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June 12, 1997

CARA ALEXANDER, et al., Plaintiffs,

The opinion of the court was delivered by: LAMBERTH

 I. Background

 The allegations in this case arise from what has become popularly known as "Filegate." According to their complaint, plaintiffs allege that the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush administrations. Plaintiffs further aver that the requests for the files came from defendants Bernard Nussbaum, David Craig Livingstone, and Anthony Marceca, who were allegedly acting outside the scope of their employment and at the request of defendant Hillary Rodham Clinton. Plaintiffs allege that these actions were taken for partisan political purposes in order to obtain potentially embarrassing and damaging information on former Reagan and Bush administration personnel.

 From this set of facts, plaintiffs aver three causes of action. Count I alleges a violation of the Privacy Act by the FBI for improper maintenance of the files which resulted in their disclosure to the White House without any lawful justification. Count II alleges a violation of the Privacy Act by the White House for maintaining the files for no lawfully recognized purpose. Count III alleges a common law tort of invasion of privacy against Mrs. Clinton, Nussbaum, Livingstone, and Marceca for requesting the files for an improper purpose.

 The five named plaintiffs are Cara Leslie Alexander, Patrick Adam Beers, Marjorie Anne Bridgman, Joseph Nelson Cate, and David Lee Black. They are suing on behalf of themselves and all others similarly situated, and seek to maintain this case as a class action. The named defendants are the Federal Bureau of Investigation (FBI), the Executive Office of the President (EOP), First Lady Hillary Rodham Clinton, former White House Counsel Bernard W. Nussbaum, former Director of the White House Office of Personal Security (OPS) David Craig Livingstone, and former OPS employee Anthony Marceca.

 II. Executive Office of the President's Motion to Dismiss Count II

 The government has moved the court to dismiss Count II for lack of jurisdiction because the Office of Personnel Security and the Office of Records Management, each units within the Executive Office of the President, are not agencies subject to the Privacy Act.

 The Privacy Act of 1974 governs federal agencies' acquisition, maintenance, use and disclosure of information concerning individuals. Under the Act, agencies may maintain "only such information about an individual as is relevant and necessary to accomplish a purpose of the agency as required to be accomplished by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1). The Act also specifies that agencies maintaining such information shall "establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity. . . ." 5 U.S.C. § 552a(e)(10).

 In addition, the Act prohibits an agency from disclosing information about an individual in its records without the individual's consent, unless one of several exceptions applies. 5 U.S.C. § 552a(b). The exception most likely relevant to this case allows agencies to disclose information pursuant to a "routine use," meaning any use of a particular record which is compatible with the purpose for which the record was collected, as long as the routine use is published in the Federal Register. 5 U.S.C. §§ 552a(a)(7), (b)(3) & (e)(4)(D).

 The Act grants federal courts jurisdiction to hear claims that an agency subject to the Act has failed to comply with its requirements. 5 U.S.C. §§ 552a(g)(4). On behalf of the EOP, the government argues that Count II must be dismissed because the OPS and ORM are the only two groups within the EOP that maintained the files and neither are agencies subject to the Privacy Act. The government premises its argument on the interpretation courts have given the word "agency" when applying the Freedom of Information Act (FOIA).

 Instead of providing a definition for "agency" in the Privacy Act, Congress stated that the term means "agency" as defined in section 552(e) of FOIA, Title 5 of the U.S.C. *fn1"

 FOIA defines "agency" as

any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(f).

 Although the plain language of this statute includes the EOP as an "agency" which is accountable under FOIA, the courts, bearing in mind the purposes of the statute and the legislative history, have interpreted the definition to exclude the President's immediate personal staff and units within the EOP whose sole function is to advise and assist the President. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980).

 While it is true that Congress adopted the statutory definition of "agency" as used in FOIA for the Privacy Act, no court has provided the term "agency," as used in the Privacy Act, with the same interpretation which excludes from the plain language the President's personal staff and units whose sole function is to advise and assist the President. Recognizing the very different purposes the two statutes serve, this court will not be the first.

 The chief purpose of FOIA is to provide citizens with better access to government records than first provided under the Administrative Procedures Act. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1076 (D.C.Cir. 1971). As stated by the D.C. Circuit, "FOIA is intended to enlighten citizens as to how they are governed." Sweetland v. Walters, 314 U.S. App. D.C. 9, 60 F.3d 852, 855 (D.C.Cir. 1995). By providing exceptions for the disclosure requirements, Congress was balancing between the "public interest in freedom of information and countervailing public and private interests in secrecy." Soucie, 448 F.2d at 1076.

 In contrast, the Privacy Act was adopted in order to "provide certain safeguards for an individual against an invasion of personal privacy." Section 2(a)(4), Preamble to the Privacy Act, 5 U.S.C. § 552a(a) note. Congress recognized the need of the government to have sensitive information on individuals and provided the means by which the government could maintain this type of information and adequately protect the rights of individuals.

 Thus, the concerns of FOIA and the Privacy Act are quite different. When passing FOIA, Congress was addressing the need for individuals to have access to government information. When passing the Privacy Act, Congress was addressing the need for individuals to have protection for their privacy concerns. In interpreting the word "agency" to exclude, under FOIA, the immediate staff of the President, the courts recognize, as Congress did, that the access provided by FOIA must be limited. However, no court has found, and there is no evidence that the privacy protections provided by Congress in the Privacy Act must also be necessarily limited. Through the several exceptions to the restrictions on information covered by the Privacy Act, the President and those who work for the President will always have access necessary for the many executive decisions. Thus there is no need to ignore the plain language of the statute and limit the word "agency" as has been done under FOIA.

 The government's last attempt to find support for their position is to rely on a D.C. Circuit case in which the court concludes that because a group is not an "agency" for FOIA purposes, it is necessarily not an "agency" for the Sunshine Act because the Sunshine Act expressly incorporates the definition used in FOIA. Rushforth v. Council of Economic Advisers, 246 U.S. App. D.C. 59, 762 F.2d 1038, 1043 (D.C.Cir. 1985). In light of this court's conclusion that the different purposes of FOIA and the Privacy Act do not mandate the same interpretation, this case is not persuasive. Unlike the Privacy Act, the Sunshine Act serves the same purposes as FOIA by providing individuals with access, not protection for individual rights.

 Words in statutes must be construed within the statutory scheme in which they appear, and this court holds that under the Privacy Act, the word "agency" includes the Executive Office of the President, just as the Privacy Act ...

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