The opinion of the court was delivered by: JACKSON
This is an action brought under the Freedom of Information Act, 5 U.S.C., Section 552 and the Privacy Act, 5 U.S.C., Section 552a. The case is now before the Court on the defendant's motion to dismiss.
For the reasons stated below, defendant's motion is granted.
The record establishes that plaintiff Leib is a World War II veteran who was initially granted service-related disability benefits in 1945.
In 1961, however, defendant Veterans Administration (VA) determined that his disability had not been caused, nor aggravated, by his military service and terminated his benefits. The Board of Veterans Appeals reviewed the proceedings in 1962, 1963, 1968, and 1970, and a final denial of benefits was made in May of 1971. In 1978 Leib sought judicial review of the disposition of his claim in this court in Leib v. United States, et al., Civil Action No. 78-1389, which was dismissed November 7, 1978, on the ground that 38 U.S.C., Section 211(a) rendered the VA's decision final and conclusive, absent a substantial showing of a due process violation which the record did not disclose, and the decision was affirmed per curiam by the Court of Appeals in No. 79-1209, on January 14, 1980. Leib made his FOIA request to the VA the following November and received the VA's response in April, 1981.
On May 27, 1981, Leib commenced this action to obtain documents he contended should have been a part of his VA records, but were not, which would establish his entitlement to the benefits previously "arbitrarily and maliciously" rescinded. The documents alleged to be missing were: (1) a rating allegedly approved by the Central Office on the Administrative Review as completed 9 September, 1955; (2) the morning and sick reports of the Army unit to which Leib was assigned, the existence of which was purportedly confirmed by a G.S.A. letter dated 17 March 1965; (3) the Report of Investigation of a Colonel E. H. Gist of the Army Service Center, Camp Lee, Virginia, dated 7 July, 1943; (4) the War Department's recommendations submitted to General Hines by Secretary of War Stimson as referred to in a letter dated 4 June, 1945 addressed to Senator William Langer by Secretary Stimson; (5) all correspondence between P. M. Brownstein, Chief of Claims, Veterans Administration, and Rep. Olin E. Teague, Chairman of the Veterans Affairs Committee, House of Representatives dated 12 May, 1961; and (6) written and recorded memoranda of the action taken by the Discharge Board of Camp Lee, comprised of Colonel Todd, Major Watson, and Captain Berkman, which declined to approve the medical discharge proposed by Captain Bucholz as shown by Army document Form 4d dated 7 July, 1943.
Defendant's answer to the complaint admitted the absence of the requested documents from those furnished and acknowledged they were not exempt if the VA had them, but it asserted that a "reasonable inquiry" had located no others and that it had no duty to retain them if they had existed. In September, 1981, the VA filed its initial motion for dismissal or for summary judgment supported by affidavits attesting to the scope of its record search, but before the Court had ruled plaintiff sought leave to amend his complaint to assert a claim under the Privacy Act of 1974, 5 U.S.C., Section 552a.
On February 17, 1982, this Court denied the defendant's motion, holding that defendant's own affidavits suggested the existence of genuine issues as to the sufficiency of the VA's efforts, and authorized discovery (which had previously been stayed) into defendant's "document maintenance and search techniques." The Court also granted the motion for leave to amend.
In his amended complaint plaintiff contends that the Privacy Act, 5 U.S.C., Section 552a, creates a duty on the part of the VA to maintain records pertaining to him as the Freedom of Information Act, 5 U.S.C., Section 552, imposes a duty to disclose them upon request. He alleges that the VA has breached one or the other -- either it lost or destroyed records it should have kept or it is concealing them.
Defendant has renewed its motion to dismiss or for summary judgment.
in adjudicating the adequacy of the agency's identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits, for these are 'equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt.' To justify that degree of confidence, however, supporting affidavits must be relatively detailed and nonconclusory and must be submitted in good faith.
Weisberg v. Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 370 (D.C. Cir. ...