                    United States Secret Service Use of the
                     National Crime Information Center

T he United States Secret Service (U SSS) has authority under 18 U .S .C . § 3056 to investigate and
    m aintain files on an individual who it reasonably believes might pose a threat to the physical safety
   o f those it is responsible for protecting, even though that individual is not the subject of an arrest
   warrant or under investigation for any prior crim inal activity.

T he USSS has authority to disclose inform ation in its investigative files to the Federal Bureau of
    Investigation (FB I) and other law enforcem ent agencies through entry of this inform ation into the
    National C rim e Inform ation Center (NCIC). The Attorney G eneral is also independently author­
    ized by 28 U .S .C . § 534 to dissem inate inform ation on crim inal investigations, including
    inform ation on U SSS-m onitored subjects, for law enforcem ent purposes.

An exchange o f inform ation am ong law enforcem ent agencies through the NCIC must satisfy the
  requirem ents o f the Privacy Act. In o rder to avoid that statute’s general prohibition on disclosure,
  the USSS and FBI m ust satisfy the procedural requirem ents o f the “ routine u se” exem ption
  contained in 5 U .S C. § 552a(b)(3).

D isclosure of inform ation from the NCIC on USSS-m onitored subjects for non-law enforcem ent
    purposes, such as em ploym ent or licensing, is prohibited by the Privacy Act, and may raise serious
    constitutional problem s under the Fifth and Fourteenth Am endm ents

Both 28 U .S .C . § 534 and the Privacy Act require that reasonable efforts be m ade to assure that
   inform ation contained in the NCIC is accurate and relevant to its use for law enforcem ent
  purposes.

                                                                                        June 9, 1982

              MEMORANDUM FOR THE ASSISTANT DIRECTOR,
                   TECHNICAL SERVICES DIVISION,
                 FEDERAL BUREAU OF INVESTIGATION

   This memorandum responds to your request for our opinion regarding several
issues raised by the proposed entry of data from the United States Secret Service
(USSS) into the National Crime Information Center (NCIC). Specifically, you
have asked: (1) whether the USSS has the authority to monitor the activities of
individuals who are not the subject of outstanding arrest warrants but who may
threaten the physical safety of the public figures it protects; and (2) whether the
USSS may enter information about such individuals into the NCIC, the Federal
Bureau of Investigation’s (FBI’s) computerized criminal justice information
system. For the reasons set forth in detail below, we conclude that the USSS has
the authority to gather information and maintain files on such individuals and
enter the proposed information about them into the NCIC. We caution, however,

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that the NCIC should disseminate this information, as you have proposed, only to
law enforcement agencies for law enforcement purposes, and not for non-law
enforcement purposes, such as employment or licensing.

                                               I. Background

   The USSS is authorized by 18 U.S.C. § 3056 to “ protect” various public
figures, including the President and Vice President (protectees).1In discharging
this responsibility, the USSS gathers information and maintains files on certain
individuals “ whose actions or spoken words indicate that [they] may constitute a
threat” to protectees. Opinion Request, p. 1. We understand that most of these
persons are not the subject of an outstanding arrest warrant.2 The USSS has
proposed to enter into the NCIC the names and certain information about those
persons “ who are determined to be dangerous and about whom a decision is
made to ensure that the individual is not permitted to inflict harm on protectees.”


  1 U nder 18 U .S C § 3056, the Secret Service is authorized lo:
       protect the person of the President of the United States, the members of his immediate family, the
       President-elect, the Vice President or other officer next in the order of succession to the Office of
       President, and the Vice President-elect, and the members of their immediate families unless the
       members decline such protection, protect the person of a former President and his wife dunng his
       lifetim e, the person o f a widow of a form er President until her death or remarriage, and minor
       children o f a former President until they reach sixteen years of age, unless such protection is
       declined; protect the person of a visiting head of a foreign state or foreign government and, at the
       direction of the President, other distinguished foreign visitors to the United States and official
       representatives of the United States performing special missions abroad
In addition, the Act of June 6, 1968, Pub L N o. 90-331, 82 Stat. 170, as amended, reprinted in 18 U.S C. § 3056
note, authorizes the USSS to “ furnish protection to persons who are determined from time to time by the Secretary
of the Treasury, after consultation with the advisory committee, as being major presidential or vice presidential
candidates who should receive such protection,” and, in certain circumstances, their spouses.
   2 Pursuant to the Privacy Act, 5 U S C § 552a(e)(4) & ( 11), the USSS has announced that it maintains protective
information files on the following categories o f individuals:
       (a) Individuals who have been or are currently the subject of a criminal investigation by the U.S
       Secret Service o r another law enforcement agency for the violation of certain criminal statutes
       relating to the protection of persons or the security of properties, (b) Individuals who are the subjects
       of investigative records and reports supplied to the Secret Service by Federal, state, and local law
       enforcement agencies, foreign and domestic, other governmental agencies; private institutions and
       individuals for evaluation by the Secret Service in connection with the performance by that agency of
       its authorized protective functions; (c) Individuals who are the subjects of non-cnminal protective
       and background investigations by the Secret Service and other law enforcement agencies where the
       evaluation of such individuals, in accordance with criteria established by the Secret Service,
       indicates a need for such investigations; (d) Individuals who are granted ingress and egress to areas
       secured by the Secret Servtce, the Executive Protective Service, or to areas in close proximity to
       persons protected by the Secret Service, including but not limited to invitees, passholders, trades­
       men, law enforcement, maintenance and service personnel; (e) Individuals who have attempted or
       solicited unauthorized entry into areas secured by the Secret Service; individuals who have sought an
       audience o r contact with persons protected by the Secret Service or who have been involved in
       incidents or events which relate to the protective functions of the Secret Service; ( 0 Individuals who
       are w itnesses, protectees, complainants, informants, suspects, defendants, fugitives, released
       prisoners, and correspondents who have been identified by the Secret Service or from information
       supplied by other law enforcement agencies, governmental units, private institutions, and members
       o f the general public in connection w ith the performance by the Secret Service of its authorized
       protective functions
46 Fed. Reg    16643 (1981).


