The Presidency and the Privacy Act

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Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am vice president for legal affairs atthe Cato Institute and director of Cato's Center for ConstitutionalStudies.

I want to thank you Mr. Chairman for inviting me to testify atthis hearing of the subcommittee on "The Presidency and the PrivacyAct." As the final witness today I will try not to repeat whatothers have already covered but instead will simply summarize thatmaterial by way of background. My purposes are threefold. First,with respect to the main issue before the subcommittee, I willargue that the president and his immediate advisers already aresubject to the requirements of the Privacy Act. In so arguing, Iwill focus especially on the framing of the matter. Second, I willargue that, in any event, Congress should make that coverage moreexplicit than it presently is. And, third, I will offer a fewreasons why Congress should so act, based on my own experience withthe Privacy Act.

Is the President Subject to the PrivacyAct?

Two acts of Congress are mainly implicated in this question. Inbrief, the Privacy Act was written to afford individuals access tocertain information about them contained in government records andto protect that information from unauthorized disclosure by placingrestrictions on officials regarding the acquisition, maintenance,and disclosure of the information. The Freedom of Information Act(FOIA) was written to afford the public a right of access togovernment documents and information.

The Issue in a Nutshell

When Congress amended FOIA in 1974 it defined those agenciescovered by the act to include "the Executive Office of thePresident" (EOP). But the EOP is made up of several components,ranging from the Office of Management and Budget, the NationalSecurity Council, and others to the Office of the President(sometimes referred to as the White House Office), which includesthe president and his immediate advisers. In its Conference Report,therefore, Congress sought to qualify FOIA's definition of "agency"by writing that the term "Executive Office of the President… is not to be interpreted as including the President'simmediate personal staff or units in the Executive Office whosesole function is to advise and assist the President." Shortlythereafter Congress enacted the Privacy Act. In doing so, itdefined "agency" by express reference to the definition containedin FOIA. The nub of the matter, therefore, is whether Congressmeant to include the qualification contained in the FOIA ConferenceReport in its definition of "agency" for Privacy Act purposes.Nothing in the records of Congress speaks directly to thatquestion.

It goes without saying that congressional intent, especiallywhen it runs contrary to explicit text, is always a difficultjurisprudential matter. Thus, when then Justice William Rehnquistapplied FOIA in 1979 in Kissinger v. Reporters Committee forFreedom of the Press, 445 U.S. 136, 156 (1980), he foundcongressional intent to be clear enough to exclude the Office ofthe President from FOIA's coverage.

But when Judge Royce C. Lamberth of the U.S. District Court forthe District of Columbia faced the problem more recently ofapplying the Privacy Act, he drew upon the plain language of theact, referencing the FOIA definition of "agency," not upon thequalification the Conference Report introduced in the FOIA context.Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997);Alexander v. FBI, 193 F.R.D. 1 (D.D.C. 2000). And he didso because the two acts serve "very different purposes." FOIA ismeant to afford openness, except for good cause. By contrast, thePrivacy Act is meant to protect privacy, except for good cause.Lamberth reasoned, by implication, that if Congress had thoughtabout it, it would not have left so gaping a hole in the PrivacyAct as would happen if the Office of the President were excludedfrom the act's coverage by invoking the FOIA exception whenapplying the act.

More recently still, however, Judge June L. Green of the samedistrict court ruled that the Privacy Act does not reach the Officeof the President. Barr v. Executive Office of the President andU.S. Department of Justice, Civil Action No. 99-cv-1695(D.D.C. Aug. 9, 2000) (Green, J.). Regarding congressional intent,Judge Green writes that "[t]he legislative history … doesnot demonstrate that the [Privacy] Act considers the White HouseOffice to be an 'agency.' " But in addition she raises two otherpoints. First, statutes should be construed to avoid doubts aboutconstitutionality. Here, the Justice Department has contended thatPrivacy Act restrictions on the president would raiseconstitutional concerns. Second, in enacting legislationrestricting presidential action, Congress must make its intentclear. Here, Congress has not clearly brought the White HouseOffice under the Privacy Act. Thus, by applying the FOIA exceptionto the Privacy Act, constitutional questions are avoided.

Framing the Issue

Given that Congress did not make its intent clearly known aboutwhether the FOIA exception was meant to apply to the Privacy Act,there is no substitute for "first principles" in framing theissues. And no such principle is more fundamental than the oneChief Justice Rehnquist articulated in 1995 in United States v.Lopez, 514 U.S. 549, 552 (1995): "We start with firstprinciples. The Constitution establishes a government of enumeratedpowers." The doctrine of enumerated powers, which is thecenterpiece of the Constitution, stands for a very simple, butprofoundly important, point: federal officials, in each branch ofthe federal government, may act only from authority delegated bythe people, through the Constitution. Absent such authority, theyhave no power to act.

