The Presidency and the Privacy Act

September 8, 2000 • Testimony

Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.

I want to thank you Mr. Chairman for inviting me to testify at this hearing of the subcommittee on “The Presidency and the Privacy Act.” As the final witness today I will try not to repeat what others have already covered but instead will simply summarize that material by way of background. My purposes are threefold. First, with respect to the main issue before the subcommittee, I will argue that the president and his immediate advisers already are subject to the requirements of the Privacy Act. In so arguing, I will focus especially on the framing of the matter. Second, I will argue that, in any event, Congress should make that coverage more explicit than it presently is. And, third, I will offer a few reasons why Congress should so act, based on my own experience with the Privacy Act.

Is the President Subject to the Privacy Act?

Two acts of Congress are mainly implicated in this question. In brief, the Privacy Act was written to afford individuals access to certain information about them contained in government records and to protect that information from unauthorized disclosure by placing restrictions 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 to government documents and information.

The Issue in a Nutshell

When Congress amended FOIA in 1974 it defined those agencies covered by the act to include “the Executive Office of the President” (EOP). But the EOP is made up of several components, ranging from the Office of Management and Budget, the National Security Council, and others to the Office of the President (sometimes referred to as the White House Office), which includes the 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’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” Shortly thereafter Congress enacted the Privacy Act. In doing so, it defined “agency” by express reference to the definition contained in FOIA. The nub of the matter, therefore, is whether Congress meant to include the qualification contained in the FOIA Conference Report in its definition of “agency” for Privacy Act purposes. Nothing in the records of Congress speaks directly to that question.

It goes without saying that congressional intent, especially when it runs contrary to explicit text, is always a difficult jurisprudential matter. Thus, when then Justice William Rehnquist applied FOIA in 1979 in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980), he found congressional intent to be clear enough to exclude the Office of the President from FOIA’s coverage.

But when Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia faced the problem more recently of applying the Privacy Act, he drew upon the plain language of the act, referencing the FOIA definition of “agency,” not upon the qualification 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 did so because the two acts serve “very different purposes.” FOIA is meant to afford openness, except for good cause. By contrast, the Privacy Act is meant to protect privacy, except for good cause. Lamberth reasoned, by implication, that if Congress had thought about it, it would not have left so gaping a hole in the Privacy Act as would happen if the Office of the President were excluded from the act’s coverage by invoking the FOIA exception when applying the act.

More recently still, however, Judge June L. Green of the same district court ruled that the Privacy Act does not reach the Office of the President. Barr v. Executive Office of the President and U.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 … does not demonstrate that the [Privacy] Act considers the White House Office to be an ‘agency.’ ” But in addition she raises two other points. First, statutes should be construed to avoid doubts about constitutionality. Here, the Justice Department has contended that Privacy Act restrictions on the president would raise constitutional concerns. Second, in enacting legislation restricting presidential action, Congress must make its intent clear. Here, Congress has not clearly brought the White House Office under the Privacy Act. Thus, by applying the FOIA exception to the Privacy Act, constitutional questions are avoided.

Framing the Issue

Given that Congress did not make its intent clearly known about whether the FOIA exception was meant to apply to the Privacy Act, there is no substitute for “first principles” in framing the issues. And no such principle is more fundamental than the one Chief Justice Rehnquist articulated in 1995 in United States v. Lopez, 514 U.S. 549, 552 (1995): “We start with first principles. The Constitution establishes a government of enumerated powers.” The doctrine of enumerated powers, which is the centerpiece of the Constitution, stands for a very simple, but profoundly important, point: federal officials, in each branch of the federal government, may act only from authority delegated by the people, through the Constitution. Absent such authority, they have no power to act.

Thus, when Congress enacted the Privacy Act, it was not restricting powers the president had; nor was it giving citizens rights they did not already have. Rather, it was simply making explicit the limitations on officials that should already have been implicit. Pursuant to his enumerated powers, the president may acquire, maintain, and disclose personal information about citizens. But those means are not unlimited. They are constrained by the enumerated powers themselves. Thus, even absent a privacy act, the president may not disclose information obtained pursuant to his authorized powers for reasons unrelated to such powers. He has no authority to do so. When it passes such an act, therefore, Congress should be seen neither as expanding nor as contracting the president’s powers‐​provided it stays within the bounds of its own power‐​but rather as more precisely defining those powers. The courts might have done that on a case‐​by‐​case basis, under the doctrine of enumerated powers. But Congress might do so as well, in a more systematic way.

What is so troubling about Judge Green’s opinion is its apparent deference to the executive branch, as if the president were not thus constrained absent the statute. Thus, as background for her conclusions she cites Justice Department arguments to the effect that “application of the Privacy Act to the White House Office would restrict what records the President may keep and from whom the President may obtain information, … would require the President to disclose certain information to individuals from whom he seeks his information, … as well as restrict what information the President may disclose and to whom it may be disclosed.” The implication seems to be that the president is not already so restricted, not even implicitly; for these restrictions, she continues, again following the department’s line of argument, “would raise constitutional concerns, including separation of powers and Article II confidentiality.”

To be sure, they would. But without proper analysis, they are only constitutional “concerns,” not conclusions. And there is no analysis here, much less proper analysis. Instead, we find the modern shibboleth, that a statute should be construed to avoid doubts about its constitutionality. Surely that is correct as a prima facie matter, but only for that purpose‐​to get the argument off the ground, so to speak, after which objections, such as those from a consideration of enumerated powers, may tip the balance. Yet when Judge Green cites “a corollary” of that principle-“that Congress, in enacting legislation restricting presidential action, must make its intent clear”(and Congress has not done that here)-the implication seems to be that, absent such clear articulation of congressional intent, the president’s power is plenary. Judge Green concludes, in fact, that “Congress has not clearly extended the Privacy Act to the White House Office.” (emphasis added) Thus, presumably, the White House may do as it pleases.

