System of records

In the Privacy Act of 1974, the term system of records means


 * a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

The OMB Guidelines explain that a system of records exists if: (1) there is an "indexing or retrieval capability using identifying particulars [that is] built into the system"; and (2) the agency "does, in fact, retrieve records about individuals by reference to some personal identifier." The Guidelines state that the "is retrieved by" criterion "implies that the grouping of records under the control of an agency is accessed by the agency by use of a personal identifier; not merely that a capability or potential for retrieval exists."

It is important to note that by its very terms the statute includes as personal identifiers items beyond the perhaps most commonly used name and social security number. As the Court of Appeals for the District of Columbia Circuit pointed out when considering a "photo file":


 * Recall that a system of records is "a group of any records . . . from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5) (emphasis added). The term "record" includes "any item . . . about an individual . . . 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." Id. § 552a(a)(4) (emphasis added). Under the Act's plain language, then, a "system of records" may be a group of any records retrieved by an identifying particular such as a photograph. In other words, the personal identifier may be the photograph itself.

The D.C. Circuit also has addressed the "system of records" definition in the context of computerized information in Henke v. United States Department of Commerce, and noted that "the OMB guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person's name, but the agency must in fact retrieve records in this way in order for a system of records to exist." The issue in Henke was whether or not computerized databases that contained information concerning technology grant proposals submitted by businesses constituted a "system of records" as to individuals listed as the "contact persons" for the grant applications, where the agency had acknowledged that "it could theoretically retrieve information by the name of the contact person." The D.C. Circuit looked to Congress's use of the words "is retrieved" in the statute's definition of a system of records and focused on whether the agency "in practice" retrieved information. The court held "that in determining whether an agency maintains a system of records keyed to individuals, the court should view the entirety of the situation, including the agency's function, the purpose for which the information was gathered, and the agency's actual retrieval practice and policies."

Applying this test, the D.C. Circuit determined that the agency did "not maintain a system of records keyed to individuals listed in the contact person fields of its databases" because the agency's "purpose in requesting the name of a technical contact [was] essentially administrative and [was] not even necessary for the conduct of the [program's] operations," nor was there "any evidence that the names of contact persons [were] used regularly or even frequently to obtain information about those persons." Id. at 1456, 1461-62; cf. Walker v. Ashcroft, No. 99-2385, slip op. at *17-*18 (D.D.C. Apr. 30, 2001) (alternative holding) (applying Henke and finding no evidence that the FBI "independently collected, gathered or maintained" a document containing plaintiff's prescription drug information given to the FBI by a state investigator, or that the FBI "could, in practice, actually retrieve the record by reference to [plaintiff's] name"), summary affirmance granted on other grounds, No. 01-5222, 2002 U.S. App. LEXIS 2485 (D.C. Cir. Jan. 25, 2002); Alexander v. Federal Bureau of Investigation, 193 F.R.D. 1, 6-8 (D.D.C. 2000) (applying Henke and finding that the agency maintained a system of records, considering the "purpose for which the information was gathered and the ordinary retrieval practices and procedures"), ''mandamus denied per curiam sub nom. In re Executive Office of the President, 215 F.3d 20 (D.C. Cir. 2000); Smith v. Henderson, No. C-99-4665, 1999 WL 1029862, at *5 (N.D. Cal. Oct. 29, 1999) (applying Henke and finding that "locked drawer containing a file folder in which [were] kept . . . notes or various other pieces of paper relating to special circumstances hires" did not constitute a system of records because the agency "did not utilize the drawer to systematically file and retrieve information about individuals indexed by their names"), aff'd sub nom.'' Smith v. Potter, 17 Fed. Appx. 731 (9th Cir. 2001). But cf. Williams v. Veterans Admin., 104 F.3d 670, 674-77 & n.4 (4th Cir. 1997) (although remanding case for further factual development as to whether records were contained within system of records, and noting that it was "express[ing] no opinion on the Henke court's rationale when applied to circumstances where a plaintiff seeks to use retrieval capability to transform a group of records into a 'system of records,' as in Henke," nevertheless finding the "narrow Henke rationale . . . unconvincing" in circumstances before the court where there "appear[ed] to exist already a formal system of records," where "published characteristics of the agency's formal system of records ha[d] not kept current with advances in and typical uses of computer technology," and where record was "poorly developed" on such point).

Other district courts have also reached this result in the context of computerized information.

Another district court, in considering whether an agency's website constituted a system of records, also looked to the OMB Guidelines and the reasoning of Henke. In McCready v. Principi, the District Court for the District of Columbia stated that "[b]ecause of the purpose and context of the Privacy Act, the Court finds that the practice of retrieval by name or other personal identifier must be an agency practice to create a system of records and not a 'practice' by those outside the agency." Thus, the court held that the VA's Web site did not constitute a system of records, because the VA did "not retrieve documents therefrom by the use of any personal identifier."

The D.C. Circuit in Henke, in looking to the "purpose" for which the information was gathered, also drew a distinction between information gathered for investigatory purposes and information gathered for, in that case, administrative purposes. The court stated that where information is compiled about individuals "primarily for investigatory purposes, Privacy Act concerns are at their zenith, and if there is evidence of even a few retrievals of information keyed to individuals' names, it may well be the case that the agency is maintaining a system of records."

The Court of Appeals for the Tenth Circuit, in Pippinger v. Rubin, finding the approach in Henke "instructive," held that "consistent with Henke, a properly 'narrow' construction of 5 U.S.C. §552a(a)(5)" led it to the conclusion that an Internal Revenue Service database containing an "abstraction" of information from two existing Privacy Act systems did not constitute a new system of records because it could be "accessed only by the same users, and only for the same purposes, as those published in the Federal Register for the original 'system[s] of records.'"

The highly technical "system of records" definition is perhaps the single most important Privacy Act concept, because (with some exceptions) it makes coverage under the Act dependent upon the method of retrieval of a record rather than its substantive content. Indeed, a major criticism of the Privacy Act is that it can easily be circumvented by not filing records in name-retrieved formats. A recognition of this potential for abuse has led some courts to relax the "actual retrieval" standard in particular cases (examples in cases cited below). Moreover, certain subsections of the Act (discussed below) have been construed to apply even to records not incorporated into a "system of records."