[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Notices]
[Pages 2876-2879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1525]
[[Page 2875]]
_______________________________________________________________________
Part III
Office of Management and Budget
_______________________________________________________________________
Order Providing for the Confidentiality of Statistical Information;
Notice
Federal Register / Vol. 61, No. 20 / Monday, January 29, 1996 /
Notices
[[Page 2876]]
OFFICE OF MANAGEMENT AND BUDGET
Order Providing for the Confidentiality of Statistical
Information
AGENCY: Office of Information and Regulatory Affairs, Office of
Management and Budget, Executive Office of the President.
ACTION: Notice of proposed order.
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SUMMARY: The proposed order is intended to clarify, and make
consistent, government policy protecting the privacy and
confidentiality interests of individuals or organizations who furnish
data for Federal statistical programs. It is intended to assure
respondents who supply statistical information needed to develop or
evaluate Federal policy that their responses will be held in confidence
and would not be used against them in any government action. In effect,
it clarifies and amplifies the privileged status afforded
``confidential statistical data'' about businesses and organizations as
set forth in the Trade Secrets Act, 18 U.S.C. 1905, as well as the
principles of the Privacy Act, 5 U.S.C. 552a, concerning information
about individuals. It establishes policies to assure ``fair information
practices'' (as advocated by the Privacy Protection Study Commission
and the Commission on Federal Paperwork) for respondents and subjects
of statistical inquiries, based on the concept of ``functional
separation'' developed by the Privacy Protection Study Commission. The
proposed order permits functional separation to be achieved by two
means--1) identifying an agency or unit that is purely statistical, or
2) distinguishing statistical from nonstatistical functions within a
single agency or unit.
DATES: Comments must be received on or before March 29, 1996.
ADDRESSES: Please address all written comments to Katherine K. Wallman,
Office of Information and Regulatory Affairs, OMB, Washington, D.C.
20503. Comments may be submitted via facsimile to 202/395-7245.
Electronic mail comments may be submitted via SMTP to
[email protected] or via X.400 to G=Katherine, S=Wallman,
PRMD=gov+eop, ADMD+telemail, C=us. Comments submitted via electronic
mail should include the commenter's name, affiliation, postal address,
and email address in the text of the message.
FOR FURTHER INFORMATION CONTACT: Jerry L. Coffey, Office of Information
and Regulatory Affairs, OMB, Washington, D.C. 20503. Inquiries may be
submitted via facsimile to 202/395-7245. Electronic mail inquiries may
be submitted via SMTP to [email protected] or via X.400 to G=Jerry,
S=Coffey, PRMD=gov+eop, ADMD+telemail, C=us. Electronic mail inquiries
should include the commenter's name, affiliation, postal address, and
email address in the text of the message.
SUPPLEMENTARY INFORMATION:
A. Background
Statistical policy authority within the executive branch was
established explicitly in section 103 of the Budget and Accounting
Procedures Act of 1950, which stated, in its original language--
The President, through the Director of the Bureau of the Budget,
is authorized and directed to develop programs and to issue
regulations and orders for the improved gathering, compiling,
analyzing, publishing, and disseminating of statistical information
for any purpose by the various agencies in the executive branch of
the Government. Such regulations and orders shall be adhered to by
such agencies.
64 Stat. 834 (codified at 31 U.S.C. 18b). In 1982, this provision was
recodified, without substantive change, at 31 U.S.C. 1104(d):
The President shall develop programs and prescribe regulations
to improve the compilation, analysis, publication, and dissemination
of statistical information by executive agencies. The President
shall carry out this subsection through the Administrator for the
Office of Information and Regulatory Affairs in the Office of
Management and Budget.
See also Section 3(a) of the Paperwork Reduction Act of 1980 (94
Stat. 2825) and Executive Order No. 10253 (31 U.S.C. 1104 note, and
Codification of Presidential Proclamations and Executive Orders (1945-
89), p. 687). Previous orders issued pursuant to this authority have
been in the form of OMB Circulars, Transmittals and attached Exhibits
(prior to 1977), Statistical Policy Directives (1978-1980), and
Statistical Standards (since 1980).
