Baker v. Department of Navy

• Decision Date: 14 April 1987
• Docket Number: No. 86-6077,86-6077
• Citation: 814 F.2d 1381
• Parties: Meryl Sue BAKER, Plaintiff-Appellant, v. DEPARTMENT OF the NAVY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1381

814 F.2d 1381

2 Indiv.Empl.Rts.Cas. 65

Meryl Sue BAKER, Plaintiff-Appellant, v. DEPARTMENT OF the NAVY, Defendant-Appellee.

No. 86-6077.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1987.

Decided April 14, 1987.

Meryl Sue Baker, pro se.

Kay Teeters, Walnut Creek, Cal., Beth L. Levine, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NELSON and BEEZER, Circuit Judges, and LEAVY, ^* District Judge.

NELSON, Circuit Judge:

Meryl Sue Baker, a Navy civilian employee, filed a civil suit against the Department of the Navy, alleging that the Navy violated the Privacy Act, 5 U.S.C. Sec. 552a (1982), by refusing to amend or expunge an investigative report in its employee grievance file that was indexed under the name of one of Baker's subordinates. The report was prepared in response to an administrative grievance filed against Baker by that subordinate. She sought (1) an injunction prohibiting dissemination of the report and requiring amendment or expungement of the report, and (2) damages and costs.

The district court granted the Navy's motion for summary judgment, finding that the Privacy Act did not grant access to the investigative report because it was not retrievable under Baker's name or other identifiers listed in 5 U.S.C. Sec. 552a(a)(4). The district court concluded that, because the report was not accessible under the Privacy Act, Baker could not invoke the remedy of amendment under the Privacy Act. Baker appeals from the grant of summary judgment. We note jurisdiction under 28 U.S.C. Sec. 1291 (1982) and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Baker is a civilian employee of the Navy, serving as a Supervisory Personnel Research Psychologist at the Navy Personnel Research and Development Center in San Diego, California. One of the researchers she supervised, Dr. Eugene Rocklyn, filed an administrative grievance against Baker based on her treatment of him. Lieutenant Commander Ken Davis was assigned to investigate Baker contends that the Navy intentionally and willfully created the "grossly inaccurate and incomplete" report. Baker also claims that the Davis report was used as the basis for several adverse personnel actions including (1) demoting her from a supervisory to a nonsupervisory position, (2) issuing her a letter of reprimand, and (3) rating her performance as "marginal." However, all of these adverse actions were subsequently rescinded in a settlement of Baker's administrative complaints alleging employment discrimination and retaliation. The Navy restored her to her supervisory position, expunged the letter of reprimand from her file, and changed her performance rating from "marginal" to "outstanding."

Dr. Rocklyn's charges. Davis prepared a memorandum of his findings ("Davis report") and filed it in the employee grievance file under Rocklyn's name without indexing or cross-referencing it to Baker's name or file.

On July 1, 1985, Baker submitted a request to receive a copy of the Davis report under the Freedom of Information Act, 5 U.S.C. Sec. 552 (1982), and the Privacy Act. Baker eventually gained access to an edited version of the Davis report under the Freedom of Information Act on August 18, 1985. In early September 1985, Baker submitted a request to expunge the Davis report from Dr. Rocklyn's file under the Privacy Act. The Commanding Officer denied her request in a letter explaining that, because the record was not retrievable under her name, it was not a record covered by the Privacy Act. The Commanding Officer informed Baker of her right to submit a written rebuttal to the Davis report which could be appended to the report. Baker rejected the offer and to date has not filed a rebuttal, preferring to obtain amendment or expungement of the report. She fears that the continued existence of the Davis report, and its accessibility to Navy personnel and to Dr. Rocklyn, might result in future adverse employment decisions or professional humiliation.

On October 28, 1985, Baker filed suit against the Navy under the civil remedies provision of the Privacy Act, 5 U.S.C. Sec. 552a(g)(1). Baker proceeded pro se in the district court and on appeal. On April 29, 1986, the Navy filed a motion for summary judgment. The district court granted the Navy's motion on June 2, 1986, finding that the Davis report does not qualify as a record within a "system of records" under the Privacy Act because it is not retrievable under Baker's name or other personal identifier. The court further concluded that the Privacy Act remedies of amendment and expungement are inapplicable to a report that is not accessible under the Act. Baker filed a timely notice of appeal.

