United States District Court for the District of Columbia
April 22, 2004.
COMMANDER DANIEL W. CHANG, UNITED STATES NAVY, Plaintiff,
DEPARTMENT OF THE NAVY, et al., Defendants
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court on defendant's motion for summary
judgment and plaintiff's motion for leave to conduct discovery. In this
action, plaintiff claims that defendant, the Department of the Navy,
violated the Privacy Act, 5 U.S.C. § 552a, when the Navy released
information about plaintiff, Commander Daniel W. Chang, to the media and
to individual members of Congress. Upon consideration of the parties'
arguments and the entire record, the Court grants defendant's motion for
summary judgment and denies plaintiff's motion for leave to conduct
On October 22, 1998, Commander Daniel W. Chang assumed command of the
USS Arthur W. Radford. See Compl. ¶ 9; Defendant Dept. of Navy's
Statement of Material Facts Not in Dispute ("Def.'s SMF") ¶ 2. On
February 4, 1999, plaintiff's vessel was involved in a maritime collision
with the M/V Saudi Riyadh. See Compl. ¶ 18; Def.'s SMF ¶ 3. Although remaining on active duty, Commander Chang was relieved of his command of
the Radford and was charged with negligent dereliction of duty under
Article 92 of the Uniform Code of Military Justice ("UCMJ"). See Compl.
¶¶ 20-23; Def.'s SMF ¶¶ 7-8. The Commander, Naval Surface Forces, U.S.
Atlantic Fleet offered plaintiff the opportunity either to have the
charges adjudicated administratively by way of a non-judicial punishment
("NJP") hearing or to proceed by court-martial. See Compl. ¶ 22.
Plaintiff opted for a NJP hearing, after which plaintiff received a
punitive letter of reprimand. See Compl. ¶¶ 22-25; Def.'s SMF ¶¶ 8-9.
Commander Chang contends that the Navy subsequently violated his rights
under the Privacy Act, 5 U.S.C. § 552a, by disclosing details of the NJP
hearing and the punitive letter of reprimand (1) to the media in the form
of a press release ("Press Release") and query responses ("Query
Responses") prepared to answer press inquiries, and (2) to members of
Congress in the form of an information paper ("Information Paper"). See
Compl. ¶¶ 38-50.*fn1 Specifically, plaintiff alleges that officers in the
Department of the Navy willfully and intentionally improperly released
the results of his NJP hearing to the press through press releases and
telephone briefings, and that he did not consent to this release of
information. See id. ¶¶ 26-27. Plaintiff further alleges that the
Department of the Navy willfully, intentionally and improperly disclosed
information regarding the NJP hearing in the Information Paper, which was
released to members of Congress acting in their individual capacities
rather than in their official capacities as committee members. See id. ¶¶
29-31. Plaintiff seeks an award of damages in excess of $2,350,000 for actual damages (loss of income and attorneys'
fees to develop a media plan) and non-pecuniary injury and damages
(damage to reputation, mental distress, loss of employment opportunities
outside the Navy, embarrassment and severe emotional trauma). See id. at
On July 28, 2000, the Department of the Navy filed a Rule 12(b)(6)
motion to dismiss for failure to state a claim or, in the alternative, a
motion for summary judgment. Defendant argued that plaintiff has not
asserted a cognizable claim under the Privacy Act because the documents
objected to the Press Release, the Query Responses and the Information
are not maintained in a "system of records" as required by the
Privacy Act. See Defendant Department of the Navy's Motion to Dismiss
or, In the Alternative, Motion for Summary Judgment at 10. Defendant
further argued that plaintiff seeks damages that are not compensable
under the Act. See id. at 12. Finally, defendant argued that even if the
information disclosed was protected by the Privacy Act, the disclosure
was permissible under the Act and the implementing agency regulations.
See id. at 14.
Plaintiff filed an opposition to defendant's motion. On that same day,
plaintiff also filed a Rule 56(f) motion for leave to conduct discovery,
alleging that factually inaccurate and/or misleading statements were
propounded by defendant's employees in declarations and that discovery was
necessary to obtain information known only to the defendant or third
parties. See Memorandum in Support of Plaintiff's Motion for Leave to
Conduct Discovery at 1.
