Act," or "[a] violation . . . so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful."); Tijerina v. Walters, 821 F.2d at 799 (defining "intentional or willful" standard as "somewhat greater than gross negligence" or a "flagrant disregard" for rights protected by Privacy Act).
Plaintiff asserts that there are numerous inaccuracies in his personnel file, including false allegations of sexual harassment, false summations of his polygraph reports, false admissions that he mishandled classified information, false statements about the state of plaintiff's marriage, false statements about plaintiff having contemplated suicide and false statements about his emotional stability and character. Plaintiff also alleges that the CIA suppressed positive information about him. Plaintiff has identified the following specific adverse determinations that allegedly flowed from these inaccuracies: the FBI failed to give him a job, he was removed "from a career enhancing program entitled DDS&T Career Development Course," and his promotability category was dropped from a "2" to a "3". Amended Complaint P 46.
"In the typical [Privacy Act] case, . . . it is feasible, necessary, and proper, for the agency and, in turn, the district court to determine whether each filed item of information is accurate." Sellers v. Bureau of Prisons, 959 F.2d at 311. Where "the facts at issues [are] clearly provable," the district court must conduct a de novo review of the evidence to determine the accuracy of the records. Id. On the other hand, where the disputed information is in the nature of a subjective opinion or otherwise incapable of being verified, the district court need not make credibility determinations but rather should ensure that the agency acted fairly and, where appropriate, cause the individual's files to reflect the dispute. See 5 U.S.C. § 552a(g)(1)(C); Sellers v. Bureau of Prisons, 959 F.2d at 311; Doe v. United States, 261 U.S. App. D.C. 206, 821 F.2d 694, 699-701 (D.C. Cir. 1987); Webb v. Magaw, 880 F. Supp. 20, 24-25 (D.D.C. 1995).
Particularly where the disputed information is part of an employment performance evaluation, "[a] court should be very hesitant to second-guess subjective evaluations and observations by an employee's supervisors where such matters are within the competence and experience of those supervisors." Hewitt v. Grabicki, 794 F.2d 1373, 1378 (9th Cir. 1986). This does not mean, however, that the agency can "squirrel away, deliberately or out of bureaucratic habit, unsubstantiated rumors, McCarthyesque innuendo, unchecked reports of dubious informers or prying neighbors," even where such information makes its appearance as part of an employment evaluation process. Doe v. United States, 821 F.2d at 699.
1. The Alleged Inaccuracies
In this case, the inaccuracies alleged by plaintiff are either nonexistent, have been corrected or are unverifiable opinions of supervisors, other employees and/or informants. As discussed above, the sexual harassment allegations have been removed from plaintiff's CIA file and a corrective letter has been sent to the FBI. Accordingly there are no longer any inaccuracies to correct in this regard. Whether the fact that plaintiff's file once contained inaccuracies gives rise to a claim for damages is discussed below.
Plaintiff claims that his file contains inaccurate summations of his polygraph reports because these reports state that he admitted that he removed classified information. See Amended Complaint PP 61-62. The polygraph summaries reflect that plaintiff admitted that he removed certain documents although he denied that they were classified or that he removed them deliberately or frequently. See Defs.' Ex. 1 (Vaughn Index), Tabs 57, 135, 144; Declaration of Joseph B. Castillo ("Castillo Decl.") PP 15-16 (July 31, 1996). While plaintiff may dispute whether the documents at issue were in fact classified, that dispute does not render the summaries inaccurate since they accurately reflect the nature of plaintiff's statements.
Plaintiff also alleged in his initial complaint that his files contain false statements about the state of his marriage as well as his private life and conduct. See Complaint PP 6, 32. Insofar as plaintiff complains about allegations of sexual harassment, those allegations have been expunged from his file. Insofar as plaintiff complains that statements about his marriage are inaccurate, the only references to his marriage are contained in or flow from the IG's investigatory memorandum of April 20, 1990, which reports that "the OS file indicates that Mr. Blazy's marriage was on and off for several years and that he was temporarily separated from his wife in 1986, but that they had since gone [sic] back together." Defs.' Ex 1, Tab 210 P 15. Plaintiff does not appear to dispute the fact that he and his wife were separated or that they had marital difficulties. See Pl.'s Opp'n at 46-47. Accordingly, claims relating to this asserted inaccuracy claim must fail.
Plaintiff also alleges that his file contains false statements about him having contemplated suicide at one time. See Pl.'s Opp'n at 49. In a memorandum to the file during plaintiff's IG investigation, the memorandum author notes that the "suicide" issue came up during a polygraph question about plaintiff's mental stability. The memorandum states:
Mr. Blazy felt it was very unfair to raise this matter again 17 years later. When Mr. Blazy was 18 he took a dose of six sleeping pills after he and his girlfriend terminated their relationship. Mr. Blazy then called her to tell her what he had done. He did this to gain her sympathy, not as a suicide attempt.
File Memorandum from IG Investigation at 5 (May 26, 1989), Pl.'s Ex. 46 to Pl.'s Reply and Opp. P 5. Defendants argue that "agency physicians opined that this constituted a suicide attempt" and that this "opinion" is not susceptible to objective verification. Defs.' Motion at 26. Since the memorandum clearly explains that Mr. Blazy did not feel that he was attempting to commit suicide at the time, the Court finds plaintiff's file to be accurate in this regard and that any medical opinions interpreting the incident may remain in the file along with the memorandum.
