contend, however, that expungement should not be ordered because they have amended the passage in the LHM (and one other document containing the offending language) by placing, after the word "1,000," a footnote which reads "Individuals, organizations, etc., including many." Thus, the reader of the document who followed the footnote would learn of an address book "containing the names of approximately 1,000 individuals, organizations, etc., including many alleged radicals." See First Felix Dec. Exhibit Y.
The agency shall expunge this statement because, even as amended, it is still inaccurate and incomplete and leads to an unacceptable conclusion. First, although the FBI claims that only 130 of the names are "radicals" or "associates of radicals," the amended statement is still misleading. "Many" radicals could be 9, 90 or 900: the reader would not know how many of the 1,000 were "radicals." The statement is also incomplete, since the reader would also not know the nature of the other, "non-radical names." But more important is the inherent imprecision of the term chosen to describe the names in Doe's address book. The reader of the document, of course, would have no idea what this term signified. Before this Court, defendants state that these individuals are "radicals" "because they had criminal records, belonged to radical or extremist organizations, or they were the subject of an FBI National Security/Criminal investigation." First Felix Dec. para. 56. A perusal of the FBI's descriptions of these individuals, however, reveals that very few had criminal records or were subjects of a criminal investigation. Defendants are therefore left to argue that the names in Doe's address book are "radical" simply because (in a feat of non-definition) they belonged to "radical or extremist organizations." But in this instance radicalism is in the eye of the classifier (and, thus, in the eye of the beholder), for the entries in the address book include: a feminist organization seeking to "chang[e] the lives of women and build a new society in which all people will have the opportunity to develop their full potential," Isaacson Aff. Ex. 41 at 5; a man known as a "pacifist" who has "given thought to entering the priesthood," id. Ex. 46 at 2-3; a person described as a "hippie," id. Ex. 24 at 2; a member of the National Lawyers Guild and a member of the Gay Liberation Front, id. Ex. 67 at 16, 25; an individual who in 1951 reserved a seat for himself at several Polish films by returning a card to the Polish consulate, id. Ex. 67 at 53; and a "well-known consumer advocate," id. Ex. 67 at 58.
The FBI's interest in these citizens in the turbulent atmosphere of the late 1960s and early 1970s undoubtedly reflected the concerns of that era. But the times have tempered and, with the resulting change in attitudes and perspectives, those blanket categorizations must now be viewed as unfortunate, ill-conceived and, indeed, bizarre. To brand these individuals as "radicals" when linking them to Doe in 1985 (when the LHM was prepared) transgresses the Privacy Act's requirement of accuracy in agency recordkeeping. Fairness demands that the passage describing Doe's address book be expunged.
Association with MDS/SDS
In addition to its substantive comments, the LHM also attached "a classified memorandum relative to [Doe's] involvement in a demonstration which occurred in August, 1969." Complaint Exhibit C at 2. The memorandum, dated August 7, 1969, describes a protest against possible Blue Cross rate increases at the New York State Insurance Commission sponsored by the Movement for a Democratic Society (MDS) and the Students for a Democratic Society (SDS). Attached to the memorandum is a description of the SDS. Doe maintains that these records must be expunged because they imply that he was a member of the MDS and/or SDS when he in fact was not. The Court must disagree. Doe does not challenge the fact that he was present at the Blue Cross rally nor the description of the SDS attached to the report. Thus, the accuracy of the records is not in dispute. Moreover, none of the records state that Doe was a member of the MDS or SDS. Finally, the Court fails to divine the implication of membership drawn by Doe. Rather, the LHM states that plaintiff was involved in a rally, the accompanying report describes the rally, and the SDS memorandum describes the group which sponsored the rally, thereby providing the reader with the context of the event. Expungement is not required by the Privacy Act in these circumstances.
In sum, plaintiff shall be awarded partial relief with respect to Count One of the complaint. The FBI (the sole defendant named in this cause of action) shall expunge the passages in the LHM (and all other documents) that refer to Doe's remarks on the Lou Gordon show as well as the references to plaintiff's address book. Defendant need not, however, expunge Doe's arrest and conviction records nor the records pertaining to his involvement in the 1969 Blue Cross rally.
