that Sterling was a confidential informant. Consequently, Sterling asserts a cause of action under § 552a(g)(1)(D), which permits an individual to bring suit against an agency which "fails to comply with any other provision of [the Privacy Act], or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual . . . ." However, the Plaintiff seeks monetary damages only, which are recoverable only if the Plaintiff shows that "the agency acted in a manner which was intentional or willful . . . ." § 552a(g)(4).
The Plaintiff has failed, however, to come forward with any evidence that the agency intentionally or willfully disclosed Sterling's identity through the information released to Pekoske. Under the Privacy Act, an agency commits a "willful" or "intentional" error when it acts with "somewhat greater than gross negligence." Tijerina v. Walters, 261 U.S. App. D.C. 301, 821 F.2d 789, 799 (D.C. Cir. 1987). Evidence that an agency acts merely negligently, or that the agency "handled a matter in a disjointed, or confused manner," is not sufficient to survive a motion for summary judgment. Waters v. Thornburgh, 281 U.S. App. D.C. 173, 888 F.2d 870, 875-76 (D.C. Cir. 1989). In other words, an agency must act "without grounds for believing [the action] to be lawful, or by flagrantly disregarding others' rights under the Act." Albright v. United States, 235 U.S. App. D.C. 295, 732 F.2d 181, 189 (D.C. Cir. 1984).
Sterling has come forward with nothing to suggest that the Defendants acted with the sort of willful or intentional misconduct required for the recovery of monetary damages. There is no dispute that the Bureau of Prisons redacted Sterling's name from the disciplinary hearing memorandum before releasing the document to Pekoske. See Defendants' Motion to Dismiss, Exhibit 1. That the Bureau of Prisons attempted to sanitize the memorandum before release "demonstrates that agency's consideration of and concern for plaintiff's privacy interests." Sullivan v. Veterans Administration, 617 F. Supp. 258, 262 (D.D.C. 1985); accord Stephens v. Tennessee Valley Authority, 754 F. Supp. 579, 583 (E.D. Tenn. 1990).
Sterling asserts that the Defendants were on notice that his identity had to be kept confidential and that the Defendants' agents should have been more careful in the processing of Pekoske's FOIA request. Nevertheless, even assuming that the Defendants were "on notice" of the sensitive nature of the information sought and the need to safeguard the security of the Plaintiff, the Court cannot conclude therefrom that the Defendants acted in "flagrant disregard" for the Plaintiff's privacy rights. See Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1243 (D.C. Cir. 1987). The Bureau of Prisons redacted the memorandum before it was released to Pekoske, and after the release, moved the Plaintiff away from Pekoske at the Plaintiff's request out of a concern for his safety. The subsequent transfer is relevant because "an agency's post hoc attempt to remedy the harm it may have caused may be a factor for the court to consider . . ." in deciding whether the agency's alleged misconduct was intentional or willful. Waters v. Thornburgh, 281 U.S. App. D.C. 173, 888 F.2d 870, 876 (D.C. Cir. 1989).
In short, the Defendants' efforts both before and after the release of information to Pekoske indicate a sensitivity to the potential harm the release might cause and represent attempts to avert that harm. The Plaintiff has submitted no other evidence, relying instead on mere allegations of willful misconduct by the Defendants. Such allegations, without evidentiary support, are insufficient to survive the Defendant's Motion for Summary Judgment. See Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 3188-89, 111 L. Ed. 2d 695 (1990).
Upon consideration of the Defendants' Motion for Summary Judgment, the opposition thereto, the underlying record, and the applicable law, the Court concludes that the Plaintiff has failed to come forward with any evidence that the alleged misconduct of the Defendants was willful or intentional, an essential element in the Plaintiff's suit for monetary damages. Consequently, the Court must grant the Defendants' Motion for Summary Judgment. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
July 30, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
JUDGMENT - July 30, 1993, Filed
Upon consideration of the Defendants' Motion for Summary Judgment, the applicable law, the record herein, and for the reasons articulated in this Court's Memorandum Opinion of even date herewith, it is, by the Court, this 30th day of July, 1993,
ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, GRANTED; and that Judgment in the above-captioned case shall be, and hereby is, entered for the DEFENDANTS; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
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