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Opinion Request, p. 2. It estimates this group to number at any given time
between 300 to 400 individuals (USSS-monitored subjects).3
   The stated purpose of this dissemination is to monitor the location and
activities of these individuals by using the network of state and federal agencies
which obtain information from the NCIC. At present, the NCIC contains
separate files on wanted persons, missing persons, stolen property, and criminal
histories. It supplies information about a particular individual or property from
these files to federal, state, and local criminal justice agencies that make an
inquiry about that individual or property.4 Under the proposal, the NCIC would
establish a new file on the USSS-monitored subjects which would be accessible
to government law enforcement agencies seeking to use the information for law
enforcement purposes, in particular, criminal investigation and arrests. When­
ever any participating law enforcement agency seeks information for these
purposes from the NCIC about an individual who is in this file, the USSS would
be informed about the request. This would permit the USSS to contact the
inquiring agency, learn the reasons for the request, and thereby monitor the
subject’s current activities. If a law enforcement agency seeks information on
such an individual for non-law enforcement purposes, such as employment or
licensing, the NCIC would not disclose any information about the subject.5
   While the FBI has not determined finally the specific information which would
be included in the NCIC entry on each USSS-monitored subject, we understand
that it would probably include identifying information about the subject, such as
his height and weight; a notation that the USSS considers him to be a “ threat” or

   3 In determining whether an individual will be considered dangerous to a protectee and included in the NCIC file,
the USSS would follow these procedures
        (A) Through numerous and varied means, individuals may be brought lo the attention of the USSS.
            An investigation is begun which usually includes a personal interview with the individual.
            Some criteria used in a determination are. the interview, the facts of the action bringing the
            subject to the attention of USSS, the potential or capability of the subject to carry out any threat,
            and a background investigation including criminal and mental checks/inquines.
        (B) If, based upon this initial investigation, an individual is determined to be a potential threat by an
            investigatory agent, his evaluation and determination are reviewed for concurrence by field
            supervisors
        (C) The original investigation and evaluation, and the field evaluation are reviewed at USSS
            Headquarters by a Senior Agent/Intelligence Research Specialist
        (D) These evaluations are then reviewed and approved by an Intelligence Division supervisor
        (E) Once evaluated as dangerous, the individual is subject to a periodic review process.
        (F) The decision to enter such individual into the NCIC System will be under the Assistant Director
            for Protective Research, with the Special Agent in Charge, Intelligence Division, acting on his
            behalf
Opinion Request, p. 3.
   4 Access to the criminal history file is currently more limited than access to the other files. The non-cnmuial
history files are generally available to state or federal “ criminal justice agencies” for any authorized purpose. See 46
Fed. Reg 60293, 60294 (1981) (description of system’s operation) While criminal history files are accessible to
criminal justice agencies for any criminal justice purpose, and to any federal agency authorized to receive it, state
criminal justice agencies can only obtain the information for non-law enforcement purposes, such as licensing or
employment, if access is specifically authorized by state law and approved by the Attorney General. Id. See 28
C F R . § 20.33 (1981)
   5 Our understanding that dissemination of this information from the NCIC would be limited to government law
enforcement agencies using the information for law enforcement purposes is based on a discussion with B. Bryan
Masterson, Editorial Staff, NCIC.


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“ potentially dangerous” to a protectee; and a request that any agency inquiring
about the subject contact the USSS. In addition, in order to protect law enforce­
ment officials who come into contact with a subject, the USSS would also include
a brief description of the subject’s dangerous characteristics, for example, that he
is “ mentally unstable” or “ armed and dangerous.” Finally, the entry would warn
officials not to arrest the subject based on the NCIC entry.6

     II.     Authority of the USSS to Investigate and Maintain Files on
Individuals Who Are Not the Subject of an Outstanding Arrest Warrant

   Under 18 U .S.C . § 3056, the USSS is authorized to “ protect” the person of
the President, Vice President, and other designated public figures,7 and to
“ detect and arrest” any person who has made a threat against the President or his
successor in violation of 18 U.S.C. § 871. Although neither the language of
§ 3056 nor its legislative history explains what specific activities are included
within the protective responsibilities of the USSS, it is clear that the USSS’s
duties necessarily require it to engage in a broad range of prophylactic investiga­
tions and preventive actions.8The USSS is not only charged with identifying and
apprehending persons who have threatened the safety of the President or other
protectees, but also with preventing any person from jeopardizing their physical
safety. This charge necessarily presumes that the USSS has the authority to
investigate individuals who might threaten the safety of protectees but who have
not yet taken any concrete action toward realizing that goal.9
   This authority was specifically recognized by the Fifth Circuit in Moorefield v.
United States Secret Service, 611 F.2d 1021 (5th Cir.), cert, denied, 449 U.S.
909 (1980). In that case, the plaintiff, Moorefield, had sought disclosure under
the Freedom of Information Act (FOIA), 5 U.S.C. § 552, of a USSS protective
file maintained on him. Even though he was not being investigated to detect any

