E. System of Records

2. Access and Amendment: Subsections (d)(1) and (d)(2)

One of Congress's underlying concerns in narrowly defining a "system of records" appears to have been efficiency--i.e., a concern that any broader definition would require elaborate cross-references among records and/or burdensome hand-searches for records. See OMB Guidelines, 40 Fed. Reg. at 28,957; see also Baker v. Department of the Navy, 814 F.2d 1381, 1385 (9th Cir. 1987); Carpenter v. IRS, 938 F. Supp. 521, 522-23 (S.D. Ind. 1996).

Consistent with OMB's guidance, numerous courts have held that, under subsection (d)(1), an individual has no Privacy Act right of access to his record if it is not indexed and retrieved by his name or personal identifier. See Williams v. VA, 104 F.3d 670, 673 (4th Cir. 1997); Manuel v. VA Hosp., 857 F.2d 1112, 1116-17 (6th Cir. 1988); Baker, 814 F.2d at 1383-84; Cuccaro v. Secretary of Labor, 770 F.2d 355, 360-61 (3d Cir. 1985); Wren v. Heckler, 744 F.2d 86, 89 (10th Cir. 1984); Bettersworth v. FDIC, No. A-97-CA-624, slip op. at 8-9 (W.D. Tex. Feb. 1, 2000) (magistrate's recommendation), adopted (W.D. Tex. Feb. 17, 2000) (appeal pending); Springmann v. United States Dep't of State, No. 93-1238, slip op. at 9 n.2 (D.D.C. Apr. 21, 1997); Fuller v. IRS, No. 96-888, 1997 WL 191034, at **3-5 (W.D. Pa. Mar. 4, 1997); Carpenter, 938 F. Supp. at 522-23; Quinn v. HHS, 838 F. Supp. 70, 76 (W.D.N.Y. 1993); Shewchun v. United States Customs Serv., No. 87-2967, 1989 WL 7351, at *2 (D.D.C. Jan. 11, 1989); Bryant v. Department of the Air Force, No. 85-4096, slip op. at 4 (D.D.C. Mar. 31, 1986); Fagot v. FDIC, 584 F. Supp. 1168, 1174-75 (D.P.R. 1984), aff'd in part & rev'd in part, 760 F.2d 252 (1st Cir. 1985) (unpublished table decision); Grachow v. United States Customs Serv., 504 F. Supp. 632, 634-36 (D.D.C. 1980); Smiertka v. United States Dep't of the Treasury, 447 F. Supp. 221, 228 (D.D.C. 1978), remanded on other grounds, 604 F.2d 698 (D.C. Cir. 1979); see also OMB Guidelines, 40 Fed. Reg. at 28,957 (giving examples).

Likewise, with regard to amendment, several courts have ruled that where an individual's record is being maintained allegedly in violation of subsection (e)(1) or (e)(5), the individual has no Privacy Act right to amend his record, under subsection (d)(2), if it is not indexed and retrieved by his name or personal identifier. See Baker, 814 F.2d at 1384-85 ("the scope of accessibility and the scope of amendment are coextensive"); Pototsky v. Department of the Navy, 717 F. Supp. 20, 22 (D. Mass. 1989) (following Baker), aff'd per curiam, 907 F.2d 142 (1st Cir. 1990) (unpublished table decision); see also Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir. 1982) (subsections (e)(1) and (e)(5) apply only to records contained in system of records).

However, with respect to access under subsection (d)(1), and amendment under subsection (d)(2), several courts have cautioned that an agency's purposeful filing of records in a non-name retrieved format, in order to evade those provisions, will not be permitted. See, e.g., Pototsky v. Department of the Navy, No. 89-1891, slip op. at 2 (1st Cir. Apr. 3, 1990) (per curiam); Baker, 814 F.2d at 1385; Kalmin v. Department of the Navy, 605 F. Supp. 1492, 1495 n.5 (D.D.C. 1985); see also Manuel, 857 F.2d at 1120 ("The Court does not want to give a signal to federal agencies that they should evade their responsibility to place records within their 'system of records' in violation of the [Act].").

Following the rationale of the Fifth Circuit Court of Appeals in Chapman v. NASA, 682 F.2d 526, 529 (5th Cir. 1982), several courts have recognized a subsection (e)(5) duty to incorporate records into a system of records (thus making them subject to access and amendment) where such records are used by the agency in taking an adverse action against the individual. See MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 2-5 (M.D. Fla. Feb. 8, 1988); Lawrence v. Dole, No. 83-2876, slip op. at 5-6 (D.D.C. Dec. 12, 1985); Waldrop v. United States Dep't of the Air Force, 3 Gov't Disclosure Serv. (P-H)  83,016, at 83,453 (S.D. Ill. Aug. 5, 1981); Nelson v. EEOC, No. 83-C-983, slip op. at 6-11 (E.D. Wis. Feb. 14, 1984); cf. Manuel, 857 F.2d at 1117-19 (no duty to place records within system of records where records "are not part of an official agency investigation into activities of the individual requesting the records, and where the records requested do not have an adverse effect on the individual"). But cf. Gowan v. Department of the Air Force, No. 90-94, slip op. at 7, 11, 13, 16, 30, 33 (D.N.M. Sept. 1, 1995) (although ultimately finding access claim moot, stating that "personal notes and legal research" in file "marked 'Ethics'" that was originally kept in desk of Deputy Staff Judge Advocate but that was later given to Criminal Military Justice Section and used in connection with court martial hearing were not in system of records for purposes of either Privacy Act access or accuracy lawsuit for damages), aff'd, 148 F.3d 1182, 1191 (10th Cir.) (concluding "that the word 'Ethics' was not a personal identifier" and stating that it did "not find the district court's rulings regarding those documents to be clearly erroneous"), cert. denied, 525 U.S. 1042 (1998).

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