information about an individual as is relevant and necessary to
accomplish a purpose of the agency required to be accomplished
by statute or by executive order of the President." Id. §
552a(e)(1). The Privacy Act also states that "upon request by
any individual to gain access to his record or to any
information pertaining to him which is contained in the system,"
the agency shall provide the individual with access to review
such records. Id. § 552a(d)(1). Finally, subject to certain
exceptions, the Privacy Act requires that "[n]o agency shall
disclose any record which is contained in a system of records by
any means of communication to any person, or to another agency,
except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains."
Id. § 552a(b).
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. Broaddrick 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 Broaddrick 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 Memorandum, Barr v. Executive Office of the
President, No. 99-1695, (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 con
trary,*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 Greene 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.
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 879
Finding that the Smithsonian did not fit within the FOIA's
definition of "agency,"*fn7 the court held that the
Smithsonian was not an "agency" under the Privacy Act. See id.
Similarly, in Rushforth v. Council of Economic Advisers,
762 F.2d 1038, 1040 (D.C.Cir. 1985), this Circuit addressed whether
the Council of Economic Advisers was an "agency" subject to the
disclosure requirements of the Sunshine Act, 5 U.S.C. § 552b.
Like the Privacy Act, the Sunshine Act expressly incorporates
the FOIA definition of "agency." See Sunshine Act,
5 U.S.C. § 552b(a)(1) ("[T]he term `agency' means any agency as defined in
[FOIA] section 552(e). . . ."). Using the same rationale as
followed in Dong, the Rushforth court held that "[i]nasmuch
as the Council of Economic Advisers is not an agency for FOIA
purposes, it follows of necessity that the CEA is, under the
terms of the Sunshine Act, not subject to that statute either."
Rushforth, 762 F.2d at 1043 (emphasis added).
Applying this same reasoning and analysis, this court holds
that inasmuch as the EOP is not an "agency" subject to the FOIA,
the EOP is not an "agency" subject to the Privacy Act. The
Privacy Act expressly incorporates the FOIA's definition of
"agency," see 5 U.S.C. § 552a(a)(1), and both the Supreme
Court and this Circuit have held that the EOP's White House
Office is not an "agency" under the FOIA. See Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156,
100 S.Ct. 960, 63 L.Ed.2d 267 (1980); National Sec. Archive v.
Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.
1990). The court sees no reason to reject this logic,
particularly given that the Court of Appeals employed this same
reasoning in Rushforth and Dong.*fn8 The court,
therefore, grants the EOP's motion to dismiss, and denies
Broaddrick's cross motion for partial summary judgment.*fn9
B. DOJ's Motion to Dismiss
In its motion to dismiss, DOJ argues that Broaddrick's claim
that DOJ denied her access to records should be dismissed
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) because
Broaddrick does not allege that she submitted a Privacy Act
request to DOJ. DOJ contends that the Privacy Act requires
federal agencies to provide access to records only "upon request
by any individual." 5 U.S.C. § 552a(d)(1); see also
5 U.S.C. § 552a(g)(1)(B) (noting that civil remedies are available when an
agency refuses to
comply with "an individual request"). Because Broaddrick made no
request to DOJ, there could be no refusal to comply with "an
individual request," DOJ maintains. Broaddrick responds that she
properly pled a claim for damages for the maintenance and
dissemination of records under 5 U.S.C. § 552a(b), e(1), and
g(1)(D). Broaddrick argues that there is no requirement that a
plaintiff submit a Privacy Act request to an agency before
filing a claim for damages under these subsections.
Both parties offer accurate statements of law. Broaddrick is
correct that under the Privacy Act an individual need not
request records from an agency as a prerequisite to filing a
damages suit against that agency for the unlawful maintenance
and dissemination of records. See, e.g.,
5 U.S.C. § 552a(e)(1) and (g)(1)(D); see also Haase v. Sessions,
893 F.2d 370, 374-75 (D.C.Cir. 1990) (citing Nagel v. United States
Dep't of Health Educ. & Welfare, 725 F.2d 1438, 1441 (D.C.Cir.
1984)). However, this response does not address DOJ's
equally-correct assertion that Broaddrick may not claim that DOJ
unlawfully "refus[ed] to allow Plaintiff access to records"
when Broaddrick did not even ask DOJ for access to records.
