 F.2d 428, 431 (7th Cir. 1986); Boyd v. Sec'y of the Navy, 709 F.2d 684, 686 (11th Cir. 1983) (per curiam); Harmer v. Perry, No. 95-4197, 1998 WL 229637, at *3 (E.D. Pa. Apr. 28, 1998), aff'd, No. 98-1532 (3d Cir. Jan. 29, 1999); Sherwin v. Dep't of Air Force, No. 90-34-CIV-3, slip op. at 2-7 (E.D.N.C. Apr. 15, 1992), aff'd, 37 F.3d 1495 (4th Cir. 1994) (unpublished table decision); Glass v. United States Dep't of Energy, No. 87-2205, 1988 WL 118408, at *1 (D.D.C. Oct. 29, 1988); Mahar v. Nat'l Parks Serv., No. 86-0398, slip op. at 16-17 (D.D.C. Dec. 23, 1987); Kalmin v. Dep't of the Navy, 605 F. Supp. 1492, 1494-95 (D.D.C. 1985); Machen v. United States Army, No. 78-582, slip op. at 4 (D.D.C. May 11, 1979); see also OMB Guidelines, 40 Fed. Reg. at 28,952 ("Uncirculated personal notes, papers and records which are retained or discarded at the author's discretion and over which the agency exercises no control or dominion (e.g., personal telephone lists) are not considered to be agency records within the meaning of the Privacy Act."); cf. FOIA Update, Vol. V, No. 4, at 3 ("OIP Guidance: 'Agency Records' vs. 'Personal Records'") (analyzing concepts of agency records and personal records under FOIA).

However, in Chapman v. NASA, 682 F.2d 526, 529 (5th Cir. 1982), the Court of Appeals for the Fifth Circuit, relying on the fair recordkeeping duties imposed by subsection (e)(5), ruled that private notes may "evanesce" into records subject to the Act when they are used to make a decision on the individual's employment status well after the evaluation period for which they were compiled. See also Lawrence v. Dole, No. 83-2876, slip op. at 5-6 (D.D.C. Dec. 12, 1985) ("[a]bsent timely incorporation into the employee's file, the private notes may not be used as a basis for an adverse employment action"); Thompson v. Dep't of Transp. United States Coast Guard, 547 F. Supp. 274, 283-84 (S.D. Fla. 1982) (timeliness requirement of subsection (e)(5) is met where private notes upon which disciplinary action is based are placed in a system of records "contemporaneously with or within a reasonable time after an adverse disciplinary action is proposed"); cf. Risch v. Henderson, 128 F. Supp. 2d 437, 441 (E.D. Mich. 1999) (stating that "another person's witnessing of a personal note converts it to a Level 2 -- Supervisor's Personnel Record, and therefore it is properly maintained under the Privacy Act" in a system of records in accordance with the agency manual). But cf. Sherwin, No. 90-34-CIV-3, slip op. at 2-7 (E.D.N.C. Apr. 15, 1992) (distinguishing Chapman and finding that notes of telephone conversations between two of plaintiff's supervisors concerning plaintiff were not "agency 'records'" because plaintiff was "well aware of the general content" of notes, "essence" of notes was incorporated in agency's records, "private notes played no role" in plaintiff's discharge, and although some of notes were shared between two supervisors, "they remained personal notes at all times").

Note that publicly available information, such as newspaper clippings or press releases, can constitute a "record." See Clarkson v. IRS, 678 F.2d 1368, 1372 (11th Cir. 1982) (permitting subsection (e)(7) challenge to agency's maintenance of newsletters and press releases); Murphy v. NSA, 2 Gov't Disclosure Serv. (P-H) ¶ 81,389, at 82,036-37 (D.D.C. Sept. 29, 1981) (same as to newspaper clippings); see also OMB Guidelines, 40 Fed. Reg. 56,741, 56,742 (Nov. 21, 1975) ("[c]ollections of newspaper clippings or other published matter about an individual maintained other than in a conventional reference library would normally be a system of records"); cf. Fisher, 934 F. Supp. at 469 (discussing difference between definition of "record" for purposes of FOIA and statutory definition under Privacy Act and rejecting argument, based on FOIA case law, that "library reference materials" are not covered by Privacy Act).

One court has relied on non-Privacy Act case law concerning grand jury records to hold that a grand jury transcript, "though in possession of the U.S. Attorney, is not a record of the Justice Department within the meaning of the Privacy Act." Kotmair v. United States Dep't of Justice, No. S 94-721, slip op. at 1 (D. Md. July 12, 1994) (citing United States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979), for above proposition, but then confusingly not applying same theory to analysis of FOIA accessibility), aff'd, 42 F.3d 1386 (4th Cir. 1994) (unpublished table decision).

The Privacy Act -- like the FOIA -- does not require agencies to create records that do not exist. See DeBold v. Stimson, 735 F.2d 1037, 1041 (7th Cir. 1984); Perkins v. IRS, No. 86-CV-71551, slip op. at 4 (E.D. Mich. Dec. 16, 1986); see also, e.g., Villanueva v. Dep't of Justice, 782 F.2d 528, 532 (5th Cir. 1986) (rejecting argument that the FBI was required to "find a way to provide a brief but intelligible explanation for its decision . . . without [revealing exempt information]"). But compare May v. Dep't of the Air Force, 777 F.2d 1012, 1015-17 (5th Cir. 1985) (singularly ruling that "reasonable segregation requirement" obligates agency to create and release typewritten version of handwritten evaluation forms so as not to reveal identity of evaluator under exemption (k)(7)), with Church of Scientology W. United States v. IRS, No. CV-89-5894, slip op. at 4 (C.D. Cal. Mar. 5, 1991) (FOIA decision rejecting argument based upon May, and holding that agency is not required to create records).