Citizen Control Over Records Held by Third Parties

The United States has become an information society. Government at every level and private industry have been collecting and using more personal information about individuals in the last several years than ever before. The Congress has been aware of this trend, and of the potencia1 for misuse of the information so collected; it has enacted several laws that protect the personal privacy of individuals, and respect the confidentiality of the information maintained about individuals by third parties. In this report, several privacy laws are summarized, and key provisions of each are compared, in order to make individual citizens aware of their rights , responsibilities and remedies under the law.

Report No. 78-255 GOV CITIZEN CONTROL OVLK RECORDS HELD B Y THIRD PARTIES Sarah P. Collins Analyst in American National Government Government Division COMPLIMENTS OF December 8 , 1978 ABSTRACT :he United S t a t e s h a s become an i n f o r m a t i o n s o c i e t y . Government a t e v e r y l e v e l and p r i v a t e i n d u s t r y have been c o l l e c t i n g and u s i n g more p e r sonal information about i n d i v i d u a l s i n t h e l a s t s e v e r a l y e a r s than e v e r before. "I'e Congress h a s been aware o f t h i s t r e n d , and o f t h e p o t e n c i a 1 f o r misuse of t h e i n f o r m a t i o n s o c o l l e c t e d ; i t h a s e n a c t e d s e v e r a l laws t h a t p r o t e c t t h e p e r s o n a l p r i v a c y o f i n d i v i d u a l s , and r e s p e c t t h e conf i d e n t i a l i t y of t h e i n f o r m a t i o n m a i n t a i n e d a b o u t i n d i v i d u a l s by t h i r d parties. I n t h i s r e p o r t , s e v e r a l p r i v a c y laws a r e summarized, and key p r o v i s i o n s o f e a c h a r e compared, i n o r d e r t o make i n d i v i d u a l c i t i z e n s aware of t h e i r r i g h t s , r e s p o n s i b i l i t i e s and r e m e d i e s u n d e r t h e law. ...................... c ~ l c. L a w s and K e g u l a t l a n s . . . . . . . . . . . . . . -i ; , a r l s o n ~,~ S p e c ~ f l cP I I O L ~ S .~ .~ .; ~. ~. . . . . . . . . . ( 1 1 ~ y p e so f g e c o r d s C o v e r e d . . . . . . . . . rrc\ .. d (3) Aeans o f A c c e s s (3) (4) (5) (oj (7) . .1 .4 .7 .7 ........d ~ e n e f i c i a r i e so f t h e A c t s . . . . . . . . . . . . . .10 I n s t i t u t i o n s C o v e r e d . . . . . . . . . . . . . . . .1 1 R e s t r i c t i o n s o n A c c e s s . . . . . . . . . . . . . . .1 2 N o t i c e o f A c c e s s . . . . . . . . . . . . . . . . . .1 5 Consumer C h a i l e n g e o r R e q u e s t . . . . . . . . . . . . 1 3 Consumer A u t h o r i z a t i o n . . . . . . . . . . . . . . - 2 1 (2) I I U C L ~ G ~ : K e s t r i c t l o n on I n f o r m a t ~ o nC o l l e c t e d .................. (10) Tine Limitations (11) Costs (12) J u d i c i a l Review *22 . . . . . . . . . . . . . . . . . .24 . . . . . . . . . . . . . . . . . . . . . . . .2 7 . . . . . . . . . . . . . . . . . . .29 l ' e x t s of S p e c i f i c S t a t u t e s . . . . . . . . . . . . . . . .3 5 . . . . . . . . . . . . .35 Act . . . . . . . . . . . . . . 39 (1) Freedom o f I n f o r m a t i o n Act (2) $ a i r i r e d i t Aeporting 3 ) F a m i l y E d u c a t i o n a l R i g h t s and P r i v a c y r c t (4) P u p i l s ' K l g n t s Act . . . . . .i5 . . . . . . . . . . . . . . . . .5 2 IV . rexts of Specific Statutes (continued) (5) (6) (7) V . . . . . . . . . . . . . . . . . .53 Tax Reform Act of 1976 . . . . . . . . . . . . . . .6 2 aj Confidentiality Section . . . . . . . . . . . . .6 2 D) Summons Section . . . . . . . . . . . . . . . . .78 Right t o Financial Privacy Act of 1978 . . . . . . .82 Privacy Act of 1974 Selected Bibliography . . . . . . . . . . . . . . . . . . .96 The author wisnes to credit ~ i l d r e d6oyle and dartna Schweitzer for the secretarial production of this report . I. INTRODUCTION Over t n e l a s t d e c a d e , t h e United S t a t e s seems t o h a v e become an i n f o r i n a t i o n s o c i e t y . I n t h e 1 9 6 0 ' s and 1 9 7 0 r s , F e d e r a l , S t a t e , and l o c a l g o v e r n m e n t s ' and p r i v a t e i n d u s t r y ' s s u b s t a n t i a l i n c r e a s e i n t h e scope of i n f o r m a t i o n c o l l e c t i o n , u s e and d i s c l o s u r e , was l a r g e l y promoted ~ y a r a p i d p r o l i f e r a t i o n o f computer d a t a b a n k s . As t h e p u b l i c became i n c r e a s i n g l y aware of t h e i n f o r m a t i o n o r i e n t a t i o n o f s o c i e t y , i n d i v i d u a l s a l s o became aware o f t h e v a s t amount o f p e r s o n a l i n f o r m a t i o n c o n t a i n e d i n t h e r e c o r d s o f government and p r i v a t e industry. w h i l e much o f t h i s i n f o r m a t i o n was o r i g i n a l l y s u p p l i e d t o t h e p r i m a r y u s e r b y t h e i n d i v i d u a l , t n e p e r s o n had l i t t l e o r no c o n t r o l over t h e accuracy, t i m e l i n e s s , r e l e v a n c e , o r scope of t h e record. The p o t e n t i a l f o r misuse of a c c u r a t e i n f o r m a t i o n a l s o d i s - t u r b e d i n d i v i d u a l s , s i n c e r e c o r d i n f o r m a t i o n was exchanged between government and i n d u s t r y , and among i n s t i t u t i o n s and i n d u s t r i e s i n the private sector. Congress h a s b o t h i n v e s t i g a t e d and responded t o t h i s c o n c e r n o v e r t h e p r o p r i e t y o f e x t e n s i v e F e d e r a l Government and c o r p o r a t e i n f o r m a t i o n g a t h e r i n g and d i s c l o s u r e . There have b e e n s e r i e s o f h e a r i n g s and i n v e s t i g a t i o n s i n t o t h e e x t e n t of Government and p r i v a t e r e c o r d keeping and c o m p u t e r i z a t i o n of d a t a , and s e v e r a l m e a s u r e s have been enacted to treat various aspects of the information control issue. Some of the legislation deals with intrusive information gathering on all levels, and attempts to set limits on the kinds and extent of information which an individual should be expected to divulge in order to qualify for a benefit such as a loan, or participate in many routine functions of daily life, sucn as opening a checking account. Most of the legislation requires institutions to be fair in using information. This means that individuals from whom infor- mation is collected are to know for what purposes the data will be used, and to what persons or organizations it will be transferred. The fairness principle also requires the record keeper to allow the individual access to the records in order to review, copy, and correct or amend the recorded information, and to give the consumer notice if Government authorities or other interested parties are seeking access to the same records. The last major feature of this legislation is that certain expectations of confidentiality are legitimized. Nhile most individuals have long expected that infor- mation used in such a relationship as a checking account with a financial institution would be kept confidential by that bank, the courts have not generally recognized the validity of such an expectation. Some of the legislation restricts the discretion of the record keeper to disclose information in order to validate such an expectation, and several of the statutes provide the consumer with access to courts if the expectation has been violated. r h e s e laws l a y t h e f o u n d a t i o n f o r a code o f r a i r i n f o r m a t i o n p r a c t i c e s b y which c i t i z e n s and o t h e r s c a n e x e r c i s e a m e a s u r e o f c o n t r o l o v e r t h e c o l l e c t i o n and u s e o f i n f o r m a t i o n a b o u t t h e m s e l v e s . The p r i n c i p l e s e v o l v i n g f r o m t h e l e g i s l a t i o n a r e t h o s e r e q u i r i n g r e c o r d s t o be Kept w i t h a c c u r a c y , r e l e v a n c y a n d f a i r n e s s . For these l a w s t o r e a c n t h e i r f u l l e f f e c t i v e n e s s , c i t i z e n s must be a w a r e o f t h e i r r i g o t s and r e s p o n s i b i l i t i e s , and o f t h e r l g h t s a n d r e s p o n s i b i l i t i e s of r e c o r d k e e p e r s and Government a g e n c i e s . The p u r p o s e of t h i s r e p o r t i s t o summarize t h e v a r i o u s l a w s , a n d t o compare t h e p r o v i s i o n s , p u r p o s e s and r e m e d i e s o f e a c h . 11. (1) SPECIFIC LAWS AND REGULATIONS Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, requires disclosure with certain exemptions, of records and information held by the Federal Government. It is a statutory reversal of long held Government policy that required secrecy for most Government-held information. Each agency publishes its rules and regulations pursuant to the Act in the Federal Register ( E K ) . These are made part of that agency's title of the Code of Federal Kegulations (CFR). (2) et seq.) -- Fair Credit Reporting Act (Fair Credit) (15 U.S.C. 1681 regulates collection and dissemination of personal information collected by consumer reporting agencies and persons (including corporations) who regularly procure or cause to be prepared investigative consumer reports on any consumer for use by a third party. Regulations promulgated under this Act are found at 14 CPR 374 and 16 CYK 1.71-1.73. (3) Family Educational Rights and Privacy Act (PERPA) (20 U,S,C. 1232g) sets out requirements designed to protect the privacy of parents and students and to govern the release of and access to educational records maintained by educational institutions. Regulations promulgated under this Act are found at 20 CFR 12328 and 45 CPR 99, (4) Protection of Pupil Rights (Pupils' Rights) (20 U.S.C. 1232h), as amended by Section 1250 of the Education Amendments of 1978 ( P . L . 95-561, Nov. 1, 19781, gives parents the right to inspect educational materials used in researcn or experimentation projects, and restricts educators rrom requiring intrustive psychiatric or psychological testing. (5) ao regulations have been promulgated under this Act. Privacy Act of 1374 (5 U.S.C. 552a) restricts the Federal Government in its collection, use and disclosure of personally identifiable information, and grants individuals access to Government held information about themselves. Regulations are issued by each agency, are ~ublishedin the Federal Register and the Code of Federal Regulations, and are compiled annually in a special multi-volume publication. (U.S. Office of the Federal Register. suances; 1976 compilation. (6) [Washington, 19761 Privacy Act Is- 5 v.) Tax Reform Act of 1976 has two pertinent sections. confidentiality section (26 U.S.C. The 6103) revises the Internal Revenue Code to require that tax returns and return information are confidential. with certain exceptions, they are not subject to disclosure to Federal or State agencies or employees. Regulations promulgated under this section are found at 26 CFR 401 and 404. section (26 U.S.C. The summons 7609) requires the IRS to give notice to any person who is specifically identified in a summons to produce records. With certain exceptions, that person then has the right to intervene in subsequent legal proceedings relating to the summons, and the right to stay compliance of the summons. promulgated for this section. There are no regulations (7) kight to Financial Privacy Act of 1978 (Title XI of P.L. 95-630, Nov. 10, 1978) generally requires Government agencies to give the individual notice of, and chance to challenge, their intent to obtain that customer's records held b y a financial institution. degulations have not yet been issued. 111. (1) COMPAALSOd U P SPCCLFIC PROVISIONS Types of Records Covered EOIA--with certain exceptions, applies to all governmental records which do not fall within one of the exemptions listed in the Act. [5 U.S.C. 552(b)] (see infra CKS-36-37). Pair Credit--applies to any information bearing on a consumer's eligibility for credit, insurance, employment, rent, license, or government benefit. Medical records are not included in disclosure provisions. [15 U.S.C. lbill(g) J PLKPA--applies to most personal records concerning students maintained by educational institutions receiving Federal funding. [20 U.5.C. 1232g(a)(4)1 (see infra CKS-47) Pupils' Rights--applies to educational materials, and to requirements for tests, the results of which become part of the pupil records. [20 U.S.C. 1232hl Privacy Act--with certain exceptions, applies to all personally identifiable records, including personnel records, neld ~y Federal Government agencies. (see infra CKS-53) [ 5 U.S.C. 552a (a)(4,5)] Tax Reform--Confidentiality section: applies to all Federal tax returns and return information. Summons procedure: 126 U.S.C. 6103(a)] applies to all business records maintained by a tnird party. 126 U.S.C. 1609(c)(3)] Financial Privacy--applies to information contained in the financial records of a financial institution pertaining to a customer's relatlonsnip with the financial institution. (2) [P.L. 95-630, Nov. 10, 1978, Sec. 1101(2)] kestrictrons on Lnformation Collected POlA--no provision Fair Credit--no adverse information in the consumer report (other than information which is a matter of public record) may be included in a subsequent consumer report unless such adverse information has been verified .... or if it was received within the three month period preceding the date the subsequent report is furnished. [l5 U.S.C. 1681L1 PERPA--no surveys or data-gathering activity shall be conducted by the Secretary of HBW, or administrative head of an education agency under an applicable program, unless such activities are authorized by law. 1232g(c)l 120 U.S.C. i?upilsi &tights--information is not to be gathered by way of psychiatric or psychological testing if the purpose of the test is to reveal intialate or potentially ernbarassing information, including but not restricted to, sex behavior and attitudes, political affiliations, or illegal, anti-social, self-incriminating and demeaning behavior. [20 U.S.C. 1232h(b)] Privacy Act--agencies shall maintain in their records only that information about an individual that is necessary and relevant to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President. [5 U.S.C. 552a(e)(l)] Agencies shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity. 552a(e)(711 Tax keform-no provision in either section Financial Privacy--no provision [5 U.S.C. (3) Beneficiaries of tne Acts EOIA--any individual or institution. [ 5 U.S.C. 5521 Fair Credit--an individual consumer on whom a consumer report has been made. [IS U . S . C . 1681a(b)] FEKPA--parents or legal guardians of a student under 18 years of age, or a student 18 years or older. 123Lg(e) [20 U . 6 . C . 1 ~ u p i l s 'Kights--parents or guardians of the children engaged in certain research or experimentation programs or projects. [20 U . S . C . 1232hl Privacy Act--a citizen of the U . S . or an alien lawfully admitted for permanent residence. Tax Reform--Confidentiality section: [S U . S . C . 552a(a)] person who files a tax return, or, if deceased or incompetent, the committee, trustee or guardian of that person's estate, or a person designated by tne person filing the return. [26 U.S.C. 61031 Summons procedure: Any person who is individually identified in the description of the records contained in the summons. [26 U . s . C . 7609(a)(l)(B)] Financial Privacy--any person or authorized representative of the person who has utilized, or is utilizing any service of a financial institution, or for whom a financial institution is acting or has acted as a fiduciary, in relation to an account maintained in the person's name. [P.L. 95-630, Nov. 10, 1978, Sec. 1101(5)] (4) Institutions Covered FOIA--all Federal executive agencies and departments, including the U.S. Postal Service, the Postal Rate Commission, and Government corporations. [5 U.S.C. 552(e)] The Copyright Office of the Library of Congress is the only legislative branch agency covered under the Act. [17 U.S.C. 7i)l(d)] Pair Credit--consumer reporting agencies and persons (including corporations) who regularly procure or cause to be prepared an investigative consumer report on any consumer for use by a third party. [15 U.S.C. l68ld I FERPA--educational agencies or institutions which are the recipients of Federal educational funds. [20 U.S.C. lZ32g(a) (3) 1 ~upils'Rights--educational agencies or institutions which are the recipients of Federal educational funds. [20 U.S.C. 1221(a)] Privacy Act--all Federal executive agencies and departments, Government corporations and Government-controlled corporations, and independent regulatory agencies. 15 U.S.C. 552a(a)l CRS- 12 Agencies are to apply tneir Privacy Act regulations to contractors who operate an information system on behalf of the Government. [5 U.S.C. 552a(m)] The CIA, FBI and other law enforcement agencies are permissively exempt from tne disclosure requirement. [5 U.S.C. 552a(j)] The Copyright Office of the Library of Congress is the only legislative branch agency covered by the Act. [17 U.S.C. Tax Reform--Confidentiality section: 701(d)] any officer or employee of the United States, of any State or of any local child support enforcement agency, who has access to returns or return information. Summons section: [26 U.S.C. 6103(a)] No provision. Financial Privacy--Federal agencies and financial institutions, including any office of a bank, savings bank, card issuer, savings and loan, credit union, or consumer finance institution. [P.L. 95-630, Nov. 10, 1978, Sec. 1101(1)] The Securities and Exchange Commission is exempt from provisions of the Act for two years. [P.L. 95-630, Nov. 10, 1978, Sec. 11221 (5) Restrictions on Access FOIA--the Act specifies nine classes of information which agencies are not required to disclose. These exemptions range from information which, if disclosed, would constitute a clearly unwarranted invasion of privacy, to trade secrets and other confidential business information. The Act requires, however, that any reasonably segregable portion of a record should De made available after the exempted information is deleted. 15 U.S.C. 552(b)] (see infra, CRS-37) Fair Credit--Government agencies may only receive consumer reports under certain circumstances, such as if the report is to De used for employment purposes, or to determine eligibility for a license or other benefit for which the agency is required by law to consider an applicant's financial responsibility or status. 115 u . S . C . 1681b, f] k'EkPH--tne Act requires that information not be disclosed, except in certain instances, without the written consent of the student or parent. Some of the instances in which third parties may receive access to information without that consent include transfer to other school officials who have legitimate educational interests, and in connection with a student's application for financial aid. 120 U.S.C. 1232g(b)] Students are restricted in their access to their parents' financial records, and to some confidential recommendations. [20 U.S.C. 1232g(a)(l)(B)J pupils' kights--no provision Privacy Act--an individual cannot gain access to information compiled in reasonable anticipation of a civil action or proceeding. [5 U.S.C. 552a(d)(5)] Agency heads may exempt certain records from disclosure if the system of records fits into specified classifications such as information maintained in connection with Secret Service protective functions, and testing materials used solely for appointment or promotion purposes, the disclosure of which would compromise the objectivity of the testing process. [5 U.S.C. 552a(k)] Central Intel- ligence Agency records are also exempted from the access provisions [5 U.S.C. 552a(j)] Tax Reform--Confidentiality section: a taxpayer or designee may not gain access to tax returns or return information if the Secretary of the Treasury determines that such disclosure would seriously impair Federal tax administration. [26 U.S.C. 6103(c)l State tax officials are granted limited access to certain tax information, but not if the Secretary determines that disclosure would identify a confidential informer or seriously impair any civil or criminal tax investigation. [26 U.S.C. 6103(d)] Governmental access in certain other cases, as for the returns of a person under consideration for appointment, is limited both as to tne persons allowed to make sucn a request, and as to the amount of information disclosed. [26 U.S.C. bldjtg) J Summons section: no provision Einancial privacy--generally, governmental access to financial records is granted only if the agency uses recognized legal process, and the consumer is notified in advance of the request. [Y.L. 95-630, Nov. 10, 1978, Sec. 11021 (6) hotice of Access FUlA--the Act is not intended to furnish notification to specific individuals. Some agencies have adopted regulations which require that a notice of anticipated release of documents be sent to the submitter of business information, trade secrets and other confidential commercial information. This information is exempted from mandatory disclosure by the agency; notice has allowed some information submitters to argue the need for confidentiality before the material is disclosed. [ 5 U.S.C. 552(b)(4)] Fair Credit--a person who procures, or causes to be prepared, an investigative consumer report on a consumer, must disclose to the consumer that such a report is being made. Tne consumer must De notified in writing no later than three days after tne date on which the report was requested; the consumer must also be notified of his or her right to request additional information. [15 U . S . C . 1681d] FEKPA--specifies that students and their parents must be informed of their rights under this Act. The notifica- tion must include: a) the types of education records, and information contained in them, maintained by the institution; b) the name and position of the official who has custody of tne information, the names of persons who have access, and the purposes for which they have access; c) the policies of the institutions for reviewing and expunging those records; d) the procedures for obtaining access to records; e) the process for challenging the content of the records; f ) the cost for reproducing records; g) the categories which the institution has defined as "directory information" ( i.e., information wnich the institution will disclose publicly); h) notice under this Act must be in the language of tne student or parent; i) notice must be given at least annually. Pupils' Rights--no specific provision Privacy Act--each agency that maintains a system of records is required to inform each individual whom it asks to supply information, on the form which it uses to collect this information or on a separate form that can be retained by the individual, of the authority wnicn authorizes the request for the information and whetner disclosure is mandatory or voluntary; the principal purpose or purposes for which the information is intended to be used; the routine uses which may be made of the information; and the effects on him or her, if any, of not providing all or any part of the requested information. [5 U.S.C. 552a(e)(3)] Agencies must also puolish in the Federal Register at least annually a notice of the existence and character of the system of records and any routine uses to which they are put. [5 U.S.C. 552a(e)(4), (1111 Agencies must keep an accounting of disclosures made under the terms of tne Act, except for disclosures made in tne agency, or pursuant to the FOIA. Most of tnis accounting is available to the individual whose records have Deen disclosed. [5 U.S.C. 552a(c)] Tax Reform--Confidentiality section: the Secretary must maintain an accounting of disclosures, similar to that required by the Privacy Act, for some of the specific categories of disclosure of tax returns or return information. Most of this required accounting is available to the individual whose tax returns or return information have been disclosed. 6lO3(p)(3) [26 U.S.C. 1 Summons section: if a summons identifies a specific taxpayer, he or she is to be notified of the summons by the IKS within three days of issuance. 7609(a)(l)] [26 U.S.C. No notice is required for a "John Doe" i.e., no taxpayer identified summons, a summons issued only to determine if business records exist, or if the summons is to identify a person who has an arrangement by which transactions are authorized by some means not requiring disclosure of nis or ner identity. [26 U.S.C. 7609(a)(4) and (c)(2)] Financial Privacy--Government agencies requesting access to records by means of administrative subpoena or summons, judicial subpoena, or formal written request must deliver to the customer a copy of the applicable legal process along with a notice which shall state with reasonable specificity the nature of the records sought, and tne customer's right to challenge disclosure of the records. A similar notice must be delivered to the customer within ninety days of disclosure of financial records obtained pursuant to a search warrant, or under emergency procedure provisions. [P.L. 95-630, ~!!ov. 10, 1978, Sec. 1105, 11d6, 1107, 1108, 11091 In most cases, the custoner must also be notified by a Government agency it financial records originally obtained under this law are transferred to any other Government agency. (7) [P.L. 95-630, Nov. 10, 1978, Sec. Consumer Challenge or Request FOIA--individual addresses a request to see documents to the officer or office specified in the appropriate agency's procedures established in the Federal Register or to the agency itself. [ 5 U.S.C. 552(a)] Fair Credit--customer addresses a request to the appropriate consuaer reporting agency, such as a credit bureau. 115 U.S.C. 1681d (b)j FERPA--parent or student addresses request to the appropriate educational institution or agency. [20 U. S.C. 1232g (a) (1) (A)] pupils1 Right--no specific provision Privacy Act--individual addresses request to the officer or office specified in the appropriate agency's procedures published in the Federal Register, or to the agency itself. [ 5 U.S.C. 552a (d)(f)] Tax Keform--Confidentiality section: vision. no specific pro- Secretary of the Treasury is required to make available to taxpayers certain accountings of tax return or return information disclosure. [26 U.S.C. 6103 (p)] Summons section: Any person who is entitled to receive notice of a summons under this section has the right to intervene in any proceeding regarding enforcement of the summons. That person is also entitled to stay compliance of the summons; he or she must notify the person summoned and the appropriate IKS official. [26 U.S.C. 7b09(b)] Financial Privacy--Customer files a motion or statement challenging the disclosure In the appropriate U.S. uistrict Court, in the case of administrative subpoena or summons, or judicial subpoena or formal written request. [P.L. 95-630, Nov. 10, 1978, sec. 11101 Customer has tne right to obtain a copy of the record of disclosures made by a financial institution to Government agencies, including the identity of the Government authority to which the disclosure Mas made. 1978, sec. 1104(c)l [P.L. 95-630, Nov. 10, (8) Consumer Authorization FOIA--no specific provision Fair Credit--a consumer reporting agency may furnish a consumer report in accordance with the written instructions of the consumer to whom it relates. [15 U.S.C. 1681b (2)] FEKPA--parents or students may authorize the educational institution to release education records or information contained within those records. [20 U.S.C. 12323 (b)(l)] Pupils' Rights--the parent or student is generally not allowed to give consent for psychiatric or psychological testing, the primary purpose of which is to reveal information in specified categories. However, the parent or student may give prior written consent if the information sought relates to income. [20 U.S.C. 123h (b)(7)] Tax Reform--Confidentiality section: the taxpayer may, by way of a written request for or consent to disclose, designate a person who may gain access to that taxpayer's tax return and return information. The disclosure may not be made if the Secretary of Treasury determines that such disclosure would seriously impair Federal tax administration. 6103 (c)] Stirmons sections : no provision [26 U.S.C. Financial Privacy--a consumer may autt~~rize disclosure if he or sne furnishes to the financial institution and to the Government a sigried and dated statement which makcs specific information available to a specific Government authority for a specific investigation for a limited time only. No such authorization is to be required as a condition \ loins business with the financial institution, [ P . ! . 95-630, Bov. 10, 1975, sec. 11041 (9) blesns of Access FOIA--any person may request infcrmation from an agency so long as the request reasonably describ~sthe information sought, and is made in accordance with published rules and regulations concerning tne time, place, fees (if any) and procedures to be followed. [ 5 U.S.C. 552 (a)(3)] Pair Credit--the consumer may request information in person during normal business hours, or by telephone if there has been a prior writte2 request; both procedures require proper identification. [15 U.S.C. 1681h] EEKPA--each educational institution or agency must establish procedures for the grant:ng of requests from parents or students for access to the education records. 