Application of the Privacy Act to the Personnel Records of Employees in the Copyright Office

Opinion

Application of the Privacy Act to the Personnel Records of Employees in the Copyright Office

T h e C o p y rig h t O ffice is in th e legislative b ra n c h , an d is n ot an “ a g e n c y ” w ithin th e c o v e ra g e o f th e P riv a c y A ct.

It is c o n stitu tio n a lly perm issible fo r an o fficer o f th e legislative b ran ch , su ch as the R e g ister o f C o p y rig h ts, to p erfo rm e x e c u tiv e fu n ctio n s, as lo n g as th e o fficer is ap p o in ted in a c c o rd a n c e w ith th e A p p o in tm e n ts C lause.

T h e p erso n n el re c o rd s o f th e C o p y rig h t O ffice a re n ot su b je ct to th e P riv a c y A c t by v irtu e o f 17 U .S .C . § 701(d), b ecau se p erso n n el actio n s taken by the R e g ister o f C o p y rig h ts are an in cid en t o f th e p erso n n el ad m in istratio n o f th e L ib ra ry o f C ongress.

May 8, 1980

M EM ORANDUM OPINION FOR T H E G E N ER A L COUNSEL, O FFIC E O F M A N A G EM EN T A N D BUDG ET

This responds to your inquiry requesting our opinion whether per­ sonnel records maintained by the Copyright Office are subject to the Privacy Act, 5 U.S.C. § 552a. The matter arises out of a denial by the Copyright Office of a request by a former employee for permission to have access to his personnel records, on the ground that its personnel records are not subject to the Privacy Act. The Office concluded that while 17 U.S.C. § 701(d) makes the actions of the Register of Copy­ rights in administering the Copyright Act subject to the Administrative Procedure Act, which includes the Privacy Act, the personnel records of the employees of the Copyright Office are not maintained in connec­ tion with the administration of the Copyright Act, but as an incident of the personnel administration of the Library of Congress which, being a legislative agency, is not subject to the Privacy Act. The denial was brought to the attention of your Office, which, under § 6 of the Privacy Act, 5 U.S.C. § 552a note, is charged with providing assistance to and oversight of implementation of the Act by agencies.

The questions at issue are whether the Privacy Act covers the Copy­ right Office, and if not, whether the Office is subject to that act by virtue of the provisions of the Copyright Act. The Privacy Act pro­ vides, with exceptions not pertinent here, for access by an individual to his own records in an “agency.” 5 U.S.C. § 552a(d).

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I.

In order to determine whether the Copyright Office is an agency covered by the Privacy Act we turn to the definition of that term in the Act, 5 U.S.C. § 552a(a)(l). It provides that “the term ‘agency’ means agency as defined in section 552(e) of this title.” That definition reads as follows:

(e) For purposes of this section, the term “agency” as defined in section 551(1) of this title includes any execu­ tive department, military department, Government corpo­ ration, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

Section 552(e) thus limits the coverage of the Privacy Act to agen­ cies as defined in §551(1). That section expressly exempts Congress from the term “agency.” 1 This exception has been interpreted as not being limited to Congress itself but as including the various agencies in the legislative branch of the federal government.

The question therefore is to ascertain whether the Copyright Office is an agency in the legislative branch. Before this can be done it is first necessary to outline the genesis of the agency and the organizational status of the Copyright Office.

The administration of the copyright laws was transferred to the Library of Congress by §85 of the Act of July 8, 1870, 16 Stat. 212. Beginning in the 1880’s, a copyright office was administratively estab­ lished in the Library of Congress.2 This action received recognition in appropriations acts which, beginning with the Act of February 19, 1897, 29 Stat. 538, 544, 545, made appropriations for a copyright de­ partment or copyright office “under the direction of the Librarian of Congress,” and provided for the compensation of a register of copy-

1 Section 551(1), referred to in § 552(e), reads:

F or the purpose o f this su b ch ap ter—(1) “agency” means each authority o f the G o v e rn ­ ment o f the U nited States, w h eth er o r not it is w ithin o r subject to review by another agency, but does not include—

(A ) the Congress; (B) the courts o f the U nited States; (C ) the governm ents o f the territories o r possessions o f the U nited States; (D ) the governm ent o f the D istrict o f Columbia; o r except as to the requirem ents o f section 552 o f this title—

(E ) agencies com posed o f representatives o f the parties o r o f representatives o f organizations o f the parties to the disputes determ ined by them;

(F ) co u rts martial and military commissions; (G ) military au th o rity exercised in the field in tim e o f w ar o r in occupied territory; o r (H ) functions conferred b y sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 o f title 41; o r sections 1622, 1884, 1891-1902, and form er section 1641(bX2), o f title 50, appendix; . . .

2 Brylawski, The Copyright Office: A Constitutional Confrontation. 44 G eo. W ash. L. R ev. 1, 14-15 n.l5(a) (1975).

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rights.3 Section 47 of the Copyright Act of 1907, Pub. L. No. 60-349, 35 Stat. 1075, 1085, gave substantive statutory recognition to the “copy­ right office, Library of Congress,” “under the control of the register of copyrights, who shall, under the direction and supervision of the Li­ brarian of Congress, perform all the duties relating to the registration of copyrights.” Section 48 of that Act provided for the appointment of a register of copyrights by the Librarian of Congress, and for the ap­ pointment by the Librarian of Congress of “such subordinate assistants to the register as may from time to time be authorized by law.” 35 Stat. 1085.

The present law, the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, follows this pattern. The pertinent section, 17 U.S.C. § 701(a), states:

All administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress. The Register of Copy­ rights, together with the subordinate officers and employ­ ees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision.

