Case Information
*1 Disclosure of Parolees’ Names to Local Police U nited States Parole C om m ission’s proposed disclosure of inform ation on parolees to local law enforcem ent authorities could be justified as a “ routine u se” under the Privacy A ct. However, in a case where there is no reason to suspect the involvem ent of a particular individual in crim inal activity, such blanket disclosure could be challenged as an unw arranted expansion of the “ routine u se” exception.
March 26, 1982 MEMORANDUM OPINION FOR THE DEPUTY ASSOCIATE ATTORNEY GENERAL
This responds to your request for our opinion whether the Privacy Act, 5 U .S.C. § 552a (1976), bars the United States Parole Commission from disclos ing to local law enforcement authorities, on a routine basis, the names of parolees released into their communities. We believe that release of names and limited background information could be authorized as a “ routine use” under the Privacy Act. We caution, however, that such blanket disclosures of information for law enforcement purposes, absent any reason to suspect the involvement of a par ticular individual in criminal activity, are not clearly contemplated by the Privacy Act, as explained in its legislative history.
Although we believe that the broad discretion afforded federal agencies to classify “ routine uses” and the legitimate law enforcement purpose of the disclosures support our conclusion that blanket disclosures could be authorized as “ routine uses,” that conclusion could well be challenged in litigation as an unwarranted expansion of the “ routine use” exception. Accordingly, the Parole Commission may want to proceed cautiously and to consider whether alternatives short of routine, blanket disclosures of the identity of all parolees released into a community will meet the legitimate law enforcement needs of local law enforce ment authorities.
I. Background At least since 1976, the Parole Commission has not routinely released pa rolees’ names to local police when parolees are placed under supervision in a locality. Regulations promulgated in 1976 to implement the newly adopted
Ffcrole Cbmmission and Reorganization Act, 18 U.S.C. §§ 4201—4218 (1976), provided that:
Names of parolees under supervision will not be furnished to a police department of a community, except as required by law. All *2 such notifications are to be regarded as confidential.!1] In 1978 the regulation was amended by the addition of the language emphasized below to allow the Commission to authorize release of names on a case-by-case basis:
Names of parolees under supervision will not be furnished to a police department of a community, except as required by law, or as authorized by the United States Parole Commission. All such notifications are to be regarded as confidential.
28 C.F.R. § 2.37(b) (1981).2 Because of concerns that unnecessary release of such information could be counterproductive to reintegration of a parolee into the community, the Parole Commission stated that it would exercise that authority only “ where clearly warranted by specific circumstances.” See 43 Fed. Reg. 38823 (1978). Such circumstances could include, for example, a specific request by a local police department that is investigating a series of crimes in a communi ty and has reason to believe that particular federal parolees may be involved.
The Commission is now considering whether to change its current policy and to authorize disclosure to appropriate local law enforcement authorities, without prior case-by-case approval, of the names of all parolees released into a com munity. This consideration has been prompted primarily by concerns of local law enforcement agencies that the release of parolees’ names locally only under special circumstances and only upon request has been insufficient to assist them in apprehending federal parolees who commit crimes while on parole. The purpose of such disclosures, therefore, would be to assist local police generally in their law enforcement and investigative efforts.
