Sussman v. United States Marshals Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2007 Decided July 31, 2007

No. 06-5085

MICHAEL SUSSMAN,
APPELLANT

v.

UNITED STATES MARSHALS SERVICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv00610)

Sean J. Hartigan, pro hac vice, argued the cause for
appellant. On the briefs was Michael Sussman, pro se.

Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Laurie Weinstein and Michael J. Ryan, Assistant U.S. Attorneys,
entered appearances.

Before: SENTELLE, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.
 2

BROWN, Circuit Judge: Citing the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act of 1974, id.
§ 552a, Michael Sussman sought the release of various docu-
ments maintained by the United States Marshals Service
(“Marshals Service” or “USMS”). Sussman also asserted
fourteen claims for damages against the Marshals Service
predicated on alleged violations of the Privacy Act. The district
court granted summary judgment to the Marshals Service on all
these claims, and Sussman appealed. For reasons detailed
below, we now affirm in part, reverse in part, vacate in part, and
remand for further proceedings.

I

On July 19, 2002, Michael Sussman wrote to the Depart-
ment of Justice (“DOJ”) requesting disclosure, pursuant to FOIA
and the Privacy Act, of “[a]ny and all records relating to me,
mention[ing] me, or otherwise pertain[ing] to me” that were held
by any of nine listed agencies, including the Marshals Service.
In response to Sussman’s letter, the Marshals Service began an
investigation. Eventually it announced it had found only one
document, a four-page “Notice of Invocation of Rights”
Sussman had sent to a judge’s home. The Marshals Service
disclosed this Notice to Sussman with one redaction, which
Sussman has not challenged.

In an administrative appeal, Sussman argued the Marshals
Service had performed an inadequate search. As evidence, he
cited a “Wanted Poster” it had issued for Keith Maydak, which
listed “Michael Sussman” as an alias for Maydak. Sussman
further claimed the Marshals Service had investigated him, his
businesses, and his associates, so that the Notice could not be
the only material it maintained regarding him.
 3

In March 2003 Sussman changed tactics and filed a
complaint in the U.S. District Court for the District of Columbia.
Sussman’s amended complaint asserted sixteen causes of action.
In Counts I and II, Sussman sought disclosure of additional
USMS materials pursuant to FOIA, 5 U.S.C. § 552(a)(3), and
the Privacy Act, id. § 552a(d)(1), (g)(1)(B), (g)(3)(A). In Count
III, Sussman sought damages under the Privacy Act for the
Marshals Service’s alleged failure to keep an accurate account-
ing of disclosures it had made during its investigation of him.
See id. § 552a(c)(1), (g)(1)(D), (g)(4). In Counts IV through
XVI, Sussman sought damages under the Privacy Act for
unlawful disclosures the Marshals Service allegedly made
regarding him. See id. § 552a(b), (g)(1)(D), (g)(4).

In August 2003, Sussman moved for summary judgment as
to Counts I and II. The Marshals Service in turn moved for
summary judgment on all sixteen claims (“Def.’s 1st S.J.
Memo”) but only provided arguments for Counts I and IV
through XVI.

On August 3, 2004, the district court granted summary
judgment to the Marshals Service on Counts IV through XVI.
But the court deemed the Marshals Service’s search inadequate
and granted summary judgment to Sussman on Count I, ordering
the Marshals Service to “file a status report regarding the results
of a further search to comply with plaintiff’s FOIA request.”
The court’s order left unclear the status of Counts II and III, the
merits of which it did not discuss.

In response to the court’s order, the Marshals Service
renewed its search efforts, now taking into account Sussman’s
connections to Maydak, as revealed during his administrative
appeal. This second search yielded 813 additional pages of
documents relating to Sussman. The Marshals Service released
156 pages in full and 477 pages with redactions, and withheld 47
 4

pages in their entirety. Other documents were referred to the
agencies that had originally produced them. The Commodity
Futures Trading Commission, the U.S. Citizenship and Immigra-
tion Services, and the Federal Bureau of Investigation (“FBI”)
all released in full the documents referred to them. The Execu-
tive Office for United States Attorneys (“EOUSA”) released 110
pages in full and ten further pages with redactions. The United
States Postal Service (“Postal Service”) withheld in their entirety
the seven pages referred to it.