The Paperwork Reduction Act of 1980 (as amended in 1986 and 1995)
also requires OIRA to develop policies, principles, standards, and
guidelines for privacy and confidentiality generally; the integrity of
confidentiality pledges; and the confidentiality of information
collected for statistical purposes (subsections 3504(e)(1), 3504(e)(5),
and 3504(g)(1) of title 44). In addition the Act tasks OIRA to oversee
agency compliance with related requirements of the Act and with the
policies referenced above (subsections 3506(b)(1)(C), 3506(e) (2)-(4),
and 3506(g)(1)).
The decentralized Federal statistical system consists of more than
seventy agencies and units, including a dozen agencies that have
statistical activities as their principal function. While this
decentralized structure provides substantial benefits in making
statistical units responsive to specific program needs, public
confidence in nondisclosure pledges made by statistical agencies or
units is sometimes affected by perceptions of the programs those
statistics support.
By establishing a uniform policy for the principal statistical
agencies, this order will reduce public confusion, uncertainty, and
concern about the treatment of confidential statistical information by
different agencies. By establishing consistent rational principles and
processes to buttress confidentiality pledges, the order will eliminate
unsupportable confidentiality claims and agency decision processes that
have created uncertainties. Such consistent protection of confidential
statistical information will, in turn, reduce the perceived risks of
more efficient working relationships among statistical agencies,
relationships that can reduce both the cost and reporting burden
imposed by statistical programs.
B. Proposed Section 1
This section provides definitions for purposes of this order. Most
of these definitions are self-explanatory.
One of the central definitions is ``statistical agency or unit,''
which refers to the class of organizations that are principally subject
to the order. As noted above, the statistical policy authority in 31
U.S.C. 1104(d) is defined in terms of an enumerated set of statistical
activities performed by any executive agency for any purpose. The
definition of ``statistical agency or unit'' narrows the coverage of
this order, except where otherwise specified, to agencies where
statistical activities are predominant. For clarity, OMB has listed in
Appendix A specific statistical agencies or units that have been
initially determined to be subject to this order. OMB may revise this
list from time to time.
Another central definition in Section 1 is ``statistical purpose'',
which definition also includes examples of other (non-statistical)
purposes. These terms are used in Sections 2 and 3 of the order. Many
governmental and private sector activities use statistical information
in summary, aggregate, or other anonymous forms. Most of them, however,
also use information in identifiable form for making decisions about
entities that are the subjects of that information. The definition of
``statistical purpose'' distinguishes Federal activities that produce
statistical
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information in anonymous form from all other Federal activities.
The definition of ``identifiable form'' is based on the standard in
26 U.S.C. 6103(b)(2) (defining tax return information as not including
``data in a form which cannot be associated with, or otherwise
identify, directly or indirectly, a particular taxpayer'') and 26
U.S.C. 6103(j)(4) (regarding ``statistical use'' of ``anonymous''
return information), as well as on privacy principles applied by courts
in cases under the Freedom of Information Act, see, e.g., Carter v.
Commerce, 830 F.2d 388, 390-92 (D.C. Cir. 1987); Marzen v. HHS, 825
F.2d 1148, 1152 (7th Cir. 1987); Alirez v. NLRB, 676 F.2d 423, 427-28
(10th Cir. 1982). Statistical projects have as their objective the
publication of estimates (with measurable error) of summary information
or aggregate characteristics of some target population (which may be
people or things). Such objectives do not require the disclosure of
information that can be associated directly or indirectly with the
identity of individuals, or their specific organizations or activities,
that are the subject of the information. When the underlying
information is collected under a pledge of confidentiality, statistical
agencies and units apply a variety of techniques to assure that the
published information cannot be ``mined'' for the component details
about individual participants.
C. Proposed Section 2
This section states a general prohibition against the disclosure,
or use, in identifiable form of information collected for exclusively
statistical purposes, and the policy applies only to such information.
It is intended to implement, in its simplest form, the organizational
concept of functional separation--where an agency has a clear mandate
to collect information for exclusively statistical purposes--and to
establish the specific obligation that is communicated by a
confidentiality pledge. The policy is stated in terms of
``disclosure''--it is not intended to prevent access to information by
the respondents who provided the information or their agents (including
heirs or successors) explicitly defined by law, nor is it intended to
cast a veil of secrecy over information that is already in the public
domain. The requirement to provide notice to respondents is consistent
with the general requirement of the Paperwork Reduction Act of 1995 (44
U.S.C. 3506(e)(2)) and must also be consistent with the guidelines in
Appendix B.
