Overview of the Privacy Act of 1974


Agency Requirements

Each agency that maintains a system of records shall --

A. 5 U.S.C. § 552a(e)(1)

“maintain in its records only such information about an  individual as is relevant and necessary to accomplish a  purpose of the agency required to be accomplished by statute or by executive order of the President.” 

Comment:
   
This subsection is not violated so long as the maintenance of the information at issue is relevant and necessary to accomplish a legal purpose of the agency. See, e.g., Reuber v. United States, 829 F.2d 133, 139-40 (D.C. Cir. 1987); Kalderon v. Finkelstein, No. 1:08 Civ. 09440, slip op. at 72-73 (S.D.N.Y. Mar. 10, 2010) (magistrate’s recommendation), adopted in pertinent part, 2010 WL 3359473 (S.D.N.Y. Aug. 25, 2010); Azmat v. Shalala, 186 F. Supp. 2d 744, 751 (W.D. Ky. 2001), aff’d per curiam sub nom. Azmat v. Thompson, No. 01-5282 (6th Cir. Oct. 15, 2002); Nat’l Fed’n of Fed. Employees v. Greenberg, 789 F. Supp. 430, 433-34 (D.D.C. 1992), vacated & remanded on other grounds, 983 F.2d 286 (D.C. Cir. 1993); Beckette v. USPS, No. 88-802, slip op. at 9-10 (E.D. Va. July 3, 1989); NTEU v. IRS, 601 F. Supp. 1268, 1271 (D.D.C. 1985); Chocallo v. Bureau of Hearings & Appeals, 548 F. Supp. 1349, 1368 (E.D. Pa. 1982), aff’d, 716 F.2d 889 (3d Cir. 1983) (unpublished table decision); see also AFGE v. HUD, 118 F.3d 786, 794 (D.C. Cir. 1997) (holding agency use of release form on employment suitability questionnaire constitutional in light of Privacy Act’s subsection (e)(1) requirement and “relying on the limitation that the release form authorizes the government to obtain only relevant information used to verify representations made by the employee”); Barlow v. VA, No. 92-16744, 1993 WL 355099, at *1 (9th Cir. Sept. 13, 1993) (VA’s request for appellant’s medical records did not violate Privacy Act because VA is authorized to request such information and it is “relevant and necessary” to appellant’s claim for benefits; citing subsection (e)(1)); Crummey v. SSA, 794 F. Supp. 2d 46, 56-57 (D.D.C. 2011) (where plaintiff – who believed that the Social Security Administration created a trust when it assigned him a Social Security Number and a Social Security Card and who had “drafted an agreement designed to reflect the alleged creation of the Trust” – requested amendment of his records “to include a copy of the Trust Agreement, or to reflect its contents,” ruling that SSA need not amend the records because doing so “would require the SSA to maintain information about [plaintiff] that is neither relevant nor necessary to accomplishing any purpose of the SSA”), summary affirmance granted, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012); Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 18 (D.D.C. 2005) (“While an agency normally would have no reason to maintain information on an employee’s personal relationships, in these circumstances plaintiff’s relationship was inextricably linked with allegations of favoritism by her supervisor.”); Felsen v. HHS, No. 95-975, slip op. at 59-61 (D. Md. Sept. 30, 1998) (subsection (e)(1) “refers to the types of information maintained and whether they are germane to the agency’s statutory mission,” and “does not incorporate [an] accuracy standard”); Jones v. U.S. Dep’t of the Treasury, No. 82-2420, slip op. at 2 (D.D.C. Oct. 18, 1983) (ruling that maintenance of record concerning unsubstantiated allegation that ATF Special Agent committed crime was “relevant and necessary”), aff’d, 744 F.2d 878 (D.C. Cir. 1984) (unpublished table decision). See also OMB Guidelines, 40 Fed. Reg. 28,948, 28,960-61 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; 120 Cong. Rec. 40,407 (1974), reprinted in Source Book at 863, available at http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf.

B. 5 U.S.C. § 552a(e)(2)

“collect information to the greatest extent practicable  directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs.”

Comment:

The leading cases under this provision are Waters v. Thornburgh, 888 F.2d 870 (D.C. Cir. 1989), and Brune v. IRS, 861 F.2d 1284 (D.C. Cir. 1988). Waters involved a Justice Department employee whose supervisor became aware of information that raised suspicions concerning the employee’s unauthorized use of administrative leave. 888 F.2d at 871-72. Without first approaching the employee for clarification, the supervisor sought and received from a state board of law examiners verification of the employee’s attendance at a bar examination. Id. at 872. In finding a violation of subsection (e)(2) on these facts, the Court of Appeals for the District of Columbia Circuit ruled that “[i]n the context of an investigation that is seeking objective, unalterable information, reasonable questions about a subject’s credibility cannot relieve an agency from its responsibility to collect that information first from the subject.”  Id. at 873 (emphasis added); accord Dong v. Smithsonian Inst., 943 F. Supp. 69, 72-73 (D.D.C. 1996) (“concern over Plaintiff’s possible reaction to an unpleasant rumor” did not warrant Smithsonian Institution’s “fail[ure] to elicit information regarding alleged unauthorized trip directly from her”), rev’d on grounds of statutory inapplicability, 125 F.3d 877 (D.C. Cir. 1997) (ruling that “Smithsonian is not an agency for Privacy Act purposes”). The D.C. Circuit in Waters distinguished its earlier decision in Brune, which had permitted an IRS supervisor to contact taxpayers to check on an agent’s visits to them without first interviewing the agent, based upon the “special nature of the investigation in that case – possible false statements by an IRS agent” and the concomitant risk that the agent, if contacted first, could coerce the taxpayers to falsify or secret evidence. Waters, 888 F.2d at 874; see also Velikonja v. Mueller, 362 F. Supp. 2d 1, 19-20 (D.D.C. 2004) (“seeking records from an electronic door log is very different from asking [plaintiff’s] colleagues, rather than her, about her schedule” as “[t]he door log provided the most objective source of information about her actual entry times to the building, and unlike the proof of bar exam attendance in Waters, the records could not be obtained from plaintiff”), aff’d in pertinent part & rev’d in part sub nom. Velikonja v. Gonzales, 466 F.3d 122 (D.C. Cir. 2006) (per curiam).

Consistent with Brune, two other decisions have upheld the IRS’s practice of contacting taxpayers prior to confronting agents who were under internal investigations. See Alexander v. IRS, No. 86-0414, 1987 WL 13958, at *6-7 (D.D.C. June 30, 1987); Merola v. Dep’t of the Treasury, No. 83-3323, slip op. at 5-9 (D.D.C. Oct. 24, 1986).

In addition, the Court of Appeals for the Sixth Circuit relied on Brune and the OMB Guidelines, referenced below, to hold that subsection (e)(2) had not been violated by an investigator looking into charges of misconduct by an Assistant U.S. Attorney who had interviewed others before interviewing her. Hudson v. Reno, 130 F.3d 1193, 1205 (6th Cir. 1997). Given that the district court had found that the AUSA “was suspected of making false statements and she was allegedly intimidating and threatening people and otherwise dividing the U.S. Attorney’s office,” the Sixth Circuit held that “[a]ll of these practical considerations demonstrate that [the investigator] did not violate the Privacy Act when he interviewed others before interviewing [her].”  130 F.3d at 1205. Moreover, in a case involving a misconduct investigation into whether an agency employee had been intoxicated on the job, the Court of Appeals for the Fourth Circuit went so far as to observe that “[s]o long as the agency inevitably will need to interview both [the employee] and others, the Act takes no position on the order in which they were approached.”  Hogan v. England, 159 F. App’x 534, 537 (4th Cir. 2005). See also Carton v. Reno, 310 F.3d 108, 112-13 (2d Cir. 2002) (permitting “a preference to interview [plaintiff] last” when investigating a misconduct complaint against him because of plaintiff’s “authority as an INS agent” and the existing “specific allegations that [plaintiff] had already terrorized and intimidated the complainants”); Cardamone v. Cohen, 241 F.3d 520, 527-28 (6th Cir. 2001) (finding it “impracticable to think that charges of employee mistreatment and harassment could be resolved by interviewing [the plaintiff] before others” because the plaintiff “could not have verified any conclusions” as to the “subjective allegations of employee mistreatment”); Carlson v. GSA, No. 04-C-7937, 2006 WL 3409150, at *6 (N.D. Ill. Nov. 21, 2006) (ruling that agency did not violate subsection (e)(2) “by not interviewing [an agency employee] first” since “[t]he issues under investigation [regarding the employee’s undisclosed arrest] could not have been resolved by objective evidence within [the employee’s] possession”; and concluding that “[t]he Act does not require the agency to undertake a piecemeal investigation by obtaining objective evidence first and then interviewing third party witnesses as to the more subjective claims”); Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 10-11 (D.D.C. 2005) (finding that agency “sought information directly from plaintiff ‘to the extent practicable’” where agency interviewed plaintiff’s coworkers before interviewing her in the context of an investigation into allegations made by some of plaintiff’s coworkers that plaintiff helped create a hostile work environment; and further stating that “[t]he order of interviews therefore would not have altered the investigation’s impact on plaintiff’s reputation”); Mumme v. U.S. Dep’t of Labor, 150 F. Supp. 2d 162, 173 (D. Me. 2001) (observing that “[w]hen conducting a criminal investigation of an individual . . . however, it may not be practicable for the investigating officers to collect information via direct questioning of the individual”), aff’d, No. 01-2256 (1st Cir. June 12, 2002); Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at *19-22, 29-35 (N.D. Tex. Mar. 11, 1999) (finding no subsection (e)(2) violation in agency’s “extensive, multifaceted investigation of an entire district office” where plaintiff was “both a charging party in several complaints and an accused in several others,” as it “was not always practical” for agency to interview plaintiff first, given nature of allegations against him), subsequent decision, 1999 WL 493056, at *1 (N.D. Tex. July 9, 1999) (denying motion for relief from March 11, 1999 order because “newly-discovered evidence” would not have produced different result), aff’d, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision).

The Court of Appeals for the Eighth Circuit has examined the issue of whether a “collection” subject to the requirements of subsection (e)(2) occurs when an agency reviews its own files to obtain information. Darst v. SSA, 172 F.3d 1065 (8th Cir. 1999). The Eighth Circuit held that because the “situation merely involved a review of the agency’s files,” the agency “did not contact third party sources to gather information,” and because “the indications of impropriety were apparent from the face of the documents and the sequence of events” reflected in the file, there was “no need to interview Darst about the sequence of events,” and thus no violation of subsection (e)(2). Id. at 1068. The Eighth Circuit further stated that “[a]s the district court noted, the Privacy Act does not require that the information be collected directly from the individual in all circumstances,” and that “[h]ere the information in the [agency] file obviated the need to interview Darst or third persons.”  Id.; see also Brune v. IRS, 861 F.2d 1284, 1287 (D.C. Cir. 1988) (stating that “investigations of false statement charges, by their nature, involve a suspect who has already given the government his version of the facts”); Velikonja, 362 F. Supp. 2d at 20 (holding that agency was not required to interview plaintiff before examining “electronic door logs” to compare them with her sworn attendance sheets because objective proof – the “electronic door logs” – could not be obtained from plaintiff).

