Andrews v. VETERANS ADMIN. OF UNITED STATES

• Decision Date: 17 July 1985
• Docket Number: No. C84-0459-B.,C84-0459-B.
• Citation: 613 F. Supp. 1404
• 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 v. VETERANS ADMINISTRATION OF the UNITED STATES of America and the Veterans Administration Medical Center of Cheyenne, Wyoming, Defendants.
• Court: U.S. District Court — District of Wyoming

613 F. Supp. 1404

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 v. VETERANS ADMINISTRATION OF the UNITED STATES of America and the Veterans Administration Medical Center of Cheyenne, Wyoming, Defendants.

No. C84-0459-B.

United States District Court, D. Wyoming.

July 17, 1985.

COPYRIGHT MATERIAL OMITTED

Donald W. Riske and Warren R. Darrow, Cheyenne, Wyo., for plaintiffs.

Henry T. Jones, Dist. Counsel, Veterans Admin., David A. Kern, Asst. U.S. Atty., Cheyenne, Wyo., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRIMMER, District Judge.

This matter came on regularly for trial to the Court on June 13 and 14, 1985, the Honorable Clarence A. Brimmer, United States District Judge for the District of Wyoming presiding. Counsel appearing were Donald W. Riske, Esq., and Warren R. Darrow, Esq., for plaintiffs, and Henry T. Jones, Esq., counsel for the Veterans Administration, and David A. Kern, Esq., Assistant United States Attorney, for defendant. The Court has reviewed the pleadings, considered the arguments of counsel, the views of Local 1014 of the American Federation of Government Employees set forth in its Amicus Curiae Brief, has reviewed the exhibits submitted, and considered the testimony presented at trial, and being fully advised in the premises makes its Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

Plaintiffs are registered nurses employed by defendant, Veterans Administration, at its Medical Center located in Cheyenne, Wyoming. They bring this action under the Privacy Act of 1974, 5 U.S.C. § 552a(g), requesting injunctive relief and damages in the amount of $1,000.00 per plaintiff, alleging defendants released personnel records in an improperly sanitized condition, so that the identity of plaintiffs could be determined from the information released. Plaintiffs contend such files contained sensitive information, including evaluations of job performance, the release of which constituted clearly unwarranted invasions of plaintiffs' personal privacy, that the release was not compelled under exemption six of the Freedom of Information Act, 5 U.S.C. § 552(b)(6), and that the release was in violation of plaintiffs' rights under the Privacy Act, 5 U.S.C. § 552a.

The dispute which culminated in this suit began on June 4, 1984 when Patricia Sanchez, President of Local 1014, American Federation of Government Employees, the exclusive bargaining agent for nurses at the Medical Center, including plaintiffs, made a written request for release to her of the proficiency reports of all of the registered nurses employed at the Center. Just after she made this request Mrs. Sanchez, on June 5, 1984, filed a grievance on her own behalf because she failed to receive a requested promotion in the C Ward at the Center. However, Mrs. Sanchez' request was not limited to reports relating to the successful candidates for promotions in the C Ward, or to the time in question, but rather related to all registered nurses in all wards and covered a period of three years. The initial request stated no reason concerning why the union sought access to this sensitive information.

The Proficiency Reports are a means of evaluation of job performance and abilities of registered nurses employed at the Center. The report is prepared on a standard form, containing two pages. The first page contains various numerical ratings for factors such as integrity, emotional stability, dependability, and interpersonal relations. An overall numerical score is assigned, as well as a rating of the individual's capacity for advancement. The second page contains a narrative discussion of the individual's performance during the relevant period, areas of advancement, strengths and weaknesses, and other similar matters. It is beyond doubt that the information in the proficiency reports is sensitive in nature, and release of this information, if identifying information were not adequately deleted, would result in embarrassment of the persons to which they pertain.