On December 29, 2000, the Court denied plaintiffs motion for leave to
conduct discovery. See Chang v. Dep't of the Navy, Civil Action No.
00-0783, Order (D.D.C. Dec. 29, 2000). On May 17, 2001, the Court granted
defendant's motion to dismiss for the reasons articulated by Judge Joyce Hens Green in an analogous case. See Chang v.
Dep't of the Navy, Civil Action No. 00-0783, Memorandum Opinion at 3
(D.D.C. May 17, 2001) (citing Cummings v. Dep't of the Navy,
116 F. Supp.2d 76, 82 (D.D.C. 2000) (holding that active duty military
members are barred by Feres v. United States, 340 U.S. 135 (1950), from
filing actions against the government for Privacy Act violations that are
"incident to service")). Plaintiff appealed this Court's decision. On
July 8, 2002, the court of appeals remanded the case to this Court after
reversing Judge Green's decision in Cummings. See Chang v. Dep't of the
Navy, No. 01-5240, Order (D.C. Cir. Jul. 8, 2002) (citing Cummings v.
Dep't of the Navy, 279 F.3d 1051 (D.C. Cir. 2002)).
Defendant filed a renewed motion for summary judgment on November 22,
2002, again arguing that plaintiff cannot make out a prima facie case
under the Privacy Act and cannot demonstrate any actual damages as a
result of the offending disclosures. See Memorandum in Support of
Defendant's Renewed Motion for Summary Judgment ("Def.'s Mem."). On
January 3, 2003, plaintiff filed an opposition to defendant's motion,
asserting that portions of his Official Military Personnel File were
intentionally and willfully released without his consent and that he has
suffered compensable damages. See Plaintiff's Opposition to Defendant,
The Department of the Navy's Renewed Motion for Summary Judgment ("Pl.'s
Opp.") at 1. Plaintiff also filed a second Rule 56(f) motion for leave to
conduct discovery. The Court denied that motion by Order of September
30, 2003. II. DISCUSSION
A. Standard of Review for Summary Judgment
Summary judgment shall be granted if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the
affidavits or declarations, if any, demonstrate that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See FED. R. Civ. P. 56(c). Material facts
are those that "might affect the outcome of the suit under the governing
law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a summary judgment motion, "the evidence of the
non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255; see also Washington Post Co. v. United
States Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir.
The non-moving party's opposition, however, must consist of more than
mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See FED. R. Civ. P.
56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving
party is "required to provide evidence that would permit a reasonable jury
to find" in her favor. Laningham v. United States Navy, 813 F.2d 1236,
1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable"
or "not significantly probative," summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat summary
judgment, a plaintiff must have more than "a scintilla of evidence to
support his claims." Freedman v. MCI Telecommunications Corp.,
255 F.3d 840, 845 (D.C. Cir. 2001); see also Ben-Kotel v. Howard
University, 319 F.3d 532, 536 (D.C. Cir. 2003). B. Privacy Act Overview
The Privacy Act "safeguards the public from unwarranted collection,
maintenance, use and dissemination of personal information contained in
agency records . . . by allowing an individual to participate in ensuring
that his records are accurate and properly used." Bartel v. Federal
Aviation Administration, 725 F.2d 1403, 1407 (D.C. Cir. 1984). To
that end, the Privacy Act prohibits disclosure of any individual's
"record" that is contained in a "system of records" to another person
without the individual's consent, subject to certain exceptions.
See 5 U.S.C.
§ 552a(b). Section 552a(b) of the Privacy Act delineates permissible
nonconsensual disclosures, which include disclosures required under the
Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, and disclosures made to either house of Congress, or its
committees or subcommittees, for matters within those committees'
jurisdiction. See 5 U.S.C. § 552a(b)(2), (b)(9). If an agency improperly
discloses Privacy Act protected information in such a way as to have an
"adverse effect" on an individual, that individual may bring a civil
action against the agency. 5 U.S.C.
