United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 2005 Decided September 19, 2006
Reissued December 5, 2006
No. 04-5425
SHEILA CLARKE MCCREADY AND
E. ROBERT MCCREADY, JR.,
APPELLANTS
v.
R. JAMES NICHOLSON, IN HIS CAPACITY AS SECRETARY OF THE
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02219)
Joseph G. Cosby argued the cause for appellants. With him
on the briefs was Richard H. Gordin.
Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: SENTELLE, GARLAND and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Appellant Sheila McCready
claims that her employer, the United States Department of
Veterans Affairs (“VA”), violated various provisions of the
Privacy Act, 5 U.S.C. § 552a, in investigating allegations of
misconduct in her office. McCready alleges that the VA, in the
course of its investigation, created records about her that were
filled with inaccuracies, and that she is entitled under the
Privacy Act to review and amend those records. She also
alleges that the VA improperly disclosed those records to the
media and public, and illegally used them to take adverse action
against her. The District Court granted summary judgment in
favor of the VA on all twelve of McCready’s claims, eight of
which, McCready argues on appeal, should have survived the
VA’s summary judgment motion. For the reasons below, we
affirm the District Court’s judgment in part, reverse in part, and
remand for further proceedings.
I.
In June 1999, the VA’s Inspector General, in response to a
confidential complaint of fiscal mismanagement and operational
abuse, began an audit of the VA’s Office of Congressional
Affairs (the “Office”) and McCready, who had been the head of
the Office since July 1998. On October 21, 1999, the Secretary
of the VA relieved McCready of her responsibilities and
reassigned her to the Office of the Secretary. McCready would
later be reassigned on November 22, 1999, to the Office of the
Under Secretary for Veterans Health Administration. The
Inspector General’s audit produced three documents that have
become the subject of this litigation: (1) a “Draft Audit Report,”
issued only to the Assistant Secretary for Policy and Planning in
3
October 1999;1 (2) a “Final Audit Report,” issued on January 7,
2000, to various VA officials, the Office of Management and
Budget, the General Accounting Office,2 and various
Congressional committees; and (3) an “Addendum Audit
Report,” issued on March 22, 2000, to the same recipients as the
Final Audit Report (collectively, the “Inspector General’s
Reports”). The Inspector General’s Office posted the Final
Audit Report and the Addendum Audit Report on its website in
spring 2000.
On January 19, 2000, twelve days after the Final Audit
Report was released, the Assistant Secretary for Personnel
Management, Edward Powell, sent a memorandum to the
Secretary of the VA (the “Powell Memorandum”), discussing
McCready’s financial management of the Office. That very day,
the Associated Press published an article highly critical of
McCready’s management. A short time later, on February 11,
2000, the Associated Press published a second article about
McCready’s performance. This second article quoted verbatim
from Powell’s private memorandum to the Secretary.
McCready wrote a memorandum to the General Counsel of
the VA on March 17, 2000, responding to the Final Audit
Report’s allegations. McCready similarly responded to the
Addendum Report on March 23, 2000. The Secretary of the VA
asked the General Counsel’s Office and the Office of the
1
The Draft Audit Report is dated October 29, 1999—a date
approximately one week after McCready’s reassignment by the
Secretary.
The “General Accounting Office” is now known as the
2
“Government Accountability Office.” See GAO Human Capital
Reform Act of 2004, Pub. L. No. 108-271, § 8(a), 118 Stat. 811, 814
(2004).
4
Assistant Secretary for Human Resources and Administration to
determine whether the Inspector General’s Reports “provide[]
a basis for an adverse or other action against” McCready. The
General Counsel and Assistant Secretary examined the Inspector
General’s charges and McCready’s responses, and made a
recommendation to the Secretary on July 17, 2000 (the “General
Counsel’s Review”). The VA completely redacted that
recommendation from the copy of the memorandum it provided
to McCready, but the Secretary of the VA wrote to McCready
three days later that “[a]fter reviewing [McCready’s] point-by-
point response to the [Inspector General’s] audit,” he
“concluded that no disciplinary action is warranted” and “[t]he
matter is closed.”
On February 8, 2001, McCready’s counsel requested that
the Inspector General correct several errors in the Final Audit
and Addendum Reports, expunge the entire reports in light of
those errors, or, in the alternative, incorporate McCready’s
response. The Inspector General denied that request.
McCready’s counsel appealed the Inspector General’s decision
to the VA’s General Counsel. Citing the Privacy Act, McCready
again wrote to the Inspector General on March 29, 2001, and
requested various documents relating to the Inspector General’s
audit. The Inspector General responded that “records pertaining
to [McCready] are not maintained in a Privacy Act system of
records” and “therefore, we are processing [McCready’s] letter
as a [Freedom of Information Act] request.”
McCready also requested that various VA offices expunge
the Powell Memorandum. The Director of the VA’s
Information Management Service determined that five offices
within the VA maintained copies of the Powell Memorandum.
The Office of the General Counsel expunged the Powell
Memorandum from its files, but the other offices decided to
retain it. McCready wrote to the remaining four offices and
5
asked them to attach her response to the Powell Memorandum,
or, alternatively, correct the Memorandum based upon her
response, and inform anyone known to possess the
Memorandum of her response and any corrections. The
Inspector General agreed to include McCready’s response in its
files.
McCready and her husband, Robert,3 filed an eleven-count
complaint on October 26, 2001, and a twelve-count amended
complaint on January 24, 2002, alleging that the VA improperly
maintained, disclosed, refused access to, and/or refused to
amend the Inspector General’s Reports, the Powell
Memorandum, and the General Counsel’s Review. In essence,
McCready’s twelve counts sought to compel the VA to correct
alleged inaccuracies in various documents, notify all recipients
(including Congress) that the documents had been amended and
that McCready would not be subject to disciplinary action, and
require the VA to act in accordance with the Privacy Act.
McCready also sought damages, attorneys’ fees, and costs.
The VA requested, without objection from the plaintiffs,
that it be allowed to immediately file what the District Court
deemed “a preliminary motion for summary judgment based on
lack of subject matter jurisdiction.” The District Court granted
that request. Plaintiffs represent in their brief, and the
Government does not contest, that the “parties agreed that the
case would benefit from determining several purely legal issues
before engaging in discovery.” Appellants’ Br. at 11. The
Government filed its motion for summary judgment based on
lack of subject matter jurisdiction, and, shortly thereafter, the
3
The parties have not conclusively addressed what role Robert
McCready has in this litigation. Consequently, in using “McCready,”
we refer only to Sheila McCready and leave it to the parties to clarify
Mr. McCready’s role.
