Untitled Texas Attorney General Opinion

The Honorable Thomas S. Bishop Opinion No. H-782 Adjutant General P. 0. Box 5218 Re: Whether the Federal Austin, Texas 78763 Privacy Act of 1974 applies to the Texas National Guard. Dear General Bishop: You have requested our opinion regarding whether the Federal Pritiacy-Actof 1974, 5 U.S.C. So552a, is applicable to the Texas National Guard while in State status and to the Army and Air Technician Program. The purpose of.the Federal Privacy Act is to provide certain safeguards for an individual against an invasion of privacy by requiring Federal agencies, except as otherwise provided by law, to [perform certain duties]. P.L. 93-579, S 2(b), U.S. Code C&A News, Vol.2 (1974) at 2178. (Emphasis added). "Agency" means "agency as defined in section 552(e) of this title." 5 U.S.C. S 552a(a)(1). Section 552(e) defines "agency" to include any executive department, military department, Government corporation, 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. 5 U.S.C. S 552(e). p. 3301 The Honorable Thomas S. Bishop - page 2 (H-782) Although no statute or judicial decision declares whether &he National Guard is included within the definition of "agency," the Supreme Court has held that a member of the National Guard is not a federal employee for purposes of the Federal Tort Claimnct. In Maryland v. United States, 381 U.S. 41 (19651, the Court ruled that t= appointment of members of the Guard by State authorities and the immediate control exercised over them by the States make it apparent that military members of the Guard are employees of the States, and so the courts of appeals have uniformly held. 381 U.S. at 48. See also S.torerBroadcastin Co. v. United States -- 268, 269 (5thir.'serger, 1 8 356 U.~'(?~:8?:2aIn our opinion, the status of members of a National Guard as state employees requires the conclusion that the Texas National Guard, while in state status, is a state rather than a federal agency, and that, as a result, the Federal Privacy Act is not at such time applicable thereto. See also Mela v. Callaway, 378 F.Supp. 25, 28 (S.D.N.Y. 1974);en RecordsDecision No. 115 (1975). We are supported in this view by the provisions of 32 U.S.C. S 709, which specifically designates persons in the Army and Air T&%nicians Program as federal employees: A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized byethis section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard. 32 U.S.C. S 709(d). p. 3302 The Honorable Thomas S. Bishop - page 3 (H-782) Thus, as to the Army and Air Technician Program, whose members are classified as federal employees, it is our opinion that the Federal Privacy Act is applicable. As to the remainder of the Texas National Guard, however, we believe that the Federal Privacy Act has no application. SUMMARY The Federal Privacy Act of 1974 applies to the Army and Air,Technician Program but not in general to the Texas National Guard while in State status. Very truly yours, /zfJ&? *.:., . HILL Attorney General of Texas APPROVED: Opinion Committee p. 3303