B. Access Lawsuits

"Whenever any agency . . . refuses to comply with an individual request under subsection (d)(1) of this section [the individual may bring a civil action against the agency]." 5 U.S.C.  552a(g)(1)(B).

-- Courts can enjoin the agency from withholding records and order their production to the individual. See 5 U.S.C.  552a(g)(3)(A).

comment --

Just as under the FOIA, a requester must comply with agency procedures and exhaust all available administrative remedies--through pursuit of an access request to the agency--prior to bringing a subsection (g)(1)(B) action. See Taylor v. United States Treasury Dep't, 127 F.3d 470, 473-77 (5th Cir. 1997); Phillips v. Widnall, No. 96-2099, 1997 WL 176394, at *3 (10th Cir. Apr. 14, 1997); Fisher v. FBI, No. 3:99CV796, 2000 WL 502655, at *3 (D. Conn. Mar. 6, 2000); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990); Biondo v. Department of the Navy, 928 F. Supp. 626, 630-33 (D.S.C. 1995), aff'd, 86 F.3d 1148 (4th Cir. 1996) (unpublished table decision); Reeves v. United States, No. 94-1291, 1994 WL 782235, at *2 (E.D. Cal. Nov. 16, 1994), aff'd, 108 F.3d 338 (9th Cir. 1997) (unpublished table decision); Guzman v. United States, No. S-93-1949, slip op. at 3-5 (E.D. Cal. Oct. 5, 1994); Hass v. United States Air Force, 848 F. Supp. 926, 930 (D. Kan. 1994); Gergick v. Austin, No. 89-0838-CV-W-2, 1992 U.S. Dist. LEXIS 7338, at **13-16 (W.D. Mo. Apr. 29, 1992), aff'd, No. 92-3210 (8th Cir. July 9, 1993); Wood v. IRS, No. 1:90-CV-2614, 1991 U.S. Dist. LEXIS 19707, at *8 (N.D. Ga. July 26, 1991); Searcy v. Social Sec. Admin., No. 91-C-26 J, slip op. at 8-11 (D. Utah June 25, 1991) (magistrate's recommendation), adopted (D. Utah Sept. 19, 1991), aff'd, No. 91-4181 (10th Cir. Mar. 2, 1992); Crooker v. Bureau of Prisons, 579 F. Supp. 309, 311 (D.D.C. 1984); Crooker v. United States Marshals Serv., 577 F. Supp. 1217, 1217-18 (D.D.C. 1983); Lilienthal v. Parks, 574 F. Supp. 14, 18 & n.7 (E.D. Ark. 1983); Gibbs v. Rauch, No. 77-59, slip op. at 2-3 (E.D. Ky. Feb. 9, 1978); Larsen v. Hoffman, 444 F. Supp. 245, 256 (D.D.C. 1977); cf. Walker v. Henderson, No. 98 C 3824, 1999 WL 39545, at *9 (N.D. Ill. Jan. 20, 1999) (finding request letters insufficient to comply with Postal Service regulations governing access to files covered by Privacy Act), appeal voluntarily dismissed, No. 99-1615 (7th Cir. May 27, 1999).

The Court of Appeals for the Fourth Circuit has also noted that an individual cannot "constructively exhaust" his administrative remedies under the Privacy Act, as "the Privacy Act contains no equivalent to FOIA's 'constructive exhaustion' provision[, 5 U.S.C.  552(a)(6)(C)]." Pollack v. Department of Justice, 49 F.3d 115, 116 n.1 (4th Cir. 1995) (only FOIA claim was properly before district court); see also Anderson v. United States Postal Serv., 7 F. Supp. 2d 583, 586 n.3 (E.D. Pa. 1998) (citing Pollack for proposition that "Privacy Act contains no section equivalent to the 'constructive exhaustion' provision of the FOIA," but alternatively finding that access suit must be dismissed for failure to exhaust administrative remedies), aff'd, 187 F.3d 625 (3d Cir. 1999) (unpublished table decision); cf. Johnson v. FBI, No. 94-1741, slip op. at 6 (D.D.C. Aug. 31, 1995) (citing Pollack but determining that "since plaintiff has sought an action in equity, and has not exhausted his administrative remedies through administrative appeal . . . plaintiff is barred from seeking injunctive relief under the Privacy Act"). However, an agency's failure to comply with its own regulations can undercut an exhaustion defense. See Jonsson v. IRS, No. 90-2519, 1992 WL 115607, at *1 (D.D.C. May 4, 1992); Haldane v. Commissioner, No. 90-654M, 1990 U.S. Dist. LEXIS 11612, at **4-6 (W.D. Wash. Aug. 23, 1990).

Several courts have recognized that jurisdiction to consider a Privacy Act access claim exists only if the government has failed to comply with a request for records; once a request is complied with and the responsive records have been disclosed, a Privacy Act access claim is moot. See Fisher v. FBI, No. 3:99CV796, 2000 WL 502655, at *3; Biondo, 928 F. Supp. at 631; Letscher v. IRS, No. 95-0077, 1995 WL 555476, at *1 (D.D.C. July 6, 1995); Polewsky v. Social Sec. Admin., No. 5:93-CV-200, slip op. at 9-10 (D. Vt. Mar. 31, 1995) (magistrate's recommendation), adopted (D. Vt. Apr. 13, 1995), aff'd, No. 95-6125, 1996 WL 110179, at *2 (2d Cir. Mar. 12, 1996); Smith v. Continental Assurance Co., No. 91 C 0963, 1991 WL 164348, at *3 (N.D. Ill. Aug. 22, 1991); see also Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at **14-15 (N.D. Tex. Mar. 11, 1999) (dismissing access claim as moot where plaintiff had received access to records and finding no eligibility for award of attorney fees and costs based on plaintiff's assertion that his lawsuit may have caused agency to comply with Privacy Act when it would not otherwise have done so, "particularly when  552a(d)(1) imposes no deadline for agency compliance and absent evidence of extended and unjustified delay"), aff'd, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision).

