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HOUSTON v. UNITED STATES DEPT. OF TREASURY

November 29, 1979

Verne HOUSTON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF TREASURY et al., Defendants.



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

Plaintiff Verne Houston brings this action against the Department of the Treasury and the Internal Revenue Service (IRS) for damages and injunctive relief under the Privacy Act of 1974, 5 U.S.C. § 552a. Mr. Houston, an IRS agent, alleges that the Service violated the notice provisions of the Act, 5 U.S.C. § 552a(e)(3), *fn1" by failing to give written notice that certain information supplied by him to his supervisors concerning his case assignments was placed in his personnel file and later used against him in adverse personnel action. The parties have filed cross motions for summary judgment. Because the Court finds that the collection of this type of information does not require that the (e)(3) notice be given; that the Privacy Act does not provide injunctive relief to remedy this type of violation; and, that plaintiff has already been fully compensated through the administrative process, summary judgment is granted for the defendants and this proceeding is dismissed.

 The parties' supporting papers disclose the following uncontested facts. Plaintiff, a GS-13 Revenue Agent in the Omaha office of the IRS, was assigned to audit the tax returns of business enterprises. Beginning in 1974, he met regularly with his supervisor, and discussed and reviewed with him the cases assigned to him. The supervisor made informal notes on these discussions and placed them in plaintiff's personnel file. In June, 1976 plaintiff was transferred to a new section under the direction of a second supervisor who likewise kept and maintained notes on discussions and reviews with the plaintiff of his work. In early 1977, this second supervisor informed the plaintiff that he had recommended his demotion because of the quality of his work performance. Plaintiff orally responded to charges at an administrative hearing. Thereafter, the Director for the Omaha office demoted him to a GS-12 level. In making that determination, the Director relied, at least in part, upon the notes maintained by the two supervisors. Subsequently, a Civil Service Commission Appeals Officer, citing procedural defects in the original proceeding, overturned the demotion. The procedural defect noted was the fact the Appeals Officer found that the plaintiff had not been allowed to see the case files on which he had been working at the time his performance was alleged to be unacceptable. The Appeals Review Board of the Civil Service Commission sustained this decision and plaintiff has since been ordered reinstated at his former level with full back pay.

 Invoking the Privacy Act, Mr. Houston seeks to enjoin the IRS from using the supervisors' notes in future proceedings against him and he also seeks damages for injury to reputation, and for "mental anguish and physical distress." The information in question is preserved on a series of typed and handwritten notes recording the substance of conversations between plaintiff and his supervisors concerning four tax audits. Plaintiff does not contend that he provided all information recorded in each note; instead, he specifies certain statements or calculations which he claims he provided to the supervisor. For example, information provided by plaintiff in one note indicates that although plaintiff could not "clear" a case by the end of the week, he believed it could be done by the end of the following week. Information recorded in another shows that plaintiff was in the process of writing up a report on his current audit after identifying all the issues involved. Other notes contain plaintiff's reports on the status of certain audits and include worksheets showing calculation of depreciation and bad debt reserves. *fn2"

 Some information is embodied in more formal memoranda sent to the plaintiff by his supervisors summarizing their discussions. Like the other notes, the specified information contained in these memos amounts to plaintiff's estimates on hours expended on certain audits and his identification of issues involved. One memo from a supervisor, dated February 12, 1976, indicated a belief that the plaintiff was not using his time efficiently. But plaintiff does not identify this, or any other evaluative portion of the notes, as information on which he bases his Privacy Act claims. Instead he rests it solely on the information he supplied concerning his work on the audits. *fn3"

 Defendants move for summary judgment on several grounds: that the Privacy Act only protects personal information and that Congress never intended to require a supervisor to give (e)(3) notices to employees before soliciting information concerning their work assignments; that even if the Act was violated plaintiff has suffered no "adverse effect" redressable under subsection (g)(1)(D) *fn4" so as to confer jurisdiction upon this Court; and finally, that plaintiff has already received back pay and reinstatement to his former grade level, and he is not entitled to injunctive or any further relief.

 In his cross motion for summary judgment Mr. Houston argues for a broader definition of information and a correspondingly broader construction of the notice provision which would require an (e)(3) notice whenever an official asks any individual to provide any information to the government. He also alleges, for the first time, *fn5" that the supervisors knew that these notes would be used as the basis for an adverse action proceeding file and that therefore, the notes have always been protected information within a "system of records" maintained by the agency. Because it is admitted that plaintiff was never given notice, he claims he is entitled to judgment as a matter of law.

 Legal Analysis

 A.

 The necessary initial inquiry is whether this type of information comes within the protection of the statute. The Privacy Act requires that "each agency that maintains a system of records" must give notice to "each individual whom it asks to supply information" of the authority for the request, the uses to which the information will be put, and the consequences of refusing to supply it. 5 U.S.C. § 552a(e)(3). The nature of the "records" and the information contained therein thus determines the applicability of the notice provision. The Act defines a "record" as:

 
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 U.S.C. § 552a(a)(4). While this definition gives some indication of the type of information protected, it is, by its terms, not exclusive.

 Since there is little if any, relevant judicial precedent, the Court turns to the legislative history as a source of information and a basis of interpretation. The history of the Act does not indicate that the Congress intended to protect the exchange of the type of information complained about in this proceeding. Rather, its chief concern was misuse of the enormous amounts of personal information about individuals collected by government agencies. In particular the legislative history reveals a fear that increased use of computers to store large amounts of data enhanced the danger that sensitive information concerning an individual could ...


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