OVERVIEW OF THE PRIVACY ACT OF 1974

AGENCY REQUIREMENTS

Each agency that maintains a system of records shall--

E. 5 U.S.C.  552a(e)(5)

"maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination."

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This provision (along with subsections (e)(1) and (e)(7)) sets forth the standard to which records must conform in the context of an amendment lawsuit, as well as in the context of an accuracy lawsuit for damages. See 5 U.S.C.  552a(g)(1)(A); 5 U.S.C.  552a(g)(1)(C). As the Court of Appeals for the District of Columbia Circuit has held, "whether the nature of the relief sought is injunctive or monetary, the standard against which the accuracy of the record is measured remains constant [and] that standard is found in 5 U.S.C.  552a(e)(5) and reiterated in 5 U.S.C.  552a(g)(1)(C)." Doe v. United States, 821 F.2d 694, 697 n.8 (D.C. Cir. 1987) (en banc).

In theory, a violation of this provision (or any other part of the Act) could also give rise to a damages action under 5 U.S.C.  552a(g)(1)(D). Cf. Perry v. FBI, 759 F.2d 1271, 1275 (7th Cir. 1985), rev'd en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986). However, the Court of Appeals for the District of Columbia Circuit has held that "a plaintiff seeking damages for noncompliance with the standard set out in subsection (e)(5) must sue under subsection (g)(1)(C) and not subsection (g)(1)(D)." Deters v. United States Parole Comm'n, 85 F.3d 655, 660-61 & n.5 (D.C. Cir. 1996) (noting that although court had suggested in Dickson v. OPM, 828 F.2d 32, 39 (D.C. Cir. 1987), "that subsection (g)(1)(D) could cover a violation of subsection (e)(5), the holding in that case is limited to the scope of subsection (g)(1)(C)").

Perfect records are not required by subsection (e)(5); instead, "reasonableness" is the standard. See Johnston v. Horne, 875 F.2d 1415, 1421 (9th Cir. 1989); DeBold v. Stimson, 735 F.2d 1037, 1041 (7th Cir. 1984); Edison v. Department of the Army, 672 F.2d 840, 843 (11th Cir. 1982); Vymetalik v. FBI, No. 82-3495, slip op. at 3-5 (D.D.C. Jan. 30, 1987); Marcotte v. Secretary of Defense, 618 F. Supp. 756, 762 (D. Kan. 1985); Smiertka v. United States Dep't of the Treasury, 447 F. Supp. 221, 225-26 & n.35 (D.D.C. 1978), remanded on other grounds, 604 F.2d 698 (D.C. Cir. 1979); see also, e.g., Halus v. United States Dep't of the Army, No. 87-4133, 1990 WL 121507, at *11 (E.D. Pa. Aug. 15, 1990) (erroneous information held not subject to amendment if it is merely a "picayune" and immaterial error); Jones v. United States Dep't of the Treasury, No. 82-2420, slip op. at 2-3 (D.D.C. Oct. 18, 1983) (ruling it reasonable for agency--without conducting its own investigation--to maintain record concerning unsubstantiated allegation of sexual misconduct by BATF agent conveyed to it by state and local authorities), aff'd, 744 F.2d 878 (D.C. Cir. 1984) (unpublished table decision); cf. Sullivan v. Federal Bureau of Prisons, No. 94-5218, 1995 WL 66711, at *1 (D.C. Cir. Jan. 17, 1995) (even if (e)(5) claim were not time-barred, "Parole Commission met the requirements of the Act by providing [plaintiff] with a parole revocation hearing at which he was represented by counsel and given the opportunity to refute the validity of his continued confinement"); Pons v. United States Dep't of the Treasury, No. 94-2250, 1998 U.S. Dist. LEXIS 5809, at **11-15 (D.D.C. Apr. 21, 1998) (entering judgment in favor of agency where agency presented "substantial evidence to suggest that [it] acted in the reasonable belief that there were no grounds to amend plaintiff's records"; plaintiff failed to identify any records that contained alleged false statements and even if file did contain those statements, plaintiff never presented any evidence from which to conclude that statements were false); Smith v. United States Bureau of Prisons, No. 94-1798, 1996 WL 43556, at **3-4 (D.D.C. Jan. 31, 1996) (finding that plaintiff's record was not inaccurate with respect to his pre-commitment status in light of Bureau of Prisons' "full authority to promulgate rules governing the treatment and classification of prisoners" and "broad discretionary power," and because there was "no evidence that the BOP's interpretation of its own regulations was an abuse of discretion or discriminatorily administered," "BOP officials reconsidered their decision at least once," and "the determination of which plaintiff complains ha[d] been resolved in his favor"); Hampton v. FBI, No. 93-0816, slip op. at 3-6, 13-17 (D.D.C. June 30, 1995) (although not mentioning (e)(5), finding that FBI "acted lawfully under the Privacy Act in the maintenance of the plaintiff's arrest record" when FBI refused to expunge challenged entries of arrests that did not result in conviction absent authorization by local law enforcement agencies that had originally submitted the information); Buxton v. United States Parole Comm'n, 844 F. Supp. 642, 644 (D. Or. 1994) (subsection (e)(5) fairness standard satisfied where Parole Commission complied with statutory procedures regarding parole hearings even though it did not investigate or correct alleged inaccuracies in presentence report).