For other decisions concerning this provision, see Olivares v. NASA, No. 95-2343, 1996 WL 690065, at *2-3 (4th Cir. Dec. 3, 1996), aff’g per curiam 882 F. Supp. 1545 (D. Md. 1995); Hubbard v. EPA, 809 F.2d 1, 11 n.8 (D.C. Cir.), vacated in nonpertinent part & reh’g en banc granted (due to conflict within circuit), 809 F.2d 1 (D.C. Cir. 1986), resolved on reh’g en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988); Augustus v. McHugh, 825 F. Supp. 2d 245, 257-58 (D.D.C. 2011); Ramey v. U.S. Marshals Serv., 755 F. Supp. 2d 88, 97 (D.D.C. 2010); Kalderon v. Finkelstein, No. 08 Civ. 9440, slip op. at 73-77 (S.D.N.Y. Mar. 10, 2010) (magistrate’s recommendation), adopted in pertinent part, 2010 WL 3359473 (S.D.N.Y. Aug. 25, 2010); Doe v. Goss, No. 04-2122, 2007 WL 106523, at *12-14 (D.D.C. Jan 12, 2007); McCready v. Principi, 297 F. Supp. 2d 178, 199-200 (D.D.C. 2003), aff’d in pertinent part & rev’d in part sub nom. McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006); Jones v. Runyon, 32 F. Supp. 2d 873, 876 (N.D. W. Va. 1998), aff’d, 173 F.3d 850 (4th Cir. 1999) (unpublished table decision); Magee v. USPS, 903 F. Supp. 1022, 1028-29 (W.D. La. 1995), aff’d, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision); and Kassel v. VA, 709 F. Supp. 1194, 1203 (D.N.H. 1989); cf. Felsen v. HHS, No. CCB-95-975, slip op. at 62-65 (D. Md. Sept. 30, 1998) (granting defendants summary judgment on alternative ground on subsection (e)(2) claim due to “lack of a ‘practicable’ need to collect information directly from the plaintiffs”); Beckette v. USPS, No. 88-802, slip op. at 10 (E.D. Va. July 3, 1989) (subsection (e)(2) requirements satisfied where information contained in records was derived from other records containing information collected directly from individual).

The OMB Guidelines suggest several factors to be evaluated in determining whether it is impractical to contact the subject first. OMB Guidelines, 40 Fed. Reg. 28,948, 28,961 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; see also 120 Cong. Rec. 40,407 (1974), reprinted in Source Book at 863, available at http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf.

C. 5 U.S.C. § 552a(e)(3)

“inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual – (A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary; (B) the principal purpose or purposes for which the information is intended to be used; (C) the routine uses which may be made of the information as published pursuant to paragraph (4)(D) of this subsection; and (D) the effects on him, if any, of not providing all or any part of the requested information.”

Comment:

The OMB Guidelines note that “[i]mplicit in this subsection is the notion of informed consent since an individual should be provided with sufficient information about the request for information to make an informed decision on whether or not to respond.”  OMB Guidelines, 40 Fed. Reg. 28,948, 28,961 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. The OMB Guidelines also note that subsection (e)(3) is applicable to both written and oral (i.e., interview) solicitations of personal information. Id.

There is some authority for the proposition that subsection (e)(3) is inapplicable when an agency solicits information about an individual from a third party. See Truxal v. Casey, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,391, at 82,043 (S.D. Ohio Apr. 3, 1981); see also Gardner v. United States, No. 96-1467, 1999 U.S. Dist. LEXIS 2195, at *19 (D.D.C. Jan. 29, 1999) (noting that although it is correct that the Privacy Act mandates actual notice of routine uses, “information in the instant case was not gathered from Plaintiff, but from third parties”), summary affirmance granted on other grounds, No. 99-5089, 1999 WL 728359 (D.C. Cir. Aug. 4, 1999); McTaggart v. United States, 570 F. Supp. 547, 550 (E.D. Mich. 1983) (individual lacks standing to complain of insufficient Privacy Act notice to third party). The OMB Guidelines support this view, but suggest that “agencies should, where feasible, inform third-party sources of the purposes for which information they are asked to provide will be used.”  OMB Guidelines, 40 Fed. Reg. at 28,961. The practice of not providing notice to third parties was condemned by the Privacy Protection Study Commission, see Privacy Commission Report at 514, available at http://epic.org/privacy/ppsc1977report, and, indeed, several courts have disagreed with Truxal and the OMB Guidelines on this point. See Usher v. Sec’y of HHS, 721 F.2d 854, 856 (1st Cir. 1983) (costs awarded to plaintiff due to agency “intransigence” in refusing to provide information specified in subsection (e)(3) to third party); Kassel v. VA, No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (in light of “the express language of § (e)(3) and the Privacy Act’s overall purposes . . . § (e)(3) applies to information supplied by third-parties”); Saunders v. Schweiker, 508 F. Supp. 305, 309 (W.D.N.Y. 1981) (plain language of subsection (e)(3) “does not in any way distinguish between first-party and third-party contacts”).

Generally, an agency does not need to explain “all of [its] rules and regulations” on “one small form” to meet the substantive requirements of subsection (e)(3). Glasgold v. Sec’y of HHS, 558 F. Supp. 129, 150 (E.D.N.Y. 1982); see also Field v. Brown, 610 F.2d 981, 987 (D.C. Cir. 1979) (holding that the agency’s form “contained all the elements required by 5 U.S.C. § 552a(e)(3)”).

In evaluating the requirements of subsection (e)(3)(A), it has been held that “[n]othing in the Privacy Act requires agencies to employ the exact language of the statute to give effective notice.”  United States v. Wilber, 696 F.2d 79, 80 (8th Cir. 1982) (per curiam) (finding that an IRS notice was in compliance with subsection (e)(3)(A) even though it did not use the word “mandatory”); see also Bartoli v. Richmond, No. 00-1043, 2000 WL 687155, at *3 (7th Cir. May 23, 2000) (finding that the IRS sufficiently gave notice pursuant to subsection (e)(3)(A) by citing section 6001 of the Internal Revenue Code as authority for its field examination); cf. Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 17 (D.D.C. 2005) (finding that “[t]he very uses of the information to which plaintiff specifically objects (i.e., giving it to [other offices within the agency] and placing it in her security file) . . . can be reasonably inferred from the warning given,” which stated that the information was being collected for an “administrative inquiry regarding misconduct or improper performance”; further stating that plaintiff could infer from this warning that “if she provided information revealing misconduct by her, the agency might use it to make a determination adverse to her”).

The Court of Appeals for the Fifth Circuit has gone so far as to rule in favor of an agency even though the agency “clearly did not follow the Act’s requirements because the [form] did not indicate whether filling out the form was voluntary or mandatory or, alternatively, because [plaintiff’s] supervisors ordered him to fill out the form even though filling it out was voluntary.”  Sweeney v. Chertoff, 178 F. App’x 354, 357 (5th Cir. 2006). The court reasoned that the Privacy Act did not provide the remedy for the plaintiff’s damages – which arose from his punishment for insubordination based on his refusal to fill out the form – because “the Privacy Act is not the proper channel by which to challenge internal agency disciplinary actions with which one disagrees.”  Id. at 358 & n.3.

One court has held that a notice that informed witnesses of an investigation into allegations of misconduct but did not warn of the investigation subject’s possible termination as an outcome, met the requirements of subsection (e)(3)(B) because the “text of the statute clearly requires” that the witnesses be notified of the “purpose” of the interview “not [its] possible results.”  Cardamone v. Cohen, No. 3:97CV540H, slip op. at 4-5 (W.D. Ky. Sept. 30, 1999), aff’d, 241 F.3d 520, 529-30 (6th Cir. 2001); cf. Beller v. Middendorf, 632 F.2d 788, 798 n.6 (9th Cir. 1980) (noting that when plaintiff provided information to the agency “albeit originally in connection with a check for a top secret security clearance,” he “must have known that information which disclosed grounds for being discharged could be used in discharge proceedings”); Thompson, 400 F. Supp. 2d at 16 (where agency notified employee that purpose of collection was to assess her “suitability for continued employment,” ruling that an agency need not “tell an individual that she is the subject of an investigation” in order to provide her with “informed consent”).

In Covert v. Harrington, a divided panel of the Court of Appeals for the Ninth Circuit held that an agency component’s failure to provide actual notice of a routine use under subsection (e)(3)(C), at the time at which information was submitted, precluded a separate component of the agency (the Inspector General) from later invoking that routine use as a basis for disclosing such information. 876 F.2d 751, 755-56 (9th Cir. 1989); see also Puerta v. HHS, No. 99-55497, 2000 WL 863974, at *1-2 (9th Cir. June 28, 2000) (following Covert, but finding that agency had provided notice of routine use on form used to collect information), aff’g No. EDCV 94-0148, slip op. at 7 (C.D. Cal. Jan. 5, 1999); USPS v. Nat’l Ass’n of Letter Carriers, 9 F.3d 138, 146 (D.C. Cir. 1993) (citing Covert with approval and remanding case for factual determination as to whether subsection (e)(3)(C) notice was given); Cooper v. FAA, No. 3:07-cv-01383, slip op. at 15-19 (N.D. Cal. Aug. 22, 2008) (holding that disclosure of social security records to Transportation Department by SSA was improper because “the notice provided on the form [plaintiff] used to submit his information to SSA was insufficient”); Pontecorvo v. FBI, No. 00-1511, slip op. at 12 (D.D.C. Sept. 30, 2001) (stating that agency must comply with subsection (e)(3)(C) “in order to substantiate an exception for ‘routine use’”). But see OMB Guidelines at 28,961-62 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf (“It was not the intent of [subsection (e)(3)] to create a right the nonobservance of which would preclude the use of the information or void an action taken on the basis of that information.”).

In addition, it has been held in many criminal cases that subsection (e)(3)(D) does not require an agency to provide notice of the specific criminal penalty that may be imposed for failure to provide information. See, e.g., United States v. Bishop, No. 90-4077, 1991 WL 213755, at *4 (6th Cir. Oct. 23, 1991) (per curiam); United States v. Bressler, 772 F.2d 287, 292-93 (7th Cir. 1985); United States v. Bell, 734 F.2d 1315, 1318 (8th Cir. 1984) (per curiam); United States v. Wilber, 696 F.2d 79, 80 (8th Cir. 1982) (per curiam); United States v. Annunziato, 643 F.2d 676, 678 (9th Cir. 1981); United States v. Rickman, 638 F.2d 182, 183 (10th Cir. 1980); United States v. Gillotti, 822 F. Supp. 984, 988 (W.D.N.Y. 1993).

D. 5 U.S.C. § 552a(e)(4)

“[subject to notice and comment], publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include – (A) the name and location of the system; (B) the categories of individuals on whom records are maintained in the system; (C) the categories of records maintained in the system; (D) each routine use of the records contained in the system, including the categories of users and the purpose of such use; (E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records; (F) the title and business address of the agency official who is responsible for the system of records; (G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him; (H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its contents; and (I) the categories of sources of records in the system.” 

Comment:

For a discussion of this provision, see OMB Guidelines, 40 Fed. Reg. 28,948, 28,962-64 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. Although Privacy Act system notices are spread throughout the Federal Register, the Office of the Federal Register publishes a biennial compilation of all such system notices. See 5 U.S.C. § 552a(f). These “Privacy Act Compilation Issuances” are available on the Government Printing Office’s Web site, which can be accessed at: http://www.gpoaccess.gov/privacyact/index.html. In order to provide more current and convenient access to system notices, OMB has required each agency to “provide the URL of the centrally located page on the agency web site listing working links to the published [system notices].”  Memorandum for Heads of Executive Departments and Agencies, Subject:  FY 2009 Reporting Instructions for the Federal Information Security Management Act and Agency Privacy Management (Aug. 20, 2009), SAOP Questions Attachment, at 1, available at http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m09-29.pdf. See also, e.g., DOJ Privacy Act Systems of Records, available at http://www.justice.gov/opcl/privacyact.html.

