The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE
The Privacy Act, 5 U.S.C. § 552a, was enacted in part as a response to "intelligence gathering activities that violated basic privacy rights [which] were prompted by the rash of civil disturbances and racial and political unrest on college campuses." H. Rep. No. 1416, 93rd Cong., 2d Sess. 5-6 (1974). Although initiated nearly fifteen years after passage of the Act, this suit requires the Court to revisit that painful and difficult time in our national history. Plaintiff John Doe, who by his own admission was considerably involved in political activity in the late 1960s and early 1970s, was denied appointment to a high-level position within the federal government in 1986.
Alleging that the denial was caused by inaccurate records of his political endeavors, Doe brought this Privacy Act suit seeking expungement of the records and damages for injuries resulting from their dissemination. Presently pending before the Court is plaintiff's motion for partial summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons articulated below, these motions shall be granted in part and denied in part.
John Doe is a physician who began working as a consultant to the Chicago regional office of the Social Security Administration (SSA), a component of the Department of Health and Human Services (HHS), in 1981. In February 1985, HHS advertised an opening for a Deputy Medical Officer, a Senior Executive Service (SES) position within the Office of Disability of SSA's Baltimore, Maryland headquarters. Doe applied, was deemed most qualified from a list of twelve candidates, and was selected for the position by then-HHS Secretary Margaret Heckler in September 1985. Because, however, Doe was seeking appointment to the SES, HHS was required to obtain clearance from the Office of Personnel Management (OPM) before Doe could assume his duties. In the course of its investigation, OPM submitted a name check request to the Federal Bureau of Investigation (FBI or Bureau) and obtained a Letter Head Memorandum (LHM) which contained information regarding Doe's background and activities. See Complaint Exhibit C. After considerable inter-agency maneuvering (which will be described in more detail below), Doe was informed in August 1986 that HHS had decided not to fill the Deputy Medical Officer position. Affidavit of William A. Isaacson (Isaacson Aff.), submitted with Plaintiff's Motion for Partial Summary Judgment, Exhibit 91.
Doe then filed a Privacy Act/Freedom of Information request with OPM requesting copies of records pertaining to himself. In response, he received the FBI's LHM and discovered what he believed to be numerous pieces of inaccurate information. These included:
1. A listing of plaintiff's arrest and conviction in 1973 on bombing charges when a Michigan state court had ordered in 1985 that the conviction be set aside and all records relating thereto be expunged;
2. The very description of the arrest as a "bombing" (since the arrest had been for possession of an explosive device and no bombing had occurred) and a statement that two bombs had been lawfully seized (Doe contended that only one bomb had been seized);
3. The FBI's description of an address book seized at his home as containing the names of "approximately 1000 alleged radicals";
4. The failure to mention that the "alternative service program" to which Doe had been sentenced consisted of providing free medical service to alcoholics;
5. The statement that Doe was employed by the Northeast Guidance Center at the time of his arrest -- he claimed that he did not begin working there until one year later;
7. The implication that Doe was a member of the Movement for a Democratic Society (MDS) and the Students for a Democratic Society (SDS) from inclusion of a memorandum describing those groups in connection with Doe's attendance of a rally in New York City in 1969 sponsored by them.
Complaint Exhibit D. On July 27, 1987 plaintiff wrote to the FBI and asked it to expunge the offending material. Id.
The FBI replied on August 25, 1987. The agency first noted that it had exempted its Central Records System (CRS) from the provisions of the Privacy Act but stated that it had decided to consider each request individually "to reach an equitable determination consistent with the best interests of both the individual and the Government." Complaint Exhibit E at 1. It then examined the inaccuracies alleged by plaintiff and denied the request for expungement. The FBI did state, however, that it would place a copy of the Michigan state court order in its files wherever mention was made of Doe's explosives arrest and conviction and that it would also include Doe's expungement request letter in its files "so that any one having future access to this information will have the benefit of your comments, observations and concerns." Id. at 3. Doe appealed the denial on November 17, 1987, see Complaint Exhibit F; his appeal was denied without substantive comment on February 16, 1988. Id. Exhibit G. Doe requested reconsideration on February 22, 1988, but the agency maintained its position. Id. Exhibits H & I.