Compl. ¶ 23. Indeed, there can be no denial of access, when a
request for such access was not made. Nowhere in Broaddrick's
Complaint (or in her pleadings) does she allege that she
submitted a Privacy Act request to DOJ. By not requesting such
records, Broaddrick has failed to exhaust her administrative
remedies with respect to the denial of access claim, and the
court lacks subject matter jurisdiction to hear that issue. See
Muhammad v. United States Bureau of Prisons, 789 F. Supp. 449,
450 (D.C. 1992) (dismissing Privacy Act claim because
"[p]laintiff's failure to request the documents directly from
the agencies constitutes a failure to exhaust administrative
remedies."). Accordingly, DOJ's motion to dismiss the denial of
access claim is granted.
C. DOJ's Amended Motion for Summary Judgment
Next, DOJ argues that it is entitled to summary judgment on
Broaddrick's remaining claims for the unlawful maintenance and
dissemination of files. Summary judgment should not be granted
unless there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving
party bears the initial burden of identifying those portions of
the record that demonstrate the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving
party's motion for summary judgment is properly supported, the
burden then shifts to the non-movant to "set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 248, 106 S.Ct.
2505. Pursuant to LCvR 7.1(h), each summary judgment motion and
opposition must be accompanied by a statement of material facts
as to which the party contends there is or is not a genuine
issue. The statements must also include "references to the parts
of the record relied on to support the statement(s)." LCvR
Here DOJ has met its initial burden of production by providing
a statement of undisputed material facts, which is supported by
references to the record. See Def.'s Statement of Material
Facts as to which There is No Genuine Issue ("Def.'s
Statement"). In that statement, DOJ cites the sworn affidavits
of Debra Anne O'Clair, Unit Chief of the FBI's
Investigative Information Processing Unit, who states that she
searched the FBI's Central Records System General Index and
found "no references identifiable to the name `Juanita
Broaddrick' within the subject or the reference indices." Decl.
of Debra O'Clair ¶ 10 ("O'Clair Decl."). O'Clair explains that
the fact that Broaddrick is not recorded within the "subject"
index indicates that Broaddrick was not the subject of an FBI
investigation and that there are no FBI "subject" files on her.
See id ¶ 7; Def.'s Statement ¶ 4. DOJ also cites the
supplemental declaration of O'Clair, in which O'Clair states
that she conducted a full text search of the FBI Electronic Case
File ("ECF") system and found two documents that contain the
name "Juanita Broaddrick." Suppl. Decl. of Debra O'Clair at ¶ 8
("O'Clair Suppl. Decl.").*fn10 Those two documents were
located in Los Angeles, California, and Washington, D.C. With
respect to these documents, DOJ presents sworn declarations from
Luis G. Flores, FBI Chief Division Counsel, Los Angeles
Division, and Edward L. Williams, Jr., FBI Chief Division
Counsel, Washington, D.C. Field Office, who each stated that:
Based upon [the] manual search and my review of the
physical files as well as the documents themselves, I
have determined that neither the serial document, nor
the file in which it is contained, have any indicia
of dissemination outside the FBI as FBI policy would
require had dissemination occurred.
Decl. of Luis G. Flores ¶ 6; Decl. of Edward L.
Williams, Jr. ¶ 6.
These sworn affidavits demonstrate that there is no genuine
issue as to whether DOJ unlawfully maintained and disseminated
files on Broaddrick.*fn11 The burden now shifts to Broaddrick
to "set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). In meeting this burden,
Broaddrick must present "affirmative evidence" and may not "rest
upon mere allegation or denials of [her] pleadings" Laningham
v. United States Navy, 813 F.2d 1236, 1241 (D.C.Cir. 1987)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Fed.R.Civ.P.
56(e). But Broaddrick seems to do just that — relying
exclusively on allegations of her pleadings — when she responds
that DOJ is not entitled to summary judgment because the
"repeated flip-flopping by the Clinton Gore DOJ demonstrates
that its factual allegations regarding the documents it
maintains on Plaintiff are unreliable." Pl.'s Opp'n to DOJ's
Amended Mot. for Summ. J. at 12 ("Pl.'s Opp'n"). Broaddrick
surmises that because O'Clair submitted a supplemental
declaration, her sworn testimony must be unreliable: "Plaintiff
naturally is, and the Court should be, skeptical of the FBI's
claims in this regard." Pl.'s Opp'n at 12. However, an agency's
efforts to correct or update the record should not be viewed as
an indication of unreliability. See Military
Audit Project v. Casey, 656 F.2d 724, 754 (D.C.Cir. 1981).