6
Calendar Committee of the District Court reassigned the matter
to a new district judge.
On the merits, the VA argued that the Privacy Act did not
provide the District Court subject matter jurisdiction because the
various documents were not maintained in a “system of
records,” as required by the Act. The VA also argued that,
pursuant to 5 U.S.C. § 552a(k)(2), the Inspector General’s
Reports were exempt from some of the Privacy Act provisions
at issue because they were investigative materials compiled for
law enforcement purposes. Some of McCready’s claims also
failed, the VA contended, because McCready’s complaint did
not establish that any fact compiled by the VA was inaccurate,
and that McCready had not suffered an adverse effect or adverse
determination.
McCready opposed the VA’s motion, arguing that most of
her Privacy Act claims did not require proof of a system of
records. In any event, the Government’s declarations,
McCready contended, were too “conclusory” to support
summary judgment, as they did not, among other things, identify
the systems of records searched. McCready also argued that she
was “entitled to discovery to determine whether the records at
issue are in any ‘system of records.’” In her view, the
Government had not met its burden to show that the Inspector
General’s Reports qualified for an exemption under the Privacy
Act. Finally, McCready contended there were material issues of
fact precluding summary judgment regarding whether the
documents at issue were accurate and whether McCready had
suffered adverse determinations.
McCready also invoked Federal Rule of Civil Procedure
56(f), arguing that several issues raised by the Government went
beyond pure issues of law and required discovery for their
resolution. Plaintiffs’ counsel filed an affidavit identifying
7
several issues needing discovery. The Government argued in
reply that discovery was not necessary. McCready was
permitted to file a sur-reply.
After receiving the parties’ briefs, the District Court sua
sponte ordered additional briefing. The existing briefs, the
Court determined, were “sufficient to allow the Court to decide
all issues except for allegations raised in Count XI of the
Complaint that the VA website and EDMS [Electronic Data
Management System],” a database used by the VA, are “Privacy
Act ‘systems of records.’” A declaration provided by the
Government, however, was “insufficient” to decide that
remaining issue. The District Court invited the parties to file
further “supporting materials” and address “the arguments that
the VA website and EDMS are Privacy Act systems of records.”
The Government argued that the Inspector General’s website
was not a system of records, and that although the “Powell
Memorandum [is] included in the EDMS System of Records,”
it “is not . . . retrievable” or “actually retrieved[] using any
personal identifier belonging to . . . McCready.” McCready
contended that the VA had now “admit[ted] that the EDMS
system is a Privacy Act system of records that includes the
Powell memorandum” and had previously even acknowledged
in the Federal Register that EDMS is a system of records subject
to the Privacy Act. The VA had only submitted one paragraph
of a declaration about the website at issue, which was entirely
conclusory and could not, in McCready’s view, support
summary judgment.
On December 31, 2003, the District Court granted the
Government’s motion for summary judgment. McCready v.
Principi, 297 F. Supp. 2d 178 (D.D.C. 2003). McCready filed
a timely motion to amend the District Court’s judgment under
Federal Rule of Civil Procedure 59(e), arguing that “facts . . .
not available when the parties briefed the Motion for Summary
8
Judgment” demonstrate she was denied a bonus in December
2003 based upon the Final Audit Report and Addendum Report
and thus that she had suffered an adverse employment action,
which she believed was relevant to her Privacy Act claims. The
District Court denied McCready’s motion, holding that “the
denial of a bonus in 2003 is not new evidence that bears upon
the current complaint” and is instead “grounds for a distinct
claim against the agency.” McCready filed a timely notice of
appeal, invoking our jurisdiction under 28 U.S.C. § 1291 to
review the District Court’s final order granting summary
judgment to the VA and subsequent denial of her motion to
amend. See Fed. R. App. P. 4(a)(4).
We review the grant of summary judgment de novo,
applying the same standard as the district court. See, e.g.,
Maydak v. United States, 363 F.3d 512, 515 (D.C. Cir. 2004).
Summary judgment may be granted only where “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). A
dispute over a material fact is “genuine” if the evidence is “such
that a reasonable jury could return a verdict for the nonmoving
party.” George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005)
(quotation marks omitted). At summary judgment, “all
inferences must be viewed in a light most favorable to the non-
moving party.” Tao, 27 F.3d at 638.
II.
The Privacy Act, 5 U.S.C. § 552a, seeks “to protect the
privacy of individuals identified in information systems
maintained by Federal agencies,” Pub. L. No. 93-579, § 2(a)(5),
88 Stat. 1896, 1896 (1974), because such privacy “is directly
affected by the collection, maintenance, use, and dissemination
of personal information by Federal agencies,” id. § 2(a)(1). The
9
Act “represents the compromise reached by Congress between
a citizen’s right to correct inaccurate records and the
government’s need to assemble critical information for
responsible employment decision making.” Dickson v. Office of
Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir. 1987). In furtherance
of those goals, the Privacy 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, 540 U.S. 614, 618 (2004). Put simply, the Act
“safeguards the public from unwarranted collection,
maintenance, use and dissemination of personal information
contained in agency records . . . by allowing an individual to
participate in ensuring that his records are accurate and properly
used.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984).
The Act attempts to strike a balance between an individual’s
interest in correcting inaccurate information and the burdens
placed on agencies in locating such information. To do so, it
imposes a series of substantive and procedural obligations on
federal agencies regarding records they maintain while
simultaneously limiting what records are subject to the Act. At
issue in this case is how those limitations apply to the Inspector
General’s Reports and the Powell Memorandum.
McCready’s claims implicate several subsections of the
Privacy Act, which we briefly summarize. Under subsection (b)
of the Act, 5 U.S.C. § 552a(b), agencies may not “disclose any
record which is contained in a system of records” unless certain
exceptions apply. Id. Even where an agency makes a
permissible disclosure from a system of records, it must “keep
an accurate accounting” of its disclosure under subsection (c),
id. § 552a(c).
Subsection (d) grants an individual the right to review and
10
make a copy of his “record or . . . any information pertaining to
him which is contained in the system.” Id. § 552a(d)(1). If an
individual takes issue with the accuracy of such a “record,” he
may “request amendment of a record pertaining to him.” Id.
§ 552a(d)(2). If the agency refuses his request, he may “request
a review of such refusal.” Id. § 552a(d)(3). Following such
review, if the agency still refuses to amend the record, the
agency must “permit the individual to file . . . a concise
statement setting forth the reasons for his disagreement with the
refusal of the agency” and “notify the individual of the
provisions for judicial review of the reviewing official’s
determination.” Id. § 552a(d)(3).