Erroneous facts--as well as opinions, evaluations, and subjective judgments based entirely on erroneous facts--can be amended. See, e.g., Hewitt v. Grabicki, 794 F.2d 1373, 1378 (9th Cir. 1986); Douglas v. Farmers Home Admin., 778 F. Supp. 584, 585 (D.D.C. 1991); Rodgers v. Department of the Army, 676 F. Supp. 858, 860-61 (N.D. Ill. 1988); Ertell v. Department of the Army, 626 F. Supp. 903, 910-12 (C.D. Ill. 1986); R.R. v. Department of the Army, 482 F. Supp. 770, 773-74 (D.D.C. 1980); Murphy v. NSA, 2 Gov't Disclosure Serv. (P-H)  81,389, at 82,036 (D.D.C. Sept. 29, 1981); Trinidad v. United States Civil Serv. Comm'n, 2 Gov't Disclosure Serv. (P-H)  81,322, at 81,870-71 (N.D. Ill. Apr. 7, 1980); Turner v. Department of the Army, 447 F. Supp. 1207, 1213 (D.D.C. 1978), aff'd, 593 F.2d 1372 (D.C. Cir. 1979). As the Court of Appeals for the Seventh Circuit has noted, "[t]he Privacy Act merely requires an agency to attempt to keep accurate records, and provides a remedy to a claimant who demonstrates that facts underlying judgments contained in his records have been discredited." DeBold, 735 F.2d at 1040-41.

In addition, one court has held that where records contain disputed hearsay and reports from informants and unnamed parties, "the records are maintained with adequate fairness if they accurately reflect the nature of the evidence" (i.e., indicate that the information is a hearsay report from an unnamed informant). Graham v. Hawk, 857 F. Supp. 38, 40 (W.D. Tenn. 1994), aff'd, 59 F.3d 170 (6th Cir. 1995) (unpublished table decision); cf. Hass v. United States Air Force, 848 F. Supp. 926, 931 (D. Kan. 1994) (although acknowledging possibility that agency relied upon incorrect information in making determination about plaintiff, finding no Privacy Act violation because no evidence was suggested that information was recorded inaccurately).

As a general rule, courts are reluctant to disturb judgmental matters in an individual's record when such judgments are based on a number of factors or when the factual predicates for a judgment or evaluation are diverse. As the D.C. Circuit has ruled, where a subjective evaluation is "based on a multitude of factors" and "there are various ways of characterizing some of the underlying [factual] events," it is proper to retain and rely on the record. White v. OPM, 787 F.2d 660, 662 (D.C. Cir. 1986); see also Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995) (records were not based on demonstrably false premise, but rather on subjective evaluation "'based on a multitude of factors'" (quoting White, 787 F.2d at 662)); Bernson v. ICC, 625 F. Supp. 10, 13 (D. Mass. 1984) (court cannot order amendment of opinions "to reflect the plaintiffs' version of the facts"); cf. Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at **2-3 (10th Cir. Apr. 14, 1997) (although not mentioning subsection (e)(5), holding that appellant was not entitled to court-ordered amendment, nor award of damages, concerning record in her medical files that contained "physician's notation to the effect that [appellant] was probably dependent upon a prescription medication," as such notation "reflected the physician's medical conclusion, which he based upon a number of objective factors and [appellant's] own complaints of neck and low back pain," and "Privacy Act does not permit a court to alter documents that accurately reflect an agency decision, no matter how contestable the conclusion may be").

