Overview of the Privacy Act: 2020 Edition

Individual's Right of Amendment

“Each agency that maintains a system of records shall--

. . .

(2) permit the individual to request amendment of a record pertaining to him and--

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and

(B) promptly, either--

(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;

(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed.”  5 U.S.C. § 552a(d)(2)-(4).

Comment:            

For a discussion of subsections (d)(2)-(4), see OMB 1975 Guidelines, 40 Fed. Reg. at 28,958-60, https://www.justice.gov/paoverview_omb-75.  For a discussion of amendment lawsuits, see the section entitled “Civil Remedies, 5 U.S.C. § 552a(g)(1)(A) - Amendment Lawsuits” below. 

If an agency refuses to amend an individual’s record, as requested, the individual has the right to file a statement of disagreement.

There have only been a few cases discussing statements of disagreement, and they confirm an individual’s right to file a statement as a separate remedy to the right to amendment.  See, e.g., Strong v. OPM, 92 F. App’x 285, 288 (6th Cir. 2004) (“As [plaintiff] remains free to supplement his file to disprove [the reference’s] opinion, OPM did not violate the Privacy Act by refusing to remove [the reference’s] statement from [plaintiff’s] file.”); Gowan v. Air Force, 148 F.3d 1182, 1188-89 (10th Cir. 1998) (concluding that although plaintiff “does not have a Privacy Act cause of action to require the Air Force to amend the records or attach a statement of disagreement” to records maintained in a properly exempt system of records, agency may “voluntarily comply” with the statement of disagreement provision); Middlebrooks v. Mabus, No. 1:11cv46, 2011 WL 4478686, at *5 (E.D. Va. Sept. 23, 2011) (“Plaintiff’s allegations clearly challenge opinions.  Specifically, she complains of her colleagues’ and supervisors’ assessments of her performance.  Yet, if [plaintiff] believed that her evaluations were misleading or unfair, her proper recourse was to place a concise statement in [her] records which sets forth [her] disagreement with the opinions contained therein.” (quoting Subh v. Army, No. 1:10cv433, 2010 WL 4961613, at *3-4 (E.D. Va. Nov. 30, 2010), aff’d, 417 F. App’x 285 (4th Cir. 2011))).

Next Section: Agency Requirements