ISSUES PRESENTED

1. Whether a report that is not retrievable under a requester's name or other personal identifier is accessible to that requester under the Privacy Act.

2. Whether the amendment remedy under the Privacy Act applies to a report that is not accessible under the Privacy Act, but is otherwise accessible (e.g., under the Freedom of Information Act).

STANDARD OF REVIEW

This court reviews a district court's grant of summary judgment de novo. Hewitt v. Grabicki, 794 F.2d 1373, 1376 (9th Cir.1986). The evidence is viewed in the light most favorable to the party opposing the motion. Id. We affirm only if there is an absence of any genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir.1985). Because Baker has proceeded pro se, we construe her complaint liberally. See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982); Mann v. City of Tucson, 782 F.2d 790, 794 (9th Cir.1986) (per curiam).

DISCUSSION

I. ACCESSIBILITY UNDER THE PRIVACY ACT

Baker contends that, because the Navy allegedly took adverse actions against her based on an inaccurate and incomplete report, the report is an accessible record under the Privacy Act. Consequently, she argues, she is entitled to the remedies under Under the Privacy Act, each agency maintaining a "system of records" must "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." 5 U.S.C. Sec. 552a(e)(5). The Act permits individuals to obtain access to records pertaining to them that are within a "system of records" maintained by a federal agency. 5 U.S.C. Sec. 552a(d)(1); Exner v. Federal Bureau of Investigation, 612 F.2d 1202, 1203-04 (9th Cir.1980). In addition, an individual is permitted "to request amendment of a record pertaining to him" from an agency that maintains a "system of records." 5 U.S.C. Sec. 552a(d)(2); see also England v. Commissioner, 798 F.2d 350, 351 (9th Cir.1986). The statute defines a "system of records" as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. Sec. 552a(a)(5).

the Privacy Act. The case law and federal regulations, however, have given a more narrow reading to the scope of accessibility under the Privacy Act.

The Office of Management and Budget promulgated guidelines pursuant to Sec. 6 of the Privacy Act, Pub.L. No. 93-579, 88 Stat. 1896 (1974) (uncodified in the United States Code). See Office of Management and Budget Guidelines to the Privacy Act, 40 Fed.Reg. 28,949 (1975); Supplementary Guidelines, 40 Fed.Reg. 56,741 (1975) [hereinafter OMB Guidelines]. The guidelines note that the access provision of the Privacy Act, 5 U.S.C. Sec. 552a(d)(1), applies only to records contained in a "system of records" as defined in Sec. 552a(a)(5). OMB Guidelines, 40 Fed.Reg. at 28,957. The guidelines further observe that the statutory language suggests that

Congress did not intend to require that an individual be given access to information which the agency does not retrieve by reference to his or her name or some other identifying particular.... If an individual is named in a record about someone else ... and the agency only retrieves the portion pertaining to him by reference to the other person's name ... the agency is not required to grant him access. Indeed, if this were not the case, it would be necessary to establish elaborate cross-references among records, thereby increasing the potential for privacy abuses.

Id. The guidelines offer an example that parallels the facts in this case:

A reference to Joan Doe in a record about James Smith in the same file. This is ... a record within a system but Joan Doe would not have to be granted access unless the agency had devised and used an indexing capability to gain access to her record in James Smith's file.

Id. (emphasis added).

Although the OMB guidelines do not bind the courts, Zeller v. United States, 467 F.Supp. 487, 497 & n. 12 (E.D.N.Y.1979), the courts look to them for guidance. See, e.g., Exner, 612 F.2d at 1208-09 (Pregerson, J., concurring); Albright v. United States, 631 F.2d 915, 919-20 n. 5 (D.C.Cir.1980) (stating that OMB guidelines to the Privacy Act "are owed the deference usually accorded interpretation of a statute by the agency charged with its administration").

Additional support for the OMB interpretation is found in the regulations promulgated by the Navy to implement the Privacy Act. 32 C.F.R. Secs. 701.1-701.118 (1986). Section 701.103(a) restricts access to records pertaining to an individual that are part of a "system of records." A "system of records" is defined as

A group of records from which information "is", as opposed to "can be", retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The capability...