Mrs. Sanchez had previously sought, and obtained, release of proficiency reports pertaining to one or a few nurses at the Center in relation to specific grievances then pending, but each such release was obtained after she sought and obtained consent from the individual or individuals to which the reports pertained. In this instance she did not request consent from the nurses at the Center before making the request, and could not have obtained consent from plaintiffs, who vehemently objected to the release of their proficiency reports. Nor was the request made pursuant to any pending grievance. Mrs. Sanchez, acting alone, decided to review all proficiency reports to determine whether a grievance could or should be filed in relation to the manner in which the reports were prepared by management personnel. The reports were never used in relation to any grievance or other union-related activity subsequent to their release. Furthermore, the union membership had taken no official action to authorize Mrs. Sanchez to make such request or to file a grievance regarding the general issue of completion of the proficiency reports by Head Nurses.

Mrs. Sanchez's request of June 5, 1984 was received by Ms. Hazel Gilligan, who is the Chief of Personnel Services at the center, and is the custodian of the personnel files. Ms. Gilligan had received some training concerning her duties under the Privacy Act, and was supplied with a Federal Personnel Manual which contains guidelines for responses to requests for information contained in personnel files. Ms. Gilligan had never before been presented with a blanket request for personnel files, and she never had been requested to disclose such information without the consent of the individual to which the file pertained. Therefore, she consulted the provisions of the Personnel Manual in response to the request by Mrs. Sanchez. She then wrote a letter to Mrs. Sanchez, dated June 5, 1984, stating that, before a determination could be made as to the Union's entitlement to such records, a reason for the request had to be given. By letter dated June 7, 1984, Mrs. Sanchez responded by stating generally that the reports would be used in a grievance which the Union was considering filing, and in preparing for a labor/management meeting scheduled to be held later in the month of June.

Ms. Gilligan also sought guidance from the defendants' national office in Washington, D.C., but only discussed the matter with the Labor Relations Department, and did not consult with the legal department. She was informed that she was required to release the proficiency reports under 5 U.S.C. § 7114(b), but that she should sanitize the reports prior to their release so as to delete any identifying information. Ms. Gilligan had received no training regarding sanitizing personnel records, and received no assistance or guidance from the national office in this regard.

Between June 7, 1984 and June 19, 1984 Ms. Gilligan attempted to remove any identifying information from the approximately sixty reports to be released by making photocopies of the original reports and by using a black felt tip pen to black out any information which, in her judgment, might serve to identify the subject of the report. After completing this task she requested her assistant, Wanda Dykeman, to review the copies and delete any additional information which Dykeman felt might identify the subject of the report. However, Ms. Gilligan felt unqualified to detect all identifying information relating to the subjects of the reports, due to her lack of knowledge concerning information such as classes attended or conducted, committee assignments or chairmanships, outside activities, and the like. She therefore requested Mrs. June Wright, the Head Nurse at the Medical Center, to review the reports and to delete any additional identifying information prior to their release. After receiving back the sanitized reports from Dykeman and Wright, Ms. Gilligan briefly reviewed them, made photocopies, and produced these to Mrs. Sanchez on June 19, 1984. Among the reports so provided were reports pertaining to the plaintiffs in this action.

Between June 14 and June 19, 1984 Ms. Gilligan received several written objections to the release of the reports from plaintiffs and other nurses employed at the Medical Center, all requesting that their reports not be released. In response to these requests Ms. Gilligan, by letter dated June 20, 1984 to all nurses employed at the Medical Center, stated that "Management is required to release these documents under the provisions of PL-95-454, Section 7114." Such letter reassured the nurses that all of the reports released had been completely sanitized by members of the personnel office, with the assistance of the Chief Nurse, and included as an attachment a proficiency report pertaining to Laura Scherr in its sanitized condition, intended to show that identification of the subject of the report was not possible as sanitized. However, the report pertaining to Laura Scherr was not adequately sanitized, and several of her co-workers were able to identify her, based upon the information contained in the released report.

The record establishes that third parties acquainted with the following plaintiffs could, and did, recognize their identity through the information released in their proficiency reports: B.J. Durham, Mary Fox, Maxine Griffin, Betty Grubb, Ruth Holmes, Lucille Hoppe, Deloris O'Brien, Laura Russell, Laura Scherr, and Kathryan Toulouse. Indirect evidence adequately establishes that the identity of...