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development of Federal standards for mechanisms to be used to collect civil rights information. The first concern with respect to the determination of appropriate vehicles for the collection of civil rights data is the development of a position on the advisability of combining compliance reporting requirements with voluntary statistical surveys. Public and private agencies which receive Federal resources respond to both types of inquiries from the Federal Government. While every effort should be made to reduce the burden on respondents, the statistical agencies should not collect regulatory data which can be used to affect the rights, privileges, or benefits of the individual or the institution. Rather, the compliance agencies should provide appropriate statistical summaries of their information to other Federal users so that duplication can be minimized. By the same token, there should be increased use of statistical surveys, based upon samples, to ascertain trends and target problems for investigation. More detailed statistical data should be required only of those units which have been identified through statistical screening or some other means (e.g., complaints) as possible violators of the Federal statutes.

Beyond this issue, there remain several concerns whose resolution will require further study. A determination should be made concerning the adequacy of relying on reports of the regulatory agencies, using information provided by intermediaries such as educational institutions, employers, and the like to assess civil rights compliance. The need to obtain additional reports from the affected individuals should be considered.

The interagency task force should also establish guidelines which indicate when recordkeeping, rather than reporting, should be used as the vehicle for recording compliance data, as well as guidelines concerning the appropriate frequency for reporting of statistical data to the Federal level. Too often, State and local governments have been required to aggregate and report to the Federal level information which will be used only in an on-site investigation of a specific complaint.

The appropriateness of using administrative records as a vehicle for assessing discrimination should be examined by the task force. Inherent in this practice would be the need to develop policies which would enable the Federal Government to strike a balance between obtaining data needed for policymaking and for completion of investigations, and insuring against negative effects brought on by "labeling" of individuals and violations of the individual's right to privacy. The trade-offs between obtaining improved data, and increasing reporting

burden as well as requesting sensitive data, must be examined.

Many respondents are required to file multiple compliance reports. It is therefore recommended that the interagency task force: (1) develop uniform compliance reporting standards for Federal benefit recipient agencies, and (2) develop methods for interagency sharing of these reports at the Federal level to eliminate duplicative requirements. This effort should build upon the recently issued title VI regulations, expanding and refining the proposed guidelines where necessary.

When the appropriate scope and vehicles for civil rights data collection activities at the Federal level have been determined, the interagency task force should provide leadership in developing policies delineating the respective roles of the several Federal Departments and agencies in the collection, analysis, and use of civil rights information. At the present time, some responsibilities are left unaddressed while others are handled by multiple agencies, resulting in duplication at both the Federal and the recipient agency levels. The interagency task force should not only determine how the civil rights data collection responsibilities should be divided among the Federal Departments but should also recommend appropriate mechanisms for coordinating the activities of the agencies involved. In addition, the interagency task force should develop recommendations with respect to intradepartmental responsibilities for civil rights data collection and analysis, and should specifically consider the question of whether program offices or independent compliance enforcement units should perform these functions. Appropriate legislation to carry out these recommendations should be developed.

Finally, when an improved Federal program of civil rights data collection is implemented, the interagency task force should develop guidelines for State and local government and industry use of the information produced at the national level. Too often, compliance reporting as well as broader surveys of the status of target groups are viewed as ends in themselves. Across the board, the Federal agencies have expended far too little effort in determining the use to which civil rights data will be put, and a disproportionately large share of their available resources on collecting data. Indeed, it may be postulated that data collection activities have been used at times in lieu of other management initiatives which might better serve to change the behavior of the industries, agencies, or institutions involved.

In developing standards for civil rights data scope, quality, and uniformity, the interagency task force should establish and conduct its business according

to a single principle: That the development of every requirement and standard for civil rights data collection and analysis be preceded by a clear specification of how the information will be used, by

Appendix REVIEW OF SELECTED TITLE VI DATA COLLECTION PROGRAMS

To measure the extent to which benefits are provided to minorities equitably, data on the race and ethnicity of the applicant and beneficiary populations must be collected and analyzed. The degree to which this requirement is met by agencies responsible for the administration of title VI varies. The discussion which follows highlights the current status of selected Federal title VI data collection programs.

