Doe v. General Services Admin.

Citation544 F. Supp. 530
Decision Date27 July 1982
Docket NumberCiv. A. No. M-81-2109.
CourtU.S. District Court — District of Maryland

Stephanie Klein, Dennis W. Carroll, C. Christopher Brown, Legal Aid Bureau, Inc., Baltimore, Md., for plaintiff.

J. Frederick Motz, U. S. Atty. D. Md., and Ty Cobb, Asst. U. S. Atty., Baltimore, Md., for defendants.


JAMES R. MILLER, Jr., District Judge.

The plaintiff brought this action for damages and declaratory relief for an alleged breach of the Privacy Act of 1974, 5 U.S.C. § 552a, by employees of the General Services Administration (GSA).1 The case is before the court on cross-motions for summary judgment.2 The parties have filed extensive depositions and evidentiary materials. A hearing on the motions was held on Friday, July 9, 1982.

The basic facts involved in this suit are as follows. On May 29, 1980, Doe applied for the position of branch manager with the First Federal Savings & Loan of Annapolis (First Federal). He was hired by First Federal to manage their Randallstown branch on June 2, 1980.

In his application,3 Doe answered various questions about his prior employment. Doe also answered three questions about his military service: (1) whether he had served in the armed forces; (2) the dates of such service; and (3) any special training he had received.4 This application contained a "boilerplate" consent paragraph authorizing First Federal to make an "investigative consumer report" through personal interviews. Also on May 29, 1980, Doe signed a separate "authorization" form, which provided as follows:

"I hereby affirm that my answers to the questions on the employment application are true and correct, and that I have not knowingly withheld any fact or circumstance which would, if disclosed, affect my application unfavorably.
I authorize you to verify any and all information contained in this application and to inquire into my character, general reputation, personal characteristics and mode of living, and I release all concerned from any liability in connection with any information they give.
I have also been advised that I have the right, under Section 606(b) of the Fair Credit Reporting Act, to make a written request, within a reasonable time, for a complete and accurate disclosure of the nature and scope of any investigation."5

In June of 1980, after Doe had begun working as a branch manager, First Federal requested the United Credit Bureau (UCB) to conduct an investigation into Doe's employment history. UCB was provided with a copy of Doe's employment application.6 On June 3, 1980, UCB requested confirmation from the United States Army, through the National Personnel Records Center (NPRC) that Doe had served with the Army and the dates of his service.7 In support of this request, UCB sent the NPRC a standard employment verification form8 and the above-quoted "authorization" signed by Doe.9 In return, on June 24, 1980, the NPRC sent the UCB four documents: (1) a cover sheet stating that Doe had been discharged from the Army under honorable conditions for a "character and behavior disorder";10 a document showing that Doe had been twice convicted by summary court martial;11 and (3) two Army psychiatric evaluations.12

Shortly after their receipt, UCB forwarded these documents to First Federal as part of the requested investigative consumer report. Doe was asked to resign by First Federal on July 23, 1980.

The parties have raised the following issues in their motions:13

(1) Whether Doe "consented" to the release of the records sent to the UCB by the NPRC. 5 U.S.C. § 552a(b).

(2) Whether the defendants' actions were "intentional or willful" within the meaning of the Privacy Act. 5 U.S.C. § 552a(g)(4).

I. Consent

The Privacy Act does not define the word "consent." Consequently, the meaning of that word under the Act must be determined by examining the Act's legislative history and any validly promulgated administrative rules or policies.14

As Professor Davis has noted, only section 3 of the Privacy Act, 88 Stat. 1896 (1974), is codified at 5 U.S.C. § 552a. 1 K. Davis, Administrative Law Treatise § 5:43 (2d ed. 1982 Supp.). Section 2 of the Privacy Act, which contains an enumeration of Congress' findings and purposes, is set out only in the statutes-at-large. Section 2 provides:

"Sec. 2(a) The Congress finds that— (1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies;
(2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information;
(3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems;
(4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and
(5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use and dissemination of information by such agencies.
(b) 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—
(1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies;
(2) 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;
(3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records;
(4) collect, maintain, use, or disseminate any record or identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information;
(5) permit exemptions from the requirements with respect to records provided in this Act only in those cases where there is an important public policy need for such exemption as has been determined by specific statutory authority; and
(6) be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual's rights under this Act."

Both the courts15 and the commentators16 have noted the peculiar manner in which the Privacy Act was passed by Congress. In brief, the differences between the House and Senate bills were not resolved in conference. Instead, the bills were shuttled back and forth between the House and the Senate with staff members attempting to work out compromise language. The result was the enactment of a Senate bill containing primarily the House version of the Act. Further, instead of publishing a conference committee report, the proponents of the measure had a staff analysis read into the congressional record.

Notwithstanding the somewhat unusual circumstances surrounding the Act's passage, its fundamental purpose is clearly discernable: Congress was vitally concerned with the collecting agency's dissemination of sensitive and personal information to third parties. See, e.g., Detroit Edison Co. v. NLRB, 440 U.S. 301, 318-19 n.16, 99 S.Ct. 1123, 1133 n.16, 59 L.Ed.2d 333 (1978); Wren v. Harris, 675 F.2d 1144, 1145-46 (10th Cir. 1982); Houston v. Department of Treasury, 494 F.Supp. 24, 27-28 (D.D.C. 1979); Local 2047, American Federation of Government Employees v. Defense General Supply Center, 423 F.Supp. 481, 485-86 (E.D.Va.1976), aff'd, 573 F.2d 184 (4th Cir. 1978).

To control such disclosure, Congress prohibited the release of any information covered by the Privacy Act without the consent of the individual concerned, unless authorized by one of eleven specific exceptions. 5 U.S.C. § 552a(b). See, e.g., Local 2047, American Federation of Government Employees v. Defense General Supply Center, 423 F.Supp. at 485-86; Harper v. United States, 423 F.Supp. 192, 197 (D.S.C.1976).

The government does not contend that the information was released pursuant to an enumerated exception to the consent requirement. Further, neither the parties' nor the court's research has revealed any cases that are factually similar to the instant case.17

Doe's argument regarding consent proceeds along two general lines of analysis. Doe first contends that the general authorization he gave to First Federal is not an adequate consent under the Privacy Act for the release of psychiatric records. A corollary to this argument is that even if the "consent" authorized the verification of the information listed on the UCB submission, it was not sufficient to authorize the type of information actually released. Doe's second general argument is that the disclosure at issue was not in conformity with the agency's own policies and rules.

The government does not address directly Doe's first argument. Instead, the government attempts to show that the disclosure was made in conformity with the relevant agency policies.

Doe relies primarily on three administrative provisions in support of his second argument. The first is Defense Privacy Board Decision Memorandum 76-1, published on March 12, 1976.18 That decision provides, in pertinent part:

"Character of Discharge: In the case of discharges resulting from administrative processing, the character of discharge is not a matter of public record, and the procedures and/or hearing leading to discharge are not

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