The only case to discuss the requirements of subsection (e)(4) in any depth is Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997). In that case, the Court of Appeals for the Tenth Circuit addressed whether the Internal Revenue Service had complied with several of the requirements of subsection (e)(4) with regard to a computer database known as the “Automated Labor Employee Relations Tracking System [(ALERTS)].”  Id. at 524-28. The database was used by the IRS to record all disciplinary action proposed or taken against any IRS employee and contained a limited subset of information from two existing Privacy Act systems that the IRS had properly noticed in the Federal Register. See id. at 524-25. Of particular note is that the Tenth Circuit found that ALERTS, being an “abstraction of certain individual records” from other systems of records, did not constitute a new system of records requiring Federal Register publication, because it could be accessed only by the same users and only for the same purposes as those published in the Federal Register for the original systems of records. Id. at 526-27.

E. 5 U.S.C. § 552a(e)(5)

“maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.”

Comment:

This provision (along with subsections (e)(1) and (e)(7)) sets forth the standard to which records must conform in the context of an amendment lawsuit, as well as in the context of a lawsuit brought under subsection (g)(1)(C) for damages. See 5 U.S.C. § 552a(g)(1)(A); 5 U.S.C. § 552a(g)(1)(C). As the Court of Appeals for the District of Columbia Circuit has held, “whether the nature of the relief sought is injunctive or monetary, the standard against which the accuracy of the record is measured remains constant [and] that standard is found in 5 U.S.C. § 552a(e)(5) and reiterated in 5 U.S.C. § 552a(g)(1)(C).”  Doe v. United States, 821 F.2d 694, 697 n.8 (D.C. Cir. 1987) (en banc).

In theory, a violation of this provision (or any other part of the Act) could also give rise to a damages action under 5 U.S.C. § 552a(g)(1)(D). Cf. Perry v. FBI, 759 F.2d 1271, 1275 (7th Cir. 1985), rev’d en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986). However, the Court of Appeals for the District of Columbia Circuit has held that “a plaintiff seeking damages for noncompliance with the standard set out in subsection (e)(5) must sue under subsection (g)(1)(C) and not subsection (g)(1)(D).”  Deters v. U.S. Parole Comm’n, 85 F.3d 655, 660-61 & n.5 (D.C. Cir. 1996) (noting that although court had suggested in Dickson v. OPM, 828 F.2d 32, 39 (D.C. Cir. 1987), that subsection (g)(1)(D) could cover a violation of subsection (e)(5), “the holding in that case is limited to the scope of subsection (g)(1)(C)”).

Among the most frequently litigated subsection (e)(5)/(g)(1)(C) claims are those brought by federal inmates against the Bureau of Prisons. The discussion of subsection (e)(5), below, includes citations to numerous cases involving such claims. Note, though, that it was not until 2002 that the Bureau of Prisons exempted many of its systems of records – among them, notably, the Inmate Central Records System – from subsection (e)(5) pursuant to subsection (j)(2). See 28 C.F.R. § 16.97(j) (codifying 67 Fed. Reg. 51,754 (Aug. 9, 2002)). This came about as a result of Sellers v. Bureau of Prisons, 959 F.2d 307, 309-312 (D.C. Cir. 1992), in which the Court of Appeals for the District of Columbia Circuit noted that “regulations governing the Bureau of Prisons . . . do not exempt [the agency’s] records from section (e)(5) of the Act” and, accordingly, remanded the case for a determination of “whether the [agency] met the requirements of sections (e)(5) and (g)(1)(C)” with regard to the items of information at issue. While the subsection (e)(5) analyses contained in cases decided prior to the promulgation of that exemption regulation remain useful resources in interpreting subsection (e)(5), it should be noted that inmates’ subsection (e)(5)/(g)(1)(C) claims arising subsequent to August 9, 2002, should not succeed. See, e.g., Blackshear v. Lockett, 411 F. App’x 906, 907-08 (7th Cir. 2011) (“[A]fter Sellers the [Bureau of Prisons] availed itself of a Privacy Act exemption that frees it from an obligation to keep accurate inmate files. . . . Accordingly, the damages remedy available to the plaintiff in Sellers is no longer applicable.”); Lane v. BOP, No. 09-5228, 2010 WL 288816, at *1 (D.C. Cir. Jan. 7, 2010) (“Sellers v. Bureau of Prisons, 959 F.2d 307 (D.C. Cir. 1992), does not control here, as it was decided before the Bureau of Prisons exempted the relevant system of records from the accuracy provision.”), aff’g per curiam No. 08-1269, 2009 WL 1636422, (D.D.C. June 9, 2009); Fisher v. BOP, No. 06-5088, 2007 U.S. App. LEXIS 5140, at *1 (D.C. Cir. Mar. 1, 2007) (“[T]he statement in Sellers v. Bureau of Prisons, 959 F.2d 307, 309 (D.C. Cir. 1992), that the ‘regulations governing the Bureau of Prisons . . . do not exempt those agenc[y’s] records from section (e)(5) of the Act’ is no longer accurate.”), denying reh’g to 2006 U.S. App. LEXIS 28532 (D.C. Cir. Nov. 16, 2006), aff’g per curiam No. 05-0851, 2006 U.S. Dist. LEXIS 9738 (D.D.C. Feb. 21, 2006); Earle v. Holder, 815 F. Supp. 2d 176, 182-83 (D.D.C. 2011), aff’d per curiam, No. 11-5280, 2012 WL 1450574 (D.C. Cir. Apr. 20, 2012); Kates v. King, No. 3:11-CV-00951, 2011 WL 6937553, at *3 & n.1 (M.D. Pa. June 3, 2011), adopted, 2012 WL 10667 (M.D. Pa. Jan. 3, 2012); Davis v. United States, No. CIV-10-1136, 2011 WL 704894, at *5 (W.D. Okla. Jan. 4, 2011) (magistrate’s recommendation), adopted, 2011 WL 693639 (W.D. Okla. Feb. 18, 2011), appeal dismissed, 426 F. App’x 648 (10th Cir. June 14, 2011). Courts have disagreed, however, on whether to permit claims that arose before August 9, 2002, but were filed after that date to go forward. Compare Patel v. United States, No. 08-1168, 2009 WL 1377530, at *1-2 (W.D. Okla. May 14, 2009)(declining to dismiss claim on ground that record was exempt from subsection (e)(5) because “the exemption . . . post-dates the allegedly false record”), aff’d, 399 F. App’x 355, 360 (10th Cir. 2010), with Truesdale v. DOJ, 731 F. Supp. 2d 3, 9 (D.D.C. 2010) (rejecting argument that “[b]ecause [plaintiff] had been allowed to contest the accuracy of sentencing-related information before 28 C.F.R. § 16.97(j) and (k) became effective . . . he should be allowed to pursue his Privacy Act claims”; “Plaintiff cites no authority for the proposition that he need not be subjected to a duly promulgated and published administrative regulation simply because he demands amendment of records in existence before the effective date of that regulation.”). See also generally Skinner v. BOP, 584 F.3d 1093, 1097 (D.C. Cir. 2009) (declining to decide whether “it would be impermissibly retroactive to apply [the exemption] to [prisoner’s] lawsuit” where claim arose before date of exemption but was filed after that date). This issue is discussed further under “5 U.S.C. § 552a(j)(2),” below.

Perfect records are not required by subsection (e)(5); instead, “reasonableness” is the standard. See Johnston v. Horne, 875 F.2d 1415, 1421 (9th Cir. 1989); DeBold v. Stimson, 735 F.2d 1037, 1041 (7th Cir. 1984); Edison v. Dep’t of the Army, 672 F.2d 840, 843 (11th Cir. 1982); Vymetalik v. FBI, No. 82-3495, slip op. at 3-5 (D.D.C. Jan. 30, 1987); Marcotte v. Sec’y of Def., 618 F. Supp. 756, 762 (D. Kan. 1985); Smiertka v. U.S. Dep’t of the Treasury, 447 F. Supp. 221, 225-26 & n.35 (D.D.C. 1978), remanded on other grounds, 604 F.2d 698 (D.C. Cir. 1979); see also, e.g., Kvech v. Holder, No. 10-cv-545, 2011 WL 4369452, at *5-6 (D.D.C. Sept. 19, 2011) (where plaintiff “admit[ted] that she defended herself against the charges by submitting the very evidence she claims would have ‘corrected’ the records,” concluding that plaintiff “has not asserted any facts to support a claim that the FBI failed to maintain accurate or complete records with reasonable fairness”); Crummey v. SSA, 794 F. Supp. 2d 46, 56-57 (D.D.C. 2011) (finding that “there can be no genuine dispute that the SSA has maintained its records ‘with the accuracy necessary to assure fairness’” where plaintiff had “failed to present even a scintilla of competent evidence suggesting that the SSA’s records are, in actuality, materially inaccurate or incomplete,” and where “in order to reach that conclusion, the fact finder would first have to accept two premises, neither of which is tenable”), summary affirmance granted, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012); Wilson v. CIA, No. 01-1758, slip op. at 6 (D.D.C. Aug. 29, 2002) (“No reasonable fact finder could accept plaintiff’s denial of a meeting having occurred twenty-five years ago over an official record prepared ‘less than two weeks’ after the meeting which memorialized the event.”), summary affirmance granted, No. 02-5282, 2003 U.S. App. LEXIS 1290 (D.C. Cir. Jan. 24, 2003); Halus v. U.S. Dep’t of the Army, No. 87-4133, 1990 WL 121507, at *11 (E.D. Pa. Aug. 15, 1990) (erroneous information held not subject to amendment if it is merely a “picayune” and immaterial error); Jones v. U.S. Dep’t of the Treasury, No. 82-2420, slip op. at 2-3 (D.D.C. Oct. 18, 1983) (ruling it reasonable for agency – without conducting its own investigation – to maintain record concerning unsubstantiated allegation of sexual misconduct by ATF agent conveyed to it by state and local authorities), aff’d, 744 F.2d 878 (D.C. Cir. 1984) (unpublished table decision); cf. Ramey v. U.S. Marshals Serv., 755 F. Supp. 2d 88, 97 (D.D.C. 2010) (finding that plaintiff who claimed that “the U.S. Marshals’s records which concluded that she [abandoned her post] are not accurate” had “not set forth specific facts showing a genuine issue for trial on the question of whether the U.S. Marshals relied on inaccurate information”); Griffin v. Ashcroft, No. 02-5399, 2003 WL 22097940, at *1 (D.C. Cir. Sept. 3, 2003) (per curiam) (finding that appellant had made no showing that the facts regarding information in his presentence investigation report were inaccurate and “even if the information were inaccurate, appellant [had] not shown the BOP either had no grounds to believe maintaining the information was lawful or that it flagrantly disregarded his rights under the Privacy Act”); Sullivan v. BOP, No. 94-5218, 1995 WL 66711, at *1 (D.C. Cir. Jan. 17, 1995) (even if plaintiff’s subsection (e)(5) claim were not time-barred, the “Parole Commission met the requirements of the Act by providing [plaintiff] with a parole revocation hearing at which he was represented by counsel and given the opportunity to refute the validity of his continued confinement”); Kirkland v. Gess-Valagobar, No. 1:08-CV-0239, 2008 WL 504394, at *4 (N.D. Ga. Feb. 21, 2008) (explaining that BOP properly included juvenile record in presentence report because Sentencing Guidelines permit consideration of juvenile adjudications in some cases); Holz v. Westphal, 217 F. Supp. 2d 50, 56-57 (D.D.C. 2002) (finding that report of investigation was not “accurate or complete as to ensure its fairness to [individual],” and requiring removal of individual’s name from report of  investigation when report contained notations of “Fatal  Traffic Accident” and “Negligent Homicide” without further explanation, which thus suggested commission of crime even though individual was never found guilty of offense); Pons v. U.S. Dep’t of the Treasury, No. 94-2250, 1998 U.S. Dist. LEXIS 5809, at *11-15 (D.D.C. Apr. 21, 1998) (entering judgment in favor of agency where agency presented “substantial evidence to suggest that [it] acted in the reasonable belief that there were no grounds to amend plaintiff’s records”; plaintiff failed to identify any records that contained alleged false statements and even if file did contain those statements, plaintiff never presented any evidence from which to conclude that statements were false); Smith v. BOP, No. 94-1798, 1996 WL 43556, at *3-4 (D.D.C. Jan. 31, 1996) (finding that plaintiff’s record was not inaccurate with respect to his pre-commitment status in light of Bureau of Prisons’ “full authority to promulgate rules governing the treatment and classification of prisoners” and “broad discretionary power,” and because there was “no evidence that the BOP’s interpretation of its own regulations was an abuse of discretion or discriminatorily administered,” “BOP officials reconsidered their decision at least once,” and “the determination of which plaintiff complains ha[d] been resolved in his favor”); Hampton v. FBI, No. 93-0816, slip op. at 3-6, 13-17 (D.D.C. June 30, 1995) (although not mentioning subsection (e)(5), finding that FBI “acted lawfully under the Privacy Act in the maintenance of the plaintiff’s arrest record” when FBI refused to expunge challenged entries of arrests that did not result in conviction absent authorization by local law enforcement agencies that had originally submitted the information); Buxton v. U.S. Parole Comm’n, 844 F. Supp. 642, 644 (D. Or. 1994) (subsection (e)(5) fairness standard satisfied where Parole Commission complied with statutory procedures regarding parole hearings even though it did not investigate or correct alleged inaccuracies in presentence report).