1232g (a)(l)(a)l [20 U.S.C. Pupils' Rights--no specific provision Privacy Act--an individual may request information from an agency so long as the request is made in accordance with published rules and regulations. [ 5 U.S.C. 552a (d)] Unlike the FOIA, the infornation need not be reasonably described, but an accurate and specific description of the information sought will hasten the agency response. of identity is required. Proof [5 U.S.C. 552a (f)] Tax Reform--Confidentiality section: persons having various levels of interest in the tax return or return information may, in specified circumstances gain access by written request to the Secretary of the Treasury. c - h 1 [26 U.S.C. 6103 Federal officials who seek such information for administration of Federal criminal laws not relating to tax administration generally must obtain an ex parte order from a Federal district court judge. [26 U.S.C. 6103 (i)] Summons section: no provision Financial Privacy--Government authorities may gain access to records by means of customer authorization, administrative subpoena or summons, search warrant, judicial subpoena, or formal written request. sec. 11021 [P.L. 95-630, Nov. 10, 1978, Exceptions are made in certain cases, such as for lawful audit or investigation of the financial institution, and under applicable Rules of Federal Procedure, for civil or criminal litigation to which the Government and the customer are parties. [P.L. 95-630, Nov. 10, 1978, sec. 11131 Special procedures are adopted for such circumstances as Secret Service protective functions and emergency situations. [P.L. 95-630, Nov. 10, 1978, sec. 11141 (10) Time Limitations FOIA--the Act specifies: Each agency, upon any request for records must determine within ten work-days whether to comply with the request and must irmnediately notify the person making the request of the determination. The agency must make a determination with respect to any appeal within twenty working days. Under unusual circumstances, the agency may have a ten day extension by giving written notice to the requester. [5 U.S.C. 552 (a)(6)1 Fair Credit--notice that a consumer report is being prepared must be mailed to the consumer no more than three days after the date on which the report was first requested. A consumer's request for disclosure must be responded to within five days after the request was made. U.S.C. 1681 (a)(b)] [15 FERPA--an educational agency or institution must respond to a request for access to records within forty-five days after the request has been made. With respect to "directory information," the agency or institution must allow a "reasonable" period of time, after giving public notice of the categories of information to be disclosed, for a parent or guardian to inform the institution or agency that any or all of the information designated should not be released without the parent's consent. [20 U.S.C. 123g (a)(5)(B)l Pupils' Rights--no provision Privacy Act--the Act does not prescribe a specific time for response, but Federal regulations suggest a response to the inquiry within ten working days. Upon request by an individual for amendment of a record pertaining to him or her, the agency must acknowledge in writing receipt of the request within ten work-days. If the request is denied, the requester may ask for review of the denial. A final determination of the request must be made within thirty work-days with a possible thirtyday extension for "good cause." [5 U.S.C. 552a (dl] Tax Reform--Confidentiality section: no provision. Summons section: requires that the consumer receive notice of the summons within three days of service of the summons, and no later than fourteen days before the day the records are to be examined. [ 2 6 U.S.C. 7 6 0 9 (a)(l)(B)] The consumer then has fourteen days from the day of the notice in which to stay compliance with the summons. [ 2 6 U.S.C. 7 6 0 9 (b)] Financial Privacy--in the case of access by administrative subpoena or summons, judicial subpoena, or formal written request, the customer has ten days from the date of service of process or fourteen days from the date of mailing of the formal notice, to file a motion in the appropriate court to challenge the disclosure of the information. The court must finish proceedings on the motion within seven days of the Government's response to the challenge. If the court grants the Government access, and the Government initiates a legal proceeding against the customer, any appeal from the challenge rejection must fall within the period of tine allowed for appeals from final orders in that legal proceeding. access is granted but no proceeding is initiated, the If Government must so notify the customer who then has thirtydays in which to appeal the court action. [P.L. 95-630, Nov. 10, 1978, sec. 11101 In certain cases, a delay of notice is allowed by application to an appropriate court. This delay is not to exceed ninety days, but extensions may be approved by the court. (11) [P.L. 95-630, Nov. 10, 1978, sec. 11091 Costs FOIA--each agency is ordered to specify a uniform schedule of fees. The fees are to be limited to reasonable standard charges for document search and duplication and to provide for recovery of only the direct costs of such search and duplication. Documents are to be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest. [5 U.S.C. 552a (£11 Fair Credit--no charge to the consumer for the report if he or she requests disclosure within thirty days after receipt of a notification from the reporting agency or notification from a debt collection agency affiliated with the agency stating that his or her credit rating may be or has been adversely affected. Otherwise, the agency may impose a reasonable charge for the disclosure. [15 U.S.C. 1681jI FERPA--no provision Pupils' Rights--no provision Privacy Act--an agency may charge fees for making copies of an individual's record, excluding the cost of any search for, and review of, the records. 15 U.S.C. 552a (f) I Tax Reform--Confidentiality section: a reasonable fee may be prescribed for furnishing returns or return information, [26 U.S.C. 6103 (p)(2)] Summons section: The IRS is to promulgate regulations establishing the conditions under which costs will be reimbursed to persons summoned to appear. [26 U.S.C. Financial Privacy--with certain exceptions, the Government authority seeking access shall pay the financial institution a reimbursement fee for such costs as are reasonably necessary and which have been directly incurred in searching for and reproducing the records. The Board of Directors of the Federal Reserve System shall establish the rates and conditions under which such payment is made. sec. 11151 [P.L. 95-630, Nov. 10, 1978, 76101 (12) J u d i c i a l Review FOIA-- a c o m p l a i n a n t may r e q u e s t a n a p p r o p r i a t e d i s t r i c t c o u r t o f t h e United S t a t e s t o e n j o i n a n a g e n c y from w i t h h o l d i n g r e c o r d s and t o o r d e r t h e i r p r o d u c t i o n . I n such a c a s e , t h e c o u r t s h a l l d e t e r m i n e t h e m a t t e r de novoi*, and may examine t h e t h e c o n t e n t s o f such -agency r e c o r d s i n camera** t o d e t e r m i n e w h e t h e r t h e agency p r o p e r l y w i t h h e l d such r e c o r d s u n d e r a n y o f t h e exemptions l i s t e d i n t h e A c t . The b u r d e n i s on t h e agency t o j u s t i f y i t s a c t i o n . The agency i s r e q u i r e d t o answer t h e c o m p l a i n t w i t h i n t h i r t y - d a y s of s e r v i c e o f t h e c o m p l a i n t u n l e s s t h e c o u r t d i r e c t s otherwise. P r o c e e d i n g s and a p p e a l s t a k e p r e c e d e n c e on t h e d o c k e t o v e r a l l c a s e s and must b e a s s i g n e d f o r . h e a r i n g s and t r i a l o r f o r argument a t t h e e a r l i e s t practicable date. The c o u r t may a s s e s s a g a i n s t t h e United S t a t e s r e a s o n a b l e a t t o r n e y f e e s and o t h e r l i t i gation costs. I f t h e c o u r t f i n d s f o r t h e complainant and i s s u e s a w r i t t e n f i n d i n g t h a t t h e c i r c u m s t a n c e s surrounding t h e withholding r a i s e q u e s t i o n s a s t o * d e novo means t h e c o u r t s w i l l t a k e a new and i n d p e n d e n t l o o k a t t h e facts. **in camera means t h e judge w i l l r e v i e w t h e r e c o r d s i n p r i v a t e chambers and n o t i n open c o u r t . whether agency personnel acted arbitrarily or capriciously, the Civil Service Commission* must promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer who was primarily responsible for the withholding. The Commission must submit its finding and recommendations to the administrative authority of the agency concerned which shall then take the corrective action that the Commission recommends. In the event of noncompliance with the order of the court, the district court may punish the responsible employee for contempt. [5 U.S.C. 522(a) I air Credit--a consumer may bring action in any appropriate district court of the United States to enforce liability under the Act. Actual damages may be obtained as well as reasonable attorney fees as determined by the court. [15 U.S.C. * 1681 n, p] As of January 1, 1979, the Civil Service Commission will be replaced by an Office of Personnel Management, the Merit Systems Protection Board, and the Federal Labor Relations Authority. Civil Service Commission General Counsel expects that disciplinary proceedings against Federal employees outlined in the Freedom of Information Act, the Privacy Act, and the Right to Financial Privacy Act would be prosecuted by the Office of Special Counsel before the Merit Systems Protection Board. The Board will have the power to adjudicate these allegations of prohibited personnel practices, and to order disciplinary action. FERPA--no specific provision for resort to the courts. How- ever, access would be available after exhaustion of administrative remedies. [20 U.S.C. 1232g (g)] Pupils' Rights--no specific provision for resort to the courts. Privacy Act--an individual may bring a civil action against the agency in appropriate district court. In a suit in which the agency has refused to amend the individual's record in accordance with his or her request, the court may order the agency to do so and the court shall determine the matter -de novo. The court may assess against the United States reasonable attorney fees and other litigation costs when the complainant has substantially prevailed. In a suit to enjoin the agency from withholding records, the court shall determine the matter -de novo and may examine the contents of the agency records in camera to determine whether the records may be withheld under any of the exemptions of the Act. If the court determines that the agency acted willfully, the United States shall be liable for actual damages to the individual with a minimum recovery of $1,000, and the costs of the action together with reasonable attorney fees. An agency officer or employee who knowingly or willfully maintains or discloses records prohibited under this Act s h a l l be g u i l t y o f a misdemeanor and f i n e d n o t [ 5 U.S.C. more t h a n $5,000. Tax K e f o r m - - C o n f i d e n t i a l i t y 552a ( g ) ( h ) ( i ) ] s e c t i o n : t h e Act a l l o w s a n i n d i v i d u a l t o b r i n g a c i v i l a c t i o n a g a i n s t any p e r s o n who d i s c l o s e s t a x r e t u r n s o r r e t u r n i n f o r m a t i o n i n v i o l a t i o n of t h e Act. The a p p r o p r i a t e d i s t r i c t c o u r t may a s s e s s a c t u a l damages, c o s t s o f t h e a c t i o n , a n d , i n t h e c a s e o f a w i l l f u l d i s c l o s u r e , p u n i t i v e damages. Summons s e c t i o n : t h e a p p r o p r i a t e d i s t r i c t c o u r t h a s j u r i s d i c t i o n over proceedings brought f o r t h e enforcement o f any summons, and i s d i r e c t e d by t h e l e g i s l a t i o n t o g i v e such proceedings p r e f e r e n c e on t h e docket. U.S.C. 7609 ( h ) ( 2 ) ] [26 P r o c e e d i n g s on "John Doe" and emergency s i t u a t i o n summons a r e t o b e -e x p a r t e , w i t h no n o t i c e t o , o r p a r t i c i p a t i o n by t h e p e r s o n summoned. U.S.C. [26 7609 ( h ) ( l ) ] Summons s e c t i o n : t h e a p p r o p r i a t e d i s t r i c t c o u r t h a s j u r i s d i c t i o n , and p r o c e e d i n g s u n d e r t h i s Act have p r e c e d e n c e on t h e c o u r t d o c k e t . F i n a n c i a l Privacy--the customer h a s a r i g h t t o c h a l l e n g e t h e i n i t i a l d i s c l o s u r e , and l a t e r t r a n s f e r o f f i n a n c i a l r e c o r d s s u b j e c t t o t h i s Act. That r i g h t i s e n f o r c e a b l e i n any a p p r o p r i a t e United S t a t e s d i s t r i c t c o u r t w i t h o u t r e g a r d t o t h e amount i n c o n t r o v e r s y w i t h i n t h r e e y e a r s from the date on which the violation occurs or the date of discovery of the violation. [P.L. 95-630, iiov. 10, 1978, sec. 11161 The court has several functions in an action to enforce this provision. It reviews the customer's standing to challenge the disclosure, and requires the Government to respond to the challenge with a sworn response. This response may be considered by the court in an in camera review if the Government specifies the reasons. The court may then proceed with a full hearing to decide whether access will be required. If the access is granted, the individual may appeal the action. [P.L. 95-630, Nov. 10, 1978, sec. 11101 The court is the forum to which the Government applies if a delay of notice is deemed appropriate; if a delay is granted, the court preserves all the records pertaining to the request. [sec. 11091 In the case of emergency access, the Government authority must file with the court a sworn statement of a supervisory official of the agency setting forth the reasons for the special procedure. [sec. 11141 In cases of violation, the court may assess against the Government authority and/or the financial institution actual damages and punitive damages if the court finds the violation to be willful or intentional. [sec. 11171 In any successful action, the court may award reasonable costs which include attorney's fees. Nov. 10, 1978, sec. 1117 and 11181 [P.L. 95-630, CRS-35 F r e e d o m of I n f o r m a t i o n A c t -- $ 552. Public information: agency rules. opinions. orders, records, and proceedings ( a ) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; ( B ) statements of the general course and method by which its functions are channeled and determined. including the nature and requirements of all formal and informal procedures available; ( C ) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D)substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and ( E ) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. ( 2 ) Each agency, in accordance with published rules, shall make available for public inspection and copying(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; ( B ) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and 5 U.S.C. 552 (C) administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case t h e agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if( i ) it has been indexed and either made available or published as provided by this paragraph; or ( i i ) the party has actual and timely notice of the terms thereof. ( 3 ) Except with respect to the records made available under paragraphs (1) and ( 2 ) of this subsection, each agency, upon any request for records which ( A ) reasonably describes such records and (B)is made in accordance with published rules stating the time, place, fees (if any ), and procedures to be followed, shall make the records promptly available to any person. (4)(A) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Documents shall be furnished without charge or a t a reduced charge where the agency determines that waiver or reduction of the fee is in t h e public interest because furnishing the information can be considered as primarily benefiting the general public. (B) On complaint, the district court of t h e United States in the district in which t h e complainant resides, or has his principal place of business, or in which the agency records are situated, or in t h e District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order t h e production of any agency records improperly withheld from the complainant. In such a case t h e court shall determine the matter de novo, and may exam- 552 TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES ine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection ( b ) of this section, and the burden is on the agency to sustain its action. (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown. ( D ) Except as to cases the court considers of greater importance, proceedings before the district court, as authorized by this subsection, and appeals therefrom. take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way. ( E ) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (F)Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Civil Service Commission shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Commission, after investigation and consideration of the evidence submitted, shall submit i t s findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Commission recommends. (GI In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. ( 5 ) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. (6)(A)Each agency, upon any request for records made under paragraph (1). (2), or (3) of this subsection. shall( i ) determine within ten days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on Page 310 appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph ( 4 ) of this subsection. (B)In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause ( i i ) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. As used in this subparagraph, "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular request( i ) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; ( i i ) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (iii) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. (C) Any person making a request to any agency for records under paragraph (11, (2). or ( 3 ) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request. ( b ) This section does not apply to matters that are( l ) ( A ) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; ( 2 ) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B)establishes particular criteria for withholding or refers to particular types of matters to be withheld; CRS-37 Page 311 TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, ( C ) constitute an unwarranted invasion of personal privacy, (Dl disclose the identity of a confidential source and, in t h e case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by t h e confidential source, (E)disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; (8) contained in or related to examination. operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. (c) This section does not authorize withholding of information or limit the availability of records to t h e public, except as specifically stated in this section. This section is not authority to withold information from Congress. ( d ) On or before March 1 of each calendar Year, each agency shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. T h e report shall include(1) the number of determinations made by such agency not to comply with requests for records made to such agency under subsection ( a ) and the reasons for each such determination; (2) the number of appeals made by persons under subsection ta)(6),t h e result of such apPeals, and the reason for t h e action upon each appeal t h a t results in a denial of information; (3) t h e names and titles or positions of each Person responsible for the denial of records requested under this section, and the number of instances of participation for each; ( 4 ) t h e results of each proceeding conducted pursuant to subsection ta)(4)(F),including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken; 552 (5) a copy of every rule made by such agency regarding this section; ( 6 ) a copy of t h e fee schedule and t h e total amount of fees collected by t h e agency for making records available under this section; and (7) such other information as indicates efforts to administer fully this section. The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for t h e prior calendar year a listing of the number of cases arising under this section, t h e exemption involved in each case, t h e disposition of such case, and t h e cost, fees, and penalties assessed under subsections ta)(4)(E),( F ) , and (G). Such report shall also include a description of the efforts undertaken by t h e Department of Justice to encourage agency compliance with this section. ( e ) For purposes of this section, t h e term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation. Government controlled corporation, or other establishment in t h e executive branch of t h e Government (including t h e Executive Office of t h e President), or any independent regulatory agency. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90-23, $ 1, June 5, 1967, 81 Stat. 54; Pub. L. 93-502, $5 1-3, Nov. 21, 1974, 88 Stat. 1561-1564; Pub. L. 94-409, $ 5 ( b ) , Sept. 13, 1976, 90 Stat. 1247.) HISTORICAL AND REVISION NOTES Derivation US. Code .................. 5 U.S.C. 1002 Revised Statutes and Statutes a t Large June 11, 1946, ch. 324. 5 3, 60 Stat. 238. In subsection (b)(3),the words "formulated and" are omitted as surplusage. In the last sentence of subsection ( b ) , the words "in any manner" are omitted as surplusage since the prohibition is all inclusive. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. Section 552 of former: Title 5. Executive Departments and Government Officers and Employees. was transferred to section 2243 of Title 7. Agriculture. 1976-Subsec. (b)(3).Pub. L. 94-409 added provision excluding section 552b of this title from applicability of exemption from disclosure and provision setting forth conditions for statute specifically exempting disclosure. 1974-Subsec. ta)(2). Pub. L. 93-502. 5 lta). substituted provisions relating to maintenance and availability of current indexes, for provisions relating to maintenance and availability of a current index, and added provisions relating to publication and distribution of copies of indexes or supplements thereto. Subsec. taX3). Pub. L. 93-502. § l ( b ) ( l ) . substituted provisions requiring requests to reasonably describe records for provisions requiring requests, for identifiable records, and struck out provisions setting forth procedures to enjoin agencies from withholding t h e requested records and ordering their production. Subsec. ta)(4).Pub. L. 93-502, 5 l(b)(2),added subsec. ta)(4). Former subsec. taN4) redesignated (a)(5). Subsec. t a)(5). Pub. L. 93-502. $ l ( b ) ( 2 ) ,redesignated former subsec. tax41 as taX5). § 552a T I T L E 5-GOVERNMENT ORGANIZATION AND EMPLOYEES Page 312 Subsec. taX6). Pub. L. 93-502. g l t c ) , added subsec. Subsec. t a ) ( 4 ) .Pub. L. 90-23 added subsec. taK4). (aN6). Subsec. ( b ) .Pub. L. 90-23 added subsec. ( b )which suSubsec. ( b ) ( l ) .Pub. L. 93-502. $ 2 t a ) ,designated ex- perseded provisions excepting from disclosure any isting provisions as cl. ( A ) ,and, as so designated, sub- function o f t h e United States requiring secrecy in the stituted "authorized under criteria established by an" public interest or any matter relating to internal manfor "required by", and added cl. ( B ) . agement o f an agency. formerly contained in former L. 93-502. $ 2 ( b ) ,substituted pro- subsec. ( a ) ,final opinions or orders required for good Subsec. ( b ) ( 7 )Pub. . visions relating t o exemption for investigatory records cause to be held confidential and not cited as prececompiled for law enforcement purposes, for provisions dents, formerly contained in subsec. ( c ) ,and informa. relating to exemption for investigatory files compiled tion held confidential for good cause found. contained for law enforcement purposes. in former subsec. ( d ) o f this section. Subsec. ( b ) ,foll. par. ( 9 ) .Pub. L. 93-502. g 2tc). added Subsec. tc). Pub. L. 90-23 added subsec. t c ) . provision relating t o availability o f segregable portion o f records. S u b s e a . ( d ) . t e ) . Pub. L. 93-502. 5 3, added subsea. Amendment by Pub. L. 94-409 effective 180 days ( d ) and ( e ) . after Sept. 13, 1976, see section 6 o f Pub. L. 94-409, set 1967-Subsec. ( a ) . Pub. L. 90-23 substituted t h e in- out as a note under section 552b o f this title. troductory statement requiring every agency t o make available t o t h e public certain information for former introductory provision excepting from disclosure ( 1 ) Section 4 o f Pub. L. 93-502 provided that: " T h e any function o f t h e United States requiring secrecy in t h e public interest or ( 2 )any matter relating t o inter- amendments made by this Act [amending this sectionl nal management o f an agency. now covered in subsec. shall take e f f e c t on t h e ninetieth day beginning after t h e date o f enactment o f this Act [Nov. 21. 19741." ( b )( 1 )and ( 2 )o f this section. Subsec. ( a ) (1). Pub. L. 90-23 incorporated provisions o f : former subsec. ( b ) c l )in ( A ) , inserting requirement Section 4 o f Pub. L. 90-23 provided that: " T h i s Act o f publication o f names o f officers as sources o f information and provision for public t o obtain decisions. [amending this sectionl shall be effective July 4. 1967. and deleting publication requirement for delegations or on t h e date o f enactment [June 5, 19671, whichever by t h e agency o f final authority; former subsec. (bM2). is later." introductory part. in ( B ) ; former subsec. ( b ) ( 2 ) ,concluding part, in ( C ) . inserting publication requirement for rules o f procedure and descriptions o f forms availFederal Register Act. see section 1502 et seq. o f Title able or t h e places at which forms may be obtained; 44. Public Printing and Documents. former subsec. ( b ) ( 3 ) introductory , part. in (DLinsertSection applicable t o functions exercised under Ining requirement o f general applicability o f substantive ternational W h e a t Agreement Act o f 1949, see section rules and interpretations, added clause ( E ) . substitut- 1642 o f Title 7. Agriculture. ed exemption o f any person from failure t o resort t o any matter or from being adversely affected by any matter required t o be published in t h e Federal RegisT h i s section is referred t o in sections 551. 552a. 552b ter but not so published for former subsec. ( b ) ( 3 )con, o f this title; title 2 sections 472. 501. 502; title 7 section cluding part, excepting from publication rules ad- 1642: title 15 sections 18a. 78m. 78w. 78x. 78ggg, 719d. dressed to and served upon named persons in accor- 766. 773. 796. 1314, 1418. 2055. 2217. 2613; title 16 secdance with laws and final sentence reading " A person tions 1100b-5, 1402; title 19 section 160: title 21 secmay not be required t o resort t o organization or proce- tions 360d. 3603, 379; title 26 section 6110: title 31 secdure not so published" and added provision deeming tion 1052: title 33 section 1513; title 39 section 410; matter, which is reasonably available, as published in title 42 sections 29964, 3527, 4332, 5916, 6272-6274, t h e Federal Register when such matter is incorporated 6346; title 45 section 546; title 46 section 1463; title 49 by reference in t h e Federal Register with the approval sections 1357, 1805, 1806, 1905; title 50 App. sections o f its Director. 463. 2158a. Subsec. t a ) ( 2 ) .Pub. L. 90-23 incorporated provisions o f former subsec. t c ) , provided for public copying o f records, eliminated requirement o f agency publication o f final opinions or orders and authority for secrecy and withholding o f opinions and orders required for good cause t o be held confidential and not cited as precedents, latter provision now superseded by subsec. ( b ) o f this section, designated existing subsec. t c ) as clause (A).including therein provision for availability o f concurring and dissenting opinions. added provisions for availability o f policy statements and interpretations in clause (B)and s t a f f manuals and instructions in clause ( C ) , deletion o f personal identifications from records t o protect personal privacy with written justification therefor, and provision for indexing and prohibition o f use o f records not indexed against any private party without actual and timely notice o f t h e terms thereof. Subsec. taK3). Pub. L. 90-23 incorporated provisions o f former subsec. ( d ) and substituted provisions requiring identifiable agency records to be made available t o any person upon request and compliance with rules as t o time, place, and procedure for inspection, and payment o f fees and provisions for federal district court proceedings de novo for enforcement by contempt o f noncompliance with court's orders with t h e burden o n t h e agency and docket precedence for such proceedings for former provisions requiring matters o f official record t o be made available to persons properly and directly concerned except information held confidential for good cause shown, t h e latter provision now superseded b y subsec. ( b )o f this section. CRS-39 Fair Credit Reporting Act SUBCHAPTER 111-CREDIT REPORTING AGENCIES $ 1681. Congressional findings and statement of purpose (a) The Congress makes the following findings: (1) The banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system. ( 2 ) An elaborate mechanism has been developed for investigating and evaluating the credit worthiness, credit standing, credit capacity, character, and general reputation of consumers. (3) Consumer reporting agencies have assumed a vital role in assembling and evaluating consumer credit and other information on consumers. ( 4 ) There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy. (b) I t is the purpose of this subchapter to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter. (Pub. L. 90-321, title VI, $ 602, as added Pub. L. 91-508, title VI, 8 601, Oct. 26, 1970, 84 Stat. 1128.) Section 504(d) of Pub. L. 90-321, as added by Pub. L. 91-508, title VI. g 602, Oct. 26, 1970, 84 Stat. 1136, provided that: "Title VI [enacting this subchapterl takes effect upon the expiration of one hundred and elghty days following the date of its enactment [Oct. 26. 19701." This subchapter known as the "Fair Credit Reporting Act", see Short Title note set out under section 1601 of this title. 81681a. Definitions; rules of construction (a) Definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter. -- 15 U.S.C. 1681 (b) The term "person" m e w any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity. (c) The term "consumer" means an individual. (dl The term "consumer report" means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (1) credit or insurance to be used primarily for personal, family, or household purposes, or ( 2 ) employment Purposes, or (3) other purposes authorized under section 1681b of this title. The term does not include (A) any report containing information solely as to transactions or experiences between the consumer and the person making the report; (B)any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or (C) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys his decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under section 1681m of this title. (el The term "investigative consumer report" means a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information. However, such information shall not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when such information was obtained directly from a creditor of the consumer or from the consumer. ( f ) The term "consumer reporting agency" means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. (g) The term "file", when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored. ( h ) The term "employment purposes" when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion. reassignment or retention as an employee. 9 1681b TITLE 15-COMMERCE AND TRADE (i) The term "medical information" means information or records obtained, with the consent of the individual to whom it relates, from licensed physicians or medical practitioners, hospitals, clinics, or other medical or medically related facilities. (Pub. L. 90-321, title VI, 6 603, as added Pub. L. 91-508, title VI, 6 601, Oct. 26, 1970, 84 Stat. 1128.) This section is referred to in title 26 section 7609. 5 1681b. Permissible purposes of consumer reporte A consumer reporting agency may furnish a consumer report under the following circumstances and no other: (1) In response to the order of a court having jurisdiction to issue such an order. (2) In accordance with the written instructions of the consumer to whom it relates. (3) To a person which it has reason to believe(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or (B)intends to use the information for employment purposes; or (C) intends to use the information in connection with the underwriting of insurance involving the consumer; or (D)intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or (E) otherwise has a legitimate business need for t h e information in connection with a business transaction involving the consumer. (Pub. L. 90-321, title VI, 6 604, as added Pub. L. 91-508, title VI, 6601, Oct. 26, 1970, 84 Stat. 1129.) This section is referred to in sections 1681a, 1681e, 1681f of this title. 