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Joan M. Kvech v. Eric H. Holder

September 19, 2011

JOAN M. KVECH, PLAINTIFF,
v.
ERIC H. HOLDER, JR. UNITED STATES ATTORNEY GENERAL, DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

MEMORANDUM OPINION *fn1

In this action Plaintiff Joan M. Kvech challenges her termination from the Federal Bureau of Investigation. According to her complaint, Kvech was terminated after an FBI investigation over her alleged attempts to tamper with evidence while she was the Special Agent in Charge of a joint task force involving the Montgomery County Police Department ("MCPD"). The FBI investigation also focused on the affair she admittedly had with a detective from the MCPD, who was a member of the task force and who was directly involved in gathering the evidence that was at issue. According to Kvech, she did not keep the affair a secret and she did not have authority to evaluate the detective or take any action that would affect the terms or conditions of his employment. At the time of the affair, Kvech was married to a "popular" FBI agent with whom she was experiencing marital difficulties. (Compl. ¶¶ 15-18, 20-21, 133.)

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

In this action, Kvech asserts the following claims: Count I, disclosure of her private information in violation of the Privacy Act; Count II, maintenance of inaccurate records in violation of the Privacy Act; Count III, Violation of Privacy Act prohibitions on maintaining records regarding First Amendment activity; Count IV, Violation of First and Fourteenth Amendment protections of free association and privacy; Count V, gender discrimination in violation of Title VII; Count VI, discrimination based on marital status; Count VII, denial of access to records in violation of the Privacy Act; and Count VIII, Violation of the Rehabilitation Act of 1973. (Doc. 1.) *fn2 The FBI seeks dismissal of all claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

For the reasons explained below, the Court finds the FBI's motion is due to be granted in part and denied in part. The motion will be granted on the following claims: Count II (Privacy Act-inaccuracy), Count III (Privacy Act-First Amendment), Count IV (First & Fourteenth Amendment claims), Count VI (discrimination based on marital status), Count VII (Privacy Act-access) and Count VIII (Rehabilitation Act). The motion will be denied on Count I (Privacy Act-disclosure) and Count V (Title VII-gender discrimination).

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION.

ANALYSIS

A. Privacy Act Disclosure Claim (Count I): *fn3 Except under certain specified conditions, the Privacy Act prevents federal agencies from

disclosing 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. . . .

the term "system of records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

5 U.S.C. § 552a (b); (a)(5). There are twelve exceptions to this general rule prohibiting disclosure of records. See 5 U.S.C. § 552a (b). One of those exceptions allows for disclosure "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties." Id. at § 552a (b)(1). Another exception allows for disclosure of records to other federal agencies with certain restrictions. Id. at § 552a (b)(7).

Still another exception allows for disclosure of records "for a routine use." Id. at § 552a (b)(3). "[T]he term 'routine use' means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected." Id. at § 552a (a)(7). Each agency must publish in the Federal Register a notice regarding the system of records it maintains, along with an explanation regarding the routine uses of such information.

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION. Id. at § 552a (e)(4)(D).

1. Alleged Improper Disclosure

Because she did not give consent, Kvech challenges the FBI's disclosure to the MCPD of information about the investigation. Kvech points out that the disclosure occurred outside of the FBI and, therefore, was not a disclosure "to those officers and employees of the agency which maintains the record." 5 U.S.C. § 552a (b)(1). Additionally, Kvech challenges the disclosure because it was not made to another federal agency or instrumentality, but rather to the MCPD. See 5 U.S.C. § 552a (b)(7).

In response, the FBI contends it disclosed the information pursuant to the "routine use" exception. In support of its contention, the FBIrelies on its publication of two "routine uses." Blanket Routine Use ("BRU-1") allows disclosure under the following circumstances:

Violations of Law, Regulation, Rule, Order, or Contract. If any system record, on its face or in conjunction with other information, indicates a violation or potential violation of law(whether civil or criminal), regulation, rule, order, or contract, the pertinent record may be disclosed to the appropriate entity (whether federal, state, local, joint, tribal, foreign, or international), that is charged with the responsibility of investigating, prosecuting, and/or enforcing such law, regulation, rule, order, or contract.

66 Fed. Reg. 33558, 33559 (June 22, 2001) (emphasis added). *fn4 BRU-15 allows disclosure of records:

To designated officers and employees of state, local (including the District of Columbia), or tribal law enforcement or detention agencies in connection with the hiring or continued employment of an employee or contractor, where the employee or contractor would occupy or occupies a position of public trust as a law enforcement officer or detention officer having direct contact with the public or with prisoners or detainees, to the extent that the information is relevant and necessary to the recipient agency's decision.

70 Fed. Reg. 7513, 7518 (Feb. 14, 2005) (emphasis added).

At first blush, it appears that the disclosures were consistent with the BRUs upon which the FBI relies. According to the allegations found in Kvech's complaint, she was the Special Agent in Charge of a task force that included a Montgomery County detective, with whom she became romantically involved. During the task force investigation, that detective inadvertently recorded private conversations between himself and Kvech that were unrelated to the investigation. When a question arose regarding how to maintain and label these recordings, both Kvech and the detective had conversations with the technician responsible for custody of the evidence. Although Kvech never told the technician to destroy the evidence, the technician "surmised" that Kvech's intent was to have the recordings destroyed. (Compl. ¶¶ 14-15, 18, 33-43.) Ultimately, the FBI investigated the matter and Kvech was terminated for, inter alia, "an investigative deficiency related to the alleged attempt to destroy evidence," and "an improper relationship with a subordinate." (Id. ¶ 60.) *fn5 During the course of the investigation, two FBI investigators interviewed an MCPD Captain and disclosed "details concerning Plaintiff's administrative" investigation and provided the Captain with "selective records," in an effort to shore up the ...

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