Erroneous facts – as well as opinions, evaluations, and subjective judgments based entirely on erroneous facts – can be amended. See, e.g., Hewitt v. Grabicki, 794 F.2d 1373, 1378 (9th Cir. 1986); Holz, 217 F. Supp. 2d at 56-57; Douglas v. Farmers Home Admin., 778 F. Supp. 584, 585 (D.D.C. 1991); Rodgers v. Dep’t of the Army, 676 F. Supp. 858, 860-61 (N.D. Ill. 1988); Ertell v. Dep’t of the Army, 626 F. Supp. 903, 910-12 (C.D. Ill. 1986); R.R. v. Dep’t of the Army, 482 F. Supp. 770, 773-74 (D.D.C. 1980); Murphy v. NSA, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,389, at 82,036 (D.D.C. Sept. 29, 1981); Trinidad v. U.S. Civil Serv. Comm’n, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,322, at 81,870-71 (N.D. Ill. Apr. 7, 1980); Turner v. Dep’t of the Army, 447 F. Supp. 1207, 1213 (D.D.C. 1978), aff’d, 593 F.2d 1372 (D.C. Cir. 1979). As the Court of Appeals for the Seventh Circuit has noted, “[t]he Privacy Act merely requires an agency to attempt to keep accurate records, and provides a remedy to a claimant who demonstrates that facts underlying judgments contained in his records have been discredited.”  DeBold, 735 F.2d at 1040-41.

In addition, one court has held that where records contain disputed hearsay and reports from informants and unnamed parties, “the records are maintained with adequate fairness if they accurately reflect the nature of the evidence” (i.e., indicate that the information is a hearsay report from an unnamed informant). Graham v. Hawk, 857 F. Supp. 38, 40 (W.D. Tenn. 1994), aff’d, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision); cf. Hass v. U.S. Air Force, 848 F. Supp. 926, 931 (D. Kan. 1994) (although acknowledging possibility that agency relied upon incorrect information in making determination about plaintiff, finding no Privacy Act violation because no evidence was suggested that information was recorded inaccurately).

As a general rule, courts are reluctant to disturb judgmental matters in an individual’s record when such judgments are based on a number of factors or when the factual predicates for a judgment or evaluation are diverse.As the D.C. Circuit has ruled, where a subjective evaluation is “based on a multitude of factors” and “there are various ways of characterizing some of the underlying [factual] events,” it is proper to retain and rely on the record. White v. OPM, 787 F.2d 660, 662 (D.C. Cir. 1986); see also Mueller v. Winter, 485 F.3d 1191, 1197 (D.C. Cir. 2007) (holding amendment claim to be “doom[ed]” where “subjective evaluation [was] based on a multitude of factors” and where “there [were] various ways of characterizing some of the underlying events”); Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995) (records were not based on demonstrably false premise, but rather on subjective evaluation “‘based on a multitude of factors’” (quoting White, 787 F.2d at 662)); Bernson v. ICC, 625 F. Supp. 10, 13 (D. Mass. 1984) (court cannot order amendment of opinions “to reflect the plaintiffs’ version of the facts”); cf. Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at *2-3 (10th Cir. Apr. 14, 1997) (although not mentioning subsection (e)(5), holding that appellant was not entitled to court-ordered amendment, nor award of damages, concerning record in her medical files that contained “physician’s notation to the effect that [appellant] was probably dependent upon a prescription medication,” as such notation “reflected the physician’s medical conclusion, which he based upon a number of objective factors and [appellant’s] own complaints of neck and low back pain,” and “Privacy Act does not permit a court to alter documents that accurately reflect an agency decision, no matter how contestable the conclusion may be”).

Many courts have held that pure opinions and judgments are not subject to amendment. See, e.g., Baker v. Winter, 210 F. App’x 16, 18 (D.C. Cir. 2006); Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir. 1999); Hewitt, 794 F.2d at 1378-79; Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir. 1980) (per curiam); Middlebrooks v. Mabus, No. 1:11cv46, 2011 WL 4478686, at *5 (E.D. Va. Sept. 23, 2011); Feldman v. CIA, 797 F. Supp. 2d 29, 46-47 (D.D.C. 2011); Washington v. Donley, 802 F. Supp. 2d 539, 553-54 (D. Del. 2011); Kursar, 751 F. Supp. 2d at 170-71, aff’d per curiam, 442 F. App’x 565; Hardy v. McHugh, 692 F. Supp. 2d 76, 80 (D.D.C. 2010); Patel v. United States, No. CIV-08-1168, slip op. at 14-17 (W.D. Okla. Oct. 9, 2009) (magistrate’s recommendation), adopted, 2009 WL 5168306 (W.D. Okla. Dec. 18, 2009), aff’d, 399 F. App’x 355, 360 (10th Cir. 2010); Register v. Lappin, No. 07-CV-136, 2007 WL 2020243, at *3 (E.D. Ky. July 6, 2007); Enigwe v. BOP, No. 06-457, 2006 WL 3791379, at *2 (D.D.C. Dec. 22, 2006); Toolasprashad v. BOP, No. 04-3219, 2006 WL 2627931, *4 (D.N.J. Sept. 13, 2006); Doyon v. DOJ, 304 F. Supp. 2d 32, 35 (D.D.C. 2004); Fields v. NRC, No. 98-1714, slip op. at 5-7 (D.D.C. May 12, 1999); Blazy v. Tenet, 979 F. Supp. 10, 20-21 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Gowan v. Dep’t of the Air Force, No. 90-94, slip op. at 28-30 (D.N.M. Sept. 1, 1995), aff’d, 148 F.3d 1182 (10th Cir. 1998); Webb, 880 F. Supp. at 25; Linneman v. FBI, No. 89-505, slip op. at 14 (D.D.C. July 13, 1992); Nolan v. DOJ, No. 89-A-2035, 1991 WL 134803, at *3 (D. Colo. July 17, 1991), appeal dismissed in pertinent part on procedural grounds, 973 F.2d 843 (10th Cir. 1992); Frobish v. U.S. Army, 766 F. Supp. 919, 926-27 (D. Kan. 1991); Daigneau v. United States, No. 88-54-D, slip op. at 3-4 (D.N.H. July 8, 1988); Brumley v. U.S. Dep’t of Labor, No. LR-C-87-437, slip op. at 4 (E.D. Ark. June 15, 1988), aff’d, 881 F.2d 1081 (8th Cir. 1989) (unpublished table decision); Tannehill v. U.S. Dep’t of the Air Force, No. 87-M-1395, slip op. at 2 (D. Colo. May 23, 1988); Rogers v. U.S. Dep’t of Labor, 607 F. Supp. 697, 699-700 (N.D. Cal. 1985); Fagot v. FDIC, 584 F. Supp. 1168, 1176 (D.P.R. 1984), aff’d in part & rev’d in part, 760 F.2d 252 (1st Cir. 1985) (unpublished table decision); DeSha v. Sec’y of the Navy, 3 Gov’t Disclosure Serv. (P-H) ¶ 82,496, at 82,251 (C.D. Cal. Feb. 26, 1982), aff’d, 780 F.2d 1025 (9th Cir. 1985) (unpublished table decision); Lee v. U.S. Dep’t of Labor, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,335, at 81,891 (D. Va. Apr. 17, 1980); Hacopian v. Marshall, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,312, at 81,856 (C.D. Cal. Apr. 16, 1980); Castle v. U.S. Civil Serv. Comm’n, No. 77-1544, slip op. at 5 (D.D.C. Jan. 23, 1979); Rowe v. Dep’t of the Air Force, No. 3-77-220, slip op. at 5 (E.D. Tenn. Mar. 20, 1978); cf. Strong v. OPM, 92 F. App’x 285, 289 (6th Cir. Mar. 16, 2004) (finding that OPM did not violate Privacy Act by refusing to remove reference’s statement as plaintiff failed to offer any evidence that reference’s statement was inaccurate or irrelevant); Davidson v. Daniels, No. 07-960, 2007 WL 3232608, at *2 (D. Or. Oct. 28, 2007) (“Respondent has no authority to alter court judgments. The correction of judgments i[s] the providence of the court.”); Doe v. DOJ, 660 F. Supp. 2d 31, 43 (D.D.C. 2009) (“[P]laintiff’s complaint objects to inaccurate ‘conclusions drawn by lay employees’ that were based on accurate records. . . . Thus, plaintiff objects not to erroneous . . . records but to misinterpretation of the records by DOJ employees, for which there is no remedy under the Privacy Act.”); Turner, 447 F. Supp. at 1212-13 (where a negative rating had been expunged and plaintiff’s prayer was “in essence” that the court “determine de novo ‘a fair and accurate’ rating as to the ‘quality’ of his service,” the court declined to add its opinion, stating that such a rating “is a highly subjective process which requires the opinions and judgments of military professionals”).