Thus, when Congress enacted the Privacy Act, it was notrestricting powers the president had; nor was it giving citizensrights they did not already have. Rather, it was simply makingexplicit the limitations on officials that should already have beenimplicit. Pursuant to his enumerated powers, the president mayacquire, maintain, and disclose personal information aboutcitizens. But those means are not unlimited. They are constrainedby the enumerated powers themselves. Thus, even absent a privacyact, the president may not disclose information obtained pursuantto his authorized powers for reasons unrelated to such powers. Hehas no authority to do so. When it passes such an act, therefore,Congress should be seen neither as expanding nor as contracting thepresident's powers-provided it stays within the bounds of its ownpower-but rather as more precisely defining those powers. Thecourts might have done that on a case-by-case basis, under thedoctrine of enumerated powers. But Congress might do so as well, ina more systematic way.

What is so troubling about Judge Green's opinion is its apparentdeference to the executive branch, as if the president were notthus constrained absent the statute. Thus, as background for herconclusions she cites Justice Department arguments to the effectthat "application of the Privacy Act to the White House Officewould restrict what records the President may keep and from whomthe President may obtain information, … would require thePresident to disclose certain information to individuals from whomhe seeks his information, … as well as restrict whatinformation the President may disclose and to whom it may bedisclosed." The implication seems to be that the president is notalready so restricted, not even implicitly; for these restrictions,she continues, again following the department's line of argument,"would raise constitutional concerns, including separation ofpowers and Article II confidentiality."

To be sure, they would. But without proper analysis, they areonly constitutional "concerns," not conclusions. And there is noanalysis here, much less proper analysis. Instead, we find themodern shibboleth, that a statute should be construed to avoiddoubts about its constitutionality. Surely that is correct as aprima facie matter, but only for that purpose-to get the argumentoff the ground, so to speak, after which objections, such as thosefrom a consideration of enumerated powers, may tip the balance. Yetwhen Judge Green cites "a corollary" of that principle-"thatCongress, in enacting legislation restricting presidential action,must make its intent clear"(and Congress has not done thathere)-the implication seems to be that, absent such cleararticulation of congressional intent, the president's power isplenary. Judge Green concludes, in fact, that "Congress has notclearly extended the Privacy Act to the White HouseOffice." (emphasis added) Thus, presumably, the White House may doas it pleases.

That gets the presumptions of our system exactly backwards. Thepremise of our system is not "All that is not retained by thepeople is given to the government." Rather, as the Tenth Amendmentmakes clear, it is "All that is not given to the government isretained by the people." Thus, the burden is on government to showthat it has a power, not on people to show that they have rights.It falls to the White House to show that it has the powers theJustice Department claims for it. It does not fall to individualsto show that they have rights that trump the otherwise plenarypowers of the president. If the president can show that he has thepowers in question, then Congress may not restrict them (or expandthem), even if it does so "clearly." If he cannot make thatshowing, then any congressional articulation of those limits wouldmerely make explicit what is already implicit. It would not amountto a restriction on the president's powers, since he has no suchpowers.

That same concern for presumptions and burdens of proof arisesin the case of statutes as well, of course, even if theapplications are somewhat different. Thus, here too we find JudgeGreen writing that "[t]he legislative history … does notdemonstrate that the [Privacy] Act considers the White House Officeto be an 'agency.'" First, acts don't consider. Congress might, andso the question is whether Congress, through the Privacy Act,considers the White House to be an "agency." Plainly, given thelanguage of the statute, Congress does. But given that language, itis now for Congress to qualify it-clearly, not ambiguously. Thus,it is not for Congress to "consider the White House Office to be an'agency'"-it has already done that. Rather, it is for Congress to"consider the White House Office not to be an 'agency,'"which it has not done clearly, if at all. Thus, the presumptionremains standing from a consideration simply of framing thequestion correctly.

None of this goes to the more particular merits of the matter,of course. Rather, it is to argue simply that when the issues arebetter framed, the question is not only whether Congress exemptedthe president from the Privacy Act-I do not believe that it did-butwhether, if it had, it would have had a power to do so. I do notbelieve Congress has such a power because I do not believe thatCongress has the power to expand the executive's powers beyondthose enumerated. All kinds of issues arise here, of course, notleast the modern delegation doctrine. But there it is. It can beignored only on pain of ignoring the very premises of our system ofgovernment.