  6 This description of the NCIC entry is based on an “ example” of an “ NCIC inquiry” and " a positive U.S Secret
Service response” which was furnished us by the staff of the NCIC.
  7 The public figures are listed in note I , supra
  8 The Supreme Court has described the USSS’s responsibility for assuring the physical safety of the President as
representing an “ overw helm ing” national interest Watts v United States, 394 U S 705, 707 (1969) (per cunam)
  9 The implied authority of the executive branch generally to take appropriate action lo prevent the commission of
federal crimes was recognized over 90 years ago m In Re Neagle, 135 U.S. 1 (1890). There the Supreme Court
noted.
       It has in m odem times become apparent that the physical health of the community is more efficiently
       promoted by hygienic and preventive m eans, than by the skill which is applied to the cure of disease
       after it has become fully developed. So also the law, which is intended to prevent crime, in its general
       spread among the community, by regulations, police organization, and otherwise, which are adapted
       for the protection o f the lives and property of citizens, for the dispersion of mobs, for the arrest of
       thieves and assassins, for the watch which is kept over the community, as well as over this class of
       people, is more efficient than punishment o f crimes after they have been committed. Id at 59 More
       recently, the Office of Management and Budget has specifically observed that “ [a]gencies can denve
       authority to collect information about individuals [either by direct constitutional or statutory
       authorization] o r [b]y the Constitution, a statute, or Executive order authorizing or directing the
       agency to perform a function, the discharge o f which requires the maintenance of a system of
       records ” Office o f M anagement and Budget Privacy Act Implementation: Guidelines and Respon­
       sibilities, 40 Fed. Reg. 28948, 28960 (1975) Section 3056, which directs the USSS to assure the
       physical safety o f protectees, is a statute “ directing the agency to perform a function, the discharge
       of which requires ihe maintenance of a system of records.”


                                                        316
prior criminal activity,10the court held that the file was maintained pursuant to the
USSS’s statutory authority and therefore constituted “ investigatory records”
prepared for “ law enforcement purposes” within the meaning of FOIA, 5 U.S.C.
§ 552(b)(7)(A).11 The materials in the file, it reasoned,

           include[d] background and other matters specifically relevant to
           Moorefield, and were prepared to help the Service fulfill its duty
           under 18 U.S.C. § 3056 (1976) [of] ensuring the lives and safety
           of the President, members of his family, and certain other
           persons.

Id. at 1024 (footnote omitted). Gathering of this information, therefore, served
the “ prophylactic purpose of keeping Service protectees from harm.” Id. at 1024
n.3. The court went on to conclude that the file was exempt from disclosure under
FOIA because disclosure would have directly undermined an “ enforcement
proceeding,” which the court defined to mean, in that case, the protection of the
President:

           In discharging its responsibility to protect the President, the
           Secret Service does not conduct its routine investigations with a
           view towards apprehending law-breakers and bringing them to
           justice. Thus, if the Service has succeeded in its prophylactic
           mission, it should never appear in an adjudicatory proceeding to
           prosecute the assailant of a President, or any of its other protec­
           tees. Its job is to prevent an attack from ever being made. . . .
           Notwithstanding that Service investigations are not directed to­
           ward trials or hearings, they are certainly directed toward an
           active and concrete effort to enforce the law— in fact, nothing
           could be more “ active and concrete” than activities that are part
           of the security apparatus that surrounds the President of the
           United States.

Id. at 1025 (citations omitted and emphasis in original).12
  Congress also recognized the broad scope of the USSS’s investigatory au­
thority and protective files when it passed the Privacy Act, 5 U.S.C. § 552a.
Although the Privacy Act grants the subject of many agency records access to


   10 Moorefield had previously been convicted of making threats against the President See 611 F .2 d a tl0 2 2 , 1024.
   11 Section 552(b)(7)(A) prohibits disclosure of “ investigatory records compiled for law enforcement purposes,
  . . to the extent that the production of such records would         interfere with enforcement proceedings.'* See
generally Federal Bureau c f Investigation v. Abramson, 456 U.S 615 (1982).
   12 Similarly, in Scherer v Brennan, 379 F 2d 609, 611 (7th C ir), cert, denied, 389 U S 1021 (1967), the Seventh
Circuit held that Treasury Department agents were acting within the scope of their duty to protect the person of the
President when they monitored the activities of an individual who they believed might pose a threat to the President,
even though he was not the subject of an arrest warrant or under investigation for any prior criminal activity The
agents were thus held to be immune from suit for any damages to the subject that might have resulted from their
surveillance C f Galella v. Onassis, 487 F 2d 986, 993 (2d Cir 1973) (USSS charged “ with guarding against and
preventing any activity by any individual which could create a nsk to the safety and well being o f ’ protectees).


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them ,13 it authorizes an agency head to exempt from this requirement any files
“ maintained in connection with providing protective services to the President of
the United States or other individuals pursuant to section 3056.” 5 U.S.C.
§ 552a(k)(3). Speaking against an amendment which would have deleted this
exemption from the Act, Representative Moorhead recognized that “ [t]he list of
the protective service by the Secret Service has gotten too broad,” but added that
the “ list also contains the names of people who are a real threat” and “ that an
amendment which completely eliminates the secrecy of the legitimate protective
right of the Secret Service just goes too far.” 120 Cong. Rec. 36966 (1974).
Similarly, the House Committee Report on the Act noted that “ [ajccess to Secret
Service intelligence files on certain individuals would vitiate a critical part of
Secret Service work which was specifically recommended by the Warren Com­
mission [the Commission to Investigate the Assassination of President Ken­
nedy].” H.R. Rep. No. 1416, 93rd Cong., 2d Sess. 19 (1974). The Warren
Commission had recommended that the USSS expand its activities beyond the
investigation of “ persons communicating actual threats to the President,” or
persons expressing “ some manifestation of animus against a Government of­
ficial.” The President’s Commission on the Assassination of President Kennedy
(Warren Commission Report) at 461-62 (1964). In its view, such a limitation was
“ unduly restrictive.” Id. at 462. “A basic element of Presidential protection,” it
advised, “ is the identification and elimination of possible sources of danger to the
President before the danger becomes actual.” Id. at 429.14 In passing the
exemption for the USSS protective files, therefore, Congress apparently recog­
nized that the USSS would be engaged in the prophylactic investigation and
surveillance of a variety of individuals, including many who are not the subject of
an arrest warrant or suspected o f any prior criminal activity.15
   Accordingly, we believe that the USSS has the authority to monitor the
activities of individuals who are not the subject of an outstanding arrest warrant
or being investigated for the commission of prior crimes, so long as the USSS