Although the Commission has not yet considered what other information would be disclosed with the names of parolees, we understand that at a minimum certain identifying information such as physical characteristics and fingerprints 1 28 C F.R . 2 .3 7 (1977). T h e fa ro le C om m ission’s regulations p rio r to the R eorganization A ct provided generally for co n fid en tiality o f parole reco rd s in accordance w ith several " p rin c ip le s ” T hey provided, for exam ple, that dates o f sen te n ce an d c o m m itm en t, p aro le eligibility d ates, m andatory release dates an d dates o f term ination o f sentence w ould b e d isclo se d “ in individual cases upon p ro p er inquiry by a p arty in interest” , that the effective date set for paro le w ou ld be d isclo se d b y the Parole Board “ w henever the public interest is deem ed to require it” , and that “ other m atters” w ould b e held strictly in confidence a n d not disclosed to “ unauthorized persons.” See 38 Fed R eg. 26652, 2665 7 (1973). 2 It ap p e ars th at th is am en d m en t may have b ee n necessary to reflect the C om m issio n ’s actual practice prio r to 1978. T h e ac co m p an y in g su m m a ry in the F ed eral R egister notice o f th e final rule states that the regulation “ m akes a co n fo rm in g exp ression o f th e C om m ission’s p o licy as to disclosure o f nam es o f parolees to local police ” 43 Fed R eg. 38823 (1978) A t th e sam e tim e, a new subsection (a) w as added to the regulation and a new “ routine u s e ” published that p rovid ed fo r release o f inform ation to individuals w ho m ay be ex p o sed to harm through contact w ith the parolee “ if su ch d isclo su re is deem ed by a C om m issioner to be reasonably n ecessary to give notice that such danger exists ” 28 C .F .R § 2 .3 7 (a) (198 1); 43 F ed. R eg. 3 8 8 2 3 (1 9 7 8 ) It is o u r un derstanding that the Com m ission is not considering revisio n o f this policy. W e th erefo re do not ad d ress it here and the nature of the crime for which the parolee was convicted would also be disclosed. This information would be drawn from the Parole Commission’s Inmate and Supervision files, which include basic information on current inmates under the custody of the Attorney General, former inmates who are still under supervision as parolees, and mandatory releases. See 46 Fed. Reg. 60337 (1981).
II. Analysis You have asked us whether the Privacy Act prohibits the Commission from adopting a policy of routine disclosure of parolees’ names to local police for law enforcement purposes.3 The Privacy Act prohibits any federal agency from disclosing, without the prior consent of the individual involved, information about that individual contained in a “ system of records” maintained by that agency. 5 U.S.C. § 552a(b).4 The P&role Commission’s Inmate and Supervision files are such a system of records. 46 Fed. Reg. 60337 (1981). Disclosure may be made without prior consent, inter alia, if the disclosure is for a “routine *3 use” of the agency— i.e., a use which is “ compatible with the purpose for which [the record is] collected.” 5 U.S.C. § 552a(b)(3) (1976).5 The dispositive ques tion, therefore, is whether disclosure of parolees’ names to state and local law enforcement agencies may be published as a “ routine use.”
The legislative history of the Privacy Act and subsequent judicial interpreta tions of its scope do not provide much guidance as to the outer limits of the “ routine use” exception. The intent of the exception, as expressed during debate on the bill, was to avoid prohibiting “ necessary exchanges of information, providing its rulemaking procedures are followed.” Congress apparently did want “ to prohibit gratuitous, ad hoc, disseminations for private or otherwise irregular purposes.” See 120 Cong. Rec. 36967 (1974) (remarks of Cong. Moorhead). Both Congress and the courts have recognized that considerable latitude should be afforded to the agencies that maintain records subject to the Privacy Act to define the “ routine uses” of information in those records. See id; see also Ash v. United States, 608 F.2d 178, 179 (5th Cir. 1979), cert, denied, 445 U.S. 965 (1980) (public disclosure of names, offenses, and punishment of seamen is “ routine use” ); H arper v. United States, 423 F. Supp. 192, 198 (D.S.C. 1976) (“ The Privacy Act contemplates that agencies must disclose certain information regarding individuals as an ordinary consequence of per forming their routine agency duties.” ). Cf. Local 2047, AFGE v. Defense 3 We note prelim inarily that the Parole C om m ission and R eorganization A ct, 18 U .S C . §§ 4 2 0 1 -4 2 1 8 , w hich provides fo r the general regulatory authority of the F^role C o m m issio n , does not prohibit the disclosure of p a ro lees’ nam es o r other parolee inform ation. 4 The A ct defines a “ system of records” as a “ group of any records under the control of any agency from w hich inform ation is retrieved by the nam e o f the individual or by som e identifying num ber, sym bol, o r other identifying p articular assigned to the individual.” 5 U .S .C . § 552(a)(5) (1976) 5 T he Privacy A ct also provides for disclosure o f records w ithout prior consent to a crim inal or civil law enforcem ent agency w ithin the U nited States, if the law enforcem ent activity of that agency is authorized by law and if the head o f the agency has m ade a “ w ritten request to the agency w hich m aintains the reco rd specifying the particular portion desired and the law enforcem ent activity for w hich the record is sought.” 5 U .S .C . § 552a(b)(7) (1976). Because this subsection requires a request for specific inform ation, it w ould not authorize th e type o f blanket disclosure o f nam es contem plated by the F^role C om m ission.
