Savarese v. United States Dept. of Health, Civ. No. C78-243A.

• Decision Date: 27 September 1979
• Docket Number: Civ. No. C78-243A.
• Citation: 479 F. Supp. 304
• Parties: Charles J. SAVARESE, Jr. v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE and George A. Reich.
• Court: U.S. District Court — Northern District of Georgia

479 F. Supp. 304

Charles J. SAVARESE, Jr. v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE and George A. Reich.

Civ. No. C78-243A.

United States District Court, N. D. Georgia, Atlanta Division.

September 27, 1979.

Drew A. Laughlin and William M. Bowen, Bowen, Cooper, Beard & Smoot, Hilton Head Island, S. C., John J. Dalton and Daniel S. Reinhardt, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for plaintiff.

William L. Harper, U. S. Atty. and Robert J. Castellani, Asst. U. S. Atty., Atlanta, Ga., for defendants.

ORDER

O'KELLEY, District Judge.

This action brought pursuant to the public information provisions of the Privacy Act, 5 U.S.C. § 552a et seq., and the law of defamation is before the court on both plaintiff's and defendants' motions for summary judgment. Plaintiff alleges that certain information contained in the records of the United States Public Health Service of the Department of Health, Education and Welfare is "inaccurate, incomplete, false and misleading." Plaintiff further alleges that he has requested that the records in question be reviewed and amended so as to correct the alleged inaccuracies and that defendants have refused to comply with his request. Plaintiff not only seeks to have the alleged inaccuracies corrected pursuant to 5 U.S.C. § 552a(g)(1)(A) but also seeks damages pursuant to 5 U.S.C. § 552a(g)(4). Finally, plaintiff states a pendent claim under the law of defamation.

In 1976 plaintiff in this action was a commissioned officer in the United States Public Health Service of the Department of Health, Education and Welfare. In July of that year plaintiff was stationed at Beaufort-Jasper Comprehensive Health Service, Inc. in South Carolina. While plaintiff was stationed in South Carolina some disagreement arose between plaintiff and his superiors concerning alleged absences by plaintiff from his duty station. Defendant Reich, acting as Regional Health Administrator for Region IV of the Public Health Service and as plaintiff's superior officer, made some attempts to remedy whatever misunderstandings had occurred. During July plaintiff agreed to a transfer from the Beaufort-Jasper clinic to a public health facility in Tchula, Mississippi. Defendants contend that plaintiff absented himself without leave from the Beaufort-Jasper clinic prior to receiving transfer orders to proceed to Mississippi. A declaration to that effect is contained in the central records of the Public Health Service in Rockville, Maryland. Plaintiff's absence without leave status was removed upon his arrival in Mississippi. Plaintiff contends that at no time was he absent without leave and seeks correction of the records in question.

In May of 1977 the Public Health Service issued orders relieving plaintiff of his duties and terminating his appointment as a commissioned officer in the Public Health Service. Subsequent to plaintiff's termination, defendant Reich was contacted by representatives of the Department of Family Medicine of East Carolina Medical School. During one telephone conversation Dr. Reich indicated a negative experience regarding the plaintiff's obedience to rules and regulations. Dr. Reich also indicated that there had been prolonged problems with plaintiff's employment and that at one time he had been absent without leave. This report was formalized in a letter from defendant Reich to the Chairman of the Department of Family Medicine at East Carolina Medical School. In that letter defendant Reich confirmed his recommendation that plaintiff not be hired and again indicated that plaintiff was absent without leave on at least one occasion. The telephone conversations as well as the letter form the basis of plaintiff's claim for damages under the Privacy Act and for defamation.

Section 552a(d) of the Act states in part that

each agency that maintains a system of records shall—

. . . . .

(2) permit the individual to request amendment of a record pertaining to him and—

. . . . .

(B) promptly, either—

(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request

. . . . .

The agency is not required to place information into its records simply because the subject in question requests such action, and neither is the agency required to remove information from its records upon request. The agency is, however, required 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 . . ..

5 U.S.C. § 552a(e)(5). This test of reasonableness has been applied by the courts in cases such as the present one, so that if the court determines that the agency has done what is reasonable in assuring the accuracy of the information included, no more is required. See Smiertka v. U. S. Department of Treasury, 447 F.Supp. 221, 226 n.35 (D.D. C.1978), remanded on other grounds, 196 U.S.App.D.C. 34, 604 F.2d 698 (D.C. Cir. 1979).

Defendant seeks to establish through a great deal of evidence that it acted reasonably in placing information in plaintiff's file concerning poor job performance and the circumstances of an incident in which plaintiff was allegedly absent without leave. In opposition to defendants' motion for summary judgment on this ground, plaintiff points to a portion of an exhibit to defendants' answers to interrogatories. Said exhibit is a copy of a letter from plaintiff to defendants. In that communication plaintiff sets out in detail the basis for his claim that the records involved contain false information which should be changed. This letter and the details set out therein materially contradict defendants' version of the facts and, if proven, a factual basis for relief may be shown. Clearly, however, there is a factual dispute not only as to whether the information in the report is true but, more importantly, whether the agency's determination was made reasonably so as to assure fairness to the plaintiff. See 5 U.S.C. § 552a(e)(5). Factual issues concerning reasonableness are not easily disposed of on summary judgment, and where, as here, the facts are clearly in dispute, summary judgment is particularly inappropriate. Accordingly, defendants' motion for summary judgment as to count I is hereby denied. Plaintiff's motion for summary judgment does not address count I.

Plaintiff alleges in count II that defendant Reich, having access to agency records, did unlawfully disseminate information contained therein. Both plaintiff and defendants have moved for summary judgment as to count two. Section 552a(b) of Title 5 of the United States Code forbids disclosure of

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 . . ..

There are, in addition, eleven exceptions to this rule. The defendants do not contend that any of those exceptions apply in this case. Instead, defendants contend that the information disclosed was not in a "system of records" as defined by the Act and the information disclosed was based on independent knowledge and not agency files. A "system of records" as defined by the Act consists of any group of agency 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 . . ..

5 U.S.C. § 552a(a)(5). Defendant contends that the information disclosed was contained only in the general correspondence and program files which are not keyed for retrieval by means of names or name-related identifiers; hence, there being no "system of...