memorandum, filed after the Henke decision, he states "Dr. Dorothy Macfarlane, ORI's 30(b)(6) designee, testified that, at the time of the disclosures from Dr. Fisher's investigatory files, 'there was a Privacy Act systems notice being drafted reflecting the fact that we did, in some cases [including Dr. Fisher's], identify cases by the respondent's name.' Macfarlane Dep. at 241." Pl.'s Supplemental Mem. in Supp. of Pl.'s Mot. for Partial Summ. J. at 2 (parenthetical included in the original).
The ORI files are compiled for investigatory purposes. Therefore, "Privacy Act concerns are at their zenith, and if there is evidence of even a few retrievals of information keyed to individuals' names, it may be the case that the agency is maintaining a system of records." Henke 83 F.3d at 1461. Having reviewed the portion of Dr. Macfarlane's deposition identified by the plaintiff, the court finds that there is no evidence in the record that the files concerning the scientific misconduct investigation of Dr. Fisher were retrieved by his name at the time of the alleged disclosures.
Indeed, it appears that the primary practice and policy of the agency in April and June of 1994 was to index and retrieve the investigatory files by the name of the institution in which the alleged misconduct occurred, rather than by the name of the individual scientist accused of committing the misconduct. The fact that it was possible to use the plaintiff's name to identify a file containing information about the plaintiff is irrelevant. Henke clearly establishes that retrieval capability of records by name is not sufficient to transform a group of records into a system of records; to be a system of records, the group of records must actually be accessed by the agency by use of a personal identifier. As the plaintiff has failed to demonstrated that the ORI files constituted a system of records at the time of the disclosures, the defendants are, accordingly, entitled to summary judgment regarding the alleged disclosures from the ORI files.
B. The Plaintiff Has Not Demonstrated The Necessary Nexus Between The Disclosures And The ORI Records
The Privacy Act provides that "no agency shall disclose any record which is contained in a system of records by any means of communication to any person, or another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains . . . ." 5 U.S.C. 552a(b) (the Act also contains twelve exceptions to this requirement, none of which appears to be applicable to this case). As a general rule, courts have held that the Privacy Act only covers disclosures of information which was either directly or indirectly retrieved from a system of records. See Krowitz v. Dep't of Agriculture, 641 F. Supp. 1536, 1545 (W.D. Mich. 1986), aff'd 826 F.2d 1063 (6th Cir. 1987); Doyle v. Behan, 670 F.2d 535, 539 (5th Cir. 1982); Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir. 1983). As the Tenth Circuit held, "the disclosure of information derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records." Thomas, 719 F.2d at 345. This general rule is commonly known as the "retrieval rule."
The D.C. Circuit, however, created an exception to the retrieval rule in Bartel v. FAA, 223 U.S. App. D.C. 297, 725 F.2d 1403, 1408 (D.C. Cir. 1984). In Bartel, the Court of Appeals found that the Privacy Act was applicable to a situation in which an agency official disclosed his personal recollection of an investigation that he had instituted, despite that fact that he may not have actually reviewed the investigatory record before making the disclosure. The court held, "it would hardly seem an 'intolerable burden' to restrict an agency official's discretion to disclose information in a record that he may not have read but that he had a primary role in creating and using, where it was because of that record-related role that he acquired the information in the first place." Id. at 1411. It is important to note two things about the Bartel decision. First, the Court of Appeals repeatedly, on six occasions, stated that its ruling was based on the particular facts of that case. Second, the Court of Appeals did not reject the retrieval rule for use in other scenarios. As the court of appeals recently explained,
On the facts then before us, however, that standard would have allowed an official to "circumvent [the Act] with respect to a record he himself initiated by simply not reviewing [the record] before reporting its contents or conclusions." We therefore found the retrieval rule inapposite in order to avoid an "interpretation [that] would deprive the Act of all meaningful protection of privacy."
Pilon v. Dep't. of Justice, 73 F.3d 1111, 1117 (1996)(quoting from Bartel. Internal citations omitted).
The plaintiff has offered no evidence to support the conclusion that either Dr. Lee or Dr. Broder became aware of the scientific misconduct investigation of Dr. Fisher, either directly or indirectly, because of the information contained in the ORI investigatory file. Plaintiff argues "obviously, ORI illegally disclosed the information from their confidential files to Broder and Lee, who then illegally broadcast it to the public at large." Pl.'s Reply in Supp. of Pl.'s Mot. for Partial Summ. J. at 16. Plaintiff, however, has identified no evidence to support this conclusion.
As there is no evidence that the doctors' statements were based on information retrieved from the ORI investigatory files, the court must consider if the facts of this case place it within the parameters of the Bartel decision. In other words, did either doctor institute the investigation or was either involved with the investigation. During oral arguments, plaintiff stated that Dr. Lee was Dr. Border's superior and that it was Dr. Broder who "told ORI to open the scientific misconduct investigation." Tr. at 12. In response, the defendants stated that Dr. Border did not supervise the ORI and "did not have the authority to compel initiation of a scientific misconduct investigation or inquiry." Tr. at 62. Defendants also noted that there is no evidence that suggests that Dr. Lee exercised supervisory authority over ORI. The plaintiff has failed to identify evidence that would support its position.
The court concludes that plaintiff has failed to demonstrate that either Dr. Lee or Dr. Broder learned of the scientific misconduct investigation from the ORI investigatory file or through direct involvement in the investigation. Accordingly, the defendants are entitled to summary judgment regarding the alleged disclosures from the ORI files.
3. Administrative Procedure Act Claim
As plaintiff's counsel stated during oral arguments, the Administrative Procedures Act ("APA") claim is not a substantive cause of action, and it would have been relevant only if the plaintiff had prevailed on his motion for summary judgment. Accordingly, the APA claim is dismissed as moot.
It is this 13 day of August 1996,
ORDERED that plaintiff's motion for partial summary judgment be and is hereby denied ; and it is
FURTHER ORDERED that plaintiff's Administrative Procedures Act be and is hereby dismissed as moot ; and it is
ORDERED the defendants' motion for summary judgment be and is hereby granted, and judgment is entered in favor of the defendants; and it is
FURTHER ORDERED that pursuant to Fed. R. Civ. P. 62(c) and the agreement of the parties, the court's Order and Preliminary Injunction dated March 16, 1995 shall remain in effect during the pendency of any appeal from this Order to the United States Court of Appeals for the District of Columbia Circuit or until the time for notice of such an appeal has expired.
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE