Application of the Privacy Act to the Personnel Records of Employees in the Copyright Office ( 1980 )

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).
608
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).
609
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.
610
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.
611
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
612