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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2004 Decided April 20, 2004
No. 02-5168
KEITH MAYDAK, ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02199)
Bruce V. Spiva, appointed by the court, argued the cause
and filed the briefs for amicus curiae in support of appellants.
Keith Maydak, Gregory Smith, and Paul Lee, pro se, were
on the briefs for appellants.
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Michael C. Johnson, Assistant U.S. Attorney,
entered an appearance.
Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this case, three federal prisoners
allege that the Federal Bureau of Prisons maintained a secret
file of photographs of inmates and their visitors in violation of
several provisions of the Privacy Act, as well as the federal
statute that created the Inmate Trust Fund. The district
court granted summary judgment to the government on all
counts. We affirm with respect to one of the Privacy Act
claims. Because we find that genuine issues of material fact
preclude summary judgment on all remaining claims, we
reverse and remand for further proceedings consistent with
this opinion.
I.
The Federal Bureau of Prisons (BOP) permits individual
institutions to operate the ‘‘Inmate Photography Program,’’
giving inmates the opportunity to have photographs taken
with their visitors. Inmates pay a one dollar fee for each
picture into the Inmate Trust Fund, which consists of money
spent by inmates nationwide at prison commissaries and on
other Trust Fund programs. The Fund pays for cameras,
film, processing, and administrative costs associated with the
Inmate Photography Program. BOP regulations allow pris-
ons to offer inmates duplicate prints provided that doing so
does not increase processing costs. Because developing ser-
vices often offer free ‘‘double prints,’’ most BOP institutions
gave inmates (at the time of the events leading to this case)
the second print.
Appellants, federal prison inmates Keith Maydak, Gregory
Smith, and Paul Lee, noticed that several prisons were giving
inmates only single photographs. An envelope obtained by
Lee from a photo developer revealed that although BOP
actually received double prints, inmates never received the
3
second copy. At several of the institutions in which appel-
lants were incarcerated, BOP officials acknowledged that they
did in fact develop and keep duplicate photographs. For
example, officials at the McKean and Ray Brook federal
correctional institutions (FCI) explained that duplicates of
inmate-purchased photographs were given to the Special In-
vestigative Supervisor’s (SIS) office, which reviewed them for
‘‘investigative or informative value.’’ Roy Decl. ¶ ¶ 7, 9
(McKean); Cross Decl. ¶ ¶ 6, 8 (Ray Brook). Photos having
such value were ‘‘added to, and retained in, active investiga-
tion case files’’; remaining duplicates were ‘‘stored in a box
for approximately six (6) months and then destroyed.’’ Roy
Decl. ¶ 9; accord Cross Decl. ¶ ¶ 8–9. At the Beckley and
Cumberland federal correctional institutions, officials re-
viewed inmate-purchased photos for ‘‘gang-related activity.’’
Painter Decl. ¶ 3 (Beckley); Alvarado Decl. ¶ 6 (Cumberland).
At Beckley, ‘‘[i]f a photo showed gang-related activities, a
scanned copy was made and displayed in the SIS office for a
short period of time, then it was shredded.’’ Painter Decl.
¶ 3. At Cumberland, such photographs were ‘‘scanned into
the computer and maintained in the SIS Office.’’ Alvarado
Decl. ¶ 7. An official at the Lewisburg penitentiary declared
that the institution never developed duplicate photographs.
See Hoekman Decl. ¶ 4. Instead, SIS reviewed ‘‘the single
‘print’ to ensure that no one in the photograph made an
obscene gesture, and to ensure that nothing in the photo-
graph pose[d] a threat to institution safety or security.’’ Id.
¶ 6. In addition, Beckley and McKean officials acknowledged
that on a few occasions, inmate trust funds had been used to
develop duplicate prints that, instead of being given to in-
mates, were used or retained by BOP. See Clifton Decl. ¶ 3
(Beckley); Fitch Decl. ¶ ¶ 4–5 (McKean).