§ 552a(g)(1)(D). If the Court determines that the agency acted in
an "intentional and willful" manner, a plaintiff is entitled to recover
"actual damages." 5 U.S.C. § 552a(g)(4).
C. Privacy Act System of Records
Under the Privacy Act, a "record" is information "about an individual"
that is maintained by an agency and contains a person's name or other
personal identifier. 5 U.S.C.
§ 552a(a)(4). A system of records is a group of records "under the
control of an agency" from which information "is retrieved" by the name
of the person or some other personal identifier. 5 U.S.C. § 552a(a)(5).
Determining that a system of records exists from which the document at
issue was retrieved is a prerequisite to a substantive Privacy Act
claim. See Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1459 (D.C. Cir. 1996) ("the
determination that a system of records exists triggers virtually all of
the other substantive provisions of the Privacy Act"); see also Beaulieu
v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989) (finding that an "all-out,
basic requirement of the [Privacy] Act" and the "whole substance of the
statute" is that information disclosed must come from a system of
According to the Office of Management and Budget ("OMB") guidelines, a
system of records exists if: (1) there is an "indexing or retrieval
capability using identifying particulars
. . . built into the system"; and (2) the agency "does, in fact,
retrieve records about individuals by some personal identifier." OMB
Privacy Act Implementation Guidelines and Responsibilities ("OMB
Guidelines"), 40 Fed. Reg. 28,948, 28,952 (July 9, 1975) (emphasis
added). Department of the Navy Privacy Act regulations mirror those
promulgated by the OMB. See 32 C.F.R.
§ 701.105(a)(1) ("[R]ecords must be retrieved by personal identifiers
to become a system of records."). See also Henke v. United States Dep't
of Commerce, 83 F.3d at 1460 ("[A] group of records should generally not
be considered a system of records unless there is actual retrieval of
records keyed to individuals."); Bartel v. Federal Aviation
Administration, 725 F.2d at 1408 n. 10 ("To be in a system of records, a
record must . . . in practice [be] retrieved by an individual's name or
other personal identifier.") (emphasis added). The mere capacity to
retrieve records by the name of an individual is not sufficient to create
a system of records. See Henke v. United States Dep't of Commerce, 83
F.3d at 1460.
Defendant here asserts that the documents at issue were not retrieved
from a system of records by reference to plaintiff or an individual
officer's name. Instead, defendant asserts that the Information Paper was
retrieved by reference to the name of the requesting member of Congress and that the Query Responses and the Press Release
were retrieved by reference to the ship's name. See Def.'s Mem. at 12.
Plaintiff does not respond directly to these assertions by addressing the
question of whether the Press Release or Query Responses were contained
within or retrieved from a system of records. The Court therefore will
assume that they were not.
Plaintiff correctly notes, however, that an agency's failure to
acknowledge that it maintains a system of records will not protect the
agency from statutory consequences if there is evidence that the agency
in practice retrieves information about individuals by their names or
personal identifiers. See Pl.'s Opp. at 19 (citing Henke v. United States
Dep't of Commerce, 83 F.3d at 1461). He then goes on to assert that
"based on his twenty years of experience as a Naval Officer and
experience in dealing with Navy computer files," the Information Paper
"was retrievable by searching for his name within the computer files of
the relevant officers." Pl.'s Opp. at 19 (emphasis in original). As
noted, however, mere retrievability that is, the capability to retrieve
is not enough. See supra at 7. And plaintiff has offered no support for
the proposition that Navy officials actually retrieved the Information
Paper by his name or other personal identifier rather than merely having
the capacity to do so. Plaintiff's assertion that it is "technically
possible" to retrieve the Information Paper by searching for his name is
insufficient to meet the requirement that the data was retrieved in such
a manner. See Henke v. United States Dep't of Commerce, 83 F.3d at 1460.
