it and to provide rebuttal evidence to support his point of view. And finally, if the affected person prevails in the proceeding and in the process controverts facts contained in agency records, the agency will have no recourse but to adjust the mistaken records to accord with the decision reached by the fact-finder.
In the case now before the Court, plaintiff requested the agency analyses, communications and memoranda pertaining to him as discovery to help him appeal his termination for cause through negotiated arbitration procedures and available administrative channels. Before these documents are ever introduced into evidence by the agency, plaintiff is guaranteed the right to examine them. And in the event he prevails in setting aside his termination as unsupported by the facts, the agency will, of course, have to conform his records accordingly.
These eventualities go far towards reducing the harsh effects of giving the (d)(5) exemption a broad reading. In effect, all that plaintiff is losing by this interpretation is temporary access to information that eventually will be disclosed to him and that ultimately will be corrected through the litigation process. And that, in the Court's judgment, is not an unacceptably severe result.
IV. The Daily Reports Requested by Plaintiff are not Disclosable Records under the Statute.
In addition to the analyses, communications and memoranda pertaining to the adverse action against plaintiff, the IRS withheld a series of daily reports prepared by an agency investigator and that contain references to the investigation conducted of plaintiff. Reports of this kind are apparently prepared by investigators as routine summaries of their work. The agency justifies withholding these items on the claim that they do not qualify as "records" in a "system of records" within the meaning of the statute. Again, this Court agrees.
To begin with, section 3(d)(1)
of the statute only mandates disclosure of "information pertaining to [the requestor] which is contained in [a] system [of records]."
This requirement represents a substantial limitation on disclosure since the term "system of records" is restrictively defined as any group of records "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."
Only if information about individuals is maintained in groups of records keyed to the requestor are agencies required to afford access. This means that even if information pertaining to the requestor appears in a system of records, it need not be disclosed unless the information is retrievable by means of the requestor's own name or other personal identifier. That it can be easily retrieved in some other way by some other identifier is wholly beside the point.
This interpretation of the access provision basically tracks the relevant administrative regulations implementing the Privacy Act.
As the regulations make plain, "The 'are retrieved by' criterion implies that the grouping of records under the control of an agency is accessed by the agency by use of a personal identifier; not merely that a capability or potential for retrieval exists."
By way of example, "an agency recordkeeping system on firms it regulates may contain 'records' (i.e., personal information) about officers of the firm incident to evaluating the firm's performance. Even though these are clearly 'records under the control of' an agency, they would not be considered part of a system as defined by the Act, unless the agency accessed them by reference to a personal identifier (name, etc.). That is, if these hypothetical 'records' are never retrieved except by reference to the company identifier or some other nonpersonal indexing scheme (e.g., type of firm) they are not a part of a system of records."
This example aptly illustrates the situation presented in the case at bar. Here, as in the example, the requested items are not accessed by plaintiff's name or other personal identifier. Rather, they are retrievable by someone else's identifier, in particular the name of the agency investigator who prepared them. It follows from this that these reports fall outside the scope of section 3(d)(1) and hence need not be disclosed.
Plaintiff argues, however, that the Privacy Act regulations are contrary to the intent of the Act and need not be respected. The error underlying this view could not be more basic. "Agency regulations promulgated pursuant to specific congressional authority are presumptively valid and entitled to great deference."
Local 2047 v. Defense General Supply Center, 423 F. Supp. 481, 485 (E.D. Va. 1976). This deference is particularly appropriate where, as here, the regulations "involve a contemporaneous construction of a statute by the [persons] charged with the responsibility of setting its machinery in motion, of making its parts work efficiently and smoothly while they are yet untried and new."
Power Reactor Development Co. v. Electrical Union, 367 U.S. 396, 408, 81 S. Ct. 1529, 6 L. Ed. 2d 924 (1961). The party attacking the regulation carries the burden of "[establishing] that it is inconsistent with the statute it implements." Local 2047, supra at 485. This is an especially weighty burden in the circumstances of this case and, in the Court's judgment, plaintiff has failed to carry it successfully.
For the foregoing reasons, the Court holds that plaintiff's motion for summary judgment must be denied. And for these same reasons, the Court concludes that defendant's crossmotion for summary judgment must be granted. An appropriate order will be issued of even date herewith.
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum Opinion, it is by the Court this 14th day of February, 1978,
ORDERED that plaintiff's motion for summary judgment be, and the same hereby is, denied; and it is
FURTHER ORDERED that defendants' crossmotion for summary judgment be, and the same hereby is, granted.
UNITED STATES DISTRICT JUDGE