Upon completing its disclosures, the Marshals Service again
moved for summary judgment on all outstanding claims1
(“Def.’s 2nd S.J. Mot.”), asking the court to “dismiss this case
with prejudice with regard to everything but the documents
referred to other agencies.” It argued its search was now
adequate under FOIA and all its decisions to withhold or redact
materials were proper under the exemptions to FOIA set forth at
5 U.S.C. § 552(b). In support of this contention, the Marshals
Service supplied a declaration from Shaaron L. Keys (“Keys
Declaration”), including a table listing twenty-five categories of
documents released with redactions (“Redacted Categories
1–25”) and four categories of documents withheld in their
entirety (“Withheld Categories 1–4”). The Marshals Service
again presented no arguments concerning Counts II and III.

Sussman opposed this motion and filed a cross-motion for
summary judgment as to Counts I and II (“Pl.’s 2nd S.J. Br.”).
In support of his cross-motion, Sussman presented a signed

1
In its August 3, 2004 opinion, the court purported to grant
summary judgment to Sussman on Count I. Nonetheless, both the
court and the parties subsequently acted as if Count I remained
undecided pending the Marshals Service’s conclusion of its additional
search, as ordered by the court. We shall treat Count I the same way
and therefore review the court’s subsequent ruling from October 13,
2005, on that claim.
 5

declaration from Maydak, who announced, “I do not object to
the disclosure of information about me to Sussman.” Supple-
mental Declaration of Keith Maydak ¶ 7 (“Supp. Maydak
Decl.”).

In a memorandum opinion issued October 31, 2005, the
court refused to address Sussman’s Count II arguments, stating
it had “granted summary judgment on the Privacy Act claim in
its August 3, 2004 order.” As neither motion addressed Count
III, and Counts IV through XVI were dismissed by the August
3, 2004 opinion, the court focused exclusively on Count I.

The court first held the Marshals Service’s second search
was adequate under FOIA and found all the claimed FOIA
exemptions properly invoked. Going beyond the Marshals
Service’s motion for summary judgment, the court also re-
viewed the actions of the EOUSA and the Postal Service in
withholding materials from Sussman. The court held that the
EOUSA had properly redacted ten pages. The court likewise
upheld the Postal Service’s decision to withhold seven pages, on
the ground Sussman had failed to raise any arguments against
that decision.

The accompanying order stated that “[j]udgment is entered
in favor of defendant,” and “[t]his is a final appealable order.”
We read this language as granting summary judgment to the
Marshals Service on Counts II and III.

Sussman filed a timely motion for reconsideration, contest-
ing the court’s handling of several FOIA exemptions and
arguing he had not forfeited his challenge to the withholding of
the Postal Service materials. In its ruling on this motion, the
court rejected Sussman’s exemption arguments and addressed
the Postal Service materials on the merits for the first time.
 6

The Postal Service had first informed Sussman of its
decision to withhold the seven pages in a letter dated March 17,
2005, in which it asserted FOIA Exemptions 6 and 7(C) as
grounds. Sussman filed an administrative appeal of that
decision on March 28, and the Postal Service affirmed its initial
decision in a letter sent May 3, 2005, now citing Exemption
7(A), as well. The Marshals Service never officially invoked
FOIA exemptions to explain its own failure to release the
materials, instead relying on its referral of the materials to the
Postal Service as effectively shifting the final responsibility to
the latter agency.

The district court reviewed the Postal Service’s arguments
and found them all valid. On this basis, it “conclude[d] that
defendant [i.e., the Marshals Service] has withheld records
exempt under FOIA’s provisions,” and it denied Sussman’s
motion for reconsideration.

II

Sussman appealed the district court’s rulings as to all
sixteen of his claims.2 We granted the Marshals Service’s
motion for summary affirmance in part and therefore now need
decide only the following: (1) whether the Marshals Service’s
invocation of FOIA Exemptions 2, 3, 5, 7(A), 7(C), and 7(E) as
grounds for withholding and redacting documents was proper;
(2) whether the Marshals Service could properly withhold the
documents referred to the Postal Service; and (3) whether the
district court was right to grant summary judgment to the
Marshals Service as to Counts II through XVI. We review the
district court’s decisions on summary judgment motions in
FOIA and Privacy Act cases de novo. Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006); McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). Summary judgment
2
Sussman has not challenged the EOUSA’s redactions.
 7

is proper 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).