In determining what steps an agency must take in order to satisfy the accuracy standard of subsection (e)(5), the Court of Appeals for the District of Columbia Circuit has looked to whether the information at issue is capable of being verified. In Doe v. United States, 821 F.2d 694, 697-701 (D.C. Cir. 1987), the D.C. Circuit, sitting en banc, in a seven-to-four decision, held that the inclusion in a job applicant’s record of both the applicant’s and agency interviewer’s conflicting versions of an interview (in which only they were present) satisfies subsection (e)(5)’s requirement of maintaining reasonably accurate records. In rejecting the argument that the agency and reviewing court must themselves make a credibility determination of which version of the interview to believe, the D.C. Circuit ruled that subsections (e)(5) and (g)(1)(C) “establish as the record-keeper’s polestar, ‘fairness’ to the individual about whom information is gathered,” and that “the ‘fairness’ criterion does not demand a credibility determination in the atypical circumstances of this case.”  Id. at 699 (emphasis added); see also Harris v USDA, No. 96-5783, 1997 WL 528498, at *2-3 (6th Cir. Aug. 26, 1997) (ruling that the agency “reasonably excluded” information from the plaintiff’s record where there was “substantial evidence that the [information] was unreliable,” and in the absence of “verifiable information which contradicted its investigators’ records,” the agency “reasonably kept and relied on the information gathered by its investigators when it terminated plaintiff”); Graham, 857 F. Supp. at 40 (agency was under no obligation to resolve whether hearsay contained in report is true, so long as that information was characterized as hearsay); Doe v. FBI, No. 91-1252, slip op. at 6-7 (D.N.J. Feb. 27, 1992) (following Doe v. United States, 821 F.2d at 699, and holding that FBI fulfilled its obligations under Privacy Act by including plaintiff’s objections to statements contained in FBI polygrapher’s memorandum and by verifying to extent possible that polygraph was properly conducted).

Subsequently, the D.C. Circuit held that in a “typical” case, where the records at issue are “not ambivalent” and the facts described therein are “susceptible of proof,” the agency and reviewing court must determine accuracy as to each filed item of information. Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 866 (D.C. Cir. 1989). In order to “assure fairness” and render the record “complete” under subsection (e)(5), an agency may even be required to include contrary or qualifying information. See Strang v. U.S. Arms Control & Disarmament Agency, 920 F.2d 30, 32 (D.C. Cir. 1990); Kassel v. VA, 709 F. Supp. 1194, 1204-05 (D.N.H. 1989).

Adhering to its holding in Strang, the D.C. Circuit later held:

As long as the information contained in an agency’s files is capable of being verified, then, under sections (e)(5) and (g)(1)(C) of the Act, the agency must take reasonable steps to maintain the accuracy of the information to assure fairness to the individual. If the agency wilfully or intentionally fails to maintain its records in that way and, as a result, it makes a determination adverse to an individual, then it will be liable to that person for money damages. . . . [T]he agency did not satisfy the requirements of the Privacy Act simply by noting in [the individual’s] files that he disputed some of the information the files contained.

Sellers, 959 F.2d at 312. (It is worth noting that Sellers was solely a subsection (e)(5)/(g)(1)(C) case; the system of records at issue was exempt from subsection (d).)  See also McCready v. Nicholson, 465 F.3d 1, 19 (D.C. Cir. 2006) (citing Sellers and Doe and remanding because court “fail[ed] to see how [plaintiff’s] presence at a meeting is not a ‘fact’ capable of verification and why the [agency] need not correct that fact or show that it took reasonable steps to verify its accuracy”); Martinez v. BOP, 444 F.3d 620, 624 (D.C. Cir. 2006) (dicta) (explaining that BOP had contacted U.S. Parole Commission and U.S. Probation Office and was advised that BOP’s records were accurate); Toolasprashad v. BOP, 286 F.3d 576, 583 (D.C. Cir. 2002) (citing Sellers and Doe and remanding so that “typicality issue” may be resolved and so that agency can prove inmate had a “significant documented history of harassing and demeaning staff members”); Griffin v. U.S. Parole Comm’n, No. 97-5084, 1997 U.S. App. LEXIS 22401, at *3-5 (D.C. Cir. July 16, 1997) (citing Doe and Deters, and finding itself presented with “typical” case in which information was capable of verification; therefore vacating district court opinion that had characterized case as “atypical”), vacating & remanding No. 96-0342, 1997 U.S. Dist. LEXIS 2846 (D.D.C. Mar. 11, 1997); Deters, 85 F.3d at 658-59 (quoting Sellers and Doe, and although finding itself presented with “an atypical case because the ‘truth’ . . . is not readily ascertainable . . . assum[ing] without concluding that the Commission failed to maintain Deters’s records with sufficient accuracy,” because Commission had “not argued that this was an atypical case”); Lopez v. Huff, 508 F. Supp. 2d 71, 77-78 (D.D.C. 2007) (finding that “BOP satisfied its [Privacy Act] obligations by contacting the appropriate [U.S. Probation Office] to verify the accuracy of the challenged information”); Brown v. U.S. Prob. Office, No. 03-872, 2005 WL 2284207, at *3 (E.D. Tex. Aug. 15, 2005) (concluding that BOP’s maintenance of inmate’s presentence report satisfied subsection (e)(5) because BOP “took affirmative steps to verify the information by contacting the state court and the probation officer who prepared the [report]”); Blazy, 979 F. Supp. at 20-21 (citing Sellers and Doe, and finding that alleged inaccuracies were either nonexistent, corrected, or “unverifiable opinions of supervisors, other employees and/or informants”); Bayless v. U.S. Parole Comm’n, No. 94CV0686, 1996 WL 525325, at *5 (D.D.C. Sept. 11, 1996) (citing Sellers and Doe, and finding itself presented with an “atypical” case because “truth concerning plaintiff[‘]s culpability in the conspiracy and the weight of drugs attributed to him involves credibility determinations of trial witnesses and government informants and, therefore, is not ‘clearly provable’”); Webb, 880 F. Supp. at 25 (finding that record at issue contained “justified statements of opinion, not fact” and “[c]onsequently, they were not ‘capable of being verified’ as false and cannot be considered inaccurate statements” (quoting Sellers, 959 F.2d at 312, and citing Doe, 821 F.2d at 699)); Thomas v. U.S. Parole Comm’n, No. 94-0174, 1994 WL 487139, at *4-6 (D.D.C. Sept. 7, 1994) (discussing Doe, Strang, and Sellers, but finding that the Parole Commission “verified the external ‘verifiable’ facts”; further holding that the plaintiff should not be allowed to use the Privacy Act “to collaterally attack the contents of his presentence report,” as he “originally had the opportunity to challenge the accuracy . . . before the judge who sentenced him”); Linneman, No. 89-505, slip op. at 11-22 (D.D.C. July 13, 1992) (applying Sellers and Doe to variety of items of which plaintiff sought amendment).

The D.C. Circuit has noted that where “an agency has no subsection (d) duty to amend, upon request, it is not clear what residual duty subsection (e)(5) imposes when an individual challenges the accuracy of a record.”  Deters, 85 F.3d at 658 n.2. It went on to question whether subsection (e)(5) would still require an agency to amend or expunge upon the individual’s request, or whether the agency merely must “address the accuracy of the records at some point before using it to make a determination of consequence to the individual.”  Id.  Although stating that the Sellers opinion was “not entirely clear on this point,” the D.C. Circuit reasoned that “the language of subsection (e)(5) . . . suggests the latter course.”  Id. (citing OMB Guidelines, 40 Fed. Reg. 28,948, 28,964 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. The court went on to state that subsection (e)(5) suggests that an agency has “no duty to act on an [individual’s] challenge and verify his record until the agency uses the record in making a determination affecting his rights, benefits, entitlements or opportunities,” 85 F.3d at 660; see also Bayless, 1996 WL 525325, at *6 n.19 (quoting Deters and determining that the agency “fulfilled its requisite duty by ‘addressing’ plaintiff’s allegations prior to rendering a parole determination”); cf. Bassiouni v. FBI, No. 02-8918, 2003 WL 22227189, at *5 (N.D. Ill. Sept. 26, 2003) (holding that agency’s denial to amend alleged inaccurate records about plaintiff was in and of itself a “determination” under subsection (e)(5)), aff’d on other grounds, 436 F.3d 712 (7th Cir. 2006).

The Court of Appeals for the Ninth Circuit has held that an agency can comply with subsection (e)(5) by simply including a complainant’s rebuttal statement with an allegedly inaccurate record. Fendler v. BOP, 846 F.2d 550, 554 (9th Cir. 1988) (subsections (e)(5) and (g)(1)(C) lawsuit); see also Graham, 857 F. Supp. at 40 (citing Fendler and holding that where individual disputes accuracy of information that agency has characterized as hearsay, agency satisfies subsection (e)(5) by permitting individual to place rebuttal in file); cf. Harris, No. 96-5783, 1997 WL 528498, at *2 (6th Cir. Aug. 26, 1997) (although holding that exclusion of information from appellant’s record due to unreliability of information was reasonable, finding it “notabl[e]” that the appellant had not contested the district court’s finding that the agency “did not prevent him from adding to the file his disagreement with the [agency] investigators’ conclusions”). Fendler thus appears to conflict with both Doe and Strang, as well as with the D.C. Circuit’s earlier decision in Vymetalik v. FBI, 785 F.2d 1090, 1098 n.12 (D.C. Cir. 1986) (noting that subsection (d)(2) “guarantees an individual the right to demand that his or her records be amended if inaccurate” and that mere inclusion of rebuttal statement was not “intended to be [the] exclusive [remedy]”).

The District Court for the District of Columbia has considered a subsection (e)(5)/(g)(1)(C) claim alleging not inaccuracy, but irrelevancy. Gerlich v. DOJ, 659 F. Supp. 2d 1 (D.D.C. 2009). The plaintiffs, who had applied to work for the Justice Department, alleged that two members of the selection committee had taken the plaintiffs’ political and ideological associations into account in deselecting them for interviews. Id. at 6. Specifically, the plaintiffs alleged that one official “conducted Internet searches regarding candidates’ political and ideological affiliations, printed out such information when it revealed liberal associations and then attached the printouts and her own handwritten comments to the candidates’ applications in support of her recommendations to deselect them.”  Id.  The court noted that “[m]ost ‘adverse determination’ claims hinge on inaccurate or incomplete records.”  Id. at 15. Here, however, the plaintiffs alleged that “irrelevant records (i.e., the records of their First Amendment activities) led to an adverse determination against them (i.e., deselection by the Screening Committee).”  Id.  The court rejected the Department’s argument that the plaintiffs’ failure to allege any inaccuracy was grounds for dismissal of plaintiffs’ (e)(5) claim:  “By the plain language of (g)(1)(C), relevance stands on equal footing with accuracy, timeliness and completeness as a basis for pursuing money damages for an adverse determination.”  Id. at 15-16. The court then concluded that “plaintiffs have met their pleading burden with respect to their subsection (e)(5) claim” because they alleged “that they suffered an adverse determination (deselection/non-hiring), that DOJ maintained irrelevant records (regarding plaintiffs’ First Amendment activities) which undermined the fairness of the hiring process, that DOJ’s reliance on those records (or the reliance of its employees . . .) proximately caused the adverse determination, and that DOJ (again, through its employees . . .) acted intentionally or willfully in maintaining such records.”  Id. at 16.

