Opinion
Civil Action No. 3:97CV-540-H
September 9, 1999.
MEMORANDUM OPINION
Defendant filed a second motion for summary judgment on Plaintiff's Privacy Act claims. The Court denied Defendant's previous motion for summary judgment, on the grounds that the purpose and application of the Privacy Act were somewhat unclear, conceivably allowing Plaintiff to produce evidence establishing a valid claim. Since denying Defendant's first motion for summary judgment, the Court has considered additional arguments from both sides, reassessed the strength of Plaintiff's complaint, and given further thought to whether Plaintiff's precise allegations fit either the statutory language or the broad purposes of the Privacy Act. As a consequence of this review, the Court now concludes that Plaintiff cannot sustain a claim under the Privacy Act.
Prior to denying Defendant's first motion for summary judgment, the Court allowed Plaintiff additional time for discovery and submitted the case to the Magistrate Judge who issued Findings of Fact and Conclusions of Law recommending that the Court sustain Defendant's motion.
I.
Plaintiff argues that Defendant did not elicit information from Plaintiff to the "greatest extent practicable" because Defendant interviewed Plaintiff after sixty-one other witnesses. See 5 U.S.C. § 552a(e)(2). To evaluate this claim, it is helpful to start with a brief background of this section of the Privacy Act. The purpose of this section is to encourage investigators to collect information directly from the source of the investigation rather than third parties when possible. See OMB Privacy Act Guidelines, 40 Fed.Reg. 28,949, 28,961 (1975). This limits whom the investigator may interview, not the order of the interviews. An agency may interview witnesses in any order when an investigation requires third party testimony. See id. at 28,948, 28,961; Hudson v. Reno, 130 F.3d 1193, 1205 (6th Cir. 1997). Third party testimony is often necessary when the person being investigated is suspected of making false statements, the dispute is of a subjective nature, or the facts at issue are difficult to verify through empirical evidence. See Hudson, 130 F.3d at 1205 (no violation when "practical considerations" involved in conducting an investigation result in third parties being interviewed first). In addition, a number of courts have held that even where it is unclear that third party testimony will be required, those witnesses may be interviewed before the subject of the investigation if there is concern of witness coercion. Brune v. I.R.S., 861 F.2d 1284 (D.C. Cir. 1988).
Even the cases Plaintiff cites in his brief accord with this interpretation.
For instance, in Waters v. Thornburgh, 888 F.2d 870, 875 (D.C. Cir. 1989), the court found a violation of (e)(2) when investigators contacted the Board of Examiners to determine whether or not an employee had taken the bar exam because the investigation turned on an objective fact and there was no possibility of witness coercion. The investigators did not ask the employee first. While the investigators had reason to doubt the employee's credibility, they did not have reason to fear the employee would intimidate or coerce the Board of Examiners. The employee could have proven his presence at the exam through his exam admission stub and score results. See id. This objective proof would have ended the inquiry without need to contact a third party. If the employee had been unable to prove attendance, the investigators could have later contacted the Board of Examiners. There was no need to contact the Board first since it is relatively implausible that the employee would be able to influence or intimidate the Board of Examiners. See id. Similarly, in Dong v. Smithsonian Inst., 943 F. Supp. 69, 73 (D.D.C. 1996), rev'd on other grounds, 125 F.3d 877 (D.C. Cir. 1997), the court found a violation of (e)(2) when investigators contacted other employees to investigate a rumor that Ms. Dong had taken an unauthorized courier trip. In that case, there was no reason to question the employee's veracity, and in fact, when asked, she immediately admitted having taken the trip. Again, there were no allegations that Ms. Dong might coerce or intimidate other employees if she was confronted first, and she could provide objective evidence establishing the truth of her statement.
In these cases the investigators sought to verify facts which the courts viewed as being capable of objective determination. In each case the courts said that the plaintiffs could have provided that objective verification. Our case is different in that Plaintiff could not have verified any conclusions as to the more subjective allegations of employee mistreatment.
Johnson v. Dept. of Treasury, I.R.S., 700 F.2d 971, 973 (5th Cir. 1983), presents a slightly different set of facts. In that case, the court found a violation when an attorney for the I.R.S. was investigated for over a year without being interviewed or informed the purpose of the investigation. Johnson claimed that not knowing why he was being investigated caused him so much stress he developed reflux esophagitis. Johnson was never interviewed until two months after he filed suit. This case indicates that there may be a limit to the amount of time an investigation can in fairness be conducted without contacting the person being investigated and at least informing him of the purpose of the investigation.
Because Plaintiff in our case was informed of the purpose of the investigation two weeks prior to its inception, the Johnson case does not seem pertinent.
