OVERVIEW OF THE PRIVACY ACT OF 1974

AGENCY REQUIREMENTS

Each agency that maintains a system of records shall--

F. 5 U.S.C.  552a(e)(6)

"prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section [FOIA], make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes."

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This provision requires a reasonable effort by the agency to review records prior to their dissemination. See NTEU v. IRS, 601 F. Supp. 1268, 1272 (D.D.C. 1985); see also Stewart v. FBI, No. 97-1595, slip op. at 4 (D. Or. Mar. 12, 1999) (provision violated where agency failed to establish that it conducted reasonable efforts to ensure the accuracy of information "'of a factual nature'" that was "'capable of being verified'"); Gang v. Civil Serv. Comm'n, No. 76-1263, slip op. at 2-5 (D.D.C. May 10, 1977) (provision violated where agency failed to review personnel file to determine relevance and timeliness of dated material concerning political activities before disseminating it to Library of Congress).

The District Court for the District of Columbia has held that an agency was not liable under subsection (e)(6) for damages for the dissemination of information that plaintiff had claimed was inaccurate but that the court determined consisted of statements of opinion and subjective evaluation that were not subject to amendment. Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995). The District Court for the Southern District of California has also considered a claim under subsection (e)(6), and in doing so took into account the requirements of causation and intentional and willful wrongdoing in Privacy Act damages actions, discussed below. Guccione v. National Indian Gaming Comm'n, No. 98-CV-164, 1999 U.S. Dist. LEXIS 15475, at **14-19 (S.D. Cal. Aug. 5, 1999). The court found that an administrative hearing concerning inconsistencies in plaintiff's employment application "smacked generally of reprimand even though no talismanic phrases akin to reprimand were used," and that therefore "there was no 'intentional' or 'willful' misconduct in the [agency's] use of the term reprimand," nor was there sufficient causation where the recipients of the information also had reviewed the transcript of the administrative hearing and could draw their own conclusions. Id. at **16-19.

By its terms, this provision does not apply to mandatory FOIA disclosures. See Smith v. United States, 817 F.2d 86, 87 (10th Cir. 1987); Kassel v. VA, 709 F. Supp. 1194, 1205 & n.5 (D.N.H. 1989); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,965 (1975).


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