by Unknown
The Office of the Federal Register shall biennially compile
and publish the rules promulgated under this subsection and
agency notices published under subsection (e)(4) of this section
in a form available to the public at low cost.
(g)
(1) Civil remedies. Whenever any agency
(A) makes a determination under subsection (d)(3) of this sec-
tion not to amend an individual’s record in accordance with
his request, or fails to make such review in conformity with
that subsection;
(B) refuses to comply with an individual request under subsec-
tion (d)(1) of this section;
(C) fails to maintain any record concerning any individual with
such accuracy, relevance, timeliness, and completeness as is
necessary to assure fairness in any determination relating
to the qualifications, character, rights, or opportunities of,
or benefits to the individual that may be made on the basis
of such record, and consequently a determination is made
which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or
any rule promulgated thereunder, in such a way as to have an
adverse effect on an individual, the individual may bring a
civil action against the agency, and the district courts of the
United States shall have jurisdiction in the matters under
the provisions of this subsection.
(2)
(A) In any suit brought under the provisions of subsection (g)(1)
(A) of this section, the court may order the agency to amend
the individual’s record in accordance with his request or in
such other way as the court may direct. In such a case the
court shall determine the matter de novo.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred
in any case under this paragraph in which the complainant
has substantially prevailed.
Appendix D: Consumer and Credit Data Privacy Laws
403
(3)
(A) In any suit brought under the provisions of subsection
(g)(1)(B) of this section, the court may enjoin the agency
from withholding the records and order the produc-
tion to the complainant of any agency records improp-
erly withheld from him. In such a case the court shall
determine the matter de novo, and may examine the
contents of any agency records in camera to determine
whether the records or any portion thereof may be with-
held under any of the exemptions set forth in subsection
(k) of this section, and the burden is on the agency to sus-
tain its action.
(B) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred
in any case under this paragraph in which the complainant
has substantially prevailed.
(4) In any suit brought under the provisions of subsection (g)(1)
(C) or (D) of this section in which the court determines that the
agency acted in a manner which was intentional or willful, the
United States shall be liable to the individual in an amount equal
to the sum of—
(A) actual damages sustained by the individual as a result of the
refusal or failure, but in no case shall a person entitled to
recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees
as determined by the court.
(5) An action to enforce any liability created under this section may
be brought in the district court of the United States in the dis-
trict in which the complainant resides, or has his principal place
of business, or in which the agency records are situated, or in
the District of Columbia, without regard to the amount in con-
troversy, within two years from the date on which the cause of
action arises, except that where an agency has materially and
willfully misrepresented any information required under this
section to be disclosed to an individual and the information so
misrepresented is material to establishment of the liability of
the agency to the individual under this section, the action may
be brought at any time within two years after discovery by the
individual of the misrepresentation. Nothing in this section
shall be construed to authorize any civil action by reason of any
injury sustained as the result of a disclosure of a record prior to
September 27, 1975.
404
Appendix D: Consumer and Credit Data Privacy Laws
(h) Rights of legal guardians. For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been
declared to be incompetent due to physical or mental incapacity or
age by a court of competent jurisdiction, may act on behalf of the
individual.
(i)
(1) Criminal penalties. Any officer or employee of an agency, who by
virtue of his employment or official position, has possession of,
or access to, agency records which contain individual y identifi-
able information the disclosure of which is prohibited by this sec-
tion or by rules or regulations established thereunder, and who
knowing that disclosure of the specific material is so prohibited,
willful y discloses the material in any manner to any person or
agency not entitled to receive it, shall be guilty of a misdemeanor
and fined not more than $5000.
(2) Any officer or employee of any agency who willfully maintains
a system of records without meeting the notice requirements of
subsection (e)(4) of this section shall be guilty of a misdemeanor
and fined not more than $5000.
(3) Any person who knowingly and willful y requests or obtains any
record concerning an individual from an agency under false pre-
tenses shall be guilty of a misdemeanor and fined not more than
$5000.
(j) General exemptions. The head of any agency may promulgate
rules, in accordance with the requirements (including general
notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title,
to exempt any system of records within the agency from any
part of this section except subsections (b), (c)(1) and (2), (e)(4)(A)
through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of
records is—
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which per-
forms as its principal function any activity pertaining to the
enforcement of criminal laws, including police efforts to pre-
vent, control, or reduce crime or to apprehend criminals, and
the activities of prosecutors, courts, correctional, probation, par-
don, or parole authorities, and which consists of (A) informa-
tion compiled for the purpose of identifying individual criminal
offenders and alleged offenders and consisting only of identify-
ing data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole
and probation status; (B) informati
on compiled for the purpose
Appendix D: Consumer and Credit Data Privacy Laws
405
of a criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or
(C) reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
At the time rules are adopted under this subsection, the
agency shall include in the statement required under section
553(c) of this title, the reasons why the system of records is to be
exempted from a provision of this section.