B. Constitutional and Equitable Expungement
As noted above, Doe has already prevailed under the Privacy Act with respect to the "Lou Gordon Show" remarks and his address book. He also argues, in Counts Four and Five, that the records of his arrest and conviction in Michigan and his participation in the Blue Cross rally should be expunged from the files of the FBI and OPM under the Constitution and the inherent equitable powers of this Court. Although it is clear that these sources of authority allow expungement of agency records, see, e.g., Smith v. Nixon, 257 U.S. App. D.C. 52, 807 F.2d 197, 204 (1986); Chastain v. Kelley, 167 U.S. App. D.C. 11, 510 F.2d 1232, 1235 (D.C. Cir. 1975), they shall not be invoked here for two reasons. First, expungement is not available upon demand; it will only be ordered for a violation of some tangible constitutional right or a particular statutory provision. See, Nixon, 807 F.2d at 204 (illegal wiretap); Chastain, 510 F.2d at 1235 (expungement appropriate "where necessary to vindicate rights secured by the Constitution or by statute"); Tarlton v. Saxbe, 165 U.S. App. D.C. 293, 507 F.2d 1116, 1125 (D.C. Cir. 1974) ("illegal arrests or convictions" provide a basis for expungement); Menard v. Saxbe, 162 U.S. App. D.C. 284, 498 F.2d 1017, 1025 (D.C. Cir. 1974) (probable cause lacking and individual released after arrest). Here, however, Doe fails to articulate any such constitutional or statutory underpinning to support his expungement claim.
His request must therefore be denied.
Even had plaintiff relied on some constitutional or statutory provision, expungement would be warranted only if the possible harm to Doe from not expunging the records outweighed the government's need to retain his records. See Hobson, 737 F.2d at 65; Webster, 606 F.2d at 1241; Chastain, 510 F.2d at 1236. In considering Doe's Privacy Act claims, however, this Court attempted to determine "fundamental fairness" of maintaining each record by using the same type of balancing test and concluded that expungement was not warranted with respect to the Doe's arrest and conviction in Michigan or his involvement in the Blue Cross rally. For the same reasons, the Court concludes that expungement is neither compelled by the Constitution nor warranted under inherent equitable principles.
IV. Damage Claims
Plaintiff also seeks damages against all of the defendants in Counts Two and Three of the complaint.
The former is based on the defendants' failure to maintain accurate records under subsection (g)(1)(C) of the Privacy Act, which provides a civil action whenever an agency
fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
The latter is premised on subsection (e)(7), which states that an agency must
maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
§ 552a(e)(7) The substantive aspects of these provisions are clearly satisfied in the instant case. As far as subsection (g)(1)(C) is concerned, I concluded above that maintenance of the "Lou Gordon Show" remarks and the address book description violates the Privacy Act's "fundamental fairness" requirement. Moreover, although expungement was not required with regard to the arrest and conviction records, that decision was reached in large part because of the defendants' recent willingness to add clarifying material (such as the state court expungement order and the further description of the offense) to the LHM. Prior to plaintiff's Privacy Act amendment request, however, that document did not contain the supplementary materials and painted a picture that was clearly inaccurate and basically unfair -- facts that defendants do not now dispute. See Motion at 21. Thus, the retention of the LHM and related documents by defendants at that time transgressed subsection (g)(1)(C). With respect to subsection (e)(7), defendants concede that the "Lou Gordon Show" portion of the LHM contains material that is regulated by that provision, since it provides direct quotations of remarks that Doe allegedly made on the air. Motion at 15. In addition, the records describing Doe's participation at the Blue Cross rally and the contents of his address book pertain to his associative activities, an area clearly entitled to First Amendment protection. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 1945-47, 95 L. Ed. 2d 474 (1987). Defendants clearly maintained records describing the exercise of Doe's First Amendment rights.
That does not end the inquiry, however. To be entitled to damages, Doe must prove both causality -- that any inaccurate records caused him to suffer an "adverse determination" or an "adverse effect," §§ 552a(g)(1)(C) & (D), and intent -- that defendants acted in an "intentional and willful" manner, § 552a(g)(4). Having carefully considered the record presented and the parties' argument, the Court finds that defendants are entitled to summary judgment on these issues.
