[Federal Register: June 27, 1997 (Volume 62, Number 124)]
[Notices]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn97-184]
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Part VIII
Office of Management and Budget
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Order Providing for the Confidentiality of Statistical Information
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: Final Order.
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SUMMARY: The Office of Management and Budget is issuing an order 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 will 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
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 non-statistical functions within a
single agency or unit.
EFFECTIVE DATE: July 28, 1997.
SUPPLEMENTARY INFORMATION:
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)). For example subsection 3506(e)(2) requires agencies to
``inform respondents fully and accurately about the sponsors, purposes,
and uses of statistical surveys and studies''.
The diverse 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.
Accordingly, the Office of Management and Budget adopts and issues
the Federal Statistical Confidentiality Order, which is set forth
below.
Sally Katzen,
Administrator, Office of Information and Regulatory Affairs.
Federal Statistical Confidentiality Order
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, unless otherwise indicated, to release
information to anyone outside of a statistical agency or unit 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 (other than a Federal employee
responding to inquiries within the scope of his employment, see 5 CFR
1320.3(c)(4)) 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 includes records management and archival functions
authorized in chapters 21, 29, and 33 of title 44 conducted under
information security and confidentiality restrictions consistent with
sections 2 and 3 of this order; ``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, unless otherwise indicated, use
by a statistical agency or unit, by officers or employees of that
agency or unit, or by its agents (``agents'' are persons designated by
a statistical agency or unit to perform, either in the capacity of a
Federal employee or otherwise, exclusively statistical activities
authorized by law under the supervision or control of an officer or
employee of that statistical agency or unit, and who have agreed in
writing to comply with all provisions of law that affect information
acquired by that statistical agency or unit).
Section 2. Standards regarding the disclosure and use of
information acquired for exclusively statistical purposes.
(a) Information that a statistical agency or unit acquires 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 accordance with Appendix B.
(c) A statistical agency or unit that collects information to be
used exclusively for statistical purposes and proposes to disclose such
information in an aggregate form or another manner that may permit
other agencies or persons to discern and use such information in
identifiable form for purposes other than statistical purposes shall,
prior to such disclosure, fully inform the affected respondents of the
facts regarding such disclosure and the possibility that such
disclosure may result in a respondent's information being discerned by
others in identifiable form, and shall not make such disclosure without
the prior written consent of all of the affected respondents. This
informed consent procedure shall be acknowledged wherever feasible in
any confidentiality pledge offered for information that may be
disclosed under this procedure.
Section 3. Standards regarding information acquired for the purpose
of being disclosed, or used, in identifiable form for purposes other
than statistical purposes.
(a) Unless a statistical agency or unit is 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 purposes.
(b) If a statistical agency or unit is authorized by statute to
acquire information to be disclosed, or used, in identifiable form for
purposes other than statistical purposes, and is collecting information
for such purposes, such agency or unit shall clearly identify such
purposes in both the Federal Register notices and submissions to the
Office of Management and Budget required by the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.). In such cases, 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).
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).
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 the
Office of Management and Budget 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 standards of subsections 2(a) and 2(b) of 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 subsections 2(a) and 2(b) of this
order [e.g., when the purposes of the collection are not exclusively
statistical (see Section 3) or when the data may be disclosed in a
form or manner that may permit use of the data in identifiable form
by other agencies or persons for purposes other than statistical
purposes (see subsection 2(c))], such pledge may not include any
language that might reasonably be confused with the language
specified above.
[FR Doc. 97-16934 Filed 6-26-97; 8:45 am]