The opinion of the court was delivered by: FRIEDMAN
Plaintiff brought this action pursuant to the Privacy Act, 5 U.S.C. § 552a, in conjunction with the Freedom of Information Act, 5 U.S.C. § 552, seeking access to and amendment of documents in his personnel file at the Central Intelligence Agency where he was formerly employed. He also sought declaratory and injunctive relief under the First, Fourth and Fifth Amendments.
The case is before the Court on defendants' motion to dismiss in part and for summary judgment, plaintiff's motion for clarification and reconsideration of the Court's May 7, 1996 Order, plaintiff's motion to strike from the record and/or seal certain documents filed by defendants, defendants' motion to file a reply in excess of the page limitations, plaintiff's motion for further discovery and plaintiff's motion to hold Gordon Zacrep in contempt.
In early 1989, plaintiff, who was employed as a computer scientist with the CIA, applied for a job with the FBI. The FBI asked the CIA for background information on plaintiff, much of which had been accumulated during a recent security investigation. Plaintiff also inspected a "sanitized" version of his own security files and, on June 23, 1989, submitted a request pursuant to the Privacy Act seeking copies of "all [CIA] documents collected and maintained in various files listed under my name." See Complaint PP 9-10 and Ex. 2 to Plaintiff's Reply and Opposition to Defendants' Motion to Dismiss in Part and for Summary Judgment ("Pl.'s Reply and Opp."). On July 28, 1989, plaintiff wrote to the CIA Inspector General listing several grievances, among them being the inaccuracy of statements made by his supervisor during his security investigation regarding allegations of sexual harassment. See Memorandum from Louis Blazy to Inspector General (July 28, 1989), Pl.'s Ex. 3 to Pl.'s Reply and Oppo. The IG investigated the allegations of sexual harassment and determined that they were unfounded. On July 16, 1990, the CIA Director of Security wrote to plaintiff, acknowledging that the allegations were unfounded and representing that the letter would be sent to the FBI in order to maintain the accuracy of plaintiff's FBI file. See Letter from James Lynch to Louis Blazy (July 16, 1990), Pl.'s Ex. 5 to Pl's. Reply and Opp.
One month later, plaintiff wrote to the FOIA and Privacy Act Branch of the CIA requesting "a copy of all documents collected and maintained in various files listed under my name." See Letter from Louis Blazy (Aug. 13, 1990), Ex. A to Defs.' Status Report (Mar. 20, 1996). Nearly four years later, defendants issued seven incremental responses dating from March 11, 1994 through October 7, 1994, providing plaintiff with a number of documents. Plaintiff then filed this action, alleging that he had not received all the documents to which he was entitled and that his records contained inaccuracies and misstatements that had caused him to be denied the FBI job. Defendants moved to dismiss and, on January 31, 1996, the Court dismissed some parts of the complaint but preserved the central Privacy Act claims against the agency itself. See note 1, supra.
In response to the Court's Opinion and Order of January 31, 1996, defendants filed a status report reiterating that the October 7, 1994 letter represented the agency's "final response" to plaintiff's Privacy Act request. See Defs.' Status Report (Feb. 20, 1996). At a status conference on February 28, 1996, plaintiff reasonably complained that he could not be sure that he had received all responsive documents, citing the fact that the response letters from the CIA dated June 21, August 26 and October 7 each represented that the agency's search was complete and that plaintiff should expect no further documents. See Defs.' Status Report (Mar. 20, 1996), Exs. B-H. Defendants' counsel assured the Court that renewed efforts would be made to produce all documents responsive to plaintiff's Privacy Act/FOIA request.
On March 20, 1996, defendants submitted a status report purporting to fully document the CIA's processing of plaintiff's request. Attached to the status report was a three-volume exhibit containing several hundred pages of both newly and previously released documents, some heavily redacted, and a 17-page index identifying 238 documents. Plaintiff moved to amend his complaint on April 12, 1996, and the Court permitted some but not all amendments. See note 1, supra. Numerous motions and other papers were subsequently filed, including defendants' dispositive motion now before the Court. On November 29, 1996, in response to plaintiff's criticisms, defendants provided plaintiff with 250 pages of "reprocessed" records. See Pl.'s Response to and Analysis of Privacy Act Records Re-Processed By the Defendants (Jan. 21, 1997); see also Supplemental Declaration of Lee S. Strickland ("Suppl. Strickland Decl.") PP 15, 16 (Nov. 6, 1996), Defs.' Reply.
Throughout it all, plaintiff has maintained and continues to maintain that his records contain inaccuracies, that documents are missing, that information has been improperly redacted, that information was improperly disseminated, and generally that the CIA has failed to comply with the disclosure provisions and accuracy guarantees of the Privacy Act. As a result, he alleges that he was denied the FBI job and continues to be prejudiced in his ability to obtain employment. He also argues that discovery is necessary in order to determine the full extent of the CIA's noncompliance.