Finally, plaintiff complains that his file contains several derogatory personal statements, namely that he has a "paranoid streak," that the security clearance process had made him "bitter and [wanting to] seek revenge," and that he was a "snake in the grass." These statements were made by several interviewees during his security clearance process and are contained in a memorandum recording those interviews. See Defs.' Ex. 1 (Vaughn Index), Tab 107 at 2-5. The context of these interviews makes clear that the derogatory statements were merely opinions of the interviewees and therefore unverifiable, particularly since they were made in the context of a personnel evaluation. Maintaining them in his file therefore is not a violation of the Privacy Act. See Hewitt v. Grabicki, 794 F.2d at 1378; Webb v. Magaw, 880 F. Supp. at 24-25.
2. Relationship to Adverse Determinations
Even if there were inaccuracies in plaintiff's file, he has not demonstrated that they were causally related to any "adverse determination." The central adverse determination of which he complains is the FBI's failure to hire him. According to the declarations of Gordon Zacrep, who served as Section Chief of the Systems Development Section of the FBI and was responsible for hiring decisions including the decision not to hire plaintiff, the FBI's decision not to hire plaintiff was based on the information contained in four interviews conducted by the FBI and not on any information in the CIA's files. Declaration of Gordon N. Zacrep PP 6-9 (July 25, 1996); Supplemental Declaration of Gordon N. Zacrep PP 9-10 (Nov. 5, 1996).
Plaintiff attacks Mr. Zacrep's first declaration as being speculative and not based on personal knowledge and has moved to hold Mr. Zacrep in contempt. Plaintiff's challenge, however, is merely a conclusory denial of the contents of Mr. Zacrep's declaration. Mr. Blazy points to no evidence that Mr. Zacrep's declaration was made in bad faith, that the decision was not made in the way that he describes, or that he lacked the authority to decide not to hire plaintiff. On a motion for summary judgment, plaintiff cannot rest on allegations and speculation but must point to actual evidence that brings Mr. Zacrep's account into dispute. He has not done so.
Even if plaintiff had demonstrated that inaccurate information had led to any of the adverse determinations of which he complains, he has not shown that the CIA acted willfully in maintaining inaccurate records and therefore he is not entitled to damages. The only demonstrably false statements, namely those about sexual harassment, were expunged after a lengthy IG investigation. The rest of the information about which Mr. Blazy complains amounts to derogatory assessments of his personality by people interviewed by the CIA. While the CIA is not entitled to collect and maintain unfounded gossip and innuendo, it is permitted to investigate its employees' backgrounds and characters. Plaintiff has pointed to no piece of evidence that would suggest intentionality or even recklessness on the CIA's part and he therefore is not entitled to a trial on these issues. See Rule 56(c), Fed. R. Civ. P.
E. Plaintiff's Access Claims
Plaintiff alleges that he has not received all the information to which he is entitled. As noted above, the agency's search now is complete. Of 238 responsive documents, 25 documents were withheld in full and 24 were released in full, while the remaining 190 were released but partially redacted. See Suppl. Strickland Decl. P 23.
The Court finds that, with the exception of one group of 15 documents as to which the CIA's explanation lacks sufficient detail, defendants properly invoked exemptions under the Privacy Act and the FOIA in support of withholding the information it declined to disclose.
First, plaintiff complains that some documents lack classification markings and/or declassification instructions. In response to this complaint, defendants "reprocessed" plaintiff's Privacy Act request in order to make classification markings readable. See Suppl. Strickland Decl. P 15. They are now readable and this complaint therefore is moot.
Second, plaintiff alleges that certain redactions were improper because the specific exemption or exemptions cited in support of the particular redaction do not in fact support the redaction or because underlying information is not classified. See Pl.'s Response to and Analysis of Privacy Act Records Re-Processed By the Defendants (Jan. 21, 1997). Defendants maintain that the following categories of information have been properly withheld pursuant to Exemptions (j)(1) and (k)(1) of the Privacy Act and Exemptions 1, 3, 5, 6 and 7(D) of the FOIA: intelligence sources, intelligence methods, names of CIA officers, names and locations of CIA facilities, privileged material from plaintiff's Employment Review Panel meetings, names of third person non-Agency personnel, and the names of employees and informants.
1. The Privacy Act and FOIA Exemptions 1 and 3
Under Exemption (j)(1) of the Privacy Act, the Director of the CIA has legitimately exempted from the access provisions of the Act those records pertaining to intelligence sources and methods. See 32 C.F.R. § 1901.61(d)(1). In addition, under Exemption (k)(1) of the Privacy Act, the Director has legitimately exempted records pertaining to classified intelligence sources and methods and other classified information. See 32 C.F.R. § 1901.71(a)(1). Since plaintiff would not be entitled to information withheld pursuant to these exemptions, he could only gain access to it under the FOIA.
Exemption 1 of the FOIA exempts from disclosure records that are
specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order.
5 U.S.C. § 552(b)(1); see Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. Cir. 1982); Halperin v. Central Intelligence Agency, 203 U.S. App. D.C. 110, 629 F.2d 144, 147-48 (D.C. Cir. 1980). In other words, under Exemption 1, plaintiff is not entitled to records that have been properly classified. Moreover, in determining whether records are properly classified a court must give "substantial weight" to agency declarations and affidavits, so long as they "contain reasonable specificity of detail," even while it conducts a de novo review of the decision to withhold. Halperin v. Central Intelligence Agency, 629 F.2d at 148; see American Civil Liberties Union v. Department of Justice, 548 F. Supp. 219, 221 (D.D.C. 1982); Iglesias v. Central Intelligence Agency, 525 F. Supp. 547, 552 (D.D.C. 1981).
Exemption 3 of the FOIA exempts from disclosure those records that are
specifically exempted from disclosure by statute, provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.