Proceeding pro se, appellants filed suit in the U.S. District
Court for the District of Columbia alleging (among other
things) that BOP’s maintenance of what they call the ‘‘Secret
Squirrel Photo File’’ violated the Privacy Act of 1974. See
Pub. L. No. 93–579, § 3, 88 Stat. 1897 (1974) (codified at 5
U.S.C. § 552a (2000)). They also alleged that by using the
second print for investigative purposes, BOP violated 31
U.S.C. § 1321 (2000), the statute that created the Inmate
4
Trust Fund (formally known as the Commissary Fund). The
district court initially dismissed the complaint for failure to
state a claim. See Maydak v. United States, No. 97–2199
(D.D.C. Mar. 31, 1999). On appeal, this court vacated the
dismissal of the Privacy Act and Inmate Trust Fund claims
and remanded for further proceedings. See Maydak v. Unit-
ed States, No. 99–5187, 1999 WL 1006593, at *1 (D.C. Cir.
Oct. 27, 1999). Acting on the basis of declarations submitted
by BOP officials at several of the institutions at issue in this
case—Beckley, Cumberland, Lewisburg, McKean, and Ray
Brook—the district court on remand granted summary judg-
ment to the government. See Maydak v. United States, No.
97–2199, slip op. at 11–12 (D.D.C. May 4, 2001) (Maydak I);
Maydak v. United States, No. 97–2199, slip op. at 4–5 (D.D.C.
Mar. 22, 2002) (Maydak II).
Appellants filed a notice of appeal, and we appointed Bruce
V. Spiva as amicus curiae to present arguments on their
behalf. We review the grant of summary judgment de novo,
applying the same standards as the district court. Tao v.
Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment
may be granted only ‘‘where there are no genuine issues of
material fact, and all inferences must be viewed in a light
most favorable to the non-moving party.’’ Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255
(1986)). We consider appellants’ Privacy Act claims in part
II, their Trust Fund claim in part III, and several unrelated
claims in an unpublished judgment issued herewith.
II.
‘‘[I]n order to protect the privacy of individuals identified in
information systems maintained by federal agencies,’’ the
Privacy Act regulates ‘‘the collection, maintenance, use, and
dissemination of information by such agencies.’’ Privacy Act,
§ 2(a)(5), 88 Stat. 1896. ‘‘The Act gives agencies detailed
instructions for managing their records and provides for
various sorts of civil relief to individuals aggrieved by failures
on the Government’s part to comply with the requirements.’’
Doe v. Chao, 124 S. Ct. 1204, 1207 (2004).
5
The Privacy Act imposes a series of substantive and proce-
dural obligations on federal agencies that maintain what is
known as a ‘‘system of records.’’ A system of records is ‘‘a
group of any records under the control of any agency from
which information is retrieved by the name of the individual
or by some identifying number, symbol, or other identifying
particular assigned to the individual.’’ 5 U.S.C. § 552a(a)(5).
A ‘‘record’’ is ‘‘any item, collection, or grouping of information
about an individual that is maintained by an agency TTT that
contains his name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as
a finger or voice print or a photograph.’’ Id. § 552a(a)(4).
‘‘Maintain’’ means ‘‘maintain, collect, use, or disseminate.’’
Id. § 552a(a)(3).
Appellants claim that BOP’s maintenance of the so-called
Secret Squirrel Photo File violates Privacy Act subsections
552a(r), (e)(4), (e)(9), and (e)(11). These provisions require
agencies to establish rules of conduct for employees who
develop or maintain systems of records and to report certain
information regarding those systems. Appellants also allege
that the photo file violates subsections 552a(e)(1), (e)(2), (e)(3),
(e)(7), and (e)(10), which regulate the collection and mainte-
nance of the records themselves.
The district court concluded that none of the cited Privacy
Act provisions applied to BOP’s photo file because the institu-
tions at which appellants were incarcerated did not maintain
the photographs in a system of records. As we explain
below, however, under the law of this circuit, incorporation of
a record into a system of records is not required to trigger
subsection 552a(e)(7). With respect to the other alleged
Privacy Act violations, we believe that contested issues of
material fact as to whether BOP facilities actually maintained
photographs in a system of records precluded summary judg-
ment.
Subsection 552a(e)(7)
Subsection 552a(e)(7) provides that any agency maintaining
a system of records shall ‘‘maintain no record describing how
6
any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the
individual about whom the record is maintained or unless
pertinent to and within the scope of an authorized law en-
forcement activity.’’ 5 U.S.C. § 552a(e)(7). In Albright v.
United States, 631 F.2d 915 (D.C. Cir. 1980), we held that an
agency that maintains any system of records is prohibited
from maintaining a record of an individual’s First Amend-
ment activity ‘‘even if [that record] is not subsequently incor-
porated into the agency’s system of records.’’ Id. at 916–17.
