Cochran v. U.S.

• Decision Date: 06 September 1985
• Docket Number: No. 84-8765,84-8765
• Citation: 770 F.2d 949
• Parties: Major General James F. COCHRAN, III, Plaintiff-Appellant, v. The UNITED STATES of America, the Department of Defense and the Department of the Army, Agencies and Departments thereof, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 949

770 F.2d 949

Major General James F. COCHRAN, III, Plaintiff-Appellant, v. The UNITED STATES of America, the Department of Defense and the Department of the Army, Agencies and Departments thereof, Defendants-Appellees.

No. 84-8765.

United States Court of Appeals, Eleventh Circuit.

Sept. 6, 1985.

Charles M. Jones, Hinesville, Ga., for plaintiff-appellant.

Kenneth C. Etheridge, Asst. U.S. Atty., Savannah, Ga., Lt. Col. Marshall M. Kaplan, Army Litigation Div., Office of the Judge Advocate General, Dept. of the Army, The Pentagon, Washington, D.C., for defendants-appellees.

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

Before RONEY and HILL, Circuit Judges, and PITTMAN ^*, District Judge.

JAMES C. HILL, Circuit Judge:

Plaintiff/appellant Major General (Retired) James F. Cochran alleges a violation of subsection (b) of the Privacy Act, 5 U.S.C. Sec. 552a(b), by the Army's issuance of a press release concerning a military, non-judicial disciplinary proceeding initiated against him. We affirm the district court's grant of summary judgment in favor of defendants/appellees, concluding that the information was properly disclosed to the

public, and that appellant may not maintain a Privacy Act claim as a result of any minor violation of Army regulations implementing the Freedom of Information Act that might have occurred.

FACTS

The facts in this case are undisputed. As stated by the Claims Court:

In May 1981, the plaintiff, then Army Major General James F. Cochran, III (MG Cochran), requisitioned a military aircraft for a round trip flight for himself and his wife from Fort Stewart, Georgia (at which he was then commandant), to an airport near the United States Military Academy at West Point, New York, where they attended graduation ceremonies for their son.

In March, 1981, MG Cochran gave his personal property, a boat stove to a Mr. Watford, a civilian government employee, under his command at Fort Stewart, for conversion from alcohol to propane use and for repair. Watford purchased $50 in repair parts out of his own funds, but was unsuccessful in his efforts to repair the stove. He then took the stove to the refrigerating, heating and plumbing shop at Fort Stewart, where the foreman and assistant foreman respectively performed the appropriate major repairs and adjustment to it using government purchased supplies.

After receiving information as to these transactions, on May 28, 1981, the Army Vice Chief of Staff directed the Inspector General to inquire into allegations that MG Cochran had committed improprieties. Thereafter, on June 20, 1981, a colonel from the office of the Inspector General briefed General Robert M. Shoemaker, Commander, United States Army Forces Command, Fort McPherson, Georgia, on the results of the Inspector General's investigation.

Cochran v. United States, 1 Cl.Ct. 759, 761 (1983), aff'd, 732 F.2d 168 (Fed.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 175, 83 L.Ed.2d 110 (1984).

On June 23, 1981, General Shoemaker initiated nonjudicial punishment proceedings against Cochran, pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. Sec. 815. Cochran was charged with wrongful appropriation of a government aircraft, and with causing diversion of governmental facilities and manpower. After a July 2, 1981 hearing, Shoemaker found Cochran guilty of both charged offenses on July 6th. As punishment, Cochran received a written reprimand and a $2,000.00 fine.

Meanwhile, inflammatory rumors had begun to circulate in the Fort Stewart area about an internal Army investigation being conducted at that post. See infra, n. 4. To quell those rumors, Major General Galvin, who had succeeded Cochran as Commander at Fort Stewart, issued a press release to local news media on June 16, 1981. ¹ This news release formed the basis for a story reported in the June 17th issue of the Savannah Evening Press and other local papers. After issuance of this release the Public Affairs Office at Fort Stewart continued to receive press inquiries into the matter, but declined to comment while the investigation continued.