In order to maintain appropriate confidentiality of personal
information, subsection (e)(2) provides that agencies “that
maintain[] a system of records shall . . . collect information to
the greatest extent practicable directly from the subject
individual when the information may result in adverse
determinations.” Id. § 552a(e)(2). “[P]rior to disseminating any
record about an individual to any person other than an agency,”
agencies must under subsection (e)(6) “make reasonable efforts
to assure that such records are accurate, complete, timely, and
relevant for agency purposes.” Id. § 552a(e)(6).4 Agencies
must also “establish appropriate . . . safeguards to insure the
security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity.” Id.
§ 552a(e)(10).
These subsections begin with qualifying language referring
to the Act’s system of records requirement: “any record which
is contained in a system of records,” id. § 552a(b) (emphasis
4
Subsection (e)(6), however, does not apply to disseminations
made pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et
seq. See id. § 552a(b)(2), (e)(6).
11
added); “with respect to each system of records under [an
agency’s] control,” id.§ 552a(c) (emphasis added); and “[e]ach
agency that maintains a system of records,” id. § 552a(d), (e)
(emphasis added). Some provisions falling under these
subsections make explicit that an alleged violation requires that
the challenged record be within a system of records. See, e.g.,
id. § 552a(d)(1) (addressing a “request by any individual to gain
access to his record . . . which is contained in the system”)
(emphasis added); see Baker v. Dep’t of Navy, 814 F.2d 1381,
1383-84 (9th Cir. 1987) (subsection (d)(1) applies to a record
within a system of records). Other provisions are less explicit.
See, e.g., 5 U.S.C. § 552a(e)(7) (addressing “record[s]
describing how any individual exercises rights guaranteed by the
First Amendment,” but not indicating whether such records must
be within a system of records) (emphasis added); see Albright v.
United States, 631 F.2d 915, 916-17 (D.C. Cir. 1980)
(concluding that a record need not be within a system of records
to bring a claim under § 552a(e)(7)); Clarkson v. IRS, 678 F.2d
1368, 1375-76 (11th Cir. 1982). The Government contends that
all of McCready’s claims require her to prove that the records
she challenges were within a system of records. McCready
recognizes, as she must, that we have held that subsections
(e)(2) and (e)(10) apply to records within a system of records.
Maydak, 363 F.3d at 517-18. With the exception of two claims
we discuss below that were brought pursuant to one specific
civil remedy provision of the Act, 5 U.S.C. § 552a(g)(1)(C),
McCready does not otherwise contest that the provisions of the
Act she invokes apply only to records within a system of
records.
The Act defines “record” in a relatively broad fashion: “any
item, collection, or grouping of information about an individual
that is maintained by an agency . . . 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
12
photograph.” Id. § 552a(a)(4). That is, to be a “record,” an item
must contain “information that actually describes the person in
some way.” Tobey v. NLRB, 40 F.3d 469, 472 (D.C. Cir. 1994).
A “system of records,” on the other hand, is defined more
narrowly under the Act: “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) (emphasis added). The key
limitation in the Act’s definition of “system of records” is its use
of “retrieved.” As the Fifth Circuit has explained, “[t]his
qualifying language in the statute reflects a statutory
compromise between affording individuals access to those
records relating directly to them and protecting federal agencies
from the burdensome task of searching through agency records
for mere mention of an individual’s name.” Bettersworth v.
FDIC, 248 F.3d 386, 391 (5th Cir. 2001).
The Act contains four provisions authorizing civil relief,
which the Supreme Court recently summarized as follows:
Subsection (g)(1) recognizes a civil action for agency
misconduct fitting within any of four categories (the
fourth . . . being a catchall), 5 U.S.C.
§§ 552a(g)(1)(A)-(D). . . . The first two categories
cover deficient management of records: subsection
(g)(1)(A) provides for the correction of any inaccurate
or otherwise improper material in a record, and
subsection (g)(1)(B) provides a right of access against
any agency refusing to allow an individual to inspect a
record kept on him.
***
13
The two remaining categories deal with derelictions
having consequences beyond the statutory violations
per se. Subsection (g)(1)(C) describes an agency’s
failure to maintain an adequate record on an individual,
when the result is a determination “adverse” to that
person. Subsection (g)(1)(D) speaks of a violation
when someone suffers an “adverse effect” from any
other failure to hew to the terms of the Act.
Chao, 540 U.S. at 618-19. McCready’s lawsuit implicates all of
these provisions.
III.
Although the District Court granted summary judgment to
the VA on all twelve counts of McCready’s complaint,
McCready only challenges the Court’s determination with
respect to eight counts. Two counts require us to decide whether
a specific provision of the Privacy Act, 5 U.S.C.
§ 552a(g)(1)(C), authorizes suit only when a record, id.
§ 552a(a)(4), is within a system of records, id. § 552a(a)(5). The
six remaining counts turn on whether the Inspector General’s
Reports and the Powell Memorandum were records within a
system of records.
A. Whether a Claim Under 5 U.S.C. § 552a(g)(1)(C)
Requires a Record to be Within a System of Records.
The Privacy Act’s third civil relief provision, subsection
(g)(1)(C), 5 U.S.C. § 552a(g)(1)(C), provides that an “individual
may bring a civil action against the agency” where “any
agency”:
fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and
14
completeness as is necessary to assure fairness in any
determination relating to the qualifications, character,
rights, or opportunities of, or benefits to the individual
that may be made on the basis of such record, and
consequently a determination is made which is adverse
to the individual.
Id. (emphasis added). The text of subsection (g)(1)(C) does not
incorporate or otherwise refer to the Act’s definition of a
“system of records” found in § 552a(a)(5).
In contrast, for example, subsection (g)(1)(B), 5 U.S.C.
§ 552a(g)(1)(B), applies to a specific subsection of the Act that
incorporates the Act’s system of records requirement. See id.
(providing civil relief for a “refus[al] to comply with an
individual request under subsection (d)(1) of this section”); id.
§ 552a(d)(1) (addressing a “request by any individual to gain
access to his record or to any information pertaining to him
which is contained in the system”) (emphasis added); see
Clarkson, 678 F.2d at 1375-76 (“The language of paragraph
(d)(1) expressly limits its applicability to records contained
within a system of records.”); cf. Dickson, 828 F.2d at 39
(“[T]he statute expressly limits the judicial remedies available
under section (g)(1)(A) and (B) to violations of other named
sections of the Act. Section (C) also could have been so
restricted [but was not].”).
