Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members ( 2001 )

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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Opinions of the Office of Legal Counsel in Volume 25
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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