III

We first address Count I as it relates to the Marshals
Service’s treatment of Redacted Categories 1–25 and Withheld
Categories 1–4.

According to 5 U.S.C. § 552(b), FOIA’s disclosure require-
ments are subject to specified exemptions, see id. § 552(b)(1)–
(9), provided that “[a]ny reasonably segregable portion of a
record shall be provided” after exempt portions are deleted. An
agency asserting such an exemption has the burden of sustaining
its action if challenged in court. Id. § 552(a)(4)(B). The
exemptions “must be construed narrowly, in such a way as to
provide the maximum access consonant with the overall purpose
of [FOIA].” Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir.
1973).

Sussman challenges various FOIA exemptions claimed by
the Marshals Service as grounds for withholding or redacting
materials. With respect to Count I, we affirm the district court’s
grant of summary judgment on Exemptions 5 and 7(E) on the
basis of longstanding precedent that requires no further elucida-
tion. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 862 (D.C. Cir. 1980) (recognizing Exemption 5 as exempt-
ing from disclosure materials shielded from discovery by
traditional evidentiary privileges, including the deliberative
process privilege); Mead Data Cent., Inc. v. U.S. Dep’t of the
Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (“In some
circumstances . . . the disclosure of even purely factual material
may so expose the deliberative process within an agency that it
must be deemed exempted by section 552(b)(5).”); Blanton v.
 8

DOJ, 64 F. App’x 787, 788–89 (D.C. Cir. 2003) (per curiam)
(supporting application of Exemption 7(E) to withhold confiden-
tial details of a program whose general contours were publicly
known).

Exemptions 2, 3, 7(A), and 7(C) present more complex
questions, which we now examine.

A

Exemption 2 covers matters “related solely to the internal
personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2). The agency must show that the materials are
“predominant[ly] internal[].” Schwaner v. Dep’t of the Air
Force, 898 F.2d 793, 795 (D.C. Cir. 1990). An agency need not
disclose if (1) disclosure may risk circumvention of agency
regulation, or (2) the material relates to trivial administrative
matters of no genuine public interest. Id. at 794; see also
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d
1051, 1074 (D.C. Cir. 1981) (en banc).

We affirm the district court’s finding that the Marshals
Service properly applied Exemption 2 to shield certain internet
addresses, but the application of this exemption to “information
reflecting communications between agencies,” Keys Decl. ¶ 7,
is more problematic. Sussman argues this information is not
predominantly internal, and the Marshals Service has provided
no evidence to counter his claim. Thus, the Marshals Service
failed to carry its burden of proof under 5 U.S.C. § 552(a)(4)(B),
and we reverse the district court’s finding that Exemption 2 was
properly applied to information reflecting interagency communi-
cations. Such information appears in Redacted Categories 4, 5,
and 13, as well as Withheld Categories 3 and 4. As the Mar-
shals Service asserts additional exemptions with regard to those
same materials, however, we vacate the grant of summary
 9

judgment as it relates to those categories, rather than ordering
immediate disclosure.

B

Exemption 3 covers matters “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3). The Marshals
Service applied this exemption to Redacted Category 13, which
includes “material that is the subject of a grand jury investiga-
tion.” Keys Decl. ¶ 8. Federal Rule of Criminal Procedure 6(e)
(“FRCP 6(e)”) prohibits certain persons from “disclos[ing] a
matter occurring before [a] grand jury,” FED. R. CRIM. P.
6(e)(2)(B), and that rule counts as a statute for purposes of
Exemption 3, as it has been positively enacted by Congress,
Fund for Const. Gov’t v. Nat’l Archives & Records Serv., 656
F.2d 856, 867 (D.C. Cir. 1981); see also Act of July 30, 1977,
Pub. L. No. 95-78, § 2, 91 Stat. 319, 319–20. FRCP 6(e) bars
disclosure, however, only where it would “tend to reveal some
secret aspect of the grand jury’s investigation.” Senate of the
Commonwealth of P.R. ex rel. Judiciary Comm. v. U.S. DOJ,
823 F.2d 574, 582 (D.C. Cir. 1987) (“SCPR”) (internal quotation
marks omitted).