‘‘[T]he Act clearly prohibits even the mere collection of such a
record, independent of the agency’s maintenance, use, or
dissemination’’ of the record thereafter. Id. at 918. To
interpret the statute otherwise, we explained, would be ‘‘in-
consistent with the plain meaning of the language of the Act.’’
Id.
Contrary to the district court’s conclusion, then, whether
appellants have a viable subsection 552a(e)(7) claim turns not
on whether the photographs were maintained in a system of
records, but on whether they ‘‘describ[e] how [an] individual
exercises rights guaranteed by the First Amendment.’’ 5
U.S.C. § 552a(e)(7). If they do, BOP should not have main-
tained the photographs ‘‘unless pertinent to and within the
scope of an authorized law enforcement activity,’’ as BOP
does not claim that maintaining the photographs was ‘‘author-
ized by statute or by the individual about whom the record is
maintained.’’ Id.
We think it obvious that photographs of prisoners visiting
with family, friends, and associates depict the exercise of
associational rights protected by the First Amendment—
provided, of course, that such rights survive incarceration.
Although the very fact of incarceration necessarily curtails
associational rights, see Overton v. Bazzetta, 123 S. Ct. 2162,
2167 (2003), the Supreme Court has never held that inmates
have no right to association. In Overton v. Bazzetta, the
Court stated, ‘‘[w]e do not hold, and we do not imply, that any
right to intimate association is altogether terminated by
incarceration or is always irrelevant to claims made by pris-
oners.’’ Id. Instead of ‘‘attempt[ing] to explore or define the
7
asserted right of association TTT or determine the extent to
which it survives incarceration,’’ the Court implicitly assumed
that the right existed and upheld prison regulations limiting
that putative right as constitutionally justified under the
circumstances. See id.; see also Pell v. Procunier, 417 U.S.
817, 822 (1974). We too find it unnecessary to consider
whether the photographs at issue in this case depict inmates
exercising First Amendment rights because, at least in some
respects, BOP has shown that its maintenance of the photo-
graphs was ‘‘pertinent to TTT an authorized law enforcement
activity.’’
Although the Privacy Act does not define ‘‘law enforcement
activity,’’ we have interpreted the phrase broadly. See Nagel
v. U.S. Dep’t of Health, Educ. & Welfare, 725 F.2d 1438, 1441
n.3 (D.C. Cir. 1984) (indicating that the phrase includes an
authorized criminal, intelligence, or administrative investiga-
tion); J. Roderick MacArthur Found. & Lindblom v. FBI,
102 F.3d 600, 603 (D.C. Cir. 1996) (holding that valid law
enforcement activities require neither an active investigation
nor a ‘‘current law enforcement necessity’’). Citing declara-
tions of several prison officials, BOP argues that its actions
fall within subsection 552a(e)(7)’s law enforcement exception
because ‘‘the SIS office at the various institutions reviewed
the photos for threats to institution safety or security, for any
gang-related activity, for investigative or informative value, or
for other conduct.’’ Appellees’ Br. at 30. Because BOP has
responsibility for preserving prison security, we have no
doubt that examining photographs for conduct that may
threaten that security is pertinent to and within the scope of
an authorized law enforcement activity. Nor have we any
doubt that reviewing inmate photographs for gang-related
activity and obscene conduct also falls within that exception.
If BOP were reviewing the photographs for these purposes
only, we could easily affirm the grant of summary judgment
with respect to subsection 552a(e)(7). Based on BOP’s decla-
rations, however, it appears that some prisons may have
reviewed and collected the photographs for other purposes as
well. According to officials from McKean and Ray Brook,
those institutions reviewed photographs for ‘‘investigative or
8
informative value.’’ See Roy Decl. ¶ 9 (McKean); Cross Decl.
¶ 8 (Ray Brook). Neither official, however, explained what
these terms mean. Does investigative value relate to sus-
pected criminal activity? What is the limit to informative
value? Although ‘‘authorized law enforcement activity’’ obvi-
ously has a broad meaning in the prison context, unless we
require greater specificity BOP could easily evade subsection
552a(e)(7) simply by invoking a need to maintain records for
generic investigative and informative purposes. We will
therefore remand this issue for the district court to deter-
mine, on the basis of a fuller record, whether McKean’s and
Ray Brook’s review of photographs was consistent with an
‘‘authorized law enforcement activity.’’