In Chapman v. NASA, 682 F.2d 526, 528-30 (5th Cir. 1982), the Court of Appeals for the Fifth Circuit recognized a “timely incorporation” duty under subsection (e)(5). It ruled that a supervisor’s personal notes “evanesced” into Privacy Act records when they were used by the agency to effect an adverse disciplinary action, and that such records must be placed into the employee’s file “at the time of the next evaluation or report on the employee’s work status or performance.”  Id. at 529. In reversing the district court’s ruling that such notes were not records within a system of records, the Fifth Circuit noted that such incorporation ensures fairness by allowing employees a meaningful opportunity to make refutatory notations, and avoids an “ambush” approach to maintaining records. Id.; see also Thompson v. Dep’t of Transp. U.S. Coast Guard, 547 F. Supp. 274, 283-84 (S.D. Fla. 1982) (explaining Chapman). Chapman’s “timely incorporation” doctrine has been followed in several other cases. See, e.g., MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 2-5 (M.D. Fla. Feb. 8, 1988) (counseling memorandum used in preparation of proficiency report “became” part of VA system of records); Lawrence v. Dole, No. 83-2876, slip op. at 5-6 (D.D.C. Dec. 12, 1985) (notes not incorporated in timely manner cannot be used as basis for adverse employment action); Waldrop v. U.S. Dep’t of the Air Force, 3 Gov’t Disclosure Serv. (P-H) ¶ 83,016, at 83,453 (S.D. Ill. Aug. 5, 1981) (certain records at issue became Privacy Act “records”; others were merely “memory joggers”); Nelson v. EEOC, No. 83-C-983, slip op. at 6-11 (E.D. Wis. Feb. 14, 1984) (memorandum was used in making determination about an individual and therefore must be included in system of records and made available to individual); cf. Hudson v. Reno, 103 F.3d 1193, 1205-06 & n.9 (6th Cir. 1997) (distinguishing facts in Chapman and holding that supervisor’s “notes about [p]laintiff’s misconduct which were kept in a locked drawer and labeled the ‘First Assistant’s’ files do not fall within th[e system of records] definition,” as they “were not used to make any determination with respect to [p]laintiff”); Manuel v. VA, 857 F.2d 1112, 1117-19 (6th Cir. 1988) (no duty to place records within system of records where records “are not part of an official agency investigation into activities of the individual requesting the records, and where the records requested do not have an adverse effect on the individual”); Magee v. United States, 903 F. Supp. 1022, 1029-30 (W.D. La. 1995) (plaintiff’s file kept in a supervisor’s desk, separate from other employee files, because of plaintiff’s concerns about access to it and with plaintiff’s acquiescence, did “not fall within the proscriptions of maintaining a ‘secret file’ under the Act”), aff’d, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision).

Also note that subsection (e)(5)’s “timeliness” requirement does not require that agency records contain only information that is “hot off the presses.”  White v. OPM, 787 F.2d 660, 663 (D.C. Cir. 1986) (rejecting argument that use of year-old evaluation violates Act, as it “would be an unwarranted intrusion on the agency’s freedom to shape employment application procedures”); see also Beckette v. USPS, No. 88-802, slip op. at 12-14 (E.D. Va. July 3, 1989) (stating that “[a]ll of the record maintenance requirements of subsection 552a(e)(5), including timeliness, concern fairness,” and finding that as to records regarding “restricted sick leave,” “[w]iping the . . . slate clean after an employee has remained off the listing for only six months is not required to assure fairness to the individual”; also finding that maintenance of those records for six months after restricted sick leave had been rescinded “did not violate the relevancy requirement of subsection 552a(e)(5)”).

Finally, the Court of Appeals for the Fourth Circuit has held that subsection (e)(5) is “not violated by the destruction of [a] record” that is destroyed “pursuant to [agency] records retention policy.”  Vaughn v. Danzig, 18 F. App’x 122, 124-25 (4th Cir. 2001) (per curiam) (where Navy maintained the record at issue in its files “at the time of the adverse action,” the subsequent routine destruction of the record was proper and, indeed, plaintiff “cited no authority” to show that “the Privacy Act requires that records be maintained in perpetuity”).

For a further discussion of subsection (e)(5), see OMB Guidelines, 40 Fed. Reg. 28,948, 28,964-65 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf.

F. 5 U.S.C. § 552a(e)(6)

“prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section [FOIA], make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.”

Comment:
                                               
This provision requires a reasonable effort by the agency to review records prior to their dissemination. See NTEU v. IRS, 601 F. Supp. 1268, 1272 (D.D.C. 1985); see also Stewart v. FBI, No. 97-1595, slip op. at 4 (D. Or. Mar. 12, 1999) (provision violated where agency failed to establish that it conducted reasonable efforts to ensure the accuracy of information “‘of a factual nature’” that was “‘capable of being verified’”), withdrawn by stipulation as part of settlement, No. 97-1595, 2000 WL 739253 (D. Or. May 12, 2000); Gang v. Civil Serv. Comm’n, No. 76-1263, slip op. at 2-5 (D.D.C. May 10, 1977) (provision violated where agency failed to review personnel file to determine relevance and timeliness of dated material concerning political activities before disseminating it to Library of Congress).

The District Court for the District of Columbia has held that an agency was not liable under subsection (e)(6) for damages for the dissemination of information that plaintiff had claimed was inaccurate but that the court determined consisted of statements of opinion and subjective evaluation that were not subject to amendment. Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995); see also Pontecorvo v. FBI, No. 00-1511, slip op. at 20 (D.D.C. Sept. 30, 2001) (finding that “if the information gathered and contained within an individual’s background records is the subjective opinion of witnesses, it is incapable of being verified as false and cannot constitute inaccurate statements under the Privacy Act”); cf. Bhatia v. Office of the U.S. Attorney, N. Dist. Of Cal., No. C 09-5581, 2011 WL 1298763, at *6-7 (N.D. Cal. Mar. 29, 2011) (plaintiff failed to state a claim under § 552a(e)(6) because “the documents cited by [plaintiff] [do] not establish that the allegations in the pending criminal indictment are inaccurate”); Doe v. DOJ, 660 F. Supp. 2d 31, 43 (D.D.C. 2009) (concluding that “[b]ecause plaintiff has failed to show that there was an ‘error in the records,’ . . . he cannot succeed under . . . (e)(6)”).

The District Court for the Southern District of California has also considered a claim under subsection (e)(6), and in doing so took into account the requirements of causation and intentional and willful wrongdoing in Privacy Act damages actions, discussed below. Guccione v. Nat’l Indian Gaming Comm’n, No. 98-CV-164, 1999 U.S. Dist. LEXIS 15475, at *14-19 (S.D. Cal. Aug. 5, 1999). The court found that an administrative hearing concerning inconsistencies in plaintiff’s employment application “smacked generally of reprimand even though no talismanic phrases akin to reprimand were used,” and that therefore “there was no ‘intentional’ or ‘willful’ misconduct in the [agency’s] use of the term reprimand,” nor was there sufficient causation where the recipients of the information also had reviewed the transcript of the administrative hearing and could draw their own conclusions. Id. at *16-19.  
            
In addition, the District Court for the District of Columbia has concluded that regulations promulgated by the Department of Health and Human Services pursuant to the Health Care Quality Improvement Act, which concern collection and dissemination of information contained in the National Practitioners’ Data Bank, do not supercede the more stringent protections provided by subsection (e)(6) of the Privacy Act. Doe v. Thompson, 332 F. Supp. 2d 124, 129-32 (D.D.C. 2004).

By its terms, this provision does not apply to intra- or inter-agency disclosures, see Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 21-22 (D.D.C. 2005), or to mandatory FOIA disclosures, see Smith v. United States, 817 F.2d 86, 87 (10th Cir. 1987); Kassel v. VA, 709 F. Supp. 1194, 1205 & n.5 (D.N.H. 1989); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,965 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf.

G. 5 U.S.C. § 552a(e)(7)

“maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.”

Comment:

The OMB Guidelines advise agencies in determining whether a particular activity constitutes exercise of a right guaranteed by the First Amendment to “apply the broadest reasonable interpretation.”  40 Fed. Reg. 28,948, 28,965 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf; see also 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 860, available at http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf. As noted above, Albright v. United States establishes that the record at issue need not be within a system of records to violate subsection (e)(7). 631 F.2d 915, 918-20 (D.C. Cir. 1980); see also Maydak v. United States, 363 F.3d 512, 516-20 (D.C. Cir. 2004); MacPherson v. IRS, 803 F.2d 479, 481 (9th Cir. 1986); Boyd v. Sec’y of the Navy, 709 F.2d 684, 687 (11th Cir. 1983) (per curiam); Clarkson v. IRS, 678 F.2d 1368, 1373-77 (11th Cir. 1982); Gerlich v. DOJ, 659 F. Supp. 2d 1, 13-15 (D.D.C. 2009); McCready v. Principi, 297 F. Supp. 2d 178, 187 (D.D.C. 2003), aff’d in part & rev’d in part on other grounds sub nom. McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006); Fagot v. FDIC, 584 F. Supp. 1168, 1175 (D.P.R. 1984), aff’d in part & rev’d in part, 760 F.2d 252 (1st Cir. 1985) (unpublished table decision). See also the discussion under “System of Records:  Other Aspects,” above. However, the record at issue does need to be considered a “record” under the Privacy Act for subsection (e)(7) to be applicable. See e.g., Houghton v. U.S. Dep’t of State, No. 11-0869, 2012 WL 2855868, at *12 (D.D.C. July 12, 2012) (finding that transcripts containing reference to plaintiff’s work were not “about” plaintiff, and therefore, not a record under Privacy Act to implicate application of subsection (e)(7)); Iqbal v. FBI, No. 3:11-cv-369, 2012 WL 2366634, at *5 (M.D. Fla. June 21, 2012)  (finding allegation in complaint that stated “the agents [took] notes to aid the creation of official reports” sufficient to “satisfy the requirement that the agency maintain[ed] a record” in order to invoke application of subsection (e)(7)).
 
