______________________________________________________________________________



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________________________________________________________



Docket No. 95-0330



______________________________________________________________________________



STEPHANIE FORESTER,

Plaintiff-Appellant,

-versus-

DEPARTMENT OF HEALTH

AND HUMAN SERVICES,

Defendant-Respondent.



______________________________________________________________________________





BRIEF FOR RESPONDENT



______________________________________________________________________________








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Dr. MICHAEL A. S. GUTH, Ph.D., J.D.
Attorney at Law
Licensed in Tenn. since 1998
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TABLE OF CONTENTS

Page



TABLE OF AUTHORITIES iii

QUESTIONS PRESENTED v

JUDGMENT BELOW 1

JURISDICTION 1

STATEMENT OF THE CASE 1

SUMMARY OF THE ARGUMENT 6

STANDARD OF REVIEW 8

ARGUMENT 8



I. THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS) DID NOT VIOLATE THE PRIVACY ACT BY DISCLOSING, IN RESPONSE TO A FREEDOM OF INFORMATION ACT (FOIA) REQUEST, REDACTED RECORDS ON A FORMER DHHS REGIONAL MANAGER THAT INDIRECTLY REFERENCED A FORMER EMPLOYEE'S PERSONNEL COMPLAINT. 8



A. The public had a significant interest under FOIA in the release of these records, which shed light on DHHS operations in the Northern Tennessee region. 9



B. DHHS's performance is linked to its managers' performance, and when a former manager announces his candidacy for high public office, records on that manager's performance at DHHS properly belong in the public domain. 11



C. In comparison, Forester, whose employee complaint was indirectly referenced by these records, had a minimal interest in having DHHS withhold these records to prevent any possible invasion of her privacy. 14



II. FORESTER FAILED TO ADDUCE MATERIAL EVIDENCE THAT DHHS ACTED INTENTIONALLY OR WILLFULLY TO VIOLATE HER PRIVACY RIGHTS AND THEREBY PERMIT RECOVERY OF DAMAGES UNDER THE PRIVACY ACT. 18



A. The discovery evidence indicated DHHS acted with care and concern in the release of these records rather than in a "willful and intentional" manner or with reckless disregard for Forester's privacy rights. 18



B. Evidence from discovery revealed that the efforts of "diligent researchers" proximately caused the harm Forester sustained, not DHHS's release of the records in dispute. 22



CONCLUSION 26

APPENDIX: STATUTORY AND REGULATORY PROVISIONS 27

TABLE OF AUTHORITIES



United States Supreme Court Cases



Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 20



Department of the Air Force v. Rose, 425 U.S. 352 (1975) 15



Environmental Protection Agency v. Mink, 410 U.S. 73 (1973) 10



Garrison v. Louisiana, 379 U.S. 64 (1964) 13



Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 13



Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) 17



Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) 13



National Labor Relations Bd. v. Robbins Tire and Rubber Co.,

437 U.S. 214 (1978) 14



New York Times v. Sullivan, 376 U.S. 254 (1964) 12, 14



Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971) 13



United States Dep't of Defense v. Federal Labor Relations Auth.,

114 S. Ct. 1006 (1994) 15



United States Dep't of Justice v. Reporters Comm. for Freedom of the Press,

489 U.S. 749 (1989) 9, 10



United States Dep't of State v. Ray, 112 S. Ct. 541 (1991) 10, 15



Whitney v. California, 274 U.S. 357 (1927) 12, 13





United States Court of Appeals Cases



Albright v. United States (II), 732 F.2d 181 (D.C. Cir. 1984) 19



Edison v. Department of the Army, 672 F.2d 840 (11th Cir. 1982) 22



Hannover Ins. Co. v. American Eng'g Co., 33 F.3d 727 (6th Cir. 1994). 8



Henson v. NASA, 14 F.3d 1143 (6th Cir. 1994) 19



Hewitt v. Grabicki, 794 F.2d 1373 (9th Cir. 1986) 22



Laningham v. United States Dep't of the Navy, 813 F.2d 1236 (D.C. Cir. 1987) 19



Moskiewicz v. United States Dep't of Agric., 791 F.2d 561 (7th Cir. 1986) 19



Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993) 9, 15, 16, 23, 24



Schell v. Department of Health and Human Services, 843 F.2d 933

(6th Cir. 1988) 15



Wisdom v. Department of Hous. and Urban Dev., 713 F.2d 422 (8th Cir. 1983),

cert. denied, 465 U.S. 1921 (1984) 19







Statutes and Federal Rules



5 U.S.C. 552(b) (1988) 8, 10, 11



5 U.S.C. 552(b)(6) (1988) 8, 15



5 U.S.C. 552a(b) (1988) 8, 21



5 U.S.C. 552a(g) (1988) 1, 22



5 U.S.C. 552a(g)(1)(D) (1988) 1, 2, 18, 22



Fed. R. Civ. P. 56 2, 20, 21





Regulations



45 C.F.R. 5.67 (1993) 23, 24





Legislative History



121 Cong. Rec. 40,406 (1974) 19





QUESTIONS PRESENTED



I. Did a federal agency violate the Privacy Act when it responded to a request under the Freedom of Information Act by disclosing personnel records on the names, positions, and branch offices of employees supervised by a former manager in the agency, as well as the existence of a personnel complaint against that manager filed by one of these employees, where the agency redacted the complainant's name and listed the substance of the complaint as confidential?



II. Did a federal agency violate the Privacy Act in a manner that was "willful and intentional" or in reckless disregard for an employee's personal privacy when it released personnel records that indicated an employee, whose name was redacted, had filed a confidential complaint against her supervisor?



JUDGMENT BELOW

The judgment of the United States District Court for the Eastern District of Tennessee, Civ. 94-05930, is not officially reported but is contained in the record. (Order, R. 12-14).

