January 16, 1979


79-3      MEMORANDUM OPINION FOR THE
          ASSISTANT DIRECTOR, CRIMINAL
          INVESTIGATIVE DIVISION, FEDERAL
          BUREAU OF INVESTIGATION
          Privacy Act (5 U.S.C. § 552a(c))—Federal Bureau
          of Investigation—Transmission of Information
          Collected by FBI to State or Local Law
          Enforcement Agencies

   This is in response to your request for our opinion whether the Federal
Bureau of Investigation’s (FBI’s) disclosure to a local or State law enforce­
ment agency of personal information obtained from another law enforce­
ment agency would be subject to the accounting requirements of the
Privacy Act, 5 U.S.C. § 552a(c). This memorandum will address not only
this question, but also the question whether the Privacy Act permits these
disclosures at all.
   As we have previously advised you, the FBI may legitimately acquire in­
formation from one State or local agency and pass it to a different State or
local agency. See 28 U.S.C. § 534(a). We understand that the FBI’s cur­
rent practice is to retain a copy of the transferred records for 6 months in
the field office that handled the liaison work. The copies of the documents
are kept in one file jacket; they are not indexed, but are retrievable by the
individual’s name.
   We believe that under the FBI’s current practices, the handling and
transfer of the documents in question would be subject to the require­
ments of the Privacy Act. This Act generally applies to a “ system of
records,” defined in the Act 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 identifying number, symbol, or other identifying par­
     ticular assigned to the individual. [5 U.S.C. § 552a(5).]
Since the documents in question appear to constitute a “ group of
records,” under the control of the FBI, and may be retrieved by resort

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to the use of an individual’s name, they would seem to come within this
definition' and hence within the general requirements of the Privacy Act.
   Before addressing your inquiry whether an accounting of the disclosure
of such records is required under the Privacy Act, we believe it is first
necessary to determine whether the Act allows a disclosure of these records
at all. The Act generally prohibits Federal agencies from disclosing any in­
formation from a system of records without the consent of the subject in­
dividual, unless the disclosure falls within a specific exception.2 5 U.S.C.
§ 552a(b). The only relevant exception would be a disclosure “ for a
routine use.” 5 U.S.C. § 552a(b)(3). Federal agencies may use this excep­
tion, however, only if the statutory definition of a “ routine use” has been
satisfied, see 5 U.S.C. § 552a(a)(7), and the procedural requirements for
delineating and establishing a routine use are met. 5 U.S.C.
§ 552a(e)(4)(D) and (e)(l 1); Privacy Act Guidelines, 40 F.R. 28949, 28954
(1975).
   We believe that disclosure in this situation would satisfy the definition
of a “ routine use.” That term is defined as “ the use of such record for a
purpose which is compatible with the purpose for which it is collected,”
and the records in question are collected by the FBI for the purpose of dis­
closing them to the pertinent State or local agency. However, we believe
that a serious legal question exists whether the FBI has established a
“ routine use” under the procedural requirements of the Act. Federal
agencies that maintain a system of records are required to:
      * * ‘ Publish in the Federal Register at least annually a notice of
      the existence and character of the system of records, which notice
      shall include—
           (A) the name and location of the system;
            (B) the categories of individuals on whom records are main­
        tained in the system;
            (C) the categories of records maintained in the system;
            (D) each routine use of the records contained in the system,
        including the categories of users and the purpose of such use.
                                      * * * * * * *

      * * *At least 30 days prior to publication of information under
      paragraph [4](D) of this subsection, publish in the Federal
      Register notice of any new use or intended use of the information


   1 While the records appear to be maintained only on an informal and temporary basis, the
fact that the records are maintained in a file available to all for a period of 6 months
precludes any determination on our part that the records do not come within the definition of
a “ system of records.”
   2 Although the Privacy Act does not define the term “ disclosure,” it seems clear to us that,
since the FBI’s transmittal of the records to the State or local agency would impart to that
agency information “ which in itself has meaning and which was previously unknown to the
[agency] to whom it is imparted,” Harper v. United States, 423 F. Supp. 192, 197 (D.S.C.
1976), the FBI would be “ disclosing” information within the meaning of the Act.

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     in the system, and provide an opportunity for interested persons
     to submit written data, views, or arguments to the agency. [5
     U.S.C. § 552a(e)(4)(A)-(D), e(l 1).]
The delineation of the FBI central records system, 43 F.R. 44683 (1978),
the only system which, as we are informed, is relevant at all to this type of
information, contains no indication that the FBI, in the course of
facilitating State or local investigations, maintains files of information on
those who are the subject of those investigations.3 Even though this system
of records provides for a broad routine use,4 we do not think that this
broad provision can apply to records that are not encompassed in the
description of the records in the system. Since no routine use has been
established, and since no other exception would allow disclosure, it would
appear to us that disclosure is prohibited by the Privacy Act.
   The underlying purpose of these provisions support our conclusion.
Congress intended the requirements of disclosure set forth above to enable
individuals to determine whether Federal agencies hold information on
them, H. Rept. 1416, 93rd Cong., 2d sess. 2, 15 (1974). Also, the aim was
to inform the public of the proposed uses of the information. Id. at 15;
Privacy Act Guidelines, 40 F.R. 28949, 28966 (1975). The failure to iden­
tify the information in question in any system of records undermines both
of these goals, because the public would have no knowledge of the fact
that the information is stored or of the uses to which it is put. Since Con­
gress intended that the “ routine use” exception would apply only if such
conditions were met, H. Rept. 1416, 93d Cong., 2d sess. 16 (1974), we do
not believe that this exception may justify a transfer of the pertinent
information.
   We suggest several ways to alleviate the problem. The first would be to
identify these records in the FBI Central Records System so that the
routine use provision for that system could apply to these records.
Another solution would be avoiding a “ system of records” format of
organizing the information transferred to the States or localities. This
could be done, first, by not retaining any copies of the information; in this
way there would be no file of records, and hence no “ system of records”
would exist, and therefore the Privacy Act would not apply.5 A simpler
way may be not to handle the records at all, and let the information be
transferred directly from one State agency to another.
   This question whether the accounting requirements of the Privacy Act
apply to transfers under the suggested plans would depend on which plan


   ’ The reference to “ Domestic Police Cooperation,” 43 F.R. 44684, does not, in our view,
indicate that the FBI maintains such files.
  4 “ Information from these files is disseminated to appropriate Federal, State, local and
foreign agencies where the right and need to have access to this information exists.” 43 F.R.
44693 (1978).
   ’ The definition o f “ system o f records” refers to “ a group of any records” [emphasis
added], and this would clearly suggest that a single record does not by itself constitute a
system of records.

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is adopted. If the FBI continues to maintain these files in a system of
records, the accounting requirements in 5 U.S.C. § 552a(c) would apply to
a disclosure of any record contained in that system. Since 5 U.S.C.
§ 552a(c) applies only to a “ system of records,” however, the re­
quirements of that section would not apply if the FBI handles the informa­
tion so as not to create a system of records.6

                                           M a ry C. L a w to n
                                 Deputy Assistant Attorney General
                                                     Office o f Legal Counsel




   6 It is to be noted that, pursuant to this memorandum the FBI published in the Federal
Register (44 F.R. 58920 (1979)) a modified system notice for its central records system. The
FBI described its temporary maintenance of records relevant to the domestic police coopera­
tion program.