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FLOWERS v. THE EXECUTIVE OFFICE OF THE PRESIDENT

March 16, 2001

GENNIFER FLOWERS, PLAINTIFF,
V.
THE EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kennedy, District Judge.

MEMORANDUM OPINION

Gennifer Flowers ("Flowers") filed this suit against defendants The Executive Office of the President ("EOP") and the Department of Justice ("DOJ"), alleging that the EOP and DOJ violated the Privacy Act, 5 U.S.C. § 552a et seq. Before the court are the EOP's motion to dismiss, Flowers' cross motion for partial summary judgment, DOJ's motion to dismiss, and DOJ's motion for judgment on the pleadings or, in the alternative, for summary judgment. Upon consideration of the motions, the opposition thereto, and the record of the case, the court grants the EOP's motion to dismiss, denies Flowers' cross-motion for summary judgment, grants DOJ's motion to dismiss the denial of access claim, and grants DOJ's motion for judgment on the pleadings or, in the alternative, for summary judgment.

I. BACKGROUND

On September 27, 1999, Flowers submitted a written request to the EOP pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, for any documents that refer or relate to Gennifer Flowers. The White House Office, of which the Office of Counsel to the President is a part,*fn1 responded on October 12, 1999, denying Flowers' request on the grounds that the "President's immediate personal staff and units in the Executive Office of the President whose sole function is to advise and assist the President are not included within the term `agency' under the FOIA and the Privacy Act." Compl. at Ex. 2. The White House Office also noted that the FOIA and the Privacy Act do not establish a statutory right to records Flowers seeks from the EOP, if such records exist. This suit followed.

In Count I of her Complaint, Flowers alleges that the EOP and DOJ violated the Privacy Act by maintaining records on Flowers as "part of a pattern of willful and intentional misconduct undertaken for purposes of attacking or threatening attacks on Plaintiff, and others similarly situated." Compl. ¶ 23. Flowers contends that this maintenance of records is in violation of 5 U.S.C. § 552a(e)(1) and (g)(1)(D). Flowers also alleges that the EOP and DOJ disseminated information from her records in violation of 5 U.S.C. § 552a(e)(1) and (g)(1)(D). Finally, Flowers claims that the EOP and DOJ refused her request for access to records in violation of 5 U.S.C. § 552a(d)(1) and (g)(1)(B).

On March 27, 2000, the EOP and DOJ filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The EOP argues that the case against it should be dismissed because the EOP's White House Office, is not an "agency" subject to the Privacy Act. DOJ argues that the claims against the FBI, a part of DOJ, should be dismissed because Flowers does not allege that she submitted a Privacy Act request to the FBI. On April 17, 2000, Flowers filed a cross motion for partial summary judgment on these same issues. Finally, on June 9, 2000, DOJ filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. In that motion, DOJ contends, inter alia, that Flowers has failed to allege facts to support her belief that the DOJ violated the Privacy Act and has failed to provide DOJ with adequate notice of her claims. In its alternative motion for summary judgment, DOJ argues that Flowers' allegations against DOJ are unfounded in fact and in law.*fn2

II. ANALYSIS

Before addressing the parties' arguments, it is important to note that the Privacy Act applies only to an "agency" as defined by the FOIA. See 5 U.S.C. § 552a(a)(1) (expressly incorporating the FOIA's definition of "agency").*fn3 Under the FOIA, "agency" includes "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f). Though the Executive Office of the President is expressly mentioned in the FOIA definition of "agency," the Supreme Court has held that the FOIA's reference to "the `Executive Office' does not include the Office of the President." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980).*fn4 The Kissinger Court also stated that "`the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President' are not included within the term `agency' under the FOIA." Id. (citing H.R. Conf. Rep. No. 93-1380, p. 15 (1974)).