Thus, to bring a claim under § 552a(g)(1)(C), an individual
need not address how agencies maintain their systems of
records, but instead must show that:
(1) [she] has been aggrieved by an adverse
determination; (2) the [agency] failed to maintain [her]
records with the degree of accuracy necessary to assure
fairness in the determination; (3) the [agency’s]
15
reliance on the inaccurate records was the proximate
cause of the adverse determination.
Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir.
1996) (emphasis added).5
Count VIII of McCready’s amended complaint alleges that
the VA and Inspector General failed to maintain the Inspector
General’s Reports and the Powell Memorandum with accuracy,
relevance, timeliness, and completeness, as required by
§ 552a(g)(1)(C), resulting in “determination[s] . . . which [are]
adverse” to McCready. Count V of McCready’s amended
complaint makes substantially the same allegations, but invokes
§ 552a(e)(5). The VA concedes, however, that Count V is also
predicated upon the civil relief provision in subsection (g)(1)(C).
In addressing McCready’s (g)(1)(C) counts, the District
Court recited the statutory text of that subsection, which
contains no “system of records” requirement. The Court then
turned to a footnote in Hubbard v. EPA, 809 F.2d 1, 6 n.8 (D.C.
Cir. 1986), which the District Court stated “referenc[es] in dicta
the need for a record to be within a ‘system of records’” in order
to pursue a § 552a(g)(1)(C) claim. 297 F. Supp. 2d at 186. The
District Court distinguished Dickson, 828 F.2d at 39, one of our
cases encouraging a plain reading of subsection (g)(1)(C):
Because the record in Dickson was indisputably
5
Deters describes a fourth element: that an agency “acted
intentionally or willfully in failing to maintain accurate records.” 85
F.3d at 657 (discussing subsection (g)(4)). This fourth element is only
necessary to prevail upon a claim for actual damages, costs, and
attorneys’ fees under subsection (g)(4), as opposed to other forms of
relief available under the Act. 85 F.3d at 657; see Chao, 540 U.S. at
619; Maydak, 363 F.3d at 521.
16
contained in a “system of records,” the Circuit Court
did not address this requirement. It would be contrary
to the balance of the statute to extract the Dickson
language from its context and to find that the
government has waived its immunity for literally “any
record concerning any individual” that may be
inaccurate. The Court finds that a civil claim under
subsection (g)(1)(C) must rest on a record contained in
a system of records.
297 F. Supp. 2d at 187 (emphasis added). McCready’s claims
predicated upon subsection (g)(1)(C) could thus not go forward,
the District Court concluded, without proof that she was
challenging a record within a system of records.
As we have seen, however, the text of subsection (g)(1)(C)
does not require that a “record,” see 5 U.S.C. § 552a(a)(4), be
within a “system of records,” see id. § 552a(a)(5). The VA has
not argued that following the plain text of § 522a(g)(1)(C)
would be “absurd.” See, e.g., Friends of Earth, Inc. v. EPA, 446
F.3d 140, 146 (D.C. Cir. 2006). Nor could the VA meet the
“exceptionally high burden” of doing so. Id. (discussing Engine
Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996)).
The Privacy Act’s distinction between a claim that requires
a system of records and a claim under § 552a(g)(1)(C) that does
not require a system of records makes perfect sense. The Act
attempts to strike a balance between protecting the
Government’s need to maintain accurate information about an
individual and granting the individual access to such information
to verify its accuracy. See Carton v. Reno, 310 F.3d 108, 111
(2d Cir. 2002). The system of records requirement protects
agency interests by shielding agencies from costly fishing
expeditions. See Bettersworth, 248 F.3d at 391. An agency can
only be held accountable under Privacy Act provisions tied to a
system of records requirement for records it can easily retrieve
17
consistent with its day-to-day practice of information
management—records found within a “system of records.” This
legitimate concern with preserving an agency’s resources is
simply not present where, as under a (g)(1)(C) claim, an
individual and an agency already have identified the record at
issue, that record is therefore easily retrieved, and the only issue
is the accuracy of the record.
Nor would following the plain text of subsection (g)(1)(C)
lead to an absurdly broad form of civil relief. Subsection
(g)(1)(C) specifically requires a showing that a “determination”
has been “made which is adverse to the individual.” 5 U.S.C.
§ 552a(g)(1)(C). Where an individual can show that an adverse
determination has been made based upon a specific, inaccurate
record, Congress may well have thought—as the text of its
statute indicates—that inquiring into whether the record was
within a “system” was irrelevant. Quite simply, the text of the
statute conditions relief upon a concrete, adverse determination.
Congress could have chosen to apply the system of records
requirement to subsection (g)(1)(C) as a limiting principle
instead, but it did not.
Where an aggrieved person can identify a specific
document, prove its inaccuracy, and demonstrate that the
document was used against her, all the values of the Act are
vindicated. As a subsection (g)(1)(C) claim is predicated upon
an individual simply challenging the accuracy of a particular
document used against her, there was no need for subsection
(g)(1)(C) to incorporate a system of records requirement and
thereby prevent a fishing expedition. The fish has already been
caught at no expense to the agency. Thus, subsection (g)(1)(C)
applies to “any record,” and not “any record within a system of
records,” as the VA would have us alter the statute. If the VA
believes that this provision of the Privacy Act is too burdensome
in requiring it to accurately maintain a record specifically
brought to its attention, and thinks that the Act should first
18
require individuals to demonstrate the existence of a system of
records, the VA is free to raise that concern with Congress.
Congress can amend the Privacy Act; we, however, must follow
its text.
B. The Inspector General’s Reports.
Six counts of McCready’s complaint invoke provisions of
the Privacy Act that McCready concedes apply to a record
within a system of records.6 These counts all challenge the
Inspector General’s Reports, although they also challenge the
Powell Memorandum, as discussed below. McCready’s appeal
requires us to address essentially four issues involving the
Inspector General’s Reports: (1) whether the Inspector General’s
website, which contains copies of two of the reports, constitutes
a system of records; (2) whether the fact that the public can
search the Inspector General’s website by name or individual
identifier makes the website a system of records; (3) whether the
Inspector General’s Office maintains the reports in another
system of records; and (4) whether several other offices of the
VA maintain the Inspector General’s Reports in a system of
records.