D. Proposed Section 3
This exception language applies only to agencies that are subject
to the general policy in section 2 and only in the case where they also
have ``authority'' to collect data to be used in identifiable form for
nonstatistical purposes. The notice requirements are referenced to the
paperwork review process.
The procedure called for by this section provides an additional
means to implement functional separation and a means for the public and
OMB to review data collections conducted by a statistical agency that
are to be used for nonstatistical purposes. Its purpose is to identify
all nonstatistical data collections carried out by statistical agencies
(including collections carried out for other agencies) and to assure
that proper notice to respondents is provided.
E. Proposed Section 4
This section states that the provisions of the order are to be
applied to the maximum extent legally permissible. Thus section 4
requires that statutes (including, but not limited to, statutes
regarding the collection, use, disclosure, and confidentiality of
information) be construed to give the maximum force to confidentiality
pledges that is legally permissible. For example, this requirement
affects the interpretation of the Trade Secrets Act, where it
strengthens the prohibition of disclosures of ``confidential
statistical data''.
F. Proposed Section 5
Section 5 establishes a procedure for identifying and resolving any
potential conflicts with this order. The procedure requires an agency
review of all pertinent issues, a report and subsequent review by OMB,
and, if necessary, appropriate review by the Department of Justice.
G. Proposed Section 6
Section 6 requires covered agencies to take all steps necessary to
comply with this order. In most cases, such steps will include revision
of formal and informal agency policies that can be made consistent with
this order without statutory amendment. OMB and affected agencies will
also consider seeking changes in statutes if necessary.
H. Proposed Section 7
Section 7 states that the act of providing data to a statistical
agency or unit does not alter obligations under any other statute,
including the Privacy Act and the Freedom of Information Act, for the
same or similar information that is retained.
I. Proposed Section 8
Section 8 emphasizes that this order is intended to supplement, and
not to restrict or diminish, any confidentiality protections that
otherwise apply to statistical information. Examples of such
protections include data encryption and other security measures as well
as disclosure avoidance procedures used in statistical publications.
J. Proposed Section 9
Section 9 commits the Office of Information and Regulatory Affairs
to provide guidance for implementing this order. OIRA will take steps
to assure consistent policies in the rules adopted by affected
agencies, and otherwise consult with agencies to assure the full and
prompt implementation of this order. Any agency may also request OIRA
to interpret any aspect of this order or to provide advice on any
action proposed to give full effect to the policies of this order. OMB
will also review the accuracy and adequacy of confidentiality pledges
as required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3504(e)(5), 3506(e)(2)-(4), 3506(g)(1) and 5 C.F.R. 1320.5(d)(2)(vii)-
(viii)).
K. Proposed Section 10
This section establishes the effective date of the order.
L. Proposed Appendix A
Appendix A contains the list of ``statistical agencies and units''
determined by OMB to be principally subject to this order. Comment is
particularly solicited on the list of agencies proposed for inclusion
or on other agencies or units that should be considered for inclusion.
M. Proposed Appendix B
Appendix B provides guidelines for including comparable language in
confidentiality pledges that cover data collected for exclusively
statistical purposes. This is intended to provide the public with a
clear notice when the uniform policies of this order are in effect. It
is also anticipated that OMB clearance review will be used to eliminate
similar and potentially confusing pledge language in cases where the
standards of this order are not
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met. See 5 C.F.R. 1320.5(d)(vii)-(viii) (60 FR 44988; August 29, 1995).
Sally Katzen,
Administrator, Office of Information and Regulatory Affairs.
Order Providing for the Confidentiality of Statistical Information
Consistent government policy protecting the privacy and
confidentiality interests of persons who provide information for
Federal statistical programs serves both the interests of the public
and the needs of the government and society. The integrity and
credibility of confidentiality pledges provides assurance to the public
that information about persons or provided by persons for exclusively
statistical purposes will be held in confidence and will not be used
against them in any government action. Public confidence and
willingness to cooperate in statistical programs substantially affects
both the accuracy and completeness of statistical information and the
efficiency of statistical programs. Fair information practices and
functional separation of purely statistical activities from other
government activities are both essential to continued public
cooperation in statistical programs.
