The opinion of the court was delivered by: Robertson, District Judge.
In this case brought under the Privacy Act, 5 U.S.C. § 552a,
plaintiff, a former manager at the Immigration and
Naturalization Service, alleges that the Office of the Inspector
General for the Department of Justice (OIG-DOJ) unlawfully
released on the Internet a report critical of her work. DOJ moves
for summary judgment, on the ground that OIG-DOJ did not
"disclose" the report but posted it on the Internet only after
others fully released it to the media (twice) and discussed its
contents in a public Congressional hearing. Because there is no
genuine issue as to the timing or manner of the reports release,
and because the Privacy Act does not apply to information that
has already been fully disclosed to the public, defendant's
motion will be granted.
On June 10, 1995, members of the Congressional Task Force on
Immigration Reform made a fact-finding visit to the INS' Krome
Detention facility and the Miami International Airport. After
their visit, nearly fifty INS employees submitted a complaint to
Congress alleging that their managers had intentionally misled
the visiting delegation. In July 1995, OIG-DOJ began an
investigation to determine whether INS officials, including
plaintiff Pamela Barry, the Executive Director for the Office of
Congressional Relations, had created a false picture of working
conditions during the delegation's visit.
The Subcommittee on Immigration and Claims of the Judiciary
Committee of the U.S. House of Representatives officially
requested the Report as soon as it was published on June 20,
1996. The OIG delivered the Report to the Subcommittee but asked
the staff not to disclose the Report outside the Subcommittee
because of the privacy interests of persons criticized in the
Report. Nevertheless, on June 28, 1996, the DOJ's Office of
Public Affairs informed OIG-DOJ that a member of the Subcommittee
had disclosed the entire Report to several media organizations.
On June 29, 1996, the Los Angeles Times printed an article
describing the Report and its findings, with a particular
emphasis on the plaintiff. On July 8, 1996, the San Diego
Union-Tribune printed an article which quoted some of the
Report's specific criticisms of the plaintiff. OIG-DOJ continued
over the next two months to provide copies only in response to
official inquiries from members of Congress or other DOJ
divisions, notwithstanding the fact that the Report was by then
very much public. All recipients were informed of the privacy
interests of the people named in the Report and were asked to
limit access and distribution accordingly.
In September 1996, the Subcommittee requested that Inspector
General Michael Bromwich appear and testify about the Report at a
hearing on September 12. In anticipation of the hearing, which
was to be public, Subcommittee Chairman Lamar Smith issued a
press release on September 10 announcing that he had publicly
released the full Report earlier that day. At the public hearing
two days later, plaintiff was singled out for criticism of her
official conduct. OIG-DOJ then officially released the Report to
the public on September 13, 1996. The Report was posted on OIG's
Internet website on May 19, 1997.
Plaintiff filed this action on September 19, 1998. Her claim is
that the OIG-DOJ intentionally and wilfully posted the Report on
the Internet in violation of the Privacy Act, 5 U.S.C. § 552a,
and she demands one million dollars in damages.
A person seeking damages under the Privacy Act for an alleged
improper disclosure must prove that: (1) the agency "disclosed"
information; (2) the information "disclosed" is a "record"
contained within a "system of records"; (3) an adverse impact
resulted from the disclosure; and (4) the agency's disclosure was
willful or intentional. Fisher v. National Institutes of Health,
934 F. Supp. 464, 468 (D.D.C. 1996), aff'd 107 F.3d 922 (D.C.Cir.
1996); see 5 U.S.C. § 552a(g)(4). The defense motion submits
that plaintiff's case falters at the first element, because
OIG-DOJ did not "disclose" information.
The obvious question raised by this motion is whether an agency
"discloses" information by posting it on the Internet when it is
already public. Plaintiff, insists, however that the answer to
the question is not so obvious. Not, that is, if the information
is "disclosed" on the Internet to a person or persons who
encounters it there for the first time.
Plaintiff's argument is that "a prior release is only effective
as to a recipient who has previously been provided the
information" (Pl.Opp. at 13). The argument depends on, and
proceeds from, Pilon v. Department of Justice, 73 F.3d 1111
(D.C.Cir. 1996), even though Pilon disclaimed application of its
rule to facts like those in this case, see 73 F.3d at 1123 n. 10
("[t]his case does not present the question
of whether an agency may, consistent with the Privacy Act's
disclosure provisions, release a document that has already been
fully aired in the public domain through the press or some other
means").*fn2 And, indeed, this case is nothing like Pilon. In
Pilon, an agency employee faxed a confidential memorandum to a
former agency employee, who was already familiar with the document
from his time at the agency, and the former agency employee passed
on the memorandum to a reporter. The handoff to the former agency
employee was held to be a "disclosure" prohibited by the Privacy
Act, even though the former employee already knew the facts. But
the fact that a former employee knew the facts did not make the
facts public. The memorandum in Pilon had not been released to
the media by Congress. It had not been the subject of public
Congressional hearings. The Pilon decision, even if it were
applicable to this case, is easily distinguished from this one.
Also distinguishable are decisions involving information that
may have been "public," but that could be found only in isolated
public records. Cf. United States Department of Defense v.
Federal Labor Relations Authority, 510 U.S. 487, 500, 114 S.Ct.
1006, 127 L.Ed.2d 325 (1994) (agency cannot release home
addresses of non-union members to union); Quinn v. Stone,
978 F.2d 126, 133-34 (3d Cir. 1992) (agency cannot release
out-of-date phone number and address listed on hunting roster to
hunting security officers). There was nothing isolated or obscure
about the OIG Report in this case.
There was no "disclosure" here because plaintiff had no
protectable privacy interest in the Report at the time of its
posting on the Internet. In the absence of a "disclosure,"
plaintiff has no claim under the Privacy Act. ...