The Court concludes that this case can be resolved without considering the consequences of potential witness coercion. Defendant's investigation could not have been conducted by interviewing Plaintiff alone. Allegations against Plaintiff included abuse of subordinates, retaliation against employees, inappropriate conduct at social gatherings and disregard for normal duty hours. Evidence solely within Plaintiff's knowledge would not have disposed of these allegations. The allegations are inherently subjective and impossible to establish through empirical evidence. To question others with information pertaining to the allegations was inevitable. In these circumstances, to interview those persons prior to Plaintiff is not a violation of the Privacy Act. See Hudson, 130 F.3d at 1204-1205. On this basis alone, Plaintiff's § 552a(e)(2) Privacy Act claim must be dismissed.
Defendant need not in these circumstances justify the order of its investigation by citing allegations of retaliation and intimidation by potential witnesses. Though this appears to have been the focal point of Plaintiff's argument, the Court's interpretation now makes the issue simply immaterial. Moreover, it is not an argument upon which Plaintiff can possibly succeed. An investigator must determine the order of interviews ex ante, before assessing the merits of the allegations. When, as here, allegations by several different subordinates include retaliation and intimidation, the investigator must be allowed to infer that other witnesses should be interviewed before Plaintiff.
Plaintiff attempts to distinguish non-employee witnesses, but non-employees may also be improperly influenced by threats. Here the need to interview witnesses first was not based on Plaintiff's position of authority but on his alleged coercive behavior.
The evidence unequivocally establishes that practical considerations necessitated interviewing third parties to obtain a complete picture of events and also supports Defendant's decision to interview these witnesses prior to interviewing Plaintiff. Under Hudson v. Reno either one of these circumstances would support dismissal of Plaintiff's § 552a(e)(2) claims.
Plaintiff has argued that the Privacy Act requires the Court to look at each piece of evidence individually to determine whether the investigator could have contacted Plaintiff first. In its prior memorandum, the Court commented that it was unclear whether Defendant had followed such a procedure. The Court now believes that this factual uncertainty is immaterial. The Privacy Act does not expressly mandate individual examination of each piece of evidence and no court has found it necessary. When, as here, the dispute is of a subjective nature and the investigators have concerns about interference with their investigation, requiring piece by piece analysis of Privacy Act compliance seems both implausible and impracticable. The Court now concludes that the Privacy Act does not require such individual determinations under these circumstances.
II.
Plaintiff has also amended his original complaint to focus on a separate part of the Privacy Act. Relying on 5 U.S.C. § 552a(e)(3)(B), Plaintiff argues that Defendant failed to inform those interviewed of the "principal purpose or purposes" for which the information collected was intended. Specifically, Plaintiff claims that Mr. Sutemeier never informed the witnesses of the principal purpose of his investigation. The sole proof to support this allegation is Mr. Sutemeier's statement that he told Susan Frazier that his purpose was to investigate allegations of misconduct within the Fort Knox community schools. Plaintiff contends Mr. Sutemeier should have informed the witnesses that the investigation could cause Plaintiff's termination. Plaintiff does not cite and the Court cannot identify any cases to support such an interpretation of the statute. In fact, the text of the statute clearly requires a statement of purpose, not possible results. An announcement that the investigator's subject faces potential termination would, by creating unnecessary rumors, infringe rather than protect the subject's privacy rights. To require speculation about the result of an investigation prior to its completion, seems to be a bizarre and harmful extrapolation from the Privacy Act. The Court finds such an interpretation directly contrary to both the statute's text and its reasonable purpose. A claim premised upon such an interpretation of the Privacy Act must fail as a matter of law.In reaching this decision, the Court has carefully considered the precise language of the Privacy Act as well as its broad purposes. The Privacy Act responded primarily to concerns about the misuse of information contained in government files and about the abusive and unnecessary questioning of third parties. Those broad purposes do not include detailed limitations on the conduct of legitimate government investigations which require obtaining information from third parties. Plaintiff's interpretation of the Privacy Act would improperly restrict the course of legitimate governmental inquiries. As this memorandum has explained, such restrictions were neither specified nor intended.
The Court also finds that Plaintiff's claims against the individuals named in the complaint must be dismissed. The Privacy Act only creates a private right of action against agencies, not individuals. Windsor v. The Tennessean, 719 F.2d 155, 160 (6th Cir. 1983).
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
The Court having considered Defendant's motion for summary judgment as to all of Plaintiff's claims and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for summary judgment is SUSTAINED and Plaintiff's claims are DISMISSED with prejudice.
This is a final and appealable order.