(k) Specific exemptions
The head of any agency may promulgate rules, in accordance with the
requirements (including general notice) of sections 553(b)(1), (2), and
(3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is—
(1) subject to the provisions of section 552(b)(1) of this title;
(2) investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection (j)(2) of this
section: Provided, however, that if any individual is denied any right, privilege, or benefit that he would otherwise be entitled
by Federal law, or for which he would otherwise be eligible, as a
result of the maintenance of such material, such material shall
be provided to such individual, except to the extent that the dis-
closure of such material would reveal the identity of a source
who furnished information to the Government under an express
promise that the identity of the source would be held in con-
fidence, or, prior to the effective date of this section, under an
implied promise that the identity of the source would be held in
confidence;
(3) maintained in connection with providing protective services to
the President of the United States or other individuals pursuant
to section 3056 of Title 18;
(4) required by statute to be maintained and used solely as statistical
records;
(5) investigatory material compiled solely for the purpose of deter-
mining suitability, eligibility, or qualifications for Federal civil-
ian employment, military service, Federal contracts, or access
to classified information, but only to the extent that the disclo-
sure of such material would reveal the identity of a source who
furnished information to the Government under an express
promise that the identity of the source would be held in con-
fidence, or, prior to the effective date of this section, under an
406
Appendix D: Consumer and Credit Data Privacy Laws
implied promise that the identity of the source would be held
in confidence;
(6) testing or examination material used solely to determine individ-
ual qualifications for appointment or promotion in the Federal
service the disclosure of which would compromise the objectiv-
ity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for promotion
in the armed services, but only to the extent that the disclo-
sure of such material would reveal the identity of a source who
furnished information to the Government under an express
promise that the identity of the source would be held in con-
fidence, or, prior to the effective date of this section, under an
implied promise that the identity of the source would be held in
confidence.
At the time rules are adopted under this subsection, the
agency shall include in the statement required under section
553(c) of this title, the reasons why the system of records is to be
exempted from a provision of this section.
(l) Archival records
(1) Each agency record which is accepted by the Archivist of the
United States for storage, processing, and servicing in accor-
dance with section 3103 of Title 44 shall, for the purposes of this
section, be considered to be maintained by the agency which
deposited the record and shall be subject to the provisions of
this section. The Archivist of the United States shall not disclose
the record except to the agency which maintains the record, or
under rules established by that agency which are not inconsistent
with the provisions of this section.
(2) Each agency record pertaining to an identifiable individual which
was transferred to the National Archives of the United States as a
record which has sufficient historical or other value to warrant its
continued preservation by the United States Government, prior
to the effective date of this section, shall, for the purposes of this
section, be considered to be maintained by the National Archives
and shall not be subject to the provisions of this section, except
that a statement generally describing such records (modeled after
the requirements relating to records subject to subsections (e)(4)
(A) through (G) of this section) shall be published in the Federal
Register.
(3) Each agency record pertaining to an identifiable individual which
is transferred to the National Archives of the United States as a
record which has sufficient historical or other value to warrant
its continued preservation by the United States Government, on
Appendix D: Consumer and Credit Data Privacy Laws
407
or after the effective date of this section, shall, for the purposes
of this section, be considered to be maintained by the National
Archives and shall be exempt from the requirements of this sec-
tion except subsections (e)(4)(A) through (G) and (e)(9) of this
section.
(m) Government contractors
(1) When an agency provides by a contract for the operation by or
on behalf of the agency of a system of records to accomplish an
agency function, the agency shall, consistent with its authority,
cause the requirements of this section to be applied to such sys-
tem. For purposes of subsection (i) of this section any such con-
tractor and any employee of such contractor, if such contract is
agreed to on or after the effective date of this section, shall be
considered to be an employee of an agency.
(2) A consumer reporting agency to which a record is disclosed
under section 3711(e) of Title 31 shall not be considered a con-
tractor for the purposes of this section.
(n) Mailing lists. An individual’s name and address may not be sold
or rented by an agency unless such action is specifically autho-
rized by law. This provision shall not be construed to require the
withholding of names and addresses otherwise permitted to be
made public.
(o) Matching agreements
(1) No record which is contained in a system of records may be dis-
closed to a recipient agency or non-Federal agency for use in a
computer matching program except pursuant to a written agree-
ment between the source agency and the recipient agency or
non-Federal agency specifying�
��
(A) the purpose and legal authority for conducting the
program;
(B) the justification for the program and the anticipated results,
including a specific estimate of any savings;
(C) a description of the records that will be matched, including
each data element that will be used, the approximate num-
ber of records that will be matched, and the projected start-
ing and completion dates of the matching program;
(D) procedures for providing individualized notice at the time
of application, and notice periodically thereafter as directed
by the Data Integrity Board of such agency (subject to guid-
ance provided by the Director of the Office of Management
and Budget pursuant to subsection (v)), to—
(i) applicants for and recipients of financial assistance or
payments under Federal benefit programs, and
408
Appendix D: Consumer and Credit Data Privacy Laws
(ii) applicants for and holders of positions as Federal person-
nel, that any information provided by such applicants,
recipients, holders, and individuals may be subject to
verification through matching programs;
(E) procedures for verifying information produced in such
matching program as required by subsection (p);
(F) procedures for the retention and timely destruction of iden-
tifiable records created by a recipient agency or non-Federal
agency in such matching program;
(G) procedures for ensuring the administrative, technical, and
physical security of the records matched and the results of
such programs;
(H) prohibitions on duplication and redisclosure of records pro-
vided by the source agency within or outside the recipient
agency or the non-Federal agency, except where required
by law or essential to the conduct of the matching program;
(I) procedures governing the use by a recipient agency or non-
