Court narrows meaning of 'records' under Privacy Act

WASHINGTON, D.C.–In a decision that may determine the extent of Privacy Act protection for persons whose names appear in federal databases, the U.S. Court of Appeals in Washington, D.C. in late May rejected a researcher’s request to see records that mention her maintained by the Commerce Department.

The decision turned on the court’s finding that a database maintained under the National Science Foundation’s (NSF) Advanced Technology Program, while searchable by individual name, was not a system of records subject to the Privacy Act. That Act gives individuals a right, with some exceptions, to access and amend records maintained on themselves in a federal government “system” of records and retrievable by name or personal identifier.

Wanda Henke had sought records under the Act in 1993, seeking to discover why the National Science Foundation had turned down funding for a grant proposal in which she would have played a role.

The government denied her request, claiming that the record she sought was not part of a “system” of individual records and thus not subject to the Privacy Act’s mandate of disclosure.

Henke filed suit, and in 1994 federal District Court Judge Thomas Flannery rejected the government’s argument that the information in the database sought by Henke was not part of a system of records covered by the Privacy Act. He ordered the government to turn over the requested information which it could easily retrieve electronically.

The U.S. Court of Appeals in Washington, D.C. overturned that decision in late May, agreeing with the NSF that, despite evidence that the database at issue could be searched by individual names, the database was in fact not used for such purposes and thus was not a “system of records” for purposes of the Privacy Act. (Henke v. Department of Commerce; Plaintiff’s Counsel: Eric Glitzenstein, Washington, D.C.)