JURISDICTION

This court has jurisdiction to hear this appeal under 28 U.S.C. 1291 (1988), a United States District Court having entered final judgment dismissing the Plaintiff's Complaint with prejudice in this civil action on February 6, 1995. Plaintiff filed timely Notice of Appeal on February 6, 1995. The United States District Court had subject matter jurisdiction to hear this case under 28 U.S.C. 1331 (1988), the Plaintiff having raised a federal question claim pursuant to the Privacy Act, 5 U.S.C. 552a(g)(1)(D) (1988).



STATEMENT OF THE CASE

Procedural History

Stephanie Forester, a former employee of the U. S. Department of Health and Human Services (DHHS), seeks to recover statutory and actual damages under the Privacy Act resulting from DHHS's disclosure of records pertaining to a complaint she filed against her former supervisor, Clark Garrison. (Compl., R. 2-3). Forester alleged that DHHS violated her rights under the Privacy Act, 5 U.S.C. 552a(g) (1988), and filed a Complaint in the U.S. District Court for the Eastern District of Tennessee on December 27, 1994. (Compl., R. 1 and 3).

DHHS answered the complaint on January 5, 1995, and denied any liability to Ms. Forester for its release of the records based on the Freedom of Information Act (FOIA) exemption to the Privacy Act. (Answer, R. 6-7). Additionally, DHHS raised the defense that Forester's Complaint failed to state a claim on which relief could be granted. (Answer, R. 7). Discovery in the case included an affidavit of the FOIA requester as well as a deposition of the DHHS employee relations manager who released the records. (Aff., R. 8, Dep., R. 9-10). Pursuant to Rule 56 of the Fed. R. Civ. P., the Defendant, DHHS, moved for summary judgment on January 10, 1995. (Mot., R. 11).

The district court granted DHHS's Motion, based on its finding that Forester had failed to offer any evidence that DHHS acted in a manner that was "intentional and willful," so as to permit the award of damages under 5 U.S.C. 552a(g)(1)(D) (1988). (Order, R. 14). The court entered judgment for DHHS on February 6, 1995, and Ms. Forester filed a timely Notice of Appeal on that same day. (Order, R. 14; Notice of Appeal, R. 15).



Statement of Facts

From September 1990 to May 1993, DHHS employed Stephanie Forester as an Analyst in its Northern Tennessee Regional Office, Ethron Branch. (Compl., R. 1; Answer, R. 6). Ms. Forester is currently employed by the Ethron Public School System as Principal of Ethron Junior High School. (Compl., R. 1; Answer, R. 6). When Forester was working for DHHS, Clark Garrison served as the immediate supervisor to her and thirteen other employees. (Compl., R. 1; Answer, R. 6). After leaving his managerial position with DHHS, Mr. Garrison subsequently announced his candidacy for Governor of Tennessee. (Compl., R. 2; Compl. Ex. A, R. 4; Aff., R. 8; Dep., R. 10).

In July 1994, Robert Hughes, Assistant Director for Employee Relations of the DHHS Northern Tennessee regional office received a request for information about Clark Garrison under the Freedom of Information Act (FOIA). (Aff., R. 8; Dep., R. 9). The FOIA request came from Gilbert Lamont, Chairman of the citizen group Informed Voters Alliance. (Compl. Ex. A, R. 4; Aff., R. 8). Mr. Lamont asked for Mr. Garrison's personnel records, the names and addresses of any employees Mr. Garrison supervised, the names of any employees who made complaints about Mr. Garrison to the Employee Relations department, the substance of any such complaints, and any action taken by DHHS in regard to any complaints. (Compl. Ex. A, R. 4; Aff., R. 8).

The information Mr. Hughes released on behalf of DHHS, by letter dated July 13, 1994, showed the names, job title, and office location of fourteen employees formerly supervised by Clark Garrison, as well as the existence of a complaint filed by an Analyst in the Ethron Branch against Mr. Garrison on April 22, 1993. (Compl. Ex. B, R. 5). To protect Ms. Forester's privacy rights, DHHS had redacted the complainant's name. (Compl. Ex. B, R. 5; Dep., R. 9-10). In addition, DHHS labeled the subject matter of the complaint as "Confidential." (Compl. Ex. B, R. 5; Dep., R. 9-10). The records released by DHHS showed three employees were Analysts in the Ethron office. (Compl. Ex. B, R. 5). In his deposition, Mr. Hughes expressed concern that the employees formerly supervised by Garrison might not want their names given out, but he stated "investigating former government employees who run for public office is extremely important work -- it can benefit a lot of people." (Dep., R. 10). His superiors at DHHS determined the public interest in disclosure outweighed the employees' privacy interests in withholding, and they instructed Hughes to release the redacted records pursuant to FOIA. (Dep., R. 10; Compl. Ex. B, R. 5).

Shortly after receiving the DHHS response, Lamont telephoned Hughes to obtain the home addresses of the employees on the list released by DHHS and to learn why DHHS had labeled the subject matter of the complaint against Garrison as confidential. (Aff., R. 8; Dep., R. 9). Mr. Hughes responded that he could not disclose home addresses or any further information specific to the employee complaint against Garrison. (Aff., R. 8; Dep., R. 9-10). Mr. Hughes advised Lamont that DHHS has a general policy of keeping certain types of employee grievances confidential; the confidentiality policy aims to encourage employees to come forward with their concerns about fair treatment. (Aff., R. 8; Dep., R. 9). If an employee prefers to speak "off the record" concerning any type of grievance, DHHS respects his or her preference. (Dep., R. 10). To illustrate one type of grievance that DHHS keeps confidential, Hughes informed Lamont that "complaints that supervisors are harassing or discriminating against employees because of age, race, sex, or physical disability" would be kept confidential. (Aff., R. 8; Dep., R. 9). DHHS has continued to adhere to this confidentiality policy, even up to the time of filing of this Brief, by neither commenting on nor disclosing the substance of the employee complaint against Clark Garrison. (Answer, R. 6-7; Dep., R. 9-10).