The Court of Appeals for the District of Columbia Circuit has ruled that "the specific provisions of [26 U.S.C.]  6103 rather than the general provisions of the Privacy Act govern the disclosure of . . . tax information" and that "individuals seeking 'return information' . . . must do so pursuant to 6103 of the Internal Revenue Code, rather than the Privacy Act." Lake v. Rubin, 162 F.3d 113, 115-16 (D.C. Cir. 1998), cert. denied, 526 U.S. 1070 (1999). In reaching this conclusion, the D.C. Circuit looked to the legislative history of  6103 and embraced an earlier ruling by the Court of Appeals for the Seventh Circuit, Cheek v. IRS, 703 F.2d 271 (7th Cir. 1983) (per curiam), that had similarly held that  6103 "displaces" the Privacy Act and shields tax return information from release to a first-party requester, id. at 272; see also Paige v. IRS, No. 1P-85-64-C, slip op. at 3-4 (S.D. Ind. Jan. 13, 1986). Lake, 162 F.3d at 115-16. But cf. Sinicki v. United States Dep't of Treasury, No. 97 CIV. 0901, 1998 WL 80188, at **3-5 (S.D.N.Y. Feb. 24, 1998) (finding Cheek unpersuasive in context of wrongful disclosure claim and denying motion to dismiss Privacy Act claim, stating that "the language, structure, purpose and legislative history of Section 6103 do not make manifest and clear a legislative intent to repeal the Privacy Act as it applies to tax return information").

The Court of Appeals for the Ninth Circuit has confusingly interpreted 26 U.S.C.  7852(e) (1994) to likewise prevent Privacy Act access to records pertaining to tax liability. Jacques v. IRS, No. 91-15992, 1992 WL 185449, at *2 (9th Cir. Aug. 5, 1992); O'Connor v. United States, No. 89-15321, slip op. at 5 (9th Cir. June 4, 1991); see also Prince v. Commissioner, No. 98-17183, 1999 WL 511185, at *1 (9th Cir. July 15, 1999) (concluding that district court lacked subject matter jurisdiction over claim for attorney fees in Privacy Act suit for access to tax return records due to 26 U.S.C.  7852(e)'s prohibition against application of subsection (g) of Privacy Act to determinations of tax liability); Weiss v. Sawyer, 28 F. Supp. 2d 1221, 1227-28 (W.D. Okla. 1997) (applying 26 U.S.C.  7852 to prevent apparent access claim); cf. Baker v. Matson, No. 98 M 1675, 1998 U.S. Dist. LEXIS 21312, at **8-9 (D. Colo. Dec. 7, 1998) (ruling that court had no jurisdiction over Privacy Act access claim) (magistrate's recommendation), adopted (D. Colo. Jan. 12, 1999). The Ninth Circuit's interpretation of 26 U.S.C.  7852(e), however, seems to go beyond that statute's objective of exempting determinations of tax liability from the Privacy Act's amendment provisions. Cf. Lake v. Rubin, 162 F.3d at 114-16 (discussing  7852(e)--which had been interpreted by district court to deprive it of jurisdiction in access cases, see Maxwell v. Rubin, 3 F. Supp. 2d 45, 47-49 (D.D.C. 1998)--but affirming judgments of district court "not on the jurisdictional rationale contained in its opinions" but on basis of  6103); Wood v. IRS, No. 1:90-CV-2614, 1991 U.S. Dist. LEXIS 19707, at *1, 8 (N.D. Ga. July 29, 1991) (denying plaintiff summary judgment on other grounds, but not barring Privacy Act request for access to records concerning plaintiff's tax liability).

Lastly, damages are not recoverable in an access case. See Benoist v. United States, No. 87-1028, slip op. at 3 (8th Cir. Nov. 4, 1987); Thurston v. United States, 810 F.2d 438, 447 (4th Cir. 1987); Haddon v. Freeh, 31 F. Supp. 2d 16, 22 (D.D.C. 1998); Vennes v. IRS, No. 5-88-36, slip op. at 6-7 (D. Minn. Oct. 14, 1988) (magistrate's recommendation), adopted (D. Minn. Feb. 14, 1989), aff'd, No. 89-5136MN (8th Cir. Oct. 13, 1989); Bentson v. Commissioner, No. 83-048-GLO-WDB, slip op. at 2 (D. Ariz. Sept. 14, 1984); see also Quinn v. HHS, 838 F. Supp. 70, 76 (W.D.N.Y. 1993) (citing Thurston in dictum).

-- Courts "shall determine the matter de novo." 5 U.S.C.  552a(g)(3)(A).

-- Courts may review records in camera to determine whether any of the exemptions set forth in subsection (k) apply. See 5 U.S.C.  552a(g)(3)(A).

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