The 1976 provision thus continues the status of the Copyright Office and its employees as in the Library of Congress. The Copyright Office is referred to as the Copyright Office “o f” the Library of Congress, and its staff, including the Register, are appointed by the Librarian of Congress and act under the Librarian’s general direction and supervi­ sion. The explanation of §§701-710 of the Act in the Senate report (S. Rep. No. 94-473, at 153), stating that (apart from a matter not pertinent here), “these sections appear to present no problems of content or interpretation requiring comment here,” indicates that no substantial change in the preexisting law was intended.

The Copyright Office thus is a part of the Library of Congress.4 It has been firmly established that the Library of Congress, and conse­ quently its subdivision the Copyright Office, are in the legislative and not in the executive branch of the government. Both are included in the Appropriation Acts for the legislative branch; 5 the Congressional Di­ rectory and United States Government Manual both list them as entities in the legislative branch. The latter points out that the Register of Copyrights is also Assistant Librarian for Copyright Services. Signifi­

3 See also the A pp ro p riatio n A ct o f A pril 17, 1900, 31 Stat. 86, 95. 4 A c co rd in g to L ib rary o f C ongress R egulation N o. 210-1, the C opyright O ffice is a "departm ent o f the Library o f C ongress.” In 39 Op. A tt’y G en. 429 (1940), the A ttorney G eneral observed that the C op y rig h t O ffice "w h ile w ithin the Library o f Congress, is a separate and distinct office.” T hat statem ent, how ever, w as m ade in the context o f a separate appropriation for the C opyright O ffice w hich p revented th e use o f Library o f C ongress funds for C op yright O ffice purposes.

5 See, e.g.. Legislative Branch A ppropriation A ct, 1979, 92 Stat. 784-785.

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cantly, the laws relating to the Library of Congress are codified in Title 2 of the United States Code, which deals with Congress.

More specifically, the Act of October 13, 1977, 2 U.S.C. § 171 (Supp.), states that on April 24, 1800, the Congress “established for itself a Library of Congress.” The Ethics in Government Act of 1978 which requires the filing of financial reports by officers and employees of the legislative branch states expressly that that branch includes, inter alia, the Library of Congress. 2 U.S.C. § 701(b), (e). Conversely, in several sections of Title 5, United States Code, Congress has specifi­ cally included the Library of Congress within the term “agency.” See 5 U.S.C. §3102 (readers for blind employees); § 5721 (travel and trans­ portation expenses); § 5595 (severance pay); § 5596 (back pay for un­ justified personnel action). It is plain that when Congress intended the Library of Congress to be an agency within the scope of Title 5 it expressed that intention by specific language. It did not do so for the purpose of the Privacy Act. The Copyright Office being a component of the Library of Congress, therefore, is not within the coverage of the Privacy Act.

The decision in Eltra Corporation v. Ringer, 579 F.2d 294 (D.C. Cir. 1978), does not lead to a contrary result. That case involved the question whether under the constitutional doctrine of the separation of powers the Copyright Office could be located in the legislative branch since the Register of Copyrights performed an executive function in administering the Copyright Act. The court did agree that the Register performed such a function; in that context it was irrelevant that the office of the Librarian of Congress was by statute codified as part of the legislative branch and had its funding included in the appropriation for the legislative branch. Id. at 301. The court, however, held that the Constitution did not prevent placing an officer performing executive functions in the legislative branch, if he had been appointed in accord­ ance with the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. The court opined that the clause had been complied with because the Librarian of Congress is appointed by the President by and with the advice and consent of the Senate, and the Register by the Librarian, the head of his department.

The conclusion of the court that the Register performs executive functions does not render the Privacy Act applicable to the Copyright Office. The Privacy Act, as we have shown above, applies by its very terms to agencies in the executive branch, not to agencies performing executive functions. Moreover, in contrast to the Appointments Clause, there is no constitutional requirement that the Privacy Act apply to all agencies performing executive functions. Congress has complete discre­ tion to decide which agencies, whether executive or not, should be covered by that Act.

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II.

The conclusion we have reached above however, does not fully dispose of your inquiry. There remains a question concerning 17 U.S.C. § 701(d), providing that “all actions taken by the Register of Copyrights under this Title [i.e., Title 17, U.S. Code] are subject to the provisions of the Administrative Procedure Act . . .” of which the Privacy Act is a part. Does this mean that the activities by the Register of Copyrights related to personnel records of persons employed in the Copyright Office are “actions” under Title 17? Our answer is in the negative.

Under . 17 U.S.C. § 701(a), the subordinate officers or employees of the Copyright Office are appointed not by the Register of Copyrights but by the Librarian of Congress. Accordingly they are employees of the Librarian, not of the Register of Copyrights. Pursuant to 2 U.S.C. § 136 the Librarian is authorized to make rules and regulations for the “government of the Library.” The government of the Library plainly includes matters pertaining to the employment, direction, and general supervision of the personnel of the Library.

Pursuant to his authority under 5 U.S.C. § 302, the Librarian has delegated most of his personnel functions to the Director for Personnel, and some to the department heads, such as the Register. See Library of Congress Regulations 2011-4 and 2010-11.

Thus personnel actions taken by the Register are not taken by him in his capacity as Register under Title 17 but as Assistant Librarian for Copyright Services, a department head in the Library of Congress. Those functions, therefore, are carried out under Titles 2 and 5 of the United States Code.

Accordingly, personnel records of the employees in the Copyright Office are no more covered by the Privacy Act than the personnel records of other employees in the Library of Congress.

L eon U lm a n Deputy Assistant Attorney General Office o f Legal Counsel