In an effort to learn the identity of the complainant independent of DHHS, Mr. Lamont telephoned at work Shannon MacKechne, an Analyst in the Ethron Branch of DHHS, on or about July 20, 1994. (Aff., R. 8). Lamont asked MacKechne if she knew who filed the complaint against Mr. Garrison. (Aff., R. 8). MacKechne responded that she had not filed the complaint. Lamont then asked to speak to either Stephanie Forester or Calbert Strickland. (Aff., R. 8). After learning Forester had left DHHS the previous year, Lamont then telephoned Stephanie Forester on or about July 21, 1994, and asked her why she had filed the complaint against Clark Garrison. (Compl., R. 1; Aff., R. 8). Ms. Forester responded that she had nothing to say about her employment at DHHS and asked Mr. Lamont not to call her again. (Compl., R. 2; Aff., R. 8).

Within a week, Lamont had given a copy of the DHHS response and his notes to the Ethron Weekly Clarion, a local newspaper. (Aff., R. 8). On July 28, 1994, the Ethron Weekly Clarion printed a story about Clark Garrison and a picture of Ms. Forester with the caption, "She's not talking about her former boss now." (Compl., R. 2; Compl. Ex. C, R. 5). Since then, reporters and representatives of various publications and organizations have telephoned or visited Ms. Forester, who has become the subject of newspaper articles throughout the state. (Compl., R. 2). Ms. Forester objected to the unwanted publicity and filed a Complaint against DHHS on December 27, 1994. (Compl., R. 1-3).

As of December 27, 1994, neither Forester nor DHHS had confirmed that she was the employee who had filed the complaint listed on Clark Garrison's personnel file. The Answer filed by DHHS on January 5, 1995, acknowledges that Forester filed a complaint against Garrison while she was a DHHS employee. (Answer, R. 7). In a deposition taken to prosecute this action, Robert Hughes disclosed that he had spoken to Forester in April 1994, and he had promised Forester that her concerns about Garrison would remain confidential. (Dep., R. 10). Mr. Hughes, on behalf of DHHS, did not "reveal the contents of any confidential records or break any promises to anybody." (Dep., R. 10) In keeping with that promise, DHHS has not disclosed the substance of any grievance or complaint Forester may have filed against any employee of DHHS.



SUMMARY OF THE ARGUMENT

Ordinarily, a federal agency can disclose information in response to a Freedom of Information Act (FOIA) request without violating anyone's rights under the Privacy Act. However, if the FOIA request seeks confidential records, the agency must first redact or segregate all confidential information about any identifiable person before releasing the records sought under FOIA. Accordingly, before releasing the list of employees and the record on the existence of an employee complaint against Clark Garrison, the former manager of DHHS's Northern Tennessee regional office, DHHS redacted the complainant's name and labeled the complaint as "confidential." Once DHHS had created redacted records that violated no employee's privacy rights, it was compelled to release these records under FOIA.

To determine the propriety of disclosing confidential information that indirectly references an individual, an agency must balance the public's interest in disclosure against that individual's interest in privacy. The public has a compelling interest that far outweighed any privacy interest held by the Plaintiff-Appellant, Stephanie Forester, in the records DHHS released under FOIA. The public interest cognizable under FOIA is assessing an agency's performance of its statutory duties; conversely, records that shed light on agency performance have a compelling public interest. The records disclosed by DHHS in this case would enable the public to learn how DHHS allocates public funds for Northern Tennessee, what types of skills are required to perform DHHS's statutory duties in Tennessee, how DHHS distributes resources among the branches in the Northern Tennessee region, and how smoothly the regional office operated under its former manager, Clark Garrison. Since Mr. Garrison is currently campaigning for Governor of Tennessee, the public would naturally want to learn about DHHS's regional operations to assess Mr. Garrison's qualifications.

Ms. Forester by comparison had a minimal privacy interest in the records released on Garrison: avoiding ancillary publicity if the press deduced that she was the employee who had complained about Garrison. Indeed the relevant Sixth Circuit precedent indicates Forester had no privacy interest to justify withholding any and all fragments of information that might assist a diligent researcher in identifying Forester as the complainant. DHHS released records that did not identify Stephanie Forester as the complainant. Consequently, Forester has no bonafide Privacy Act claim against DHHS.

Furthermore, the district court correctly held that Forester failed to provide any evidence that DHHS "intentionally or willfully" violated the Privacy Act or acted in reckless disregard for her privacy rights. In fact, discovery in this case showed otherwise: DHHS cautiously took various steps to protect its employees' privacy rights prior to releasing the records on Garrison. (Dep., R. 9-10). Accordingly, DHHS respectfully requests this court to affirm the trial court's decision granting judgment in favor of DHHS.

STANDARD OF REVIEW

I. and II. The standard of review for appellate courts of summary judgments by a trial court is de novo. Hannover Ins. Co. v. American Eng'g Co., 33 F.3d 727, 730 (6th Cir. 1994).





ARGUMENT





I. THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS) DID NOT VIOLATE THE PRIVACY ACT BY DISCLOSING, IN RESPONSE TO A FREEDOM OF INFORMATION ACT (FOIA) REQUEST, REDACTED RECORDS ON A FORMER DHHS REGIONAL MANAGER THAT INDIRECTLY REFERENCED A FORMER EMPLOYEE'S PERSONNEL COMPLAINT.





The records released by DHHS on Clark Garrison, a former manager of DHHS's Northern Tennessee regional office, complied with the requirements of both FOIA and the Privacy Act; hence, DHHS is not subject to liability for violating Forester's privacy rights. The Privacy Act exempts federal agencies from liability for any harm caused by the release of records in response to a FOIA request. See 5 U.S.C. 552a (b)(2) (1988). The relevant portion of the Privacy Act states:





No agency shall disclose any record which is contained in a system of records by an 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 . . . required under section 552 of this title [FOIA].