Many courts have held that pure opinions and judgments are not subject to amendment. See, e.g., Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir. 1999); Hewitt, 794 F.2d at 1378-79; Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir. 1980) (per curiam); Fields v. NRC, No. 98-1714, slip op. at 5-7 (D.D.C. May 12, 1999); Blazy v. Tenet, 979 F. Supp. 10, 20-21 (D.D.C. 1997), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Gowan v. Department of the Air Force, No. 90-94, slip op. at 28-30 (D.N.M. Sept. 1, 1995), aff'd, 148 F.3d 1182 (10th Cir.), cert. denied, 525 U.S. 1042 (1998); Webb, 880 F. Supp. at 25; Linneman v. FBI, No. 89-505, slip op. at 14 (D.D.C. July 13, 1992); Nolan v. United States Dep't of Justice, No. 89-A-2035, 1991 WL 134803, at *3 (D. Colo. July 17, 1991), appeal dismissed in pertinent part on procedural grounds, 973 F.2d 843 (10th Cir. 1992); Frobish v. United States Army, 766 F. Supp. 919, 926-27 (D. Kan. 1991); Daigneau v. United States, No. 88-54-D, slip op. at 3-4 (D.N.H. July 8, 1988); Brumley v. United States Dep't of Labor, No. LR-C-87-437, slip op. at 4 (E.D. Ark. June 15, 1988), aff'd, 881 F.2d 1081 (8th Cir. 1989) (unpublished table decision); Tannehill v. United States Dep't of the Air Force, No. 87-M-1395, slip op. at 2 (D. Colo. May 23, 1988); Rogers v. United States Dep't of Labor, 607 F. Supp. 697, 699-700 (N.D. Cal. 1985); Fagot v. FDIC, 584 F. Supp. 1168, 1176 (D.P.R. 1984), aff'd in part & rev'd in part, 760 F.2d 252 (1st Cir. 1985) (unpublished table decision); DeSha v. Secretary of the Navy, 3 Gov't Disclosure Serv. (P-H)  82,496, at 82,251 (C.D. Cal. Feb. 26, 1982), aff'd, 780 F.2d 1025 (9th Cir. 1985) (unpublished table decision); Lee v. United States Dep't of Labor, 2 Gov't Disclosure Serv. (P-H)  81,335, at 81,891 (D. Va. Apr. 17, 1980); Hacopian v. Marshall, 2 Gov't Disclosure Serv. (P-H)  81,312, at 81,856 (C.D. Cal. Apr. 16, 1980); Castle v. United States Civil Serv. Comm'n, No. 77-1544, slip op. at 5 (D.D.C. Jan. 23, 1979); Rowe v. Department of the Air Force, No. 3-77-220, slip op. at 5 (E.D. Tenn. Mar. 20, 1978); cf. Turner, 447 F. Supp. at 1212-13 (where negative rating had been expunged, court declined to add its opinion about quality of plaintiff's service).

In determining what steps an agency must take in order to satisfy the accuracy standard of subsection (e)(5), the Court of Appeals for the District of Columbia Circuit has looked to whether the information at issue is capable of being verified. In Doe v. United States, 821 F.2d at 697-701, the D.C. Circuit, sitting en banc, in a seven-to-four decision, held that the inclusion in a job applicant's record of both the applicant's and agency interviewer's conflicting versions of an interview (in which only they were present) satisfies subsection (e)(5)'s requirement of maintaining reasonably accurate records. The D.C. Circuit, in rejecting the argument that the agency and reviewing court must themselves make a credibility determination of which version of the interview to believe, ruled that subsections (e)(5) and (g)(1)(C) "establish as the record-keeper's polestar, 'fairness' to the individual about whom information is gathered," and that "the 'fairness' criterion does not demand a credibility determination in the atypical circumstances of this case." Id. at 699 (emphasis added); see also Harris v USDA, No. 96-5783, 1997 WL 528498, at **2-3 (6th Cir. Aug. 26, 1997) (agency "reasonably excluded" information from plaintiff's record where there was "substantial evidence that the [information] was unreliable," and in absence of "verifiable information which contradicted its investigators' records," agency "reasonably kept and relied on the information gathered by its investigators when it terminated plaintiff"); Graham, 857 F. Supp. at 40 (agency under no obligation to resolve whether hearsay contained in report is true, so long as information characterized as hearsay); Doe v. FBI, No. 91-1252, slip op. at 6-7 (D.N.J. Feb. 27, 1992) (following Doe v. United States, 821 F.2d at 699, and holding that FBI fulfilled its obligations under Privacy Act by including plaintiff's objections to statements contained in FBI polygrapher's memorandum and by verifying to extent possible that polygraph properly conducted).

Subsequently, the D.C. Circuit held that in a "typical" case, where the records at issue are "not ambivalent" and the facts described therein are "susceptible of proof," the agency and reviewing court must determine accuracy as to each filed item of information. Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 866 (D.C. Cir. 1989). In order to "assure fairness" and render the record "complete" under subsection (e)(5), an agency may even be required to include contrary or qualifying information. See Strang v. United States Arms Control & Disarmament Agency, 920 F.2d 30, 32 (D.C. Cir. 1990); Kassel v. VA, 709 F. Supp. 1194, 1204-05 (D.N.H. 1989).