In his most recent filing, plaintiff provides a document-by-document critique of each of the 238 released documents. See Pl.'s Response to and Analysis of Privacy Act Records Re-Processed By the Defendants (Jan. 21, 1997). His objections to these documents fall into five categories: (1) some documents lack classification markings and/or declassification instructions; (2) redaction was improper because the cited exemption does not support it or because underlying information is not classified; (3) improper segregation; (4) the subject of the document did not request confidentiality; and (5) plaintiff is unable to locate the document because he cannot determine whether the Bates number matched the exhibit number.
Defendants, in turn, assert that plaintiff's records are accurate, that he has now received all the documents to which he is entitled, that his initial Privacy Act request has been fully responded to and that any further Privacy Act claims for amendment are barred either by the statute of limitations or by plaintiff's failure to exhaust his administrative remedies. Defendants also assert that plaintiff has failed to state any constitutional claims and that he is not entitled to damages.
II. THE PRIVACY ACT AND THE FOIA
The Privacy Act, 5 U.S.C. § 552a, governs the maintenance and dissemination of official federal government records pertaining to individuals. The Act limits the disclosure of individual information in various ways and requires federal agencies to maintain accurate records. The Act also creates a mechanism by which individuals can access their own records and request amendments to them when the records contain inaccuracies. Finally, the Act provides for actual damages where the agency's failure to maintain record accuracy is found to be "intentional or willful." 5 U.S.C. § 552a(g)(4).
Even where a requester is not entitled to a document under the Privacy Act, he or she may still be entitled to it under the FOIA. See 5 U.S.C. § 552a(t)(2) ("No agency shall rely on any [Privacy Act] exemption to withhold from an individual any record which is otherwise accessible to such individual under the provisions of the [FOIA]."). Document requests therefore must be analyzed under both Acts.
A. Completeness of the CIA's Search
Plaintiff asserted in his early filings, although not in his most recent ones, that he did not receive all the documents to which he is entitled. While plaintiff clearly was not given all responsive documents immediately or even in a timely fashion, the processing of his Privacy Act request now appears to be complete. On February 12, 1996, plaintiff filed a declaration describing 21 categories of materials that he believed had yet to be released to him. See Declaration of Louis J. Blazy (Feb. 12, 1996), Attachment to Pl.'s Motion for Reconsideration and Clarification of the Court's Jan. 31, 1996 Order. Defendants' counsel assured the Court on the record on February 28, 1996, that he would personally review plaintiff's request. As a result, the CIA produced many of the missing documents identified by plaintiff and explained why others were not available. See Declaration of Steven A. Cash ("Cash Decl.") PP 6(a)-(u) (Mar. 20, 1996), Attachment to Defs.' Status Report (Mar. 20, 1996) (describing in detail how the CIA responded to each of plaintiff's criticisms). In addition, Lee Strickland, the Information and Privacy Coordinator for the CIA, explained that all five CIA directorates, encompassing all CIA components, were instructed to search for responsive records and only two, the Director of Central Intelligence and the Directorates of Administration located any responsive records. See Suppl. Strickland Decl. P 11.
In view of these representations and plaintiff's failure to identify any gaps in the adequacy of the search since the March 20 Status Report was filed, the Court finds that the CIA now has conducted an adequate search of its records.
B. August 20, 1990 Cut-Off Date
Plaintiff complains that the government inappropriately used August 20, 1990 as the cut-off date for its search. An agency's use of a cut-off date will be upheld only where it is reasonable. See McGehee v. Central Intelligence Agency, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1102-1104 (D.C. Cir.), vacated in part on other grounds, 229 U.S. App. D.C. 148, 711 F.2d 1076 (D.C. Cir 1983). Plaintiff's Privacy Act request letter is dated August 13, 1990, and the agency's response letter, notifying plaintiff that his request would be undertaken, is dated August 20, 1990. See Suppl. Strickland Decl. P 5. All the information sought by plaintiff pertains to events that pre-date August 20, 1990, namely, the FBI's failure to hire him and the security investigation. Plaintiff argues that he submitted a second Privacy Act request on January 25, 1993 and that that date therefore should constitute the cut-off date for any search. Plaintiff's January 25, 1993 letter, however, does not purport to be a new Privacy Act request but merely inquires about the substantial delay in processing his August 1990 request. Nor does plaintiff's January 25, 1993 letter request any information relating to events after August 20, 1990. See Pl.'s Ex. 11 to Pl.'s Reply and Opp. Accordingly, the agency's use of the August 20, 1990 cut-off date was reasonable under the circumstances.
C. Plaintiff's Amendment Claims
The Privacy Act permits an individual to request the amendment of a record pertaining to him or her and requires the agency either to promptly correct such record or to explain its reasons for refusing to amend. See 5 U.S.C. § 552a(d)(2). If the agency refuses to make the requested amendment, the Act creates a procedure by which a requester may request agency review of that refusal; if the agency maintains its refusal, the requester may file a statement of disagreement that serves as an annotation to all future disclosures. See 5 U.S.C. §§ 552a(d)(3) and (4). Finally, the Act permits an individual to bring a civil action challenging an agency's refusal to amend. 5 U.S.C. § 552a(g)(1)(A).
