Brooks v. Veterans Admin., 88-4108-R.

• Decision Date: 23 September 1991
• Docket Number: No. 88-4108-R.,88-4108-R.
• Citation: 773 F. Supp. 1483
• Court: U.S. District Court — District of Kansas
• Parties: Samuel R. BROOKS, Jr., Plaintiff, v. VETERANS ADMINISTRATION, et al., Defendants.

773 F. Supp. 1483

Samuel R. BROOKS, Jr., Plaintiff, v. VETERANS ADMINISTRATION, et al., Defendants.

No. 88-4108-R.

United States District Court, D. Kansas.

September 23, 1991.

Patrick R. Barnes, Scott, Quinlan & Hecht, Topeka, Kan., for plaintiff.

Jackie A. Rapstine, U.S. Attorney's Office, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case is now before the court upon long-pending cross-motions for summary judgment. The court has carefully reviewed the pleadings of the parties and has determined that both motions should be denied.

Under FED.R.CIV.P. 56, summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Id. at 323, 106 S.Ct. at 2552. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id.

A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Id. at 249, 106 S.Ct. at 2510-11. A mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact and to avoid summary judgment. Id. at 252, 106 S.Ct. at 2512.

This is a Privacy Act case. Plaintiff alleges that his rights under the Privacy Act, 5 U.S.C. § 552a, were violated when an employee of defendant, Wanda Lyon, disclosed to plaintiff's friend, Loretta Kasting, that one doctor had supported and one doctor had not supported plaintiff's pending application for disability retirement.¹ Defendant claims that the disclosure of this type of information is not covered by the Privacy Act. Defendant further claims that even if this type of disclosure is covered by the Privacy Act, plaintiff cannot prove this was a "willful and intentional" disclosure, as required for recovery under the Privacy Act.

The Privacy Act places limits upon the disclosure of "records" maintained by federal agencies. See 5 U.S.C. § 552a(b). The term "record" is defined broadly as:

any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.

5 U.S.C. § 552a(a)(4). The Act further provides that if an agency "fails to comply with any ... provision of this section or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency ..." 5 U.S.C. § 552a(g)(1).

Plaintiff has requested the court to issue an order of partial summary judgment finding that the "disclosure" of a doctor's support or lack of support of his disability retirement application is a violation of the Privacy Act. However, the employee who allegedly disclosed this information denies having done so. Furthermore, some of the people allegedly present when the disclosure was made have sworn that they have no recollection of such a disclosure. A factual issue exists as to whether a disclosure occurred and, therefore, plaintiff's motion for partial summary judgment must be denied.

As stated previously, defendant contends that the alleged disclosure did not violate plaintiff's rights under the Privacy Act because the information is not so "personal" as to be barred from disclosure under the Act. The statute does not expressly limit its coverage to "personal" information. The statute limits the disclosure of "records" which are defined without using the term "personal." The records must contain "information about an individual" however, which is arguably the same as "personal" information.

Defendant cites three cases in support of its argument that the alleged disclosure is not covered by the Privacy Act: Houston v. United States Dept. of Treasury, 494 F.Supp. 24 (D.D.C.1979); American Federation of Government Employees v. National Aeronautics and Space Administration, 482 F.Supp. 281 (S.D.Tex.1980); and Parks v. United States Internal Revenue Service, 618 F.2d 677 (10th Cir.1980). In Houston, the court held that information the plaintiff provided about his work assignments as an IRS agent was not covered by the Privacy Act.² In the American Federation of Government Employees case, the court held that daily time sheets were not "records" covered by the Privacy Act. In Parks, the Tenth Circuit held that lists of employees who had not bought savings bonds, were "records" covered by the Privacy Act. The Circuit quoted the legislative history of the Act as follows:

This section is designed to prevent the office gossip, interoffice and interbureau leaks of information about persons of interest in the agency or community, or such actions as the publicizing of information of a sensational or salacious nature or of that detrimental to character or reputation.

This would cover such activities as reading results of psychological tests, reporting personal disclosures contained in personnel and medical records, including questionnaires containing personal financial data filed under the ethical conduct programs of the agency. It is designed to halt the internal blacklisting that frequently goes on in agencies and on Federal installations of persons who do not comply with the organizational norms and standards for some reason, such as not participating in savings bonds drives or charity campaigns; and the listing of results of employee tests or performances.

S.Rep. No. 93-1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6916, 6966 (emphasis added).

618 F.2d at 681.

We believe that whether an unidentified doctor supported or failed to support an employee's disability retirement application is an item of "information about an...