General Supply Center, 573 F.2d 184, 186 (4th Cir. 1978) (agency’s refusal to authorize disclosure of names of employees as a “ routine use” not unreason able).6 The primary check that is provided on the agency’s discretion is the requirement that all “ routine uses” be published in the Federal Register for notice and comment. 5 U.S.C. § 552a(e)(4), (11).
It is clear that the purpose of a disclosure of information as a “ routine use” need not be the same as the purpose for which the information was collected, but only “ compatible with” that purpose. See Office of Management and Budget, Privacy Act Implementation: Guidelines and Responsibilities, 40 Fed. Reg. 28948, 28953 (1975). For example, a referral to the appropriate law enforcement agency of information showing an apparent violation of the law, for the purpose of investigation and prosecution, can be a “ routine use,” even though the information was collected for a purpose other than law enforcement. 120 Cong. Rec. 36967 (1974) (remarks of Cong. Moorhead); Burley v. DEA, 443 F. Supp. 619, 623 (M .D. Tenn. 1977) (transfer of Department of Justice’s inves tigative reports to state licensing agency for use in license revocation hearing is a “ routine use” ). In particular, the disclosure of certain information by the Parole Commission to other federal or state agencies has been held to be a “ routine u se,” at least if that information indicates a violation or potential violation of law and is necessary for investigative or enforcement efforts by the receiving agency. See U nited States v. Miller, 643 F. 2d 713, 715 (10th Cir. 1981) (release by parole officer of documents necessary to further a particular criminal investigation to Federal Bureau of Investigation (FBI) postal inspectors is a “ routine use” ); SEC v. D im ensional Entertainment Corp., 518 F. Supp. 773, 111 (S.D.N.Y. 1981) (release of parole hearing transcript to Securities and Exchange Commission for *4 us£ in injunctive proceedings is a “ routine use” ).
The contemplated policy of disclosing all parolees’ names, whether or not information maintained by the Parole Commission or by local police authorities indicates involvement of any particular parolee in a crime, goes one step beyond disclosure of information in response to a specific request or for use in a particular criminal investigation. Although the disclosures would be for law enforcement purposes, it is possible that a blanket disclosure policy would be challenged, for instance by a parolee who is arrested after release of his name by the Parole Commission, as “ gratuitous” and outside the scope of the “ routine use” exemp tion. We do not believe that blanket, routine disclosures for legitimate law enforcement purposes are so far removed from the purpose for which the information is maintained by the Parole Commission that they would be consid 6 W e a re un aw are o f any co u rt decisions chat have found an a g e n cy 's designation of a particular type o f disclosure a s a “ ro u tin e u s e " to be unreasonable or arbitrary. S om e c o u rts that have found Privacy A ct violations in the d isclo su re o f in fo rm atio n w ith o u t prior consent have suggested that there are lim its to the scope o f the “ routine u s e ” ex c ep tio n , b u t have rested th e ir decisions o n the failure o f th e agency in question to m ake th e required Federal R eg ister p u b licatio n of th e “ routine use." S ee. e.g.. Parks v. IRS, 618 F .2d 6 7 7 , 681 (10th Cir. 1980) (use of p erso n n el files fo r so licitation in savings b o n d drive); Zeller v. United States, 467 F. Supp. 4 8 7 , 503 (E .D .N .Y . 1979) (release o f IC C in vestigative reports to individual license applicants). ered incompatible with the purpose and therefore not “ routine uses.” 7 If the disclosure policy were challenged in litigation, however, the defense of the “ routine use” exemption would rest, at least in part, on a showing that the disclosures are in fact necessary and relevant to local law enforcement efforts and that the information is used by local law enforcement agencies solely as an investigative tool, and not for the purposes of harassment or intimidation of parolees in the community. Concerns about the demonstrated need for a blanket disclosure policy, or for the potential misuse of the information by local police authorities may therefore be quite relevant to whether the disclosures may appropriately be made as “ routine uses” under the Privacy Act.