In this case, plaintiff claims that his personnel records contain inaccuracies that the CIA has failed to amend. Defendants respond that plaintiff only requested amendment of one specific inaccuracy in his record, namely, the allegations of sexual harassment, and that this inaccuracy was amended in 1990. Defendants argue that any claim for failure to amend arising from these allegations therefore is time-barred and that any other claim for amendment pertaining to any other allegedly inaccurate information is barred because plaintiff has failed to exhaust his administrative remedies.
1. Statute of Limitations
The Privacy Act provides:
5 U.S.C. § 552a(g)(5). The D.C. Circuit has interpreted this provision to mean that "in a normal Privacy Act claim, the cause of action does not arise and the statute of limitations does not begin to run until the plaintiff knows or should know of the alleged violation." Tijerina v. Walters, 261 U.S. App. D.C. 301, 821 F.2d 789, 798 (D.C. Cir. 1987). Furthermore, in amendment cases, the two year period is measured from the denial of a request to amend. See Englerius v. Veterans Administration, 837 F.2d 895, 897 (9th Cir. 1988); Bergman v. United States, 751 F.2d 314, 316 (10th Cir. 1984) (relying on Oppenheim v. Campbell, 187 U.S. App. D.C. 226, 571 F.2d 660, 662 (D.C. Cir. 1978) for the proposition that the action "accrues" when the right to resort to court is perfected).
In this case, the statute of limitations has not run with respect to the amendment of the sexual harassment allegations because plaintiff did not and could not have known of the violation, namely, the Agency's failure to amend his records, until July 8, 1992, when he discovered that the FBI never received the corrective letter. See Pl.'s Opp'n at 15. On December 11, 1992, he appealed to the CIA Inspector General to correct his CIA and FBI records and, when no further amendment was forthcoming, filed this suit on November 26, 1993. Accordingly, his action challenging the agency's amendment of his records with respect to the sexual harassment allegations is not time-barred.
Plaintiff's amendment claim with respect to records containing allegations of sexual harassment nevertheless is moot because the CIA has amended plaintiff's CIA file and represents that the letter has now been sent to the FBI. See Supplemental Declaration of Joseph B. Castillo ("Suppl. Castillo Decl.") P 4 (Nov. 6, 1996) ("I will undertake to advise the FBI that Plaintiff's file should be amended."). Since there is no further injunctive relief that could issue with respect to those records, that claim must fail.
2. Exhaustion of Administrative Remedies
An individual seeking amendment of a record must follow the procedures laid out in subsections 552a(d)(2) and (d)(3) of the Privacy Act, namely, request amendment of the record and, if the request is denied, request review of the denial. The Act only authorizes suit after an agency "makes a determination under subsection (d)(3) . . . or fails to make such a review in conformity with that subsection." 5 U.S.C. § 552a(g)(1)(A). In other words, no suit will lie until subsection (d)(3) has been invoked and the explicit steps of the statute followed. See Dickson v. Office of Personnel Management, 264 U.S. App. D.C. 182, 828 F.2d 32, 40 (D.C. Cir. 1987).
This case is complicated by the fact that plaintiff requested amendment of his records but failed to follow the Agency's established procedures for doing so. He made two properly constituted Privacy Act requests by letters dated June 23, 1989 and August 13, 1990, but these letters merely demanded access and made no mention of any request for amendment of records or for review of any denial of such a request. Rather, plaintiff's only express requests for amendment are contained in his complaints to the Inspector General.
In his first such grievance, he complained of "several statements made by a previous supervisor in ORD . . . many of [which] were erroneous and slanderous (e.g., I made unwanted advances to several ORD secretaries; scheduled a TDY with a female CT in ORD for unprofessional purposes; I was unwelcome at several contractor facilities . . . .)." Memorandum from Louis Blazy to Inspector General at 2 (July 28, 1989), Pl.'s Ex. 3 to Pl.'s Reply and Opp. Plaintiff further wrote: "Many statements made by this supervisor are totally and categorically false. I ask that these negative statements be substantiated or removed from my records permanently." Id. On July 16, 1990, plaintiff received a letter from James P. Lynch, Director of Security, stating that the IG inspection "concluded that allegations made to an Office of Security investigator by one of your supervisors that you had made sexual advances to several ORD female employees was [sic] unfounded." Letter from James Lynch to Louis Blazy (July 16, 1990), Pl.'s Ex. 5 to Pl's. Reply and Opp. The letter stated that plaintiff's file would be amended and the FBI would receive a copy of the letter.
Plaintiff did not challenge this response by the agency as insufficient, nor did he treat it as a refusal to amend. Rather, over two years later, on December 11, 1992, he lodged a further complaint with the IG's Office. See Formal Complaint Memorandum from Louis Blazy to IG/Investigations (Dec. 11, 1992), Pl.'s Ex. 10. In this memorandum plaintiff complained that the IG's office was remiss in updating his security records ...