Other Privacy Act Subsections
Unlike subsections 552a(r), (e)(4), (e)(9), and (e)(11), which
impose obligations on the maintenance of systems of records,
subsections (e)(1), (e)(2), (e)(3), and (e)(10) apply to the rec-
ords themselves. These provisions state that:
Each agency that maintains a system of records
shall—
(1) maintain in its records only such information TTT
as is relevant and necessary to accomplish a purpose
of the agency TTT;
(2) collect information to the greatest extent practi-
cable directly from the subject individual TTT;
(3) inform each individual whom it asks to supply
information TTT [of] the [agency’s] authority TTT;
the principal purpose TTT for which the information
is intended to be used; the routine uses which may
be made of the information TTT; [and] the effects
TTT of not providing TTT the requested information;
TTT [and]
(10) establish appropriate administrative, technical,
and physical safeguards to insure the security and
confidentiality of recordsTTTT
5 U.S.C. § 552a(e)(1)–(3), (10).
Amicus urges us to extend Albright to these subsections,
arguing that like subsection 552a(e)(7), they apply to records
9
not incorporated into a system of records. In considering
this argument, we do not write on a clean slate, for the Office
of Management and Budget has issued ‘‘Privacy Act Guide-
lines’’ to which we owe deference. See Henke v. U.S. Dep’t of
Commerce, 83 F.3d 1453, 1461 n.12 (D.C. Cir. 1996) (giving
the OMB Privacy Act Guidelines ‘‘the deference usually ac-
corded interpretation of a statute by the agency charged with
its administration’’ (quoting Albright, 631 F.2d at 920 n.5));
see also Privacy Act, § 6 (‘‘The Office of Management and
Budget shall TTT develop guidelines and regulations for the
use of agencies in implementing the provisions of section
552aTTTT’’). According to those Guidelines, the requirements
contained in the interrelated subsections (e)(1), (2), and (3), as
well as (e)(10), are triggered only if the records are actually
incorporated into a system of records. See Office of Manage-
ment and Budget Privacy Act Implementation: Guidelines
and Responsibilities, 40 Fed. Reg. 28,948, 28,960–66 (July 9,
1975). With respect to subsection 552a(e)(1), for example, the
Guidelines instruct each agency to identify the specific legal
provision that authorizes an agency activity ‘‘with respect to
each system of records which it maintains or proposes to
maintain.’’ Id. at 28,960 (emphasis added). Agencies may
not maintain merely ‘‘useful’’ information, but must ‘‘review
the nature of the information which they maintain in their
systems of records to assure that it is, in fact, ‘relevant and
necessary.’ ’’ Id. (emphasis added). With respect to subsec-
tion 552a(e)(2), the Guidelines explain: ‘‘The practical effect
of this provision is to require that information collected for
inclusion in any system of records TTT should be obtained
directly from the individual whenever practicable.’’ Id. at
28,961 (emphasis added). The Guidelines’ discussion of sub-
section 552a(e)(3) also assumes a system of records, see id. at
28,962, as does their discussion regarding subsection
552a(e)(10): administrative, technical, and physical safeguards
must be ‘‘tailored to the requirements of each system of
records,’’ id. at 28,966 (emphasis added).
Reaching a different conclusion as to subsection 552a(e)(7),
Albright focused on ‘‘Congress’[s] own special concern for the
protection of First Amendment rights.’’ 631 F.2d at 919. As
10
Albright explains, the Privacy Act’s legislative history reveals
the ‘‘preferred status which the Committee intends managers
of information technology to accord to information touching
areas protected by the First Amendment [to] the Constitu-
tion.’’ Id. (quoting S. REP. NO. 93–1183, at 56 (1974), reprint-
ed in 1974 U.S.C.C.A.N. 6916, 6971) (internal quotation marks
omitted). Albright also discusses the virtual ‘‘flat prohibition’’
against collecting any record of an individual’s First Amend-
ment activity, observing that the ‘‘mere inquiry of govern-
ment into an individual’s exercise of First Amendment rights’’
can intrude on an individual’s privacy even if the record is not
incorporated in a system of records. Id. Albright’s recogni-
tion of congressional concern for the ‘‘unwarranted collection
of information as a distinct harm in and of itself’’ refers
specifically to the legislative history regarding subsection
552a(e)(7). Id. (citing S. REP. NO. 93–1183, at 57, reprinted in
1974 U.S.C.C.A.N. at 6971–72). Finally, Albright points out
that the OMB Guidelines explain that subsection 552a(e)(7)
‘‘establishes an even more rigorous standard governing the
maintenance of records regarding the exercise of First
Amendment rights.’’ 631 F.2d at 919 n.5 (quoting 40 Fed.
