December Kalmin filed a grievance; in February, 1984, he received the first negative performance evaluation of his career which, he believes, was retaliatory motivated, and, moreover, was based upon the same "secret documents" made available to his rating superior. Appeals to more senior officials were unavailing, and, accordingly, Kalmin made an informal request for the "secret documents" from the Vice Commander of NAVSEA which was refused.
In February, 1984, Kalmin made the first of several formal FOIA/Privacy Act requests for, in effect, copies of all documents of which he was the subject to be found in both NAVSEA and CCPO. When duly processed to their administrative conclusions in late July, the requests had resulted in the release of some 770 pages of NAVSEA and CCPO material to Kalmin, excepting, however, he says, the "secret documents" he really wanted.
His original complaint pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552a(g)(1)(B) in this Court to obtain the documents withheld from him was filed May 7, 1984, while his administrative requests were still being processed.
In November he was allowed to amend his complaint to elaborate upon the wrongs he believes were done him by the Navy in misusing the documents to derogate his work performance, and to seek damages pursuant to 5 U.S.C. §§ 552a(g)(3) and (4). His principal objective, however, remains the acquisition of the documents before he proceeds for vindication in another forum.
The matter is now before the Court on defendant's motion for summary judgment, plaintiff's cross-motion for partial summary judgment, and defendant's motion to dismiss.
For the reasons set forth below, the Court will grant defendant's motion for summary judgment and dismiss the complaint with prejudice.
The Navy has filed a Vaughn index (which Kalmin insists is insufficient) describing the 27 Navy documents withheld as, for the most part, one- or two-page "memoranda" recording encounters with or observations about Kalmin, all located within the confines of NAVSEA or CCPO, but randomly retained without attribution to Kalmin by name, or by any peculiar label, number, or symbol. (The index omits any reference to the "personal notes.") Moreover, it has filed the declarations of all of the authors/custodians of both the "personal notes" and the "agency records," describing the documents with which they were respectively involved and the circumstances of their making.
The declarations of Kalmin's co-workers who made "personal notes" about him state unequivocally that the notes were made for the sole purpose of refreshing the writer's memory; were either maintained at their homes, in miscellaneous private files at work, or in chronological logs or diaries; were never circulated; and were never under Navy control and could have been discarded at will in the writer's sole discretion. See Declarations of Matteo, paras. 4-5; Salko, para. 3; Marczynski, para. 4; Yowell, para. 2; Logan, para. 2; Gros, para. 7. In the absence of evidence to the contrary, the Court concludes that the notes are the personal property of the authors which defendant is neither obliged to produce or to account for under FOIA or the Privacy Act.
The Privacy Act, in terms, applies only to "records" kept or "maintained by an agency," 5 U.S.C. § 552a(a)(4), and the published Guidelines to the Act indicate that by the limitation Congress intended the Act to reach only those "documents under the control of an agency," OMB Guidelines, 40 Fed.Reg. 28949 (July 9, 1979), or, in other words,
to separate agency records from records which are maintained personally by employees of an agency which are not agency records, such as uncirculated personal notes, papers and records which are retained or discarded at the author's sole discretion and over which the agency exercises no control or dominion.
40 Fed.Reg. at 28952. See Chapman v. NASA, 682 F.2d 526, 529 (5th Cir. 1982). Moreover, the fact that the agency exercises no control or dominion over such "personal" materials, places them beyond the scope of FOIA as well. Cf. Forsham v. Harris, 445 U.S. 169, 182, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980); British Airports Authority v. CAB, 531 F. Supp. 408, 416 (D.D.C. 1981).
As to the "agency records" it has withheld, defendant argues, not having been maintained in the Navy's own system of records, they, too, are likewise not subject to production. Under the Privacy Act, records, to be producible, must be contained in a "system of records," 5 U.S.C. § 552a(d), which the Act defines as "a group of 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." 5 U.S.C. § 552a(a)(5)(emphasis added). Since the documents at issue here were kept as, or in or among, private papers and files, without descriptive labels relating them to Kalmin at all (most of them without identifiers of any kind), see Declarations of Young, para. 2; Matteo, para. 4; Salko, para. 4; Marczynski, paras. 3-6; Logan, para. 3; Rumpler, para. 4, defendant maintains they are not covered by the Privacy Act. See, e.g., Smiertka v. Department of the Treasury, 447 F. Supp. 221, 228, remanded on other grounds, 196 U.S. App. D.C. 34, 604 F.2d 698 (D.C. Cir. 1979). Accord, Grachow v. Customs Service, 504 F. Supp. 632, 636 (D.D.C. 1980).
