The Honorable Thomas S. Bishop    Opinion No. H-782
Adjutant General
P. 0. Box 5218                    Re: Whether the Federal
Austin, Texas 78763               Privacy Act of 1974 applies
                                  to the Texas National Guard.
Dear General Bishop:
     You have requested our opinion regarding whether the
Federal Pritiacy-Actof 1974, 5 U.S.C. So552a, is applicable
to the Texas National Guard while in State status and to the
Army and Air Technician Program.
     The purpose of.the Federal Privacy Act is
          to provide certain safeguards for an
          individual against an invasion of
          privacy by requiring Federal agencies,
          except as otherwise provided by law, to
          [perform certain duties]. P.L. 93-579,
          S 2(b), U.S. Code C&A News, Vol.2 (1974)
          at 2178. (Emphasis added).
"Agency" means "agency as defined in section 552(e) of this
title." 5 U.S.C. S 552a(a)(1). Section 552(e) defines "agency"
to include
          any executive department, military
          department, Government corporation,
          Government controlled corporation, or
          other establishment in the executive
          branch of the Government (including the
          executive office of the President), or
          any independent regulatory agency.
          5 U.S.C. S 552(e).




                        p. 3301
The Honorable Thomas S. Bishop - page 2   (H-782)


     Although no statute or judicial decision declares
whether &he National Guard is included within the definition
of "agency," the Supreme Court has held that a member of the
National Guard is not a federal employee for purposes of the
Federal Tort Claimnct.    In Maryland v. United States, 381
U.S. 41 (19651, the Court ruled that t= appointment of
members of the Guard
         by State authorities and the immediate
         control exercised over them by the States
         make it apparent that military members of
         the Guard are employees of the States, and
         so the courts of appeals have uniformly
         held. 381 U.S. at 48.
See also S.torerBroadcastin Co. v. United States
--
268, 269 (5thir.'serger,
                    1 8              356 U.~'(?~:8?:2aIn
our opinion, the status of members of a National Guard as
state employees requires the conclusion that the Texas National
Guard, while in state status, is a state rather than a federal
agency, and that, as a result, the Federal Privacy Act is not
at such time applicable thereto. See also Mela v. Callaway,
378 F.Supp. 25, 28 (S.D.N.Y. 1974);en    RecordsDecision No.
115 (1975).
     We are supported in this view by the provisions of 32
U.S.C. S 709, which specifically designates persons in the
Army and Air T&%nicians Program as federal employees:
         A technician employed under subsection
         (a) is an employee of the Department of
         the Army or the Department of the Air
         Force, as the case may be, and an
         employee of the United States. However,
         a position authorized byethis section is
         outside the competitive service if the
         technician employed therein is required
         under subsection (b) to be a member of the
         National Guard. 32 U.S.C. S 709(d).




                         p. 3302
The Honorable Thomas S. Bishop - page 3 (H-782)


Thus, as to the Army and Air Technician Program, whose members
are classified as federal employees, it is our opinion that the
Federal Privacy Act is applicable. As to the remainder of the
Texas National Guard, however, we believe that the Federal
Privacy Act has no application.
                       SUMMARY
            The Federal Privacy Act of 1974 applies
            to the Army and Air,Technician Program
            but not in general to the Texas National
            Guard while in State status.
                                 Very truly yours,

                                       /zfJ&?                *.:.,
                                       . HILL
                                 Attorney General of Texas
APPROVED:




Opinion Committee




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