To explain these conclusions, a rather lengthy recitation of the events that precipitated the filing of this lawsuit is in order.
The vacancy announcement for a Deputy Medical Officer (DMO) within SSA's Office of Disability was posted on February 13, 1985. Declaration of Nancy W. Tomford (Tomford Dec.), Exhibit 1 to Defendants' Statement of Material Facts as to Which There is no Genuine Issue (Defs. Statement), Exhibit A. On August 2, 1985 the Acting Commissioner of Social Security, Martha McSteen, sent a memorandum recommending that Doe be selected for the DMO job to the Assistant Secretary for Personnel Administration, Thomas S. McFee, whose office was responsible for processing SES appointments within HHS. Tomford Dec. paras. 1, 5.
On September 4, 1985 McFee presented Doe's case to an Executive Personnel Group, a component which reviewed proposed SES appointments for the Secretary of HHS. Tomford Dec. Exhibit D. Based on the favorable recommendations of McFee and the Executive Personnel Group, Secretary Heckler approved Doe's appointment on September 9, 1985. Id. Exhibit E.
Doe's nomination would not become final until it had been submitted to, and received the approval of, a Qualifications Review Board (QRB) established within OPM to consider SES appointments. See 5 U.S.C. § 3393(c). Noting that Doe "possesses the high caliber of professional skills and leadership abilities to perform successfully in this position," Secretary Heckler forwarded the nomination to OPM on September 11, 1985. Isaacson Aff. Exhibit 82. One week later, on September 17, 1985, a QRB was convened and disapproved Doe's case. Tomford Dec. para. 10. According to one member of the QRB, Doe's case was rejected because "he lacked sufficient experience to give him the breadth and depth of executive/managerial competence required for successful performance in the SES." Declaration of Bede A. Bender, Jr. (Bede Dec.), Exhibit 4 to Defs. Statement, para. 9. In accordance with OPM practice, HHS was permitted to and did resubmit a revised nomination package to OPM for further consideration on November 5, 1985. Isaacson Aff. Exhibit 79.
Other events soon intervened, however. On December 13, 1985, President Reagan announced that he had selected Dr. Otis Bowen as the new Secretary of HHS (Secretary Heckler had announced her resignation the previous day). Tomford Dec. para. 12; Bede Dec. para. 15. Because OPM policy required that all action on pending QRB cases be suspended as a courtesy to a new agency head, OPM halted processing the four HHS cases (including Doe's) undergoing review and returned the nominations to the agency on December 18, 1985 without any QRB action. Tomford Dec. Exhibit F; Bede Dec. paras. 14-16. At a meeting of HHS's Executive Personnel Group on January 6, 1986, no action was taken on Doe's nomination as DMO because Secretary Bowen had decided not to make SES appointments in divisions (such as SSA) that were being run by acting (rather than permanent) heads. Tomford Dec. para. 14; Declaration of Thomas S. McFee (McFee Dec.), Exhibit 6 to Defs. Statement, para. 7.
During this time, a security investigation into Doe's background was also underway. On August 8, 1985 (prior to Doe's selection by Secretary Heckler for the DMO job), HHS requested that OPM conduct a routine background investigation. Scott Dec. para. 7. OPM began its investigation on August 14, 1985. Id. para. 9. Both OPM and HHS sent a name check request to the FBI; HHS's was received by the Bureau on August 13, 1985, OPM's on August 27, 1985. Declaration of Storm M. Watkins (Watkins Dec.), Exhibit 10 to Defs. Statement, paras. 2-3. In response, the FBI prepared the Letter Head Memorandum (LHM) referred to above. Although the document is dated August 29, 1985, it was not mailed to OPM until January 13, 1986 and there is no record of when it was mailed to HHS. Id. On the same day (January 13, 1986) that the LHM was mailed to OPM, OPM transmitted the preliminary results of its investigation to HHS without having received the LHM. Scott Dec. paras. 9-11. Among the documents forwarded were OPM interviews with Doe, his family and references, a credit check and other records searches, but not the LHM. Id. When OPM finally received the LHM (the record is not clear as to exactly when this took place), OPM formally closed its investigation with a designation indicating "no actionable issues" and transmitted the LHM to HHS. Scott Dec. para. 12.
