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TSA shows some flexibility in releasing some ‘TSA Precheck’ background records

TSA has determined that the system of records it has established for its “TSA Precheck” trusted traveler program will be subject to various exemptions spelled out in the Privacy Act, and that background information about applicants to the Precheck program can be withheld by TSA for law enforcement and national security reasons.

Over the years, individuals and civil liberties groups periodically have argued that provisions of the Privacy Act require that government agencies disclose whatever personally identifiable information they gather about an individual, so that individual will have a chance to challenge the accuracy of the information. Government agencies generally claim that they have the legal right not to disclose certain sensitive data.

In a final rule it published in the Federal Register on January 2, TSA essentially “split the difference,” declaring that it has the right not to disclose certain information if that might compromise the government’s law enforcement or national security efforts, while at the same time noting that it might take such requests from individuals under consideration on a case-by-case basis.

“DHS will consider requests on a case-by-case basis, and in certain instances may waive applicable exemptions and release material that otherwise would be withheld,” said the final rule.

In addition, TSA indicated that it will take steps to allow applicants for its Precheck program who are deemed ineligible to take steps to correct any inaccuracies. “TSA will notify applicants who are denied eligibility in writing of the reasons for the denial,” said the rule. “If initially deemed ineligible, applicants will have an opportunity to correct cases of misidentification or inaccurate criminal or immigration records.”

However, the burden of proof will reside with the applicant, according to the TSA notice.

“The applicant must provide a certified revised record, or the appropriate court must forward a certified true copy of the information, prior to TSA approving eligibility of the applicant for the TSA [check] Application Program,” says the final rule. 

Further information about this TSA rule is available from Peter Pietra, a TSA privacy officer, at TSAPrivacy@dhs.gov.