Chapman v. National Aeronautics and Space Admin., 81-2324

• Decision Date: 13 August 1982
• Docket Number: No. 81-2324,81-2324
• Citation: Chapman v. National Aeronautics and Space Admin., 682 F.2d 526 (5th Cir. 1982)
• Parties: 29 Empl. Prac. Dec. P 32,961 William B. CHAPMAN, Plaintiff-Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 526

682 F.2d 526

29 Empl. Prac. Dec. P 32,961

William B. CHAPMAN, Plaintiff-Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al Defendants-Appellees.

No. 81-2324.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1982.

Curtis C. Mason, Huntsville, Tex., for plaintiff-appellant.

Jose Berlanga, Asst. U. S. Atty., Houston, Tex., for defendants-appellees.

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

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.

POLITZ, Circuit Judge:

Albeit simplified by the clarity of its factual display, this case presents a substantial legal issue, the resolution of which is neither aided nor hindered by a plethora of juristic expression. William B. Chapman, an employee of the National Aeronautics and Space Administration (NASA), at the Johnson Space Center, until his discharge on August 10, 1977, sued, urging age, 29 U.S.C. § 633a, and sex, 42 U.S.C. § 2000e-16, discrimination, and a claim under the Privacy Act of 1974, 5 U.S.C. § 552a. A jury rejected the age discrimination complaint and the court denied relief on the sex discrimination and the Privacy Act claims. We affirm the judgments of the jury and trial judge on the age and sex discrimination charges and reverse and remand for further consideration of the Privacy Act complaint.

The essential facts leading up to Chapman's discharge, and the predicate for the Privacy Act claim, are not disputed. Chapman was a 50 year old Space Scientist, specializing in geophysics, when his employment was terminated for failure to follow administrative instructions and for otherwise unsatisfactory job performance. His immediate supervisor, William C. Phinney, wrote numerous memoranda about Chapman and his job performance, spanning the period June 1975 through June 1977. ¹ For the first 22 months, the notes apparently were kept private and were available only to Phinney. During April of 1977, Phinney delivered his private notes to Robert Hall, Personnel Management Specialist at NASA. Unbeknownst to Chapman, the memoranda were placed in his administrative file. On July 6, 1977, Chapman received notice of an impending removal action and was informed that the file against him was available for inspection. The Phinney notes played a part in Chapman's discharge.

The issue posited is whether the notes made and kept by Phinney were records maintained by NASA within the meaning of the Privacy Act, 5 U.S.C. § 552a. Several sections of the Act are particularly significant: the preamble stating its purpose; section 552a(a)(4) defining "record"; section 552a(a)(5) defining "system of records"; section 552a(e)(1) limiting information maintained; sections 552a(e)(4)(C), (D), and (I) requiring publication of certain information about the records maintained; section 552a(e)(5) mandating fairness in record keeping procedures; and section 552a(g)(1)(C) prescribing civil remedies.

In the preamble to the Act, section 2(b)(2) of Pub.L. 93-579, Congress declared:

The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to ... permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent;

Section 552a(a)(4) provides:

the term "record" means 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.

Section 552a(a)(5) further provides:

the term "system of records" means 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.

To insure the purpose of the Act, Congress provided in section 552a(e)(1):

Each agency that maintains a system of records shall-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.

Under sections 552a(e)(4)(C), (D), and (I), an agency maintaining a system of records must publish in the Federal Register, at least annually, the categories of records, categories of users, purposes of use, routine uses, categories of sources, and other information about the records.

In the making and keeping of records, section 552a(e)(5) requires the agency to

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.

Finally, section 552a(g)(1)(C) ordains that whenever any agency

fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; ... the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.

The trial court held that the Phinney memoranda made during 1975, 1976, and 1977 were not records under sections 552a(a)(4) and 552a(a)(5) and, accordingly, rejected the claim premised on section 552a(g)(1)(C). Although recognizing that the notes mentioned Chapman by name and directly related to his job performance, the district court found no Privacy Act violation on the grounds that NASA lacked control of the memoranda and the ability to retrieve the data. The trial court viewed Phinney's practice of keeping private notes as an efficient means of detailing "his meetings with (Chapman) over a two-year period (which) ironically protected (Chapman) from the errors a supervisor's total reliance on memory might create in such a situation."

We conclude that the Privacy Act does not prohibit taking and keeping private notes which may serve as valuable memory refreshers when supervisors are called upon periodically to evaluate an employee's job performance and work attitude. However, we are convinced that a redressable violation of the Act occurred in this case.

The Act enables an individual to prevent records obtained by an agency for a particular purpose from being used for any other purpose. In order for this statutorily created right to have meaning, the Act grants an individual access to pertinent information in the agency's system of records.

It is uncontroverted that the subject notes played a part in Chapman's discharge. We make neither a qualitative nor quantitative analysis of this use, confining ourselves to the observation that the notes in fact were involved in the decision to terminate Chapman's employment. From this use, it is apparent that, at least by July of 1977, NASA considered the notes to be part of its records which, under section 552a(e)(5), NASA was required to...