On July 8, 1981, after Cochran's disciplinary proceedings had been completed, the Army issued a press release in response to the media inquiries. This press release briefly summarized the findings of the non-judicial proceeding and the discipline imposed Cochran appealed the non-judicial punishment to Major General Clauson, the Judge Advocate General of the Army, and then to the Claims Court. The Claims Court affirmed the findings on the wrongful appropriation of government aircraft charge, but vacated the finding that Cochran had wrongfully accepted a gift from a subordinate and remanded to Major General Clausen to determine if the punishment received was appropriate in light of the dismissal of the "boat stove" offense. Cochran v. United States, 1 Cl.Ct. 759. Clausen reduced the fine by $200.00, a decision affirmed by both the Claims Court and the Federal Circuit Court of Appeals.

                on appellant, 2 and was apparently provided only to those members of the media who had lodged standing oral inquiries. 3   The press release was apparently intended, at least in part, to dispel rumors in the community regarding Cochran's misconduct which were far more egregious than the conduct that had actually occurred.  The Public Affairs officer at Fort Stewart was also supplied with a list of prepared questions and answers to be used internally for guidance in dealing with further questioning from the media. 4   News articles based on the press release appeared in the Savannah Morning News, the Atlanta Constitution, and the Atlanta Journal on July 9, 1981
                

On July 9, 1983, Cochran filed the complaint in the instant case, alleging seven causes of action arising out of the July 8, 1981 release of information concerning the imposition of non-judicial punishment upon

                him.  In this appeal we are only concerned with count one of this complaint, in which Cochran seeks damages on the grounds that the defendants wrongfully disclosed information concerning him in violation of subsection (b) of the Privacy Act, 5 U.S.C. Sec. 552a(b). 5   On this count, the district court granted summary judgment in favor of the appellees on September 7, 1984, concluding that the Freedom of Information Act (FOIA) exception to section 552a(b) was applicable despite the absence of written FOIA request, and that under the balancing test employed pursuant to subsection (b)(6) of the FOIA, 5 U.S.C. Sec. 552(b)(6), 6 the public interest in disclosure of the information outweighed Cochran's privacy interest
                

DISCUSSION

The present action alleges a violation of subsection (b) of the Privacy Act, which provides that

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be--

....

(2) required under section 552 of this title [the FOIA].

5 U.S.C. Sec. 552a(b). Appellant contends that the Army's disclosure of information in the July 8th press release was not "required" under the FOIA, because there was never any written FOIA request for the information, and because the information constituted "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." See 5 U.S.C. Sec. 552(b)(6). Appellees respond that a written FOIA request for information was not necessary for the issuance of the press release, and that under section 552(b)(6) the public interest in the disclosure of this information outweighed appellant's privacy interest in preventing disclosure.

A. The Privacy Act and the Freedom of Information Act

The Privacy Act was passed in 1974 to protect the privacy of individuals identified in government information systems by regulating the collection, maintenance, use and dissemination of personal information and prohibiting unnecessary and excessive exchange of such information within the government and to outside individuals. Congressional Findings and Statement of Purpose, Privacy Act Sec. 2, 5 U.S.C. Sec. 552a historical note; see Thomas v. United States Department of Energy, 719 F.2d 342, 345-46 (10th Cir.1983); Johnson v. Department of Treasury, I.R.S., 700 F.2d 971, 974-76 (5th Cir.1983); Antonelli v. Federal Bureau of Investigation, 536 F.Supp. 568, 572 (N.D.Ill.1982), rev'd on other grounds, 721 F.2d 615 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). Congress was chiefly concerned with the potential for misuse of the enormous amounts of personal information collected by government agencies (often for limited purposes and occasionally through improper investigations) and stored in computers. See Thomas, 719 F.2d at 345; Johnson, 700 F.2d at 975-76; S.Rep. No. 1183, 93d Cong., 2d Sess. 1-2., reprinted in 1974 U.S.Code Cong. & Ad.News 6916, 6916-17 and in Legislative History of the Privacy Act of 1974 S.3418 (Public Law 93-579): Source Book on Privacy at 154-55 (1976) [hereinafter cited as Source Book]; H.R.Rep. No. 16373, 93d Cong.2d Sess. 3-4, reprinted in Source Book at 296-97. To that end, the Privacy Act "limits the kind of information that can be collected or disclosed and imposes a standard of quality and diligence on the maintenance of government records," Doe v. United States Civil Service Commission, 483 F.Supp. 539, 555 (S.D.N.Y.1980). A private cause of action is provided to enforce those rights. 5 U.S.C. Sec. 552a(g).

The FOIA, on the other hand, is a broad disclosure statute which evidences a "strong public policy in favor of public access to information in the possession of federal agencies." Brown v. Federal Bureau of Investigation, 658 F.2d 71, 73 (2d Cir.1981); see Department of Air Force v. Rose,...