The conclusion that the documents at issue were not themselves
retrieved from a system of records does not end the analysis. Plaintiff
also asserts that underlying documents, from which the documents were
compiled, were contained within a system of records namely, plaintiffs Official Military Personnel File and the record of his NJP
hearing. See Compl. ¶¶ 26-27, 31-32. Defendant does not dispute this
point. See Def.'s Mem. at 10. In such circumstances, the court of appeals
has concluded that an improper disclosure has occurred. See Bartel v.
Federal Aviation Administration, 725 F.2d at 1409. Specifically, the
court in Bartel concluded that the disclosure of letters that included
sensitive information that itself was found in a system of records was a
disclosure within the meaning of the Privacy Act, even though the
underlying records themselves were never released and the agency official
releasing the information claimed knowledge of the facts disclosed
independent of any record. See id. Under Bartel, the Court must find in
these circumstances that information contained in a system of records was
disclosed. The substantive provisions of the Privacy Act therefore are
triggered, and the Court turns to the Privacy Act and its exceptions to
see whether defendant's disclosure of the information in question
nevertheless was permissible.
D. FOIA Exception to the Privacy Act
Defendant asserts that it properly disclosed information about
Commander Chang because the Privacy Act allows for nonconsensual
disclosure of information that has been retrieved from a protected record
under one of the twelve statutory exceptions to the Privacy Act. See
Bartel v. Federal Aviation Administration, 725 F.2d at 1408. In this
case, the defendant invokes two such exceptions: the FOIA exception and
the congressional exception.
Defendant first asserts that the information that was released to the
media in the form of the initial Press Release and during subsequent
telephonic briefings and press conferences consistent with the Query
Responses was properly disclosed under Exception (b)(2) of the Privacy
Act. See Def.'s Mem. at 12. Exception (b)(2) of the Privacy Act excepts
from the Act's coverage disclosure of records for which release would be "required by [the
FOIA]." 5 U.S.C.
§ 552a(b)(2).*fn2 The D.C. Circuit has interpreted the term "required"
to mean that an agency may not release Privacy Act material unless the
agency has a FOIA request in hand and is required by the FOIA not just
permitted to release the record. See Bartel v. Federal Aviation
Administration, 725 F.2d at 1412 ("Only when an agency is faced with a
FOIA request for information that is not within a FOIA exemption, and
therefore has no discretion but to disclose the information, does the
FOIA exception to the Privacy Act come into play."). In this case,
defendant concedes that the Navy had no FOIA request in hand for the
records at issue. See Def.'s Mem. at 13.
The OMB guidelines, however, "suggest a possible exception" to this
rule for "information that traditionally is released by an agency to the
public without a FOIA request." Bartel v. Federal Aviation
Administration, 725 F.2d at 1413; see OMB Guidelines, 40 Fed. Reg. at
28954. The defendant asserts that this exception applies here because the
Navy traditionally releases information that would be releasable under
the FOIA to the press without a formal FOIA request. See Def.'s Mem. at
13. Specifically, like the OMB Guidelines, the Navy's regulations
instruct Navy personnel generally to "respond promptly to requests
received from news media representatives through public information
channels, if the information is releasable under FOIA."
32 C.F.R. § 701.11(p). According to Navy regulations, "[t]his eliminates
the requirement to invoke FOIA and may result in timely information being
made available to the public." Id.; see also Def.'s Mem., Ex. N,
Secretary of the Navy's Instruction on the Privacy Act ("SECNAVINST") 5720.44A ¶ 0701a(1)(d) ("[R]ecords requested through
public information channels by news media representatives that would not
be withheld if requested under the FOIA should be released upon
request."). Assuming that Bartel controls, the question then becomes
whether the information released by defendant to members of the press
would have been releasable under the FOIA, or if it fell under one of the
Exemption 6 of the FOIA permits the government to withhold "personnel
and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6). Under this provision, the threshold question is
whether the requested information is contained in personnel, medical or
"similar" files. See United States Dep't of State v. Washington Post
Co., 456 U.S. 595, 600 (1982) ("[T]he phrase `similar files' was to have
a broad, rather than a narrow meaning."); see also Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002); Billington v.