Doe instituted this action against the FBI, OPM and HHS on August 18, 1988.
Counts One, Four and Five seek expungement of the inaccurate records in the possession of the FBI and OPM. Count Two seeks damages for maintenance of records that are not "accurate, complete, relevant and timely"; Count Three seeks damages because defendants maintain records that describe Doe's exercise of his First Amendment rights. After a period of discovery, the pending cross-motions followed.
II. The Statutory Provisions
In the words of Judge Ruth Bader Ginsburg, "the Privacy Act speaks first and foremost to agencies." Doe v. United States, 261 U.S. App. D.C. 206, 821 F.2d 694, 697 (D.C. Cir. 1987) (en banc) (hereinafter Doe). The statute prohibits them from "disclos[ing] any record . . . to any person, or to another agency" unless the person consents to the disclosure or unless certain enumerated exceptions apply. 5 U.S.C. § 552a(b). When an individual seeks access to a record "pertaining to him," a federal agency must permit the person to "review the record and have a copy made." § 552a(d)(1). If the person requests amendment of the record, the agency must either "make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete" or inform the person of the reasons why it has refused to do so. § 552a(d)(2)(B). In the latter case, further review within the agency is required. § 552a(d)(3). Subsection (e) of the Act contains a number of important safeguards concerning the collection and dissemination of information by agencies, two of which are particularly relevant here. Agencies are compelled, in subsection (e)(5), to
maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.
§ 552a(e)(5). In addition, the statute also requires agencies in subsection (e)(7) to
The Act also provides a civil remedy for aggrieved individuals, who are authorized to bring an action in federal court under subsection (g)(1) whenever an agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in accordance with that subsection;
(B) refuses to comply with an individual's request under subsection (d)(1) of this section;
(C) 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; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse affect on the individual.
§ 552a(g)(1). Specific remedies are tailored to the violation alleged. In a suit relying on subsection (g)(1)(A), the court "may order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct," § 552a(g)(2)(A), while in a case under subsection (g)(1)(B), the court "may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him." § 552a(g)(3)(A). In both instances, the court is directed to "determine the matter de novo." In an action under subsections (g)(1)(C) or (D), the court may award "actual damages sustained by the individual as a result of the refusal or failure" (but not less than $ 1000) if it finds that "the agency acted in a manner that was intentional or willful." § 552a(g)(4)(A). Reasonable attorney's fees and costs may also be recovered under all of these provisions.
As noted above, three counts of the complaint request expungement of the material that Doe believes is inaccurate and incomplete. Count One, brought only against the FBI, is founded on the Privacy Act; Count Four, which names the FBI and OPM, rests on the Fifth Amendment of the Constitution; Count Five (also against the FBI and OPM) is founded on general equitable principles. Each will be discussed in turn.
In Count One of the complaint, Doe asserts that inaccurate and incomplete records maintained by the FBI must be expunged in accordance with subsection (g)(1)(A). When an agency refuses to amend a record and suit is brought pursuant to subsection (g)(1)(A), the Privacy Act provides that a court may "order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct." § 552a(g)(2)(A). Defendants do not dispute the proposition, announced by our court of appeals in Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 64 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985), that "it is now well-established that an order for expungement of records is, in proper circumstances, a permissible remedy for an agency's violation of the Privacy Act." They do maintain, however, that the relevant records should not be expunged in this instance.
1. Defendants initially contend that expungement is inappropriate because records in the CRS are not subject to the terms of the Privacy Act under two exemptions contained in the statute. The first is the general exemption contained in subsection (j)(2), which states:
The head of any agency may promulgate rules . . . to exempt any system of records within the agency from any part of this section ...