5 1681c. Reporting of obsolete information prohibited ( a ) Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information: (1) Bankruptcies which, from date of adjudication of the most recent bankruptcy, antedate the report by more than fourteen years. (2) Suits and judgments which, from date of entry, antedate the report by more than seven years or until the governing statute of limitstions has expired, whichever is the longer period. (3) Paid tax liens which, from date of payment, antedate the report by more than seven years. (4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. Page 1424 ( 5 ) Records of arrest, indictment, or conviction of crime which, from date of disposition, release, or parole, antedate the report by more than seven years. (6) Any other adverse item of information which antedates the report by more than seven years. ( b ) The provisions of subsection ( a ) of this section are not applicable in the case of any consumer credit report to be used in connection with(1) a credit transaction involving, or which may reasonably be expected to involve, a principal amount of $50,000 or more; (2) the underwriting of life insurance involving, or which may reasonably be expected to involve, a face amount of $50,000 or more; or (3) the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $20,000, or more. (Pub. L. 90-321, title VI, 9 605, as added Pub. L. 91-508, title VI, $601, Oct. 26, 1970, 84 Stat. 1129.) This section is referred to in section 1681e of this title. $ 1681d. Disclosure of investigative consumer reports ( a ) Disclosure of fact of preparation A person may not procure or cause to be pre- pared an investigative consumer report on any consumer unless(1) it is clearly and accurately disclosed to the consumer that an investigative consumer report including information as to his character, general reputation, personal characteristics, and mode of living, whichever are applicable, may be made, and such disclosure (A) is made in a writing mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested, and (B)includes a statement informing the consumer of his right to request the additional disclosures provided for under subsection (b) of this section; or (2) the report is to be used for employment purposes for which the consumer has not specif ically applied. (b) Disclosure on request of nature and scope of investigation Any person who procures or causes to be prepared an investigative consumer report on any consumer shall, upon written request made by the consumer within a reasonable period of time after the receipt by him of the disclosure required by subsection ( a ) ( l ) of this section, shall1 make a complete and accurate disclosure of the nature and scope of the investigation requested. This disclosure shall be made in a writing mailed, or otherwise delivered, to the consumer not later than five days after the date on which the request for such disclosure was received from the consumer or such report was first requested, whichever is the later. SOIn original. Probably should be omitted. TITLE 15-COMMERCE AND TRADE Page 1425 (c) Limitation on liability upon showing of reasonable procedures for compliance with provisions No person may be held liable for any violation of subsection (a) or (b) of this section if he shows by a preponderance of the evidence that a t the time of the violation he maintained reasonable procedures to assure compliance with subsection ( a ) or ( b ) of this section. (Pub. L. 90-321, title VI, 8 606, as added Pub. L. 91-508, title VI, 8 601, Oct. 26, 1970, 84 Stat. 1130.) 8168le. Compliance procedures ( a ) Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of section 1681c of this title and to limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. These procedures shall require that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose. Every consumer reporting agency shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report. No consumer reporting agency may furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 1681b of this title. (b) Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. (Pub. L. 90-321, title VI, 6 607, as added Pub. L. 91-508, title VI, 6 601, Oct, 26, 1970, 84 Stat. 1130.) 8 lMlh dures in the court in which the action is brought. (3) The recipients of any consumer report on the consumer which it has furnished(A) for employment purposes within the two-year period preceding the request, and (B)for any other purpose within the sixmonth period preceding the request. (b) The requirements of subsection ( a ) of this section respecting the disclosure of sources of information and the recipients of consumer reports do not apply to information received or consumer reports furnished prior to the effective date of this subchapter except to the extent that the matter involved is contained in the files of the consumer reporting agency on that date. (Pub. L. 90-321, title VI, g 609, as added Pub. L. 91-508, title VI, 8 601, Oct. 26, 1970, 84 Stat. 1131.) For the effective date of this subchapter, referred to in subsec. (b). see section 504(d) of Pub. L. 90-321. set out 6s an Effective Date note under section 1681 of this title. This section is referred to in sections 1681h, l68lj of this title. 8 1681h. Conditions of discloeure to consumers (a) Times and notice A consumer reporting agency shall make the disclosures required under section 1681g of this title during normal business hours and on reasonable notice. (b) Identification of conrumer The disclosures required under section 16810 of this title shall be made to the consumer(1) in person if he appear8 in person and furnishes proper identification; or (2) by telephone if he has made a written 9 16811. Dirclorurer to povernmental agencler request, with proper identification, for tele. Notwithstanding the provisions of section phone disclosure and the toll charge, if any, 1681b of this title, a consumer reporting agency for the telephone call ia prepaid by or may furnish identifyin information respecting charged directly to the consumer. any consumer, limite to his name, address, former addresses, places of employment, or (c) Trained pemonnel Any consumer reporting agency shall provide former places of employment, to a govemmentrained personnel to explain to the consumer tal agency. , any information furnished to him pursuant to (Pub. L. 90-321, title VI, 8 608, as added Pub. L. section l68lg of this title. 91-608, title VI, 8 601, Oct. 26, 1970, 84 Stat. ( d ) Persona accompanying conrumer 1131.) The consumer shall be permitted to be ac8 168lg. Dircloeurer to conrumers companied by one other person of his choosing, (a) Every consumer reporting agency shall, who shall furnish reasonable identification. A upon request and proper identification of any consumer reporting agency may require the consumer, clearly and accurately disclose to the consumer to furnish a written statement granting permission to the consumer reporting consumer: (1) The nature and substance of all informa- agency to dhcuss the consumer's file in such tion (except medical information) in its files on person's presence. the consumer at the time of the request. (e) Limitation of liability (2) The sources of the Information; except Except as provided in sections l68ln and that the sources of information acquired solely 16810 of this title, no consumer may bring any for use in preparing an investigative consumer action or proceeding in the nature of defamareport and actually used for no other DurDose tion, invasion of privacy, or negligence with reneed not be disclosed: Provided, hat in- the spect to the reporting of information against event an action is brought under this sub- any consumer reporting agency, any user of inchapter, such sources shall be available to the formation, or any person who furnishes inforplaintiff under appropriate discovery proce- mation to a consumer reporting agency, based d 9 lWli TIaYJ3 15-COMMERCE AND TRADE on infomation discjosed pursuant to section 1681g, 1681h, or i68lm of this title, except as to false information furnished with malice or willful intent to injure such consumer. (Pub. L. 90-321, title VI, (j 610, as added Pub. L. 91-508, title VI, Q 601, Oct. 26, 1970, 84 Stat. 1131.) 1681i. Procedure in e w e of disputed accuracy :a) Dispute; reinvestigatim i f the compleieness or accuracy of any item of information contained in his file is disputed by a consumer, a d such dispute is directly conveyed to the consumer reporting agency by t h e consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information unless it has reasonable gromds to believe that the dispute by t h e consumer is frivolous or irrelevant. If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information. T h e presence of contradictory information in t h e consumer's file does not in and of itself constitute reasonable grounds for believing t h e dispute is frivolous or irrelevant. (b) Statement of dispute If the reinvestigation does not resolve t h e dispute, t h e consumer may file a brief statement setting f o r t h the nature of the dispute. T h e consumer reporting agency may limit such statements to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute. (c) Notification of consumer dispute in subsequent consumer reports Whenever a statement of a dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report contaiiiing the information in question, clearly note t h a t it is disputed by t h e consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof. (dl Notification of deletion of disputed information Following any deletion of information which is found to be inaccurate or whose accuracy can no longer be verified or any notation as to disputed information, the consumer reporting agency shall, a t the request of t h e consumer, furnish notification that t h e item has been deleted or t h e statement, codification or summary pursuant to subsection ( b ) or tc) of this section to any person specifically designated by t h e consumer who has within two years prior thereto received a c o n s u e r report for employment purposes, or within six months prior thereto received a consumer report for any other purpose, which contained the deleted or disputed information. T h e consumer reporting agency shall clearly and conspicuously disclose to t h e consumer his rights to make such a request. Such disclosure shall be made a t or prior to t h e time t h e information is deleted or the consumer's statement regarding the disputed information is received. Page 1426 (Pub. L. 90-321, title VI, Q 611, as added Pub. L. 91-508, title VI, 9 601, Oct. 26, 1970, 84 Stat. 1132.) This section is referred to in section 1681j of this title. g 1681j. Charges for dieclosures A consumer reporting agency shall make all disclosures pursuant to section 1681g of this title and furnish all consumer reports pursuant to section 1681i(d) of this title without charge to the consumer if, within thirty days after receipt by such consumer of a notification pursuant to section 1681m of this title or notification from a debt collection agency affiliated with such consumer reporting agency stating that the consumer's credit rating may be or has been adversely affected, the consumer makes a request under section 1681g or 1681i(d) of this title. Otherwise, the consumer reporting agency may impose a reasonable charge on the consumer for making disclosure to such consumer pursuant to section 1681g of this title, the charge for which shall be indicated to the consumer prior to making disclosure; and for furnishing notifications, statements, summaries, or codifications to Derson desimated bv the consumer pursuant io section 1681i(d) o i this title, t h e charge for which shall be indicated to the consumer prior to furnishing such information and shall not exceed the charge that the consumer reporting agency would impose on each designated recipient for a consumer report except t h a t no charge may be made for notifying such persons of t h e deletion of information which is found to be inaccurate or which can no longer be verified. (Pub. L. 90-321, title VI, (j 612, as added Pub. L. 91-508, title VI, 9 601, Oct. 26, 1970, 84 Stat. 1132.) 5 1681k. Public record information for employment purposes A consumer reporting agency which furnishes a consumer report for employment purposes and which for t h a t purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall(1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with t h e name and address of the person to whom such information is being reported; or ( 2 ) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of t h e item a t the time of t h e report is reported. CRS-4 3 Page 1427 T I T L E 15-COMMERCE (Pub. L. 90-321, title VI, 1 613, as added Pub. L. 91-508, title VI, 1601, Oct. 26, 1970, 84 Stat. 1133.) 1 16811. Restrictions on investigative consumer reports Whenever a consumer reporting agency prepares an investigative consumer report, no adverse information in the consumer report (other than information which is a matter of public record) may be included in a subsequent consumer report unless such adverse information has been verified in the process of making such subsequent consumer report, or the adverse information was received within the three-month period preceding the date the subsequent report is furnished. (Pub. L. 90-321, title VI, $ 614, as added Pub. L. 91-508, title VI, $601, Oct. 26, 1970, 84 Stat. AND TRADE 1 1681n. Civil liability for willful noncompliance A n y consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of ( 1 ) any actual damages sustained by the consumer as a result of the failure; ( 2 ) such amount of punitive damages as the court may allow; and ( 3 ) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court. (Pub. L. 90-321, title VI, 8616, as added Pub. L. 91-508, title VI, 1 601, Oct. 26, 1970, 84 Stat. 1134.) 1133.) 1 1681m. Requirements on users of consumer reports (a) Adverse action based on reports of consumer reporting agencies This section is referred to In sectfon l68lh of this title. Whenever credit or insurance for personal, family, or household purposes, or employment involving a consumer is denied or the charge for such credit or insurance is increased either wholly or partly because of information contained in a consumer report from a consumer reporting agency, the user of the consumer report shall so advise the consumer against whom such adverse action has been taken and supply the name and address of the consumer reporting agency making the report. Any consumer reporting agency or user of information which is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of( 1 ) any actual damages sustained by the consumer as a result of the failure; ( 2 ) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court. (Pub. L. 90-321, title VI, 8 617, as added Pub. L. 91-508, title VI, 8 601, Oct. 26, 1970, 84 Stat. (b) Adverse action based on reports of persons other than consumer reporting agencies Whenever credit for personal, family, or household purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency bearing upon the consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. the user of such information shall, within a reasonable period of time, upon the consumer's written request for the reasons for such adverse action received within sixty days after learning of such adverse action, disclose the nature of the information to the consumer. The user of such information shall clearly and accurately disclose to the consumer his right to make such written request at the time such adverse action is communicated to the consumer. (c) Reasonable procedures to assure compliance No person shall be held liable for any violation of this section if he shows by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions Of subsections (a) and (b) of this section. (Pub. L. 90-321, title VI, $615, as added Pub. L. 91-508, title VI, $ 601, Oct. 26, 1970, 84 Stat. $ 16810. Civil liability for negligent noncompliance 1134.) This section is referred to In section l68lh of this title. $1681~.Jurisdiction of courts, limitation of actions An action to enforce any liability created under this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises. except that where a defendant has materially and willfully misrepresented any information required under this subchapter to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this subchapter, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. (Pub. L. 90-321. title VI. $ 618, as added Pub. L. 91-508, title VI, $601, Oct. 26, 1970. 84 Stat. 1134.) 1133.) $ 1681q. Obtaining information under false pretenses REFERRED TO IN OTHERSECTIONS This section is referred to In sections 1681a. 168lh. 1681j of this title. Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses SECTION 8 1681a TITLE 15-COMMERCE AND TRADE shall be fined not more than $5,000 or imprisoned not more than onc year, or both. (Pub. L. 90-321, title VI, $ 619, as added Pub. L. 91-508, title VI, $501, Oct. 26, 1970, 84 Stat. 1134.) 9 1681r. Unauthorized discloaures by officers or employ* Any officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be fined not more than $5.003 or imprisoned not more than one year, or both. (Pub. L. 90-321, title VI, g 620, as added Pub. L. 91-508, title VI, 9 601, Oct. 26, 1970, 84 Stat. 1134.) 3 1681s. Administrative enforcement (a) Fedem1 Trade Commission; powers Compliance with t h e requirements imposed under this subchapter shall be enforced under t h e Federal Trade Commission Act [15 U.S.C. 41 et seq.1 by t h e Federal Trade Commission with respect to consumer reporting agencies and all other persons subject thereto, except to t h e extent t h a t enforcement of the requirements imposed under this subchapter is specifically committed to some other government agency under subsection ( b ) hereof. For t h e purpose of t h e exercise by the Federal Trade Commission of its functions and powers under t h e Federal Trade Commission Act, a violation of any requirement or prohibition imposed under this subchapter shall constitute an unfair or deceptive act or practice in commerce in violation of section 5ca) of t h e Federal Trade Commission Act 115 U.S.C. 45(a)l and shall be subject to enforcement by t h e Federal Trade Commission under section 5(b) thereof C15 U.S.C. 45(b)l with respect to any consumer reporting agency or person subject to enforcement by the Federal Trade Commission pursuant to this subsection, irrespective of whether t h a t person is engaged in commerce or meets any other jurisdictional tests in t h e Federal Trade Commission Act. T h e Federal Trade Commission shall have such procedural, investigative, and enforcement powers, including t h e power to issue procedural rules in enforcing compliance with t h e requirements imposed under this subchapter and to require t h e filing of reports, t h e production of documents, and t h e appearance of witnesses as though t h e applicable terms and conditions of the Federal Trade Commission Act were part of this subchapter. Any person violating any of t h e provisions of this subchapter shall be subject to t h e penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though t h e applicable terms and provisions thereof were part of this subchapter. (b) Other administrative bodiea Compliance with the requirements imposed under this subchapter with respect to consumer reporting agencies and persons who use consumer reports from such agencies shall be enforced under- Page 1428 (1) section 8 of t h e Federal Deposit Insurance Act 112 U.S.C. 18181, in the case of: (A) national banks, by the Comptroller of the Currency: (B)member banks of the Federal Reserve System (other than national banks), by the Federal Reserve Board; and (C) banks insured by the Federal Deposit Insurance Corporation (other than members of t h e Federal Reserve System), by the Board of Directprs of the Federal Deposit Insurance Corporation. (2) section 5(d) of the Home Owners Loan Act of 1933 112 U.S.C. 1464(d)1. section 407 of the National Housing Act 112 U.S.C. 17301, and sections 6(i) and 17 of the Federal Home Loan Bank Act C12 U.S.C. 1426(i) and 14371, by the Federal Home Loan Bank Board (acting directly or through the Federal Savings and Loan Insurance Corporation), in the case of any institution subject to any of those provisions; ( 3 ) the Federal Credit Union Act 112 U.S.C. 1751 et seq.1, by the Administrator of the National Credit Union Administration with respect to any Federal credit union; (4) the Acts to regulate commerce, by the Interstate Commerce Commission with respect to any common carrier subject to those Acts; (5) t h e Federal ~ v i ' a t i o nAct of 1958 C49 U.S.C. 1301 et seq.1, by the Civil Aeronautics Board with respect to any air carrier or foreign air carrier subject to that Act; and (6) the Packers and Stockyards Act, 1921 C7 U.S.C. 181 et seq.1 (except as provided in section 406 of t h a t Act [7 U.S.C. 226, 2271), by t h e Secretary of Agriculture with respect to any activities subject to that Act. ( c ) Enforcement under other authority For the purpose of t h e exercise by any agency referred to in subsection ( b ) of this section of its powers under any Act referred to in t h a t subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under t h a t Act. In addition to its powers under any provision of law specifically referred to in subsection ( b ) of this section, each of the agencies referred to in that subsection may exercise, for t h e purpose of enforcing compliance with any requirement imposed under this subchapter any other authority conferred on it by law. (Pub. L. 90-321, title VI, $ 621, as added Pub. L. 91-508, title VI, $601, Oct. 26, 1970, 84 Stat. 1134.) The Federal Trade Commission Act, referred to in subsec. (a), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I ( $ 4 1 et seq.) of chapter 2 of this title. For complete classification of this Act to the Code, see section 58 of this title and Tables volume. The Federal Credit Union Act, referred to in subsec. (b)(3), is act June 26. 1934. ch. 750. 48 Stat. 1216. which is classified generally to chapter 14 (9 1751 et seq.) of Title 12. Banks and Banking. For complete classification of this Act to the Code, see section 1751 of Title 12 and Tables volume. The Acts to regulate commerce. referred to in subsec. (b)(4),are known as the Interstate Cornmeme CRS-45 Page 1429 TITLE 15-COMMERCE AND TRADE Act tact Feb. 4, 1887. ch. 104. 24 Stat. 379. as amended), which is classified generally to chapters 1 (§ 1 et seq.), 8 ( 5 3 0 1 et seq.), 12 ( $ 9 0 1 et sea), 13 (5 1001 et seq.), and 19 (5 1231 et seq.) of Title 49. Transportation. For complete classification of this Act to the Code, see note captioned Interstate Commerce Act set out under section 27 of Title 49 and Tables volume. The Federal Aviation Act of 1958, referred to in subsec. (b)(5), is Pub. L. 85-726, Aug. 23, 1958, 72 Stat. 737, which is classified generally to chapter 20 ( 8 1301 et seq.) of Title 49, Transportation. For complete classification of this Act to the Code, see Short Title note set out under section 1301 of Title 49 and Tables volume. The Packers and Stockyards Act, 1921, referred to in subsec. ( b X 6 ) . is act Aug. 15, 1921. ch. 64. 42 Stat. 159, which is classified to chapter 9 ( 8 181 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 181 of Title 7 and Tables volume. 9 1681t. Relation to State laws This subchapter does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, except to t h e extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. (Pub. L. 90-321, title VI, 8 622, as added Pub. L. 91-508, title VI, § 601, Oct. 26, 1970, 84 Stat. 1136.) SUBCHAF'T'ER IV-EQUAL CREDIT OPPORTUNITY 1691. Scope of prohibition (a)Activities constituting discrimination I t shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract); (2) because all or part of the applicant's income derives from any public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter. (b) Activities not constituting discrimination I t shall not constitute discrimination for purposes of this subchapter for a creditor(1) to make an inquiry of marital status if such inquiry is for t h e purpose of ascertaining the creditor's rights and remedies applicable to the particular extension of credit and not to discriminate in a determination of credit-worthiness; (2) to make an inquiry of the applicant's age or of whether the applicant's income derives from any public assistance program if such inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness as provided in regulations of the Board; (3) to use any empirically derived credit system which considers age if such system is demonstrably and statistically sound in accordance with regulations of the Board, except § that in the operation of such system t h e age of an elderly applicant may not be assigned a negative factor or value; or (4) to make an inquiry or t o consider t h e age of an elderly applicant when t h e age of such applicant is to be used by t h e creditor in the extension of credit in favor of such applicant. ( c ) Additional activities not constituting discrimination I t is not a violation of this section for a creditor to refuse to extend credit offered pursuant to(1) any credit assistance program expressly authorized by law for an economically disadvantaged class of persons; (2) any credit assistance program adrninistered by a nonprofit organization for its members or an economically disadvantaged class of persons; or (3) any special purpose credit program offered by a profit-making organization to meet special social needs which meets standards prescribed in regulations by t h e Board; if such refusal is required by or made pursuant to such program. ( d ) Reason for adverse action; procedure applicable; definition (1) Within thirty days (or such longer reasonable time as specified in regulations of t h e Board for any class of credit transaction) after receipt of a completed application for credit, a creditor shall notify the applicant of its action on the application. (2) Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by(A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; or (B)giving written notification of adverse action which discloses (i) the applicant's right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of t h e person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises t h e applicant of his right to have t h e statement of reasons confirmed in writing on written request. (3) A statement of reasons meets t h e requirements of this section only if it contains t h e specific reasons for the adverse action taken. (4) Where a creditor has been requested by a third party to make a specific extension of credit directly or indirectly to a n applicant, t h e notification and statement of reasons required by this subsection may be made directly by such creditor, or indirectly through t h e third party, provided in either case t h a t t h e identity of the creditor is disclosed. (5) The requirements of paragraph (21, (3). o r ( 4 ) may be satisfied by verbal statements or notifications in the case of any creditor who did not act on more than one hundred and fifty applications during the calendar year preceding the calendar year in which the adverse action is taken, as determined under regulations of t h e Board. CRS-4I T' I '- C+~eational Rights nd P r i v a c y Act EDUCATION $j 1232g. 3;z;ii: duc~tiex,=d m.i p r i ~ m y rights-€onditions for nvailabilit~of funds to educational agencies o r institution<: inspectim and review of education records; specific information to be made arail~ b l e ; procedure f o r access to education records: retluombleness of time fur such access; hearings, written explanations by parents; definitions ( a ) ( 1 ) ( A ) h'o funds shall be made available under any app!!cable program to any educational agency or Institution which has a policy of denying, or which effectively prevents, t h e parents of students who a r e O r ~ B V Pbeen !I? a t t e n d ~ n c ea t a schw! S I J C ~ 8gPnry nr nt m r h institutlon, as the case may be, t h e right t o inspect and review the education records of their children. If any material or document in t h e education record of a student includes information on more than one student, t h e parents of one of such students shall have the right to inspect and review only such part of such material o r document as relates to such StUdent o r to be informed of t h e specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for t h e granting of a request by parents f o r access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after t h e request has been made. (B) The first sentence of subparagraph ( A ) shall not operate t o make available to students in institutions of posteecondary education t h e following materials: ( i ) financial records of t h e parents of t h e student or a n y information contained therein; (11) confidential letters and statements of recommendation, which were placed in t h e education records prior to January 1, 1 9 7 5 , if such letters or statements a r e not used f o r purposes other than those f o r which they were specifically intended; (lit) if the student h a s signed a waiver of t h e student's right of access under this subsection in accordance with subparaeraph (C), confidential recommendations( I ) respecting admission t o a n y educational agency o r institution, (XI) respecting a n application for employment, and (111) respecting t h e receipt of a n honor o r honorary recognition. ( C ) A student or T person applying f o r admission may waive his right of access to confidential statements described in clause (111) of subparagraph (B),except t h a t such waiver shall apply to recommendations only If (1) t h e student is, upon request, notified of the names of all persons making confidential recommendations and ( i t ) such recommendations a r e used solely f o r the purpose for which they were specifically intended. Such waivers may not be required as a condition for admission to, receipt of financial aid Prom, o r receipt of any other services o r benefits from such agency or institution. ( 2 ) NO f u n d s shirll be made available under any applicable program to any educational agency or institution unless the parents of students who a r e or have been in attendance a t a school of such agency o r a t such Institution a r e provided an opportunity for a hearing by such agency o r institution, in accordance with regulation^ of t h e Secretary, to challenge the content of such student's education records, in order to insure t h a t the records a r e not inaccurate, misleading, o r otherwise in violation of the privacy or other rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading, or otherwise inappropriate data contained therein and to insert into much records a written explanation of the parents respecting the content of such records. ( 3 ) For the purposes of this section the term "educational agency or Institution" means any public or private agency or institution which is the recipient of funds under any applicable program. ( 4 ) (A) For the purposes of this section, the term "education records" means, except aa may be provided otherwise in subparagraph (B),those vecords, files, documents, and other materials which(1) contain information directly related t o a atudent; and (11) m e maintained by an educational agency or h t i t u t i o n Or by a person acting for such agency or institution. (B) The term "education records" does not include(I) records of instructional, supervieory, and administrative Pereonnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not acceesible or revealed to any other person except a substitute; (ii) if the personnel of a law enforcement unit do not have 8Ccess to education records under subsection ( b ) (1) of this section, the records and documents of such law enforcement unit which (1) u e kept apart from records described in subparaflaph (A), (11) are maintained solely for law enforcement purposes, and (111) are not made available to persona other than law enforcement official6 of the -me jurisdiction ; (iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance a t such agency or institution, recorda made and maintained in the normal EoUI'se of business which relate exclusively to such person in that person's capacity aa an employee and are not available for use for rny other purpose; or (iv) records on a student who b eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in h L profeseional o r paraprofessional capacity, or assisting in that capacity, and which are inade, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persona providing such treatment, except that such recorde can be personally reviewed by a physician or other appropriate profeesional of the student's choice. ( 5 ) (A) For the purposes of this section the term "directory infonnation" relating to a s t ~ d e n includes t the following: the studcnt's name. address, telephone listing, date and place of birth, major field of etudy, participation in officially recognized activities and sports, weight and helght of m e ~ b e r aof athletic teams, dates of attendance, degree8 and awards received, and the most recent previous educational agency o r institution attended by the student. (B) Any educational agency or institution