Dong v. Smithsonian Institution, Civ. A. No. 94-628 (GK)

• Decision Date: 28 February 1995
• Docket Number: Civ. A. No. 94-628 (GK),Motion No. 6-1.
• Citation: 878 F. Supp. 244
• Parties: Margaret DONG, Plaintiff, v. The SMITHSONIAN INSTITUTION, Defendant.
• Court: U.S. District Court — District of Columbia

878 F. Supp. 244

Margaret DONG, Plaintiff, v. The SMITHSONIAN INSTITUTION, Defendant.

Civ. A. No. 94-628 (GK), Motion No. 6-1.

United States District Court, District of Columbia.

February 28, 1995.

Joseph V. Kaplan, Passman & Kaplan, P.C., Washington, DC, for plaintiff.

Robert L. Shapiro, U.S. Attorney's Office, Washington, DC, for defendant.

MEMORANDUM-OPINION

KESSLER, District Judge.

I. Introduction and Procedural History

Plaintiff Margaret Dong brings this action under the Privacy Act, 5 U.S.C. § 552a, against her employer, the Smithsonian Institution for damages due to Defendant's alleged breach of its statutory obligations regarding the collection of employment information under 5 U.S.C. Section 552a(e)(2).¹

Plaintiff filed her Complaint on March 16, 1994. On May 20, 1994, Defendant filed the instant Motion to Dismiss, to which Plaintiff responded on June 13, 1994, and Defendant replied on June 23, 1994. Upon consideration of the Motion, Plaintiff's Opposition, Defendant's Reply, Defendant's "Further Memorandum," Plaintiff's Response to the Defendant's Further Memorandum, oral arguments by counsel at the September 13, 1994 Status Conference, the applicable statutory and case law, and the file in this case in its entirety, the Court concludes that Defendant's Motion to Dismiss shall be denied for the reasons stated below.

II. Statement of Facts²

Plaintiff Margaret Dong is employed as a Museum Registration Specialist by the Hirshhorn Museum and Sculpture Garden, in Washington, D.C., which is a museum within the Defendant Smithsonian Institution. In her Complaint, Plaintiff alleges that two of her supervisors at the Hirshhorn engaged in an investigation in violation of the Privacy Act by failing to first discuss charges of alleged misconduct with her before commencing the investigation and disclosing the nature of the charges against her inside and outside of the Smithsonian. Plaintiff claims damages for, inter alia, the emotional trauma she suffered as a result of Defendant's actions, and the harm to her professional reputation that ensued.

The sole issue raised by Defendant's Motion to Dismiss is whether the Smithsonian is an "agency" under the Privacy Act, 5 U.S.C. § 552a, and thus subject to the requirements of the Act. If the Smithsonian does not constitute an agency under the Privacy Act, then this action is properly dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6).

The Court acknowledges that the answer to this challenging question of statutory construction is not entirely clear. However, for all the reasons set out below, the Court concludes that the Smithsonian is covered by the Act, and that Defendant's Motion must, therefore, be denied.

A. The Relevant Statutory Language

The Privacy Act sets out certain requirements for "each agency that maintains a system of records" and provides for civil remedies against "any agency" in certain circumstances. 5 U.S.C. § 552a(e), (g)(1). According to the Act, "the term `agency' means agency as defined in section 552(e) of this title," which is part of the Freedom of Information Act (FOIA). 5 U.S.C. § 552a(a)(1).

Under recent amendments to FOIA, the definition of agency is now contained in FOIA section 552(f) rather than the section referenced in the Privacy Act, 552(e). Section 552(f), in turn, refers to the definition of "agency" in the Administrative Procedure Act, 5 U.S.C. § 551(1), and provides:

For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. § 552(f) (emphasis added).

The definition of agency in the Administrative Procedure Act provides that "`agency' means each authority of the government of the United States, whether or not it is subject to review by another agency." 5 U.S.C. § 551(1). The statute sets out the following exceptions to this general definition of agency: the Congress; the Courts of the United States; the governments of territories or possessions of the United States; the government of the District of Columbia; agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; courts of martial and military commissions; military authority exercised in the field in time of war or in occupied territory; or functions conferred by certain sections of Title 5 which do not apply here. 5 U.S.C. §§ 551(1)(A)-551(1)(H).