In seeking summary judgment, the Government argued that
“[n]either the Draft Audit Report, the Final Audit Report nor the
6
Count I is predicated upon § 552a(d), Count VI upon
§ 552a(b), Count VII upon § 552a(e)(6), Count IX upon
§ 552a(e)(10), Count X upon § 552a(c), and Count XII upon
§ 552a(e)(2). McCready also argues that this Court in “Maydak held
that most of the provisions in § 552a(e) apply only to records that can
be found in a system of records” and, in doing so, “neglected the plain
language of § 552a(e).” Appellants’ Br. at 44-45. Maydak, 363 F.3d
at 517-18. McCready takes issue with Maydak’s holding, but
acknowledges that her beef with Maydak is one this panel cannot
address anew. Appellants’ Br. at 46.
19
Addendum Audit Report are, or ever have been maintained in
any of the ‘systems of records.’” The VA attached to its
summary judgment motion a declaration by Jon Wooditch, the
Assistant Inspector General for Management and
Administration, which attested that the Inspector General’s
“website is not a Privacy Act system of records because its
purpose was to provide electronic access to . . . reports and other
documents that were deemed by the Freedom of Information Act
staff and [the Inspector General’s] counsel to be releasable [sic]
to the public.” In opposition, McCready argued that Wooditch’s
declaration was conclusory. This exchange prompted the District
Court to request “information sufficient to allow the Court to
decide” whether “the VA website . . . [is a] Privacy Act
‘system[] of records.’”
In response, the VA submitted a revised declaration from
Mr. Wooditch attesting that personnel do not use the website to
“to retrieve . . . records [of the Inspector General] or documents,
either by use of a personal identifier or otherwise.” The District
Court concluded that this second Wooditch declaration was
“detailed and non-conclusory” and “demonstrate[d] that the
[Inspector General’s] Reports are not in any [Office of the
Inspector General] system of records” and “establish that these
[Inspector General’s] Reports are maintained and retrieved by
the title of the report or the report number, and not by Ms.
McCready’s name or other personal identifier.” 297 F. Supp. 2d
at 188. McCready continues to argue on appeal that Wooditch’s
declaration is conclusory.
Having reviewed the revised Wooditch declaration, we
agree with the District Court, however, that the VA is entitled to
summary judgment on the issue of whether the Inspector
General’s Office retrieves records from its website “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). The Wooditch declaration attests that it does not,
20
and McCready has proffered no evidence to the contrary.
McCready sought further discovery on this issue. But given the
information McCready already received from the revised
Wooditch declaration, the burden McCready’s request would
place on the VA, and McCready’s failure to make a sufficient
showing of what specifically the VA could further disclose
about the website, we cannot say that it was an abuse of
discretion, see Diamond Ventures, LLC v. Barreto, 452 F.3d
892, 898 (D.C. Cir. 2006), to not permit additional discovery on
this score.
McCready nonetheless suggests that even if the Inspector
General’s website is not used internally to retrieve records via
an individual identifier, the public could nonetheless do so using
the website’s search function. We agree with the District Court,
however, that, under § 552a(a)(5), the “practice of retrieval by
name or other personal identifier must be an agency practice to
create a system of records and not a ‘practice’ by those outside
the agency.” 297 F. Supp. 2d at 199 (emphasis added). Our
case law has said as much. See Henke v. U.S. Dep’t of
Commerce, 83 F.3d 1453, 1461 (D.C. Cir. 1996) (inquiring
whether “there is evidence that an agency in practice retrieves
information about individuals by reference to their names”)
(emphasis added); Maydak, 363 F.3d at 520 (“the agency must
in practice retrieve information by personal identifier”)
(emphasis added; quotation marks and citation omitted). The
Privacy Act constrains agencies regarding their records and
imposes obligations on agencies when they use such records.
See 5 U.S.C. § 552a(a)(5) (limiting systems of records to
“group[s] of . . . records under the control of any agency”)
(emphasis added); Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896,
1896 (1974) (“[I]n order to protect the privacy of individuals
identified in information systems maintained by Federal
agencies, it is necessary . . . to regulate the collection,
maintenance, use, and dissemination of information by such
agencies.”) (emphasis added).
21
Beyond the Inspector General’s website, McCready argues
that the District Court should have allowed her discovery
regarding whether the Inspector General maintained the
Inspector General’s Reports in any other system of records. “At
the summary judgment stage, where the agency has the burden
to show that it acted in accordance with the statute, the court
may rely on a reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring that
all files likely to contain responsive materials (if such records
exist) were searched.” Valencia-Lucena v. U.S. Coast Guard,
180 F.3d 321, 326 (D.C. Cir. 1999) (quotation marks and
alterations omitted) (discussing an agency’s analogous
obligation under the Freedom of Information Act). The District
Court did so here and concluded that the revised Wooditch
declaration “demonstrate[s] that the [Inspector General’s]
Reports are not in any [Office of the Inspector General] system
of records” and “establish that these [Inspector General’s]
Reports are maintained and retrieved by the title of the report or
the report number, and not by Ms. McCready’s name or other
personal identifier.” 297 F. Supp. 2d at 188. “[I]f a review of
the record raises substantial doubt, particularly in view of well
defined requests and positive indications of overlooked
materials, summary judgment is inappropriate.”
Valencia-Lucena, 180 F.3d at 326 (quotation marks and citations
omitted). We cannot say that McCready has raised substantial
doubt about whether the Inspector General’s office otherwise
maintains the Inspector General’s Reports in a system of
records. The revised Wooditch declaration establishes that it
does not.
Finally, McCready contends that she was entitled to
additional discovery to determine whether the Inspector
General’s Reports were within any other systems of records
maintained by other units of the VA, other than the Office of the
Inspector General. In granting summary judgment to the VA on
Count I and a count not at issue on appeal, the District Court
22
held:
[b]ecause the only Privacy Act request and
[administrative] appeal at issue concerning the
[Inspector General’s Reports] were directed
exclusively to the [Office of the Inspector General],
only a possible system of records within [the Office of
the Inspector General] is relevant on review of the
administrative record. Even if the [Inspector General’s
Reports] are in systems of records over which other
VA offices have jurisdiction, there is no administrative
“determination” from such offices before the Court.
297 F. Supp. 2d at 188. That is, because McCready directed her
requests regarding the Inspector General’s Reports to the
Inspector General’s Office and appealed that request, “discovery
into records that might be maintained in other offices of VA”
was not necessary because “there is no outstanding request or
final agency action.” Id. at 189.