making public directory inlormation shall give public notice of the categories of information which ~t has designated as such information with respect to each student atlending the institution or agency and shall allow a reasonable period of lime after such notice haa been given for a parent to inform the instftudon or agency that any or all of the tnform~tiondesignated should not be released without the parent's prior consent. ( 6 ) For the purposes of this section, the term g'student" includes any W s o n with respect to whom an educational agency or institution maln- EDUCATION tains education records or g e ~ s o n a l l yidentifiable information, but do@ not include a peraon who hm not been in attendance a t such agency O r Institution. Releaaw af ednestloa r c m s d e i parnatal corrwnt reqalmneerrt~ fxC?eptIo~Sl c o m g l l ~ c cWth jedl&m? orders and subpccnar; audit snd ersluatioa of Federally-supported edoeatloe prsgrmu; rttord-keeplWK ( b ) (1) No funds shall be made available under any appliwble program to a n y educational agency o r inetitutfon which h a s a policy o r prsctice of permitting t h e release of education records ( o r personally identifiable information contained therein other than directory information, an defined in paragraph ( 5 ) of subsection ( a ) of thia section) of students without t h e written consent of their parents to any individual, agency, o r organization, other than to t h e following( A ) other school officiaIs, including teachers within t h e educational institution o r local e d u c a t i ~ n a lagency, who have been determined by auch agency o r institution to have legitimate educational intereste; ( B ) officials of other schools o r school syrtems in which t h e ~ t u dent seeks o r intends t o enroll, upon condition t h a t t h e student'r pare n t s be notified of the transfer, receive a copy of t h e record if desired, and have a n opportunity for a hearing to challenge t h e content of the record; ( C ) authorized representatives of (1) t h e Comptroller General of t h e United States, (11) t h e Secretary, (iii) a n administrative head ( c ) of t h k of a n education agency ( a s defined in section 1221-3 title), o r (iv) State educational authorities, under t h e conditions set forth in paragraph ( 3 ) of this subsection; (D)in connection with a student's application for, o r receipt of. financial aid; (E) State and local olficials o r authoritien to whom such information ib specifically required to be reported o r disclosed pursuant t o State statute adopted prior t o November 19, 1 9 7 4 ; ( F ) organizatlons conducting studies for, o r on behalf of, educational agencies o r institutions for t h e purpose of developing, validating, o r administering predictive tests, administering student aid programs, and improving fnatruction, if auch studies a r e conducted in such a manner aa will nat permit t h e personal identification of stUdents and their parenta by persons other than representatives of such 0rganizations and s w h information will be destroyed when no longer needad for the purpose for which 1; Is conducted; ( G ) accrediting organizations in order to carry out their accreditIng functions; (H)parents of a dependent student of such parents, as defined i n section 152 of T1:le 2 6 ; and ( 1 ) subject to regulations of t h e Secretary, in connection with a n emergency, appropriate persons if t h e knowledge of arlch information is necessary to protect t h e health o r safety of t h e student o r other persons. Nothing in clause (E)of thia paragraph shall prevent a State from further Ilmiting t h e number o r type of State o r local officials who will continue to have access thereunder. ( 2 ) No funds shall be made available under a n y applicable program t o any educational agency o r institution which haa a policy o r practice of releasing, or providing access to, a n y personally identifiable information in education records other t h a n directory information, o r aa is permitted under paragraph ( 1 ) of this subsection unless( A ) there is written consent from t h e student's parents apecifying records t o be released, t h e reasons for such release, and t o whom, EDUCATION and with a copy of the records to be released to the student's parents and the student if desired by the parents, o r (B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency. ( 3 ) Nothing contained in this section shall preclude authorized representatives of (A) the Comptroller General of the United States, (B) the Secretary, (C) an administrative head of an education agency or (Dl State educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education program, or in connection with the enforcement of the Federal legal requirements which relate to such programs: Proaided. That except when collection of personally identifiable information is specifically authorized by Federal law, any data collected by such officials shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements. ( 4 ) (A) Each educational agency or institution shall maintain a record, kept with the education records of each student, which will indicate all individuals (other than those speclfled in paragraph (1)( A ) of t h k subsection), agencies, or organizations which have requested or obtained access to a student's education records maintained by such educational agency or institution, and which will indicate specifically the legitimate interest that each such person, agency, or organization ha8 in obtaining thi3 information. Such record of acce88 ahall be available only to parents, to the school official and his aseistants who are responsible for the custody of such records, and to persons or organizations authorized in, and under the conditions of, clauses ( A ) and (C) of paragraph (1) ae a means of auditing the operation of the system. (B) With respect to thia submction, pereonal lnformation shall only be transferred to a third party on the condition that such party will not permit any other party to have access to such information without the written consent of the parenta of the student. Smme).. or Iatm-smtherl- met1vitlt.1 r e ~ k t l o u (c) The Secretary shall adopt appropriate regulations to protect the rights of privacy of students and their families in conkection with any surveys or data-gathering activities conducted, assisted, or authorized by the Secretary or an administrative head of an education agency. Regulations established under this sub~ectlonshall include provision8 controlling the use, dissemination, and protection of such data. No survey o r data-gathering activities shall be conducted by the Secretary, or an administrative head of an education agency under a n applicable program, unless such activities are authorized by law. Stadert.' rmtbea than parents' pemlmfoa or ernmeat ( d ) For the purposes of this section, whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student. Informlns parent. or student. ot *bts ~ n d e rthis 8cetlon ( e ) No funds shall be made available under any applicable program to any educations: agency or institution unless such agency o r institution informs the parents of students, or the students, if they a r e elghteen years of age or older, or are attending an institution o: postsecondary education, of the rights accorded them by this section. , EDUCATION E n f o m m e n t I t e r a L n a l l o n of urlstlace ( f ) The Secretary, or an administrative head of an education agency. shall take appropriate actions to enforce provisions of this section and to deal with violations of this section, according to the provisions of this chapter, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with the provisions of this section, and he has determined that compliance cannot be secured by voluntary means. Otnce m d r e v i e w ku61v u t l e r t fmmetieu (g) The Secretary shall establish or designate an office and review board within the Iiepartment of Health, Xducation, and Welfare for the purpoee of investigating, processing, reviewing, and adjudicating violations of the proviaions of this section and complaints which may be filed concerning alleged violations of this section. Except for the conduct of hearings, none of the functions of the Secretary under this section shall be carried out in any of the regional offices of euch Department. Pub.L. 90-247, Title IV. $ 438, a8 added Pub.L. 93-380, Title V, 8 513 ( a ) , Aug. 21, 1974, 88 Stat. 671, and amended Pub.L. 93-568, (i 2 ( a ) , Dec. 31, 1974, 88 Stat. 1868. IS74 Amendment. Subaec. a)(l) Pub.L. 83688, f 2 a)(1) A) (C). &)(A): (C), (3) designated exla& par. (1) as subpar. ' ( A ) , and in sub ar. (A) a s M, designated, substituted rJerence to educational agencies and Inatltutions for reference to state or local educational a en ties of higher e d u m f i o i commnnity colleges echoole agencies offefing preach001 rbgrams, and other edUCat10nal institUtfOn8, substituted the generlc term education records for the ennmeration of such records. and extended the rl ht to inspect and review such recOrds to parents who been In attendance, and added subpars. mation, a s defined in paragraph (6) of subsection (a) of this sec'lou)" for "state or local educational agentg. any lnstitution of hlgher education, any community college, any @ehool. agency offering a preschool ro am, or any other educatlonal instrtut%n which has a policy or practice of permitting the release of personnlly Identifiable records o r filea r rsonal information contained therein?' subpar. (A). subatttuted "educatlonai agency, who have been determined by y c h agenc or inrtftution to have" for educationJagency v h o hare", in subpar, (B),robstituted "the student seeks or Intends to" for "the student Intends to" in subpar. (C), rubstltnted reference ' t o "eectlon W ( c ) " for reference t o "8ectlon 400 of this Act" which for purpo8ee of codUicatlon has been translated a s "wetion 1221e-S(c) of thls title", and added subpars. (E)-(1). Pnh.L. (42))(& ~nbstituted~uu? tional agency or i b t l t n t i o n whlch has a releasing, idenhiable o r rovldfno l i ~ yor practice to any ofwrsonally Information in education mords other 2(,")"$7i) E f : ~ ~ e , " tor i ~ l~-,,tate ~ ~r : ~ ~ ~T'i)aso:" p " ~gfi ' or local d u c a a o n - a1 agency, any instltution of higher edua t i o n , any commanity college, m y ::vhnec. (b)(4). Pub.L. 8RB& '1 2 ( - ' ( 0 ) , substituted provisions that each &UP-tional agency o r Instltutlon malnt a i n :: r e r o ~ d . kept wlth the edueatlon a:? of each student, lndicatlng Indlvldaqle. apncles, or organlrations who obtrtned access to the student's record ?nd the legitimate interest In obtalning sech Information, that much record of acWRH ahall be available only to parents, srhocl otficisls, and thelr asslatants h a r Lr;g re:ponsibility for the custody of such record*. and a s a means of auditing the rntion of the system, for provisions t at with re8 t to subaeca. (e)(l), (c)(%i:and ( c ) ( r o f thls section a11 persons, agencies, or oryanizatlons' deniring ?!' EDUCATION access to the records of a student shall be required to sign forms to he kept wlth the record8 of the crtudent, but only for tion by the parents or the student, f Z E t i n g speclflcall~the Ie tfmate edacatiorul or other interart o q the peraon 8e8khg such information and that the form shall be available i o parents and achool omclals havIng responsibility for record mairrtenance a s r means of auditin the operatton of the sjatem. 83568. 1 Eubrse. Puh.L. 2(a) (1) (F) !:b.stituted "to an educa. tlooal agehcj or inrtltution unreas such a e n c l or inrtitution" for "unless the rec f lent of soeh fundr". g o b l a (#). Pub.L. @SS&3, / 2(a)(7) (10 (B) struck out reference to aectlon; ind la21 of thin tltle and added rorlslons that ax- t for the conduct o l E u r ~ n p ,none of Pbe iunctioncr of the Secretary under thlr section shall be carried out In rn, of the re&oW dnar of ouch Deprrtment. & &tt-tatl.e D a b of 1974 Amendment. Section 2(b) of Pub.L. provided that: "The amendments made by subsection (a) [amending thla section1 shall be effective, and retroactive to. November 10. 1074." Ettacttve Data Section U S b) (1) of Pub. L. 99-380 provided that: "T6e pro~isiO08 or thie section classified to this aectionl shall become e L t i v e ninety days after the date of enactment [Aug. 21, 1074 of section 438 ot tho General Educa~ion Provisions Act thlr section Sho& Tltls. kectlon 513(b.;;2 of Pub. L 03380 rooided that: '"l'hls section (flassified f o this aection and revisions eat out as a note uaper thla seckonl mar be cited as the Famil Educational RI hts and Prlvacj Act of l974'." %glslrtiv* Nlatow. For legislative history and pur ore o? Pub.L. Q3-S80.me 1914 U BCode &np and Adm.News 4SS & also, ~ u b . ~85588, . 1974 b.8: Code Cong. and Adm.New8, P. BtlO. CRS-52 Pupils' Rights -- 20 U.S.C. 1232 h 8 lasah. Pnpll rights, protectSon; inepsction by ptliiatj i. &uardians of instructional maferial; 6dreaeuuch or experimentation program o r project" deiined All instructional material, including teaqher'e manuals, films, tapes, o r other supplementary instructional material which will be used in connection with any research or experimentation program or project shall be available for inspection by the parent4 or guardians ot the children engaged in such program or project. For the purpose Q! this section "research or experimentation program or project" mean# any program or project in any applicable program deslgned to explore or develop new r unproven teaching methods or technique#. Pub.L. 90-247, Title IV, 439, as added Pub.L. 93-380, Title V, 8 5 1 4 (a), Aug. 21, 1974, 88 Stat. 574. Effective Dab. Sedlon 514(b) of Pub. L. M-380 provided that: "The amendment made by eubsection (a) [enacting thle section] rhall be edfectlve ugon enactment of t h b Act [Aug. 21. 19741. -- P.!,. 95-561, sov 1, 1 9 78 - Isfiebfire Hlrtor).. For legislative hlstor rod pur one of Pub.L. 93380, see 187+ 6.8.code &ng. rad Adm.News, P. 4098 .- SEC.1250. Section 439 of the General Educntion Pmvisions Act 20 USE 1232h(relating to protection of pupil rights) is clmended by inserting "(a)" after "439" and by adding a t the end thereof a new subsection as follows : "(b) No student shall be required, as pa& of any applicable program, to submit to psychiatric examination, testing, or treatment, or psychological exammation, testing, or treatment, in which the primary purpose is to reveal information concerning: "(1) political affiliations ; "(2) mental and ps~~hological problems potentially ernbarrass; ing to the student or h ~ family s "(3) sex behavior and attitudes; "(4) illegal, anti-social, self-incriminating and demeaning behavior ; "(5) critical appraisals of other individuals with whom respondents have close family relationships; "(6) legally recognized privileged and analogous relationships, such as those of lawyers, physicians, and ministers; or "(7) income (other than that required by law to determine eligibility for participation in a program or for receiving financial as~istanceunder such program), wlthout the prior consent of the student (if the student is an adult or emancipated minor), or in the case of unemanc~patedminor, without the prior written consent of the parent.". CRS-53 Privacy Act of 1974 -- 5 U.S.C. Q 552.. Records maintained on individuals (a) Definitionr For purposes of this section(1) the term "agency" means agency as de. fined in section 552te) of this title; (2) the term "individual" means a cltieen of the United States or an alien lawfully ad. mitted for permanent residence: ( 3 ) the term "maintain" includes malntdn, collect, use. or disseminate; ( 4 ) the term "record" means any item. cob lection. or grouping of Information about an individual that is maintained by an agency, including. but not limited to. h k education. fb nancial transactions, medical history, and criminal or employment history and that contains his name, or the identifylng number, symbol, or other identifying particular rLP. signed to the individual, such as a finger or voice print or a photograph; (5) the term "system of recor@V9m e w a group of any records under the control of any agency from which informatlon L retrieved by the name of the individual or by m e identifylng number, symbol, or other IdentliY. ing particular assigned to the Indlvldulrl; 552 a ?age 313 TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES (6) the term "statistical record" means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13; and (7) the term "routine use" means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected. ( b ) Conditions of disclosure No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, t h e individual to whom t h e record pertains, unless disclosure of the record would be(1) to those officers and employees of the agency which maintains the record who have a need for the record in t h e performance of their duties: ( 2 ) required under section 552 of this title; (3) for a routine use as defined in subsection ( a ) ( ? )of this section and described under subsection (eX4 )(D)of this section; (4) to t h e Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to t h e provisions of title 13; (5) to a recipient who has provided the agency with advance adequate written assurance t h a t the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable; ( 6 ) to t h e National Archives of t h e United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value; (7)to another agency c r to an instrumentality of any governmental jurisdiction within or under t h e control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of t h e agency or instrumentality has made a written request to t h e agency which maintains t h e record specifying t h e particular portion desired and the law enforcement activity for which the record is sought; (8) to a person pursuant to a showing of compelling circumstances affecting t h e health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual; (9) to either House of Congress, or, to the extent of matter within its jurisdiction, any cammittee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee; (10) to the Comptroller General, or any of his authorized representatives, in t h e course of the performance of the duties of the General Accounting Office; or (11) pursuant to the order of a court of competent jurisdiction. $552a ( c ) Accounting of certain disclosures Each agency, with respect to each system of records under its control shall(1) except for disclosurw p a d e under subsections ( b ) ( l ) or (b)(2) of this section, keep an accurate accounting of(A) the date, nature, and purpose of each disc1osur"e of 'zredord to any person or to another agency made under subsection ( b ) of thik section; and the name and address of t h e person or * agency to whom t h e disclosure is made; '!f ( 2 ) retiin the accouqti1;lg made under paragraph Ik),,of this subs,ectio~for a t least flve years or the Ijfe ,of the redord, whichever is loqger. after the dis$osure for which t h e accounting is made; (9) except for disdlosures made under subsection (bX7) of this section, make t h e acc o u o t i ~ gmade under paragraph (1) of this' subsection available to t h e individual named in .?he record a t his request; and ( 4 ) inform any per,son or other agency about any correction or notation of dispute made b y t h e agency in accordance with subsegtipn (dl of this section of any record khzlt has been disclosed to t h e person orvagency i f ' an qccpunting of t h e disclolure was made. + ( d Access to.records Each agency t h a t maintains a system of records shall( 1 ) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in t h e system, permit him and upon his request, a person of his own choosing to accompany him, to review t h e record and have a copy made of all or any portion thereof in a form comprehensible to him, except t h a t t h e agency may requlre t h e individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence; ( 2 ) permit t h e individual to request amendment of a record pertaining to him and(Af not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after t h e date of receipt of such request, acknowledge in writing such receipt; and ( B ) promptly, either(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or (ii) inform the individual of its refusal to amend t h e record in accordance with his request, t h e reason for t h e refusal, t h e procedures established by the agency for the individual to request a review of that refusal by t h e head of t h e agency or an officer des~gnated by the head of the agency, and the name and business address of that official. (3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such revlew and make a final determination unless, for good cause shown, t h e 5, 9 552a TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1) ( A ) of this section; ( 4 ) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and ( 5 ) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding. (el Agency requirements Each agency that maintains a system of records shall(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or Sy executive crder of the President; ( 2 ) collect information to the greatest exterar, practicable directly from the subject individual when the information may result in adverse determinations about an ;wiividual's rights, benefits, and privileges under Federal programs; (3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual( A ) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicieation of the information and whether disclosure of such information is mandatory or voluntary; (B)the principal purpose or purposes for which the information is intended to be used; (C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D)of this subsection; and (D) the effects on him, if any, of not providing all or any part of the requested information; ( 4 ) subject to the provisions of paragraph (11) of this subsecti*,n,publish in the Federal Register at least a x u a l l y a notice of the existence and character .)f the system of records. which notice shall include(A) the name and location of the system; (B)the categories of individuals on whom records are maintained in the system; (C) the categories of records maintained in the system; Page 314 (D! eazu: :outme use of the records contained ari t h e system, including the categories of users ar.d the purpose of such use; (El the pallcles and practices of the agency regaramg storage, retrievability, access csntrcls, retention, and disposal of the records; (F)the title and business address of the Z ~ ~ T I C .official ~' who is responsible for the system of records; ( G ) the agency procedures whereby an individual can be notified at his request if the . system of records contains a record pertaining to him; (H)the agency procedures whereby an individual can be notified a t his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and ( I ) the categories of sources of records in the system; ( 5 ) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination; ( 6 ) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes; ( 7 ) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity; ( 8 ) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record; (9)establish rules of conduct for persons involved in the design. development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance; (10) establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to m y individual on whom information is maintained; and (11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency. Page 3 15 *i3 T U 5 -GOVERNMENT ORGANIZATION AND EMPLOYEES (E, Agency rules In ordel lo caTry out the provisions of this section, eaca ayvnnj that mantams a system of records ahall $31-nmiiigat~rules, in accordance with the requieTaient,i (including general notice) c f :,ec:apn 3'5 o: tkis trt!e, which shall( 1 ' esta'>\iz:I p r o c ~ r i ~ r whereby es an individual can Se norlrleal In response to his request tf m y s ~ s , P ? - oC records named by the indlvudrlal coi-trims a record pertalnmg to him; (2) defmp re~sonabletimes, places, and requlrements for rdentlfying an indlvldual who reqi~cst!,his record or information pertaining to hlm before the iapency shall make the record or mformatlor: available to the individual; 13) establish psilcedui-es for the disclosure to an indlv~dualupon his request of h ~ record s or mformatlon pertalnmg to him, mcluding special procedure. ~f deemed necessary, for the dnsclosure to at: lndi~icbcalof medical records including. wvchol.cialcal records ser. taining to him; (1: estab!isii procedures Pcr reviewing a request from a?? indiV!ictusl concerning the amendment oi m y record 3i'information pertaining to the individual, for making a determination on t!w request. far al? appeal within the agency of an initial adverse agency deter. mination, and lor whatever additional means may be necessary for each individual to be able t.o exercise fullp h:? rights under this section; and (5) establish fees to be charged, if any, to any individual for niaking copies of his record, exciudinl: !.he cost of any search far and revicw of the r e c ~ r d . The Office of tkr Federal Register shall annually compilc a w publish the rules promulgated under tLis subsect~onand agency notices publish*d under subse:tion (i.ii4) of this section in a form akailable to the public at low cost ( g Y l ) Civil rehedies Whenever any agency (A) mkkes a determination under subsection (d)!3) of this section not to amend an individual's record in accordance with his request, o; falls to make such review in conformity with that subsection; (B) rcfases to comply with an individual request under subsection !d)(l) of this section; ( 3 )faiis to maintain any record concerning ariy indjvid~alwith such accuracy, relevance, time:iness, and coinpleterress as is necessary to assure fair-ess in any determination relating to the qualifications, character, rights, or opportunities of. or henefi,ts to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D)fails to comply w i t h any other provision of this section, or an) rule promulgated thereunder, in such a way as to have an adverse ef :ecr on :%.nindividual, the ~ndibldual1na.v bcrrig a cwil action against the agency, and the d~sLrlzt rsurts of the United States snall have jurisdiction in the mctters under the provisions of this subsection. ( 2 ) ( A ) i n any suit brought under t h e provisions of su'wsec~ion( g ) ( l ) ( A , of this section, the court n a y order the agency to amend the Q 5528 individual's record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo. (B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. (3)(A) In any suit brought under the provisions of subsection (g)(1 )(B)of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case t h e court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether t h e records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k)of this section, and the burden is on the agency to sustain its action. (B)The court may assess against t h e United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. ( 4 ) In any suit brought under the provisions of subsection (g)(1XC) or ( D ) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to t h e individual in an amount equal to the sum of( A ) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and (B) the costs of the action together with reasonable attorney fees as determined by the court. ( 5 ) An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business. or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy. within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the aaencv - to the individual under this sedtion, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975. (h) Rights o f legal guardian* For the purposes of this section, the parent oi any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual. Q 552a TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES Page 316 ( I ) and ( f ) of this section i f t h e system of records is(1) subject to t h e provisions of section 552(b)(1)of this title; (2) investigatory material compiled for law enforcement purposes, other than material within t h e scope of subsection (j)(2) of this section: Provided, however, T h a t if any individual is denied any right, privilege, or benefit t h a t h e would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of t h e maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal t h e identity of a source who furnished information to t h e Government under an express promise t h a t t h e identity of the source would be held in confidence, or, prior to t h e effective date of this section, under an implied promise that the identity of the source would be held in confidence; (3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant Cj) General exemptions to section 3056 of title 18; T h e head of any agency may promulgate ( 4 ) required by statute to be maintained rules, in accordance with t h e requirements (inand used solely as statistical records; cluding general notice) of sections 553(b)(1), (5) investigatory material compiled solely (2), and (3)- tc), and te) of this title, to exempt for t h e purpose of determining suitability, eliany system of records within the agency from gibility, or qualifications for Federal civilian any part of this section except subsections fb), employment, military service, Federal cont c ) ( l ) and ( 2 ) . (e)(4)(A)through (F),(e)(6),(7). tracts, or access to classified information, but (91,(10). and (ll!, and i i ) if the system of reonly to the extent t h a t t h e disclosure of such cords ismaterial would reveal the identity of a source (1) maintained by the Central Intelligence who furnished information to the GovernAgency; or ment under an express promise t h a t the iden( 2 ) maintained by an agency or component tity of the source would be held in confithereof which performs as its principal funcdence, or, prior to the effective date of this tion any activity pertaining to the enforcesection, under an implied promise t h a t the ment of criminal laws, including police efforts identity of the source would be held in confito prevent, control, or reduce crime or to apdence; prehend criminals, and the activities of pros( 6 ) testing or examination material used ecutors, courts, correctional, probation, solely to determine individual qualifications pardon, or paro!e authorities, and which confor appointment or promotion in the Federal sists of ( A ) information compiled for the purservice the disclosure of which would compropose of identifying individual criminal offendmise t h e objectivity or fairness of the testing ers and alleged offenders and consisting only or examination process; or of identifying data and notations of arrests, (7) evaluation material used to determine t h e nature and disposition of criminal potential for promotion in t h e armed services, charges, sentencing, confinement, release. but only to t h e extent t h a t the disclosure of and parole and probation status; (B)informasuch material would reveal t h e identity of a tion compiled for the purpose of a criminal source who furnished information to the Govinvestigation, including reports of informants ernment under an express promise that the and investigators, and associated with an indentifiable individual; or (C) reports identifiidentity of t h e source would be held in confiable to an individual compiled at any stage of dence, or, prior to the effective date of this the process of enforcement of the criminal section, under an implied promise that the laws from arrest or indictment through reidentity of the source would be held in confilease from supervision. dence. At the time rules are adopted under this sub- At the time rules are adopted under this subsection, the agency sha:l include in the state- section, the agency shall include in the statement required under sec'ion 553tc) of this titie, ment required under section 553(c) of this title, the reasons why the system of records i s to be the reasons why the system of records is to be exempted from a provisicn of this section. exempted from a provision of this section. (i)( 1 ) Criminal penalties Any officer or employee of an agency, who by virtue of his empioyment or official position, has possession of, or access to, agency records which contain individually identifiable information t h e disclosure of which is prohibited by this section or by rules or regulatiors established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses t h e material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000. ( 3 ) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000. ( k ) Specific exemptions ( 1 ) ( 1 ) Archival records The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2). and (3). tc), and (el of this title, to exempt any system of records within the agency from subsections tc)(3),(d). ( e ) ( l ) .