   13 The Act generally covers any “ sysiem of records” “ maintained” by an agency on an individual “ M aintain” is
defined to include “ maintain, collect, use or disseminate ” 5 U.S C § 552a(a)(3) A “ system of records” is defined
as a “ group of any records under the control of any agency from which information is retrieved by the name of the
individual,” or by some other symbol 5 IT S C. § 552a(a)(5). The USSS protective files are a “ system of records”
within the meaning of the Act. See 46 Fed R eg 16643 (1981).
   14 The Warren Commission apparently assumed that the USSS has the authority to undertake such investigation
under § 3056. Although the Commission criticized the prior lack of preventive investigation, and strongly
recommended that the USSS and FBI expand such activity in the future, it did not suggest that any new statutory
authority was necessary for such investigation. T h e only recommendations made by the Commission with respect to
the authority o f the USSS under § 3056 were that Congress should make assaults or attempted assaults on the
President o r his successor a federal crime, and grant its agents the authority to make arrests without a warrant.
Warren Commission Report at 4 5 4 -5 6 Congress adopted these recommendations by amending § 3056 in Pub L.
No. 89^218, 79 Stat. 890(1965), to give the USSS the authority to make arrests without a warrant, and by enacting
18 U .S C. § 1751 to make an assault on the President (-elect). Vice President (-elect), or the President's successor a
federal crime.
   13 In adopting this provision. Congress also failed lo rely on a more general exemption from the Privacy Act
requirements for files “ m aintained” “ for the purpose of a criminal investigation" by an agency or component
thereof “ which performs as its principal function any activity pertaining to the enforcement of criminal laws.” 5
U .S .C § 552a(j)(2)(B). This may suggest that Congress believed investigations undertaken by the USSS might be
somewhat broader than traditional “ criminal investigations ” Cf. 120 Cong Rec 36966 (1974) (remarks of Rep.
Erlenbom) (supporting USSS exemption even though it “ falls under the same general category of law enforcement
where we already have an exem ption” )


                                                        318
reasonably believes that the individuals might pose a threat to the physical safety
of protectees.16

                 III. Authority of USSS to Enter Information About
                       USSS-Monitored Subjects into the NCIC

   Having determined that the USSS has the authority to collect information
about, and maintain files on, individuals who are not the subject of an arrest
warrant, we next consider whether it may disclose the proposed information
about these individuals to the FBI, and whether the FBI may in turn disclose it to
other agencies, by creating the proposed new file in the NCIC. These disclosures
raise two issues: first, whether the USSS has the statutory authority to dissemi­
nate this information to the FBI, or the FBI, in turn, to other agencies; and
second, even if they do, whether the Privacy Act prohibits such disseminations.

A. Statutory Authority of the USSS and FBI to Disseminate Information on
USSS-Monitored Subjects to Agencies with Access to the NCIC

   The USSS clearly has the authority to transmit information on individuals it
believes may threaten a protectee to the FBI in order to facilitate protection of
protectees. Such authority is implicit in its power under § 3056 and explicit in its
authority under the Presidential Protection Assistance Act of 1976, Pub. L. No.
94—524, § 6, 90 Stat. 2475, as amended, reprinted in 18 U.S.C. § 3056 note, to
seek the assistance of other federal agencies in its protective responsibilities. We
also believe that the FBI has the authority to disseminate this information to law
enforcement agencies in the circumstances you have proposed, although this
conclusion requires a more detailed explanation.
   Section 534, Title 28 (1976), authorizes the Department of Justice to collect
and disseminate various types of “ records.” It states in pertinent part:
          The Attorney General shall—
           (1) acquire, collect, classify, and preserve identification, criminal
           identification, crime, and other records; and
          (2) exchange these records with, and for the official use of,
          authorized officials of the Federal Government, the States, cities,
          and penal and other institutions.
By authorizing the collection and dissemination of “ identification, criminal
identification, crime, and other records,” the language of this provision appears

   16 We note that the Privacy Act generally requires that an agency “ maintain no record descnbing how any
individual exercises rights guaranteed by the First Amendment " 5 U S C § 552a(e)(7). This restriction, however,
would not limit surveillance of individuals or maintenance of files for the protection of protectees The Act provides
an exception to this prohibition for surveillance which is “ pertinent to and within the scope of an authorized law
enforcement activity” The Attorney General has previously determined that USSS and FBI protective investiga­
tions undertaken pursuant to § 3056 constitute a “ law enforcement activity” See Memorandum from Edward H.
Levi, Attorney General, to Clarence M. Kelley, Director, FBI, ‘‘Gathering and Reporting Data Regarding Civil
Disturbances.” p. 2 (Mar. 4, 1976) We see no reason lo reconsider this conclusion


