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Sussman v. United States Marshals Service

September 25, 2009


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


In this case, Michael Sussman proceeding pro se, alleges that the United States Marshals Service ("Marshals Service") violated both the Privacy Act, 5 U.S.C. § 522a, and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522. This Court granted summary judgment in favor of the Marshals Service, and Sussman appealed. The United States Court of Appeals for the District of Columbia Circuit affirmed part of this Court's decision, and vacated and remanded the remainder for further proceedings. See Sussman v. United States Marshals Service, 494 F.3d 1106, 1124 (D.C. Cir. 2007). Since the Circuit Court rendered its opinion, the Marshals Service has released additional documents to Sussman, and both parties have changed their positions with respect to exemptions claimed and disputed prior to the Circuit Court's decision. Thus, some disputes that predate the Circuit Court's opinion have been resolved, others have not, and new ones are presented to this Court for the first time. Now before the Court is the Marshals Service's motion for summary judgment and Sussman's motion for partial summary judgment and limited discovery. Because neither party has established an absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law, the summary judgment motions submitted by both parties will be denied without prejudice. Because discovery is not warranted at this point, Sussman's motion for limited discovery will also be denied without prejudice.


The parties continue to dispute at least some of the FOIA exemptions claimed by the defendant. The record submitted does not permit the Court to determine exactly which exemptions as to which redacted portions of which documents Sussman challenges. The information submitted by the Marshals Service in its Vaughn index, together with its declarations, is insufficient to support a determination that the Marshals Service has justified its nondisclosure decisions.

Therefore, the Court will require the parties to submit a record that will afford the Court a basis upon which to resolve the parties' disputes. See Voinche v. F.B.I., 412 F. Supp. 2d 60, 65 (D.D.C. 2006) (stating that a court may require a more detailed Vaughn index if the one submitted is not detailed enough to allow a court to determine whether FOIA exemptions were legitimately claimed). The parties shall meet and confer, repeatedly if necessary, in order to narrow their disputes and prepare a clear record for the Court.*fn1 At a minimum, Sussman will be required to precisely identify for the Marshals Service each disputed redaction, and the Marshals Service will be required to prepare a submission that:

(1) addresses only the nondisclosures that remain in dispute;

(2) is accompanied by copies of all the pages that have been released to Sussman with disputed partial nondisclosures, so as to show the location and extent of each redaction and the precisely correlated exemption(s) asserted for each redaction (these pages should bear unique identifiers for ease of reference by the parties and the Court, e.g., page numbers or Bates-stamps applied for this purpose);

(3) includes a sworn statement that, by reference to the unique page identifier, provides for each redaction on each page a nonconclusory description*fn2 of the redacted information that explains how the asserted exemption applies.

See id. The parties shall confer and jointly propose a date by which this new record for the Court will be submitted.


Sussman asserts three Privacy Act claims: a failure to provide him access to his records, a failure to comply with the nondisclosure provisions, and a failure to account for allegedly improper disclosures of his records. See 5 U.S.C. § 552(a)(d)(1) (governing access of subject records); § 552a(b) (governing nondisclosure of subject information); § 552a(c) (governing accounting of disclosures of subject records). All these claims depend in the first instance on a determination of what information the Marshals Service has on Sussman that is subject to the access, nondisclosure, and accounting provisions of the Privacy Act, a disputed issue.

This Circuit has determined that the Privacy Act provisions implicated in this case apply only to records maintained in a "system of records," and that a "system of records" for these purposes is one in which information about individuals is, in actual practice, retrieved by the individual's name. See Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1459-61 (D.C. Cir. 1996); accord Krieger v. U.S. Dep't of Justice, 529 F. Supp. 2d 29, 41-42 (D.D.C. 2008).

This is not to suggest that an agency may simply refuse to acknowledge that it maintains a system of records and thereby insulate itself from the reach of the Privacy Act. To the contrary, if there is evidence that an agency in practice retrieves information about individuals by reference to their names, the mere fact that the agency has not acknowledged that it operates a system of records will not protect it from the statutory consequences of its actions. On the other hand, there is no magic number of incidental or ad hoc retrievals by reference to an individual's name which will transform a group of records into a system of records keyed to individuals.

One factor in deciding whether such a system exists, obviously, is the purpose for which the information on individuals is being gathered . . . . Thus, . . . where information about individuals is only being gathered as an administrative adjunct to a grant-making program which focuses on businesses and where the agency has presented evidence that it has no practice of retrieving information keyed to individuals, the agency should not be viewed as maintaining a system of records. On the other hand, where an agency-such as the FBI-is compiling information about individuals primarily for investigatory purposes, Privacy Act concerns are at their zenith, and if there is evidence of even a few retrievals of information keyed to individuals' names, it may well be the case that the agency is maintaining a system of records. We hold therefore that in determining whether an agency maintains a system ...

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