Government Executive Magazine - 9/11/00 House panel debates what an "agency" is

klunney@govexec.com

A House subcommittee debated the meaning of the term "agency" Friday-a key question in determining whether the 1974 Privacy Act applies to the Executive Office of the President.

The Privacy Act, passed in the aftermath of Watergate, restricts the collection, use and disclosure of personal information by federal agencies.

William Treanor, who heads the Office of Legal Counsel at the Justice Department, told the House Government Reform subcommittee that the department believes the law does not apply to the White House-a view it has held since 1975.

The debate turns on the definition of the term "agency." The Privacy Act uses the same definition found in the Freedom of Information Act (FOIA)-a definition that includes the Executive Office of the President. However, in 1980, the Supreme Court ruled that the FOIA definition does not apply to the President's immediate personal staff or advisers.

So, while the Office of Management and Budget and the Office of National Drug Control Policy are both considered agencies under the FOIA definition, the Council of Economic Advisers and the National Security Council are not.

Other witnesses told the subcommittee the Privacy Act should be clarified to make clear that it applies to the White House.

"Ironically, if there is one governmental office that should be covered by this statute, it is the Office of the President. The Office of the President is the most political part of the executive branch," said Jonathan Turley, a law professor at George Washington University.

In 1997, a federal district Court that the FOIA definition should not determine whether or not the Privacy Act should be applied to the President's personal staff. The matter is now before the U.S. Court of Appeals.

"What public policy reason could justify allowing the White House the freedom to reveal to The Washington Post information that would be a crime for DoD, State, or the FBI to reveal? I do not see any good reason," said Gregory S. Walden, White House counsel from 1991 to 1993.

Congress and the White House have debated several privacy-related issues this year. In June, OMB issued a memo ordering agencies not to use data tracking software, known as "cookies," on their Web sites. A cookie is a small piece of information written to the hard drive of the computer of a Web surfer visiting a Web site. The files can extract a variety of information, including where on the site the user visited.

The General Accounting Office plans to release a study soon comparing federal government Web sites to the privacy principles recently put forward by the Federal Trade Commission. Although details on the report are not yet available, OMB Deputy Director Sally Katzen sent a letter to GAO last week criticizing the report.

GAO also released a report last week showing that 69 of 70 federal agencies it studied had posted privacy policies.

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