More recently, the D.C. Circuit adhered to its holding in Strang and held:

As long as the information contained in an agency's files is capable of being verified, then, under sections (e)(5) and (g)(1)(C) of the Act, the agency must take reasonable steps to maintain the accuracy of the information to assure fairness to the individual. If the agency wilfully or intentionally fails to maintain its records in that way and, as a result, it makes a determination adverse to an individual, then it will be liable to that person for money damages. . . . [T]he agency did not satisfy the requirements of the Privacy Act simply by noting in [the individual's] files that he disputed some of the information the files contained.

Sellers v. Bureau of Prisons, 959 F.2d 307, 312 (D.C. Cir. 1992). (It is worth noting that Sellers was solely a subsection (e)(5)/(g)(1)(C) case; the system of records at issue was exempt from subsection (d).) See also Griffin v. United States Parole Comm'n, No. 97-5084, 1997 U.S. App. LEXIS 22401, at **3-5 (D.C. Cir. July 16, 1997) (citing Doe and Deters and finding itself presented with "typical" case in which information was capable of verification, and therefore vacating district court opinion that had characterized case as "atypical"), vacating & remanding No. 96-0342, 1997 U.S. Dist. LEXIS 2846 (D.D.C. Mar. 11, 1997); Deters, 85 F.3d at 658-59 (quoting Sellers and Doe, and although finding itself presented with "an atypical case because the 'truth' . . . is not readily ascertainable . . . assum[ing] without concluding that the Commission failed to maintain Deters's records with sufficient accuracy" because Commission had "not argued that this was an atypical case"); Blazy, 979 F. Supp. at 20-21 (citing Sellers and Doe and finding that alleged inaccuracies were either nonexistent, corrected, or "unverifiable opinions of supervisors, other employees and/or informants"); Bayless v. United States Parole Comm'n, No. 94CV0686, 1996 WL 525325, at *5 (D.D.C. Sept. 11, 1996) (citing Sellers and Doe and finding itself presented with an "atypical" case because "truth concerning plaintiff[']s culpability in the conspiracy and the weight of drugs attributed to him involves credibility determinations of trial witnesses and government informants and, therefore, is not 'clearly provable'"); Webb, 880 F. Supp. at 25 (finding that record at issue contained "justified statements of opinion, not fact" and "[c]onsequently, they were not 'capable of being verified' as false and cannot be considered inaccurate statements" (quoting Sellers, 959 F.2d at 312, and citing Doe, 821 F.2d at 699)); Thomas v. United States Parole Comm'n, No. 94-0174, 1994 WL 487139, at **4-6 (D.D.C. Sept. 7, 1994) (discussing Doe, Strang, and Sellers, but finding that Parole Commission "verified the external 'verifiable' facts"; further holding that plaintiff should not be allowed to use Privacy Act "to collaterally attack the contents of his presentence report," as he "originally had the opportunity to challenge the accuracy . . . before the judge who sentenced him"); Linneman, No. 89-505, slip op. at 11-22 (D.D.C. July 13, 1992) (applying Sellers and Doe to variety of items of which plaintiff sought amendment).

The D.C. Circuit has noted that where "an agency has no subsection (d) duty to amend, upon request, it is not clear what residual duty subsection (e)(5) imposes when an individual challenges the accuracy of a record." Deters, 85 F.3d at 658 n.2. It went on to question whether subsection (e)(5) would still require an agency to amend or expunge upon the individual's request, or whether the agency merely must "address the accuracy of the records at some point before using it to make a determination of consequence to the individual." Id. Although stating that the Sellers opinion was "not entirely clear on this point," the D.C. Circuit reasoned that "the language of subsection (e)(5) . . . suggests the latter course," id. (citing OMB Guidelines, 40 Fed. Reg. 28,948, 28,964 (1975)), and went on to state that subsection (e)(5) suggests that an agency has "no duty to act on an [individual's] challenge and verify his record until the agency uses the record in making a determination affecting his rights, benefits, entitlements or opportunities," 85 F.3d at 660; see also Bayless, 1996 WL 525325, at *6 n.19 (quoting Deters and determining that agency "fulfilled its requisite duty by 'addressing' plaintiff's allegations prior to rendering a parole determination").

