           Applicability of the Privacy Act to the White House

T h e P rivacy A ct does not apply to the W hite H ouse O ffice, w hich is also known as the O ffice of
    the P resident


                                                                                                        September 8, 2000

                                            Sta tem en t B efore            the

                        S u b c o m m it t e e   on   C r im in a l J u s t ic e , D r u g P o l ic y
                                            and       H u m a n R esources
                                  C o m m it t e e    on   G o v ern m en t R eform
                             U n it e d S ta t e s H o u s e     of   R e p r e s e n t a t iv e s


   Good morning, Mr. Chairman and Members of the Subcommittee. I am pleased
to be here today to testify regarding the Department of Justice’s (“ Department” )
longstanding position that the Privacy Act of 1974 (“ Privacy Act” ), 5 U.S.C.
§ 552a (1994 & Supp. IV 1998), does not apply to the White House Office, which
is also known as the Office of the President. In my testimony today, I will gen­
erally refer to that Office as the White House Office. In explaining our position
regarding the White House Office, I will set forth the standards that also govern
the applicability of the Privacy Act to the other components of the Executive
Office of the President (“ EOP” ).1
   The Department’s legal position that the Privacy Act does not apply to the
White House Office was stated in an Office of Legal Counsel opinion in April
1975, less than four months after the Privacy Act was enacted, by then Assistant
Attorney General Antonin Scalia,2 and it has been reiterated in subsequent Office
o f Legal Counsel opinions and briefs filed by the Department in litigation. As
I will explain, the position rests on three premises. First, the Privacy Act, by
its terms, applies only to “ agencies.” Second, the Privacy Act defines the term
“ agency” to mean the same thing as the term means in the Freedom of Informa­
tion Act, 5 U.S.C. §552 (1994 & Supp. II 1996). Third, the Supreme Court has
concluded that the White House Office is not an “ agency” within the meaning
of the FOIA.



   1The EOP is made up o f a number of different components, one o f which is the White House Office Other
components o f the EOP include the Office of Management and Budget, the National Security Council, and the
Council o f Economic Advisors As will be discussed infra, both the legislative history of the Freedom of Information
Acl ( “ FO IA ” ) and Supreme Court caselaw make clear that certain components o f the “ Executive Office of the
President” are not encom passed in that term as it is used in the FOIA definition of ‘‘agency ”
  2 Letter for the Honorable James T. Lynn, Director, Office of Management and Budget, from Antonin Scalia,
Assistant Attorney G eneral, O ffice o f Legal Counsel (Apr. 14, 1975) ( “ Scalia Opinion” ).


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                                                         I.



   The Privacy Act governs the collection, maintenance, use, and disclosure of
information concerning individuals by federal agencies. As a review of the various
provisions o f the Privacy Act will reveal, the requirements o f the Act by their
terms apply only to federal “ agencies.” See 5 U.S.C. §552a.3] See also Dong
v. Smithsonian Inst., 125 F.3d 877, 878 (D.C. Cir. 1997) (“ requirements of the
Act . . . apply to ‘agencies’ ” ), cert, denied, 524 U.S. 922 (1998). In defining
the term “ agency” in the Privacy Act, Congress incorporated by reference the
definition of “ agency” set forth in the FOIA, providing that “ the term ‘agency’
means agency as defined in section 552(e) of [the FOIA].” 5 U.S.C. § 552a(a)(l).4
Therefore, the applicability of the Privacy Act to the White House Office turns
on whether the White House Office is an “ agency” as defined in the FOIA.
  Congress enacted the FOIA definition of “ agency” in 1974, just 40 days before
the Privacy Act was enacted. See 88 Stat. 1561, 1564 (1974). That definition pro­
vides as follows:

          For purposes of this section, the term “ agency” as defined in sec­
          tion 551(1) of this title includes any executive department, military
          department, Government corporation, Government controlled cor­
          poration, or other establishment in the executive branch of the
          Government (including the Executive Office of the President), or
          any independent regulatory agency.

In enacting this definition, Congress sought to codify the test enunciated by the
Court of Appeals for the District of Columbia Circuit in Soucie v. D avid, 448
F.2d 1067 (D.C. Cir. 1971), under which the term “ agency” as used in the FOIA
does not include units within the EOP whose “ sole function [is] to advise and
assist the President.” Id. at 1073-75. The Conference Report to the 1974 FOIA
amendments provides that:

          With respect to the meaning of the term “ Executive Office of the
          President” the conferees intend the result reached in Soucie v.
          D avid . . . . The term is not to be interpreted as including the
          President’s immediate personal staff or units in the Executive
          Office whose sole function is to advise and assist the President.