That gets the presumptions of our system exactly backwards. The premise of our system is not “All that is not retained by the people is given to the government.” Rather, as the Tenth Amendment makes clear, it is “All that is not given to the government is retained by the people.” Thus, the burden is on government to show that 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 the Justice Department claims for it. It does not fall to individuals to show that they have rights that trump the otherwise plenary powers of the president. If the president can show that he has the powers in question, then Congress may not restrict them (or expand them), even if it does so “clearly.” If he cannot make that showing, then any congressional articulation of those limits would merely make explicit what is already implicit. It would not amount to a restriction on the president’s powers, since he has no such powers.

That same concern for presumptions and burdens of proof arises in the case of statutes as well, of course, even if the applications are somewhat different. Thus, here too we find Judge Green writing that “[t]he legislative history … does not demonstrate that the [Privacy] Act considers the White House Office to be an ‘agency.’ ” First, acts don’t consider. Congress might, and so the question is whether Congress, through the Privacy Act, considers the White House to be an “agency.” Plainly, given the language of the statute, Congress does. But given that language, it is 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 presumption remains standing from a consideration simply of framing the question 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 are better framed, the question is not only whether Congress exempted the president from the Privacy Act‐​I do not believe that it did‐​but whether, if it had, it would have had a power to do so. I do not believe Congress has such a power because I do not believe that Congress has the power to expand the executive’s powers beyond those enumerated. All kinds of issues arise here, of course, not least the modern delegation doctrine. But there it is. It can be ignored only on pain of ignoring the very premises of our system of government.

And on those more particular merits, I believe that Judge Lamberth went to the heart of the matter when he took a functional look at the issue, which again can be recast usefully in the language of presumptions and burdens. With FOIA, the presumption is that, in a democracy, information about government should be readily available. Thus, the exceptions preclude release, for specific reasons related to the very purpose of the act‐​to ensure good government. That is why the White House Office is excluded from coverage‐​to ensure candid advice from close advisers to the president. But the burden is on those asserting such an exception to the presumption of disclosure, not on those asking for openness.

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

In sum, Judge Lamberth got it right: the two acts serve “very different purposes.” In fact, it is hard to imagine why Congress ever would have excluded the White House from coverage under the Privacy Act. If it had, a gaping hole would exist in the act. Any administration that wanted to release damaging information about a person could then simply channel it through the White House Office, which is the most advantageous place to release such information in any event. Indeed, one might add that if there is any “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 constitutional and statutory principle, that the Office of the President already is included under the Privacy Act. At the same time, to satisfy any ambiguity that remains among those enamored of black letter law devoid of such a framework, it would be well for Congress to make explicit what should already be implicit. Accordingly, I urge Congress to do so. And in that regard, there is no reason why the exceptions to the nondisclosure presumption now in the statute cannot apply with equal force to the White House Office as to any other agency of the executive branch. They are all functionally related. They should enable the White House Office to do everything it is authorized to do, while the act precludes it from doing what it is not authorized to do.

A Brief Personal Note

As I noted at the outset, I have some personal experience with the Privacy Act, which I sketch here in the briefest way simply to give point to the importance of the act. (See Pilon v. U.S. Department of Justice, 73 F.3d 1111 (1996).) When I was at Justice serving President Reagan and my wife was up for an appointment as assistant secretary of the Department of the Interior, we came under investigation for, of all things, espionage. It was a harrowing experience that lasted all of eight years before it was finally over. Although my wife’s appointment never did go through, and I was placed on paid leave from the department for nine months, we were finally cleared, but not before leaks occurred, which fortunately were bottled up during the first phase of the ordeal.

A year after that, however, one of the agencies that had investigated us, the Justice Department’s Office of Professional Responsibility, made the investigation public through its Annual Report, egregiously misstating the outcome in the process. We protested to Justice, testified before Congress, and another nine‐​month investigation followed, with more leaks. At the end, we were cleared two more times, given a profuse apology, promised that there would be no more leaks, and given a $25,000 payment to offset legal fees.

Within two days of the press reports of that settlement, however, another leak occurred, which we would discover only three months later on the AP wires and in the papers. At that point we did what every red‐​blooded American would do. We sued, under the Privacy Act. Notwithstanding the earlier settlement, the Department of Justice fought us for six more years, during which time we finally discovered the source of the leak‐​the Office of Professional Responsibility, the office at Justice that is charged with overseeing the professional conduct of the rest of the department. The leak at issue came from the deputy director, who succeeded in getting the document in question out where the director had failed.

In its legal briefs, the department argued, incredibly, that no “disclosure” had occurred under the Privacy Act because the document had been faxed to a former employee who was familiar with it, who in turn sent it to the Associated Press and ABC News. One could not “disclose” something to someone already familiar with it, the department argued. Incredibly, the lower court bought that argument in a two‐​and‐​one‐​half page opinion. The court of appeals reversed unanimously, however, at which point the department decided to settle, this time at ten times the rate of the previous settlement, or $250,000.

Now I raise this case for a simple reason. We should never depend upon the good will of government officials. In my case, after all, it was the watchdogs who needed watching. In reminding us a century ago that power corrupts, Lord Acton was simply repeating a truism that the Founders understood implicitly a century before that when they separated and divided power as they did. The Privacy Act is a statement about the perils of power. If it reaches anywhere, it should reach to the most powerful office in the nation, where power is most susceptible to abuse.

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