And on those more particular merits, I believe that JudgeLamberth went to the heart of the matter when he took a functionallook at the issue, which again can be recast usefully in thelanguage of presumptions and burdens. With FOIA, the presumption isthat, in a democracy, information about government should bereadily available. Thus, the exceptions preclude release,for specific reasons related to the very purpose of the act-toensure good government. That is why the White House Office isexcluded from coverage-to ensure candid advice from close advisersto the president. But the burden is on those asserting such anexception to the presumption of disclosure, not on those asking foropenness.

By contrast, with the Privacy Act, the presumption in a freesociety is that people have a right to their privacy, a right,especially, to be free from government disclosure of personalinformation that was acquired for a specific, limited purpose.Thus, unlike with FOIA, the exceptions allow release, forspecific reasons related, again, to the very purpose of the act-toenable information to be gathered under secure conditions. That iswhy the White House should be included under the act-to enable itto gather necessary information under secure conditions. But again,the burden is on those asserting such an exception to thepresumption of privacy, not on those asking for privacy.

In sum, Judge Lamberth got it right: the two acts serve "verydifferent purposes." In fact, it is hard to imagine why Congressever would have excluded the White House from coverageunder the Privacy Act. If it had, a gaping hole would exist in theact. Any administration that wanted to release damaging informationabout a person could then simply channel it through the White HouseOffice, which is the most advantageous place to release suchinformation in any event. Indeed, one might add that if there isany "agency" that should be covered by the Privacy Act,given its purposes, it is the White House Office.

Congress Should Resolve All Ambiguity

Thus, I conclude, from a consideration of both constitutionaland statutory principle, that the Office of the President alreadyis included under the Privacy Act. At the same time, to satisfy anyambiguity that remains among those enamored of black letter lawdevoid of such a framework, it would be well for Congress to makeexplicit what should already be implicit. Accordingly, I urgeCongress to do so. And in that regard, there is no reason why theexceptions to the nondisclosure presumption now in the statutecannot apply with equal force to the White House Office as to anyother agency of the executive branch. They are all functionallyrelated. They should enable the White House Office to do everythingit is authorized to do, while the act precludes it from doing whatit is not authorized to do.

A Brief Personal Note

As I noted at the outset, I have some personal experience withthe Privacy Act, which I sketch here in the briefest way simply togive point to the importance of the act. (See Pilon v. U.S.Department of Justice, 73 F.3d 1111 (1996).) When I was atJustice serving President Reagan and my wife was up for anappointment as assistant secretary of the Department of theInterior, we came under investigation for, of all things,espionage. It was a harrowing experience that lasted all of eightyears before it was finally over. Although my wife's appointmentnever did go through, and I was placed on paid leave from thedepartment for nine months, we were finally cleared, but not beforeleaks occurred, which fortunately were bottled up during the firstphase of the ordeal.

A year after that, however, one of the agencies that hadinvestigated us, the Justice Department's Office of ProfessionalResponsibility, made the investigation public through its AnnualReport, egregiously misstating the outcome in the process. Weprotested to Justice, testified before Congress, and anothernine-month investigation followed, with more leaks. At the end, wewere cleared two more times, given a profuse apology, promised thatthere would be no more leaks, and given a $25,000 payment to offsetlegal fees.

Within two days of the press reports of that settlement,however, another leak occurred, which we would discover only threemonths later on the AP wires and in the papers. At that point wedid what every red-blooded American would do. We sued, under thePrivacy Act. Notwithstanding the earlier settlement, the Departmentof Justice fought us for six more years, during which time wefinally discovered the source of the leak-the Office ofProfessional Responsibility, the office at Justice that is chargedwith overseeing the professional conduct of the rest of thedepartment. The leak at issue came from the deputy director, whosucceeded in getting the document in question out where thedirector had failed.

In its legal briefs, the department argued, incredibly, that no"disclosure" had occurred under the Privacy Act because thedocument had been faxed to a former employee who was familiar withit, who in turn sent it to the Associated Press and ABC News. Onecould not "disclose" something to someone already familiar with it,the department argued. Incredibly, the lower court bought thatargument in a two-and-one-half page opinion. The court of appealsreversed unanimously, however, at which point the departmentdecided to settle, this time at ten times the rate of the previoussettlement, or $250,000.

Now I raise this case for a simple reason. We should neverdepend upon the good will of government officials. In my case,after all, it was the watchdogs who needed watching. In remindingus a century ago that power corrupts, Lord Acton was simplyrepeating a truism that the Founders understood implicitly acentury before that when they separated and divided power as theydid. The Privacy Act is a statement about the perils of power. Ifit reaches anywhere, it should reach to the most powerful office inthe nation, where power is most susceptible to abuse.

Roger Pilon

Subcommittee on Criminal Justice, Drug Policy, and Human Resources
Committee on Government Reform
United States House of Representatives