Andrews v. Veterans Admin. of U.S.

• Decision Date: 28 January 1988
• Docket Number: No. 85-2351,A,AFL-CI,85-2351
• Citation: 838 F.2d 418
• Parties: Georgia ANDREWS, Erin Brett, Frances E. Cassle, B.J. Durham, Maureen Engert, Mary Fox, Maxine Griffin, Betty Grubb, Ruth Holmes, Lucille Hoppe, Dorothy Homyak, Sharon K. Kaiser, Chandra K. Lillemoen, Carolyn O'Brien, Deloris O'Brien, Mary Jane Prysock, Laura Russell, Laura Scherr, Joan Schick, Brenda Schulz, Victoria Smith, Kathryan Toulouse, Margaret Wickham, Norman Wilde, and all others similarly situated, Plaintiffs-Appellees, v. VETERANS ADMINISTRATION OF the UNITED STATES of America, Defendant-Appellant, American Federation of Government Employees,micus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 418

838 F.2d 418

3 Indiv.Empl.Rts.Cas. 1274

Georgia ANDREWS, Erin Brett, Frances E. Cassle, B.J. Durham,

Maureen Engert, Mary Fox, Maxine Griffin, Betty Grubb, Ruth

Holmes, Lucille Hoppe, Dorothy Homyak, Sharon K. Kaiser,

Chandra K. Lillemoen, Carolyn O'Brien, Deloris O'Brien, Mary

Jane Prysock, Laura Russell, Laura Scherr, Joan Schick,

Brenda Schulz, Victoria Smith, Kathryan Toulouse, Margaret

Wickham, Norman Wilde, and all others similarly situated, Plaintiffs-Appellees, v. VETERANS ADMINISTRATION OF the UNITED STATES of America,

Defendant-Appellant,

American Federation of Government Employees, AFL-CIO, Amicus Curiae.

No. 85-2351.

United States Court of Appeals, Tenth Circuit.

Jan. 28, 1988.

Don W. Riske, Cheyenne, Wyo., for plaintiffs-appellees.

Peter R. Maier, Appellate Staff Civil Div., U.S. Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., Richard Allen Stacy, U.S. Atty., and Leonard Schaitman, Appellate Staff Civil Div., U.S. Dept. of Justice, with him on the briefs), Washington, D.C., for defendant-appellant.

William J. Stone, Asst. Gen. Counsel, Mark D. Roth, Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D.C., as amicus curiae.

Before MOORE, ANDERSON and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The Veterans Administration of the United States of America ("VA") appeals from a judgment of the United States District Court for the District of Wyoming finding that the VA's disclosure of certain personnel records violated the Privacy Act rights of plaintiffs, registered nurses employed at a VA Medical Center ("Medical Center") in Cheyenne, Wyoming. We reverse.

BACKGROUND

On June 4, 1984, Ms. Pat Sanchez, president of the union local which was the exclusive bargaining representative for nurses employed at the Medical Center, made a written request to Ms. Hazel Gilligan, the Chief of Personnel Service at the Medical Center, seeking copies of proficiency reports (essentially job performance evaluations) for all registered nurses at the Medical Center for the years 1982-84. The request acknowledged that such reports would have to be "sanitized" by deleting all information that might tend to identify the subjects of the reports prior to disclosure. Pursuant to a written inquiry from Ms. Gilligan, Ms. Sanchez stated that the proficiency reports were needed in connection with a grievance the union would possibly file and to facilitate preparation for upcoming labor-management negotiations. Certain of the plaintiff nurses, upon learning of the request for the reports, asked both orally and in writing that the records not be released.

Ms. Gilligan sought the advice of VA personnel in Washington, D.C. in determining how to respond to the request. ¹ The Labor Relations Department of the VA advised her that the Federal Service Labor-Management Relations Act, 5 U.S.C. Sec. 7101-7135, ("FSLRA") required disclosure of the reports, but that they should be sanitized prior to disclosure to preserve the anonymity of the subjects of the reports. Accordingly, Ms. Gilligan attempted to sanitize the reports by deleting with a black felt-tip pen any information which she felt would identify the subjects of the reports. ² She then asked her assistant to further sanitize the reports. Finally, Ms. Gilligan asked the head nurse at the Medical Center to review the reports and make any other deletions she felt necessary to protect the identities of the nurses. On June 19, she released the sanitized reports to Ms. Sanchez. Ms. Sanchez and two other nurses reviewed the records but no other people obtained access to them.

On June 20, in response to requests from the nurses that the reports not be released, Ms. Gilligan sent a letter to all the nurses at the Medical Center stating that the FSLRA required release of the reports but that they had been sanitized. To demonstrate that the identities of the nurses had been adequately protected, Ms. Gilligan's letter included as an attachment a copy of the sanitized proficiency report relating to plaintiff Laura Scherr. As the district court found, the report regarding Ms. Scherr was inadequately sanitized and several co-workers could identify her as the subject of the report.

