                      Application of Privacy Act Congressional-Disclosure
                     Exception to Disclosures to Ranking Minority Members
             The congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does
               not apply to disclosures to committee ranking minority members.

                                                                                              December 5, 2001

                                   LETTER OPINION FOR THE GENERAL COUNSEL
                                        DEPARTMENT OF THE TREASURY

                This letter responds to your request of November 13, 2001, for the opinion of
             this Office concerning whether information protected by the Privacy Act of 1974
             (“Privacy Act” or “Act”), 5 U.S.C. § 552a (2000), may be disclosed to the ranking
             minority member of the Senate Finance Committee, pursuant to the Act’s con-
             gressional-disclosure exception, id. § 552a(b)(9). We understand that the ranking
             minority member, not the Finance Committee, requested this information.
                The Privacy Act prohibits the disclosure of information subject to the protec-
             tions of the Act without the consent of the individual to whom the information
             relates, unless one of the enumerated exceptions of the Act applies. Id. § 552a(b).
             One of those exceptions authorizes disclosure “to either House of Congress, or, to
             the extent of matter within its jurisdiction, any committee or subcommittee
             thereof, any joint committee of Congress or subcommittee of any such joint
             committee.” Id. § 552a(b)(9).
                We conclude that the Privacy Act prohibits the disclosure of the Privacy Act-
             protected information to the ranking minority member. Except where the Senate or
             House exercises its investigative and oversight authority directly, as is the case
             with a resolution of inquiry adopted by the Senate or House, each House of
             Congress exercises its investigative and oversight authority through delegations of
             authority to its committees, which act either through requests by the committee
             chairman, speaking on behalf of the committee, or through some other action by
             the committee itself. As a general matter, ranking minority members are not
             authorized to make committee requests, act as the official recipient of information
             for a committee, or otherwise act on behalf of a committee. We understand that the
             ranking minority member has not received such an authorization from the Finance
             Committee.
                Thus, the essential analysis underlying our conclusion is that although the
             congressional-disclosure exception to the Privacy Act disclosure prohibition is
             available for disclosures to either House of Congress or to a committee of
             Congress, ranking minority members generally do not act on behalf of congress-
             ional committees. Accordingly, absent the unusual circumstance of a specific
             delegation to a ranking minority member from the Senate or House or a commit-
             tee, a disclosure of Privacy Act information solely to a ranking minority member



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         is not a disclosure to the committee, and the congressional-disclosure exception is
         therefore unavailable. Of course, disclosure of the information to the ranking
         minority member would be authorized by the exception if the committee itself or
         its chairman authorizes the disclosure.
             You also asked whether our conclusion would be any different if the infor-
         mation is delivered to the ranking minority member through the clerk of the
         committee rather than directly to the member. Our conclusion does not change in
         that circumstance because all that is different is the method of delivery. The
         disclosure still cannot be viewed as being made to the committee unless the
         disclosure has been authorized by the committee or its chairman.
             Our conclusion that the Privacy Act’s congressional-disclosure exception does
         not generally apply to disclosures to ranking minority members follows the
         longstanding Executive Branch practice on this question. Moreover, we note that
         the Congressional Research Service takes the same view as we do concerning the
         lack of authority of ranking minority members, as a general matter, to act on
         behalf of congressional committees:

                  The role of members of the minority party in the investigatory over-
                  sight process is governed by the rules of each House and its commit-
                  tees. . . . [N]o House or committee rules authorize ranking minority
                  members or individual members on their own to institute official
                  committee investigations, hold hearings or to issue subpoenas. Indi-
                  vidual members may seek the voluntary cooperation of agency offi-
                  cials or private persons. But no judicial precedent has recognized a
                  right in an individual member, other than the chair of a committee, to
                  exercise the authority of a committee in the context of oversight
                  without the permission of a majority of the committee or its chair.

         Morton Rosenberg, Cong. Research Serv., Rpt. 95-464A, Investigative Oversight:
         An Introduction to the Law, Practice and Procedure of Congressional Inquiry 56
         (Apr. 7, 1995) (footnote omitted).

                                                                  JAY S. BYBEE
                                                            Assistant Attorney General
                                                             Office of Legal Counsel




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