United States Dep't of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000);
Ripskis v. Dep't of Housing and Urban Development, 746 F.2d 1, 3 (D.C.
Cir. 1984). If the information sought is contained in such files, the
Court must assess "whether the information is of such a nature that its
disclosure would constitute a clearly unwarranted privacy invasion."
Nat'l Ass'n of Home Builders v. Norton, 309 F.3d at 32 (citing United
States Dep't of State v. Washington Post Co., 456 U.S. at 598; New York
Times Co. v. NASA, 920 F.2d 1002, 1004 (D.C. Cir. 1990) (en bane)). To determine what constitutes a "clearly unwarranted privacy invasion,"
the Court must balance the individual's interest in privacy against the
public interest in disclosure, keeping at the forefront the FOIA's "basic
policy of opening agency action to the light of public scrutiny." See
Nat'l Ass'n of Home Builders v. Norton, 309 F.3d at 32 (quoting United
States Dep't of State v. Ray, 502 U.S. at 175 (internal quotation marks
omitted)). The "public interest" inquiry is whether disclosure would
"contribute significantly to public understanding of the operations or
activities of government." United States Dep't of Defense v. Fed. Labor
Relations Authority, 510 U.S. 487, 495 (1994) (quoting United States
Dep't of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749, 775 (1989)). Throughout this analysis, the burden remains
on the government to justify any withholdings, since "under Exemption 6,
the presumption in favor of disclosure is as strong as can be found
anywhere under the Act." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d
at 32 (quoting Washington Post Co. v. United States Dep't of Health and
Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982)). See also Ripskis v.
Dep't of Housing and Urban Development, 746 F.2d at 3 ("[T]he `clearly
unwarranted' language of Exemption 6 weighs the scales in favor of
Navy Privacy Act regulations outline a four-step process for evaluating
whether information is exempt from disclosure and must be withheld under
Exemption (b)(6). The first step is "to determine whether a viable
personal privacy interest exists in these records involving an
identifiable living person." The second step is "to consider how
disclosure would benefit the general public in light of the content and
context of the information in question." The third step is "to determine
whether the identified public interests qualify for consideration." The
fourth step is "to balance the personal privacy interests against the
qualifying public interest." 32 C.F.R. 701.112(b)(2)(iii). The regulations further detail numerous factors that
must be considered in applying the four-step process, including: the
nature of the information to be disclosed; the importance of the public
interest served; the probability of further disclosure which may result
in an unwarranted invasion of personal privacy; the sensitivity of the
information; the newsworthiness of the individual to whom the information
pertains; the passage of time since the event which is the subject of the
record; and the degree to which the information is already in the public
domain or known to the requester. See 32 C.F.R. § 701.112(b)(2)(iii). In
this instance, the Navy concluded that balancing all of these factors
weighed in favor of the disclosures regarding Commander Chang to the
media. The Court agrees.
An individual does have a privacy interest in keeping employment
history, job performance evaluations and information as to disciplinary
proceedings confidential. See Cochran v. United States, 770 F.2d 949, 956
(11th Cir. 1985); Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984). The
public has a competing interest, however, in knowing the identities of
disciplined government officials "in order to hold the governors
accountable to the governed." Stern v. FBI, 737 F.2d at 92. In the
military context, at least one circuit has found that the public interest
in "`whether public servants carry out their duties in an efficient and
law-abiding manner'" outweighs an officer's privacy interest in keeping
his NJP proceedings confidential. Cochran v. United States, 770 F.2d at
956 (quoting Columbia Packing Co. v. United States Dep't of Agriculture,
563 F.2d 495, 499 (1st Cir. 1977)) (holding that the Army's issuance of a
press release concerning a major general's nonjudicial punishment hearing
was not a violation of the Privacy Act). Under the applicable Navy
regulations, while information regarding a NJP proceeding is "generally
not releasable," such information should be disclosed pursuant to a FOIA request when "the facts leading to a nonjudicial punishment are
particularly newsworthy or the case involves a senior official abusing the
public trust through office-related misconduct."