Persons not described in FRCP 6(e)(2)(B) incur no obliga-
tion of secrecy under FRCP 6(e). FED. R. CRIM. P. 6(e)(2)(A).
On the other hand, we do not believe FOIA requires us to
compound Rule 6(e) violations by requiring full disclosure
whenever an agent not covered by FRCP 6(e)(2)(B) obtains
information. Thus, for Sussman to defeat the Marshals Ser-
vice’s invocation of Exemption 3, there must be a clear path by
which the information sought to be withheld has reached
someone within the Marshals Service without violating FRCP
 10

6(e), and that USMS agent must be able to disclose the material
to Sussman without himself violating FRCP 6(e).3

On the current record, we are unable to determine whether
these conditions are satisfied. Moreover, the Marshals Service
has failed to demonstrate disclosure would “tend to reveal some
secret aspect of the grand jury’s investigation,” as required by
our holding in SCPR, 823 F.2d at 582. We therefore vacate the
district court’s finding that the Marshals Service acted properly
with respect to Redacted Category 13. On remand, the trial
court should resolve both outstanding issues, reviewing the
materials in camera if necessary. See 5 U.S.C. § 552(a)(4)(B);
Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000).

C

Exemption 7 permits the withholding of “records or
information compiled for law enforcement purposes,” but only
to the extent one or more listed risks are present. 5 U.S.C.
§ 552(b)(7); see NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 221–22 (1978). Sussman does not dispute that the materi-
als withheld pursuant to Exemption 7 were compiled for law
enforcement purposes; he does, however, argue that none of the
listed risks apply. We address Exemptions 7(A) and 7(C) in
turn.

1

Exemption 7(A) covers materials compiled for law enforce-
ment purposes whose disclosure “could reasonably be expected
to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). The enforcement proceedings need not be
currently ongoing; it suffices for them to be “reasonably antici-
3
The Marshals Service of course retains the burden of proving
these conditions are not satisfied. 5 U.S.C. § 552(a)(4)(B).
 11

pated.” Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir. 1993)
(emphasis omitted).

The Marshals Service applied Exemption 7(A) to Redacted
Category 13, withholding “records or information that is
relevant to pending grand jury investigations into the financial
activities of plaintiff’s associates.” Keys Decl. ¶ 10. The Keys
Declaration further opined, “Release of this information could
reasonably be viewed as revealing the focus of the grand jury
investigation.” Id. ¶ 8. Under Campbell v. Department of
Health & Human Services, however, it is not sufficient for an
agency merely to state that disclosure would reveal the focus of
an investigation; it must rather demonstrate how disclosure
would reveal that focus. 682 F.2d 256, 265 (D.C. Cir. 1982).

In the context of Exemption 7(A), the affidavits we have
approved in the past have all gone a significant distance further
than the Keys Declaration. See, e.g., Ctr. for Nat’l Sec. Studies
v. U.S. DOJ, 331 F.3d 918, 923 (D.C. Cir. 2003); Swan v. SEC,
96 F.3d 498, 499 (D.C. Cir. 1996); Mapother, 3 F.3d at 1542–
43; Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 312
(D.C. Cir. 1988). Even in Boyd v. Criminal Division of the U.S.
DOJ, 475 F.3d 381 (D.C. Cir. 2007), which the Marshals
Service cites as setting a low threshold for Exemption 7(A)
supporting documents, we required specific information about
the impact of the disclosures, see id. at 386. Absent testimony
of similar or greater specificity, and without an in camera
review of the documents at issue, courts cannot determine that,
as a matter of law, disclosure “could reasonably be expected to
interfere with enforcement proceedings.” Hence, we must
vacate the district court’s finding that Exemption 7(A) was
properly applied.

The Marshals Service cites Robbins Tire for the proposition
that “whenever the government’s case in court would be harmed
 12

by the premature release of evidence or information,” the harm
from disclosure is sufficient to support application of Exemption
7(A). Appellee’s Br. 24 (internal quotation marks omitted). But
it is not clear the Supreme Court actually adopted such a rule,
see Robbins Tire, 437 U.S. at 232 (noting Senator Hart had
expressed such a view), and on the record before us it is
impossible to determine whether disclosure would in fact
impede such an investigation. In Curran v. DOJ, another case
cited by the Marshals Service, the First Circuit approved the use
of Exemption 7(A), but only because a government affidavit
“carefully explained to the district court how the release . . .
would ‘interfere’ with enforcement proceedings,” which the
court deemed sufficient when “coupled with the remaining
divulgements in the ten page affidavit.” 813 F.2d 473, 476 (1st
Cir. 1987). Finally, to the extent Spannaus v. U.S. DOJ, 813
F.2d 1285, 1287 (4th Cir. 1987), can be read as setting a lower
hurdle for affidavits in support of an invocation of Exemption
7(A), we decline to follow the Fourth Circuit’s lead.4