Count I of McCready’s complaint seeks relief under
§ 552a(d)(3) and its corresponding judicial review provision,
§ 552a(g)(1)(A). Subsection 552a(g)(1)(A) provides a civil
remedy only where an agency “makes a determination under
subsection (d)(3) . . . not to amend an individual’s record,” id.,
and we have accordingly held that an individual must exhaust
administrative remedies before seeking relief under subsection
(g)(1)(A). Dickson, 828 F.2d at 40. “[P]remature review
. . . would invade the obligation to make policy judgments
committed in the first instance to the record keeping agency.”
Id. Because McCready directed her request for access and
amendment of the Inspector General’s Reports to the Office of
the Inspector General and appealed that request, the District
Court correctly concluded that Count I is limited to the Inspector
General’s Office and further discovery as to the activities of
other parts of the VA would be irrelevant. McCready has not
23
argued that she exhausted her remedies with respect to any other
request brought under subsection (g)(1)(A).
Counts VI, VII, IX, X, and XII, however, are brought
pursuant to subsections (b), (c), (e)(2), (e)(6), (e)(10), and
(g)(1)(D) of the Act, which do not require exhaustion. See
Nagel v. U.S. Dep’t of Health, Educ. and Welfare, 725 F.2d
1438, 1441 n.2 (D.C. Cir. 1984). The District Court did not
explain why it denied McCready discovery to determine whether
the records at issue were contained in systems of records within
these other offices. As McCready notes, distribution lists for the
Final Audit and Addendum Reports indicate that both were sent
to several VA offices. We by no means suggest that an agency
must, on its own motion, scour files not likely to contain
relevant materials and never put at issue by a plaintiff. But these
distribution lists constitute “‘positive indications of overlooked
materials.’” Valencia-Lucena, 180 F.3d at 326 (quoting
Founding Church of Scientology v. Nat’l Sec. Agency, 610 F.2d
824, 837 (D.C. Cir. 1979)).
When “we review a district court’s decision . . . for an abuse
of discretion, it is imperative that a district court articulate its
reasons.” EEOC v. Nat’l Children’s Center, Inc., 98 F.3d 1406,
1410 (D.C. Cir. 1996). With no evidence from the Government
addressing whether the offices set out in the distribution lists
maintain these reports within a system of records, and no stated
basis for denying discovery on this front, we must remand for
further proceedings so that the District Court may either grant a
“reasonable opportunity to complete discovery,” Khan v.
Parsons Global Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir.
2005) (quotation marks omitted), or explain why discovery is
not warranted on other grounds.
C. EDMS Database.
All but one of McCready’s counts challenging the Inspector
24
General’s Reports also raise claims about the Powell
Memorandum.7 At issue is whether the Powell Memorandum
was within a system of records, as that term is defined by
§ 552a(a)(5)—specifically EDMS. According to the VA’s
declarations, EDMS is a “Department-wide tracking system
primarily used for managing the workflow processing of the 25-
30,000 pieces of correspondence received yearly at the VA
Central Office in Washington, D.C.” EDMS is:
organized into a three-part electronic folder concept
with every folder being automatically numbered upon
creation by an authorized user. The first part of the
folder shows folder data such as date entered,
correspondent, subject, due date, and other identifying
information. The second part of the folder shows what
attachments, if any, were scanned into the system . . . .
The third part of the folder shows the . . . workflow
used to process the folder, usually by organizational
elements from the delegating office to the responsive
office.
A declaration from the individual who typed the Powell
Memorandum indicates that she “realized the sensitive nature of
the document [and thus] entered into EDMS . . . only enough
information to identify the document.” She did “not scan the
Powell Memorandum into EDMS” and indicated only that the
“completed package was signed and to be hand-carried to 00,
the internal mail code symbol for the Office of the Secretary.”
When asked to do so for purposes of this litigation, a
representative of the Secretary of the VA searched for the
7
Count I is predicated upon § 552a(d); Count VI upon
§ 552a(b); Count VII upon § 552a(e)(6); Count IX upon
§ 552a(e)(10); and Count X upon § 552a(c). Count XII does not
address the Powell Memorandum.
25
Powell Memorandum in EDMS using the names of “Sheila
McCready or Robert McCready or any other personal identifier
assigned to them.” That effort was fruitless, although the
representative did not address what terms she tried when
inputting “any other personal identifier” assigned to McCready.
But when given an “EDMS folder number” from counsel
referencing the Powell Memorandum, the representative was
able to find a reference in EDMS to a specific file folder
containing a hard copy of the Memorandum, which she then
retrieved from a VA storage area.
The District Court concluded that the Powell Memorandum
is not within a system of records because although “an EDMS
folder was created for the Powell Memorandum for tracking
purposes,” the “document itself was never scanned into EDMS
electronically.” 297 F. Supp. 2d at 196 (emphasis in original);
see also id. at 198. As McCready notes, however, the VA’s
notice in the Federal Register describes EDMS as containing
both electronic and paper files, see Privacy Act of 1974; New
System of Records—Automated Electronic Document
Management System (EDMS)—VA, 65 Fed. Reg. 25534, 25535
(May 2, 2000) (“EDMS Notice”) (“Records are maintained in
electronic and paper form depending on the nature of the
materials received, background information compiled, and/or
response sent.”), and indicates that “[p]aper correspondence
records are maintained in file cabinets under the control of the
office responsible for processing the correspondence item,” id.
Thus, contrary to the District Court’s conclusion, the EDMS
Notice does not require that a record be scanned into EDMS in
order to be part of the system. Indeed, the Government’s own
declaration indicates that EDMS performs as described in the
EDMS Notice. As noted, when given an EDMS folder number
used to track the Powell Memorandum, a representative of the
Secretary was able to pull up an entry directing her to a file
folder, which contained the Powell Memorandum. The VA is
thus not entitled to summary judgment on this ground.
26
Before us, the VA mentions in a sentence that the Powell
Memorandum was not scanned into EDMS, but does not address
the EDMS Notice. Instead, the VA focuses on another argument.
The VA argues that it is entitled to summary judgment because
the “Powell Memorandum was neither retrieved, nor is
retrievable, using any unique personal identifier assigned to
either plaintiff in this case.”8 Appellee’s Br. at 43-44. In the
VA’s view, “[a] disclosure in violation of the Privacy Act
cannot occur unless a plaintiff’s record was actually retrieved by
reference [to] the plaintiff’s personal identifier.” Appellee’s Br.
at 43 (citing Bechhoefer v. U.S. Dep’t of Justice, 179 F. Supp. 2d
93, 95-101 (W.D.N.Y. 2001); Barhorst v. Marsh, 765 F. Supp.