Therefore, pursuant to 31 U.S.C. 1104(d), section 3(a) of the
Paperwork Reduction Act of 1980 (94 Stat. 2825), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and Executive Order
10253 (as amended), and in order to improve the compilation, analysis,
publication, dissemination, and confidentiality of statistical
information, it is hereby ordered as follows:
Section 1. Definitions. For the purposes of this order:
(a) Disclose means to release information to anyone other than the
respondent who provided, or is the subject of, such information (or the
agent of such respondent);
(b) Executive agency is defined as in 31 U.S.C. 102;
(c) Identifiable form means any representation of information that
permits information concerning a specific respondent to be reasonably
inferred by either direct or indirect means;
(d) Information means information of any kind that is not generally
available to the public, and includes data;
(e) Person means individuals, organized groups of individuals,
societies, associations, firms, partnerships, business trusts, legal
representatives, companies, joint stock companies, and corporations,
and refers to both the singular and the plural;
(f) Respondent means a person who is requested to provide
information, or is the subject of that information, or who provides
that information;
(g) Rule means the whole or part of a statement by an Executive
agency of general or particular applicability and future effect, and
includes regulations, directives, orders, guidance, and policy
statements;
(h) Statistical agency or unit means an agency or organizational
unit of the Executive Branch whose activities are predominantly the
collection, compilation, processing, or analysis of information for
statistical purposes (Appendix A contains a list of ``statistical
agencies or units'' as defined herein, which have been determined by
the Office of Management and Budget to be subject to this order);
(i) Statistical purpose means the description, estimation, or
analysis by the Federal Government of information concerning persons,
the economy, society, or the natural environment (or relevant groups or
components thereof) without regard to the identities of specific
persons, as well as the development, implementation, or maintenance of
methods, procedures, or information resources that support such
purposes; ``statistical purpose'' specifically excludes many other
activities or functions for which information is used in identifiable
form, such as determining whether a person is eligible for a license,
privilege, right, grant, or benefit (including whether such should be
revoked) or whether a person's conduct was or is in accordance with law
(including whether a fine, other punishment, monetary damages, or
equitable relief should be imposed);
(j) Use of information means use by a statistical agency or unit,
by officers or employees of that agency or unit, or by other agents
(including contractors) acting as employees under the supervision and
control of that agency or unit.
Section 2. Prohibitions regarding the disclosure and use of
information collected for exclusively statistical purposes.
(a) Information acquired by a statistical agency or unit for
exclusively statistical purposes may be used only for statistical
purposes, and shall not be disclosed, or used, in identifiable form for
any other purpose unless otherwise compelled by law.
(b) When a statistical agency or unit is collecting information for
exclusively statistical purposes, it shall, at the time of collection,
inform the respondents from whom the information is collected that such
information may be used only for statistical purposes and may not be
disclosed, or used, in identifiable form for any other purpose, unless
otherwise compelled by law. If the statistical agency or unit has
determined that it is not otherwise compelled by law, the
confidentiality pledge shall be in the form as set forth in Appendix B.
Section 3. Prohibition on collecting information to be disclosed,
or used, in identifiable form for non-statistical purposes.
(a) Unless a statistical agency or unit is specifically authorized
by statute to acquire information to be disclosed, or used, in
identifiable form for purposes other than statistical purposes, such
agency or unit shall not collect information for any such (non-
statistical) purposes.
(b) If a statistical agency or unit is specifically authorized by
statute to acquire information to be disclosed, or used, in
identifiable form for non-statistical purposes, and is collecting
information for such non-statistical purposes, such agency or unit
shall clearly identify such non-statistical purposes in both the
Federal Register notices and submissions to Office of Management and
Budget required by the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.). In such cases when information is collected to be disclosed, or
used, in identifiable form for purposes other than statistical
purposes, a statistical agency or unit may not make a confidentiality
pledge that includes any language that might reasonably be confused
with the language contained in confidentiality pledges for information
that is collected for exclusively statistical purposes (see Section
2(b) and Appendix B). Information collected to be disclosed, or used,
in identifiable form for non-statistical purposes may be disclosed, or
used, only for those non-statistical purposes approved under the
Paperwork Reduction Act.