Reg. at 28,965) (internal quotation marks omitted).
In contrast, none of the other subsections that appellants
invoke involves First Amendment concerns. Moreover, if
these other 552a(e) subsections trigger Privacy Act require-
ments even when the records at issue are not maintained in a
system of records, agencies may be liable for Privacy Act
violations simply by collecting records that they immediately
discard after finding the records neither relevant nor neces-
sary. Cf. Henke, 83 F.3d at 1461 (expressing concern that if
retrieval capability creates a system of records, an agency
may be ‘‘found retrospectively to be maintaining a system of
records it did not even know existed, simply by dint of a
potential use it neither engaged in nor contemplated’’). So at
least in comparison to the other subsections at issue, subsec-
tion 552a(e)(7) proves the exception rather than the rule.
Contrary to the government’s argument, however, the fact
that these other subsections apply only when records are
maintained in a system of records does not end our task, for
11
we believe that a genuine issue of material fact remains as to
whether BOP’s photo file in fact constitutes a system of
records. Recall that a system of records is ‘‘a group of any
records TTT from which information is retrieved by the name
of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.’’ 5
U.S.C. § 552a(a)(5) (emphasis added). The term ‘‘record’’
includes ‘‘any item TTT about an individual TTT that contains
his name, or the identifying number, symbol, or other identi-
fying particular assigned to the individual, such as a finger or
voice print or a photograph.’’ Id. § 552a(a)(4) (emphasis
added). Under the Act’s plain language, then, a ‘‘system of
records’’ may be a group of any records retrieved by an
identifying particular such as a photograph. In other words,
the personal identifier may be the photograph itself.
In asserting that the prisons at issue here maintained no
such system of records, BOP officials failed to appreciate this
point. They assumed that because the photographs were
organized neither by name nor individually assigned number,
they were not organized by personal identifier. For instance,
the McKean SIS declared that duplicate photos with ‘‘investi-
gative or informative value’’ were retained in investigation
case files and other duplicates were ‘‘stored in a box for
approximately six (6) months and then destroyed.’’ Roy Decl.
¶ 9. Yet the SIS also claimed that ‘‘[n]one of the photographs
TTT reviewed by the SIS office TTT [were] retrievable by an
individual inmate as they [were] not filed by any personal
identifier.’’ Id. ¶ 10. As amicus quite properly asks, ‘‘What
purpose would it serve to keep photographs that BOP investi-
gators have purportedly determined have some significant
importance to the security of the institution in a filing system
from which they could not be retrieved by individual?’’ Ami-
cus Br. at 12 n.4. ‘‘Presumably,’’ amicus points out, ‘‘one of
the primary reasons for keeping such a system is to enable
the SIS to track and prevent unlawful activities by individuals
whose photographs provide valuable information to do that.’’
Id. Nor is it clear from the record why McKean officials
retained for six months duplicate photographs having no
investigative value. Although practices vary by prison, the
12
Ray Brook declaration, which is very similar to the McKean
declaration, suggests one such purpose: ‘‘to identify possible
associates or accomplices of an inmate suspected of, or
charged with, committing prohibited acts at FCI Ray Brook.’’
Cross Decl. ¶ 9. This indicates that the duplicate photo-
graphs stored in a box were retrievable by personal identifi-
er—the photograph itself—for how else could SIS staff have
identified a particular inmate’s associates or accomplices if
not by the photograph?
The government argues that even if the photographs were
retrievable by personal identifier, the photograph file would
not constitute a system of records if the photos were not
actually retrieved by personal identifier. The government is
correct. In Henke, we held that ‘‘retrieval capability is not
sufficient to create a system of records’’; the agency must in
practice retrieve information by personal identifier. 83 F.3d
at 1460–61. Although incidental or ad hoc retrieval by per-
sonal identifier does not convert a group of records into a
system of records, where an agency compiles information
about individuals for investigatory purposes, ‘‘Privacy Act
concerns are at their zenith, and if there is evidence of even a
few retrievals of information keyed to [personal identifiers], it
may well be the case that the agency is maintaining a system
of records.’’ Id. at 1461.