The Court of Appeals for the Ninth Circuit has held that an agency can comply with subsection (e)(5) by simply including a complainant's rebuttal statement with an allegedly inaccurate record. Fendler v. United States Bureau of Prisons, 846 F.2d 550, 554 (9th Cir. 1988) (subsections (e)(5) and (g)(1)(C) lawsuit); see also Graham, 857 F. Supp. at 40 (citing Fendler and holding that where individual disputes accuracy of information that agency has characterized as hearsay, agency satisfies (e)(5) by permitting individual to place rebuttal in file); cf. Harris, No. 96-5783, 1997 WL 528498, at *2 (6th Cir. Aug. 26, 1997) (although holding that exclusion of information from appellant's record due to unreliability of information was reasonable, finding it "notabl[e]" that appellant had not contested district court's finding that agency "did not prevent him from adding to the file his disagreement with the [agency] investigators' conclusions"). Fendler thus appears to conflict with both Doe and Strang, as well as with the D.C. Circuit's earlier decision in Vymetalik v. FBI, 785 F.2d 1090, 1098 n.12 (D.C. Cir. 1986) (noting that subsection (d)(2) "guarantees an individual the right to demand that his or her records be amended if inaccurate" and that mere inclusion of rebuttal statement was not "intended to be [the] exclusive [remedy]").

In Chapman v. NASA, 682 F.2d 526, 528-30 (5th Cir. 1982), the Court of Appeals for the Fifth Circuit recognized a "timely incorporation" duty under subsection (e)(5). It ruled that a supervisor's personal notes "evanesced" into Privacy Act records when they were used by the agency to effect an adverse disciplinary action, and that such records must be placed into the employee's file "at the time of the next evaluation or report on the employee's work status or performance." Id. at 529. In reversing the district court's ruling that such notes were not records within a system of records, the Fifth Circuit noted that such incorporation ensures fairness by allowing employees a meaningful opportunity to make refutatory notations, and avoids an "ambush" approach to maintaining records. Id.; see also Thompson v. Department of Transp. United States Coast Guard, 547 F. Supp. 274, 283-84 (S.D. Fla. 1982) (explaining Chapman). Chapman's "timely incorporation" doctrine has been followed in several other cases. See, e.g., MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 2-5 (M.D. Fla. Feb. 8, 1988) (counseling memorandum used in preparation of proficiency report "became" part of VA system of records); Lawrence v. Dole, No. 83-2876, slip op. at 5-6 (D.D.C. Dec. 12, 1985) (notes not incorporated in timely manner cannot be used as basis for adverse employment action); 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) (certain of records at issue became Privacy Act records; others were merely "memory joggers"); Nelson v. EEOC, No. 83-C-983, slip op. at 6-11 (E.D. Wis. Feb. 14, 1984) (memorandum was used in making determination about an individual and therefore must be included in system of records and made available to individual); cf. Hudson v. Reno, 103 F.3d 1193, 1205-06 & n.9 (6th Cir. 1997) (distinguishing facts in Chapman and holding that supervisor's "notes about [p]laintiff's misconduct which were kept in a locked drawer and labeled the 'First Assistant's' files do not fall within th[e system of records] definition," as they "were not used to make any determination with respect to [p]laintiff"), cert. denied, 525 U.S. 822 (1998); Manuel v. VA Hosp., 857 F.2d 1112, 1117-19 (6th Cir. 1988) (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"); Magee v. United States, 903 F. Supp. 1022, 1029-30 (W.D. La. 1995) (plaintiff's file kept in supervisor's desk, separate from other employee files, because of plaintiff's concerns about access to it and with plaintiff's acquiescence did "not fall within the proscriptions of maintaining a 'secret file' under the Act"), aff'd, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision).

Also note that subsection (e)(5)'s "timeliness" requirement does not require that agency records contain only information that is "hot off the presses." White, 787 F.2d at 663 (rejecting argument that use of year-old evaluation violates Act, as it "would be an unwarranted intrusion on the agency's freedom to shape employment application procedures"); see also Beckette v. United States Postal Serv., No. 88-802, slip op. at 12-14 (E.D. Va. July 3, 1989) (stating that "[a]ll of the record maintenance requirements of subsection 552a(e)(5), including timeliness, concern fairness," and finding that as to records regarding "restricted sick leave," "[w]iping the . . . slate clean after an employee has remained off the listing for only six months is not required to assure fairness to the individual"; also finding that maintenance of those records for six months after restricted sick leave had been rescinded "did not violate the relevancy requirement of subsection 552a(e)(5)").

For a further discussion of subsection (e)(5), see OMB Guidelines, 40 Fed. Reg. 28,948, 28,964-65 (1975).


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