E. System of Records

3. Other Aspects

The "system of records" threshold requirement is not necessarily applicable to all subsections of the Act. See OMB Guidelines, 40 Fed. Reg. at 28,952 (system of records definition "limits the applicability of some of the provisions of the Act") (emphasis added). But see Privacy Commission Report at 503-04 (assuming that definition limits entire Act).

For example, in Albright v. United States, 631 F.2d 915, 918-20 (D.C. Cir. 1980), the Court of Appeals for the District of Columbia Circuit held that subsection (e)(7)--which restricts agencies from maintaining records describing how an individual exercises his First Amendment rights--applies even to records not incorporated into a system of records. Albright involved a challenge on subsection (e)(7) grounds to an agency's maintenance of a videotape--kept in a file cabinet in an envelope that was not labeled by any individual's name--of a meeting between a personnel officer and agency employees affected by the officer's job reclassification decision. Id. at 918. Relying on both the broad definition of "maintain," 5 U.S.C.  552a(a)(3), and the "special and sensitive treatment accorded First Amendment rights," the D.C. Circuit held that the mere collection of a record regarding those rights could be a violation of subsection (e)(7), regardless of whether the record was contained in a system of records retrieved by an individual's name or personal identifier. Id. at 919-20.

Albright's broad construction of subsection (e)(7) has been adopted by several other courts. See MacPherson v. IRS, 803 F.2d 479, 481 (9th Cir. 1986); Boyd, 709 F.2d at 684; Clarkson, 678 F.2d at 1373-77; Fagot, 584 F. Supp. at 1175. Further, the Court of Appeals for the Eleventh Circuit in Clarkson, 678 F.2d at 1375-77, held that, at least with respect to alleged violations of subsection (e)(7), the Act's amendment provision (subsection (d)(2)) also can apply to a record not incorporated into a system of records. However, Judge Tjoflat's concurring opinion in Clarkson intimated that something more than a bare allegation of a subsection (e)(7) violation would be necessary in order for an agency to be obligated to search beyond its systems of records for potentially offensive materials. Id. at 1378-79.

Two district courts have gone even further. In Connelly v. Comptroller of the Currency, 673 F. Supp. 1419, 1424 (S.D. Tex. 1987), rev'd on other grounds, 876 F.2d 1209 (5th Cir. 1989), the court construed the broad "any record" language contained in 5 U.S.C.  552a(g)(1)(C) to permit a damages action arising from an allegedly inaccurate record that was not incorporated into a system of records. But cf. Bettersworth v. FDIC, No. A-97-CA-624, slip op. at 10 (W.D. Tex. Feb. 1, 2000) (magistrate's recommendation) (recognizing holding in Connelly, but noting that both subsections (d)(1) and (g)(1)(C) contain same "system of records" language, and stating that court is "unpersuaded that Congress intended any other meaning than what has previously been applied"), adopted (W.D. Tex. Feb. 17, 2000) (appeal pending). In a subsequent opinion, the court in Connelly went on to find a cause of action under subsections (e)(5) and (g)(1)(C) with regard to records not in a system. Connelly v. Comptroller of the Currency, No. H-84-3783, slip op. at 3-4, 42-43 (S.D. Tex. June 3, 1991). In Reuber v. United States, No. 81-1857, slip op. at 5 (D.D.C. Oct. 27, 1982), partial summary judgment denied (D.D.C. Aug. 15, 1983), partial summary judgment granted (D.D.C. Apr. 13, 1984), subsequent decision (D.D.C. Sept. 6, 1984), aff'd, 829 F.2d 133 (D.C. Cir. 1987), the court relied on Albright for the proposition that subsections (d)(2), (e)(1)-(2), (e)(5)-(7), and (e)(10) all apply to a record not incorporated into a system of records. See also Fiorella v. HEW, 2 Gov't Disclosure Serv. (P-H)  81,363, at 81,946 n.1 (W.D. Wash. Mar. 9, 1981) (noting that subsections (e)(5) and (e)(7) "are parallel in structure and would seem to require the same statutory construction"). But see Felsen v. HHS, No. CCB-95-975, slip op. at 61-62, 65 (D. Md. Sept. 30, 1998) (granting defendants summary judgment on alternative ground that subsection (e)(2) is inapplicable to records not included in system of records); Barhorst, 765 F. Supp. at 999-1000 (dismissing on alternative grounds Privacy Act claims under subsections (b), (e)(1)-(3), (e)(5)-(6), and (e)(10) because information found not in system of records; information was retrieved by job announcement number, not by name or other identifying particular).

Albright and its progeny establish that the "system of records" limitation on the scope of the Act is not uniformly applicable to all of the statute's subsections. As is apparent from the above discussion, there is some uncertainty about which particular subsections of the statute are limited to records contained in a "system of records."

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