Pilon v. U.S. Dept. of Justice

• Decision Date: 16 January 1996
• Docket Number: No. 95-5086,95-5086
• Citation: 73 F.3d 1111
• Parties: , 64 USLW 2455 Roger PILON, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1111

73 F.3d 1111

315 U.S.App.D.C. 329, 64 USLW 2455

Roger PILON, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 95-5086.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 22, 1995.

Decided Jan. 16, 1996.

Matthew L. Myers, Washington, DC, argued the cause and filed the briefs, for appellant.

Alfred Mollin, Attorney, United States Department of Justice, argued the cause for appellee, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, Robert E. Kopp, Attorney, and Leonard Schaitman, Attorney, were on the brief. Jeffrey F. Axelrad, Attorney, entered an appearance.

Before: WALD, RANDOLPH and ROGERS, Circuit Judges.

WALD, Circuit Judge:

This is a case about the meaning of "disclose," as that term is used in the Privacy Act of 1974. In particular, we consider under what circumstances Congress intended that "disclose" encompass the dissemination of a document to someone who is already familiar with it. The district court granted appellee Department of Justice summary judgment in this Privacy Act suit, reasoning that the agency's unauthorized release of a protected record to one of its former employees was not a disclosure because the recipient was already familiar with the document from his time in government service. We reverse. While this court interpreted "disclose" in Hollis v. United States Department of the Army, 856 F.2d 1541 (D.C.Cir.1988), not to include the dissemination by an agency of a protected document to one who had already legitimately been given the same information by the agency, we now decline to extend Hollis beyond the limited factual circumstances that gave rise to it. Hollis, read contextually, does not sanction the unauthorized release of protected records to former agency employees, and to extend its reasoning to the facts of this case would create a gaping hole in the protective orbit of the Privacy Act. Accordingly, we hold that the Department's transmission of a protected record in this case to its former employee constituted a disclosure. As a separate matter, even were we to adopt the more limited construction of "disclose" applied in Hollis in this case, we would still conclude that summary judgment was not appropriate because the Department did not present sufficient evidence that the former employee in fact remembered the document's material contents in detail at the time it was sent to him.

I. BACKGROUND

A. The Privacy Act and Hollis' Interpretation of "Disclose"

The Privacy Act of 1974 ("the Act") establishes conditions under which certain kinds of agency documents must be kept private and may be disclosed only to authorized individuals. See 5 U.S.C. Sec. 552a(b) (1994). The Act provides:

No agency shall disclose any record which is contained in a [Privacy Act] 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....

Id. (emphasis added). Not every disclosure gives rise to liability, however; the Act itself sets out several exceptions that allow agencies to utilize protected records for their legitimate needs. For example, agencies may lawfully disclose a Privacy Act record both to employees "who have a need for the record in the performance of their duties," id. Sec. 552a(b)(1), and for "routine use[s]" that are "compatible with the purpose for which it was collected," id. Sec. 552a(b)(3), 552a(a)(7). If no such exception applies, however, an agency is liable for an intentional or willful disclosure that has some adverse effect upon the subject of the record. Id. Sec. 552a(g)(1)(D), 552a(g)(4).

Hardly a model of legislative "precision and tailoring," the Act was passed as a result of a late-session congressional compromise, with several of its central terms lacking express definition. See generally 2 JAMES T. O'REILLY, FEDERAL INFORMATION DISCLOSURE Sec. 20.01 (2d ed. 1990). The courts thus have been required to engage in substantial interpretative efforts, as government agencies have sought to accommodate their recordkeeping operations to the constraints that a literal reading of its terms might impose. See, e.g., infra note 7 and accompanying text (citing cases).

Perhaps the most critical term left undefined by the Act is "disclose," and among the interpretative questions that term raises is whether it encompasses the release of an otherwise protected record to an individual who is already familiar with its contents. Several federal courts have concluded, in a variety of diverse circumstances, that such a release of information does not give rise to liability under the Act, averring the "common sense" notion that it is not possible to "disclose" something to someone who already knows it. See, e.g., Quinn v. Stone, 978 F.2d 126, 134 (3d Cir.1992); Kline v. Department of H.H.S., 927 F.2d 522, 524 (10th Cir.1991); Hollis, 856 F.2d at 1545; Reyes v. Supervisor of D.E.A., 834 F.2d 1093, 1096 n. 1 (1st Cir.1987); Pellerin v. Veterans Admin., 790 F.2d 1553, 1556 (11th Cir.1986); F.D.I.C. v. Dye, 642 F.2d 833, 836 (5th Cir. Unit B 1981).