   3See, e g ., 5 U.S.C. §§552a(b) ( “ [n]o agency shall . ” ); 552a(c) ( “ [e]ach agency, with respect to each system
o f records under its control, shall .   ” ), 552a(d) ( “ [e]ach agency that maintains a system o f records shall  .” )
    4 Until 1986, the FO lA ’s definition o f agency was codified at 5 U.S.C § 552(e) The Anti-Drug A buse Act of
1986, Pub L No 99-570, § 1802(b), 100 Slat 3207. 3207-49, recodified the definition (without substantive change)
at 5 U S C . §552(0- No conforming amendment was made to the Privacy Act to reflect the current location of
FO lA ’s definition


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H.R. Conf. Rep. No. 93-1380, at 14-15 (1974); S. Conf. Rep. No. 93-1200, at
15 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285.
  The Supreme Court held in Kissinger v. Reporters Committee fo r Freedom o f
the Press, 445 U.S. 136 (1980), that the FOIA definition of “ agency” does not
include the Office of the President (which is also known as the White House
Office). The Court stated that “ [t]he legislative history is unambiguous . . . in
explaining that the ‘Executive Office’ does not include the Office of the Presi­
dent” because the legislative history plainly specified that “ ‘the President’s
immediate personal staff or units in the Executive Office whose sole function
is to advise and assist the President’ are not included within the term ‘agency’
under the FOIA.” Id. at 156 (citation omitted).
   Adhering to the test set forth in K issinger and Soucie, the D.C. Circuit Court
of Appeals has consistently concluded that the President’s immediate personal
staff and units in the EOP whose sole function is to advise and assist the President
are not considered “ agencies” for purposes of the FOIA. See Armstrong v. Execu­
tive Office o f the President, 90 F.3d 553, 557-66 (D.C. Cir. 1996) (National Secu­
rity Council not an “ agency” under the FOIA), cert, denied, 520 U.S. 1239
(1997); M eyer v. Bush, 981 F.2d 1288, 1292-98 (D.C. Cir. 1993) (President’s
Task Force on Regulatory Relief not an “ agency” under the FOIA); Rushforth
v. Council o f Economic Advisers, 762 F.2d 1038, 1040-41 (D.C. Cir. 1985)
(Council of Economic Advisers not an “ agency” under the FOIA). See also Ryan
v. Departm ent o f Justice, 617 F.2d 781, 789 (D.C. Cir. 1980) (the FOIA “ defines
agencies as subject to disclosure and presidential staff as exempt” ).5
   In particular, the D.C. Circuit has made it clear— as did the Supreme Court
in K issin ger — that the White House Office is among the components of the EOP
that are exempt from the FOIA definition of “ agency.” See Meyer, 981 F.2d
at 1293 & n.3 ( “ [t]he President’s immediate personal staff . . . would encompass
at least those approximately 400 individuals employed in the White House
Office” ); id. at 1310 (Wald, J., dissenting) (“ [w]e and the Supreme Court have
interpreted ‘immediate personal s ta ff to refer to the staff of the Office of the
President, also known as the White House Office” ); National Security Archive
v. A rchivist o f the United States, 909 F.2d 541, 545 (D.C. Cir. 1990) (White House
Counsel exempt from the FOIA as an entity within the White House Office
forming part of the President’s immediate personal staff).
  In sum, because the Privacy Act incorporates by reference the FOIA definition
of “ agency,” and because it is settled that the White House Office is not an
agency under the FOIA, the Department has concluded that the White House
Office is not an agency under the Privacy Act.

   5The D C C ircuit has held that the Council on Environmental Quality, another component of the EOP, is an
“ agency” under FOLA Pacific Legal Found. v Council on Envll. Quality, 636 F 2d 1259 (D.C Cir. 1980).


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                             Applicability o f the Privacy Act to the White House


                                                        II.