At the Department of Agriculture (USDA), which has one of the most comprehensive Federal data collection requirements concerning program participation, each constituent agency is required to collect extensive racial and ethnic data to ensure that all eligible recipients have equal access to the benefits of USDA programs. Each agency must:

1. enumerate eligible participants; 2. establish a system for collecting and reporting

racial and ethnic data on participation; 3. review programs periodically to ascertain the

extent of minority group participation, as measured against equal opportunity objectives

and measurable targets; and 4. report annually on progress in meeting

identified objectives. In addition, USDA's title VI regulation requires recipients to:

keep such records and submit to the Agency timely, complete and accurate compliance reports ... to ascertain whether the recipient has complied

In general, recipients should have available for the agency racial and ethnic data showing the extent to which members of minority groups are beneficiaries of Federally assisted programs.

In addition to its efforts in education (discussed in the text), the Department of Health, Education, and Welfare is responsible for enforcement of title VI in major health and social service activities including Medicare, Medicaid and a variety of categorical grants for health and welfare aid which are funded through State health and welfare agencies. DHEW's regulation states that both "discrimination in the

...

whom, at the Federal level, and a complementary explanation of how the data can be used by respondents to improve their affirmative action programs.

selection or eligibility of individuals to receive the services, and segregation or other discriminatory practices in the manner of providing them, are prohibited."

Since 1973, DHEW's title VI regulation has required recipients of DHEW funds to collect racial and ethnic data on the beneficiaries of DHEW programs. In addition to imposing recordkeeping requirements, DHEW also conducts periodic surveys of hospitals and nursing homes to determine which medical facilities should be reviewed thoroughly.

DHEW has not collected comparable racial and ethnic data from State agencies on a nationwide scale. Although comprehensive guidelines were developed in 1975, they have not yet been approved by the Office of General Counsel. DHEW has not instructed State agencies to collect and maintain racial and ethnic data on the beneficiaries, applicants and potential beneficiaries of each DHEW-funded program they administer or which is administered by their subrecipients. For example, it has not directed that data must be kept by each vendor separately rather than for the State agency as a whole, or that data must be gathered separately for various racial and ethnic groups. Further, DHEW has not instructed the State agencies to tabulate racial and ethnic data by type or amount of benefit, nor has it indicated how frequently such data should be collected.

The Department of the Interior operates several programs which are subject to title VI of the Civil Rights Act of 1964. Until 1974, however, the Department had not identified the title VI implications of most of these programs. The Interior Department requires that applicants and recipients collect and maintain racial and ethnic data showing the extent to which members of minority groups and women participate in federally assisted programs. These data may be estimates or actual counts, and are required to be done on a visual basis only. No provision is made regarding who is responsible for collecting the data, nor is there any requirement that the data be forwarded to Interior on a regular basis.

The Law Enforcement Assistance Administration (LEAA) of the Department of Justice provides funds and technical assistance to State and local governments for reducing crime and juvenile delinquency and for improving criminal justice. Both title VI of the Civil Rights Act and the Omnibus Crime Control and Safe Streets Act, as amended, prohibit discrimination on the grounds of race, color and national origin in services provided by LEAAfunded programs. The Crime Control Act also prohibits discrimination on the ground of sex in services provided by LEAA-funded programs. In terms of using data collection forms to determine compliance, LEAA has taken the position that “such forms can provide data useful in its compliance programs, but such forms should be utilized only where it can be projected that the data generated will be reasonably reliable and productive of information from which significant statistical disparities by race and sex, may be gleaned."

The biennial Civil Rights Compliance Form was developed for completion by State and city police departments and highway patrols. It focused almost entirely on employment matters, and was primarily concerned with the tabulation of race and ethnic origin by sex and rank of police department employees. When this survey was found to be too costly compared to its usefulness and reliability, it was discontinued. The limited data collected by EEOC are now used as a substitute.

LEAA has developed also a compliance report to monitor community-based and other correctional facilities. This form does not cover certain key areas, including services provided by contractors and subcontractors, information on patterns of assigning minority group members to correctional facilities, or the areas of disciplinary actions and special privileges, parole procedures, or special services for particular groups. Finally, the form does not call for the collection of data on specific minority groups.

The Employment and Training Administration of the Department of Labor provides financial assistance to State employment security agencies, and gives similar aid to State and local governments to operate manpower training programs. The operations of the State employment service and unemployment insurance offices are subject to the provisions of titles VI and VII of the Civil Rights Act,

as well as other regulations and directives which require nondiscrimination in State employment security systems.

