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KALMIN v. DEPARTMENT OF THE NAVY

April 9, 1985

ROBERT KALMIN, Plaintiff,
v.
DEPARTMENT OF THE NAVY, Defendant


Jackson


The opinion of the court was delivered by: JACKSON

This case follows the now familiar pattern of a FOIA/Privacy Act request for documents from a recalcitrant agency in pursuit of evidence to be used in connection with some other controversy between the same parties. As in all such cases the issues and the acrimony accompanying the underlying dispute permeate, and on occasion tend to overwhelm, the document request alone.

 I.

 Plaintiff Robert D. Kalmin, formerly a grade 14 financial manager for the Navy's Trident Submarine Ship Acquisition Project, contests the Navy's refusal to release to him various "personal notes" made by certain of his supervisory co-workers, and some 27 documents concededly belonging to the Navy, all of which pertain to him and are presently in the possession of people attached to the Naval Sea Systems Command ("NAVSEA"), Kalmin's employer, and the Consolidated Civilian Personnel Office ("CCPO"), an agency providing personnel support services for NAVSEA. Both species of documents, he asserts, were utilized by his superiors in effecting his " de facto demotion" -- by reassignment to a less responsible position which the Navy says he requested -- and his unexplained ostracism from the "management process" in February, 1983. *fn1" The following 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. *fn2" 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. *fn3"

 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. *fn4" For the reasons set forth below, the Court will grant defendant's motion for summary judgment and dismiss the complaint with prejudice.

 II.

 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 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 ...


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