(eK4)(G),(H), and Each agency record which is accepted by the Administrator of General Services for storage, processing, and servicing in accordance with section 3103 of title 44 shall, for t h e purposes of this section, be considered to be maintained by the agency which deposited t h e record and Page 317 TIT= 5 - G O V E K N ~ + l E N T O E C A N i Z A T I O N AND EMPLOYEES !j 552a sha:l be subject to t h e provisions G : this sec- system of records which were exempted from tion. T h e Administrator of General Serv,c-.s t h e application of this section under t h e provishall not disciose t h e ->rd except to t h e sions of subsections ( j ) and (k) of this section agency which maintains ti-se record. or under duri?!g t h e preceding calendar year, and t h e rules established by that agency which are ~ o t reasons for t h e exemptions, and such other ininconsistent with t h e prorisions of this section. !ormation as indicates efforts to administer * :-.ythis section. ( 2 ) Each agency rocorti pertaining to a n id? I tifiable indivlduai a i t i i h was transferctd to t i , I ; , Effect of other laws National Archivcc. u f t h e United Stat+% :s a No agency shall rely on any exemption conrecord which has :.';. ,.ienr his;3rical o; other ,-i!ned in section 552 of this title to withhold value to warrant i i rcr.tiu?ued-,-eservatlon by from an individual any record which is otherthe United States Gd;.;-nrne7~: ?nor to t h e ef- wise accessible to such individual under t h e fective date of this sectlor,, shall. for t h e pur- provisions of this section. poses of this section, be considered to be maintained by t h e National Archives and shall not \Added Pub. L. 93-579, 9 3 , Dec. 31, 1974, 88 be s u b j x t to t h e provisions of this section, S i a t . 1897, and amended Pub. L. 94-183, 8 2(2), except tha: a statement generally describing De- ? ' , 1975, 89 Stat. 1057.) such reen-ds (modjleii after the r e q ~ i r e r n r ;t:. relat.ing ' r . ~ P C O ~ wt'ject ~ S to suDsect;cr For effectire date of this section. referred to in sub(c:i4)(A)ihrc-:y:> ((2)c: this '?ctio;lj shall bi a s . 0 ( ) ( 2 ) , ( 5 ) . (7). (I)(2). (3). and tm). see effectwe >ub. 5 : - ?fi ir; t h e I'ederal Register. : k t r r o t e hereunder ( 3 ) Each agent:< record pertaining :n a n icier,tifiable individua! which is transferre:' to t h e National Archives of t h e United States as a Section 552a of f o r m Title 5 . Ex-cutive Departrecord which has sufficient historical or other ments and G o ~ e r n m e n tr ' f ~ r r ssnd Employees, was value to warrant its continued preservation by transferred to section 2244 L : T1t1.- 7. Agr~culture the TJnited States Government, on or after t h e AMENDME\TS > i f z ivr date of this section, shall, for t h e purIT; - -dubs< c (p)(5; Pub L 94-183 substituted "to pos,s of this section, be considered to be maintained by t h e National Archives and shall be Seqtembcr :-1975 for ' to the effectwe date of this exempt from t h e requirements of this section section" except subsections (e)(4)(A)through ( G i and (e)(9)of this section. ( m ) Government contractors Sectlon 8 of i- 1 3 L 33-579 prot lded t h a t "The proi ~ i i o n sof this .4c [enacting this sectlon and pro\i dons set our a -3 - s under this s e c t ~ o n lshall be eft'ie date of enactment [Dec 31. fectne on and a 19741, except ti>ar a e n d m e n t s made by secttons 3 and 4 [enacting ti"+la? and a m e n d ~ n ganalysis preceding sectlon 500 L, ' 11s title1 shall become effectlve 270 d a l s follouing L ! e day on n h ~ c hthis Act is enacted When an agency provides by a contraclt for the operation by or on behalf of t h e a g w c y of a system of records to accomp!ish an agency function, t h e agency shall, consister.t with its authority, cause t h e requirements of this section to be applied to such system. FOPpurpsses of wbsection ( i ) of this section any such ::onSHORT TITLE 'tractor and any employee of such contrac'.or, if such contract is agreed to on or after t h e ~Cfec- Section 1 of Pub. L. 93-579 provided: "That this Act .enacting this section and provisions set out as notes tive date of this section, shal! be consider-d :o under this sectionl may be cited as the ' h i v a c y Act of be a n employee of an agency. 1374'." cni Mailing lists AND STATEMENT OF PURPOSE An individual's name and address may I;G: 'L;c ~ O N G R E S S I O N A L FINDINGS sold or rented by an agency unless such a ~ ' ~ c n Section 2 of Pub. L. 93-579 provided that: is specifically authorized by law. This pr c..irisir71 '.(a) T h e Congress finds that"(1) t h e pri17acy of a n individual IS directly affectshal! not be construed to require t h e wiLhhol4. ed by t h e collection, maintenance, use, and dissemiing of names and addresses otherwise permitter! nation of personal information by Federal agencies; to be made public. " ( 2 ) t h e increas~nguse of computers and sophisti( 0 )Heport on new s?.sterns Each agency shall provide adequate advancr notice to Congress and t h e Office of ma nag^ ment and Budget of any proposal t c establir or alter any system of records in order : permit an evaluation of ?he p-obable or potential effect of sucii proposal on ' h e privacy arid other personal or property rightc of individual? or t h e disclosure of information relating tt such individuals. anc! its efirc!. Qn t h e preserb . tion of t h e constiturional principles of fede:;.. ism and separation of powers. i p ) Annual reporl T h e Presiden! shall sub- it to the Speairer of t h e House and t h e Presidt n t of t h e Senate, s':; June 30 of each calendar year, a consolidated report, separa:ely !istin;: for each Federal agency t h e number of records contained in any cated information technology, while essential to t h e efficient operations of t h e Government, h a s greatly magnified the harm to individual privacy t h a t can occur from any collection, maintenance, use, or dissemirlztlcn of personal information: " ( 3 ; t ? : opportunities for a n individual to secure ema:oyr?-.?nt, insurance, and cred~:, and his right t o i:dr P ~ O C C S S , and other legal protections are endan~ . ~ ~ by r - ct h e mlsuse of certain information systems; : i , the r ~ g h tto privacy is a personal and funda-r:tal right protected by t h e Constitution of t h e i,illted States; and " 5 ; !n order to protect the privacy of individuals k.kr,ttfi~d in ~ n f o r m a t ~ o systems n maintained by .-t -..,A aguncies, it is necessary and proper for t h e :,;?ngr-cs I . , regulate the collection, maintenance, I-?, ari;: c!:sbemination of information by such agen7. :!el. ' t b ) T h e purpose of this Act [enacting this section provisions set out as notes under this sectionl is to ;cvide certain safeguards for a n indiv~dualagainst a n i.3. CRS-59 g 552a T I T L E 5-GOVERNMENT ORGANIZATION AND E M P L O Y E E S invasion of personal privacy by requiring Federal agencies. except as otherwise provided by law, to"(1) permit an individual to determine what records pertaining to him are collected, maintained. used, or disseminated by such agencies: "(2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent: " ( 3 ) permit an individual to gain access to information pertaining to him in Federal agency records. to have a copy made of all or any portion thereof, and to correct or amend such records; "(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, t h a t the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information; "(5) permit exemptions from the requirements with respect to records provided in this Act only in those cases where there is an important public policy need for such exemption as has been determined by specific statutory ailthority; and " ( 6 ) be subject to civi! suit for any damages which occur as a result of willful or intentional action which violates any individual's rights under this Act." PRIVACY PROTECTION STUDYCOMMISSION Section 5 of Pub. L. 93-579 provided that: " t a ) ( l ) There is established a Privacy Protection Study Commission thereinafter referred to as t h e 'Commission') which shall be composed of seven members a s follows: "(A) three appointed by the President of t h e United States. "(B) two appointed by the President of the Senate. and "(C) two appointed by the Speaker of the Rouse of Representatives. Members of t t * Commission shall be chosen from among personc who, by reason of their knowledge and expertise in any of the following areas-civil rights and liberties, law, social sciences, computer technology. business, records management. and State and local government-are well qualified for service on the Commission. "(2) T h e members of t h e Commission shall elect a Chairman from among themselves. " ( 3 ) Any vacancy in the membership of t h e Commission, as long as there are four members in office, shall not impair the power of the Commission but shall be filled in the same manner in which the original appointment was made. "(4) A quorum of the Commission shall consist of a majority of the members, except that the Commission may establish a lower number as a quorum for the purpose of taking testimony. T h e Commission is authorized to establish such committees and delegate such authority t o them as may be necessary to carry out its functions. Each member of the Commission, including t h e Chairman, shall have equal responsibility and authority in all decisiors and actions of the Commission, shall have full access to all information necessary to t h e performance of their functions, and shall have one vote. Action of the Commission shall be determined by a majority vote of the members present. T h e Chairman tor a member designated by the Chairman to be acting Chairman) shall be the official spokesman of t h e Commission in its relations with the Congress, Government agencies, other persons, and t h e public, and, on behalf of thc Commission, shall see t o t h e faithful execution of t h e administrative policies and decisions of the Commission, and shall report thereon to the Commission irom time to time or as t h e Commission may direct. "(5XA) Whenever the Commission submits any budget estimate or request to the President or the Office of Management and Budget, it shall concurrently transmit a copy of that request to Congress. Page 318 , Y E )Whenever the Commission submits any legislative recommendations, or testimony, or comments on legislation to the President or Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress. No officer or agency of the United States shall have any authority to require the Commiss~onto submit its legislative recommendations. or testimony, or comments on legislation, to any officer or agency of the United States for approval, comments, or review, prior to the submission of such recommendations. testimony, or comments to the Congress. "(b) T h e Commission shallmake a study of the data banks, automated data processing programs, and information systems of governmental, regional, and private organizations. in order to determine the standards and procedures in force for the protection of personal information; and "(2) recommend to the President and the Congress the extent, if any, to which t h e requirements and principles of section 552a of title 5 . United States Code should be applied to the information practices of those organizations by legislation, administrative action, or voluntary adoption of such requirements and principles, and report on such other legislative recommendations as it may determine to be necessary to protect the privacy of individuals while meeting the legitimate needs of government and society for information. , ' t c ) ( l ) In the course of conducting t h e study required under subsection ( b ) ( l )of this section, and in its reports thereon, the Commission may research, examine, and analyze" ( A ) interstate transfer of information about individuals that is undertaken through manual files or by computer or other electronic or telecommunications means; " ( E ) data banks and information programs and systems the operation of which significantly or substantially affect the enjoyment of the privacy and other personal and property rights of individuals; "(C) the use of social security numbers, license plate numbers, universal identifiers, and other symbols to identify individuals in data banks and to gain access to, integrate, or centralize information systems and files; and "(Dl the matching and analysis of statistical data. such as Federal census data, with other sources of personal data, such as automobile registries and telephone directories, in order to reconstruct individual responses to statistical questionnaires for commercial or other purposes, in a way which results in a violation of the implied or explicitly recognized confidentiality of such information. "(2)(A)The Commission may include in its examination personal information activities in t h e followihg areas: medical; insurance; education: employment and personnel: credit, banking and financial institutions; credit bureaus: t h e commercial reporting industry; cable television and other telecommunications media; travel, hotel and entertainment reservations; and electronic check processing. "(B)T h e Commission shall include in its examination a study of" ( i ) whether a person engaged in interstate commerce who maintains a mailing list should be required to remove a n individual's name and address from such list upon request of that individual: " ( i i ) whether the Internal Revenue Service should be prohibited from transferring individually indentifiable lsicl data to other agencies and to agencies of State governments; "tiii) whether the Federal Government should be liable for general damages incurred by a n individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(l)(C) or (D)of title 5. United States Code; and "(iv) whether and how the standards for security and confidentiality of records required under section 552a(e)(10) of such title should be applied when a record is disclosed to a person other t h a n a n agency. Page 319 TITLE 5-GOVERNMENT O R G A N I Z A T I O N AND E M P L O Y E E S .'tC) T h e Contm:ssion may study such other personal information .d.ct:vities necr -.ry to carry out t h e his Act [this section congressional policy embodied I and notes hereunder], except !tiat t h e Commission shall riot investiga; e information systems maintained by rehgious organlzatio?.~. , , ( 3 ) In conducting ~ i ! c h study, t h e Commission shall. , ( A )determine what .?ws. Executive orders, regulations. directiies. a.lr '~iclicialdecisions govern t h e activit~esunder stud\. i. ' :he extent to which they are consislcnt !rith t!-. , i r t . ' , , t f privai'y, due process of i a ~and , o t l , t r g ' l a l .;iile?s !n thi Constitution: , , ( B )determinr to what cxtfnt governmental and private information systems affect Federal-State relations or t h e principle of separation cf powers; " ( C ) ru.:rrnine t h e standards and criteria governing programs, pol!cies, and practices relating to t h e collection, scliclting processing, use, access, integration. d i s s r . . ~ : ~ a : . i ~2 !n~d , transmission of personal informatlo, ' c 3 ,,:D, to : h c L,:? ;imu!r; ~ x t e n :praclicable, collect - ,;..?;,,.? f;:lui.w, reports, studles, hearing tran, -,L scripts, aiia recomrrtr:dations of governmental, legislative and private bodlec. institutions, organizations, and individuzis which pertain to t h e problems under study by t h e Commission. , . ( d ) In addition to its other functions t h e Commission may"(1.) request assistance of t h e heads of appropriate i F.- ?:E.I~s, agencies, and instrumentalities of t h e k e d . 5. Government, of State and local governmexits, and other persons in carrying out its function: under this Act; "(2) upon request, assist Federal agencies in complying wlth t h e requirements of section 552a of title 5. United States Code: ' , ( 3 )determine what speafic categories of information, t h e collection of uhich would violate a n individual's right of privacy, should be prohibited by statute from collection by Federal agencies: and " ( 4 ) upon request, prepare model legislation for use by State and local governments in establ~shing procedures for handling. maintaining, and disseminati-ig personal information at t h e State and local I??,:' and provide such technical assistance t o S t a t e c r d local governments as they may require in t h e preparation and implementation of such legislation. " t e ) ( l ) T h e Cornmisslon may, in carrying ou: its functions under this section, conduct such inspections. sit and act at such times and places, hold such hearIngs, take such testimony, require by subpena ti:? a t tendance of such witnesses and t h e production of such books, records, papers. correspondence, and documents. administer such oaths, have such printing and binding done. and make such expenditures as thc Commission deems advisable. A subpena shall be issued on!y upon an affirmative vote of a majority of all rnembers of t h e Commission. Subpenas shall be issued under t h e signature of t h e Chairman or any member of t h e Commission designated by t h e Chairman and shall be served by any person designated by the Chairman or any such member. Any member of the Commission may administer oaths or affirmations to witnesses appearing before t h e Commission. "(2KA) Each department, agency, and instrumentality of i h e executive branch of t h e C3vernment is au. thorized Lo furnish to t h e Cornmissson. upon request made by t h e Chairman, such information, data, reports and such other assistance as t h e commission deems necessary to carry out ~ t functions s under this section. W h e n p ~ e rt h e head of any such department. agency, or instrumentality, submits a report pursuant to section 552a( u: of title 5. United States Code. a copy of such report shall be transmitted to t h e Commission. " ( B ) In carrying out its functic ns and exercising its powers under this sectlon, t h e C ~mmissionmay accept from any such dcpartment. ags,ncy. independent instrumentality, or other person any individually indentifiable [sic] data if such data is necessary to carry o u t such powers and functions. In any case in which t h e $%2a Commission accepts any such information, it shall assure t h a t t h e information is used only for t h e purpose for which it is provided, and upon completion of t h a t purpose such information shall be destroyed or returned t o such department, agency, independent instrumentality, or person from which it is obtained, as appropriate. " ( 3 ) T h e Commission shall have t h e power to"(A) appoint and fix t h e compensation of a n executive director, and such additional staff personnel L A may be necessary, without regard to t h e provisions of title 5, United States Code, governing appointments in t h e competitive service, and without regard t o chapter 51 and subchapter 111 of chapter 53 of such title relating t o classification and General Schedule pay rates, but at rates not in excess of t h e maximum rate for GS-18 of t h e General Schedule under section 5332 of such title; and "(B: procure temporary and intermittent services ; v t h e same extent as is authorized by section 3109 >f title 5. United States Code. i'lie Commission may delegate any of its functions t o such personnel of t h e Commission as t h e Commission n s v designate and may authorize such successive redeit gatitms of such functions as it may deem desirable. ' ( 4 ) T h e Commission is authorized"(A) t o adopt, amend, ar.d repeal rules and regulations governing t h e mann?: of its operations, organization, and personnel; "(B)to enter into contracts or other arrangements or modifications thereof, with any government, any department, agency, or independent instrumentality of t h e United States, or with any person, firm, association, or corporation, and such contracts or o t h e r arrangements, or modifications thereof. may be entered into without legal consideration, without performance or other bonds, and without regard t o section 3709 of t h e Revised Statutes, as amended (41 U.S.C. 5); "(C) to make ac:ance, progress, and other payments which t h e Commission deems necessary under this Act without regard t o :he provisions of section 3648 of t h e Revised Statntes, as amended (31 U.S.C. 529); and "(D) t o take such other action as may be necessary t o carry out its functions under this section. " t f ) ( l ) Each member of t h e Commission who is a n officer or employee of t h e United States shall serve without additional compensation, but shall continue to receive t h e salary of his regular position when engaged in t h e performance of t h e duties vested in t h e Commission. " ( 2 ) A member of t h e Commission other t h a n one t o whom paragraph (1) applies shall receive per diem a t t h e maximum daily rate for GS-18 of t h e General Schedule when engaged in t h e actual performance of t h e duties vested in t h e Commission. " ( 3 ) All members of t h e Commission shall be reimbursed for travel, subsistence, and o t h e r necessary expenses incurred by them in t h e performance of t h e duties vested in t h e Commission. " ( g ) T h e Commission shall, from time t o time, and in a n annual report, report t o t h e President and t h e Congress on its activities in carrying out t h e provisions rf this section. T h e Commission shall make a final --port to t h e President and t o t h e Congress on its '..l-iings pursuant to t h e study required t o be made u. ?c.r subsection ( b ) ( l )of this section not later t h a n . . - *.,pars from t h e date on which all of t h e members c,: .e Commission are appointed. T h e Commission s!--4, :ease t o exist thirty days after t h e date on which i t s final report is submitted t o t h e President and t h e Cc ;gress. h X l ) Any member, officer, or employee of t h e Co ;mission, who by virtue of his employment or officia position, has possession of, or access to, agency rec c r l s which contain individually identifiable informatio- t h e disclosure of which is prohibited by t h e section, and who knowing t h a t disclosure of t h e specific material is so prohibited, willfully discloses t h e materia! in any manner t o any person or agency not enti- tled to receive it, shall be guilty of a misdemeanor and fined not more t h a n $5.000. "(2) Any person who knowingly and willfullY requests or obtains any record concerning a n individual from t h e Commission under false pretenses shall be guilty of a misdemeanor and fined not more t h a n $5.000." A N D REGULATIONS FOR MAINTENANCE OF GUIDELINES PRIVACY A N D PROTECTION OF RECORDS OF INDIVIDUALS Section 6 of Pub. L. 93-579 provided that: "The Office of Management and Budget shall' Y 1 ) develop guidelines and regulations for t h e use of agencies in implementing t h e provisions of section 552a of title 5. United States Code. as added by section 3 of this Act; and "(2) provide continuing assistance t o and oversight of t h e implementation of the provisions of such section by agencies." OF SOCIAL SECURITY NUMBER DISCLOSURE Section 7 of Pub. L. 93-579 provided that: , ' ( a ) ( l )It shall be unlawful for any Federal. S t a t e or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number. " ( 2 ) T h e provisions of paragraph ( 1 ) of this subsection shall not apply with respect to"(A) any disclosure which is required by Federal statute, o r "(B) t h e disclosure of a social security number to any Federal. State, o r local agency maintaining a system of records in existence and operating before January 1. 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify t h e identity of a n individual. "(b) Any Federal, State, or local government agency which requests a n individual to disclose his social security account number shall inform t h a t individual whether t h a t disclosure is mandatory o r voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it." Section 9 of Pub. L. 93-579, as amended by Pub. L. 94-394. Sept. 3. 1976. 90 Stat. 1198. provided that: "There is authorized to be appropriated, without fiscal year limitation only to such extent or in such amounts as are provided in appropriation Acts, t h e sum of $2.000.000 to carry out t h e provisions of section 5 of this Act [set out as a note above1 for t h e period beginning July 1. 1975. and ending on September 30, 1977." This section is referred to in section 552b of this title; title 26 section 6103; title 42 section 3525; title 44 section 2906. CRS-62 (Confiden~ialityS e c t i o n ) -- 26 U . S . C . 6103 Tax Reform Act of 1976 [Code Scc. 61031 "SEC. 6103. CONFIDENTIALITY AND DISCLOSURE OF RETURNS AND RETURN INFORMATION. "(a) GENEPALa,.E-Letxns and return informatio, t A i ibe confidential, and except ed by this title"(1) no officer or employee of the United States, "(2) n o officer or employee of any State or of any iecal c'lild support enfo-c-r ( : l t agency who-has or had access to returns or return informatlor. under this secti. a d "(3) no other person (or officer or employee thereof) who has or had accc.s .o returns or return information under subsection (e) ( l ) ( D ) ( i i i ) o r subsection (n), " 4isrl -e any return or return information obtained by him in any manr,er in conne:. tion with w s e m c e as such an officer or an employee or otherwise or under the provisions of this section For purposes of this subsection, the term 'officer or employee' inclades a former officer or employee. "(b) DEFINITIONS.-For purposes of this section"(1) RE?um.-The term 'return' means any tax or information retu-I, declaration of estimated tax, or claim for refund required by, or prcvided for or perrn:tted under, the provisions of this title which is filed with the Secretary by, on ' :half of, or with respect to any person, and any amendment or supplement there - including supporting schedules, attachments, or lists which are supplemental to, oi ra: of, the return so filed. -- - ,:hori- 11 1535 Act Sec. 1201(el Tax Reform Act of 1976 " ( 2 ) RETURNINFORMATION.-T~~ t e r n 'return information' meailS"(A) a taxpayer's identity, the nature, source, o r amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined o r subject t o other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense, and "(B) any part of any written determination o r any background file document relating to such n ritten determ~nation(as such terms are defined in section 6110(b)) which is not open to public inspection under section 6110, but such term does not include. data in a form which cannot be associated with, o r otherwise identify, directly or indirectly, a particular taxpayer. "(3) TAXPAYER RETURN INFORMATION.-T~~ term 'taxpayer return information' means return information as defined in paragraph (2) which is filed with, or furnished to. the Secretary by o r on behalf of the taxpayer to whbm such return information relates. "(4) T A XA D M I N I ~ ~ T I ~ Nterm . - T'tax ~ ~administration'"(A) means"(i) the administration, management, conduct, direction, and supervision of the execution and application of the internal revenue laws or related statutes (or equivalent laws and statutes of a State) and tax conventions t o which the United States is a party, and "(ii) the development and formulation of Federal tax policy relating to existing or proposed internal revenue laws, related statutes, and tax conventions, and "(B) includes assessment, collection, enforcement, litigation, publication, and statistical gathering functions under such laws, statutes, o r conventions. "(5) Sr.+r~.-The term 'State' means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the \.;irgin Islands, the Canal Zone, Guam, American Samoa, the Comrnon~vealthof the Northern hiariana Islands, and the Trust Territory of the Pacific Islands. "(6) TAXPAYER IDENTITY.-T~~ term 'taxpayer identity' means the name of a person with respect to whom a return is filed, his mailing address, his taxpayer identifying number (as described in section 6109), or a combination thereof. "(7) I ~ s ~ ~ n l o ~ . - - T terms h e 'inspected' and 'inspection' mean any examination of a return or return information. "(8) D ~ s c ~ o s u ~ ~ . - Tterm h e 'disclosure' means the making known to any person in any manner whatever a return or return information. "(9) FEDERAL AGENCY.-The term 'Federal agency' means an agency within the meaning of section 551 (1) of title 5, United States Code. OF RETURNS A N D RETURNINFORMATION TO DESIGNEE OF TAXPAYER"(c) DISCLOSURE T h e Secretary may, subject to such requirements and conditions as he may prescribe by regulations, disclose the return of any taxpayer, or return information with respect t o such taxpayer, to such person or persons as the taxpayer may designate in a written request for or consent to such disclosure, or to any other person a t the taxpayer's request t o the extent necessary t o c m p l y with a request for information or assistance made by the taxpayer to such other person. However, return information shall not be disclosed to such person or persons if the Secretary determines that such disclosure would seriously impair Federal tax administration. Act Sec. 1 202(a) 11 1536 Tax Reform Act of 1976 "(d) DISCLOS~RE TO STATET A X OFFICIALS.