Agency affidavits are accorded "a presumption of good faith" and
cannot be rebutted by "purely speculative claims about the
existence and discoverability of other documents." SafeCard
Services, Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir. 1991)
citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C.Cir. 1981). Here Broaddrick has presented no evidence to
rebut the presumption that DOJ's declarations were submitted in
good faith. Neither has Broaddrick presented countervailing
evidence suggesting that DOJ maintained and disseminated files
Broaddrick also argues that DOJ is not entitled to summary
judgement because "discovery has yet to commence." Pl.'s
Response to Def.'s Statement of Material Facts Not in Dispute
("Pl.'s Response") ¶¶ 1-6. The court notes that discovery is not
typically a part of FOIA and Privacy Act cases, see Goland v.
CIA, 607 F.2d 339, 352-55 (D.C.Cir. 1978), cert. denied,
445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), and whether to
permit discovery is within the sound discretion of the district
court judge. See SafeCard Services, Inc. v. S.E.C.,
926 F.2d 1197, 1200-01 (D.C.Cir. 1991). Moreover, merely stating that
"discovery has yet to commence" is insufficient to respond to a
properly-supported motion for summary judgement. Pl.'s Response
¶¶ 1-6. The party opposing summary judgment must indicate "what
facts she intended to discover that would create a triable
issue." Carpenter v. Federal Nat'l Mortg. Ass'n, 174 F.3d 231,
237 (D.C.Cir. 1999). In addition, the party opposing summary
judgment must "state concretely why she could not, absent
discovery, present by affidavit facts essential to justify her
opposition to [the agency's] summary judgment motion." Strang
v. United States Arms Control and Disarmament Agency,
864 F.2d 859, 861 (D.C.Cir. 1989).
In her pleadings, Broaddrick suggests that she needs discovery
in order to "cross-examine witnesses, such as Ms. O'Claire."
Pl.'s Opp'n at 12. This response is inadequate. The Court of
Appeals in Strang specifically rejected the plaintiffs
argument that she needed discovery in a Privacy Act case in
order to "test and elaborate" the affidavit testimony. Strang,
864 F.2d at 861. The court held that this justification was
insufficient to require the district court to deny a summary
judgment motion and grant discovery. See id. For the same
reasons, Broaddrick's claim that she needs discovery to
cross-examine DOJ's other affiants must also fail. See, e.g.,
Founding Church of Scientology v. NSA, 610 F.2d 824, 836-37 n.
101 (D.C.Cir. 1979) (noting that discovery should be denied if
the plaintiff merely desires to find something that might cast
doubt on the agency's affidavits).
Next, in a declaration from her attorney, Broaddrick claims
that she is "unable to present affidavits concerning the FBI's
search for records pursuant to Plaintiffs Privacy Act request,
because facts concerning any such search remain solely within
the purview of Defendants and third parties such as Lanny J.
Davis, and Plaintiff has not has the opportunity to conduct
discovery into any such search." Rule 56(f) Decl. of Paul J.
Orfanedes, Esq. ¶ 4. ("Orfanedes Decl.").*fn12 The problem
with Broaddrick's statement, however, is that FOIA and Privacy
Act plaintiffs are generally not entitled to conduct discovery
into the adequacy of an agency's search when, as is here, the
court is satisfied that the agency's affidavits are sufficient.
The court may accept agency's affidavits, without pre-summary
judgment discovery, if the affidavits are made in good faith and
provide reasonably specific detail concerning the methods used
to produce the information sought. See SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200-02 (D.C.Cir. 1991). The court may also
deny discovery requests when the plaintiffs efforts represent no
more than "bare hope of falling upon something that might impugn
the affidavits." Founding Church of Scientology v. NSA,
610 F.2d 824, 836-37 n. 101 (D.C.Cir. 1979). This appears to be the
The court finds that DOJ's affidavits are sufficiently
detailed in setting forth the manner and terms the FBI used to
search for files on Broaddrick. See. O'Clair Decl. §§ 3-9;
O'Clair Suppl. Decl. §§ 7-8. The affidavits also indicate in
sufficient detail the manner in which FBI files are kept and the
procedures used for their disclosure. Decl. of Luis G. Flores §§
3-6; Decl. of Edward L. Williams, Jr. §§ 3-6. Given the adequacy
of these affidavits and the fact that Broaddrick has produced no
countervailing evidence to cast doubt on them, the court holds
that Broaddrick is not entitled to discovery on this issue. See
Goland v. CIA, 607 F.2d 339, 352-56 (D.C.Cir. 1978) (affirming
district court's grant of summary judgment without discovery
where agency affidavits were sufficient), cert. denied,
445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); Master v.
