Private Lives and Public Policies Confidentiality and Accessibility of Government Statistics (1993) / Chapter Skim
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5 Legislation
5 Legislation
Pages 109-140
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From page 109... ...
Edmund Rapaport, 1988 Legislation in large part determines and constrains federal policies and practices affecting data subjects and data users. For federal statistical agencies, pertinent statutes determine when response to surveys is mandatory, who can have access to individually identifiable information collected for statistical and research purposes, the conditions of access, and the penalties for unlawful uses and disclosures of the information.
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From page 110... ...
The regulatory structure provided by the government-wide and agency-specific statutes mentioned above is exceedingly complex. There is little uniformity in the treatment of confidentiality and data access questions, and the ability of federal statistical agencies to protect the confidentiality of individually identifiable records is not always backer!
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From page 111... ...
The Paperwork Reduction Act is intended to reduce unnecessary requirements for paperwork by federal agencies, and it permits review of data collection requests by the Office of Management and Budget BOMBS. The Computer Matching and Privacy Protection Act regulates the use of computer matching of federal records subject to the Privacy Act.
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From page 112... ...
Consequently, the effectiveness of these penalties has been questioned {see, e.g., Coles, 19911. Twelve categories of exceptions to the consent requirement of the Privacy Act are intended to accommodate legitimate needs for individually identifiable information.
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From page 113... ...
and therefore is not subject to the restrictions on disclosure imposed by the act. Obtaining data from individually identifiable federal records for statistical purposes can be difficult for data users, even those in other federal statistical agencies.
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From page 114... ...
This is one instance in which the discretion delegated to agencies by the Privacy Act has been used to fashion a specific set of standards to permit data users from outside the agency to analyze data contained in individually identifiable records for statistical purposes while maintaining safeguards appropriate to the information. However, the need to rely on the routine-use exemption to overcome the failure of the statute to provide for statistical and research access to identifiable records is an awkward solution to the problem.
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From page 115... ...
. In summary, the Privacy Act's failure to distinguish statistical and research purposes from administrative purposes in restricting access to individually identifiable records can pose a major obstacle for data users who want to analyze such information for statistical or research purposes.
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From page 116... ...
For example, the Supreme Court declined to order the disclosure of research records developed under an extended research grant awarded to a group of private physicians and scientists studying the effectiveness of treatments of diabetes. Even though the Food and Drug Administration relied on the controversial findings of the study to restrict the labeling and use of certain drug treatments and refused to make the data available for independent reanalysis, the Court determined that the act does not reach records maintained by grantees isee Forsham v.
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From page 117... ...
In this section, we first summarize the agency-specific legislation that governs three major federal statistical agencies {Bureau of the Census, National Center for Education Statistics, and National Center for Health Statistics)
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From page 118... ...
We appreciate the agencies' willingness to help by providing this material. BUREAU OF THE CENSUS In contrast to the lax protection of statistical records under the Privacy Act of 1974, the statutory protection of statistical information collected by the Census Bureau under Title 13 of the U.S.
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From page 119... ...
Several cities challenged the 1980 census count of their populations, contending that the census had erroneously counted occupied dwellings as vacant, and they sought to compel disclosure of a portion of the address lists used by the Census Bureau in conducting its count in their respective jurisdictions. Although the case involved access to this information for purposes other than research, in ruling on the case the Court also offered an interpretation of Title 13 that clarifies the limits of the discretion of the Census Bureau to release statistical information that is individually identifiable.
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From page 120... ...
The Court, however, rejected the contention that the confidentiality provisions protect raw data only if the individual respondent can be identified, thereby raising questions regarding the authority of the Census Bureau to release individual census data even when the identification of individuals is not possible: "Various parties] vigorously argue that Sections 8Ib)
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From page 121... ...
The amendments allow NCES to use temporary employees to analyze individually identifiable data for statistical purposes if such persons are sworn to observe the limitations described above. Information collected as part of the National Assessment of Educational Progress jNAEPl, one of the ongoing studies of NCES, is subject to a separate confidentiality requirement under the HawkinsStafford amendments.
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From page 122... ...
The educational research community has developed a number of data sets with identifiable information that are beyond the reach of this legislation, some of which include information gathered by NCES prior to the Hawkins-Stafford amendments. The possibility of matching survey data to existing records, thereby inadvertently disclosing information that can be associated with specific data subjects, is much greater for educational records than for indiviclual Census Bureau records.
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From page 123... ...
Therefore, if a school or district can be identified in a file, that file cannot lie linked to student or teacher records INational Center for Education Statistics, 1989:51. While the legislation governing release of NCES statistical information is similar to the restrictive legislation governing the Census Bureau, NCES has developed policies that permit greater access to statistical ciata.
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From page 124... ...
provides a thorough discussion of how the requirements are to be interpretec3.5 The most noteworthy aspect of NCHS's policy is the explicit recognition that there is some risk of disclosure of individually identifiable information with the release of published tables and public-use data files and that such risks must be balanced against the importance of sharing statistical information. This is one of the very few instances in which explicit recognition of this fact appears in an official agency policy statement.