Disclosure of parolees’ names will be accompanied by release of some identi fying information from the Parole Commission’s Inmate and Supervision files. Much of the information maintained in those files would in most cases be unnecessary or irrelevant to any possible law enforcement or investigative efforts by local police, and should be released, if at all, only on a case-by-case basis, based on demonstrated need for the information. This would include, for exam ple: information concerning the inmate’s assignments and progress while in prison such as records of the allowance, forfeiture, withholding and restoration of good time credits; records and reports of work and housing assignments; per formance adjustment and progress reports; transfer orders; mail and visit records; personal property records; safety reports; interview requests; and general corre spondence. 46 Fed. Reg. 60338 (1981). In addition, records relating to an inmate’s application for parole or appeals from previous denials of parole, and court petitions and documents would generally not contain information neces sary for local law enforcement efforts.
Especially given that blanket disclosures of the type being considered may stretch the limits of the “ routine use” exception, we believe that disclosures of information on parolees made to local law enforcement agencies pursuant to a blanket disclosure policy must be narrowly limited to information that, on its face, will clearly assist those agencies in their efforts to investigate criminal activity within their communities. In most cases this should irfclude, for exam ple, no more than minimal identifying information (name, aliases, address, physical characteristics, fingerprints) and a brief description of the nature of the parolee’s previous offense. This would not preclude release of additional infor mation on a particular parolee, if the local authorities have reason to believe that individual is involved in a crime and can demonstrate need for the information. *5 7 O th er federal ag en cies have published “ routine uses” that w ould appear to be broad enough to in clu d e the s o rt o f disclosures under consideration by th e fe ro le C om m ission here. See, e.g.. Bureau o f P risons, Inm ate C en tral R ecords S ystem , 4 6 Fed. R eg. 6 0 2 9 1 -9 2 (1981) (‘'ro u tin e uses'* include “ to provide inform ation so u rce to state and federal law enforcem ent officials fo r investigations, po ssible crim inal prosecutions, civil court ac tio n s, o r regulato ry proceedings” ); FB I C en tral R ecords S ystem , id. at 60321 ( “ Inform ation . m ay be disclosed a s a routine u s e to any state o r local g overnm ent agency d ire ctly engaged in the crim inal justice process . . . w here access is d ire ctly related to a law en fo rcem en t function o f the recipient agency, e.g., in connection with a law ful crim inal o r intelligence investigation. . . S o fa r as we are aw are, however, both of these agencies release inform ation to local authorities only p u rsuant to a specific req u est, o r if inform ation m aintained by the agencies indicates involvem ent in a crim inal activity w ithin the ju risd ictio n of local authorities
231 We do not believe, however, that the “ routine use” exemption would cover release of any information beyond that minimally necessary for investigative efforts, absent a specific particularized need.
In order to implement a policy of blanket disclosure of parolees’ names to local police, the Plarole Commission would have to amend 28 C.F.R. § 2.37 (1981), which does not now explicitly authorize such disclosures,8 and would have to publish in the Federal Register for notice and comment a new “ routine use” covering such disclosures, in accordance with subsection (e )(ll) of the Privacy Act, 5 U.S.C. § 552a(e)(l 1). L a r r y L . S im m s
D eputy Assistant Attorney General Office c f Legal Counsel 8 S ectio n 2 .3 7 as cu rren tly in force a llo w s disclosure o f parolees’ nam es “ as authorized by” the Ffcrole C o m m issio n It m ig h t be possib le for the Fbrole C om m ission to “ authorize” su ch disclosures w ithin the language of § 2 .3 7 . w ithou t am en ding the current la n g u ag e However, we believe such a blanket authorization w ould be in c o n sisten t w ith th e expressed purpose of th e curren t version o f the regulation. 43 F ed. Reg 38823 (1978) T h e re fo re , we reco m m end that the regulation be specifically am ended to p rovide for the new disclosure policy