32 C.F.R. § 701.112(b)(2)(viii)(D); see Def.'s Mem., Ex. M, Manual of the
Judge Advocate General ("JAGMAN") ¶ 0509.
It is undisputed that the collision between Commander Chang's ship and
the Saudi Riyadh merchant vessel was a significant newsworthy event and
that plaintiff was the commanding officer of the Radford. See Compl. ¶¶
2, 3, 28. The Radford incident led to an investigation by the National
Transportation Safety Board, two suits in admiralty involving the United
States, an internet website providing pictures of the damage and
substantial media coverage. See Def.'s Mem. at 13-14 (citing numerous
national articles); see id., Ex. P. (news articles). The release of the
information about disciplinary actions taken against Commander Chang
therefore was very much in the public interest and complied with Navy
regulations allowing for disclosure when the facts leading up to
nonjudicial punishment are particularly newsworthy. See
32 C.F.R. § 701.112(b)(2)(viii)(D). The Court finds that the public
interest in the information outweighs any privacy interests protected
under Exemption 6. The information therefore would be releasable under
the FOIA. Because Navy regulations provide that the disclosure of
information "releasable" under the FOIA does not violate the Privacy
Act, the Navy's release of NJP information to the media in the initial
Press Release and subsequent briefings using the Query Responses did not
violate plaintiff's rights under the Privacy Act.
Plaintiff argues that the Navy's assertion that the public interest in
the collision justified disclosure of the disciplinary action taken
against Commander Chang is disingenuous because the Navy withheld the
names and specific results of punishment of all the other officers on whom nonjudicial punishment was imposed as a result of the collision.
See Pl.'s Opp. at 27.*fn4 The Court concludes that such a determination
was not improper, and that plaintiff's position as commander of the ship
in a high-profile collision justifies defendant's release of plaintiff's
identifying information while withholding information about lower-level
officers. In similar circumstances, the court of appeals has upheld such
an exercise of agency discretion in releasing information concerning a
high-level official while not releasing information about lower-level
officials stemming from the same incident. See Stern v. FBI 737 F.2d at
92-94 (finding that the FBI was required under the FOIA to disclose to a
requesting news reporter the name of a Special Agent in Charge involved
in a cover-up incident while allowing the FBI to withhold the names of
two lower-level employees involved in the same incident). Indeed, the
Eleventh Circuit has gone so far as to state that deletion of identifying
information is "inappropriate in the case of a high-ranking official,"
since such information is "crucial to the public's interest in holding
such officials accountable to the public and deterring others from
similar behavior." Cochran v. United States, 770 F.2d at 956
(distinguishing less serious misconduct by low-level agency employees
because generally there is not sufficient public interest in such
information to outweigh the privacy interests of the employee). E. Congressional Exception to the Privacy Act
Defendant next asserts that disclosure of the Information Paper was
proper under the "congressional exception" to the Privacy Act, under
which disclosures "to either House of Congress, or, to the extent of
matter within its jurisdiction, any committee or subcommittee thereof,
any joint committee of Congress or subcommittee of any such joint
committee" are permitted without the consent of the individual to whom
the records pertain. 5 U.S.C.