995, 999-1000 (E.D. Mo. 1991)).
Our own precedent has explained that “‘retrieval capability
is not sufficient to create a system of records’; the agency must
in practice retrieve information by personal identifier.” Maydak,
363 F.3d at 520 (quoting Henke, 83 F.3d at 1460-61) (emphasis
added). The Privacy Act defines a “system of records” as “a
group of any records under the control of any agency from
8
In discussing the fact that the Powell Memorandum had not
been scanned into EDMS, the District Court noted that “the Powell
Memorandum does not exist in any searchable format within EDMS
and cannot be retrieved either electronically or in manual form
through the use of any personal identifier.” 297 F. Supp. 2d at 196-97
(emphasis added). The District Court’s determination that the Powell
memorandum cannot be retrieved by individual identifier appears to
be based upon the Court’s earlier conclusion that the Powell
Memorandum had not been scanned into the EDMS system. The
District Court did not develop the argument the VA now makes: even
if “the Powell Memorandum was ‘part’ of the EDMS system of
records, . . . it did not exist in any searchable format within the EDMS
system, and could not be retrieved either electronically or in manual
form through the use of any personal identifier assigned to either
appellant.” Appellee’s Br. at 44-45.
27
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).
Analyzing that definition, we noted in Henke that “Congress
used the words ‘is retrieved,’ which suggest strongly that a
group of records should generally not be considered a system of
records unless there is actual retrieval of records keyed to
individuals.” 83 F.3d at 1460. Thus, in Henke, we looked to an
agency’s actual retrieval practices in analyzing whether an
agency “was in fact maintaining a system of records with respect
to” an individual. Id. at 1461 (emphasis added). We concluded
that an agency was not in practice maintaining a system of
records among “its paper files and computer databases” where
there was only evidence of “a few isolated incidents of retrieval”
using a personal identifier. Id. at 1461.
McCready suggests that the Government’s argument heads
down a completely inapplicable path of case law. McCready
does not seek to “create a system of records.” Maydak, 363 F.3d
at 520 (quoting Henke, 83 F.3d at 1460) (emphasis added).
Instead, McCready notes that EDMS has already been
designated as a system of records, as required by the Privacy
Act, see 5 U.S.C. § 552a(e)(4). Specifically, the VA’s May
2000 designation in the Federal Register indicates that EDMS is
a “new system of records” and that “[r]ecords [are] maintained
in this system of records in electronic and paper form.” 65 Fed.
Reg. at 25534. If the VA has already acknowledged that EDMS
is a “system of records” subject to the Privacy Act, why,
McCready argues, should the Court now delve into the
definition of system of records, see 5 U.S.C. § 552a(5), and
determine whether the Powell Memorandum is “retrieved by . . .
some identifying . . . particular,” id., assigned to McCready? In
McCready’s view, EDMS contains a tracking folder for the
Powell Memorandum that constitutes a record, EDMS is a
designated system of records because at least some of its records
are retrievable by an identifying particular, and it matters not
28
that this individual record about McCready is not retrievable
from this formal system of records by an identifying particular.
McCready makes a fair point. The statutory definition of
“system of records” looks to whether “information is retrieved”
from “a group of any records” by an “identifying particular
assigned to the individual.” 5 U.S.C. § 552a(a)(5) (emphasis
added). There is no dispute that the bulk of documents in
EDMS are retrieved by individual identifier, i.e., this group of
records is retrieved by individual identifier. The VA’s
designation in the Federal Register acknowledges that EDMS
meets the statutory definition of system of records, so why now
can the VA litigate whether a particular record is retrieved by
individual identifier? Henke itself provides support for this
view, noting that “if there is evidence of even a few retrievals of
information keyed to individuals’ names, it may well be the case
that the agency is maintaining a system of records.” 83 F.3d at
1461. The Fourth Circuit has also evidenced support for
McCready’s position, finding “unconvincing” the argument
“that since [a particular] document was not in practice actually
retrieved ‘by the name of the individual or by some identifying
number,’ 5 U.S.C. § 552a(a)(5), it cannot be a record within a
‘system of records’” where “there appears to exist already a
formal system of records of which the [record at issue] may be
a part.” Williams v. Dep’t of Veterans Affairs, 104 F.3d 670,
676 (4th Cir. 1997) (emphasis added). Indeed, one of the very
district court cases relied upon by the VA discusses this
important distinction, noting that at issue there was a “letter
[that] never became incorporated into [an agency’s] formal
recordkeeping system.” Bechhoefer, 179 F. Supp. 2d at 97.9
9
The VA’s argument produces some strange statements in its
brief: “Although the Powell Memorandum was ‘part’ of the EDMS
system of records, . . . it . . . could not be retrieved either electronically
or in manual form through the use of any personal identifier assigned
29
Nonetheless, despite the parties’ opposing positions, we can
leave resolution of this dispute to a case where it is truly
implicated, as it is ultimately not necessary to resolving the
VA’s summary judgment motion. The VA’s argument—that the
Powell Memorandum “was neither retrieved, nor is retrievable,
using any unique personal identifier,” Appellee’s Br. at 43—is
in conflict with the record. The EDMS entry for the Powell
Memorandum contains in a field labeled “Subject/Keyword” the
entry “PDAS for OCA.” McCready attests that she is the only
person to have held the title “PDAS for OCA,” i.e., Principal
Deputy Secretary for the Office of Congressional Affairs, which
the VA has not challenged at this stage. Thus, the VA is not
entitled to summary judgment on the ground that the Powell
Memorandum is not retrievable by individual identifier, even
assuming arguendo a record within a formally designated
system of records, from which records are generally retrieved by
individual identifier, must itself by retrievable by an individual
identifier. We must reverse the District Court’s grant of
summary judgment to the VA on Counts I, VI, VII, IX, and X
insofar as they challenge the Powell Memorandum.
IV.
Finally, we must address a few odds and ends. As an
alternative holding, the District Court concluded that McCready
“offer[s] no facts to support the argument that adverse
determinations have been made or to specify what they might
be.” 297 F. Supp. 2d at 193. Several of McCready’s counts
require her to prove the existence of an “adverse determination,”
to either appellant . . . .” Appellee’s Br. at 44-45 (citing 5 U.S.C.
§ 552a(a)(4) (the statutory definition of system of records)). Thus,
under the Government’s somewhat confusing reading of the Act, the
Powell Memorandum was “part” of a system of records, which was
nonetheless not a system of records.
30
see 5 U.S.C. § 552a(g)(1)(C), or “adverse effect,” see id.
