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GRACHOW v. UNITED STATES CUSTOMS SERV.

December 30, 1980

Leo P. GRACHOW, Plaintiff,
v.
UNITED STATES CUSTOMS SERVICE et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

This matter is before the Court on the defendants' motion for summary judgment. This dispute arises under subsections (d)(1), (d)(2), and (e)(4) of the Privacy Act, 5 U.S.C. § 552a, the statute "dedicated to the protection of privacy." Albright v. United States, 203 U.S. App. D.C. 333, 631 F.2d 915, 919 (D.C.Cir.1980). The Privacy Act provides a mechanism for individuals to gain access to records pertaining to them that are within government agencies' systems of records. As originally filed, this action was brought by two employees of the defendant United States Custom Service, Leo P. Grachow and Robert J. Fitzgerald, as well as by the National Treasury Employees Union (NTEU). Plaintiffs Fitzgerald and NTEU were dismissed from the case with prejudice, the union by order of the Court and Mr. Fitzgerald by stipulation of the parties.

 On February 14, 1978, the plaintiff initiated an additional request, to William Griffin, the Regional Commissioner of Customs. See Complaint, Exh. B; Doherty Aff. P 6. This request sought "copies of all materials concerning myself held by you under the heading Personnel Files of Customs Employees," referring to the system of records for Customs employees explained at 42 Fed.Reg. 49243 (Sept. 26, 1977). On March 10, 1978, Mr. Christopher Doherty, Assistant Regional Counsel for the defendant, telephoned the plaintiff to discuss exactly what documents the plaintiff was interested in. Grachow Aff. PP 14-20. On March 17, 1978, Mr. Griffin wrote the plaintiff describing what files were available and offering plaintiff access to all of them. Doherty Aff., Attachment 5.

 Mr. Grachow then filed the complaint in this action and attached to that complaint three documents, all highly critical of him, as Exhibits C, D, and E. Exhibit C, dated March 31, 1976, is a memorandum from Mr. Papelian to Mr. Griffin referring to "Suspension and/or Reassignment of Leo P. Grachow," and discussing Mr. Grachow's effect on other employees and the work atmosphere at the Montreal Station. The memorandum recommends that Mr. Grachow be suspended or reassigned. Exhibit D, a memorandum from Mr. Papelian to Mr. David A. Emmons, Employees Relations Specialist, dated March 27, 1976, refers to a possible "Unfair Labor Practice Charge" against Leo P. Grachow. Exhibit E is a letter written December 31, 1975 by Mr. Papelian to Mr. Griffin, discussing in general the labor relations at the Montreal Station, mentioning the reelection of Mr. Grachow as President of the union chapter. None of these documents were provided to Mr. Grachow in response to any of his Privacy Act requests. Grachow Aff. PP 6, 22.

 After receiving the complaint in this action, Mr. Doherty undertook to search for Exhibits C, D, and E, aided by Mr. Papelian. Mr. Papelian found Exhibit C in its original form in a general file entitled "Extension and Reassignment." Papelian Aff. P 10(a). Mr. Doherty discovered the original of Exhibit D in a folder in the Employee and Labor Relations Branch, within the system of files discussing unfair labor practice complaints. The file containing Exhibit D was headed "Case # 31-09929(CA), March, 1976, Unfair Labor Practice, Montreal." Mr. Doherty also found Exhibit E in the same Branch, within the file system related to union activities. The folder containing Exhibit E was entitled "St. Albans (Chapters 148, 12, 34)." *fn1"

 The Privacy Act defines "record" as:

 
(any) item, collection, or grouping of information about an individual that is maintained by an agency ... and that contains his name or identifying number, symbol or other identifying particular ....

 5 U.S.C. § 552a(a)(4). The Act defines a "system of records" as:

 
(a) group of any records under the control of an agency from which the 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). Under the framework of these definitions, and subject to certain limitations and exceptions, the Act gives access "upon request by any individual ... to his record or to any information pertaining to him which is contained in the system ...." 5 U.S.C. § 552a(d)(1).

 The defendants argue that summary judgment is appropriate because the Customs Service complied with the terms of the statute in providing to the plaintiff all of the records that could be retrieved by use of his name or other identifying particular. Under the definition of "system of records," defendants argue, they must furnish to an individual those materials that can be retrieved by using the name of that individual. They are not, defendants claim, required to search every file they maintain in order to discover references to the individual requestor.

 The plaintiff, citing the broadly phrased goals of access motivating the passage of the Privacy Act, proposes that the defendants' reading of the definition of "system of records" represents a narrow approach which frustrates the purposes of the Act. Plaintiff argues that under the Act, an agency should be required to furnish to an individual who files a proper request, all materials in which that individual is named in, or carries a prominent role. For example, the plaintiff contends that any time an ...


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