On the record before us, it seems clear that at least one
institution, Ray Brook, retrieved photographs by personal
identifier. With respect to the other institutions, because the
declarations rested on a flawed understanding of personal
identifier, they cannot support the grant of summary judg-
ment. We will thus remand for the district court to deter-
mine whether the prisons’ compilation of photos constitutes a
system of records. In considering this issue, the district
court should take into account ‘‘the entirety of the situation,
including the agency’s function, the purpose for which the
information was gathered, and the agency’s actual retrieval
practices and policies.’’ Id.
In reaching this conclusion, we recognize that the district
court did not consider the Ray Brook declaration. According
13
to the district court, appellants lacked standing to challenge
alleged Privacy Act violations at Ray Brook because it was
‘‘undisputed that [ ] Ray Brook did not retain photographs of
any of the [appellants].’’ Maydak I, No. 97–2199, slip op. at 7
n.4. We think the record is not so clear. Ray Brook’s
Special Investigative Supervisor declared: ‘‘I am aware of no
inmate purchased photographs of [appellants] being main-
tained in any SIS file at FCI Ray Brook.’’ Cross Decl. ¶ 10
(emphasis added). As amicus points out, that declaration was
executed in February 2001, and the key statement is phrased
in the present tense. Under Ray Brook’s practice, any
photographs of appellants taken more than six months earlier
would not have been maintained at the time of the declara-
tion. Moreover, because Ray Brook retained the ‘‘duplicate
copy of the inmate purchased photographs,’’ it would not have
maintained the actual ‘‘inmate purchased photographs’’ in any
SIS file. Thus, the declaration cannot support a finding that
Ray Brook never maintained, collected, or used photographs
of appellants. On remand, the district court will need to
consider the Privacy Act claims related to Ray Brook.
Other Privacy Act Considerations
We conclude with a few loose ends. First, the district
court disposed of appellants’ subsection 552a(b) claim on
grounds unrelated to whether BOP maintained a system of
records. Although that subsection prohibits agencies from
disclosing records to any person or to another agency ‘‘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), it expressly permits disclosure of records to
agency employees ‘‘who have a need for the record in the
performance of their duties,’’ id. § 552a(b)(1). Because ap-
pellants offer no reason to think that there is anything
inappropriate about disclosing photographs to BOP officials
so that they can decide whether to release them to inmates,
we will affirm the grant of summary judgment on this issue.
Second, BOP argues that even if appellants have viable
Privacy Act claims, they may not obtain damages because
14
they have failed to show that any violations were ‘‘intentional
or willful.’’ See 5 U.S.C. § 552a(g)(4) (establishing that in a
suit against an agency for failure to comply with specified
Privacy Act provisions, the court must determine that the
agency behaved intentionally or willfully before awarding
damages). Because this issue is a question of fact entirely
undeveloped in the record, however, it provides no basis for
summary judgment at this time. Moreover, should the ques-
tion of damages arise on remand, that issue will be controlled
by Doe v. Chao, in which the Supreme Court held (following
oral argument in this case) that plaintiffs seeking monetary
relief under the Privacy Act must show actual damages. See
124 S. Ct. at 1212.
Finally, the record sheds little light on whether the district
court properly declined to consider asserted Privacy Act
violations at the Cumberland and Allenwood facilities. The
district court found that Maydak was the only appellant
confined at Cumberland and that because Cumberland offi-
cials claim that they never maintained photographs of May-
dak, he had no standing to challenge the alleged Privacy Act
violations there. Maydak I, No. 97–2199, slip op. at 7 n.4.
In their opposition to the government’s motion for summary
judgment and in their brief to this court, however, appellants
allege that Lee also was incarcerated at Cumberland, see
Appellants’ Br. at 30 (citing Lee Decl. ¶ 17), though it is not
at all clear whether he was at Cumberland at times relevant
to this litigation. With respect to Allenwood, the district
court found that appellants lacked standing because ‘‘none
TTT appear[s] to have been confined [there] before the filing
of the lawsuit or the amended complaint.’’ Maydak I, No.
97–2199, slip op. at 7 n.4. Yet the amended complaint
appears to show an Allenwood address for Lee. We will
leave these two issues for the district court to sort out on
remand.
III.
