Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
willful failure to maintain accurate records, but also 'actual damages sustained' as a result of such failure.").
The view prevailing in the Federal Circuits is in sync with an Office of Management and Budget (OMB) interpretation of the Privacy Act published in 1975, the year following the Act's adoption. Congress instructed OMB to "develop guidelines and regulations for the use of agencies in implementing the provisions of [the Privacy Act]." § 6, 88 Stat. 1909. Just over six months after the Act's adoption, OMB promulgated Privacy Act Guidelines. 40 Fed. Reg. 28949 (1975). The Guidelines speak directly to the issue presented in this case. They interpret §§ 552a(g)(1)(C), (D), and (g)(4) to convey:
"When the court finds that an agency has acted willfully or intentionally in violation of the Act in such a manner as to have an adverse effect upon the individual, the United States will be required to pay
"Actual damages or $1,000, whichever is greater "Court costs and attorney fees." Id., at 28970.
The Guidelines have been amended several times since 1975, but OMB's published interpretation of § 552a(g)(4) has remained unchanged. See id., at 56741; 44 Fed. Reg. 23138 (1979); 47 Fed. Reg. 21656 (1982); 48 Fed. Reg. 15556 (1983); 49 Fed. Reg. 12338 (1984); 50 Fed. Reg. 52738 (1985); 52 Fed. Reg. 12990 (1987); 54 Fed. Reg. 25821 (1989); 58 Fed. Reg. 36075 (1993); 59 Fed. Reg. 37914 (1994); 61 Fed. Reg. 6435 (1996).2
2 In briefing this case, the Government noted a communication to the Office of the Solicitor General from an unnamed OMB official conveying that OMB does not now "interpret its Guideline to require the payment of $1000 to plaintiffs who have sustained no actual damages from a violation of the Act." Brief for Respondent 47-48. Such an informal communication cannot override OMB's contemporaneous, long-published construction of § 552a(g)(4); cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988) ("We have never applied [deference] to agency litigating positions that are wholly unsupported by regulations, rulings, or adminis-
633
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