5 U.S.C. 552a(b), 552a(b)(2) (1988). Under FOIA, an agency must disclose the information sought by the requester unless the agency can invoke one of nine exemptions specified in that Act. See 5 U.S.C. 552(b) (1988). One exemption protecting personal privacy applies to "medical and personnel records." 5 U.S.C. 552(b)(6) (1988). The issue in this case is whether the public interest in the redacted personnel records on Garrison outweighed Forester's personal privacy interest against disclosure. DHHS examined this issue in detail and concluded that FOIA required it to release these records. (Dep., R. 9-10)

The public had and still has a compelling interest in the disclosure of these redacted records. The public's interest is undergirded by two lines of decisions from the U. S. Supreme Court. The first line concerns the public's right to monitor agency performance, including the performance of an agency manager, under FOIA. The second line of decisions concerns the vital role in our democratic society played by disclosing facts and track records of candidates for public office.

Against this enormous public interest in favor of disclosing the records on Garrison, Forester had a comparatively minor privacy interest in having the records withheld to protect any intrusion in her privacy. Since the FOIA exemptions that permit an agency to withhold information are narrowly construed, Forester has no statutory basis to claim that her privacy rights were violated by disclosing the mere existence of an employee complaint. In addition, the records released by DHHS did not identify Forester as the complainant against Garrison. These facts fit precisely within a recent Sixth Circuit precedent that stated the records in question should be released under FOIA. Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993).



A. The public had a significant interest under FOIA in the release of these records, which shed light on DHHS operations in the Northern Tennessee region.





Because the public interest under FOIA in the release of Garrison's records was so significant, DHHS was justified in releasing them. The Supreme Court's landmark decision in United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989), established guidelines for determining when records should be released under FOIA. Federal agencies should release records: (1) when they are "practically obscure," so that a party would have reason to invoke FOIA to obtain them, and (2) when the nature of the records serves the public interest. The only public interest cognizable under FOIA is "shedding light on an agency's performance and its statutory duties." Additionally, the purpose of FOIA as well as the plain language of the Act create a strong presumption in favor of disclosure and place the burden on an agency to justify withholding any requested documents. Id. at 764-80; see also United States Dep't of State v. Ray, 112 S. Ct. 541, 547 (1991).

Disclosure of a list of names and other identifying information is neither inherently nor always a significant threat to the privacy of the individuals on the list; whether disclosure represents a significant or minimal threat depends upon the characteristics revealed by virtue of being on a particular list. Ray, 112 S. Ct. at 548 n. 12. FOIA requires an agency to release segregable, nonexempt portions of a partially exempt record. Environmental Protection Agency v. Mink, 410 U.S. 73, 91 (1973); see 5 U.S.C. 552(b) (1988) (final sentence explicitly requires disclosure of any "reasonably segregable" nonexempt information).

The records released by DHHS satisfy both of the Supreme Court's guidelines favoring disclosure under FOIA. As to the obscurity guideline, the names and titles of people Clark Garrison supervised and the existence of any personnel complaints against him were "practically obscure," so that Gilbert Lamont could have obtained these records only through a FOIA request. Accordingly, the Reporters Committee holding strongly suggests that FOIA imposed a duty on DHHS to release some form of the records on Garrison.

As to the public interest guideline, releasing these records would enable the public to learn how DHHS performed its statutory duties in the Northern Tennessee regional office. Since Garrison served as manager of the DHHS Northern Tennessee regional office, information about the number of employees Garrison supervised reflects on the scale of DHHS's operations in Northern Tennessee. The employee list record shows how DHHS distributed resources among the branches in Northern Tennessee, the types of skills DHHS needs to perform its statutory duties in Northern Tennessee, and the location of branch offices by city. (Compl. Ex. B, R. 5). The employee complaint record would establish that DHHS maintains an employee grievance process and how smoothly the regional office operated under Garrison's management. Garrison's performance as a DHHS manager is integrally linked to DHHS's performance. By releasing these records, DHHS shed light on its own regional operation and performance, which is the public interest and the purpose for FOIA. Thus the records released by DHHS in the case at bar meet the public interest guideline articulated in Reporters Committee and should be disclosed under FOIA.

To withhold these records in violation of the guidelines set forth in Reporters Committee, DHHS would have to justify its action. DHHS could no longer meet its statutory burden to justify further withholding of the records, once DHHS had adequately protected its employees' privacy interests by redacting their home addresses and the name of the complainant against Garrison. See 5 U.S.C. 552(b) (1988). Consequently, FOIA mandated DHHS release the redacted records on Clark Garrison, and DHHS complied with the federal law.



B. DHHS's performance is linked to its managers' performance, and when a former manager announces his candidacy for high public office, records on that manager's performance at DHHS properly belong in the public domain.





Given that the public interest under FOIA consists solely in shedding light on agency performance of its statutory duties, questions still remain as to why the public would be interested in a particular agency's (regional) performance and how assessments of agency performance affect other matters of public concern. To answer these questions, the public interest defined in Reporters Committee should be read as part of the Supreme Court's broader decisions on the First Amendment guarantee of a free and open discourse on matters of public concern. The Supreme Court's landmark New York Times Co. v. Sullivan decision recognized that our democratic form of government depends on providing the public with access to information on the issues that confront it. In that decision the Court quoted a concurring opinion by Justice Brandeis for the historical foundation for this policy:



Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument in force in its worst form.





New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (quoting Whitney v. California, 274 U.S. 357, 375-376 (1927)). The Court emphasized, "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ." Id. The New York Times decision unequivocally championed the disclosure and publication of material related to matters of public concern, and the Court limited the award of libel damages as one means of effecting this important policy goal. Id.

The Court unanimously extended the New York Times rule in two cases involving publication of information on candidates for public office. The Court sought to guarantee public access to "anything which might touch on an official's fitness for office" and noted "[t]he principal activity of a candidate in our political system . . . consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him." Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971); accord Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971). By limiting a candidate's ability to recover damages for libel, the Court sought to encourage the free and open discussion of a candidate's qualifications for office. Citizens should properly examine a candidate's background for indications of how he might perform in office. See Roy, 401 U.S. at 275-77; Damron, 401 U.S. at 300-01 ("Public discussion about the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule."). Federal agencies that possess records on the managerial performance of a candidate for elective office cannot ignore the intent of the Supreme Court's decisions on public discourse. These agencies owe a duty under FOIA to comply with reasonable requests for information on the official performance of candidates for elective office.