-Returns :I . I return information with respect t o taxes imposed by ch>pSers 1, 2, 6, 11, 12, 21, 23, 2 6 , !A, 51, and 52 and subchapter D of c h r t e r 36, shall be o!..en to inspection by o r di;:ir'::xe t o any State agency, body, o r commission, o r its It :a1 representative, which is cbx:;ed under the laws of such State with responsibility fci - 2 e administration of State tax laws for the purpose of, and only t o the extent x c e s r x r y ii;, the administration of such laws, including any procedures with respect t o locating a n y person who may be entitled t o a refund. Such inspection shall be permitted, o r such disclosure made, only upon written request by the head of such agency, body, o r commission, and only to the representatives of such agency, body, o r commission designated in such written request a s the individuals who a r e to inspect o r t o receive the return o r return information on b e h ~ l fof such agency, body, o r cornmission. Such representatives shall not include a :y :.i,":idual w h o is the chief executive . " -a1 representative of such agency, officer of . ;cS State . . o r who is neither a n employee body, o r c o : : . ~,,;.:on nc: :, person described in :. :c'iion (n). However, such return ::lie--lation shall not be disclosed to the extent th:. ::ie Secretary determines that such disclosure would identify a confidential informant o r ; '1::s'y impair a n y civil o r criminal tax investigation. "(e) D I S U O S ~ Rm E PERSONS HAVING MATERIALINTZ~E~T." ( I ) I N G ~ L . - T h e return of a person shall, upon written request, be open to inspection by o r disclosure to"(A) in the case of the return of a n individual"(i) that individual, "(ii) if property transferred by that individual t o a trust is sold o r exchanged in a transaction described in section 644, the trustee o r trustees, jointly o r separately, of such trust t o the extent necessary to ascertain a n y amount of tax imposed upon the trust by section 644, o r "(iii) the spouse of that individual if the individual and s.ich spouse have signified their consent t o consider a gift reported o n such return as made onehalf by him and one-half by the spouse pursuant t o the provi$ic2i of section 2513; "(B) in the case of a n income tax return filed jointly, either of the individuals with respect to whom the return is filed; "(C) in the case of the return of 2 partnership, any person who was a member of such partnership during any part of the period covered by the return; " ( D ) in the case of the return of a corporation or a subsidiary thereof"(i) a n y person designated Ly resslution of its board of directors o r other similar governing body, "(ii) a n y officer or employee d such corporation upon written request signed by any principal officer and a t t e ~ t e dto by the secretary o r other officer, "(iii) any bona fide shareholder of record owning 1 percent o r more of t h e outstanding stock of such corporation, "(iv) if the corporation was a foreign personal holding company, as defined by section 552, any person who was a shareholder during any part of a period covered by such return if with respect to that period, or a n y part thereof, such shareholder was required under section 551 to ir?clude in his gross income undistributed foreign personal hoi<.ng c o r n p a ~ ~income y of such company, "(v) if the corporltion was an electi t t small business corporation under subchapter S of chapter 1, any person who :as a shareholder during any p a r t of t h e period covered by such return du:-: .vhich a n election was in effect, or "(vi) if the corporation has been dissolved, a n y person authorized by applicable State law t o act for the corporatior. o r a n y person w h o the Secretary 1 1536 Act Sec. 1 202kd Tax R e f ~ r mAct of 1 976 finds t o have a material i n t e r s t which will be affected by information contained therein; "(E) in the case of the return of an estate"(i) the administrator, executor, o r trustee of such estate, and "(ii) any heir at law, next of kin, or beneficiary under the will, of the decedent, but only if the Secretary finds that such heir at law, next of kin, or beneficiary has a material interest which will be affected by informatian contained therein; and "(F) in the case of the return of a trust"(i) the trustee or trustees, jointly or separately, and "(ii) any beneficiary of such trust, but only if the Secretary Lnds that such beneficiary has a material interest which will be affected by information contained therein. " ( 2 ) INCOMPE~ENCY.-If an individual described in paragraph (1) is iegdly incompetent, the applicable return shall, upon written request, be open t o inspection by or disclosure to the committee, trustee, or guardian of his estate. "(3) DECEASED INDIVIDUALS.--me return of a decedent &all, upon written request, be open to inspection by or disclosure to"(A) the administrator, executor, or trustee of his estate, and "(B) any heir a t law, next of kin, or beneficiary under the will, of such decedent, or a donee of property, but only if the Secretary finds that such heir at law, next of kin, beneficiary, or donee has a material interest which will be affected by information contained therein. "(4) RA?;KRUPTCY.-Ifsubstantially all of the property of the person with respect t o whom the return is filed is in the hands of a trustee in bankruptcy o r receiver, such return or returns for p-ior years of such person shall, upon written request, be open to inspection by or disclosure t o such trustee or receiver, but only if the Secretary finds that such receiver or trustee, in his fiduciary capacity, has a material interest which will be affected by information contained therein. "(5) ATTORNEY I N F A C T . - A ~ return ~ t o which this subsection applies shall, upon written request, also be open to inspection by or disclosure to the attorney in fact duly authorized in writing by any of the persons described in paragraph ( I ) , (2). (3), o r (4) t o inspect the return or receive the information on his behalf, subject to the conditions provided in such paragraphs. "(6) RETVRNI N F O R M A T I O N . - Rinformation ~~~~ with respect to any taxpayer may be open to inspection by or disclosure to any person authorized by this subsection t o inspect any return of such taxpayer if the Secretary determines that such disclosure would not seriously impair Federal tax administration. TO COMMITTEF.~ OF CONCRESS.-"(f) DISCLOSURE "(1) COMMITTEE ON W A Y S A N D MEANS, CQMMITIZE ON FINANCE,A N D JOINT COMMITIZE ON T A X A ~ ? O N . - U written ~ O ~ request from the chairman of the committee cm Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return o r return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure. "(2) CHEF OF STAFF OF JOINT COMMITTEE ON TAXATION.-Upon written request by the Chief of Staff of the Joint Committee on Taxation, the Secretary shall fur- Act Sec. 1 202(a) W 1536 Tax Reform Act of 1976 nish him with a n y return o r return information spp:ified in such request. Such Chief of Staff may zubmit such return o r return i n i m ; ation to any committee described in paragraph ( I ) , except that any return % > rreturn information \vhich can be associated with, o v ,>therwise identify, d i r e c ~ l yor i.ldirectly, a particular taxpayer shall b e furnished t o such committee only when sitticg ir, closed executive session unless such tzxpayer otherwise consents in writing t o such disclosure. "(3) O T H E R~ 0 ~ 1 ~ 1 1 ~ ~ ~ ~ 5 . - Ptou ra n~ uaction a n t by, and upon written request by t h e chairman of, a committee of the Senate o r the House of Representatives (other than a committee specified in paragraph ( I ) ) specially authoriled to inipect a n y return o r return information by a resolution nf the Senate o r the House of Representatives or, in the case of a joint committee ( o t h e r than the joint committee speciced in paragraph ( I ) ) , by concurrent -er-.!,:rion, the Secretary shall furnish such comi~itt:c. or a du1.r authorized and designa. ..bcommittee thereof, sitting in closed execut!i.e seision, with any return or return in.. mation which such resolution authorizes :he committee o r subcommittee to inspect. A 1 ; resolution described in this paragraph shall specify the purpose for which the r e t u r si.rsturn informatic? is ~o be furnished and that such information cannot reasonably he obtained from a::- .t::er source. "(A) Co!afXT'EES DESCRIBED IN PARAGRAPH ( I ) . - h y cornrnittee described in paragraph (1) o r the Chief of Staff of the Joint CL;xrnittee on Taxation shall have the authority, acting directly, o r by o r through such errinliners or agents as the chairman of such committee o r such chief of stafi r . . l y dccig-.ate o r appoint, to inspect returns and return information a t such timc an(! in such manner as r f t u r n o r return may be determined b y such chairman or chief of sta5. -4.7;. information obtained by o r o n behalf of such committee pursuant t.1 the provisions of this subsection may be submitted by the committee t~ the Senate o r the House of Representatives, o r to both. T h e Joint Commir?c o r Taxation may also submit such return o r return information t o any other c :;r . ittee described in paragraph ( I ) , except that any return o r return informatio. -,-!l~chcan be associated with, o r otherwise identify, directly o r indirectly, a par:icnlar taxpayrr shall be furnished to such committee only \vhen sitting in closed ex<cutive session unless such taxpayer otherwise co1:sents in writing t o such disclosur.. "(B) OTHERC O M M I ~ E S . - - A committee ~~ or subcommittee described in paragraph ( 3 ) shall have the righi, acting directly, o r b y o r through no more than four examiners o r agents, designated o r appointed in bvriting in equal numbers by the chairman and ranking minority member of such committee or subcommittee, t o inspect returns ai:d ret:.m information a t such time and in such manner as may be determined by such chairman and ranking minority member. Any return or return information obtained by o r on behalf of such committee o r subcommittee pursuant to the provisims of this subsection m a y be submitted by the committee to the Senate o r the House of Representatives, o r to both, except that a n y return o r return information which can be associated with, o r otherwise identify, directly o r indirectly. a particular taxpayer, shall be furnished to the Senate or the House of Representatives only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure. "(1) I N GENERAL-Upon written req - t 5 y the P r e s ~ d e n t , s ~ g n e d by him personally, the Secretary shall furnish to thi ' - w d e n t , o r to such employee o r ~ 1 ployees of the W h ~ t eHou:e Office as the PI i e n t may d e s ~ g n a t eby n a m e in such request, a return o r return information with r r cct to any taxpayer named in such request. Any such request shall state- " ( A ) the name a n d address of the :?-xy-.yir whose return o r return information is to b e disclosed, 1 1536 Act Sec. 1 202(a) - Tax Reform Act of 1976 "(B) the kind of return o r return information which is t o be disclosed, "(C) the taxable period or periods covered by such return or return information, and "(D) the specific reason w h y the inspection or disclosure is requested. "(2) D I S ~ ~ S WOF R ER n U R N INFORMATION AS TO PRESIDENTIAL APPOINTEES AND APWINTEES.--The Secretary may disclose t o a duly authorized representative of the Executive Office of the President or t o the head of any Federal agency, upon written request by the President o r head of such agency, or to the Federal Bureau of Investigation on behalf of and upon the written request by the President or such head, return information with respect t o an individual who is designated as being under consideration for appointment to a position in the executive or judicial branch of the Federal Government. Such return information shall be limited to whether such an individual"(A) has filed returns with respect t o the taxes imposed under chapter 1 for not more than the immediately preceding 3 years; "(B) has failed to pay any tax within 10 days after notice and demand, or has been assessed any penalty under this title for negligence, in the current year o r immediately preceding 3 years; "(C) has been or is under investigation for possible criminal offenses under the internal revenue laws and the results of any such investigation; or "(D) has been assessed any civil penalty under this title for fraud. Within 3 days of the receipt of any request for any return information with respect t o any individual under this paragraph, the Secretary shall notify such individual in writing that such information has been requested under the provisions of this paragraph. "(3) RESTRICTION ON ~ l s c L O s u ~ ~ . - T h e employees to whom returns and return information are disclosed under this subsection shall not disclose such returns and return information to any other person except the President or the head of such agency without the personal written direction of the President or the head of such agency. "(4) RESTRI~ION ON DISCLOSURE TO CERTAIN E M P L O Y E E S . - D ~ S C ~of ~ S returns U~~ and return information under this subsection shall not be made to any employee whose annual rate of basic pay is less than the annual rate of basic pay specified for positions subject to section 5316 of title 5, United States Code. CERTAIN OTHER FEDERAL GOVERNMENT " ( 5 ) REPORTING REQUIREMENTS.-W 30~ ~days ~ ~ ~after the close of tach calender quarter. the President and the head of any agency requesting returns and return information under this subsection shall each file a report with the Joint Committee on Taxation setting forth the taxpayers with respect to whom such requests were made during such quarter under this subsection, the returns or return information involved, and the reasons for such requests. The President shall not be required to report on any request for returns and return information pertaining to an individual who was an officer or employee of the executive branch of the Federal Government a t the time such request was made. Reports filed pursuant to this paragraph shall not be disclosed unless the Joint Committee on Taxation determines that disclosure thereof (including identifying details) would be in the national interest. Such reports shall be maintained by the Joint Committee on Taxation for a period not exceeding 2 years unless, within such period, the Joint Committee on Taxation determines that a disclosure to the Congress is necessary. "(h) DISCLOSURE TO CERTAINFEDERAL OFFICERSA N D EMPLOYEES FOR PURPOSES OF TAX ADMINISTRATION, Em"(1) DEPARTMENT OF THE T R ~ s u ~ ~ . - R e t u r nand s return information Ball, without written request, be open to inspection by or disclosure to officers and employees of the Depaement of the Treasury whose official duties require such inspection o r disclosure for tax administration purposes. Act Sec. 1202(a) ll 1536 Tax Reform Act of 1976 "(2) DEPARTMENT OF JUSTICE-A return o r return information shall be open to inspection by o r disclosure to attorneys of the Department of Justice (including United States attorneys) personally and directly engaged in, and solely for their use in, preparation for a n y proceeding f o r :nvestigation which may result in such a proceeding) before a Federal g ~ a n c !jury (rr a n y Federal o r State court in a matter involving tax administration, but only if"(A) the taxpayer is o r may be a party to such proceeding; "(B) the treatment of a n item reflected on such return is or may be related t o t h e r e s o l d m of a n issue in t h e proceeding or investigation; o r "(C) such return o r return information relates or may relate to a transactional relati03 'tip hetwcc:n a person w h o is o r may be a psrty t o the proceeding and the taxpa.;;:. v.;i;rh aEcrt:, o r may affect, the resolution of a n issue in such w.--e.., 4 : . c. or inveii~gation. L.h. "(3) F o n ~OF F.&QuFST.--I~any case in which the Secretary i s authorized to disclose - s t u r n :r return inf:~rir!3tioilio the Department of justice pursuant to the provisions of s subsation" ( A ) i f the Secretary has referred the case to the Department of Justicp, o r if ';t -vii?~f.cdingis authorized by subchapter B of chapter 76, the Secretary may make ':s ' %\!reo n his own motion, o r ; , f the Secr&ary receives a written request from the Attorney General, the Depr~t, Attorney General, or an Assistant Attorney General, for a return of, o r return informatmi relating to, a person named in such request and setting forth the need for the disclosure, the Secretary shall disclose return or return the information so requested. I-', "(4) D r s c ~ o s u aI N ~ JUDICIAL A N D ADMINISTRATIVE TAX PROCEEDINGS.-AR t U m Or return i n i m a t i o n may be disclosd in a Federal or State judicial or administrative proceeding pertaining to tax administration, but only" ( A ) if the taxpayer is a party t o such proceeding; "(B) if the trcatment of an iten] reflected on such return is directly related to the resolution of a n issue in the proceeding; "(C) if such return o r return information directly relates to a transactional relationship %tween a penon who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue i n the proceeding; o r "(D) to the extent requireci by order of a court pursuant to section 3500 of title 18, United States Code, o r rule 16 of the Federal Rules of Criminal Procedure, such court being authorized in the issuance of such order t o give due consideration t o congressional policy favoring the confidentiality of returns and return information a s set forth in this title. However, such return or return information shall not be disclosed as provided in suhparagraph ( A ) , (B)., o r ( C ) if the Secretary determines that such disclosure would identify a confidential informant or seriously impair a avil o r criminal tax investigation. " ( 5 ) P R o s m ~ nJURORS.-In connection with any judicial proceeding described in paragraph (4) t o which the United States is a party, the Secretary shall respond t o a written inquiry from an attorney of the Department of Justice (including a United States attorney) involved in such proceeding or any person ( o r his legal representative) who is a party to such proceeding as to whether an individual who is a prospcctive juror in such r e e d i n g has o r has not been the subject o f any audit o r o.her tax investigation. by the Internal Revenue Service. The Secretary shall limit such res:onse to an affirmative o r negative reply to such inquiry. TO F m w . ~ . OFFICERSOR EMPLOYEES FOR ~ W Y I S T R A R O N OF FEDERAL "(i) DISCLOSUKE TO TAXADMINISIXATION.U w s Nor RELATING "( 1 ) NONTAXCRIMINAL INYESTIGATION.- " ( A ) INFORMATION FROM TAXPAYEX-A return o r taxpayer return information shall, ptlrsriant to, and upon the grant of, a n ex parte o:der by a Federal district Q 1536 Act Sec. 1 2021a) court judge as providL- J > paragraph. bc open, but only t o the extent necessary as provided in sucn order, to officers and employees of a Federal agency personally and directly engaged in and solely for their use in, reparation f o r any administrative or judicial proceeding (or investigation which may result in such a proceeding) pertaining to the enforcement of a specifically d e s i g ~ t e d Federal criminal statute (not involving tax administration) t o which the United States or such agency is or may be a party. "(B) APPLICATION FOR ORDER -The head of any Federal agency described in subparagraph ( A ) or, in the case of the Depart3ent of Justice, the Attorncy General, the Deputy Attorney General, or an Assistant Attorney General, may authorize an application to a Federal district court judge for the order referred to in subparagraph ( A ) . Upon such application, such judge may grant such order if he determines on the basis of the facts submitted by the applicant that"(j) there is reasonable cause to believe, based upon information believed tc be reliable, that a specific criminal act has been committed; L L ; . ~ "(ii) there is reason to believe that such rrturn- or nturn information is probative evidence of a matter in i v u e related to the commission of such criminal act; and "(iii) the information sought to be disclosed cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the return or return information sought constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act. However, the Secretary shall not disclose any return o r return information under this paragraph if he determines and certifies to the court that such disclosure would identify a confidential informant or seriously impair a civil o r criminal tax investigation. writ"(2) RETURNINFORMATION OTHER THAN TAXPAYER RETURN INFORMATION.-UPO~ ten request from the head of a Federal agency described in paragraph (1) ( A ) , or in the case of the Department of Justice, the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, the Secretary shall disclose return information (other than taxpayer return information) t o officers and employees of such agency personally and directly engaged in, and solely for their use in, preparation for any administrative or judicial proceeding (or investigation d i c h may result in such a proceeding) described i n paragraph ( l ) ( A ) . Such request shall set forth- "(A) the name and address of the taxpayer with respect t o whom such return information relates; "(B) the taxable period or periods t o which the return information relates; " ( C ) the statutory authority under which the proceeding o r investigation i s being conducted; and "(Dl the specific reason o r reasons why such disclosure is or may be material t o the proceeding or investigation However, the Secretary shall not disclose any return or return information under this paragraph if he determines that such disclosure would identify a confidential informant o r seriously impair a civil or criminal tax investigation. "(3) DISCLOSURE OF PERlRN INFORMATION CONCERNING POSSIBLE CRIMINAL AIXIWTIES.The Secretary may disclose in writing return information, other than taxpayer return information, which may constitute evidence of a violation of Federal criminal laws t o the extent necessary t o apprise the head of the appropriate Federal agency charged with the responsibility for enforcing such laws. "(4) USE IN JUDICIAL OR ADMINISTRATIVE PROCEEDING.-AI~Y return or return information obtained under paragraph ( I ) , (2), or (3) may be entered into evidence in any administrative or judicial proceeding pertaining to enforcement of a specifically designated Federal criminal statute (not involving tax administration) t o which the United States Act Sec. 1202(a) 11 1536 Tax Reform Act of 1976 or an agency described in paragraph (1)(A) is a party but, in the case of any return or return information obtained under paragraph ( I ) , only if the court finds that such return or return information is probative of a matter in issue relevant in establishing the commission of a crime or the guilt of a party. However, any return o r return information obtained under paragraph ( I ) , (2), or (3) shall not be admitted into evidence in such proceeding if the Secretary determines and notifies the Attorney General or his delegate or the head of such agency that such admission would identify a confidential informant or seriously impair a civil o r criminal tax investigation. T h e admission into evidence of any return or return information contrary to the provisions of this paragraph shall not, as such, constitute reversible n o r upon appeal of a judgment in such proceeding. "(5) R E N E c o m n o ~OF CONTRACTS.-A return or return information with respect to the tax imposed by chapter 1 upon a taxpayer subject to the provisions of the Renegotiation Act of 1951 shall, upon request in writing by the Chairman of the Renegotiation Board, be open to officers and employees of such board personally and directly engaged in, and solely for their use in, verifying or analyzing financial information required by such Act to be filed with, or otherwise disclosed to, the board, or to the extent necessary t o implement the provisions of section 1481 or 1482. The Chairman of the Renegotiation Board may, upon referral of any matter with respect to such Act t o the Department of Justice for further legal action, disclose such return and return information to any employee of such department charged with the responsibility for handling such matters. CF.N-ERAL."(6) COMPTROLLER "(A) RETURNSAVAILABLE FOR INSPECTION.-EXC~~~ as provided in subparagraph (B), upon written request by the Comptroller General of the United States, returns and return information shall be open t o inspection by, or disclosurc to, officers and employees of the General Accounting Office for the purpose of, and to the extent necessary in, making"(i) an audit of the Internal Revenue Service or the Bureau of Alcohol. Tobacco and Firearms which may be required by section 117 of the Budget and Accounting Procedures Act of 1950 (31 U. S. C. 67), or "(ii) any audit authorized by subsection (p) (6), except that no such officer o r employee shall, except to the extent authorized by subsection ( f ) or ( p ) (6), disclose to any person, other than anothcr officer or employee of such office whose official duties require such disclosure. any return o r return information described in section 4424(a) in a form which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer, nor shall such officer o r employee disclose any other return or return information, except as otherwise expressly provided by law, to any person other than such other officer o r employee of such oftice in a form which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. " ( B ) DISAPPROVAL BY JOINT COMMITTEE O N T ~ x h T ~ ~ x . - R e t ~ rand n s return information shall not be open to inspection or disclosed under subparagraph ( A ) with respect to an audit"(i) -unless the Comptroller General of the United States notifies in writing the Joint Committee on Taxation of such audit, and "(ii) if the Joint Committee on Taxation disapproves such audit by a vote of at least two-thirds of its members within the 30-day period beginning on the day the Joint Committee on Taxation receives such notice. " ( j ) S T A ~ S ~ CUSE.AL "(1) DEPARTMENT OF C O M M E R ~ - - request U ~ ~ in writing by the Secretary of Commerce, the Secretary shall furnish" ( A ) such returns, or return information reflected thereon, to officers and employees of the Bureau of the Census, and " ( B ) such return information reflected on returns of corporations to officers and employees of the Bureau of Economic Analysis, 1 1536 Act Sec. 1202(a) Tax Reform Act of 1976 as the Secretary may prescribe by regulation for the purpose of, but only to the extent necessary in, the structuring of censuses and national economic accounts and conducting related statistical activities authorized by law. "(2) FWERALTRADE CO~SSION.-U~OKIrquest in writing by the Chainnan of the Federal Trade Commission, the Secretary shall furnish such return information reflected on any return of a corporation with respect t o the tax imposed by chapter 1 t o officers and employees of the Division of Financial Statistics of the Bureau of ECOnomics of such commission as the Secretary may prescribe by regulation for the purpose of, but only to the extent necessary in, administration by such division of legally authorized economic surveys of corporations. OF T R U S U R Y . - R ~ ~and U ~ return information shall be open to "(3) DEPARTMENT inspection by or disclosure to officers and employees of the Department of the Treasury whose official duties require such inspection o r disclosure for the purpose of, but only to the extent necessary in, preparing economic o r financial forecasts, projections, analyses, and statistical studies and conducting related activities. Such inspection o r disclosure shall be permitted only upon written request which sets forth the specific reason or reasons why such inspection or disclosure is necessary and which is signed by the head of the bureau or office of the Department of the Treasury requesting the inspection o r disclosure. "(4) ANONYMOUS FORM.-NO person who receives a return or return information under this subsection shall disclose such return o r return information to any person other than the taxpayer to whom it relates except in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. "(k) D ~ s a o s v w .OF CERTAINRETURNS AND &TURN INFORMATION POP TAXADMINISTILAnoN PURPOSES."(1) D r s n o s u R ~OF ACCEPTED o ~ ~ ~ ~ s - ~ ~ - a ) l ~ ~ ~ o h f I s Einf0I-tXIation . - R e t u m S h d bC disclosed to members of the general public to the extent necessary t o permit inspection of any accepted offer-in-compromise under section 7122 relating to the liability for a tax imposed by this title. "(2) D ~ s a o s uOF~ ~AMOUNT OF OUTSTANDING -.-If a notice of lien has been filed pursuant to section 6323(f), the amount of the outstanding obligation secured by such lien may be disclosed to any person who furnishes satisfactory written evidence that he has a right in the property subject t o such lien or intends to obtain a right in such property, "(3) DISCLOS~RE OF RETURN INFORMATION TO CORRFXT MISSTATEMENTS OF mm.-The Secretary may, but only following approval by the Joint Committee on Taxation, disclose such return information or any other information with respect t o any specific taxpayer to the extent necessary for tax administration purposes to correct a misstatement of fact published or disclosed with respect t o such taxpayer's return o r any transaction of the taxpayer with the Internal Revenue Service. "(4) DISCLOSURE TO COMPETFXT AUTHORITY UNDER INCOKE TAX WNVEN~ON.-A return o r return information may be disclosed to a competent authority of a foreign government which has an income tax convention with the United States but only to the extent provided in, and subject to the terms and conditions of, such convention. " ( 5 ) STATEA C E N C I E REGULA'TINC TAX RENRN P R E P A R E R S . - T ~ X P ~ Y ~ ~ identity infwrnation with respect to a1 y ;r.come tax return preparer, and information as to whether or not any penalty has beel. assessed against such income tax return preparer under section 6694, 6695, or 7216, may be furnished to any agency, body, or commission lawfully charged under any State or local law with the licensing, registration, o r regulation of income tax return preparers. Such information may be furnished only upon written request by the head of such agency, body, or commission designating the officers or employees t o whom such information is to be furnished. Information may be furnished and used under this paragraph only for purposes of the licensing, registration, o r regulation of income tax return preparers. Act Sec. 1202(01 fl 1536 Tax Reform Act of 1976 "(6) DI~CLOSURE BY INTERNAL REVENUE OFFICERS A N D EMPLOYEES FOR INVESTIGATIVE PURPOSES.-A~internal revenue officer o r employee may, in connection with his official duties relating to any audit, collection activity, or civil or criminal tax investigation o r any other offense under the internal revenue laws, disclose return information to the extent that such disclosure is necessary in obtaining information, which is not otherwise reasonably available, with respect t o the correct determination of tax, liability for tax, or the amount to be collected o r with respect to the enforcement of any other provision of this title. Such disclosures shall be made only in such situations and under such conditions as the Secretary may prescribe by regulation. OF "(1) DISCLOSURE ADMMSTRATLON AND CERTAIN RETURNS AND RETURN INFORMATION TO SOCIAL SECURITY RAILROAD RElTREMENT B O A R D . - T ~Secretary ~ may, UpWI writtell request, disclose returns and return information with respect t- "(A) taxes imposed by chapters 2, 21, and 24, to the Social Security Administration for purposes of its administration of the Social Security Act; "(B) a plan to which part I of subchapter D or chapter 1 applies, to the Social Security Administration for purposes of carrying out its responsibility under section 1131 of the Social Security Act, limited, however to return information described in section 6057(d); and "(C) taxes imposed by chapter 22, to the Railroad Retirement Board for purposes of its administration of the Railroad Retirement Act. "(2) D I S ~ S I J R COF RENRNS A N D R E N R N lNFORMAnON M M E DEPARTMENT O F LABOR AND PENSION BENEFIT GUARANTY C O R W R . ~ ~ O N .Secretary -T~~ may, U p writtm request, furnish returns and return information to the proper officers and employees of the Department of Labor and the Pension Benefit Guaranty Corporation for purposes of, but only to the extent necessary in, the administration of titles I and IV of the Employee Retirement Income Security Act of 1974. OF RETURNS AND RETURN INFORMATION TO PRlVACY PROTECnON STUDY "(3) DISCLOSURE c o x ~ l s s ~ o ~ . - T hSecretary e may, upon written request, disclose returns and return information to the Privacy Protection Study Commission, o r to such members. officers, or employees of such commission as may be named in such written request, t o the extent provided under section S of the Privacy Act of 1974. "(4) D l ~ S U R J iOP RElWRNS AND RETURN INFORMATION FOR USE IN PERSONNEL OR CLAIMANT REPRESENTATIVE MATTERS.-T~~ Secretary may disclose returns and return information"(A) upon written request"(i) to an employee o r former employee of the Department of the Treasury, or to the duly authorized legal representative of such employee or former employee, who is or may be a party to any administrative action or proceeding affecting the personnel rights of such employee or former employee; o r "(ii) to any person, or to the duly authorized legal representative of such person, whose rights are or may be affected by an administrative action or proceeding under section 3 of the Act of July 7, 1884 (23 Stat. 258; 31 U. S. C. 1026), solely for use in the action or proceeding, o r in preparation for the action or proceeding, but only to the extent that the Secretary determines that such returns or return information is or may be relevant and material to the action or proceeding; or 1 1536 Act Sec. 1 202(a) Tax Reform Act of 1 976 "(B) to officers and employees of the Department of the Treasury for use in any action o r proceeding described in subparagraph (A), o r in preparation for such action or proceeding, to the extent necessary to advance or protect the interests of the United States. "(5) DEPARTMENT OF HEALTH,EDUCATION, A N D W E L F A R E . - U ~written ~~ request by the Secretary of Health, Education, and Welfare, the Secretary may disclose information returns filed pursuant t o part 111 of subchapter A of chapter 61 of this subtitle for the purpose of carrying out, in accordance with an agreement entered into pursuant to section 232 of the Social Security Act, an effective return processing program. "(6) DISCLOSURE OF RETURK INFORMATION TO FEDERAL, STATE, AND LOCAL CHILD SUPPORT ENFORCEMENT AGENCIES."