The Department of Labor's principal source of nationwide data on State security systems and manpower training activities is the Manpower Operating Data System. The data are submitted by each local office to the State employment security offices, which process the data and submit them on a monthly basis to DOL's regional offices. Data on the number of referrals and placements for various fields of employment are maintained by race and ethnic origin, cross-tabulated by sex. Despite the seeming usefulness of this system, it is less than ideal because the data are not comparable from State to State, and the employment categories are too general to be used to determine whether applicants are being placed according to their qualifications.

Title VI of the Civil Rights Act, as well as section 162(a) of the Federal Highway Act of 1973 and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, prohibit discrimination in activities funded by the Federal Highway Administration (FHWA) of the Department of Transportation. FHWA has the responsibility to ensure that minorities and women are not denied the benefits of assistance, and the concomitant responsibility to ensure that its programs do not exert a disproportionately negative impact upon these groups. Despite these broad responsibilities, FHWA has concentrated its civil rights program on issues such as minority employment in highway construction projects and satisfactory relocation of minority displacees.

The State agencies receiving FHWA funds are required to develop and implement plans for meeting their title VI responsibilities. Included in the specifications are requirements to collect racial and ethnic data on the program beneficiaries. A comprehensive system for collecting racial and ethnic data to evaluate title VI compliance for FHWA projects has not been developed. The Urban Mass Transportation Administration, another component of the Department of Transportation subject to the provisions of title VI of the Civil Rights Act, has likewise failed to develop a system for racial and ethnic data reporting.

Confidentiality, on the other hand, involves the conditions of use and disclosure of data once it is collected. The Government's needs for information about individuals, businesses, and institutions fall into many different categories including counting the population, as mandated in the Constitution; providing benefits such as welfare, student loans, or medical insurance; collecting taxes; regulating industry; enforcing laws; evaluating programs; and advancing the state of knowledge through statistics and research. Hence, the Government collects or causes to be collected great amounts of data, some of it highly personal or capable of inflicting great competitive injury if made public. The challenge posed by the dual concerns for privacy and the enhancement of knowledge is, therefore, to refrain from collecting unnecessary information and to maintain the necessary degree of confidentiality for that which is collected.

In addition, in many cases the success of a statistical inquiry leading to an enhancement of knowledge relies on a pledge of confidential treatment of the data. Margaret Martin has succinctly stated this proposition as follows:

Even when responses to requests for information are required by law, the success of a statistical program depends in large measure on the willing cooperation of respondents. Respondents who understand the purpose of the inquiry, who sympathize with the intended use of the information, and who believe that providing the government with the requested information will not harm them are much more likely to answer truthfully and with a minimum of effort on the part of the data collection agency. One element in enlisting such cooperation is the assurance of harmlessness to the respondent, and one of the most common methods for making such assurance in statistical data collection is the provision for keeping the replies confidential."

Chapter 21. CONFIDENTIALITY OF STATISTICAL AND RESEARCH DATA

Introduction and Overview

The concern for the protection of privacy of individuals and for maintaining secret proprietary information pertaining to business establishments and other legal institutions is traditional and well known. The recent debates in Congress leading to the passage of the Privacy Act of 1974 and the voluminous literature on the subject identify the Federal Government as a major threat to that privacy. Indeed, the Government's need for information for policy determination, program evaluation, and regulation of many aspects of society has led to an increasing need for information and therefore to increasing conflicts with the concepts of privacy, both for individuals and for legal persons. It has also focused more attention on the concept of confidentiality of information than ever before.

It is important that the two concepts of privacy and confidentiality be distinguished at the outset. Privacy, on the one hand, has been variously defined as: (1) the right to be left alone, to be spared from unauthorized oversight and observation, and from searching inquiries about oneself and one's business;' (2) the ability to control the use of information about oneself, whether to give it free circulation, limited circulation, or no circulation at all;' and (3) the right to participate in a meaningful way in decisions about what information will be collected and how that information will be used.' The concept of autonomy is also used to describe this right. In one view, these definitions imply that a data subject must be fully informed about all uses of data sought and be given the right to withhold consent from any or all such uses. In the extreme, of course, the Government should not collect any information at all.

Webster's Third New International Dictionary.

Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), Part One.

'DHEW Secretary's Advisory Committee on Automated Personal Data Systems, Records, Computers and the Righis of Citizens (DHEW Publication No. (OS) 73-94, July 1973), 41.

‘Margaret Martin, “Statistical Legislation and Confidentiality Issues,International Statistical Review, (Vol. 42, No. 3, December 1974) p. 265.

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