F.B.I., 926 F. Supp. 193, 195-97 (D.C. 1996) (denying discovery
on search issue where court determined agency's search for
documents was adequate), aff'd mem., 124 F.3d 1309, 1997 WL
369460 (D.C.Cir. 1997).
Furthermore, in response to DOJ's statement of undisputed
material facts, Broaddrick admits that the two FBI documents
that contain Broaddrick's name "do not bear any indicia of
dissemination" and, in fact, "were not disseminated outside the
FBI because FBI policy requires the entry of such indicia if a
document is disseminated." Def.'s Statement ¶ 5, ¶ 6; Pl.'s
Response ¶ 5 ("[n]ot disputed"), ¶ 6 ("[n]ot disputed"). Because
these facts are "not disputed," the court accepts them as true
for purposes of this motion. The fact that Broaddrick concedes
that the two documents containing her name were not disseminated
further supports DOJ's claim that it is entitled to summary
Still, Broaddrick argues — in her pleadings — that summary
judgment should not be granted because there is a question of
material fact as to "what documents [Lanny] Davis was referring
to when he stated on `Hannity & Colmes' that Plaintiff had
denied to the FBI that the President made `unwanted sexual
advances' towards her." Pl.'s Opp'n at 3-4. First, as the court
indicated above, a party opposing summary judgment may not "rest
upon mere allegation or denials of [her] pleadings." Laningham
v. United States Navy, 813 F.2d 1236, 1241 (D.C.Cir. 1987).
Broaddrick seeks to do just that with this argument. Second,
even if this court were inclined to entertain this argument, the
court notes that Broaddrick's own transcript from the "Hannity &
Colmes" television show, submitted as Exhibit 2 to her
opposition motion, indicates that Davis says he was referring to
information "in the Starr Report." Pl.'s Opp'n Mot. at Ex. 2, p.
7. Broaddrick's conjecture that Davis might have been
referring instead to DOJ's "secret files" on Broaddrick is too
speculative to warrant discovery, especially given that DOJ's
affidavits indicate that no such files exist.*fn13 More
importantly, Broaddrick's conclusory assertions-offered without
any factual basis for support — do not satisfy her burden to set
forth "affirmative evidence" showing a genuine issue for trial.
Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C.Cir.
1987). For it is "well settled that conclusory allegations
unsupported by factual data will not create a triable issue of
fact." Exxon Corp. v. F.T.C., 663 F.2d 120, 126-27 (D.C.Cir.
1980) (citation omitted).
The United States Court of Appeals for the Fifth Circuit may
have stated it best:
Where a plaintiff fails to produce any specific facts
whatsoever to support a conspiracy allegation, a
district court may, in its discretion, refuse to
permit discovery and grant summary judgment.
Something more than a fanciful allegation is required
to justify denying a motion for summary judgment when
the moving party has met its burden of demonstrating
the absence of any genuine issue of material fact. A
"bare assertion" that the evidence supporting a
plaintiffs allegation is in the hands of the
defendant is insufficient to justify a denial of a
motion for summary judgment under Rule 56(f). . . .
Rule 56(f) cannot be relied upon to defeat a summary
judgment motion "where the result of a continuance to
obtain further information would be wholly
Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017,
1030 (5th Cir. 1983) (internal quotations omitted).
In sum, Broaddrick has presented no factual support for her
conspiracy allegations that the "Clinton Gore DOJ" maintained
and disseminated confidential files on her in order "to smear
and destroy her reputation." Pl.'s Opp'n at 3; Compl. ¶ 15.
Broaddrick has also failed to fulfill her summary judgment
burden to rebut DOJ's properly-supported evidence that the FBI
did not maintain any subject files on Broaddrick and did not
disseminate any documents that contain Broaddrick's name. See
Def.'s Statement ¶¶ 3-6. Given the wholly speculative nature of
Broaddrick's allegations, as compared to DOJ's
properly-supported evidence, the court holds that DOJ is
entitled to judgment as a matter of law.
For the foregoing reasons, the court grants the EOP's motion
to dismiss, denies Broaddrick's cross motion for partial summary
judgment, grants DOJ's motion to dismiss the denial of access
claim, and grants DOJ's amended motion for summary judgment on
all remaining claims. An appropriate order accompanies this