A. The EOP's Motion to Dismiss

The EOP argues that the White House Office should not be considered an "agency" subject to the Privacy Act because it is not an agency subject to the FOIA. Flowers disagrees, suggesting that the statutory definition of the term "agency" and the Privacy Act's legislative history require that the Privacy Act be applied to the EOP without exception. In support of their positions, both Flowers and the EOP cite recent district court opinions from this court, which decided whether the EOP was subject to the Privacy Act. Compare Alexander v. F.B.I., 971 F. Supp. 603, 607 (D.C. 1997) (Lamberth, J.) (holding that the EOP was an "agency" subject to the Privacy Act), with Barr v. Executive Office of the President, No. 99-1695, slip. op. at 6 (D.C. Aug. 9, 2000) (Green, J.L., J.) (holding that the EOP was not an "agency" subject to the Privacy Act). See also Falwell v. Executive Office of the President, 113 F. Supp.2d 967, 970 (W.D.Va. 2000) (holding that the Office of the President is not subject to the Privacy Act). Despite suggestions to the contrary,*fn5 the Alexander and Barr opinions are not binding upon this court and do not establish the "the law of the district." In re: Executive Office of President, 215 F.3d 20, 24 (D.C.Cir. 2000). The Alexander and Barr decisions do have persuasive value, however; and this court will evaluate Judge Lamberth's and Judge Green's analysis in making its own independent assessment of the law as it is applied to this case.

In Alexander, Judge Lamberth held that the Privacy Act's definition of "agency" includes the Executive Office of the President. Judge Lamberth reasoned that the purposes of the Privacy Act and the FOIA are quite different: the FOIA was enacted to provide citizens with better access to government records, while the Privacy Act was adopted to safeguard individuals against invasions of their privacy. Alexander, 971 F. Supp. at 606. Because of these different purposes, Judge Lamberth found that "there is no need to ignore the plain language of the [Privacy Act] statute and limit the word `agency' as has been done under FOIA." Id. at 606-07. Judge Lamberth also reasoned that by providing exceptions to the FOIA disclosure requirements, Congress and the courts recognized that FOIA access must be limited given the intricate balance between the public interest in information and "countervailing public and private interests in secrecy." Id. at 606. However, Judge Lamberth noted that "there is no evidence that the privacy protections provided by Congress in the Privacy Act must also be necessarily limited." Id.

In Barr, Judge June L. Green addressed the same issue, but concluded that the EOP was not an "agency" subject to the Privacy Act. Judge Green stated that "[i]t is a fair construction of the Privacy Act to exclude the President's immediate personal staff from the definition of `agency.'" Barr v. Executive Office of the President, No. 99-1695(JLG), slip op. at 6 (D.C. Aug. 9, 2000). Because the Privacy Act borrows the FOIA definition of "agency," Judge Green reasoned that the Privacy Act should also borrow the FOIA's exceptions as provided in the legislative history and by judicial interpretation. See id. Judge Green also found merit in the EOP's argument that the term "agency" should be read to avoid constitutional questions, for reading "agency" to include the EOP might raise constitutional concerns about the President's ability to obtain information and maintain Article II confidentiality. See id. at 5-6.

The Court of Appeals for the District of Columbia Circuit has not decided whether the EOP is an "agency" subject to the Privacy Act, but this Circuit's reasoning in other cases suggests that it is not. For example, in Dong v. Smithsonian Institution, 125 F.3d 877, 878-80 (D.C.Cir. 1997), cert. denied, 524 U.S. 922, 118 S.Ct. 2311, 141 L.Ed.2d 169 (1998), the Court of Appeals addressed whether the Smithsonian Institution ("Smithsonian") was an "agency" subject to the Privacy Act. The Dong court first recognized that the Privacy Act expressly "borrows the definition of `agency' found in FOIA." Id. at 878. "Hence, to be an agency under the Privacy Act, an entity must fit into one of the categories set forth either in [FOIA] § 552(f) or § 551(1)."*fn6 Id. at ...


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