As it turned out, the reports released were never in fact used in connection with The plaintiffs, registered nurses employed at the Medical Center, brought this action, seeking to enjoin the VA and the Medical Center from releasing the personnel records of the plaintiffs and others similarly situated "in an unsanitized or improperly sanitized condition" and seeking damages for the release of the records which, they alleged, was an intentional and willful violation of the Privacy Act of 1974, 5 U.S.C. Sec. 552a. They alleged that the disclosure of the reports resulted in "injury and damages including, but not limited to, mental distress and embarrassment" and they sought damages of $1,000 for each plaintiff as well as attorneys' fees. During pretrial discovery, plaintiffs sought and obtained production under court seal of the records released to the union. When plaintiffs reviewed the records, ten of the plaintiffs were recognized by their coplaintiffs from information contained in the reports and four plaintiffs were able to identify their own reports, although no other plaintiffs could so identify them. Three plaintiffs were unable to identify their own reports, nor could any other plaintiff so identify them.

                any grievance or other union activity. 3   The district court concluded that "Mrs. Sanchez was on a general fishing expedition, which may have been motivated by spite or anger resulting from her own failure to obtain a requested promotion."    Andrews, 613 F.Supp. at 1412
                

Pursuant to a stipulation of the parties, the Medical Center was dismissed as a party and the case was tried to the court. The court denied the VA's motion to dismiss or, in the alternative, for summary judgment. After a two day trial, the district court entered its findings of fact and conclusions of law. It found that the record established that third parties acquainted with ten of the plaintiffs ⁴ could and did recognize their identity from information released in the reports. The court found that

"[i]ndirect evidence adequately establishes that the identity of the following plaintiffs could be determined through the information released in their proficiency reports, though no third party did in fact so identify them: Diane Ingle, Carolyn O'Brien, Ada Shader, and Victoria Smith.... [A] review of the reports themselves, as well as the other evidence in the record is adequate to lead to a logical inference that persons acquainted with such plaintiffs, including their coemployees, could readily identify their reports based upon the information released."

Andrews, 613 F.Supp. at 1409. With regard to three plaintiffs, Frances Cassle, Dorothy Honyak, and Margaret Wickham, the district court concluded that "[n]o evidence was submitted to show that the information in the proficiency reports ... was such as would enable any third party to identify the subject of the report." Id. ⁵

The district court [held] that each plaintiff "suffered some degree of anguish, embarrassment, or other mental trauma" from the release of the reports, but that "none suffered any pecuniary loss." Id. Finally, the court found that the release of the reports adversely affected the Medical Center's entire proficiency reporting system "due to fear that the information contained in the reports may later be disclosed to third persons," and harmed the working environment at the Center, causing increased "tensions and antagonism." Id.

In assessing the culpability of the VA, the district court found that Ms. Gilligan "acted conscientiously, in good faith, though inadvertently negligently, in releasing In its conclusions of law, the district court held that where identification of the subjects of the reports was possible, as here, "a violation of the subject's privacy interests occurs." It found that the numerical ratings portion of the reports contained sensitive information, but that such sensitive information could be deleted and the remainder disclosed without violation of a person's privacy interests. On the other hand, the narrative portions of the reports contained identifying information "so inextricably intertwined with other materials that segregation is not reasonably possible," such that disclosure "of any meaningful part of this portion of the reports" would "result in an invasion of the privacy interests of the subject in the context of a relatively small facility such as the Medical Center." Id. at 1411.

                the proficiency reports in an inadequately sanitized condition."    She failed to balance the privacy interests of the nurses against the interests of the union in having the reports, "which interests were ambiguous and virtually undefined."    Id.  The court further held that the VA personnel in Washington were "grossly negligent" in failing to adequately train or guide Ms. Gilligan regarding the release of information subject to the Privacy Act and in directing her in this case that release was required by FSLRA.  It found that the gross negligence of the Washington VA personnel was a willful or intentional violation of the Privacy Act
                

Having concluded that the VA erred in failing to balance the interests of the various parties in this case prior to disclosure, the court then conducted its own balancing. It found the violation of the nurses' privacy interests was "substantial" and that the union's interest in obtaining the documents was "minimal." ⁶ It therefore concluded that the disclosure of inadequately sanitized reports to Ms. Sanchez "constituted a clearly unwarranted invasion of the privacy interests of the subjects" in violation of the Privacy Act. ⁷ The court denied plaintiffs' request for injunctive relief but awarded them $1,000 per plaintiff, finding that emotional...