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From page 125... ...
However, two court cases {a 1987 case involving the Atlanta Constitutional journal and the State Health Department of Georgia, and another in 1991 involving the American Civil Liberties Union and the State of Illinois) raised the concern of the states, as well as NCHS, that the center was releasing data in public-use microdata files that might result in the inadvertent disclosure of individuals.6 As part of its policy reexamination, NCHS held a special session at the July 1991 Public Health Conference on Records and Statistics to discuss the issues and a variety of alternative solutions with its data users.
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From page 126... ...
The NCHS vital statistics program is an exception to this point; this program must rely on statistical information reported by state registrars and is subject to varying state restrictions. Since , ~
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From page 127... ...
to the IRS for statistical purposes even if the IRS employees who will have access to the records are special sworn employees of the Census Bureau.7 Difficulties also arise when outside agencies require income information for the conduct of studies. Although no abuses of income information released for statistical purposes are known to have occurred, the Tax Reform Act of 1976 sharply limited outside access to IRS income information for statistical purposes.
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From page 128... ...
Such opportunities, however, may be limited by the resources and interests of the IRS, as well as the need of the requesting agencies for access to detailed and potentially identifiable data used in such studies. A serious loss of important statistical products, as well as significant increased costs, was imposed on the federal statistical system as a consequence of the Tax Reform Act.
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From page 129... ...
. The Bureau of Labor Statistics also collects extensive statistical information on establishments and other organizations, much of which is reported voluntarily, without specific statutory protection to preserve the confidentiality of identifiable information.
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From page 130... ...
These policies are intended to ensure that "data collected or maintained by, or under the auspices of, the Bureau under a pledge of confidentiality shall be treated in a manner that will assure that individually identifiable data will be accessible only to authorized persons and will be used only for statistical purposes or for other purposes made known in advance to the respondent" bureau of Labor Statistics, 1980:61. This pattern of regulation was upheld by a federal district court when employment data from unemployment insurance {UI)
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From page 131... ...
It floes not establish a clear basis for full functional separation of data that might be received by the Bureau of Transportation Statistics from other statistical agencies or from administrative sources and user] by it for statistical and research purposes.
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From page 132... ...
to maintain the principle of functional separation of administrative and statistical or research data and to maximize the dissemination of useful data while protecting confidentiality? How can demands for access to individually identifiable statistical data for nonstatistical purposes be successfully resisted?
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From page 133... ...
Second, there is wide variation among statistical agencies in the degree of confidentiality protection that is afforded by legisTation. Among the agencies reviewed in this chapter, protection varies greatly, from the rigorous protection provided for data collected under Title 13 by the Census Bureau, to the currently uncertain protection of data collected by the Energy Information Administration, to the absence of specific statutory protection for the Bureau of Labor Statistics.
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From page 134... ...
For example, the National Agricultural Statistics Service {NASSJ transfers lists of farms to the Census Bureau for the latter's use in developing a mailing list for the Census of Agriculture. However, NASS cannot obtain the complete mailing list for the Census of Agriculture for use in developing a sampling frame for its own surveys.
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From page 135... ...
The standards might take the form of new governmentwide legislation, a "Fecleral Statistical Records Act," that would protect the conficlentiaTity of records used for statistical purposes across the entire federal government. Such an act would ill distinguish between administrative and statistical records on the basis of use, (21 establish and mandate functional separation between administrative and statistical records, {A encourage disclosure of statistical records for statistical uses, and ;4)
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From page 136... ...
In practice, many of the statutory requirements that are expressed in absolute terms have been interpreted to mean that unrestricted access to a particular data set requires that a reasonable effort be made to keep the risk of disclosing individually identifiable information at an acceptably Tow level. Agency officials exercise judgments to decide what statistical clisclosure limitation procedures must be applied in order to keep disclosure risk acceptably Tow.
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From page 137... ...
Among the federal statistical agencies included in our review, only the National Center for Education Statistics and the Bureau of Justice Statistics have legislation that includes penalties for violation of confidentiality provisions by nonemployees. For NCES, such penalties are for data users who have access to data from a subset of surveys that were listed in the 1990 amendment to the Hawkins-Stafford amendments [see ~ 252 of the Excellence in Mathematics, Science ant]
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From page 138... ...
Nevertheless, it is clear that sanctions authorized by legislation can play an important role in protecting the confidentiality of statistical data by raising the consciousness of data custodians and data users. As noted in Chapter 4, data users are pressing agencies to provide greater access to statistical data.
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From page 139... ...
~41~. The term statistical record is defined in the Privacy Act as "a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identified individual, except as provided lay § 8 of Title 13 (which governs the Census Bureaul" Title 5 U.S.C.
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From page 140... ...
Among those recommending the passage of such legislation were the Privacy Protection Study Commission {PPSCi, which was created by the Privacy Act of 1974, and the 1978-1979 President's Reorganization Project for the Federal Statistical System. One of the PPSC's key recommendations for statistical records was that government-wide legislation be passed that established the principle of functional separation (Privacy Protection Study Commission, 1977a)
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