§ 552a(b)(9). In this case, the defendant claims that Senator John
Warner and Representative James Moran requested the information contained
in the Information Paper "in their capacities as Chairman of the Senate
Armed Services Committee (SASC) and member of the House Committee on
Appropriations, respectively," and that disclosure therefore was proper
under the congressional exception. Def.'s Mem. at 15; see also Def.'s
Mem., Ex. I, Declaration of Commander David M. Morriss, JAGC, U.S. Navy
("Morriss Decl.") ¶ 2; Ex. J, Declaration of Commander John D. Little,
USN ("Little Decl.") ¶ 2.*fn5
Plaintiff counters that the Information Paper was released to Senator
Warner and Representative Moran in their individual capacities in order
to respond to constituent inquiries rather than to the legislators in
their capacities as committee members, and that such releases are not
protected under the congressional exception. See Compl. ¶¶ 29-30. According
to plaintiff, the requests for information from Senator Warner and
Representative Moran were not made on committee letterhead, did not reference a committee in the request and
were not made by committee staff members. See Pl.'s Opp. at 25. Instead,
plaintiff contends, the requests were made by staff members of the
individual Congress members to assist them in answering constituent
inquiries. In support of his position, plaintiff cites to an internal
Navy memorandum describing Senator Warner's request in which the
justification offered for the Information Paper is the many letters
received by Senator Warner's office from constituents questioning the
incident. See Compl. ¶¶ 35, 39; Pl.'s Opp., Ex. 4, Memorandum for
Director, Department of the Navy Program Information Center (DONPIC)
In support of his argument, plaintiff incorrectly asserts that the
Navy's own regulations prohibit release of Privacy Act records to
individual members of Congress in response to constituent inquiries. See
Pl.'s Opp. at 26 (citing JAGMAN ¶ 0518f). This assertion is based on a
summary of disclosure exceptions listed in the Manual of the Judge
Advocate General. The introductory paragraph immediately preceding the
list of exceptions to which plaintiff refers, however, specifically
directs readers to the Secretary of the Navy's Instruction on the Privacy
Act, SECNAVINST 5211.5D, for a "complete discussion" of the exceptions.
See JAGMAN ¶ 0518.
According to Navy Instruction 5211.5D, as codified in the Code of
Federal Regulations, a "Blanket Routine Use" has been established
permitting disclosure from a system of records to individual members of
Congress that make inquiries on behalf of individuals who are the
subjects of such records. See SECNAVINST 5211.5D(9)(c); 32 C.F.R.
§ 701.112(b)(9)(iii). If constituent inquiries are made on behalf
of individuals "other than the record subject" as they were here, Navy
personnel should provide "only that information releasable under [FOIA]" and must "[a]dvise the Member of Congress that
the written consent of the record subject is required before additional
information may be disclosed." SECNAVINST 5211.5D(9)(c)(3);
32 C.F.R. § 701.112(b)(9)(iii)(C). Thus, even if all justifiable
inferences are drawn in favor of plaintiff and Privacy Act protected
information was released to Congress members to answer constituent
inquiries, that alone is not enough to defeat defendant's motion for
summary judgment. Under the relevant Navy regulations, the plaintiff
further must prove that the information provided to Congress members
acting on behalf of constituents would not have been releasable under the
FOIA. As discussed in Section n(D), supra, however, the results of
Commander Chang's nonjudicial punishment proceedings were releasable
under the FOIA. Though more information was released in the Information
Paper than in the Press Release and Query Responses regarding the nature
of plaintiff's dereliction of duty charges, see Def.'s Mem., Ex. A,
Department of the Navy Information Paper at 2, the additional information
is not enough to shift the balance in favor of nondisclosure.
Balancing all of the factors outlined in the Navy regulations governing
the FOIA exception to the Privacy Act, see 32 C.F.R. § 701.112(b)(2)(iii),
the Court concludes that disclosures to Senator Warner and Representative
Moran even if only for the purpose of addressing constituent inquiries
did not violate plaintiffs rights under the Privacy Act. Accordingly,
the Court grants defendant's motion for summary judgment.
F. Plaintiffs Rule 56(f) Motion
The Court denied plaintiffs Rule 56(f) motion for leave to conduct
discovery by separate Order issued September 30, 2003. Given that
plaintiff filed a thirty-page opposition with attachments to defendant's
renewed motion for summary judgment, he has failed to show that he cannot obtain facts "essential" to support his opposition to the
summary judgment motion without further discovery. See FED. R. Civ. P.
An Order and Judgment consistent with this Opinion shall be issued this
ORDER AND JUDGMENT
For the reasons stated in the Opinion issued this same day, it is
ORDERED that defendant's motion for summary judgment [37-1] is GRANTED;
FURTHER ORDERED that JUDGMENT is entered for defendant; it is
FURTHER ORDERED that this Order and Judgment shall constitute a FINAL
JUDGMENT in this case. This is a final appealable order. See FED. R.
APP. P. 4(a).