Applicability of the Privacy Act to the White House

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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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Applicability o f the Privacy Act to the White House

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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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

Footnotes

[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)