Opinion
19 Civ. 10715 (NSR)(PED)
08-20-2021
Rita Patrick, Plaintiff v. Local 51, American Postal Workers Union, AFL-CIO, and Shanequa Johnson-Duggins, Individually and as President of Local 51, Defendants.
ORDER
PAUL E. DAVISON, U.S.M.J.
Plaintiff Rita Patrick seeks an order from this Court compelling the United States Postal Service (“USPS”) to respond to Plaintiffs subpoena dated August 11, 2021, attached hereto, and to provide a “signed Certificate of Authenticity regarding these documents.” [Dkt. 99-101.] Plaintiff seeks, among other things, records concerning USPS employees and grievances maintained by the USPS. In response, the USPS declined to respond to the subpoena absent written approval from the relevant employees or an order from this Court.
The Privacy Act of 1974 prohibits federal agencies from disclosing “any record which is contained in a system of records by any means of communication to any person...except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains....” 5 U.S.C. § 552a(b). As an exception, an agency may disclose such records “pursuant to an order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(11).
In addition, federal agencies can be compelled to produce information in response to a subpoena, but “federal agencies have promulgated regulations to limit their employees' authority to share information with outside parties.” Carbone v. Martin, Case No. 18 Civ. 3509 (AKT), 2021 WL 1224102, at *1 (E.D.N.Y. Mar. 31, 2021) (internal citations omitted). The Federal Housekeeping Statute authorizes federal agencies to adopt regulations, known as Touhy regulations, that govern “the conduct of [their] employees]...and the custody, use, and preservation of [agency] records, papers, and property.” Id. (citing 5 U.S.C. § 301); See U.S. ex rel. Touhy v. Rogen, 340 U.S. 462, 468 (1951). A party to an adversary proceeding in which the United States is not a party and who seeks to obtain documents from a federal agency must follow the applicable Touhy regulations. Carbone, 2021 WL 1224102, at *1. The USPS has set forth its own Touhy regulation at 39 C.F.R. § 265.12. Moreover, the USPS's Touhy regulation is expressly subject to the requirements of the Privacy Act. 39 C.F.R. § 265.12(a)(4) (“This section does not exempt a request from applicable confidentiality requirements, including the requirements of the Privacy Act, 5 U.S.C. 552a.”) Any subpoena issued to the USPS in tins proceeding must, therefore, comply with the relevant Touhy regulations and the the Privacy Act.
Accordingly, it is hereby
ORDERED that the USPS shall respond to Plaintiffs subpoena dated August 11, 2021, attached hereto, subject to and without prejudice for any objections pursuant to the Privacy Act, the USPS's Touhy regulation, and any other objections permitted under the Federal Rules of Civil Procedure.
The Clerk is respectfully directed to terminate the motion at Dkt. 99.