This restricted interpretation of "disclose" was applied by this circuit in Hollis v. United States Department of the Army, 856 F.2d 1541 (D.C.Cir.1988). In that case, Phyllis Hollis requested and received from the Army a summary of individual child-support payments previously deducted from her ex-husband's salary and sent directly to her. She needed the summary to establish in court that her ex-husband was in arrears in furnishing child support. Mr. Hollis then filed suit against the Army, arguing that the summary was a protected record that had been unlawfully disclosed under the Privacy Act. The district court granted the Army summary judgment, and we affirmed, reasoning that "Phyllis Hollis, as the direct recipient of the child-support payments, already knew what had been remitted to her." Id. at 1543.

B. The Pilon Case

The present appeal involves appellant Roger Pilon's claim that appellee Department of Justice ("the Department") violated his rights under the Privacy Act when one of its employees faxed a confidential memorandum to Peter Nowinski, a private citizen, who in turn passed it on to a reporter. In defense, the Department invokes Hollis, arguing that Nowinski, a former Department employee, was already familiar with the document from exposure to it while in government service. While these are the basic determinative facts governing the "disclosure" question, we set forth a somewhat more detailed factual background, which the parties do not dispute, to place the Privacy Act issue in context.

1. The Allegation and First Vindication

In March 1987, Roger Pilon was named the Director of the Asylum Policy and Review Unit of the Department of Justice. Soon thereafter, his wife was nominated to be an Assistant Secretary of the Department of the Interior. In January 1988, however, both were informed that they were the subjects of a Federal Bureau of Investigation ("F.B.I.") inquiry into whether they had illegally given a classified document to a foreign government. Pilon was then placed on administrative leave from the Department, ¹ and in April of that year, the Reagan Administration withdrew his wife's nomination.

At the close of the nine-month investigation, the F.B.I. declined to recommend that a criminal prosecution be instituted. The Office of Professional Responsibility ("O.P.R.") of the Department of Justice then conducted its own inquiry, and ultimately recommended that Pilon be asked to resign or, if he refused, that his appointment be terminated. The Pilons, who for security reasons have never been informed of the evidence underlying the allegations, adamantly denied any wrongdoing. They therefore arranged for their personal attorney (who had a security clearance) to review the evidence underlying the allegations and prepare a rebuttal. After reviewing the rebuttal, the Attorney General ordered that a de novo review of the matter be conducted.

That review was completed in the Fall of 1988 as communicated in a letter to Pilon, which stated in full:

This is to inform you that the investigations undertaken by the Federal Bureau of Investigation and the Office of Professional Responsibility have now been completed. You will be reinstated as Director of the Office of Asylum Policy and Review as of September 19, 1988. No implication adverse to you should be taken from the investigations.

I want to thank you for the outstanding cooperation and patience you have demonstrated during this time. I look forward to your return.

Letter from Dee V. Benson, Principal Associate Deputy Attorney General, to Roger Pilon (Sept. 9, 1988), available in Joint Appendix at 64. Though Pilon was reinstated in full--with his Top Secret security clearance intact--within a month, he elected to leave the Department for a position with a private organization.

During this period of time, information to the effect that the Pilons were under investigation apparently was twice leaked to the media: once at the outset of the de novo review, and again after the Pilons were cleared. Neither leak resulted in a published news story.

2. The Second Vindication

With the closure of the de novo review, it appeared that the Pilons had put this matter behind them. In November 1989, however, the Department released O.P.R.'s 1988 Annual Report to the Attorney General ("the Report"), which published the allegations for the first time. According to the Report:

Representative examples of misconduct investigated by the Office are as follows:

(1) A Departmental attorney holding a high security clearance was the subject of a foreign counterintelligence investigation. The information indicated that the employee may have been involved in the disclosure of classified information to a foreign government. The investigation...