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Defense Privacy Board Advisory Opinions
APPLICABILITY OF THE PRIVACY ACT TO NATIONAL GUARD RECORDS
As defined in the Privacy Act, "maintain" includes various record keeping 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 600 200 and AFR 35 44) 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.