to such a physician. Id. The BOP therefore seeks summary judgment on the grounds that it has properly responded to Cowsen-El's request for access to his medical records by partially disclosing some of the records and by advising him to designate a reviewing physician regarding the remaining records containing "evaluative and diagnostic" information.
The Privacy Act of 1974 sets in place significant restrictions on the government's use of information it compiles about its citizens. In so doing, it "serves to safeguard the public interest in informational privacy." Ely v. Department of Justice, 610 F. Supp. 942, 945 (N.D. Ill. 1985). The Privacy Act seeks to accomplish such broad goals in several ways. For example, it restricts disclosure of records pertaining to individuals by government agencies, 5 U.S.C. § 552a(b); obligates the government to account for those disclosures that are permitted, id. § 552a(c); mandates that individuals shall be able to obtain access to agency records that pertain to them, id. § 552a(d); governs how agencies may collect and archive such information, id. § 552a(e); instructs government agencies to develop regulations facilitating compliance with the act's requirements, id. § 552a(f); and vests the courts with jurisdiction to hear suits by individuals to enforce its provisions, id. § 552a(g).
The issue that must be resolved here is whether the BOP's regulation, permitting disclosure of "evaluative" or "diagnostic" medical records only to the requester's physician, is a valid exercise of the regulatory authority conferred on the BOP by the Privacy Act.
For the reasons set forth below, this court concludes that it was a valid exercise of the regulatory authority conferred on the BOP by the Privacy Act.
The principal justification advanced by the BOP for withholding Cowsen-El's medical records is the BOP's own regulation. See Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 3. See also Barley Aff. para. 17 (explaining that direct disclosure of the requested records "would potentially create an atmosphere of confrontation between the inmate and medical staff," and "could inhibit the free exchange of medical evaluations and opinions between medical personnel of the treatment needs of the plaintiff").
The court, however, is obligated to look behind the regulation, to the statute under which it was promulgated, to assess the regulation's validity. See 5 U.S.C. § 552a(f) (authorizing agencies only to promulgate "rules in order to carry out the provisions of the Privacy Act)"). The import of this limitation on agency regulatory authority is plain: the Privacy Act does not authorize government agencies to create new disclosure exemptions by virtue of their regulatory powers under the Privacy Act.
To determine whether a regulation exceeds its underlying statutory authority a court must first determine "whether Congress has directly spoken to the precise question at issue." Chemical Mfrs . Ass'n v. EPA, 287 U.S. App. D.C. 49, 919 F.2d 158, 162 (D.C. Cir. 1990) (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984)). To decide "whether Congress has so spoken, (the court) must look to 'the particular statutory language at issue, as well as the language and design of the statute as a whole,' K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct. 1811 (1988), and . . . must employ the traditional tools of statutory construction, including, where appropriate, legislative history." Chemical Mfgs. Ass'n, 919 F.2d at 162 (citing Ohio v. Department of Interior, 279 U.S. App. D.C. 109, 880 F.2d 432, 441 (D.C. Cir. 1989); accord NLRB v. United Food & Commercial Workers Union Local 23, 484 U.S. 112, 108 S. Ct. 413, 421, 98 L. Ed. 2d 429 (1987); INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987). The clear intent of Congress, if discernable from the foregoing inquiry, must be given effect. Chevron U.S.A., Inc., 467 U.S. at 842-43. However, if the statute is silent or ambiguous on the issue in question, the court must defer to the agency's interpretation of the statute "if it is reasonable and consistent with the statute's purpose." Chemical Mfgs. Ass'n, 919 F.2d at 163.
The relevant statutory provision, 5 U.S.C. § 552a(f), does not directly address the propriety of the procedure adopted by the BOP for disclosure of medical records. It provides only limited guidance: agencies shall "establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of his medical records." Id. § 552a(f)(3) (emphasis added). The surrounding subsections of § 552a(f) yield no clearer answer to what Congress contemplated by its choice of the phrase "special procedure." The definitional section of the Privacy Act also fails to shed light on the meaning and intended scope of this phrase.
This court's review of the Privacy Act's legislative history does, however, provide clear guidance. The Privacy Act of 1974, Pub. L. No. 93-579, was signed into law by President Ford on January 1, 1975. 11 Pub. Papers No. 1, 7 (President's statement signing Privacy Act into law). The House bill, upon which the bulk of the Privacy Act as ultimately enacted was based, included a section identical to § 552a(f)(3). See H.R. 16373, § 3 (introduced Aug. 12, 1974). The version of this bill ultimately passed by the House November 21, 1974, retained this language without modification and it was not subsequently amended. The House report on H.R. 16373 briefly describes the relevant section as follows:
Under (f)(3) each agency must establish procedures for disclosing pertinent records or information to individuals upon request. . . .
If, in the judgment of the agency, the transmission of medical information directly to a requesting individual could have an adverse effect upon such individual, the rules which the agency promulgates should provide means whereby an individual who would be adversely affected by receipt of such data may be apprised of it in a manner which would not cause such adverse effects. An example of a rule serving such purpose would be transmission to a doctor named by the requesting individual.
H.R. Rep. No. 93-1416, 93d Cong., 2d Sess. 16-17 (emphasis added). The legislative history of the Privacy Act contains only one other reference to this section of the act. See Cong. Rec. H10,693 (daily ed. Nov. 21, 1974) (statement of Rep. Kemp quoting second paragraph above from House Report to "clarify" the language of § 552a(f)(3) for other members during debate on the bill prior to its passage). These statements explaining the intended scope of agency authority to restrict disclosure of medical records demonstrate Congress's intent that disclosure through the requester's physician would be permissible.
Congress has spoken directly to the propriety of the BOP's chosen method of disclosure regarding medical records. The BOP has articulated its belief that direct disclosure will have an adverse effect on Cowsen-El. Accordingly, the court is obligated to give Congress's intent effect and uphold the BOP regulation. Chevron U.S.A., Inc., 467 U.S. at 842-43.
The court finds that the BOP has not met its burden of establishing that BOP Program Statement 5511.2 was properly withheld on the basis of Exemption 7. Accordingly, summary judgment is denied with respect to this document. The BOP has, however, satisfied its disclosure obligations with respect to the withheld medical records, and accordingly, summary judgment will be granted with respect to those records.
DATE: FEB 21 1992
Royce C. Lamberth
United States District Judge
ORDER - February 24, 1992, Filed
For the reasons set forth in the court's memorandum opinion issued this date, it is hereby
ORDERED that defendants' Motion for Summary Judgment is DENIED with respect to plaintiff's request for Bureau of Prisons Program Statement 5511.2, and it is further
ORDERED that defendants' Motion for Summary Judgment is GRANTED with respect to plaintiff's request for a copy of records of medical treatment he received from Bureau of Prisons medical staff on February 26, 1990, and it is further
ORDERED that should defendants choose to seek summary judgment in the future with respect to the Bureau of Prisons Program Statement 5511.2, such motion must be filed with the court within ten days from the date of this order.
Royce C. Lamberth
United States District Judge
DATE: FEB 21 1992