agreement here applies to the Fall 1990 disclosures because, inasmuch as the agreement provides that it was to "settle and compromise all claims, whether known or unknown, existing on or before the date of this agreement," it also covers claims arising out of a subsequent public disclosure.
Two cases are cited by the Department as providing a "helpful framework for analysis" on this issue
-- Keith v. Aldridge, 900 F.2d 736 (4th Cir. 1990), and Fisher v. Owens-Corning Fiberglass Corp., 868 F.2d 1175 (10th Cir. 1989). A review of the opinions in those cases reveals that they do not support the Department's position. In Keith, after settling an action, the plaintiff filed a second action predicated on the identical facts, and it was held that the settlement barred the second suit. Here, of course, the suit is based on wholly different operative facts: allegedly wrongful disclosures which (1) were made after the execution of the settlement agreement, and (2) were separate from the earlier disclosures. As for Fisher, the settlement covered certain diseases allegedly caused by exposure to asbestos. That settlement agreement covered all claims known or unknown, developed or undeveloped, growing out of the physical harm allegedly due to the exposure to asbestos, and there, too, the court held that the second action was barred. But there, again, there was only one event -- the exposure to asbestos -- not, as here, a second event -- the new disclosures subsequent to the execution of the agreement.
If there were any doubt about this conclusion, it is dispelled by the language of the settlement agreement itself. That agreement provides specifically that it applies only to claims "existing on or before the date" of that agreement. Obviously, the wrongful conduct of allegedly engaged in by Department of Justice personnel three months after the settlement agreement was executed had not given rise to a claim existing on the date of that agreement.
Finally, on this issue, it is noteworthy that the original draft agreement submitted by the Department of Justice to Pilon contained language that it was to cover any claims that the latter "may have or hereafter acquire against the United States," but the Pilons rejected that draft in favor of the present language; i.e., claims the Pilons "may have as of the date this Agreement is executed."
In short, there can be no doubt but that by the settlement agreement the Pilons did not waive their rights with respect to future improper disclosures, nor did they grant license to the Department by that agreement in perpetuity to disclose confidential information concerning them in violation of the Privacy Act.
The Department next advances a number of miscellaneous arguments which can be disposed of more briefly.
It is asserted that the information disclosed by the Department's personnel was already public, and that the disclosure therefore could not violate the Privacy Act. That contention, too, is unpersuasive.
In the first place, the issue whether the information was already public is a factual one specifically disputed between the parties, and it is therefore inappropriate for summary judgment on that basis alone. Plaintiff has not yet had the opportunity for discovery and has not even seen the documents that were released. In that posture, it would be particularly improper as well as unfair to cut off his possible avenues toward relief.
Second, even if it be assumed that the factual issue may be resolved at this stage against plaintiff, it would not assist the Department's position. The previously disclosed false information was subsequently retracted by the Department as untrue. There is an obvious distinction between the republication of a fact previously disclosed and never retracted on the one hand, and a publication of a statement previously publicly disavowed as false, on the other. It would make no sense to regard the republication in the latter context as somehow privileged, and the Court rejects the argument that it is.
None of the cases cited by the Department involved the republication of "facts" following their disavowal by the party publishing them although, to be sure, there are no cases to the contrary. This is so presumably because the activities of the Department officials claimed to have occurred here are so peculiar -- retraction followed by republication -- that there are few, if any, factual precedents.
Third, the Department argues that there could have been no Privacy Act violation because the "leakers" obtained the information from their own personal recollections, as distinguished from governmental records. The difficulty is that the leaks obviously stem from confidential Department documents and oral statements derived therefrom.
Further, the law is established that the Act applies even if the particular government agent did not physically remove the record from the official record system. Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1408-11 (D.C. Cir. 1984).
Fourth, the Department argues in its surreply that the leaks were not properly established even for purposes of an opposition to a motion for summary judgment because statements attributed to reporters attesting to the receipt of information from government officials were hearsay. The Court has not been advised how the victim of gross Privacy Act violations accomplished by leaks to news media could ever begin to secure redress if such statements are to be considered inadmissible. Presumably the Department does not suggest that such violations are to be de facto exempt from the Privacy Act strictures.
Fifth, the Court finally rejects the Department's contention that it is entitled to summary judgment because plaintiff has not demonstrated disclosures by the "agency." See Olberding v. U.S. Dept. of Defense, 709 F.2d 621 (8th Cir. 1983). This contention is premature. The issue before the Court is whether the complaint can withstand a motion for summary judgment; it clearly can. A number of the facts published in the media were specifically alleged to have been "closely held within the Department and available only to a limited number of departmental officials." Pilon Affidavit at P 17. Indeed, one of the documents at issue was said by the Department to bear a "Top Secret" classification and to have been read only by eleven Department of Justice officials. Plaintiff's Response of March 22, 1991. Following discovery and a trial, it may be decided whether, as a matter of contested fact, an agency release occurred.
For the reasons stated, the Department's motion will be denied with respect to plaintiff's first claim.
In a separate claim plaintiff asserts that the Department violated his rights when, contrary to 5 U.S.C. § 552a(e)(10), it failed to "establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records." In the view of the Court, a valid claim is stated when it is properly pleaded that the agency has acted in a manner which was intentional or willful. 5 U.S.C. § 552a(4); Kostyu v. United States, 742 F. Supp. 413 (E.D. Mich. 1990). Plaintiff has pleaded that the disclosures which are the subject of this lawsuit occurred after the Department became aware of several prior disclosures regarding this plaintiff and several requests for investigation and corrective action, and he has therefore satisfied this requirement.
The Department argues that subsection (e)(10) of the statute cannot mean what it plainly appears to say because if that were so the provisions of subsection (b) would be largely redundant, and the Department goes on to contend that "the more specific remedy provided in subsection (b) governs the more general provision, subsection (e)(10)." Defendant's Memorandum at 23-24. The general principle asserted by the Department is unimpeachable; but with respect to the issue of allegedly inadequate safeguards to insure the confidentiality of records against hazards which could result in harm, embarrassment, inconvenience, or unfairness to an individual (such as this plaintiff), subsection (e)(10) is the more specific provision, subsection (b) the more general. Thus the former governs, and the motion must be denied also with respect to the second claim in the complaint.
Plaintiff also sues for alleged violations of his rights under the Fourth, Fifth, and Ninth Amendments to the Constitution. However, as the Department correctly points out, for purposes of these claims it is not a suable entity. Blackmar v. Guerre, 342 U.S. 512, 96 L. Ed. 534, 72 S. Ct. 410 (1952). Further, if the United States were to be substituted for the Department of Justice as the defendant, sovereign immunity principles would bar the action. See Lombard v. United States, 690 F.2d 215, 227 (D.C. Cir. 1982). It follows that the third claim must be dismissed.
For the reasons stated, the defendant's motion is granted in part (with respect to the third claim) and denied in part (with respect to the first and second claims).
May 28, 1992
HAROLD H. GREENE
United States District Judge
ORDER - May 28, 1992, Filed
Upon consideration of defendant's motion to dismiss or in the alternative for summary judgment, the opposition and reply thereto, and in accordance with the Memorandum issued this date, it is this 28th day of May, 1992
ORDERED that defendant's motion is granted with respect to the plaintiff's third claim; and it is further
ORDERED that defendant's motion is denied with respect to plaintiff's first and second claims.
HAROLD H. GREENE
United States District Judge