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The prohibition of other disclosures to the public of identifiable data in publication or otherwise by an agency; and

The prohibition of use of identifiable data for any purpose other than one which 1s purely statistical or research in nature. and. particula ly. from a use in identifiable form which would adversely affect any particular respondent's rights. benefits, or privileges.

Prohibition of Mandatory Disclosure. Compulsory legal process has been invoked in only a few cases dealing with statistical and research data.

One of the most famous of these was the 1961 order requiring the St. Regis Paper Company to deliver a copy of a Census Bureau form which it had retained in its files to the Federal Trade Commission. In a swift reaction. Congress amended the Census law to protect copies of Census documents retained in respondent's files from compulsory legal process.

In a case involving

an income maintenance experiment in New Jersey, files of some families were sought by a county prosecutor to attempt to discover 1 f the families were defrauding the county welfare department by not reporting income received from the experiment. The records were not protected by statute from subpoena, and the case was eventually settled only afte the researcher came close to going to Jail for contempt of court.

In another instance. People V. Newman, a subpoena was issued for photographs of participants in a New York methadone maintenance program. After many months and the threat of contempt of court against the researche. the clinic administering the program, on appeal, was allowed to withhold the photographs on the grounds that the identity of the patients

was protected by the research privilege which was granted to the program under the Public Health Service Act.

The FOIA provides that persons may require disclosure of agency documents except that an agency may withhold documents which fall within certain exemptions. These exemptions include, among others, matters which are "specifically exempted from disclosure by statute." "trade secrets and commercial or financial information obtained from a person and privileged or confidential": and "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Recently, in interpreting the last exemption. courts have tended to consider whether the need for the data. as balanced against the extent of the invasion of personal privacy. warrants the particular disclosure. It is clear that a pledge of confidentiality made to a respondent is not sufficient. in and of itself. to protect cata not expressly exempted from disclosure by another statute. The FOIA has not been used very often to force disclosure of statistical or research data in identifiable form. and those few disclosures nave mainly involved

corporate data.

Disclosure of identifiable data may prove to be a greater problem in the future due to the recently passed FOIA amendments which will speed up agency processing of requests for information and the Sunshine Act which substantially limits the applicability of the statutory exemption

from FOIA disclousure.

It

1S argued in this chapter that identifiable data used for statistical or research purposes should be specifically exempt from disclosure by statute to protect the identity of respondents and to assure accurate statistical and research results. The DHEW Secretary's Advisory Committee on Automated Personal Data Systems cautioned that "the data to be

protected should be limited

to

those used exclusively for statistical reporting or research. Thus. the protection would apply to statistical reporting and research data derived from administrative records, and kept apart from them, but not to the administrative records themselves. 6/"

Several steps

Prohibition of Voluntary Disclosure. Protection of data from voluntary disclosure in identifiable form is an elementary aspect of any statistical or resea ch activity in which identifiable data are used. may be appropriate to achieve this protection. Agency personnel should take an oath to protect the identity of respondents. Criminal penalties should be assessed for knowing and willful disclosure. Civil remedies might be made available to any respondent who is harmed by the disclosure. Research data should be scrubbed of identifiers as soon as possible to prevent disclosure, and all agencies should be sensitive to the possibility of disclosing data through publications. (The Census Bureau, in particula . has developed disclosure analysis so that data pertaining to a particula respondent cannot be discovered even by comparison of several tables.)

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The integrity of the statistical and research activities of the Government might be seriously damaged by an inappropriate disclosure. Interagency Committee on Statistical Methodology chaired exploring disclosure avoidance techniques 10 publications and in the dissemination of public use microdata tapes. as well as statistical matching with and without using identifiable data. In the words of the DHEW Committee: "The protection should be limited to data identifiable with, or traceable to, specific individuals. When data are released in statistical form. reasonable precautions to protect against 'statistical

disclosure' should be considered to fulfill the obligations not to disclose data that can be traced to specific individuals. 7/"

Prohibition of Misuse. The final element in a program to protect the confidentiality of statistical or research data is to prevent their use in identifiable form for making determinations which affect a particular

to a

respondent. Agencies often promise that data pertaining respondent will be used only for statistics or research. but some agencies do not have a legal basis to back up this pledge.

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important

Federal Government

to consider the organizational factor in protecting these data from misuse. Several agencies of the perform only statistical or research functions, and their product takes the form of published aggregates. tabulations. research reports. and other documents which do not reveal identifiable statistical data or the identity of any research subject. Any agency which has this limited function can more easily assure the confidentiality of data collected or received from another agency under a specific law which protects all such data which it collects or maintains.

When statistical or research activities are undertaken by agencies which have other program responsibilities. it is often more difficult to keep the data from being used in the administration of a program. (Some agencies use the word "confidential" to include data used internally for regulatory purposes--such cata should be described with another word to avoid confusion with the useage proposed in this chapter.) This may be especially difficult when the data are originally gathered in connection with regulatory and program administration functions. Often such data are collected on a mandatory basis to determine eligibility for a benefit or to

see whether a particular person has complied with a law.

above.

As mentioned

Program-related information may also be useful for statistical, These activities may involve additional statistical data, perhaps from a sample of

research, or program evaluation activities.

the collection of

program participants.

In these cases, the statistical data derived from

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the prog am may be inextricably merged with other directly collected data in the records maintained by the researcher, evaluator, or statistician. major th eat to the confidentiality of the data is that data which are maintained for statistical or research purposes may be viewed source of information by a benefits program administrator cr by a regulatory arm of an agency.

as a prime

It 1s

clear that the integrity of statistical or research programs of the Federal Government would be widely questioned and their effectiveness would be damaged if data from those programs were used in identifiable form administrative or regulatory decisions about particular

to make

respondents.

research

Hence, it is important to keep identifiable statistical or research data separate from program administration or regulatory data, even if the former 1s derived from the latter. A good way to achieve this separation is to establish organizational integrity for statistical or activities if possible. by establishing a separate agency or unit within an agency which is legally insulated from requests for identifiable data from other operating units or agencies. At least, where statistical or research data are derived in whole or in part from administrative data they should be maintained apart from the original administrative data sets to reduce the possibility of their use in the administrative process. some cases the inability of a substantive program administrator to nave access to identifiable statistical or research data may lead to a duplicate

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