                                                      319
to support the Attorney General’s power to collect and disseminate a wide variety
of criminal investigatory information, including the proposed entry on USSS-
monitored subjects.17
   Some question about this interpretation, however, is raised by the D.C. Circuit
decision in M enard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), which interpreted
the Attorney General’s authority under § 534 very narrowly. In Menard, the
plaintiff had brought suit to expunge an FBI record of his “ detention” by
California State Police.18In granting him relief, the court held that the FBI lacked
statutory authority under § 534 to retain a record of a detention in the arrest file
for dissemination to law enforcement agencies. It appeared to reason that the
Department only had authority to disseminate “ criminal records,” i.e., criminal
matters of record, such as arrests or convictions, and not criminal investigatory
information. Since a record of a “ detention” was, in its view, a type of inves­
tigatory information, the FBI had no authority to maintain the record in a file for
dissemination.
   The court based its narrow reading of § 534 on the brief congressional debate
attendant to its “ original enactment.” The Chairman of the House Judiciary
Committee had described the practice of the Identification Bureau during this
debate as follows:
           There are two classes of information that [are] gathered. One is
           criminal records, and another is the information that is gathered
           about criminals that is not a matter of record. That they do not give
           out, but the criminal records they do give out. That information is
           gathered for the department itself and its agents, in order that they
           more effectually do their work.
72 Cong. Rec. 1989 (1930) (remarks of Rep. Graham). Thus, according to the
court, Congress did not intend to authorize the dissemination of investigatory
information, such as the plaintiff’s detention record, which was not a “ matter of
record.” 498 F.2d at 1028-29 n.42.
   The M enard decision should undoubtedly be read narrowly. As a practical
matter, the FBI disseminates criminal investigatory information in many cases to
other federal and state agencies. See, e .g ., 46 Fed. Reg. 60311, 60321 (1981)
(describing dissemination of criminal investigatory information in FBI Central
Records System). The court in M enard, however, was concerned principally with
the FB I’s dissemination of inaccurate or misleading information from its files,
such as a record of a “ detention” in an arrest file, where that information would
be used for employment decisions. In its opinion, the court specifically found
that the retention of plaintiffs’ file was “ not consistent with the FBI’s duty,

   17 The Attorney General has delegated his authority under § 534 to the Director of the FBI. See 28 C.F.R. § 0.85
(1981)
   18 A fter the plaintiff was arrested by California police, the police were unable to connect him with any felony or
misdemeanor, and therefore they classified his custody as a detention pursuant to California law Nevertheless, this
incident was initially entered into the FBI criminal identification files as an arrest A fter plaintiff brought suit, the
FBI amended the entry in its arrest file to show that the plaintiff had been “ detained” underCalifom ia law 498 F 2d
at 1019-20


                                                          320
corollary to its function of keeping identification records, to take appropriate
measures to assure that this function is discharged responsibly and that the
records are reliably informative.” Id. at 1027-28. A subsequent District of
Columbia decision emphasized this aspect of the decision. See Tarlton v. Saxbe,
507 F.2d 1116, 1121 & n.7 (D.C. Cir. 1974). Thus, the decision should probably
be read as only prohibiting the NCIC from disseminating inaccurate records in
this context, and not from disseminating accurate investigatory information to
other law enforcement agencies.
   Indeed, even if M enard were read to prohibit the dissemination of general
criminal investigatory information, we believe that this limitation would not
apply to the Attorney General’s dissemination of information to assist in the
protection of the President and other protectees. There is no doubt, for example,
that the USSS and the FBI may contact local law enforcement officials in the area
where the President or another protectee is traveling in order to provide back­
ground information on USSS-monitored subjects. Such authority flows directly
from the USSS’s ability to protect such figures pursuant to 18 U.S.C. § 3056 and
to obtain assistance in this effort from other executive agencies. See Presidential
Protection Assistance Act of 1976, § 6, reprinted in notes to 18 U.S.C. § 3056.
For similar reasons, we believe that both the USSS and the FBI have implied
authority to disseminate generally some limited background information in order
to monitor the subject’s activities. This authority would not only permit the
disclosure of identifying information about the subject, but also USSS evalua­
tions. These descriptions would assist police in handling the subject and ul­
timately contribute indirectly to the USSS protection of protectees.
   Even if M enard could not be distinguished, however, we believe that 28
U.S.C. § 534 clearly authorizes the Attorney General to disseminate criminal
investigatory information. Our conclusion that other courts should not and will
not adopt M enard’s analysis of § 534, at least with respect to the entry on USSS-
monitored subjects, is based on three weaknesses in the Menard analysis.
   First, the legislative history of § 534 does not support the court’s narrow
interpretation. The court relied on the congressional debates during the enact­
ment of a predecessor statute, 5 U.S.C. § 340 (1964), repealed by Pub. L. No.
89-554, § 8(a), 80 Stat. 632, 648 (1966), which had authorized dissemination of
only “ criminal identification and other crime records.” In 1966, however, Con­
gress had combined § 340 with 5 U.S.C. § 300 (1964), repealed by Pub. L. No.
89-554, § 8(a), 80 Stat. 632, 648 (1966), to form present § 534. Section 300 had
authorized the Attorney General to appoint officials to exchange “ identification
and other records.” 19 Section 534, which combines both provisions, not only
authorizes the dissemination of “ criminal identification” and “ crime records,”
but also “ identification” and “ other records.” Accordingly, Congress’ narrow
intent in passing 5 U.S.C. § 340 (1964), on which the court in M enard relied,
does not limit the dissemination of records under the broader language of 28

   19 Section 300 was based on the Department of Justice Appropriation Act, 1965, Pub L. No. 88-527, 78 Stat. 71
§ 201 (1964) Similar provisions authorizing the exchange of "identification and other records” had been passed
every year since 1932 See, e g , ch. 361, 47 Stat. 488 (1932).