The Supreme Court has even gone so far as to characterize the free flow of information to the people as a "paramount public interest." Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). To this end, any matter that touches on an official's fitness for office is relevant. "Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Id. at 344-45 (quoting Garrison v. Louisiana, 379 U.S. 64, 77 (1964)).

Elected public officials wield considerable power in our nation, and a free and open press has long been held as a check against tyranny by those in power. Whitney, 274 U.S. at 375-76. Similarly, access to information on the government by private citizens under FOIA serves a valuable social goal: to "check against corruption and to hold the governors accountable to the governed." National Labor Relations Bd. v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978). The Robbins Tire decision linked the public interest under FOIA to the Supreme Court's line of decisions on freedom of the press: both FOIA and a free press aim to provide the people with access to information needed to form intelligent debate on matters of public concern.

The records released by DHHS would enable the public to hold a candidate for public office accountable for the performance of the DHHS regional office that he managed. Clark Garrison is a candidate for Governor of Tennessee, a high-level political office. (Compl., R. 2, Compl. Ex. A, R. 4; Aff., R. 8; Dep., R. 10). Mr. Garrison's qualifications for public office, including his performance as a regional administrator of DHHS, certainly warrant public scrutiny. Accordingly, the case at bar represents a prime example of holding the "governors accountable to the governed." To foster this accountability, the records released by DHHS properly belonged in the public domain. By releasing the redacted records on Garrison, DHHS acted in a conscientious manner to enable the public to become informed about a gubernatorial candidate and complied with "the principle that debate on public issues (such as candidates for public office) should be uninhibited, robust, and wide-open." See New York Times, 376 U.S. at 270.



C. In comparison, Forester, whose employee complaint was indirectly referenced by these records, had a minimal interest in having DHHS withhold these records to prevent any possible invasion of her privacy.





FOIA required DHHS to disclose the records on Garrison, because Forester had little or no privacy interest to justify withholding these redacted records under the FOIA exemption for personnel records. The basic goal of FOIA is to open up agencies to public scrutiny, Department of the Air Force v. Rose, 425 U.S. 352, 361 (1975). Courts should narrowly construe the FOIA exemptions for withholding information, including Exemption 6 on personnel records. Id. at 372; United States Dep't of Defense v. Federal Labor Relations Auth., 114 S. Ct. 1006, 1013 (1994). FOIA Exemption 6 prohibits an agency from disclosing records that would "constitute a clearly unwarranted invasion of privacy." 5 U.S.C. 552(b)(6) (1988). Courts interpreting this provision require more than the mere possibility of an invasion of privacy before records can be withheld. Ray, 112 S. Ct. at 548-49; Schell v. Department of Health and Human Services, 843 F.2d 933, 937-38 (6th Cir. 1988). For records to be withheld under FOIA Exemption 6, they must identify a specific individual; records pertaining to a single individual whose identity cannot be determined from redacted records lies beyond the scope of Exemption 6. Ray, 112 S. Ct. at 548.

In addition, government agencies have no duty to redact any and all fragments of information that might assist a "diligent researcher" in identifying a particular individual. Norwood v. FAA, 993 F.2d at 574-75. In Norwood, the Sixth Circuit explicitly ordered the FAA to stop redacting so many fragments of personal information that it frustrated the FOIA requestor's ability to determine how the FAA had selectively reinstated air traffic controllers. Id. In Ray, where the Court upheld the withholding of Haitian refugee names under FOIA, disclosure of those names would have led to a significant invasion of their privacy including possible retaliation or persecution. Ray, 112 S. Ct. at 548-49. Unlike the Haitian refugees in Ray, the DHHS employees listed on the records DHHS released would suffer no harm by virtue of appearing on a list of employees formerly supervised by Garrison. Moreover, Forester's employment status was common knowledge and could hardly be the object of a Privacy Act claim.

The Norwood decision directly applies to the case at bar. Pursuant to the court's guidance to the FAA in Norwood, DHHS redacted an appropriate amount of information from the records in dispute including the name of the complainant against Garrison and the home addresses of its employees. (Compl. Ex. B, R. 5, Dep., R. 9-10). Like the agency in Norwood, DHHS had no duty to redact any and all fragments of information that might lead diligent researchers in the press to identify Forester as the person who filed an employee complaint against Garrison.

The records DHHS released under FOIA provided at most only a possibility that Forester's privacy would be invaded. These records indicated that DHHS employed Forester as one of three Analysts in its Ethron Branch. (Compl. Ex. B, R. 5). The records further indicated an Analyst in the Ethron Branch filed a complaint against Clark Garrison. (Compl. Ex. B, R. 5). Based on the records released by DHHS, one of three employees could have filed the complaint: Shannon MacKechne, Calbert Strickland, or Stephanie Forester. (Compl. Ex. B., R. 5). Based solely on the records released by DHHS, the identity of the complainant is indeterminate. Even if a diligent researcher could ultimately identify Forester as the complainant against Garrison, DHHS had to ignore such a possibility in deciding whether to release the records in question. See Norwood, 993 F.2d at 574-75. Consequently, the Ray and Norwood precedents indicate the redacted records fall outside the scope of FOIA Exemption 6, which means DHHS was obligated to release the records under FOIA.

Furthermore, DHHS complied with the narrow construction of FOIA Exemption 6 by releasing information only on the existence, but not the substance, of the employee complaint against Garrison. DHHS refrained from disclosing the substance of the employee complaint to protect its employees' privacy rights. DHHS has implemented an employee grievance policy that assures confidentiality when requested by an employee. An employee to whom DHHS gives assurances that her grievance will remain confidential has a bonafide privacy interest in the promise of confidentiality. The confidentiality policy encourages DHHS employees to discuss their concerns freely and without fear of reprisal. DHHS kept its promise of confidentiality and disclosed only the existence of the employee complaint. (Compl. Ex. B, R. 5; Aff., R. 8; Dep., R. 9-10). DHHS refused to elaborate further on the substance of the complaint and expressly labeled it "Confidential," (Compl. Ex. B, R. 5), which hardly substantiates a claim for a reckless or clearly unwarranted invasion of privacy.