The record at issue also “must implicate an individual’s First Amendment rights.”  Boyd, 709 F.2d at 684; accord Banks v. Garrett, 901 F.2d 1084, 1089 (Fed. Cir. 1990); see also  Elnashar v. DOJ, 446 F.3d 792, 794-95 (8th Cir. 2006) (explaining that plaintiff “failed to identify how his First Amendment rights were implicated” when FBI contacted him “to determine whether he had expertise with chemical weapons”); Reuber v. United States, 829 F.2d 133, 142-43 (D.C. Cir. 1987) (noting threshold requirement that record itself must describe First Amendment-protected activity);  Iqbal, 2012 WL 2366634, at *5 (same); Gerlich, 659 F. Supp. 2d at 13-15 (same); Pototsky v. Dep’t of the Navy, 717 F. Supp. 20, 22 (D. Mass. 1989) (same), aff’d, 907 F.2d 142 (1st Cir. 1990) (unpublished table decision). Thus, subsection (e)(7) is not triggered in the first place unless the record describes First Amendment-protected activity. See, e.g., Maydak, 363 F.3d at 516 (finding “it obvious that photographs of prisoners visiting with family, friends, and associates depict the exercise of associational rights protected by the First Amendment”); England v. Comm’r, 798 F.2d 350, 352-53 (9th Cir. 1986) (record identifying individual as having “tax protester” status does not describe how individual exercises First Amendment rights); Iqbal, 2012 WL 2366634, at *5 (allegation that FBI “agents were monitoring [plaintiff] during prayer and later commented on those prayers” was “sufficient (if barely so) to support an inference that the notes maintained by the FBI implicated [plaintiff’s] exercise of his First Amendment rights.”); Kvech v. Holder, No. 10-cv-545, 2011 WL 4369452, at *6 (D.D.C. Sept. 19, 2011) (citing Maydak and finding argument that “the non-marital, non-familial relationship between [plaintiff] and the detective is not the type protected as freedom of expression under the First Amendment” to be “contrary to precedent”); Ramey v. U.S. Marshals Serv., 755 F. Supp. 2d 88, 97-98 (D.D.C. 2010) (“[Plaintiff’s] statements to the Chief Judge were made in the course of her duties as a [court security officer] and receive no First Amendment protection.”); Gerlich, 659 F. Supp. 2d at 13 (holding that plaintiff job applicants “met their pleading burden” where they alleged that agency official “conducted Internet searches regarding applicants’ political and ideological affiliations” and “either created printouts of such information or made written comments on the applications throughout the process concerning the liberal affiliations of candidates”); Krieger v. DOJ, 529 F. Supp. 2d 29, 51-52 (D.D.C. 2008) (finding that documents announcing speeches to be given by plaintiff and complaints filed by plaintiff against his former law firm described how plaintiff exercises First Amendment rights); Weeden v. Frank, No. 1:91CV0016, slip op. at 7-8 (N.D. Ohio Apr. 10, 1992) (to read subsection (e)(7) as requiring a privacy waiver for the agency to even file plaintiff’s request for religious accommodation is “a broad and unreasonable interpretation of subsection (e)(7)”; however, agency would need to obtain waiver to collect information in order to verify plaintiff’s exercise of religious beliefs), aff’d, 16 F.3d 1223 (6th Cir. 1994) (unpublished table decision); Cloud v. Heckler, 3 Gov’t Disclosure Serv. (P-H) ¶ 83,230, at 83,962 (W.D. Ark. Apr. 21, 1983) (maintenance of employee’s letters criticizing agency – written while on duty – does not violate subsection (e)(7) because “[p]oor judgment is not protected by the First Amendment”).

Assuming that the challenged record itself describes activity protected by the First Amendment, subsection (e)(7) is violated unless maintenance of the record is:

  1. (1). expressly authorized by statute, see, e.g., Abernethy v. IRS, 909 F. Supp. 1562, 1570 (N.D. Ga. 1995) (IRS “authorized by statute” to maintain copies of documents relevant to processing of plaintiff’s requests under FOIA and Privacy Act, which both “provide implied authorization to federal agencies to maintain copies for their own records of the documents which are released to requesters under those Acts”), aff’d per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997); Hass v. U.S. Air Force, 848 F. Supp. 926, 930-31 (D. Kan. 1994) (agency’s maintenance of FOIA and Privacy Act requests “cannot logically violate the Privacy Act”); Attorney Gen. of the United States v. Irish N. Aid Comm., No. 77-708, 1977 U.S. Dist. LEXIS 13581, at *14 (S.D.N.Y. Oct. 7, 1977) (Foreign Agents Registration Act); OMB Guidelines, 40 Fed. Reg. at 28,965, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf (Immigration and Nationality Act); cf. Abernethy, 909 F. Supp. at 1570 (maintenance of documents in congressional communications files “does not violate the Privacy Act” because IRS “must respond to Congressional inquiries” and maintenance was necessary to carry out that responsibility (citing Internal Revenue Manual 1(15)29, Chapter 500, Congressional Communications)); Gang v. U.S. Civil Serv. Comm’n, No. 76-1263, slip op. at 5-7 & n.5 (D.D.C. May 10, 1977) (recognizing that 5 U.S.C. § 7311, which prohibits individual from holding position with federal government if he advocates – or is member of organization that he knows advocates – overthrow of government, may be read together with subsection (e)(7) as permitting maintenance of files relating to membership in such groups, but ruling that “it cannot fairly be read to permit wholesale maintenance of all materials relating to political beliefs, association, and religion”; nor does 5 U.S.C. § 3301, which authorizes President to ascertain fitness of federal applicants for employment as to character, provide authorization for maintenance of such information); or

    (2). expressly authorized by the individual about whom  the record is maintained, see Abernethy, 909 F. Supp. at 1570 (“Plaintiff authorized the maintenance of the documents at issue by submitting copies to various components of the Defendant IRS.”); OMB Guidelines, 40 Fed. Reg. at 28,965, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf (“volunteered” information is properly maintained); see also Radford v. SSA, No. 81-4099, slip op. at 4-5 (D. Kan. July 11, 1985) (plaintiff’s publication of contents of offending record does not constitute “express authorization”); Murphy v. NSA, 2 Gov’t Disclosure Serv. (P-H) ¶ 81,389, at 82,036 (D.D.C. Sept. 29, 1981) (consent to maintain may be withdrawn); cf. Weeden v. Frank, No. 93-3681, 1994 WL 47137, at *2 (6th Cir. Feb. 16, 1994) (Postal Service’s procedure requiring individual to expressly waive subsection (e)(7) Privacy Act rights in order to allow agency to collect information regarding employee’s exercise of religious beliefs so that accommodation could be established held not unreasonable); or

    (3). pertinent to and within the scope of an authorized law enforcement activity. Perhaps the leading precedent in the early case law on the “law enforcement activity” exception is Patterson v. FBI, 893 F.2d 595, 602-03 (3d Cir. 1990), a case that attracted national media attention because of its unusual factual background. An elementary school student, in the lawful exercise of his constitutional rights to write an encyclopedia of the world based upon requests to 169 countries for information, became the subject of an FBI national security investigation. The Court of Appeals for the Third Circuit, in affirming the dismissal of the student’s subsection (e)(7) claim, ruled that a standard of “relevance” to a lawful law enforcement activity is “more consistent with Congress’s intent and will prove to be a more manageable standard than employing one based on ad-hoc review.”  Id. at 603.

The “relevance” standard articulated in Patterson had earlier been recognized by the Court of Appeals for the Sixth Circuit in Jabara v. Webster, 691 F.2d 272, 279-80 (6th Cir. 1982), a case involving a challenge to the FBI’s maintenance of investigative records regarding surveillance of the plaintiff’s overseas communications. In Jabara, the Sixth Circuit vacated as “too narrow” the district court’s ruling that the exception is limited to “investigation of past, present or future criminal activity.”  Id.  It held that the exception applies where the record is “relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.”  Id. at 280.

In MacPherson v. IRS, 803 F.2d at 482-85, the Court of Appeals for the Ninth Circuit ruled that the applicability of the exception could be assessed only on an “individual, case-by-case basis” and that a “hard and fast standard” was inappropriate. On the facts before it, however, the Ninth Circuit upheld the maintenance of notes and purchased tapes of a tax protester’s speech as “necessary to give the IRS [and Justice Department] a complete and representative picture of the events,” notwithstanding that no investigation of a specific violation of law was involved and no past, present or anticipated illegal conduct was revealed or even suspected. Id.  The Ninth Circuit cautioned, though, that its holding was a narrow one tied to the specific facts before it. Id. at 485 n.9.

In Clarkson v. IRS, 678 F.2d at 1374-75 – a case involving facts similar to those of MacPherson in that it likewise involved a challenge to the IRS’s maintenance of records regarding surveillance of a tax protester’s speech – the Court of Appeals for the Eleventh Circuit quoted with approval the standard set forth by the district court decision in Jabara (subsequently vacated and remanded by the Sixth Circuit) and held that the exception does not apply if the record is “unconnected to any investigation of past, present or anticipated violations of statutes [the agency] is authorized to enforce.”  On remand, the district court upheld the IRS’s maintenance of the surveillance records as “connected to anticipated violations of the tax statutes” inasmuch as such records “provide information relating to suggested methods of avoiding tax liability” and aid in the “identification of potential tax violators.”  Clarkson v. IRS, No. C79-642A, slip op. at 6-10 (N.D. Ga. Dec. 27, 1984), aff’d per curiam, 811 F.2d 1396 (11th Cir. 1987); accord Tate v. Bindseil, 2 Gov’t Disclosure Serv. (P-H) ¶ 82,114, at 82,427 (D.S.C. Aug. 4, 1981) (“[An] IRS investigation of activist organizations and individuals prominently associated with those organizations which advocate resistance to the tax laws by refusing to file returns or filing blank returns is a legitimate law enforcement activity.”).
 
In initially addressing the law enforcement exception, the Court of Appeals for the Seventh Circuit, although recognizing the “varying views” adopted by other courts of appeals, had adopted what seems to be the most strict application of the law enforcement exception to date. The Seventh Circuit ordered the IRS to expunge information in a closed investigative file, based upon its determination, through in camera inspection, that it could not “be helpful in future enforcement activity.”  Becker v. IRS, 34 F.3d 398, 408-09 (7th Cir. 1994); cf. J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 607 (D.C. Cir. 1996) (Tatel, J., dissenting) (opining in favor of requirement that information be maintained only if pertinent to current law enforcement activity). In so ruling, the Seventh Circuit appeared to confusingly engraft the timeliness requirement of subsection (e)(5) onto subsection (e)(7). See Becker, 34 F.3d at 409 & n.28. Additionally, the Seventh Circuit appeared to confuse the district court’s determination that the information was exempt from access under subsection (k)(2) with the district court’s further ruling that the information also satisfied the requirements of subsection (e)(7). See id. at 407-08; see also Becker v. IRS, No. 91 C 1203, 1993 WL 114612, at *1 (N.D. Ill. Apr. 13, 1993). 

The Court of Appeals for the District of Columbia Circuit was faced with interpreting the law enforcement exception in J. Roderick MacArthur Found. v. FBI, 102 F.3d 600 (D.C. Cir. 1996). In MacArthur, the D.C. Circuit rejected the appellants’ arguments, which were based on Becker, stating that “the court’s analysis of § (e)(7) in Becker is neither clear nor compelling,” and that the Seventh Circuit had “set out to determine the meaning ‘of the “law enforcement purpose” phrase of § 552a(e)(7)’ not realizing that the phrase used in the Privacy Act is ‘authorized law enforcement activity’” and that the Seventh Circuit “appears to have confused § 552a(e)(7) with § 552a(k)(2).”  102 F.3d at 603. In MacArthur, the appellant did not challenge the FBI’s having collected the information about him, but rather claimed that the FBI could not maintain or retain such information unless there was a “current law enforcement necessity to do so.”  Id. at 602. The D.C. Circuit, however, realizing that “[m]aterial may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed,” id. at 602-03, ruled that “[i]nformation that was pertinent to an authorized law enforcement activity when collected does not later lose its pertinence to that activity simply because the information is not of current interest (let alone ‘necessity’) to the agency,” id. at 603. The panel majority went on to hold:

[T]he Privacy Act does not prohibit an agency from maintaining records about an individual’s [F]irst [A]mendment activities if the information was pertinent to an authorized law enforcement activity when the agency collected the information. The Act does not require an agency to expunge records when they are no longer pertinent to a current law enforcement activity.

Id. at 605. In its conclusion, the D.C. Circuit stated that subsection (e)(7) “does not by its terms” require an agency to show that information is pertinent to a “currently” authorized law enforcement activity, and that it found “nothing in the structure or purpose of the Act that would suggest such a reading.”  Id. at 607.