(A) RETURNINFORMATION FROM INTERNAL REVENUE SERVICE.-The Sectetary may, upon written request, disclcse t o the appropriate Federal, State, or local child support enforcement agency"(i) available return information from the rnastq files of the Internal Revenue Service relating to the address, filing status, amounts and nature of income, and the number of dependents reported on any return filed by, o r with respect to, any individual with respect to whom child support obligations are sought to be established or enforced pursuant to the provisions of part D of title I V of the Social Security Act and with respect t o any individual to whom such support obligations are owing, and "(ii) available return information reflected on any return filed by, or with respect to, any individual described in clause (i) relating to the amount of such individual's gross income (as defined in section 61) or consisting of the names and addresses of payors of such income and the names of any dependents reported on such return, but only if such return information is not reasonably available from any other source. "(B) R ~ s r a r c r r o ON ~ DISCLOSURE.-T~~ Secretary shall disclose return information under subparagraph ( A ) only for purposes of, and to the extent necessary in, establishing and collecting child support obligations from, and locating, individuals owing such obligations. OF TAXPAYER ID~NTITY ~NFORHATION.-T~~ Secretary is authorized"(m) D1scLOsu~~ "(1) to disclose taxpayer identity information to the press and other media for purposes of notifying persons entitled to tax refunds when the Secretary, after reasonable effort and lapse of time, has been unable to locate such persons, and "(2) upon written request, t o disclose the mailing address of a taxpayer t o officers and employees of an agency personally and directly engaged in, and solely for their use in, preparation for any administrative or judicial proceeding (or investigation which may result in such a proceeding) pertaining to the collection or compromise of a Federal claim against such taxpayer in accordance with the provisions of section 3 of the Federal Claims Collection Act of 1966. t oSregulations U~~~ prescribed by the Secretary, "(n) CERTAINOTHERP E R S O N S . - P U ~ returns and return information may be disclosed to any person, including any person described in section 7513(a), to the extent necessary in connection with the processing, storage, transmission, and reproduction of such returns and return information, and the programming, maintenance, repair, testing, and procurement of equipment, for purposes of tax administration. "(0) DISCLOSURE OF RETURNSAND RETURNINFORMATION WITH RESPECTTO CERTAIN TAXES.TAXES lMPOSw BY SUBTITLE E.-Return and return information with respect "(1) to taxes imposed by subtitle E (relating to taxes on alcohol, tobacco, and firearms) shall be open to inspection by or disclosure t o officers and employees of a Federal agency whose official duties require such inspection or disclosure. Act Sec. 1202(a) B 1536 Tax Reform Act of 1976 "(2) TAXES IMPOSED BY CHAPIZR 35.-Returns and return information with respect t o taxes imposed by chapter 35 (relating to taxes on wagering) shall, notwithstanding any other provision of this section, be open to inspection by or disclosure only to such person or persons and for such purpose or purposes as are prescribed by section 4424. "(p) PROCEDURE AND RECORDKEEPINC.U ~ Sthe ~ S inspection or "(1) MANNER,TIME, A N D PLACE OF I N ~ P E C T I O N S . - R ~ ~ for disclosure of a return or return information and such inspection or disclosure shall be made in such manner and a t such time and place as shall be prescribed by the Secretary. "(2) PROCEDUWL" ( A ) R E P R O D U ~ OF O NRETURNS.-A reproduction or certified reproduction of a return shall, upon written request, be furnished t o any person to whom disclosure or inspection of such return is authorized under this section. A reasonable fee may be prescribed for furnishing such reproduction or certified reproduction. "(B) DISCLOS~REOF RETURN I N F O R M A ~ T O N . - Rinformation ~~U~ disclosed to =y person under the provisions of this title may be provided in the form of written documents, reproductions of such documents, films or photoimpressions, or electronically produced tapes, disks, or records, o r by a n y other mode or means which the Secretary determines necessary o r appropriate. A reasonable fee may be prescribed for furnishing such return information. "(C) USE OF ~ ~ ~ a o ~ u ~ n o ~ s .reproduction -Any of any return, document, or other matter made in accordance with this paragraph shall have the same legal status as the original, and any such reproduction shall, if properly authenticated, be admissible in evidence in any judicial or administrative proceeding as i f it were the original, whether or not the original is in existence. "(3) RECORDS OF INSPECTION AND DISCLOSURE." ( A ) SYSTEMOF RECORDKEEPING.-Except as otherwise provided by this paragraph, the Secretary shall maintain a permanent system of standardized records or accountings of all requests for inspection or disclosure of returns and return information (including the reasons for and dates of such requests) and of returns and return information inspected or disclosed under this section. Notwithstanding the provisions of section 552a(c) of title 5, United States Code, the Secretary shall not be required t o maintain a record or accounting of requests for inspection o r disclosure of returns and return information, or of returns and return information inspected or disclosed, under the authority of subsections (c), (e), ( h ) ( l ) , (3)(A), or (41, (i)(4) or (6)(A)(ii), ( k ) ( l ) , (2), or ( 6 ) , ( l ) ( l ) or ( 4 ) ( B ) or (5), (m), o r (n). The reoxds or accountings required to be maintained under this paragraph shall be available for examination by the Joint Committee on Taxation or the Chief of Staff of such joint committee. Such record or accounting shall also be available for examination by such person or persons as may be, but only to the extent, authorized i o make such examination under section 552a(c)(3) of title 5, Udited States Code. "(B) REPORTBY T H E SECRETARY.-TheSecretary shall, within 90 days after the close of each calendar year, furnish t o the Joint Committee on Taxation a report with respect to, or summary of, the records or accountings described in subparagraph ( A ) in such form and containing such information as such joint committee or the Chief of Staff of such joint committee may designate. Such report or summary shall not, however, include a record or accounting of any request by the President under subsection (g) for, or the disclosure in response to such request o f , any return or return information with respect to any individual who, at the time of such request, was an officer or employee of the execa:ive branch of the Federal Government. Such report or summary, or any part tliereof, m y be disclosed by such joint committee to such persons and for such purposes as the joint committee may, by record vote of a majority of the members of the joint committee, determine. 11 1536 Act Sec. 1202(a) Tax Reform Act of 1976 "(C) 7-2-11 KLPORT O N D I S C L O S U R ~ S . -Secretary T~~ shall, within 90 days after the cloqe of each calendar year, furnish to the Joint Committee on Taxation for disclosure to the public a report with respect t o the records or accounting described in subparagraph ( A ) whichA "(i) provides with respect to each Federal agency, each agency, body, or commission described in subsection (d) or (1)(3) or (6), and the General Accounting Office the number of" ( I ) requests for disclosure of returns and return information, "(11) instances in which returns and return information were disclosed pursuant to such requests, "(111) taxpayers whose returns, or return information with respect t o whom, were disclosed pursuant to such requests, and "(ii) describes the general purposes for which such requests were made. "(4) SAFEGUARDS.-AnyFederal agency described in subsectibn (h)(2), ( i ) ( l ) , (2) or ( 5 ) . ( j ) ( l ) or (2), (1)(1), (2). or (S), o r ( o ) ( l ) , the General Accounting Office, or any agency, body, or comm~ssiondescribed in subsection (d) o r (1)(3) o r (6) shall, as a condition for receiving returns or return information- " ( A ) establish and maintain, to the satisfaction of the Secretary, a permanent system of standardized records with respect to any request, the reason for such request, and the date of such request made by or of it and any disclosure of return or return information made by or to it; "(B) establish and maintain, to the satisfaction of the Secretary, a secure area or place in which such returns or return information shall be stored; "(C) restrict, to the satisfaction of the Secretary, access to the returns o r return information only to persons whose duties or responsibilities require access and to whom disclosure may be made under the provisions of this title; "(D) provide such other safeguards which the Secretary determines (and which he prescribes in regulations) to be necessary or appropriate to protect the confidentiality of the returns or return information; "(E) furnish a report to the Secretary, a t such time and containing such information as the Secretary may prescribe, which describes the procedures established and utilized by such agency, body, or commission or the General Accounting Office for ensuring the confidentiality of returns and return information required by this paragraph; and "(F) upon completion of use of such returns or return information"(i) in the case of an agency, body, or commission described in subsection ( d ) or (1)(6), return to the Secretary such returns or return information (along with any copies made therefrom) or make such returns or return information undisclosable in any manner and furnish a written report t o the Secretary describing such manner; and "(ii) in the case of an agency described in subsections (h)(2), ( i ) ( l ) , (2), o r (S), ( j ) ( l ) o r (21, (1)(1), (21, or (51, or ( o ) ( l ) , the commission described in subsection (1)(3), or the General Accounting Office, either" ( I ) return to the Secretary such returns or return information (along with any copies made therefrom), " ( i l ) otherwise make such returns o r return information undisclosable, or "(111) to the extent not so returned or made undisclosable, ensure that the c o n d ; r ~ i i sof subparagraphs (A), (B), (C), ( D ) , and ( E ) of this Act Sec. 1202(a) fl 1536 Tax Reform Act of 1 976 paragraph continue to be met with respect to such returns o r return information, except that the conditions of subparagraphs (A), (B), (C), (D), and ( E ) shall cease to apply with respect to any return or return information if, and to the extent that, such return o r return information is disclosed in the course of any judicial or administrative proceeding and made a part of the public record thereof. If the Secretary determines that any such agency, body, or comn~issionor the General Accounting Office has failed to, or does not, meet the requirements of this paragraph, he may, after any proceedings for review established under paragraph (7), take such actions as are necessary to ensure such requirements are met, including refusing to disclose returns o r return information to such agency, body, or commission or the General Accounting 06- until he determines that such requirements have been o r will be met. " ( 5 ) REPORTON PROCEDURES AND SAFECUARDS.-A~~~~ the close of each calendar quarter, the Secretary shall furnish to each committee described in subsection ( f ) ( l ) a report which describes the procedures and safeguards established and utilized by such agencies, bodies, o r commissions and the General Accounting Office for ensuring the confidentiality of returns and return information as required by this subsection. Such report shall also describe instances of deficiencies in, and failure to establish or utilize, such procedures. "(6) AUDITOF PROCEDURES AND SAFEGUARDS.- "(A) AUDITBY COMPTROLLER GENERAL-The Comptroller General may audit the procedures and safeguards established by such agencies, bodies, or commissions pursuant to this subsection to determine whether such safeguards and procedures meet the requirements of this subsection and ensure the confidentiality of returns and return information. The Comptroller General shall notify the Secretary before any such audit is conducted. "(B) RECORDS OF INSPECTION AND REWRTS BY THE COMPTROLLER GENERAL.-The Comptroller General shall"(i) maintain a permanent system of standardized records and accountings of returns and return information inspected by officers and employees of the General Accounting Office under subsection (i) (6) (A) (ii) and shall, within 90 days after the clme of each calendar year, furnish to the Secretary a report with respect to, or summary of, such records or accountings in such form and containing such information as the Secretary may prescribe, and "(ii) furnish an annual report to each committee described in subsection ( f ) and t o the Secretary setting forth his findings with respect to any audit conducted pursuant to subparagraph (A). The Secretary may disclcse to the Joint Committee any report furnished to him under clause (i). "(7) ADMINISTRATIVE REVIEW.-The Secretary shall by regulations prescribe pr* cedures which provide for administrative review of any determination under paragraph (4) that any agency, body, or commission described in subsection (d) has failed to meet the requirements of such paragraph. "(A) SAFE~UA~S.-Notwithstanding any other provision of this section, no return or return information shall be disclosed after December 31, 1978, to any officer or employee of any State which requires a taxpayer to attach to, or include in, any State tax return a copy of any portion of his Federal return. or inrormation reflected on such Federal return, unless such State adopts provisions of law which protect the confidentiality of the copy of the Federal return (or portion thereof) attached to, or the Federal return information reflected on, such State tax return. "(B) Drscwsune OF m u m s OR RETURN INFORMATION I N ZTATE RFTURNS.Nothing in subparagraph (A) shall be construed to prohibit the disclosure by an 1 1536 Act Sec. 1 202(a) CRS- 7 7 Tax Reform Act of 1976 officer or employee of any State of any copy of 4 1 y portion of a Federal return or any information on a Federal return which is required t o be attached or included in a State return to another officer or employee of such State (or political subdivision of such State) if such disclosure is specifically authorized by State law. "(q) REGULATIONS.-Tht Secretary is authorized t o prescribe such other regulations as are necessary to carry out the provisions of this section." CRS-78 Tax Reform A c t of 1 9 7 6 (Summons Section) -- 26 U . S . C . 7609 [Code Sec. 76091 "SEC. 7609. S P E C I A L P R O C E D U R E S F O R T H I R D - P A R T Y SUMMONSES. "(a) NO~ICE"(1) I N GENERAL.-If"(A) any summons described in subsection (c) is served on any person who is a third-party recordkeeper, and "(B) the summons requires the production of any portion of records made o r kept of the business transactions o r affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons. then notice of the summons shall be given to any person so identified within 3 days of the day on which such service is made, but no later than the 14th day before the day fixed in the summons as the day upon which such records are to be examined. Such notice shall be accompanied by a copy of the summons which has been served and shall contain directions for staying compliance with the summons under subsection (b) (2). "(2) SUFFICIENCY OF NO~CE-Such notice shall be sufficient if, on or before such third day, such notice is served in the manner provided in section 7603 (relating to service of summons) upon the person entitled to notice, or is mailed by certified or registered mail to the last known address of such person, or, in the absence of a last known address, is left with the person summoned. If such notice is mailed, it shall be sufficient if mailed to the last known address of the person entitled to notice or, in the case of notice to the Secretary under section 6903 of the existence of a fiduciary relationship, to the last known address of the fiduciary of such person, even if such person or fiduciary is then deceased, under a legal disability, or no longer in existence. "(3) THIRD-PARTY RECORDKEEPEILDEFINED.-For purposes of this subsection, the term 'third-party recordkeeper' means"(A) any mutual savings bank, cooperative bank, domestic building and loan association, or other savings institution chartered and supervised as a savings and loa.1 or similar association under Federal o r State law, any bank (as defined in section 581), or any credit union (within the meaning of section 501(c)(14)(A)); "(B) any consumer reporting agency (as defined under section, 603(d) of the Fair Credit Reporting Act (15 U. S. C. 1681a(f))); "(C) any person extending credit thmugh the use of credit cards o r similar devices; t 1557 Act Sec. 1204(d) Tax Reform Act of 1976 "(D) any broker (as defined in section 3(a)(4) of the Securities Exchange Act of 1934 (15 U. S. C. 78c(a)(4))); "(E) any attorney; and "(F) any accountant. "(4) E x c r n o ~ s . - P a r a g r a p h (1) shall not apply to any summons"(A) served on the person with respect t o whose libility the summons is issued, or any officer or emptoyee of such person, "(B) to determine whether or uot records of the business transactions of affairs of an identified person have been n u d e or kept, or "(C) described in subsection (f). " ( 5 ) NAWREOF SUMMONS.-^^ summons to which this subsection applies (and any summons in aid of collection described in subsection ( c ) ( 2 ) ( B ) ) shall identify the taxpayer to whom the summons relates o r the other person t o whom the records pertain and shall provide such other information as will enable the person summoned to l o a t e the records required under the summons. "(b) ~ C H TO T INTERVENE ; RIGHT'ID STAY COMPLIANCE."(1) I ~ r ~ ~ v ~ ~ r ~ o ~ . - N o t w i t h s t aany n d iother n g law o r rule of law, M y person who is entitled to notice of a summons under subsection (a) shall have the right t o intervene in any proceeding with respect to the enforcement of such summons under section 7604. "(2) RIGHTTO STAY c o ~ ~ ~ ~ ~ ~ . - N o t ~ i t h s t any a n dother i n g law o r d e of law, any person who is entitled to notice of a summons under subsection (a) shall have thc right to stay compliance with the summons if, not later than the 14th day after the dry such notice is given in the manner provided in subsection (aI(2)"(A) notice in writing is given to the person summoned not t o comply with the summons, and "(B) a copy of such notice not to comply with the summons is mailed by registered o r certified mail to such person and t o such office as the Secretary m y direct in the notice referred to in subsection (a)(l). "(c) SUMMONS m WHICH SECTION APPLIES."(1) I N GENERAL-EXC~P~ as provided in paragraph (2), a summons is described in this subsection if it is issued under paragraph (2) of section 7602 o r under section W O ( e ) (2), 6421 (I) (2), 6114(d) (2), or 6 5 Z ( e) (2) and requires the production of records. "(2) EXCEPTIONS.-A summons shall not be treated as described in this subsection if"(A) it is solely to determine the identity of any person having a numbered account (dr similar arrangement) with a bank o r other institution described in subsection (a)(3)(A), or "(B) it is in aid of the collection of"(i) the liability of any person against whom an assessment has been made or judgment rendered, or "(ii) ihe iiahility at law or in equity of any transferee or fiduciary of any person referred to in clause (i). "(3) RECORM ; CERTA~NRELATED TESTIMONY.--FO~purposes of this section"(A) the term 'records' includes books, papers, o r other data, and "(B) a summons requiring the giving of testimony relating to records shall be treated as a summons requiring the production of such records. "(d) R ~ s m ~ c r i oON n EXAMINATION OF &CORDS.-NO examination of any records rquired to be produced under a summons as t o which notice is required under subsection (a) may be made-' Act Sec. 1205(a) $ 1558 Tax Reform Act of 1976 "(1) before the expiration of the 14-day period allowed for the notice not t o comply under subsection (b)(2), or "(2) when the requirements of subsection (b)(2) have been met, except in accordance with an order issued by a court of competent jurisdiction authorizing examination of such records o r with the consent of the person staying compliance. OF STATUTE OF LIMITATIONS.-Ifany person takes any action as pro"(e) SUSPENSION vided in subsection (b) and wch person is the person with respect to whose liability the summons is issued ( o r is the agent, nominee, or other person acting under the d~rection or control of such person), then the running of any period of Simltations under section 6501 (relating to the assessment and collection of tax) or under section 6531 (relating to criminal prosecutions) with respect to such person shall be suspended for the period during which a proceeding, and appeals therein, with respect to the enforcement of such summons is pending. REQUIREMENT I N THE CASEOF A JOHN DOESUMMONS-Anysummons "(f) ADDITIONAL described in subsection (c) which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that"(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons, "(2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed t o comply with any provision of any internal revenue law, and "(3) the information sought to be obtained from the examination of the records (and the identity of the person o r persons with respect to whose liability the summons is issued) is not readily available from other sources. "(g) SPECIALEXCEPTIONFOR CERTAINSUMMONSES.-Inthe case of any summons described in subsection (c), the provisions of subsections ( a ) ( I ) and ( b ) shall not apply if, upon petition by the Secretary, the court determmes, on the basis of the facts and circumstances alleged, that there is reasonable cause to believe the giving of notice may lead to attempts to conceal, destroy, or alter records relevant to the examination, to prevent the communication of information from other persons through intimidation. bribery, or collusion, or to flee to avoid prosecution, testifying, or production of records. J ~ R I S D I C ~ O OF N DISTRICT COURT."(1) T h e United States district court for the district within which the person t o be summoned resides or is found shall have jurisdiction to hear and determine proceedings brought under subsections (f) or (g). The determinations required to be made under subsections (f) and ( g ) shall be made ex parte and shall be made solely upon the petition and supporting affidavits. An order denying the petition shall be deemed a final order which may be appealed. "(2) Except as to cases the court considers of greater importance, a proceeding brought for the enforcement of any summons, or a proceeding under this section, and appeals, take precedence on the docket over all cases and shall be assigned for hearing and decided a t the earliest practicable date, "(h) "SEC. 7610. FEES AND COSTS FOR WITNESSES. "(a) I N G E N E R A L . - T ~Secretary ~ shall by regulations establish the rates and conditions under which payment may be made of"(1) fees and mileage to persons who are summoned to appear before the Secretary, and "(2) reimbursement for such costs that are reasonably necessary which have been directly incurred in searching for, reproducing, or transporting books, papers, records, o r other data required to be produced by summons. 1 1558 Act Sec. 1205(a) . '( b) Exn~norr.-No payment mry h person who, at the CRS-82 Financial Institutions Regulatory and Interest Rate Control Act of 1978 92 STAT. 3697 PUBLIC LAW 95-630-NOV. 10,1978 TITLE XI-RIGHT TO FIKANCLKL PEIF'ACY SEC.1100. This title may be cited as the "Right to Financial Privacy Act of 1978". DIPINITIONS the financial institution ; (3) "Government authority" means any agency or de artment of the United States, or any oacer, employee, or agent t e m f ; (4) ''person" means an mdividual or a partnership of five or fewer mdividuals ; (5) L'customer"means any person or authorized representative of that person who utilized or is utilrzing any service of a financial institution, or for whom a financial institution is actin or has acted as a fiduciary, in relation to an account maintaine in the person's name ; (6) "supervisory agency" means, with respect to any particular financial institution any of the following which h . statutory ~ authority to examine the financial condition or busmess operations of that institution(A) the Federal Deposit Insurance Corporation; B) the Federal Samngs and Loan Insurance Corporation ; C) the Federal Home Loan Bank Board; D ) the National Credit Union Administration. (E) the Board of Governors of the ~ e d e r a iReserve System : F ) the Comptroller of the Currency; G) the Securities and Exchange Commission; (H) the Secretary of the Treasury,,with respect to the Bank Secrecy Act and the Currency and Foreign Transactions Reporting Act (Public L a w 91-508, title I and 11) ; or (I) any State banking or securities department or agency: and (7) "law enforcement inquiry" means a lawful investigation or official proceeding inquiring into a violation of, or failure to comply qith, any cr~minalor clvil statute or any regulation, rule, or order ~ssuedpursuant thereto. 'L f I CONFIDENTIALITY O F R E C O R D B ~ V E R N M E N TAUTHORITLEG SEC.1102. Except as provided by section 1103 (c) or (d), 1113, or i114, no Government authority may have access to or obtain copies of, .?rthe information contained in the financial records of any customer PUBLIC LAW 95-630-NOV. 10.1978 92 STAT. 3698 from a financial institution unless the financial records are reasonably described and(1) such customer has authorized such disclosure in accordance with section 1104 ; (2) such financial records are disclosed in response to an administrative subpena or summons which meeta the requiroments of section 1105; (3) such financial records are disclosed in response to a search warrant which meets the requirements of section 1106; (4) such financial records are disclosed in response to a judicial subpena which meets the requirements of section 1107; or (5) such financial records are disclosed in response to a formal mntten request which meets the requirementa of section 1108. CONFIDESTIALITY O F RECORDB--FISASCIAL I N S m O N 8 SEC.1103. (a) No financial institution, or officer, employees, or agent of a financial institution, may provide to any Government authorit access to or copies of, or the information contained in, the financia records of any customer except in accordance with the provisions of this title. (b) A financial institution shall not release the financial records of a customer until the Government authority seeking such records certifies in writing to the financial institution that it has complied with the a plicable provisions of this title. (c) Sot ling in this title shall preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying a Government authority that such institution, or officer, employee, or agent has information which may be relevant to a possible violation of any statute or regulation. (d) (1) Nothing in this title shall preclude a financial institution, as an incident to erfecting a security interest, provin4 a claim in bankruptcy, or ot erwise collecting on a debt owing either to the financial institution itself or in its role as a fiduciary, from prol-iding copies of any financial record to any court or Government authority. (2) Nothing in this title shall preclude a financial institution. as an incident to processing an a plication for assistance to a customer in the f , of ~a Government oan, loan guarant , or loan insurance agreement, or as an incident to processing a defau t o n , or administermg, a Government guaranteed or insured loan, from initiating contact with an a propriate Government authority for the purpose of providing any k-iancial record necessary to permit such authority to carry out its responsibilities under a loan, loan guaranty, or loan insurance agreement. 