                                                    321
U .S.C . § 534.20 Moreover, while the separate legislative history of 5 U.S.C.
§ 300 (1964), does not clarify the meaning of “ other records,” there is no
indication that Congress intended to give it the restrictive interpretation which the
court in M enard gave to 5 U.S.C. § 340 (1964).
   Second, M enard’s interpretation of the language of the statute is illogical. The
court apparently did not challenge the obvious authority of the Attorney General
to gather and maintain records on criminal investigations. See 498 U.S. at 1029.
Thus, the definition of records for purposes of acquisition and storage of informa­
tion covers records of criminal investigations. The court adopted a narrower
interpretation of records, however, with respect to the dissemination of criminal
information. In such cases, “records” were defined as matters of official record.
This bifurcated definition of record obviously finds no support in the text of
§ 534. The section authorizes the exchange of “ these records,” meaning the
same “ records’1’ which the Attorney General is permitted to “ acquire, collect,
classify, and preserve.” Therefore, unless the provision is interpreted to prohibit
the Attorney General from maintaining investigatory records, a position that not
even the court in M enard was willing to adopt, the language of § 534 and its
legislative history authorize the dissemination of some types of investigatory
information, including, we believe, the entry on USSS-monitored subjects.
   Third, the Court in Menard partly based its narrow reading of § 534 on the
view that dissemination of criminal investigation information would create a
constitutional problem which should be avoided through narrow statutory con­
struction. See 498 F.2d at 1029. After M enard was decided, however, the
Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), held that no liberty or
privacy interest was implicated by the dissemination of criminal justice informa­
tion unconnected with any tangible property interests such as employment.
Thus, there is no justification for interpreting § 534 so as to avoid constitutional
problems with respect to the dissemination of investigatory information only for
law enforcement purposes.
   In light of all of these factors, we believe that federal courts should not and will
not adopt M enard’s narrow interpretation of § 534 in this context. Section 534, in
our view, authorizes the dissemination of investigatory information for law
enforcement purposes, including the USSS entry on USSS-monitored subjects.
B. The Privacy Act

   Although the USSS and FBI have the authority to disseminate this informa­
tion, this disclosure must still satisfy the requirements of the Privacy Act. The
USSS files are a “ system of records” within the meaning of the Privacy A ct.21
   20 The C ourt in A/enar*/ignored the more expansive language o f 28 U .S.C. § 534 because the 1966 amendments
specifically stated that they were not intended to change the substantive meaning of the predecessor statutes. See 498
F.2d at 1028-29 n .42, citing Pub. L. No. 89 -5 5 4 , § 7a, 80 Stat 611, 631 (1966). However, if § 300 authorized the
dissemination of investigatory records before it was combined with § 340, then the court’s exclusive reliance on the
language and history of § 340 was misplaced.
   21 “ System of records” is defined as “ any records under the control of any agency for which information is
retrieved by the name o f the individual or by som e identifying” symbol. 5 U S.C . § 552a(5). The USSS’s Privacy
Act notice on its protective files recognizes that they constitute a “ system of records.*’ See 48 Fed Reg. 16643
(1981).

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The Act prohibits an agency from “ disclosing” to another agency any record
which is contained in a “ system of records” unless the subject of the record gives
his consent or one of several other exceptions are met. The only exemption that
might permit the transmission of information on USSS-monitored subjects is that
exemption which authorizes disclosure for a “ routine use” of the information, 5
U.S.C. § 552a(b)(3), i.e ., “ use [of the record] for a purpose which is compatible
with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7).22 Thus,
dissemination of the records from the USSS to the NCIC, and from the NCIC to
the various participating law enforcement agencies, must each come within this
exception to satisfy the requirements of the Act.
   The precise meaning and outer limits of the “ routine use” exception have not
been clearly delineated. In adopting this admittedly “ ambiguous” language, 120
Cong. Rec. 36957 (1974) (remarks of Reps. Ichord and Erlenbom), it was
recognized that “ [i]t would be an impossible legislative task to attempt to set
forth all of the appropriate uses of Federal records about an identifiable individu­
al.” 120 Cong. Rec. 36967 (1974) (remarks of Rep. Moorhead). It is clear, for
example, that the exemption may cover the dissemination of information even
though it is used for a purpose different from the one for which it was collected.
See, e.g ., 120 Cong. Rec. 36967 (1974) (remarks of Rep. Moorhead); 120 Cong.
Rec. 40406 (1974) (remarks of Sen. Ervin); OMB Circular No. A-108 (1975),
40 Fed. Reg. 28953 (1974); United States v. Collins, 596 F.2d 166 (6th Cir. 1979)
(per curiam); Burley v. United States Drug Enforcement Administration, 443 F.
Supp. 619, 623 (M.D. Tenn. 1977). The “ routine use” exemption may also
permit dissemination of information for a particular purpose even though the
dissemination occurs infrequently. See 120 Cong. Rec. 36967 (1974) (remarks of
Rep. Moorhead).
   Because of the difficulty in defining legislatively the limits of the routine use
exception, Congress chose to prevent irregular disclosures under this exemption
primarily by requiring agencies to promulgate the regulations setting forth the
“ routine uses” of their own information. Under 5 U.S.C. § 552a(e)(4) & (11),
agencies must publish the routine uses of information in the Federal Register 30
days before dissemination for notice and comment. This “ public scrutiny” was
intended to “ caution . . . agencies to think out in advance what uses it will make
of information,” 120 Cong. Rec. 40406 (1974) (remarks of Sen. Ervin) and
provide a “ check” against “ potential bureaucratic abuses.” 120 Cong. Rec.