This brings us to appellants’ trust fund claim. Section
1321(b)(1) requires BOP to operate the Inmate Trust Fund
15
‘‘in compliance with the terms of the trust.’’ 31 U.S.C.
§ 1321(b)(1). As the Sixth Circuit has explained, trust funds
may be used ‘‘for any purpose accruing to the benefit of the
inmate body, as a whole, such as amusements, education,
library, or general welfare work.’’ Washington v. Reno, 35
F.3d 1093, 1096 (6th Cir. 1994) (quoting Department of Jus-
tice Circular 2244, Rules Governing the Control of Prison-
ers[’] Funds at the Several Penal and Correctional Institu-
tions (1932)) (internal quotation marks omitted); see also
Federal Bureau of Prisons, U.S. Department of Justice, Pro-
gram Statement 4500.04: Trust Fund/Warehouse/Laundry
Manual, ch. 4504 (1999). BOP may not use trust fund
proceeds to fund security programs because doing so would
deplete funds intended for the benefit of inmates. Washing-
ton, 35 F.3d at 1102. But see 18 U.S.C. § 4043 note (2000)
(giving BOP permission to use the Inmate Trust Fund for
specified Inmate Telephone System expenditures, even if
security-related).
Appellants claim that BOP violated 31 U.S.C. § 1321 by
using trust fund monies to obtain second sets of prints for
investigative purposes. According to the district court, it was
undisputed that spending funds in this manner would violate
section 1321. Maydak I, No. 97–2199, slip. op. at 10; see also
Guynup Decl. ¶ 6 (‘‘Using Inmate Trust Fund[ ] mon[ies] to
pay for additional prints for security reasons is prohibited by
Federal Bureau of Prisons policy.’’). The Bureau admitted
misusing the Trust Fund in three instances at two prisons,
but claimed it subsequently reimbursed the Fund. According
to a Beckley official, although staff believed that duplicate
prints were free, they later discovered (in response to inmate
inquiries) that the photo developer charged one dollar per roll
for the second set of prints. The prison then reimbursed the
Fund one dollar for each such roll. Clifton Decl. ¶ 3. At
McKean, the Acting Controller admitted that money from the
Inmate Trust Fund was used to purchase duplicate prints on
two occasions, but explained that those precise amounts had
been reimbursed. Fitch Decl. ¶ ¶ 4–5. Satisfied that BOP
had fully reimbursed the Fund, the district court declined to
allow discovery on an ‘‘unsubstantiated claim of widespread
misuse,’’ and granted summary judgment to BOP. Maydak
16
II, No. 97–2199, slip op. at 4. We cannot agree with the
district court’s resolution of this issue.
To begin with, having acknowledged that BOP misused the
Trust Fund in two of some six institutions in which appellants
were incarcerated, the district court appeared to draw—
improperly at the summary judgment stage—an inference in
the government’s favor by ‘‘assum[ing]’’ that all prisons were
complying with BOP policy prohibiting the use of trust funds
for duplicate prints. Maydak II, No. 97–2199, slip op. at 3.
The court also seems to have assumed that Beckley and
McKean had fully compensated the Fund by reimbursing one
dollar per roll for the duplicate photographs and that no trust
funds were implicated in those institutions where the Inmate
Trust Fund was not charged for the second set of prints.
But as appellants and amicus rightly point out, duplicate
prints can be obtained only by paying the full cost of purchas-
ing and developing the film—costs wholly charged to the
Fund. Simply reimbursing extra amounts paid for second
sets of prints does not reflect their actual value. Likewise,
they argue, acquiring duplicate prints for investigative pur-
poses, even for free, constitutes an improper use of the Fund
‘‘because the print is not in reality ‘free,’ but a promotional
offer which belongs to the inmates who have paid for the
print out of inmate trust funds.’’ Amicus Br. at 20. When
two people benefit from a ‘‘buy one, get one free’’ promotion,
neither may claim his item is the one free of charge. We will
thus remand for the district court to determine the proper
reimbursement amount and to consider appellants’ claim that
the Trust Fund was misused at other institutions.
IV.
We have considered appellants’ remaining claims relating
to the inmate photograph file and found them to be without
merit. The grant of summary judgment for the government
with respect to the Privacy Act § 552a(b) claim is affirmed.
In all other respects, the judgment of the district court is
17
reversed, and the case is remanded for further proceedings
consistent with this opinion.
So ordered.