does not make the government "strictly liable for every affirmative or negligent action that might be said technically to violate the Privacy Act's provisions." Albright, supra, 732 F.2d at 189. Nor is it sufficient under the Act to demonstrate that the agency's conduct was not "inadvertent." Id.; Laningham, 813 F.2d at 1242. Instead, plaintiff must establish that the agency "flagrantly disregarded" one's rights under the Act, or acted "without grounds for believing [its actions] lawful." Id.; Albright, 732 F.2d at 189.
In support of its actions, the government contends that Waters' superiors reasonably believed it to be impracticable to obtain information directly from Waters pertaining to his use of the February leave time. Pursuant to court order of August 21, 1987, the Divisions has submitted under seal affidavits of James Bennett and Kathleen Murphy, as well as accompanying exhibits relevant to this incident.
These materials reveal that defendant's contact with the Pennsylvania Board of Law Examiners was not an isolated event, but, as discussed above, was part of a larger inquiry into plaintiff's use of leave granted for discrete purposes. The documents raise doubts as to plaintiff's actual use of the March 1986 leave period during which he was to make himself available for jury duty. They also reflect the Division's concern, given these reasonable doubts, that Waters might not be a credible source of information relevant to the February 1986 leave period.
The government having established, as a preliminary matter, that eliciting information from a third party was not inconsistent with the Privacy Act, the burden now shifts to plaintiff to raise a genuine issue of material fact as to whether the Division compiled information directly from plaintiff "to the greatest extent practicable," and whether such action, even if inconsistent with this initial requirement, constituted a willful or intentional violation of plaintiff's rights under the Act. Fed. R. Civ. P. 56; Laningham, supra, 813 F.2d at 1242 (employing burden-shifting approach articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986)). Plaintiff contends that the Division could readily have verified his presence at the bar examination by requesting that he produce documentary proof of his attendance. It is fair to assume, as plaintiff contends, that officers of the Civil Rights Division of the Justice Department, an entity with no shortage of lawyers, are cognizant of the highly formalized, strictly regulated context in which bar examinations are administered. Examinees are admitted to the examination room only on presentation of a pass or ticket which establishes their identity and right to attend, and later receive written correspondence informing them of their exam results. Plaintiff claims that he retains these documents, and would have promptly divulged them upon request. In short, plaintiff argues that the existence of objective documentary proof undermines defendant's reliance on the plaintiff's alleged non-credibility as a source of information.
Plaintiff's argument, though not without appeal, is unpersuasive in the present context. First, courts in identical contexts have recognized that at least one purpose of securing third-party confirmation of information is to prevent against falsification of even official documents. See, e.g., Alexander v. Internal Revenue Service, No. 86-0414, Memorandum Opinion at 14 (D.D.C. June 30, 1987) (agency acted reasonably in soliciting third-party information before confronting subject of investigation, since the subject could induce others to falsify records). Moreover, the reasonableness of the agency's conduct, and, in particular, whether it was "impracticable" to elicit information from plaintiff, must be judged at least in part from the perspective of the investigators. Merola v. United States Department of Treasury, No. 83-3323, Memorandum Opinion at 9 (D.D.C. October 24, 1986); Alexander, supra. Defendant's representations amply demonstrate that Waters' superiors had justifiable grounds for doubting the credibility of information they might obtain from plaintiff. Moreover, plaintiff makes no effort to rebut defendant's factual allegations pertaining to his use of the March leave period which gave the agency pause.
At the very least, defendant's conduct would not support a finding of "willful or intentional" violation of the Act or of plaintiff's rights thereunder. The Division's decision to elicit information first from the Pennsylvania Board of Law Examiners before confronting plaintiff himself was premised upon reasonable doubts as to plaintiff's veracity, as well as findings of possible impropriety in the use of subsequent leave periods.
At worst the Department's conduct in this affair arguably reflected bad judgment, but judgment within the realm of reason nonetheless. In other words, the decision "turn[ed] on 'judgment calls' or 'honest disputes,'" neither of which rise to the level of "flagrant disregard" of rights secured under the Act. Alexander v. Internal Revenue Service, Memorandum Opinion at 15 (quoting Moskiewicz v. Department of Agriculture, supra, 791 F.2d at 566).
For the foregoing reasons, plaintiff has failed to establish a genuine issue of material fact as to whether defendant's actions in investigating plaintiff's use of leave were intentional or willful as those terms are defined under the Privacy Act. More generally, plaintiff has not demonstrated that the agency violated his rights protected by the Privacy Act, even when the evidence presented is viewed in a light most favorable to him. Courts have demonstrated a willingness to dispose of issues of intent and willfulness at the summary judgment stage in the context of Privacy Act claims when, as here, a plaintiff plainly cannot satisfy the oft-cited standard contemplated by the Act. See, e.g., Moskiewicz, supra, 791 F.2d at 566; Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121 (D.C. Cir. 1982); Doe v. General Services Adminstration, 544 F. Supp. 530 (D. Md. 1982).
Accordingly, it is by the court this 22nd day of April, 1988
ORDERED that plaintiff's motion for summary judgment is hereby denied, and it is
ORDERED that defendant's cross-motion for summary judgment is hereby granted, and it is
FURTHER ORDERED that this case shall stand dismissed.