Since both Forester and Garrison had left DHHS's employ at the time DHHS responded to the FOIA request for Garrison's records, (Compl., R. 1; Aff., R. 8; Dep., R. 10), DHHS appropriately concluded that Forester's new employment status further attenuated the risk to her privacy interest from disclosure of the records on Garrison. For all of these reasons, DHHS's disclosure of redacted personnel records on Garrison violated no provision of the Privacy Act and cannot be construed as a clearly unwarranted invasion of Forester's privacy rights.

Should the court reverse the judgment of the trial court and find that Forester had a significant privacy interest in the redacted records, it could have a "chilling effect" on any federal agency's future willingness to disclose any information about improprieties by public officials or about the past performance of candidates for public office. Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (holding an award of damages to a public figure for a magazine parody would have a "chilling effect" on First Amendment protections of free speech). If agencies fail to disclose even redacted information for fear of incurring liability under the Privacy Act, then vital information on past performance or improprieties may never become part of the public discourse. Often such information is obscure, so that the public can generally obtain it only through FOIA. Yet the threat of suits by indirectly-referenced employees would effectively stymie the purpose of FOIA: the release of records shedding light on agency performance.

Such an employee would possess a right to veto any release under FOIA of (important) records that indirectly relate to her. The employee could claim that she might receive unwanted publicity, e.g., for discovering some impropriety or for failing to discover some impropriety in the agency. The information contained in the records withheld under an indirectly-referenced employee's threat of suit might remain concealed to the detriment of all in society. Thus a finding that Forester retained a significant privacy interest in the redacted records released by DHHS could begin a process that ultimately shuts off the flow of vital information held by the government to our nation's public discourse.



II. FORESTER FAILED TO ADDUCE MATERIAL EVIDENCE THAT DHHS ACTED INTENTIONALLY OR WILLFULLY TO VIOLATE HER PRIVACY RIGHTS AND THEREBY PERMIT RECOVERY OF DAMAGES UNDER THE PRIVACY ACT.





A. The discovery evidence indicated DHHS acted with care and concern in the release of these records rather than in a "willful and intentional" manner or with reckless disregard for Forester's privacy rights.





The Privacy Act permits an individual to recover damages against a federal agency only when "the court determines that the agency acted in a manner which was intentional or willful." 5 U.S.C. 552a(g)(1)(D)(4) (1988). The legislative comment on this statute indicates this choice of words reflected a compromise; the phrase "intentional or willful" falls on a "continuum between negligence and the very high standard of willful, arbitrary, or capricious conduct, [and] this standard is viewed as only somewhat greater than gross negligence." 121 Cong. Rec. 40,406 (1974).

In interpreting the phrase "willful or intentional," appellate courts have consistently and uniformly held the phrase means more than ordinary negligence, and meets a knowing violation or reckless behavior standard. See Albright v. United States (II), 732 F.2d 181, 189 (D.C. Cir. 1984) (questions of intent and willfulness depend on whether the agency took action "without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act."); Laningham v. United States Dep't of the Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (holding the phrase means conduct that is "so `patently egregious and unlawful that anyone undertaking the conduct should have known it' unlawful") (quoting Wisdom v. Department of Hous. and Urban Dev., 713 F.2d 422, 425 (8th Cir. 1983), cert. denied, 465 U.S. 1921 (1984)); and Moskiewicz v. United States Dep't of Agric., 791 F.2d 561, 564 (7th Cir. 1986) (stating that a plaintiff should proffer "evidence of reckless behavior and/or knowing violations of the Act on the part of the accused.").

Moskiewicz also stated that questions about any "willful or intentional" behavior by an agency to violate the Privacy Act should be resolved at the time of hearing the agency's motion for summary judgment. Id. at 566. In Privacy Act cases, courts that have considered the intent issue in a summary judgment hearing have consistently granted summary judgment in favor of the agency if it appears from the agency's affidavits that the alleged violation was negligent, inadvertent, or innocent and if the plaintiff submits no evidence to suggest otherwise. See, e.g., Waters v. Thornburgh, 888 F.2d 870, 875 (3d Cir. 1989); Henson v. NASA, 14 F.3d 1143, 1148 (6th Cir. 1994) (upholding the right of a party to summary judgment in a Privacy Act case if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law). The summary judgment hearing is an appropriate setting to resolve questions of intent under the Privacy Act.

As to the requirements to prevail on a motion for summary judgment, the Supreme Court has stated that a moving party has no burden to show the absence of a genuine issue of material fact with respect to an issue on which the opposing party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rather "the movant need only show - that is, point out to the district court," that the nonmoving party has failed to provide the required evidence to support her case. Id. This burden may be discharged by relying on depositions, affidavits, and other discovery documents, as Rule 56(c) of the Fed. R. Civ. P. clearly provides. Id. at 324.

In Henson, the Sixth Circuit found ample evidence to reverse the trial court's granting of summary judgment in favor of the agency: an affidavit from the chief medical officer that a superior ordered him to divulge privileged medical information to people who did not need to know the information as part of their employment, an affidavit from a meeting participant that she did not need to know the information that was disclosed to her, and evidence that the superior may have had malicious intent in ordering the release of the records in dispute. Henson, 14 F.3d at 1149-50. Unlike the Plaintiff in Henson, Forester has not adduced any affidavits or other evidence to raise a genuine issue of material fact as to whether DHHS acted willfully or intentionally to violate her privacy rights.