Section 4. The provisions of this order shall be applied to the
maximum extent legally permissible. Accordingly, with respect to
matters involving statistical information and activities of statistical
agencies or units, Executive agencies shall, to the maximum extent
legally permissible, construe and apply pertinent statutes (including,
but not limited to, statutes regarding the collection, use, disclosure,
and confidentiality of information) in a manner that enables full
compliance with this order (or, where a statute precludes full
compliance, in a manner that enables compliance with this order to the
maximum extent not precluded by statute).
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Section 5. Each statistical agency or unit subject to this order
shall conduct a review of its activities to ensure that they are in
full compliance with this order (or, if full compliance is precluded by
statute, that they comply to the maximum extent not precluded by
statute). The agency or unit shall complete the review no later than 60
days after this order takes effect for that agency or unit. The review
shall include, among other things:
(a) an identification of any statutes that, the agency or unit
believes, preclude full compliance with this order,
(b) an identification of any rules that, the agency or unit
believes, are inconsistent with any provisions of this order (including
an identification of which such rules are compelled by statute and,
conversely, which ones may be revised without a statutory amendment),
and
(c) the development of a plan for ensuring that the activities of
the agency or unit fully comply with this order (or, if full compliance
is precluded by statute, that such activities comply with this order to
the maximum extent not precluded by statute).
The results of this review shall be submitted in a report to the
Administrator of the Office of Information and Regulatory Affairs no
later than 90 days after this order takes effect for that agency or
unit. The Office of Management and Budget shall review such reports
and, after consultation with the statistical agencies or units in
question, may request that the Department of Justice review and provide
its opinion regarding any statutes identified as precluding full
compliance with this order, or any rules that have been identified as
being inconsistent with any provisions of this order and as being
compelled by statute.
Section 6. Statistical agencies or units shall implement this order
through issuance of appropriate rules, in accordance with applicable
procedures. To the extent that it is determined that there are any
existing rules which are inconsistent with any provisions of this order
and which an Executive agency may revise to be consistent (without
statutory amendment), such Executive agency shall promptly undertake to
revise such rules, in accordance with applicable procedures, so that
they are consistent. OMB and affected statistical agencies or units
shall consider, in accordance with the legislative clearance process
under OMB Circular A-19, the appropriateness of any statutory
amendments that would enable full compliance with this order.
Section 7. The disclosure of information to a statistical agency or
unit shall in no way alter obligations under statutes, including the
Freedom of Information Act and the Privacy Act, for the same or similar
information that was retained.
Section 8. This order is intended to supplement, and not to
restrict or diminish, any confidentiality protections that otherwise
apply to statistical information.
Section 9. The Office of Information and Regulatory Affairs of the
Office of Management and Budget will provide appropriate guidance
regarding this order.
Section 10. This order is effective 30 days after final publication
in the Federal Register.
Appendix A--Designated Statistical Agencies or Units
The following agencies or units have been determined by OMB to be
``statistical agencies or units'' for purposes of this order (this list
may be revised from time to time):
Department of Agriculture--
Economic Research Service
National Agricultural Statistics Service
Department of Commerce--
Bureau of the Census
Bureau of Economic Analysis
Department of Education--
National Center for Education Statistics
Department of Energy--
Energy End Use and Integrated Statistics Division of the Energy
Information Administration
Department of Health and Human Services--
National Center for Health Statistics
Department of Justice--
Bureau of Justice Statistics
Department of Labor--
Bureau of Labor Statistics
Department of Transportation--
Bureau of Transportation Statistics
Department of the Treasury--
Statistics of Income Division of the Internal Revenue Service
National Science Foundation--
Division of Science Resources Studies
Appendix B--Confidentiality Pledges
Statistical agencies or units subject to this order shall, whenever
they collect information for exclusively statistical purposes and have
determined that they may fully comply with the disclosure and use
prohibitions in this order, incorporate the following or equivalent
language into confidentiality pledges made to respondents:
This information collection complies with the Federal
Statistical Confidentiality Order. Therefore, by law, your responses
may be used only for statistical purposes and may not be disclosed,
or used, in identifiable form for any other purpose.
When a confidentiality pledge is made by a statistical agency or
unit for any information collection that does not satisfy the
disclosure and use standards of this order that apply to information
collected for exclusively statistical purposes (e.g., when the purposes
of the collection are not exclusively statistical), such pledge may not
include any language that might reasonably be confused with the
language specified above.
[FR Doc. 96-1525 Filed 1-26-96; 8:45 am]
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