To the extent the Navy documents might nevertheless be regarded as producible under FOIA, defendant contends that it is properly withholding them pursuant to Exemptions 5 and 6 of FOIA, 5 U.S.C. §§ 552(b)(5) and (6).
Exemption 5 protects from disclosure, inter alia, so-called "deliberative" documents, the purpose being to protect the advice, recommendations and opinions of those involved in an agency's decision-making process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). In order for the exemption to apply, the agency must show that the documents are, indeed, part of a deliberative process leading to a final decision, Vaughn v. Rosen (II), 173 U.S. App. D.C. 187, 523 F.2d 1136, 1146 (D.C. Cir. 1975), and are "predecisional," Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc), i.e., are not, formally or informally, the final agency decision. See Murphy v. TVA, 571 F. Supp. 502, 505 (D.D.C. 1983). Defendant asserts (and plaintiff assuredly can be said to agree) that the documents at issue were generated in the course of the agency's deliberations on personnel matters within NAVSEA - specifically, the matter of Kalmin - and that they otherwise conform to the description of exempt documents, and its Vaughn index and supporting declarations appear to confirm it.
In summary, as the record here presently stands, the Navy has supported its motion for summary judgment with the declarations of the NAVSEA FOIA/PA Co-ordinator who directed its document search, and of each of the individuals who made the "personal notes" or have custody of the "agency records" making mention of Kalmin which have not been released to him. All of the documents, as the declarants describe them and the manner of their keeping, appear to be entitled to the immunity from production on the several grounds the Navy claims for them. And Kalmin has offered no contradictory evidence on those discrete issues.
Kalmin is acutely aware that the Navy, for reasons neither he nor the Navy has chosen to articulate, suspects that he is emotionally unstable. He vehemently denies it, and he has submitted a lengthy affidavit of his own, and the declaration of the psychologist and report of the psychiatrist who have, respectively, treated and examined him. In his own affidavit he relates the course of a Kafkaesque persecution to which he has been subjected by his NAVSEA superiors; the psychologist and psychiatrist attest to the absence of any mental pathology on his part which might suggest that his perception of it is hallucinatory.
Although FOIA and Privacy Act actions may certainly, on occasion, substitute for civil discovery, they are unlike civil discovery proceedings in that the statutes accord no discretion to the trial court to consider and balance the competing interests favoring and opposing disclosure. See Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1076-77 (D.C. Cir. 1971); ACLU v. Department of Justice, 548 F. Supp. 219, 222 (D.D.C. 1982). The material sought is, as a simple matter of fact, either disclosable or it is not.
The only evidence relevant to a FOIA/PA case now before the Court is the Navy's, which demonstrates that what Kalmin wants the Navy need not produce - because it does not belong to the Navy; because it does not inhabit a "system of records" relating uniquely to him to which he would be entitled under the Privacy Act; and because it is comprised of pre-decisional work which is protected by Exemption 5 of FOIA.
Kalmin's position is, in essence, that the Navy's evidence cannot be taken as undisputed - or, at least, is called into question - by his own uncontroverted showing of his superiors' unexplained malevolence towards him which taints any evidence the Navy has offered to prolong its concealment from him. But the possibility that certain evidence may be suspect is not the equivalent of affirmative proof that it is wrong, see Cruzan v. New York Central & Hudson River R.R., 227 Mass. 594, 116 N.E. 879 (1917), and plaintiff has offered no evidence at all, other than his own suspicions that the documents he seeks are not what, or not to be found where, the Navy's declarants say they are. Defendant has, therefore, made the required evidentiary proffer in support of its motion for summary judgment, without encountering a contradictory proffer by plaintiff of admissible evidence from which it could be found that any facts material to the case as a FOIA/Privacy Act action, as distinguished from an employment grievance, remain in dispute. See Catrett v. Johns-Manville Sales Corp., 756 F.2d 181 (D.C. Cir. 1985).
For the foregoing reasons, therefore, it is, this 9th day of April, 1985.
ORDERED, that defendant's motion for summary judgment is granted, and the complaint is dismissed with prejudice.