More recently, the Court of Appeals for the Seventh Circuit again addressed the law enforcement exception, but in the context of national security, and reached a conclusion similar to that in MacArthur. See Bassiouni v. FBI, 436 F.3d 712, 723-25 (7th Cir. 2006). At issue in Bassiouni was whether the law enforcement exception covered the FBI’s maintenance of records pertaining to a law professor who once presided over two Arab-American associations. Id. at 724. The court noted that “the realm of national security belongs to the executive branch, and we owe considerable deference to that branch’s assessment of matters of national security.”  Id. at 724. The court then rejected the plaintiff’s argument that the FBI must be “currently involved in a law enforcement investigation” for the exception to apply to the records at issue, concluding that the FBI was not “required to purge, on a continuous basis, properly collected information with respect to individuals that the agency has good reason to believe may be relevant on a continuing basis in the fulfillment of the agency’s statutory responsibilities.”  Id. at 724-25.

Several other courts have upheld the exception’s applicability in a variety of contexts. See Doe v. FBI, 936 F.2d 1346, 1354-55, 1360-61 (D.C. Cir. 1991) (although holding that appellant was foreclosed from obtaining relief because he had “not suffered any adverse effect,” stating that to extent appellant’s argument as to violation of subsection (e)(7) was directed to underlying FBI records concerning investigation of appellant’s “unauthorized possession of an explosive device” and reported advocacy of “violent overthrow of the Government,” subsection (e)(7) was not violated as “‘law enforcement activity’ exception applies”); Wabun-Inini v. Sessions, 900 F.2d 1231, 1245-46 (8th Cir. 1990) (FBI maintenance of photographs seized with probable cause); Jochen v. VA, No. 88-6138, slip op. at 6-7 (9th Cir. Apr. 5, 1989) (VA evaluative report concerning operation of VA facility and job performance of public employee that contained remarks by plaintiff); Nagel v. HEW, 725 F.2d 1438, 1441 & n.3 (D.C. Cir. 1984) (citing Jabara with approval and holding that records describing statements made by employees while at work were properly maintained “for evaluative or disciplinary purposes”); Iqbal, 2012 WL 2366634, at *5 (finding “any records connected to FBI’s question” regarding an email sent to TSA where agents threatened to charge plaintiff with a crime “would be pertinent to and within the scope of an authorized law enforcement activity”); Falwell v. Executive Office of the President, 158 F. Supp. 2d 734, 742-43 (W.D. Va. 2001) (holding that the FBI did not violate subsection (e)(7) by maintaining a document entitled “The New Right Humanitarians” in its files, “because the document pertained to and was within the scope of a duly authorized FBI counterintelligence investigation” of the Communist Party USA); Abernethy, 909 F. Supp. at 1566, 1570 (holding that maintenance of newspaper article that quoted plaintiff on subject of reverse discrimination and “Notice of Potential Class Action Complaint” were “relevant to and pertinent to authorized law enforcement activities” as they appeared in file pertaining to EEO complaint in which plaintiff was complainant’s representative and was kept due to belief that a conflict of interest might exist through plaintiff’s representation of complainant and, citing Nagel, holding that maintenance was also “valid” in files concerning possible disciplinary action against plaintiff); Maki v. Sessions, No. 1:90-CV-587, 1991 U.S. Dist. LEXIS 7103, at *27-28 (W.D. Mich. May 29, 1991) (holding that, although plaintiff claimed FBI investigation was illegal, the uncontested evidence was that plaintiff was the subject of an authorized investigation by FBI); Kassel v. VA, No. 87-217-S, slip op. at 27-28 (D.N.H. Mar. 30, 1992) (citing Nagel and Jabara, inter alia, and holding that information about plaintiff’s statements to media fell within ambit of administrative investigation); Pacheco v. FBI, 470 F. Supp. 1091, 1108 n.21 (D.P.R. 1979) (“all investigative files of the FBI fall under the exception”); AFGE v. Schlesinger, 443 F. Supp. 431, 435 (D.D.C. 1978) (reasonable steps taken by agencies to prevent conflicts of interest are within exception); see also Felsen v. HHS, No. 95-975, slip op. at 68-72 (D. Md. Sept. 30, 1998) (although not deciding whether report described First Amendment activity, finding no violation of subsection (e)(7) where report was relevant to authorized law enforcement activity of HHS and also was related to possible past violation of statute that HHS is empowered to enforce). But see Maydak, 363 F.3d at 516-17 (remanding to district court to determine whether portions of BOP’s declarations stating that certain institutions maintained and reviewed “photographs of prisoners visiting with family, friends and associates” for “investigative and informative value” is consistent with subsection (e)(7)’s law enforcement exception); Levering v. Hinton, No. 2:07-CV-989, 2008 WL 4425961, at *8 (S.D. Ohio Sept. 25, 2008) (refusing to apply law enforcement exception to maintenance of “running record of practically all of Plaintiff’s speech at work”).

Finally, even if records are found to be maintained in violation of subsection (e)(7), it does not follow that those records must be disclosed. See Bassiouni v. CIA, 392 F.3d. 244, 247-48 (7th Cir. 2004); see also Irons v. Bell, 596 F.2d 468, 470-71 & n.4 (1st Cir. 1979).

H. 5 U.S.C. § 552a(e)(8)

“make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record.”

Comment:

This provision becomes applicable when subsection (b)(11) “court order” disclosures occur. See, e.g., Robinett v. State Farm Mut. Auto. Ins. Co., No. 02-0842, 2002 WL 31498992, at *3-4 (E.D. La. Nov. 7, 2002), aff’d per curiam, 83 F. App’x 638 (5th Cir. 2003); Moore v. USPS, 609 F. Supp. 681, 682 (E.D.N.Y. 1985); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,965 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf. By its terms, it requires notice not prior to the making of a legally compelled disclosure, but rather at the time that the process becomes a matter of public record. See Kassel v. VA, No. 87-217-S, slip op. at 30 (D.N.H. Mar. 30, 1992); see also Moore, 609 F. Supp. at 682 (“§ 552a(e)(8) does not speak of advance notice of release”); cf. Mangino v. Dep’t of the Army, No. 94-2067, 1994 WL 477260, at *11-12 (D. Kan. Aug. 24, 1994) (citing Moore for proposition that subsection (e)(8) does not require advance notice, although finding no allegation that disclosure at issue was made “under compulsory legal process”).

I. 5 U.S.C. § 552a(e)(9)

“establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance.”

Comment:

For a discussion of this provision, see OMB Guidelines, 40 Fed. Reg. 28,948, 28,965 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf, Convertino v. DOJ, 769 F. Supp. 2d 139, 153-54 (D.D.C. 2011) (“[T]he Privacy Act does not require DOJ officials to understand the Privacy Act. It only requires that each covered employee understand the proper handling of systems of records over which he or she has responsibility as well as records that he or she is responsible for maintaining. Just because certain DOJ employees did not associate their knowledge and training regarding records system management with the words ‘Privacy Act’ does not mean that they were not, in fact, properly instructed in records system management.”), rev’d and remanded on other grounds, No. 11-5133, 2012 WL 2362591 (D.C. Cir. June 22, 2012) (reversing district court’s summary judgment and ruling that district court committed abuse of discretion in denying appellant’s motion to stay summary judgment to allow for further discovery), Doe v. DOJ, 660 F. Supp. 2d 31, 43 (D.D.C. 2009) (“[A]lthough plaintiff suggests that DOJ violated (e)(9) by failing to formally train [an agency employee], the Privacy Act does not specify how the agency must ‘instruct’ its personnel, and plaintiff has provided no support for his suggestion that listing rules and requirements on the Internet is inappropriate.” (citations omitted)), and Fleury v. USPS, No. 00-5550, 2001 WL 964147, at *2 (E.D. Pa. Aug. 21, 2001) (finding that plaintiff’s “proof” that confidential information did not reach the intended recipient “would not establish that defendant failed to instruct supervisors and managers regarding Privacy Act requirements in violation of 552a(e)(9)”).

J. 5 U.S.C. § 552a(e)(10)

“establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.”

Comment:

This provision may come into play when documents are allegedly “leaked.”  See, e.g., Pilon v. DOJ, 796 F. Supp. 7, 13 (D.D.C. 1992) (because subsection (e)(10) is more specific than subsection (b), it governs with regard to allegedly inadequate safeguards that resulted in disclosure); Kostyu v. United States, 742 F. Supp. 413, 414-17 (E.D. Mich. 1990) (alleged lapses in IRS document-security safeguards were not willful and intentional); cf. Paige v. DEA, 665 F.3d 1355, 1361 (D.C. Cir. 2012) (although plaintiff did not raise subsection (e)(10) claim at district court and finding no violation of subsection (b), stating “the widespread circulation of the accidental discharge video demonstrates the need for every federal agency to safeguard video records with extreme diligence in this internet age of iPhones and YouTube with their instantaneous and universal reach. The DEA’s treatment of the video-recording – particularly the creation of so many different versions and copies – undoubtedly increased the likelihood of disclosure and, although not an abuse of a system of records, is far from a model of agency treatment of private data.”).

One district court has found that disclosures that are the result of “official decisions” by an agency, “cannot be the basis for a claim under subsection (e)(10).”  Chasse v. DOJ, No. 1:98-CV-207, slip op. at 16-17 (D. Vt. Jan. 14, 1999) (magistrate’s recommendation), adopted (D. Vt. Feb. 9, 1999), aff’d on other grounds sub nom. Devine v. United States, 202 F.3d 547 (2d Cir. 2000).

Another district court has held that conclusory allegations predicated on the fact that confidential information was forwarded to an unintended recipient are not sufficient to establish a subsection (e)(10) violation. See Fleury v. USPS, No. 00-5550, 2001 WL 964147, at *2 (E.D. Pa. Aug. 21, 2001); cf. Doe v. DOJ, 660 F. Supp. 2d 31, 43 (D.D.C. 2009) (rejecting argument that “DOJ’s violations of the Privacy Act imply that its rules and safeguards are ‘illusory,’” because “‘DOJ has promulgated extensive regulations that safeguard its Privacy Act-protected records, notwithstanding the allegations of a single violation against one individual.’”  (quoting Krieger v. DOJ, 529 F. Supp. 2d 29, 54-55 (D.D.C. 2008))); Thompson v. Dep’t of State, 400 F. Supp. 2d 1, 23 (D.D.C. 2005) (where agency kept record “in a sealed envelope that was addressed to [plaintiff] and clearly marked ‘To Be Opened Only by Addressee,’” but did not “take the further precaution of keeping confidential information in a locked file cabinet,” concluding that “a reasonable jury could not find that this failure amounted to a reckless disregard of plaintiff’s rights” (internal quotation marks omitted)). By contrast, another district court held that a genuine issue of material fact existed as to whether the Department of Veterans Affairs intentionally or willfully violated subsection (e)(10) by failing to install “patches” on its computer system to allow tracing of a user’s access to the social security numbers of certain employees. See Schmidt v. VA, 218 F.R.D. 619, 634-35 (E.D. Wis. 2003). For a further discussion of this provision, see OMB Guidelines, 40 Fed. Reg. 28,948, 28,966 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf.

K. 5 U.S.C. § 552a(e)(11)

“at least 30 days prior to publication of information under paragraph (4)(D) of this subsection [routine uses], publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency.”

Comment:

For a discussion of this provision, see OMB Guidelines, 40 Fed. Reg. 28,948, 28,966 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf.


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