   22 The Privacy Act also exempts disclosure to any government agency “ for a civil or criminal law enforcement
activity,” but only “ if the head of the agency or instrumentality has made a written request to the agency which
maintains the record specifying the particular portion desired and the law enforcement activity for which the record
is sought ” 5 U .S.C § 552a(b)(7) Because requesting agencies in the NCIC do not make written requests for
information, this exception would not exempt the exchange of information through the NCIC
   The other exceptions also do not cover the exchange of information through the NCIC They exempt the
disclosure of information to employees of the agency that maintains the record; to the Bureau of the Census for
Census purposes; to the Natural Archives if the information is of historical value; to either House of Congress; to a
committee of Congress if within its jurisdiction, to the Comptroller General if pursuant to its GAO duties, to a court
of competent jurisdiction if pursuant to court order, to a recipient who gives adequate assurances that the
information will be used for statistical purposes and the information is transmitted so as not to be personally
identifiable, to a person who can show “ compelling circumstances” affecting the health or safety of the subject of
the file; and pursuant to the Freedom of Information Act 5 U S C § 552a(b).


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36655 (1974) (remarks of Rep. Moorhead). The only cases to date in which
courts have disallowed disclosures of information sought to be transmitted under
this exception have arisen where the agency failed to satisfy the procedural
requirements of public notice and comment. See, e .g ., Parks v. United States
Internal Revenue Service, 618 F.2d 677 (10th Cir. 1980).
   Assuming the USSS and FBI satisfy these procedural requirements of public
notice and comment, we believe that the transmission of the proposed informa­
tion on USSS-monitored subjects into the NCIC, and from the NCIC to other
federal and state agencies, would come within the “ routine use” exception. The
proposal involves the transmission of two types of information. First, the names
of and identifying information about these individuals would be disclosed to a
participating agency in order to obtain current information from that agency
about the subject. In such cases, the information on the subject is being disclosed
for the same purpose for which it was originally collected— protection of protec­
tees— and therefore is clearly a “ routine use.”
   Second, certain evaluative descriptions, such as “ potentially dangerous to a
protectee,” “ mentally unstable,” or “ armed and dangerous,” are disclosed,
according to your letter, essentially to assist law enforcement personnel in their
own dealings with the subject. See Opinion Request, p. 3. So long as law
enforcement personnel are obtaining the information to further a criminal inves­
tigation or an arrest, and the information may be of assistance in this effort, this
use would appear to be “ compatible” with the use for which the information has
been collected. The information is being used to assess the subject with regard to
the possible commission of a crime and his danger to police officers. Moreover,
this disclosure may also assist in the protection of the President and other
protectees by making local law enforcement personnel aware of possible threats
to protectees and the specific danger they pose.23
   We caution, however, that disclosure of the information for the purpose of
making non-law enforcement decisions, such as licensing or employment, which
are unrelated to criminal investigation, would present different issues. Such use
might well not satisfy the underlying intent of the routine use exemption in many
cases. The purpose of the “ routine use” exception is “ to discourage the un­
necessary exchange of information to another person or to agencies who may not
be as sensitive to the collecting agency’s reasons for using and interpreting the
material.” 120 Cong. Rec. 40406 (1974) (remarks of Sen. Ervin) (“Analysis of
House and Senate Compromise Amendments to the Federal Privacy Act” ).
Designation of certain individuals as dangerous to protectees or “ mentally
unstable,” as the above discussion has suggested, may often be based on
necessarily tentative, highly prejudicial and conclusory judgments. While such
evaluations may be valuable to law enforcement investigation, they may be

  23 We note, however, that this issue will probably be litigated if individuals in the file believe that they have been
subjected to police harassment as a result of this designation Accordingly, we recommend, as discussed m greater
detail below, that adequate precautions be taken to assure that designations are accurate, timely, and no more
derogatory than is necessary to provide needed information. It is also extremely important, as the proposed entry
provides, to warn local officials not to arrest the subject based on the NCIC entry.


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unduly prejudicial when used for purposes such as employment or licensing,
which are unrelated to criminal investigation. Employment personnel clearly
“ may not be as sensitive to the [USSS’s] reasons for using and interpreting the
material.” 24
   This possibility is underscored by the legislative history of 5 U .S.C .
§ 552a(k)(3), which permits USSS protective files to be exempted from the
access requirements of the Act. In speaking against a proposed amendment that
would have deleted this exemption, Representative Erlenbom conceded that
“ real harm” could result from the dissemination of USSS investigatory informa­
tion “ to some other agency where the person would be harmed in his application
for employment or some other right or privilege under the laws of the United
States.” 120 Cong. Rec. 36966 (1974). He recommended that the exemption for
USSS protective files should be passed only because the “ prohibition of transfer
to other agencies,” except for routine uses, would still apply to USSS files. Id.
Thus, Congress may have exempted USSS protective files from the access
requirements of the Act with the understanding that the restrictions on dissemina­
tion of these files to other agencies would be carefully scrutinized.
   Dissemination of this information for non-law enforcement purposes could
also create serious constitutional problems. In Paul v. Davis, 424 U.S. 693
(1976), the Supreme Court held that no liberty or privacy interest of the plaintiff
was violated by a police department’s dissemination of a flyer identifying him as
an “ active shoplifter.” The Court reasoned that defamation, “ standing alone,”
does not deprive an individual of any liberty interest protected by the procedural
guarantees of the Fifth and Fourteenth Amendments. 424 U.S. at 709. The Court
suggested in dicta, however, that imposition by the government of a stigma plus a
loss in government employment might trigger a liberty interest. Other cases have
similarly suggested that a stigmatizing government disclosure coupled with the
loss of employment or property interest might trigger due process protection. See
Owen v. City of Independence, M o., 445 U.S. 622, 633 n. 13 (1980); B oard cf
Regents v. Roth, 408 U.S. 564, 573 (1972). Although we need not reach the
question of whether and when dissemination of information on USSS-monitored
subjects for non-law enforcement purposes would be impermissible, in light of
these decisions and the legislative history of the Privacy Act,25 we strongly

