dissenting:
I agree with parts I and II of the majority opinion. The disclosure of the information contained on the Personnel Security Questionnaires (PSQs) to the Inspector General (IG) was lawful under the Privacy Act. I respectfully disagree, however, with part III of the majority opinion in which the majority holds that the IG’s disclosure of the PSQs to the Department of Justice (DOJ) was not lawful as well.
The majority’s conclusion in Part III is based upon the failure of the Department of Energy (DOE) to advise the individuals who filled out PSQs that the information they supplied might be used against them in a criminal prosecution. It reaches this conclusion by equating “routine use” as defined by section 552a(e)(3)(C) of the Privacy Act with “routine use” as defined by section 552a(b)(3). The two sections are quite different. And the “routine use” referred to in each section is different.
As used in section (e)(3)(C), “routine use” refers to the use the agency which requests information may make of the information it obtains. In the present case, individuals who completed the PSQs were asked to give residence information to the DOE. The Supplement to Form DOE-1 stated that “personal information on the [PSQ] form(s) will be used to determine an individual’s eligibility for a DOE personnel security clearance or access authorization.” Obtaining a security clearance or access authorization was the “routine use” for which information on the PSQs was collected.
On the other hand, section (b)(3) permits disclosure by one agency (in this the IG which investigated the fraud) to another agency (the Department of Justice) if the disclosure is “for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section.” As the majority acknowledges, “routine use” as used in section (b)(3) is defined by subsection (a)(7): “The term ‘routine use’ means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.” It is beyond cavil that the IG collected the information from the PSQs for the purpose of investigating fraud. It is equally clear that disclosure of the IG’s record of its investigation (which included the PSQs) to the DOJ was for the purpose of possible criminal fraud prosecutions, a purpose obviously compatible with the purpose for which the IG collected the information in the first place. This being so, one wonders why there should be any question about the propriety of this disclosure.
The problem lies in the second qualifying phrase of section (b)(3). The disclosure must not only be for a routine use as defined in subsection (a)(7). It must also be for a routine use “described under subsection (e)(4)(D).” Section (e)(4)(D) requires that “each routine use of the records” must be published by the agency (the DOE in *758this case) in the Federal Register. The routine use published by the DOE in the Federal Register provides in relevant part:
1. In the event that a record within this system of records maintained by this agency indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program pursuant thereto, the relevant records in the system of records may be referred as a routine use to the appropriate agency, whether Federal, State, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto.
47 Fed.Reg. 14,333, Appendix B ¶ 1 (1982).
The question is the same question the district court faced: Is the “record” which the IG turned over to the DOJ a “record within this system of records maintained by” the DOE? If it is, the disclosure was proper. If it is not, the disclosure was impermissible. The district court concluded the “record within this system of records maintained by” the DOE consisted solely of the PSQs; because no violation of law could be gleaned simply by looking at the information on the PSQs, their disclosure to the DOJ was improper.
In my view the “record within this system of records maintained by” the DOE is the record consisting of the relevant documents from the DOE files, including the PSQs, which the IG collected in compiling its investigative report. This collection of documents does indicate a “violation or potential violation of law” and the IG appropriately turned this record over to the DOJ for possible criminal fraud prosecutions. Obviously, this interpretation depends upon what is meant by a “record.” This is answered by 5 U.S.C. § 552a(a)(4):
[T]he term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
5 U.S.C. § 552a(a)(4).
All of the information collected by the IG in its investigation was collected for the purpose of investigating possible criminal fraud. The collected information was incorporated into the investigative files of the IG as the investigation proceeded for each of the various individuals. These files were created and maintained pursuant to 54 Fed.Reg. 1439 DOE 54-Investigative Files of Inspector General. This provision of the Federal Register further states that this system of files
represents that portion of the files of the Inspector General which covers IG investigations of individuals. The records are used in IG investigations and for the referral of violations of law to law enforcement authorities. Records may be disclosed in accordance with routine uses listed in Appendix B. (emphasis added).
47 Fed.Reg. 14319 DOE-54 (1982).
It is in Appendix B at 47 Fed.Reg. 14333 (1982) that authorization is found for disclosure of the IG files — the “portion of the files of the Inspector General which covers IG investigations of individuals” as a “routine use” to the “appropriate agency,” in this case the DOJ. 47 Fed.Reg. 14333, Appendix B, § 1 (1982). Thus, the IG’s disclosure to the DOJ of the investigative files of the various individuals the IG investigated was a routine use as defined by 5 U.S.C. § 552a(a)(7), and as published in the Federal Register pursuant to section (e)(4)(D), and as authorized by section (b)(3).
The DOE did not violate section (e)(3)(C). It plainly told the individuals from whom it collected information on the PSQs that it would use this information to determine eligibility for security clearances or access authorizations. There is no claim the DOE did otherwise. The IG collected information from the PSQs as part of its fraud investigation. As the majority agrees, this collection of information was perfectly proper. How then was section (e)(3)(C) violated?
*759The majority holds the violation occurred when the IG turned its investigative record over to the DOJ, because the DOE had failed to inform individuals who completed the PSQs that the information they supplied might be used for law enforcement purposes. But all section (e)(3)(C) requires is that the individuals be advised of the “routine uses” which may be made of the information collected. They were so advised. They were told that the information they furnished would be used by the DOE to determine their eligibility for security clearances or access authorization. This was the “routine use” for which the information was gathered. The DOE did not furnish this information to the DOJ for criminal prosecution. The IG did, and it did so pursuant to applicable law and only after it came into possession of the information properly.
For the foregoing reasons, I would reverse the decision of the district court and hold that there was no violation of the Privacy Act.