As of March 1986, matters stood this way. Doe's nomination had been sent to OPM, rejected by the QRB, resubmitted to OPM, returned to HHS because of the Secretarial change at the agency, and then held by HHS's Executive Personnel Group at its January 6, 1986 meeting. A background investigation of Doe had been conducted by OPM, the LHM had been generated by the FBI, the preliminary results had been sent to HHS in January 1986 without the LHM, and the investigation was closed in March and the LHM was sent by OPM to HHS. Additional events took place in April 1986. On April 18, 1986 HHS called OPM to ask whether OPM would waive its "nine month deadline" -- which required that SES appointments be made within nine months from the date on which their vacancy notice had closed -- in the case of John Doe (the DMO announcement had closed on March 8, 1985). OPM refused to waive the rule, informing HHS that it would have to readvertise the position. Bede Dec. paras. 11-12. On April 22, 1986 HHS sent a memorandum to OPM asking it to reopen its investigation of Doe. Scott Dec. para. 13. Appended to the memorandum were a written interrogatory to Doe from HHS concerning the allegations contained in the LHM, Doe's written response, and a memorandum summarizing an oral interview with Doe concerning the same subject. Id. OPM reopened the investigation of Doe and forwarded the results to HHS on June 13, 1986. Id. para. 14. Based on these materials (which included the 1985 state expungement order), the head of HHS's Personnel and Information Security Group, a component of the Office of Personnel Administration responsible for security investigations of HHS employees, concluded that "no security or suitability issues exist which would preclude [Doe's] appointment to a critical sensitive position." Declaration of Donald E. Fay, Exhibit 2 to Defs. Statement, Exhibit B.
On June 23, 1986 Dorcas Hardy became the permanent Commissioner of SSA and, under Secretary Bowen's policy, Doe's appointment could be acted upon. HHS decided soon thereafter, on July 1, 1986, to remand Doe's case to SSA because the appointment was six months beyond OPM's "nine month deadline." Tomford Dec. para. 16; McFee Dec. para. 10. Although the DMO position could have been readvertised at that point and Doe could have reapplied, SSA decided against that course of action because of a need to reevaluate SSA in light of numerous personnel changes then occurring. These included: the recent arrival of Dorcas Hardy as SSA Commissioner; the fact that the Associate Commissioner for Disability, Patricia Owens, and the Medical Officer, Peter Chodoff, were due to leave SSA shortly; and a vacancy that existed in the position of Deputy Associate Commissioner for Disability. Declaration of Larry G. Massanari, Exhibit 7 to Defs. Statement, para. 7; Fay Dec. para. 7. Doe was informed of SSA's decision not to fill the DMO slot on August 19, 1986, Isaacson Aff. Exhibit 91, and ultimately the position was cancelled (along with nine others) more than two years later in September 1988. Fay Dec. para. 8; Bede Dec. para. 20.
If inaccurate records are maintained by an agency, damages will be awarded under the Privacy Act only when "a determination is made which is adverse to the individual." § 552a(g)(1)(C). If First Amendment records are kept, the plaintiff must show that their retention had "an adverse effect" on him. § 552a(g)(1)(D). A Privacy Act plaintiff must therefore show that any adverse impacts he sustained were caused by a violation of the Privacy Act. Dickson, 828 F.2d at 37; Molerio v. FBI, 242 U.S. App. D.C. 137, 749 F.2d 815, 826 (D.C. Cir. 1984); Albright v. United States, 235 U.S. App. D.C. 295, 732 F.2d 181, 186 (D.C. Cir. 1984). In this instance Doe alleges that defendants' maintenance of inaccurate documents and First Amendment records caused him not to be appointed to the DMO position and that the dissemination of these records injured his reputation with his fellow workers. Each of these contentions is considered in turn.
1. DMO Position. It is clear from the outline of events described above that Doe's failure to be appointed as DMO did not result from any Privacy Act violation. To briefly summarize:
-The QRB initially disapproved Doe's appointment because of concerns about his competence before OPM had received the LHM.
- After the nomination was resubmitted, the QRB returned it to HHS because of the change of Secretaries at HHS. Once again, this action occurred prior to the receipt of the LHM by OPM.