Forester contends that a summary judgment hearing is inappropriate for deciding issues on intent, but she has no authority to substantiate her contention. In contrast, the Celotex precedent undergirds DHHS's Motion for Summary Judgment in this case. Following the procedures expressed in Celotex, DHHS informed the district court that Forester had failed to meet her burden of proof under the Privacy Act. Just as the court granted summary judgment for lack of evidence establishing a material issue in dispute in Celotex, so did the district court properly grant DHHS's Motion for Summary Judgment in the case at bar.

Forester's Complaint states mere conclusions of law, e.g., that DHHS injured her by its "intentional and willful action," but offers no facts to support the conclusion. (Compl., R. 3). When Forester did offer a statement of fact probative of DHHS's intent, e.g., that DHHS never obtained her consent to the release of the records in dispute, (Compl., R. 2), she erroneously interpretted the applicable rule of law. The Privacy Act provides that a federal agency does not need to obtain the consent of parties mentioned in records it releases in response to a FOIA request. See 5 U.S.C. 552a(b)(2) (1988). DHHS fully complied with the Privacy Act's provisions notwithstanding Forester's lack of consent to the release of the records in dispute. Neither in Forester's Complaint nor in the discovery in this case did evidence of intentional or willful behavior emerge. After a reasonable period of discovery, Forester still failed to meet her burden of production, and DHHS was entitled to judgment as a matter of law.

In contrast to Forester's Complaint, DHHS's Motion for Summary Judgment found ample evidence for support in the affidavit of Gilbert Lamont and the deposition of Robert Hughes, as provided in Fed. R. Civ. P. 56(c). From the outset of receiving the FOIA request, DHHS redacted the home addresses of its employees to protect their privacy interests. Next, DHHS cautiously redacted the complainant's name and labeled the subject matter of the complaint "Confidential." (Compl. Ex. B., R. 5; Dep., R. 9-10). Mr. Hughes then conferred with his superiors at DHHS and obtained their approval prior to releasing the records as DHHS's FOIA response. (Dep., R. 10). Unsatisfied with the redacted records he received, Mr. Lamont subsequently tried to learn the substance of the complaint against Garrison; but Mr. Hughes, on behalf of DHHS, refused to comment further. (Aff., R. 8). Together, these actions illustrate a conscientious agency attempting to comply with the cross requirements of FOIA and the Privacy Act. No evidence presented by Forester suggested that DHHS acted "willfully or intentionally" to violate her privacy rights. (Order, R. 14). Accordingly, the trial court properly granted DHHS's Motion for Summary Judgment.



B. Evidence from discovery revealed that the efforts of "diligent researchers" proximately caused the harm Forester sustained, not DHHS's release of the records in dispute.



Recovery for civil damages under the Privacy Act requires a causal connection between DHHS's release of information and the adverse effects suffered by Forester. 5 U.S.C. 552a(g)(1) (1988). Subsection (g)(1)(C) of the Act uses the phrases "in any determination . . . that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual." (emphasis added). Subsection (g)(1)(D) similarly contains the phrase "fails to comply with any other provision . . . in such a way as to have an adverse effect on an individual." (emphasis added). Plaintiff bears the burden of establishing that the agency's intentional and willful violation of the Act both caused and proximately caused her injury. 5 U.S.C. 552a(g)(1) (1988); see also Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir. 1982).

Moreover, DHHS could not freely redact as much information as it thought necessary to prevent anyone from eventually learning the identity of the complainant against Garrison; DHHS had to operate within the constraints imposed by FOIA. In Norwood, the Sixth Circuit specifically admonished the a federal agency to stop its overzealous attempts to prevent any possible identification of parties mentioned in the records it released.



It seems to us that such a view of protecting privacy - excluding from disclosure any and all fragments of information that might assist a diligent researcher in identifying a person - is not supportable. The Supreme Court rejected nondisclosure based simply on the possibility that an item might trigger recollection of a person's identity. The exemption is directed at threats "more palpable" than mere possibility of identification. The D.C. Circuit has applied this reasoning to distinguish a case in which items of information would `by themselves' identify a person, from one in which the requested information has the `possibility' of supplying a `missing link' in the chain of identification.





Norwood, 993 F.2d at 574-75, (citations omitted). DHHS's own regulations proscribe the release of information that would enable the recipient to "read between the lines" or piece together items that would constitute information normally exempt from mandatory disclosure under FOIA Exemption 6. 45 C.F.R. 5.67 (1993).

DHHS's actions may have been a cause-in-fact of the unwanted publicity directed at Forester, but the agency's release of records was not the proximate cause of the harm Forester sustained. The efforts of diligent researchers such as Gilbert Lamont and investigative reporters proximately caused the publicity Forester received. These efforts by Lamont and others amount to a supervening cause for invasion of Forester's privacy that terminates the potential liability of DHHS. These investigative efforts led to the identification of Forester as the complainant against Garrison, not the actions of DHHS.

The Record in this case illustrates that DHHS did not identify Forester as the complainant. Gilbert Lamont averred that he did not know the identity of the complainant based on the records DHHS released to him. (Aff., R. 8). After speaking on the phone to Shannon MacKechne, Lamont asked to be transferred to either Calbert Strickland or Stephanie Forester (Aff., R. 8). Lamont was searching for more information so he could identify the complainant.

Following the Norwood precedent, DHHS had no duty to remove all fragments of information about the employee complaint, such as the job title "Analyst" or the branch "Ethron," that might lead investigative reporters to surmise Forester was the complainant. The Norwood decision applied to these facts would characterize the job title and branch location as "missing links in a chain of evidence." Norwood, 993 F.2d at 575. Who could foresee how Lamont would link the bits of information he obtained to deduce the identity of the complainant? Lamont might just as easily have deduced from extrinsic facts that since Forester left DHHS's employ in May 1993 (Compl., R. 1; Answer, R. 6), and the complaint against Garrison was filed in April 1993 (Compl. Ex. B., R. 5), she was the complainant. Alternatively, Lamont could have begun calling each of the fourteen employees supervised by Garrison in alphabetical order and ultimately reached Forester. Yet again, Lamont might have just stopped trying to identify the complainant after being rebuffed by MacKechne and Forester. In any event, Lamont's efforts, not the records released by DHHS, led him to conclude Forester was the complainant.