Thus, the language of the Act provides that, to be covered by the Privacy Act, the Smithsonian merely has to qualify as an "authority of the United States, whether or not it is subject to review by another agency." The term "authority" is not defined. However, we start our analysis by noting that the definition of agency is an inclusive one. The fact that Congress used the term "includes" in Section 552(f) strongly suggests that the definition does not apply only to the entities listed—that is, executive departments, military departments, Government corporations, Government controlled corporations, other establishments in the executive branch of the government, and independent regulatory agencies. Otherwise, had Congress intended to limit the definition to the above-named entities, it could have done so easily by including a limiting word or phrase such as "only" or "limited to". In short, Congress's choice of the term "includes" leads to the conclusion that Congress meant to keep the definition broad enough to cover not only these entities listed, but other national entities as well.

On the other hand, Congress chose to specifically exclude eight different governmental entities from its definition of "agency" in Section 551(1). Significantly, the Smithsonian is not one of the eight entities specifically excluded from coverage of the Act. Therefore, as long as it is not excluded from the Act by virtue of the eight categories listed in Section 551(1), and given the inclusiveness of Section 552(f) as well as the failure of Congress to provide any limiting definition of the term "authority", the Court concludes that the Smithsonian does not have to be an "executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government ... or any independent regulatory agency" to qualify as "an authority of the Government of the United States" and thus constitute an agency under the Privacy Act. 5 U.S.C. § 551(1).

Given the imprecision of the statute itself, the Court will also look to the Act's legislative history and to the relevant case law for further guidance.

B. Legislative History of the Act

The legislative history of the Freedom of Information Act is also less than clear and conclusive on whether the Smithsonian constitutes a FOIA agency. The legislative history that is available, however, does indicate an intent to establish a broad definition encompassing entities which, while not technically a part of the federal government itself, are characterized by substantial governmental involvement and control.

For example, Congress amended FOIA in 1974 in order to broaden the definition of "agency" to encompass more entities "which perform governmental functions and control information of interest to the public." H.R.Rep. No. 876, 93d Cong., 2d Sess. 8 (1974), reprinted in U.S.Code Cong. & Admin.News 1974, 6267, 6274 (hereinafter "House Report"); quoted in Meyer v. Bush, 981 F.2d 1288, 1298 (D.C.Cir.1993) (Wald, J., dissenting); see also H.R.Rep. No. 93-1380, 93rd Cong., 2d Sess., September 25, 1974, reprinted in FOIA Source Book: Legislative History, Texts, and Other Documents, Committee on Government Operations, U.S. House of Representatives 219, 231 (hereinafter "Conference Report") (stating that the conference substitute follows the House bill).

According to the House Report, the definition of "agency" under FOIA (and the Privacy Act) is broader than its definition under the APA. Id. Although the FOIA definition applies to governmental entities as well as government-controlled corporations, it does not apply to "corporations which receive appropriated funds but are neither Chartered by the Federal Government nor controlled by it." Conference Report, supra, at 231-32. This focus on governmental involvement in FOIA's definition of "agency" is designed to further FOIA's purpose to protect "the right of the individual to be able to find out how his or her government is operating." H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5 (1966), 1966 U.S.Code Cong. & Admin.News at 2418, 2423.

Both of the excerpts from the legislative history cited above suggest that Congress intended that the determination of agency status under FOIA and the Privacy Act depend largely on the nature and extent of an entity's relationship with the federal government, i.e., the greater the governmental involvement and control, the more likely that the entity would be considered a covered agency. Such an analysis is properly applied in this case.³

C. Precedent

Although courts have ruled on the "agency" status of numerous entities, they have not developed any uniform test for making such a determination. See, generally, Richard P. Shafer, Annotation: The Meaning of the Term "Agency" for Purposes of the Freedom of Information Act, 57 A.L.R.Fed. 295 (1994). Some courts, however, have enunciated that two factors are relevant to the determination of agency status: (1) whether the entity has "independent decisional authority", and (2) whether the entity is subject to "day-to-day federal control". Public Citizen Health Research Group v. Department of Health, Education and...