38.  PERSONAL NOTES AS RECORDS WITHIN A SYSTEM OF RECORDS

Personal notes of unit leaders or office supervisors concerning subordinates ordinarily are not records within a system of records governed by the Privacy Act. The Act defines "system of records" as "a group of any records under the control of any agency . . . from which information is retrieved by the . . . [individual's] identifying particular . . . ." 5 U.S.C. § 552a(a)(5). One reason for limiting the definition to records "under the control of any agency" was to distinguish agency records from personal notes maintained by employees and officials of the agency. Personal notes that are merely an extension of the author's memory, if maintained properly, will not come under the provisions of the Privacy Act or the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

To avoid being considered agency records, personal notes must meet certain requirements. Keeping or destroying the notes must be at the sole discretion of the author. Any requirement by superior authority, whether by oral or written directive, regulation or command policy, likely would cause the notes to become official agency records. Such notes must be restricted to the author's personal use as memory aids. Passing them to a successor or showing them to other agency personnel would cause them to become agency records. Chapman v. National Aeronautics and Space Administration, 682 F.2d 526 (5th Cir. 1982).

Even if personal notes do become agency records, they will not be within a system of records and subject to the Privacy Act unless they are retrieved by the individual's name or other identifying particular. Thus if they are filed only under the matter in which the subordinate acted or in a chronological record of office activities, the Privacy Act would not apply to them. However, they likely would be subject to disclosure to a person requesting them under the FOIA. Individuals who maintain personal notes about agency personnel should ensure their notes do not become records within systems of records. Maintaining a system of records without complying with the Privacy Act system notice requirement could subject the individual to criminal charges and a $5,000 fine. 5 U.S.C. § 552a(i)(2).