In addition, DHHS had no way of foreseeing that the release of the records on Clark Garrison would lead to newspaper stories that identified Forester as the complainant. DHHS's own regulations prevent it from releasing records that would have enabled Lamont to "read between the lines" and detect the complainant's identity. See 45 C.F.R. 5.67 (1993). Since multiple employees worked as Analysts in its Ethron office, DHHS felt it had protected Forester's identity and complied with its own regulations.

Furthermore, Lamont advised DHHS that he intended to inform the citizens of Tennessee about candidate Garrison based on the information DHHS released to him. (Aff., R. 8). DHHS expected Lamont to use DHHS's FOIA response to compile a candidate profile, to formulate questions for a candidate debate, and to educate voters about Garrison's qualifications through information supplied to the news media. From this wider dissemination, DHHS could foresee that newspaper stories would explain the number and job titles of employees Garrison previously supervised at DHHS. DHHS could also foresee questions might arise as to the substance of the complaint against Garrison, but DHHS felt secure that DHHS had not breached the complaint's confidentiality. DHHS never expected or foresaw that the media would speculate that Forester was the complainant and shift publicity from Garrison to Forester.

Since DHHS could not foresee that the media would identify Forester based on the redacted records it disclosed, DHHS could not foresee that aggressive reporters would capriciously shower Ms. Forester with attention. Ordinarily, unless a party, such as DHHS, is willing to come forward and tell the substance of a complaint, the media loses interest in a story. This lack of foreseeability means that DHHS's release of the records cannot be the proximate cause of Forester's unwanted publicity. Since a key element of Forester's Privacy Act claim - proximate causation - was missing, the trial court properly dismissed her claim and granted DHHS's Motion for Summary Judgment.

In summary, DHHS must operate under the constraints imposed by both the Privacy Act and FOIA. In the case at bar, DHHS did not "intentionallly or willfully" violate anyone's privacy rights, and the evidence in the record supports that finding. Quite to the contrary DHHS actively sought to protect its employees' rights by redacting the records as much as FOIA would permit. Had DHHS not released the redacted records in dispute in this case, or had DHHS redacted all fragments of information that could have led an aggressive investigator to identify Forester as the complainant, it would have violated FOIA and likely been subjected to suit under FOIA. DHHS has properly executed its duties under the Privacy Act and should therefore face no liability to Forester for violating her privacy rights.





CONCLUSION

For all of these reasons, Defendant-Respondent DHHS respectfully moves this court for an Order affirming the Summary Judgment of the U. S. District Court in favor of Respondent DHHS.





Respectfully submitted this 10th day of April, 1995.





___________________________________

MICHAEL GUTH AND ASSOCIATES

Attorneys for Respondent

116 Oklahoma Ave.

Oak Ridge, TN 37830-8604

Phone: (615) 483-8309



APPENDIX: STATUTORY AND REGULATORY PROVISIONS





5 U.S.C. 552 (1988) Public information; agency rules, opinions, orders, records, and proceedings.



(a) (2) Each agency, in accordance with published rules, shall make available for public inspection and copying --



(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;



(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and



(C) administrative staff manuals and instruction to staff that affect a member of the public;



unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. . . .



(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.





(b) This section does not apply to matters that are--



(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;



(2) related solely to the internal personnel rules and practices of an agency;



(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes a particular criteria for withholding or refers to particular types of matters to be withheld;



(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;



(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;



(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;



(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;



(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or



(9) geological and geophysical information and data, including maps, concerning wells.



Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.





5 U.S.C. 552a (1988). Records maintained on individuals.



(a) Definitions.--For purposes of this section--



(1) the term "agency" means agency as defined in section 552(e) of this title;



(2) the term "individual" means a citizen of the United States or an alien lawfully admitted for permanent residence;



(3) the term "maintain" includes maintain, collect, use, or disseminate;



(4) the term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;



(5) the term "system of records" means a group of any 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;



(7) the term "routine use" means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.



(b) Conditions of disclosure.--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.





(g) (1) Civil remedies.--Whenever any agency



(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or



(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,



the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.



(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of--



(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and



(B) the costs of the action together with reasonable attorney fees as determined by the court.





45 C.F.R. 5.67 Exemption Six: Clearly unwarranted invasion of personal privacy.



(a) Documents affected. We may withhold records about individuals if disclosure would constitute a clearly unwarranted invasion of their personal privacy.



(b) Balancing test. In deciding whether to release records to you that contain personal or private information about someone else, we weigh the foreseeable harm of invading that person's privacy against the public benefit that would result from the release. If you were seeking information for a purely commercial venture, for example, we might not think that disclosure would primarily benefit the public and we would deny your request. On the other hand, we would be more inclined to release information if you were working on a research project that gave promise of providing valuable information to a wide audience. However, in our evaluation of requests for records we attempt to guard against the release of information that might involve a violation of personal privacy because of a requestor being able to "read between the lines" or piece together items that would constitute information that normally would be exempt from mandatory disclosure under Exemption Six.



(c) Examples. Some of the information that we frequently withhold under Exemption Six is: Home addresses, ages, and minority group status of our employees or former employees; social security numbers; medical information about individuals participating in clinical research studies; names and addresses of individual beneficiaries of our programs, or benefits such individuals would receive; earning records, claim files, and other personal information maintained by the Social Security Administration, the Public Health Service, and the Health Care Financing Administration.





Certificate of Service



I certify that a copy of the Respondent's Brief was mailed postage-paid, first-class to the Plaintiff-Appellant's attorney at his address of record: Winston Hegley, Baker, Kline, and Benson LP, 3892 Kingston Pike, Knoxville, Tenn., 37926-2300, on April 10, 1995.







_______________________________

Becky Harrison




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Dr. MICHAEL A. S. GUTH, Ph.D., J.D.
Attorney at Law
Licensed in Tenn. since 1998
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  Oak Ridge, TN
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