Defense Privacy Board
Advisory Opinions
5. APPLICABILITY OF THE PRIVACY ACT TO NATIONAL GUARD RECORDS
As defined in the Privacy Act, "maintain" includes various
recordkeeping functions to which the Act applies; i.e.,
maintaining, collecting, using, and disseminating. In turn, this
connotes control over and responsibility and accountability for
systems of records. 5 U.S.C. § 552a(a)(3); Office of Management
and Budget Privacy Act Guidelines, 40 Fed. Reg. 28949, 28954 (July
9, 1975) (OMB Guidelines).
Reserve components of the Army and the Air Force include the Army
and Air National Guards of the United States respectively, which
are composed of federally recognized units and organizations of
the Army or Air National Guard and members of the Army or Air
National Guard who are also Reserves of the Army or Air Force.
10 U.S.C. §§ 3077 and 8077. 10 U.S.C. § 275 requires
the Departments of the Army and the Air Force to maintain personnel
records on all members of the federally recognized units and organizations
of the Army and Air National Guards and on all members of the
Army or Air National Guards who are also reserves of the Army
and Air Force. Such records are "maintained" by the
Army or Air Force for the purposes of the Privacy Act. These
records are not all located at the National Guard Bureau. Some
are in the physical possession of the state adjutant general.
However, records need not be physically located in the agency
for them to be maintained by the agency. See OMB Guidelines.
Records located at the state level are under the direct control
of the Army and Air Force in that they are maintained by the state
under regulations (NGR 600200 and AFR 3544) implementing
10 U.S.C. § 275, and promulgated by authority of the Secretaries
of the Army and the Air Force under 10 U.S.C. § 280. Therefore,
the records are Army or Air Force records and subject to the provisions
of the Privacy Act.
That the records are subject to the Privacy Act does not mean
they cannot be used by the members of the state national guards.
The state officials using and maintaining the records are members
of the reserves (members of the Army or Air Force National Guard
of the United States). Disclosure to them in performance of their
duties is disclosure within the Department of Defense not requiring
a published routine use or an accounting.
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