   24 We note that one court has held that the disclosure of drug investigation records about a state pharmacist to a
state licensing board constituted a routine use See Burley v United Slates Drug Enforcement Administration, 443 F
Supp 619, 623-24 (M D Tenn 1977). In contrast to the general and conclusory designation of individuals as a
“ threat to a protectee” or “ mentally unstable,” however, drug investigation information is directly relevant to the
licensing decision of such boards. Moreover, as the court noted, 21 U .S.C § 873 specifically authorizes the
Attorney General to disclose drug investigation information to state officials
   25 Dissemination for non-cnminal investigation purposes could also restrict the flexibility of the USSS in
gathering information about USSS-monitored subjects The Privacy Act requires federal agencies to “ collect
information to the greatest extent practicable directly from the subject individual when the information may result in
adverse determinations about an individual's rights, benefits, and privileges under Federal programs.” 5 U .S.C
§ 552a(e)(2) Dissemination of information on USSS-monitored subjects in a way that would result “ in adverse
determinations about an individual's rights, benefits, and privileges under Federal programs” would therefore
require the USSS to collect information on USSS-monitored subjects “ as much as practicable” from the subjects
themselves, unless the information were construed to come within the law enforcement exemption to this
requirement See 5 U .S.C § 552a(j)(2)(B).


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recommend that care be taken to assure that dissemination of this information is
strictly limited to law enforcement purposes.26

                    IV. Maintaining the Accuracy of Information on
                               USSS-Monitored Subjects

   Finally, we note that even though the NCIC has the authority to disseminate
this information to law enforcement agencies, § 534 and the Privacy Act, 5
U .S.C . § 552a(e)(6), require that reasonable efforts be made to assure that the
information is accurate and relevant to its use for law enforcement purposes. In
Tarlton v. Saxbe, 507 F.2d at 1125, the D.C. Circuit “ interpret[ed] § 534 in a
manner designed to prevent government dissemination of inaccurate criminal
information without reasonable precautions to ensure accuracy.” See also Pruett
v. Levi, 622 F.2d 256, 257 (6th Cir. 1980); United States v. Doe, 556 F.2d 391,
393 (6th Cir. 1977); Menard v. Saxbe, 498 F.2d at 1026. Tarleton recognized,
however, that this “ duty must be accommodated to the particular role the FBI
plays in the collection and dissemination of criminal information in the Federal
system, the FB I’s capacity to take reasonable measures to ensure accuracy and
the practicalities of judicial administration and executive efficiency.” Id. at 1126.
Similarly, the Privacy Act, 5 U.S.C. § 552a(e)(6), provides that “ prior to
disseminating any record about an individual to any person other than an agency
. . ., [an agency must] make reasonable efforts to assure that such records are
accurate, complete, timely, and relevant for agency purposes.” Since state law
enforcement agencies with access to the NCIC are not agencies within the
meaning of the Privacy Act, 5 U.S.C. § 552a(a)(l),27 the FBI should satisfy this
standard if the records are to be introduced into the NCIC for general
dissemination.28
   Because we are not sufficiently familiar with the process by which individuals
receive designations such as “ dangerous” to a protectee or “ mentally unstable,”
we believe that it would be inappropriate for us at this time to express an opinion
on what procedural safeguards should be provided. We emphasize that some
periodic reassessment of these designations, as your proposal indicates will be
undertaken, would probably be necessary. We also believe that the entry on
USSS-monitored subjects should clearly note, as the current proposal provides,
that the individual should not be arrested as a result of the entry.29 Cf. Testa v.

   26 We note that information on USSS-monitored subjects in the NCIC file would remain exempt under 5 U S C.
§ 552a(k)(3) from the access requirements of the Privacy Act. This provision permits the head of an agency to
exempt files which are “ maintained in connection with providing protective services             pursuant to section
3056        ” Although the new NCTC files on USSS-monitored subjects are not maintained “ by” the USSS. they are
maintained “ in connection w ith” providing protective services under § 3056
   27 Agency means “ agency as defined in § 552(e) of Title 5 .” which does not include state institutions.
   28 Section 552a(e)(5) also requires that an agency “ 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.” Because dissemination of these files
through the NCIC is clearly covered by 5 U S.C § 552a(e)(6), we need not decide whether inclusion of an
individual in the file on USSS-monitored subjects for law enforcement purposes is a “ determination” within the
meaning o f the section
   29 See note 3, supra.


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Winquist, 451 F. Supp. 388, 394—95 (D.R.I. 1978) (operator of criminal history
computer system may be held liable for knowing dissemination of inaccurate
information which leads to unconstitutional arrest). If you would like us to look
into this issue after being briefed in more detail about the investigation process,
we will be happy to do so.30

                                            Conclusion

   We believe that the USSS has the authority to monitor the activities of
individuals who are not the subject of an arrest warrant so long as the USSS
reasonably believes they may pose a threat to protectees. We also believe that the
USSS can introduce the proposed information about USSS-monitored subjects
into the NCIC. We emphasize, however, that care should be taken to assure that
evaluative information about such individuals is periodically reevaluated and not
disseminated from the NCIC for non-law enforcement purposes.

                                                          T h e o d o r e B . O lso n
                                                      Assistant Attorney General
                                                       Office of Legal Counsel




   30 Finally, we note that establishment of the new file in the NCIC would require amendment of the present
regulations on the operation of the NCIC, see 28 C .F R . §§ 20 1-20 38 (1981), as well as a new Privacy Act
disclosure statement for both the USSS and NCIC See 5 U .S.C . § 552a(e)(4) & (11)


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