§ 552a(g)(1)(D). See Toolasprashad v. Bureau of Prisons, 286
F.3d 576, 584 (D.C. Cir. 2002) (noting, with respect to
§ 552a(g)(1)(C), that the “Act provides little guidance as to the
intended breadth of the phrase ‘determination . . . adverse to the
individual,’” but holding “in the prison context [that] ‘adverse
determination’ denotes, at least, a decision that negatively
affects an inmate’s rights”) (quotation marks and alterations
omitted). The District Court did not explain, in denying
McCready’s Rule 59(e) motion, why McCready’s evidence of
being denied a bonus because of the Inspector General’s reports
would have to be pursued through “a distinct claim against the
agency,” which, McCready argues, might be barred by claim or
issue preclusion. “Because this issue is a question of fact
entirely undeveloped in the record, . . . it provides no basis for
summary judgment at this time.” Maydak, 363 F.3d at 521. We
express no opinion on the legal sufficiency of any adverse
effects or determinations suffered by McCready and leave this
issue for resolution by the District Court upon a more developed
record.
The District Court also held that McCready failed to show
that any of the statements she challenged were inaccurate
statements of fact. We agree with the District Court that,
generally speaking, the Privacy Act “allows for correction of
facts but not correction of opinions or judgments.” 297 F. Supp.
2d at 190-92 (citing Reinbold v. Evers, 187 F.3d 348, 361 (4th
Cir. 1999); Peller v. Veterans Admin., 790 F.2d 1553, 1555
(11th Cir. 1986); Blevins v. Plummer, 613 F.2d 767, 768 (9th
Cir. 1980) (per curiam)). But “[a]s long as the information
contained in an agency’s files is capable of being verified, then,
under subsection[] . . . (g)(1)(C) of the Act, the agency must take
reasonable steps to maintain the accuracy of the information to
assure fairness to the individual.” Sellers v. Bureau of Prisons,
959 F.2d 307, 312 (D.C. Cir. 1992) (analyzing Doe v. United
States, 821 F.2d 694, 699 (D.C. Cir. 1987) (en banc)).
31
One of the statements McCready takes issue with alleges
that McCready did not work on May 4, 1999 because she made
calls from her “government issued cell phone” to the Office.
McCready informed the Inspector General, however, that she
was attending a Senate Finance Committee hearing that day,
along with other high-level staff from the VA and several
witnesses. The District Court concluded that the Inspector
General was merely expressing an “opinion” on what
McCready’s telephone calls probably meant, but we fail to see
how McCready’s presence at a meeting is not a “fact” capable
of verification and why the VA need not correct that fact or
show that it took reasonable steps to verify its accuracy. Either
McCready’s witnesses will attest that she attended the meeting,
she did not, or they cannot remember. But the VA has not
explained why contacting these witnesses, or otherwise taking
other “reasonable steps” to verify the Inspector General’s
assertion about May 4, was not necessary in light of McCready
having brought her attendance at the committee meeting to the
Inspector General’s attention. See Toolasprashad, 286 F.3d at
583.
The VA argued for summary judgment on this ground
generally because McCready
produced no admissible evidence to support the claim
that there is any fact about [McCready] in any of the
subject records that is inaccurate, irrelevant, untimely,
or incomplete. That plaintiffs claim they need
discovery to figure that out . . . suggests that this entire
lawsuit is frivolous, and that, in filing it, plaintiffs are
seeking one big fishing expedition of VA
employees . . . .
The VA now asks us to weigh in on various arguments that the
Inspector General’s Reports were not inaccurate under the
Privacy Act. Because McCready has brought at least one
32
potential inaccuracy to our attention and because the record is
wholly undeveloped on the inaccuracy issue generally,
McCready should be afforded “a ‘reasonable opportunity’ to
complete discovery before responding to [the Government’s]
summary judgment motion.” Khan, 428 F.3d at 1087 (quotation
marks omitted).
The VA also briefly argues that the Inspector General’s
Reports “would have been exempt from any alleged Privacy Act
requirements giving rise to Count I.” Appellee’s Br. at 34. The
VA asserts that “the two . . . systems of records [belonging to
the Office of the Inspector General] that would be even
potentially relevant here,” consist of “investigatory material
compiled for law enforcement purposes,” 5 U.S.C. § 552a(k)(2),
and are thus exempt from certain provisions of the Privacy Act.
Appellee’s Br. at 34. Because the District Court did not reach
this ground and the record has not been developed as to how
these systems of records are relevant to this litigation, we
decline to reach it as an alternate ground for affirmance. See
Bechhoefer v. DEA, 209 F.3d 57, 63 (2d Cir. 2000) (“We decline
the DEA’s invitation to affirm on either of these alternative
bases. Although the DEA raised both issues in its motion for
summary judgment, the District Court did not rule on either
issue. Moreover, both issues turn in large part on information
that is within the control of the DEA, and as of yet there has
been no discovery.”) (footnote omitted).
Addressing Count VI, the District Court further held that
“[t]o maintain any action based on the Powell Memorandum,
Ms. McCready must overcome one additional hurdle.
Subsection 552a(g) of the Privacy Act requires proof that the
agency acted in a manner that was ‘intentional or willful.’ 5
U.S.C. § 552a(g)(4).” 297 F. Supp. 2d at 196. Section
552a(g)(4), however, only addresses what McCready would
need to show in order to prevail upon a “claim for money
damages,” Deters, 85 F.3d at 657; see Chao, 540 U.S. at 619;
33
Maydak, 363 F.3d at 521, and does not address other forms of
relief available under the Act. We express no opinion on
whether McCready will be able to show that the VA’s actions
were intentional or willful, and leave the resolution of that issue
for the District Court in the first instance upon a more developed
record.
Finally, relying upon Chapman v. National Aeronautics &
Space Administration, 682 F.2d 526 (5th Cir. 1982), McCready
argues that once the VA has used a record to “make a
determination adverse to an individual, the Privacy Act applies
to that record with the same force as though it were in a system
of records.” Appellants’ Br. at 28. Chapman does not provide
a basis, however, for departing from the text of the Privacy Act
and exempting provisions of the Act from the “system of
records” requirement based upon an agency’s adverse
determination. Chapman addressed Privacy Act claims brought
under § 552a(g)(1)(C), see 682 F.2d at 527-28, which, as we
have discussed, does not have a system of records requirement.
V.
For the foregoing reasons, we affirm in part, reverse in part,
and remand for further proceedings.
So ordered.