3 f k' f' 7 CCBTOMER AUTHORIZATIONS SEC.1104. (a) A customer may authorize disclosure under section 1102(1) if he furnishes to the financial institution and to the Government authority seeking to obtain such disclosure a signed and dated statement which(1) authorizes such disclosure for a period not in excess of three months ; (2) states that the customer may revoke such authorization at any time before the financial records are disclosed : (3) identifies the financial records which are authorized to be disclosed : PUBLIC LAW 95-630-NOV. 10, 1978 (4) specifies the purposes for which, and the Government authority to which, such records ma be disclosed; and ( 5 ) statesthe customer's r i hts unier this title. (b) Bo such authorization shafl be required as a condition of doing business with any financial institution. (c) The customer has the right, unless the Government authority obtains a court order as provided in section 1109, to obtain a copy of the record which the financial institution shall keep of all instances in which the customer's record is disclosed to a Government authority pursuant to this section, including the identity of the Government authority to which such disclosure is made. ( d ) All financial institutions shall promptly notif all of their customers of their r i g h b under this title. The Board o?G-ovemors of the Federal Reserve System shall pre are a statement of customers' rights under this title. Any financia institution that provides its customers a statement of custom.m' ri hts prepared by the Board shall be deemed to be in compliance wit this subsection. !' f ADMISISTRAmZ S W P E N A A S D ST2MMOSS SEC.1105. A Government authority may obtain financial records under section 1102(2) pursuant to an administrative subpena or summons otherwise authorized b law only if(1) there is reason to f d i e v e that the records sought are relevant to a legitimate law enforcement inquiry ; ( 2 ) a copy of the subpena or summons has been served upon the customer o r mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry : "Records o r information concerning your transactions held by the financial institution named in the attached subpena or summons are being sou ht by this (agency or department) in accordance with the Rig t to Financial Privacy Act of 1978 for the following purpose: If you desire that such records o r information not be made available, you must : "1. Fill out the accompanying motion pa statement o r write one of your own, stating t customer whose records are being requested ment and either ving the reasons you records are not re evant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objectin to the release of the records. "2. F i e the motion and statement by mailing or delivering them to the clerk of any one of the following United States district courts: f e' f "3. Serve the Government authority requesting the records by mailing or delivering a copy of your motion and statement to "4. Be prepared to come to court and present your position in further detnil. "5. You do not need to have a lawyer. although you may wish to employ one to represent ou and protect your nghts. If you do not follow the above pocedures, upon the expilation of ten days from the date of service or fourteen days from the date 82 STAT. 36W 92 STAT. 3700 PUBLIC LAW 95430-NOV. 10, 1978 of mailin of this notice, the records or inforniation requested therein wi 1 be made available: These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notdied after the transfer."; and (3) ten da s have expired from the date of service of the notice or fourteen ays have expifed from the date of mailing the notice to the customer and within such time period the customer has not filed a sworn statement and motion-toquash in an appropriate court, or the customer challenge provisions of section 1110 have been complied with. S 2' SEC.1106. (a) A Government authority map obtain financial records under section 1102(3) only if it obtains a search warrant pursuant to the Federal Rules of Criminal Procedure. (b) S o later than ninety days after the Government authority sepes the search warrnnt, it shall mail to the customer's last known address a copy of the search warrant together with the following notice : "Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtained by this (agency or department) on (date) for the following You may have rights under the Right to Financial $q'm1 rivncv Act of 1978.". (c) ItT on application of the Govcrnment authority, a court may grant a lelap in the mailing of the notice required in snbsection (b), which delay shall not exceed one hundred and eighty days following the service of the warrant, if the court makes the findings ~equiredIn section 1109 (a). I f the court so finds, it shall enter an ex parte oraer granting the requested delay and an order prohibitin4 the financial lnstitut~onfrom disclosing that records have been obtained or that a search warrant for such records hns been executed. Additional delays of up to ninety days may be granted by the court upon applicrtion, but only in accordance with this subsection. U n expiration of the period of delay of notification of the customer, t e following notice shall be mailed to the customer along with a copy of the search warrnnt: "Records or information concerning your transactions held by the financial institution named in the attached search warrant were obtaipd by this (agency or department) on (date). Notification was delayed beyond the statutory ninety-day delay eriod pursuant to a detepninatlon by the court that such notice won1 seriously jeopardize an mvesti~ationconcerning . You may have rights under the Right to Financial Privacy Act of 1978.l'. . E" B JUDICIAL SUBPEN.4 SEC.1107. A Government nuthority may obtain financial records under wction 111)2(4) pursuant to jtdicial subpena only if(1) such mbpena is authorized by lam and thcrc is reason to believe that the records sought are relevant to a legitimate law enforcement in uiry ; (2) a copy the subpena has been served upon the customer or mniled to his last known address on or before tho date on which the subpcna was served on the financial institution together with the following notice which shd1 state with reasonnble specificity the nature of the law enforcement inquiry: 01 92 STAT. 3701 PUBLIC LAW 95-630-NOV. 10, 1978 "Records or information concerning our transactions which are held by the financial institution name in the attached subpena are being sought by this (agency or de arpient or authority) in accordance with the Right to Financia Pnvacy Act of 1978 for the following purpose: I f you desire that such records or information not be made available, you must : "1. Fill out the accompanying motion pa er and sworn statenwnt or write one of your ova, stating t at you are the customer whose records are being requested b the Governmene and either givina the reasons you believe t at the records arc not relevant to t%e legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records. 9. File the motion and statement by mailing or delivering Court. then1 to the clerk of the L'3. Serve the Government authority requesting the records by mailing or delivering a copy of your motion and statement to "4. Be prepared to come to court and present your position in further detail. .'5. You do not need to have a lavyer, although you. may wish to employ one to represent ou and protect your rights. If you do not follow the above proce ures. upon the expiration of ten days from the date of service or fourtecn days from the date of rnalline of this notice, the records or information requested therein will be made available. These records mag be transferred to other government authorities for Iryitimate law enforcement inquiries. in which event you will be notified aftcr the transfer:" and (3) ten days have expired from the date of perrice or fourteen days from the date of mailing of the notice to the customer and within such time period the customer hw not filed a sworn ~ t a t c ment and motion to quash in an appropriate court, or the custonier challenge j)rovisions of section 1110 hnw been complied with. I P R K B FORMAL WRIITEK RFQUERT SEC.1108. A Government authority may quest financial records under section 1102(5) pursuant to a formal written request only if(1) no administrative summons or subpena authority reasonably appears to be ~vailableto that Government authority to obtain financial records for the purpose for which such records are sought ; (2) the request is authorized by regulations promulgated b? the head of the agency or department; (3) there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry; and (4) (A) a co y of the request has been served u on the customer or rnailei'to his last h o r n address on or be ore the date on which the request was made to the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry: "Records or information concerning your transactions held by the financial institution named in the athchsd re nest are being sou ht by this (agency or department) in a m r ance with the ~ i & t to Financial Privacy A d of 1878 for the following purpose : p 1 92 STAT. 3702 PUBLIC LAW 95-630-NOV. 10, 1978 "If you desire that such records or inforn~ationnot be made 'L3. Serve the Government authority requesting the I W C O ~ S by mailing or delivering a copy of your motion and statement to "4. Be prepared to come to court and present your position in further detail. "5. You do not need to have a lawyer, although you may wish to employ one to represent you and protect your rights. I f you do not follow the above procedures, upon the expiration of ten days from the date of service or fourteen days from fhe data of mailing of this notice, the records or information requested therein may be made available. These records may be transferred to other Government authorities for legitimnte lam enforcement inquiries, in which event you will be notified after the transfer;" and (B) ten days have expired from the date of service or fourteen days from the date of mailing of the notice by the customer and within such time eriod the customer has not filed a sworn statement and an app ication to enjoin the Government authority in an appropriata court, or the customer challenge provisions of section 1110 have been complied with. P DELAYED NOTICE-PRESERVATION OF RECORD@ Scc. 1109. (a) Upon a plication of the Government authority, the customer ,notice required' under section ~ l M ( c ) )1105(2). , 1108(a), 1107(2),' 1108(4), or I l l 2 ( b ) may be delayed by order of an appropriate court if the presiding judge or magistrate finds that(1) the investigation being conducted is within the lawful jurisdiction of the Government authority seeking the financial records : (2) there is reason to believe that the records being sought are relevant to a legitimate law enforcement inquiry; and (3) there is reason to heljeve that such notice will result in(A\ endangering life or physical safety of any person: (B)flight from prosecution : fC) destructim of or tamperinr with evidence: (D) intimidation of potential witnesses; or (El otherwise eeriously ieopardixing an investigation or official proceedinc or undulv delavinp n trial or on.minp official proceeding to the same estent as the circumstances in the preceedin,~subparaaraphs. An application for delay must be made with reasonable specificity. PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT.3703 (b) (1) I f the court makes the findings required in paragraphs ( I ) , (2), and ( 3 ) of subsection ( a ) , it shall enter an ex parte order grant- in the requested delay for a period not to exceed ninety days and an or er prohibitin the financial institution from disclosin that records have been oftained or that a request for records has k e n made, except that, if the records have been sought by a Government authorit exercising financial controls over foreign accounts in the United h a t e s under section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b) ), the International Emergenc Economic Powers Act (title II. Public L a a E - E ? 3 ) , or section 5 o f t h e United Sations Participation ,4ct (2%17.S.C. 2d7c), and the court finds that there is reason to believe that such notice may endanger the lives or physical safety of a customer or roup of customers, or any person or group of persons associated wit a customer, the court may specify that the delay be indefinite. ( 2 ) Extensions of the delay of notice provided in paragraph (1) of up to ninety days each may be granted by the court upon application, but only in accordance with this subsection. (3) Upon expiration of the period of delay of notification under paragraph (1) or ( 2 ) , the customer shall be served with or mailed a copy of the process or request topther with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry : "Records or mformation concerning your transactions which are held by the financial institution named in the attached process or request were supplied to or requested by the Government authority named in the process or request on (date). Notification was withheld pursuant to a determination by the (title of court so ordering) under the Right to Financial Privacy Act of 1978 that such notice might (state reason). The purpose of the investigation or official proceeding was 39 . (c) When access to financial records is obtained pursuant to section 1114(b) (emergency access), the Government authority shall, unless 8 court has authorized delay of notice pursuant to subsections (a) and (b), as soon as practicable after such records are obtained serve upon the customer, or mail by registered or certified mail to his last known address, a copy of the request to the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry : "Records concerning your transactions held by the financial institution named in the attached request r e r e obtained by (agency or d e p ~ r t ment) under the Right to Financial Privacy Act of 1978 on (date) for the followinp purpose : Emergency access to such records was obtained on the gro~lndsthat (stategrounds) .". ( d ) Any memorandum. affidavit, or other paper filed in connection with a request for delay in notification shall be preserved by the court. Upon petition by the customer to whom such records pertain. the court ninv order disclosure of such pa rs to the petitioner unless the court makes the findings required in su section (a). ! R . I? CUSTOMER CHALLENGE PROVISION6 SEC.1110. (a) Within ten days of service or within fourteen days of mailing of a subpena, summons, or formal written request, a customer may file a motion to quash an administrative summons or judicial subpena, cr an application to enjoin a Government authority from obtaining financial records pursuant to a formal written reqvest, with PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT. 3704 co ies served upon the Government authorit A motion to quash a ju $icial subpena shall be filed in the court w l k h issued the subpena. A motion to quash an administrative summons or an application to enjoin a Government authority from obtaining records pursuant to a formal written request shall be filed in the appropriate United States district court. Such motion or application shall contain an affidavit or sworn statement(1) stating that the applicant is a customer of the financial institution from which financial records pertaining to him have been sought ; and (2) stating the applicant's reasons for believing that the financial records sought are not relevant to the le timate law enforcement in uiry stated by the Government aut ority in its notice, or that &ere has not been substantial compliance with the provisions of this title. Service shall be made under this section upon a Government authority by delivering or mailing by registered or certified mail a copy of the papers to the erson, office, or department specified in the notice which the customer as received pursuant to this title. For the purposes of this section, ''deliverf' has the meaning stated in rule 5(b) of the Federal Rules of Civll Procedure. (b) I f the court finds that the customer has complied with subsection (a), it shall order the Government authority to file a sworn response, which may be filed in camera if the Government includes in its response the reasons which make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties' initial alle&ations and response. the court may conduct such additional proceedings as it deems appropriate. All such proceedings shall be completed and the motion or application decided within seven calendar days of the filing of the Government's response. (c If the court finds that the applicant is not the customer to whom the nancial records sou ht by the Government authority pertain, or that there is a demonstra le reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are relevant to that inquiry, it shall deny the motion or application, and, in the case of an administrative summons or court order other than a search warrant. order such process enforced. If the court finds that the applicant is the customer to whom the records sought by the Government authority pertain, and that there is not a demonstrable reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are relevant to that inquiry, or that there has not been substantial compliance with the provisions of t$is title, it shall order the process quashed or shall enjoin the Go.bernment authority's formal written request. (d) A court ruling denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal may be taken therefrom by the customer. An appeal of a ruling denying a motion or application under this section may be taken by the customer (1) within such period of time as provided b law as part of any appeal from a final order in any legnl procee ine initiated against him arising out of or based upon the financial records. or (2) within thirty days after a notification that no legal proceeding is contemplated against him. The Government authority obtaining the financial records shall promptly notif a customer when a determination has been made that no legal pmree8ing against him is contemplated. After one hundred and eighty days from the denial of the motion or application, if the Government authority obtaining the records has not initiated such f' R 2 f 1 PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT. 3705 a proceeding, a supervisory official of the Government authority shall certify to the appropriate court that no such determination has been made. The court may re uire that such certifications be made, at reasonable intervals thereaRer, until either notification to the customer has occurred or a legal proceeding is initiated as described in clause (A) (e) The challenge procedures of this title constitute the sole judicial remedy available to a customer to oppose disclosure of financial records pursuant to this title, ( f ) Nothing in this title shall enlarge or restrict any rights of a financial institution to challenge requests for records made by a Government authority under existing law. Kothinp in this title shall entitle n customer to assert the rights of a financial institution. , , SEC.1111. Upon receipt of a request for financial records made by R Government authority under section 1105 or 1107, the financial institution shall, unless otherwis.3 rovided by law, proceed to assemble the records requested and must %e prepared to deliver the records to the Government authority upon receipt of the certificate required under section 1103 (b) . USE OF INFORM.\TIOS SFX.1112. ( a ) Financial records originally obtained pursuant to this title shall not be transferred to another agency or department unless tlie transferring agency or department certifies in wnting that there I S reason to belie\e that the records arc relevant to a legitimate law enforcement inquiry within the jurisdiction of the receiving agency or department. (b) When financial records subject to this title are transferred pursuant to subsection ( a ) , the transferring agency or department shall, within fourteen days, send to the customer a copy of the certification made pursuant to subsection ( a ) and the following notice, r.shich shall state the nature of the law enforcement inquiry with reasonable specificity: T o p i e s of. or information contained in, your financial records Ia.irfully in possession of have nrsuant to the Right of been furnished to Financial Privacy Act of 1978 for the fo lowing purpose: . If you believe that this transfer has not been made to further a legitimate law enforcenwnt inquiry, yon may hare 1 rights ~lnderthe Financial Privacy Act of 1978 or the Privacy of 1974." ( c ) h'otwithstanding subsection (b). notice to the customer may be delayed if the transferring agency or department has obtained a court order delaying notice pursuant to section 1109 ( a ) and (b) and that order is still in effect. or if the receiving agency or department obtains a court order authorizing a delay in ndice pursuant to section 1109 ( a ) nnd.(b). Upon the expiration of any sucl~period of delay, the transferring agencv or department shall serve to the customer the notice spccificd in subsection (b) above and the agency or department that ohtnined the court order authorizing a delay in notice pimuant t o sece r notice specified tion 1109 ( a ) and ( b ) shall serve t o thc c ~ ~ s t o m the in section 1109(b). ( d ) Nothing in this title prohibits any supervisory agency from exchanging examination reports or other information with another supervisory agency. Nothing in this title prohibits the transfer of a customer's financial records needed by counsel for a Governnlent r 2 PUBLIC LAW 95430-NOV. 10,1978 92 STAT. 3706 authorit to defend an nction brought by the customer. Nothin in this title sha 1 authorize the withholding of information by any o cer or cmployee of a supervisory agency from a duly authorized cornm~ttee or subconunittee of the Congress. T 'k, EXCEPI'IONB SEC.1113. (a) Nothing in this title prohibits the disclosure of any financial records or information which is not identified with or identlfiable as being derived from the financial records of a particular customer. (b) Nothing in this title prohibits examination by or disclasure td any supervisory agency of financial records or information in the exercise of its supervisory, regulatory, or monetary functions with les ct to a financial institution. Nothing in this title prohibits the disclosure of financial m r d s in accordance with procedures authorized by the Internal Revenue Code. (d) Nothing in this title shall authorize the withholding of financial records or information required to be reportcd in accordance with any Federal statute or rule promulgated thereunder. (e) Nothin in this title shall apply when financial records are FUU ht by a 8overnment authority under the Federal Rules of Civil or Frimmal Procedure or rom arable rules of other mu* in mnnection with litigation to whic the Government authority and the customer are parties. ( f ) Nothing in this title shall apply when financial records are sought by a Government authority pursuant to an administrative subpcna issued by an administrative law judge in an adjudicatory proceeding subject to section 554 of title 5, United States Code, and to which the Government authority and the customer are parties. ( g ) The notice requirements of this title and sections 1110 and 1112 shall not apply when a Government authority by a means described in section 1102 and for a legitimate law enforcement inquiry is seeking only the name, address, account number, and type of customer or ascertainable grou of customers associated ( 1 financial transaction or clasa o financial transactions, or (2 foreign country or subdivision thereof in the case of a Government authorit exercising financial controls over foreign accounts in the United Jtates under section 5 (b) of the Trading with the Enemy Ad (SO U.S.C. Ap . 5 (b) ; the International Emergency Economic Powers (title I, P11 lic Law 95-223) ; or section 5 of the United Nations Participation Act (22 U.S.C. 287 (c) ) (h) (1) Nothing in this title (except sections 1103, 1117 and 1118) shall apply when financial w o r d s are sought by a Government authority(A) in connection with a lawful proceedin&, investigation, exammation, or inspection directed at the financial institution in possession of such records or at a legal entity which is not a castomer ; or (B) in connection with the authority's consideration or administration of assistance to the customer in the form of a Government loan, loan guaranty, or loan insurance program. (2) When financial records are sought pursuant to this subsection, the Government authority shall submit to the financial institution the certificate required by section 1103(b). For access pursuant to parap p h (1) (B), no further certification shall be required for subse- 6 R P 5 b . PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT. 3707 quent access by the certifying Go\-ernnwnt authority during the term of the loan, loan guaranty. o r loan iwurance agreement. (3) After the effective date of this title, whenever a customer applies f o r participation in a Governnient loan. loan guaranty, o r loan l n s i r ance program, the Government authority administering such program shall g i r e the customer written notice of the authority's access rights under this subsection. Xo further notification shall be required f o r subsequent trccess by that authority during the tern] of the loan, loan guaranty. o r loan insurance agreement. ( 4 ) Financial records obtained pursuant t o this subsection may be used only for the piirpose f o r wliich they were originally obtained, and may be transferred t o another agency o r department only when the transfer is t o facilitate a Ia\vful proceeding. investigation, examlnation, o r inspection directed at tlie financial institution i n possession of such records, o r a t a legal entity which is not a customer, except that( A ) nothing in this paragraph prohibits t h e use o r transfer of a customer's financial records needed by counsel representing a Government authority in a civil action arising from a Government loan. loan guaranty, o r loan insurance ~ g r e e m e n t a; n d ( R ) nothing in-this paragraph prohibits a Government authority providing assistance to a customer in the form of a loan, loan ~ u a r a n t yo, r loan insurance agreement from using o r transferring financial records necessary t o process. service o r foreclose a loan, o r t o collect on an hdebtednesc to the Government resulting from a customer's default. ( 5 ) Sotification that financial records obtained pursuant t o this sub-ection nlap relate to a potential c ~ v i l .criminal, o r regulator vio1:ltion by a customer niay be given to an agency o r department wit jurisdiction over that violation, and such agency 01. drpartment mnlthen scek access to the ~ecorclspursuant t o the provision^ of this title. ( 6 ) Each financial insti~utionshall keep a natation of each disclosure mndc pursumt to paragraph (1)(I( ) of this subcection, includ1 1 1 the ~ date of such disclosure ant1 t h r Governnirnt a i ~ t h o r i t pt o which i t was made. The ct~stonwrehall be entitled to inspect this information. (i) Xothing in t h i s t i t l e (escept =ctions 1113 and 1120) shall a plp to any subpem o r court order issued in connection with procee lngs before a grand jury. (i)This title shall not apply when financial records are sought by the Gencral Accountinz Oficr pursuant to a n authorized proceeding, investigation, examination o r ~ i i d i dt i r e c t ~ dat a g o ~ ~ e r n ~ nauthority. ent g 8 SPECIAL PROCEDURES SEC.1114. ( a ) (1) E o t h i n g i n this title (escept sections 1115,1117, 1118. and 1121) shall apply to the production and disclosure of financial reco~.(ls pilrsuant to recluests f r o ~ n ( A ) a G o ~ e r n n ~ e nauthority t authorized to conduct foreign counter- o r foreign positive-intelligence actirities for purposes of conducting such activities; o r (B) thc Secret Service f o r the p n r >ose of conductin 202, . Public%:"wP9'E tective functions (15 U.S.C. 3056: 3 ~ . s . c 331. a s amended). (2) I n t h e instances specified in paragraph ( I ) , the Government authority shall submit t o the financial institution the certificate required in section 1103(b) s i p e d by a supervisory official of a rank designated by the head of the Govern~nentauthority. PUBLIC W W 9 5 - 6 3 k N O V . 10, 1978 92 STAT. 3708 (3) No financial institution, or officer, emplo -ee, or agent of 8uch institution, shall disclose to any person that a venrmmt authority described in paragraph (1) has sought or obtained acma to 8 cu8bmer's financial records. (4) The Government authority specifi@ in par y p h (1) cumpile an annual tabulation of the occasions in w ioh this section wasused. d, " COST REIXBORBEXENT SEC.1115. (a) Except for records obtained pursuant to section 1103(d) or 1113 (a) through (h), or as otherwim provided by law, 8 Government authorit shall ay to the financial institution rssembl' or providing financia rem rifs pertaining to a customer and in ance with procedures established by this title a fee for reimbursement for such costa as are reasonably necessary and which have been directly incaned in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced. The Board of Governors of the Federal Resene System shall, by regulation,establish the ratea and conditions under which such pa may be made* (b) This section shall take effect on October 1,19 9. i Tt Sp. 1116. An action to enforce an rovision of this title ma be bdught in any appropriate u n i t e d Itatea district court r i t i o u t regard to the amount in controversy within three yeam from the date on which tbe violation occurs or the date of discovery of such violation, whichever is later. CIVIL PENALTIEB SEC.1117. (a) Any agency or department of the United States or financial institution obtaining or disclosin financial records or informatmon contained therein in violation of &is title is liable to the CIUF tomer to whom such records relate in an amount equal to the sum of1 $100 without regard to the volume of records involved; 2 any actual damages sustained by the customer as a result of the disclosure ; I1 PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT. 3709 (3) such-punitive dama es as the court may allow, where the violation is found to have L e n willful or intentional; and 54) in the case of any successful action to enforce hability un er this wtion, the costs of the action together with reasonable attorney's fees as determined bp the court. (b) Whenever the court determines that any agenc or department of the United States has violated any provision of t is title and the court finds that the circumstances surrounding the violation raise questions of whether an o5cer or employe0 of the department or agency acted willfully or intentionally with respect to the nolation, the Civil Service Commission shall promptly initiate a p ~ e d i n g to determine whether disciplinary action is warranted sga?nst the agent or employee who was primarily responsible. for the nolatlon. The Commission after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and ahalll Send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Commissipn recommends, (c) Any financial institution or a disclosure of financial records reliance upon a certificate b any liable to the customer for suc disclosure. (d) The remedies and sanctions described in this title Shall be the only authorized ju4icial remedies and sanctions for violations of this title. 3; H INJUNCTIVE RELIEF SEC.1118. I n addition toeany other remedy contained in this title, injunctive relief shall be available to require that the procedures of thls title are complied with. In the event of an successful action, costs together with reawnable rttorney3s fees as &.ermined by the court may be recovered. BUSPENSION OF STATUTE@PP LIYITATIONS SEC.1119. If any individual files a motion or application under this title which has the effect of delaying the access of a Government authority to financial '%cords pertainin to such individual, any applicable statute of limitations shall be %eemed to be tolled for the period extending from the date such motion or application was filed until the date upon which the motion or application is decided. ORAND JWRY INXWRXATION SEC.1120. Financial recbrds about a customer obtained from a financial institution pursuant to a subpena issued under the authority of a Federal grand jury(1) shall be returned and actually presented to the grand jury; (2) shall be used only for the p u q m e of considering whether to m u e an indictment or ~.esentmentby that grand jury, or of p-cuting a crime for rRieh that indictment or presentment is ~ssued,or for a purpose authorized by rule 6(e) of the Federal Rules of Criminal Procedure ; (3) shall .be destro ed or returned to the humcia1 institution if not used for one of t e purposes specified in paragraph (2) ; and (4) sha!l not be maintained, or a description of the contents of such records shall not be maintained by any Government authority I PUBLIC LAW 95-630-NOV. 10, 1978 92 STAT. 37i0 other than in the sea!etl records of the grand jury, unless such record has be11 used in the prosecution of a crime for which the issued an indictment or presentment or for a purpose authorize by rule 6(e) of the Federal Rules of Criminal grand Procedure. ju7 REPORTING REQUIREMENTS SEC.1121. ( a ) In April of each year, the Director of the Administrative Office of the United States Courts shall send to the appropriats committees of Congress a report concerning the number of applications for delays of notice made pursuant to section 1109 and the number of customer challenges made pursuant to section 1110 during the receding calendar year. Such report shall include: the identity of t e Government authority requesting a delay of notice; the number of notice delays sought and the number granted under each subparagraph of sectlon 1109(a) (3) ; the number of notice delay extensions sought and the number granted; and the number of customer challenges made and the number that are successful. ( b ) I n April of each year, each Government authority that requests access to financial records of any customer from a financial institution pursuant to section 1104, 1105, 1106, 1107, 1108, 1109, or 1114 shall send to the a p ropriate committees of Congress a report describing re uests made f;urmg the preceding calendar year. Such report shall inc ude the number of requests for records made pursuant to each section of this title listed in the preceding sentence and any other related information deemed relevant or useful by the Government authority. SEC.1122. The Securities and Exchange Commission shall not be subject to the provisions of this title for a period of two years from the date of enactment of the title. E 7 CtG-96 V . stLECTLD BIBLIOGRAPHY . D o r s e n , Norman, and S t e p h e n G i l l e r s None o f y o u r b u s i n e s s : government s e c r e c y i n America. New Y o r k , V i k i n g P r e s s [ I 9 7 4 1 362 p. . 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