    The District Court’s decision in Alexander v. Federal Bureau o f Investigation,
 971 F. Supp. 603 (D.D.C. 1997), which rejected this analysis, is in our opinion
 incorrectly decided. In that case, Judge Royce Lamberth took the view that the
 FOIA definition does not govern whether the Privacy Act applies to the “ imme­
diate staff of the President.” Id. at 606. In his view, “ agency” means one thing
 for the Privacy Act and another for the FOIA because the purposes of the two
 statutes are different. Congress precluded this interpretative move, however, when
 it affirmatively stated that the term should have the same meaning in both statutes.
The text of the Privacy Act is straight-forward. Section 552a(a)(l) provides that,
for purposes of the Privacy Act, “ the term ‘agency’ means agency as defined
 in section 552(e)” of title 5 of the United States Code — the FOIA definition
of agency.6
    Congress could not have been more clear about the relationship of the meaning
of the word “ agency” in the two statutes. Thus, as the D.C. Circuit has observed,
the Privacy Act “ borrows the definition of ‘agency’ found in FOIA.” Dong v.
Smithsonian Inst., 125 F.3d at 878. The Privacy Act language conclusively bars
an interpretation that would attach different meanings to the term. As then-Assist-
ant Attorney General Scalia stated in his 1975 Office of Legal Counsel opinion
addressing which units of the Executive Office of the President are covered by
the Privacy Act: “ It is essential, of course, that we apply the same conclusion
to both the Freedom of Information Act and the Privacy Act.” Scalia Opinion
at 2.
    The Alexander decision stands in stark contrast to the D.C. Circuit’s analysis
in Rushforth v. Council o f Economic Advisers, 762 F.2d 1038 (D.C. Cir. 1985),
in which the court addressed the question of whether the President’s Council of
Economic Advisers (“ CEA” ) is an agency for purposes of the Government in
the Sunshine Act, which, like the Privacy Act, incorporates the FOlA’s definition
of agency. After determining that the CEA is not an agency under the FOIA,
id. at 1040—43, the Court reasoned that “ [i]nasmuch as the [CEA] is not an agency
for FOIA purposes, it follows o f necessity that the CEA is, under the terms of
the Sunshine Act, not subject to that statute either. The reason is that the Sunshine
Act expressly incorporates the FOIA definition of agency.” Id. at 1043 (emphasis

   6 As a practical matter, the suggestion that Congress had different meanings in mind is rebutted by the legislative
history. The Privacy Act was pending in Congress at the same time as the 1974 amendments to the FOIA, and
became law on December 31, 1974, only 40 days after passage o f the FOIA amendments on November 21, 1974
See 88 Stat 1896, 1910, 88 Stat 1561, 1565; Duffin v. Carlson, 636 F.2d 709, 711 (D C Cir. 1980) Indeed,
on the same day that the FOLA was passed, Congressman Moorhead, a member of the FOIA Conference Committee,
stated, during the floor debate on the Pnvacy Act, that “ *[a]gency’ is given the meaning [under the Privacy Actl
which it carries elsewhere in the Freedom of Information Act ” 120 Cong Rec 36,967 (1974) (statement of Cong
Moorhead). There is no indication in the legislative history o f the Pnvacy Act that the very same Congress which
had just amended the FO lA ’s definition o f the term “ agency” had a different understanding of that term in mind
when, only 40 days later, it incorporated that definition by reference, and without further gloss, for purposes of
the Pnvacy Act


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added) (citation omitted). The court did not ask whether the Sunshine Act and
FOIA served similar purposes; it recognized that Congress had definitively
resolved the question whether the term “ agency” had different meanings under
the two statutes.
  Moreover, last month District Judge June Green issued an opinion in which
she did not follow Judge Lamberth’s analysis, but held instead that the Privacy
Act does not apply to the White House Office. See Barr v. Executive Office o f
the President, No. 99-cv-1695 (D.D.C. Aug. 9, 2000) (memorandum order)
(Green, J.). The Court concluded that:

          It is a fair construction of the Privacy Act to exclude the President’s
          immediate personal staff from the definition of “ agency.” As the
          Privacy Act borrows the FOIA definition, it fairly borrows the
          exceptions thereto as provided in legislative history and by judicial
          interpretation. This construction of the term “ agency,” applying
          the FOIA definition equally to the Privacy Act, properly avoids
          constitutional questions.

Id. at 6.
  In light of our disagreement with the analysis in the Alexander decision, the
Department does not believe that the decision requires that the White House
modify its records management practices to come into compliance with the Pri­
vacy Act. The D.C. Circuit agreed with this view in its recent appellate opinion
in Alexander, stating that, notwithstanding Judge Lamberth’s decision, “ [i]n
activities unrelated to [the Alexander ] case, the White House, as it has done for
many years on the advice and counsel of the Department of Justice, remains free
to adhere to the position that the Privacy Act does not cover members of the
White House Office.” 7

                                                                             WILLIAM TREANOR
                                                                     Deputy Assistant Attorney General
                                                                         Office o f Legal Counsel




  1 In Re: Executive Office o f the President, 215 F.3d 20, 24 (D C Cir 2000) (noting lhat “ District Court decisions
do not establish the law o f the circuit, .  , nor, indeed, do they even establish ‘the law of the district’ ’’) (citations
omitted)


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