On remand, the district court must determine whether
disclosure of the materials withheld pursuant to Exemption 7(A)
could in fact reasonably be expected to interfere with enforce-
ment proceedings. See 5 U.S.C. § 552(b)(7)(A). And, contrary
to the Marshals Service’s contention, the relevant proceedings
must be pending or reasonably anticipated at the time of the
district court’s eventual decision, not merely at the time of
Sussman’s original FOIA request, in order to support redaction
under Exemption 7(A). See August v. FBI, 328 F.3d 697, 698
(D.C. Cir. 2003).

4
We note that in Spannaus, the Fourth Circuit was not reviewing
the district court’s decision de novo. Spannaus, 813 F.2d at 1288 &
n.4. It is not clear that the court would have found the government’s
affidavit sufficient under the more probing standard of review we
apply.
 13

2

Exemption 7(C) covers materials compiled for law enforce-
ment purposes whose disclosure “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). To determine whether Exemption 7(C)
applies, we “balance the privacy interests that would be compro-
mised by disclosure against the public interest in release of the
requested information.” Davis v. U.S. DOJ, 968 F.2d 1276,
1281 (D.C. Cir. 1992). Where a legitimate privacy interest is
implicated, the requester must “(1) show that the public interest
sought to be advanced is a significant one, an interest more
specific than having the information for its own sake, and (2)
show the information is likely to advance that interest.” Boyd,
475 F.3d at 387 (internal quotation marks omitted) (quoting
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004)).

On one side of the scale, the exemption protects the privacy
interests of all persons mentioned in law enforcement records,
whether they be investigators, suspects, witnesses, or infor-
mants. See Schrecker v. U.S. DOJ, 349 F.3d 657, 661 (D.C. Cir.
2003) (citing cases). On the other side, “the only public interest
relevant for purposes of Exemption 7(C) is one that focuses on
the citizens’ right to be informed about what their government
is up to.” Davis, 968 F.2d at 1282 (internal quotation marks
omitted) (quoting U.S. DOJ v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 773 (1989)). Names of private individ-
uals are thus generally exempt from disclosure except, for
example, where they are required to confirm or refute allega-
tions of improper government activity. SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1205–06 (D.C. Cir. 1991). Even then, “the
requester must produce evidence that would warrant a belief by
a reasonable person that the alleged Government impropriety
 14

might have occurred” in order to gain disclosure. Favish, 541
U.S. at 174; see also Boyd, 475 F.3d at 387.

The Marshals Service applied Exemption 7(C) to withhold
names, addresses, telephone numbers, social security numbers,
and other such private information regarding law enforcement
officials, a “judicial protectee,” other government employees,
unnamed “third-party individuals,” and (apparently) Maydak.
Keys Decl. ¶ 11; Supp. Maydak Decl. ¶ 2. The Marshals
Service used this exemption in relation to all the Redacted and
Withheld Categories aside from Redacted Category 3. Redacted
Categories 1 and 23 concerned a law enforcement officer and
the judicial protectee respectively; all others included informa-
tion on unspecified individuals, possibly including Maydak. See
Keys Decl. ¶¶ 18–19.

The district court found Sussman had not alleged miscon-
duct on the part of the Marshals Service and hence upheld
application of Exemption 7(C). See SafeCard Servs., 926 F.2d
at 1205–06. While we find Sussman did in fact allege miscon-
duct, his bare and undeveloped allegations would not warrant a
belief by a reasonable person that impropriety might have
occurred. See Favish, 541 U.S. at 174.

However, Sussman makes one substantive argument. He
maintains Exemption 7(C) cannot apply to materials concerning
Maydak, as Maydak “authorize[d] the release of documents
about him[self].” Appellant’s Br. 26 (citing Supp. Maydak
Decl. ¶ 7). While Sussman first produced this apparent authori-
zation on May 16, 2005, several weeks after the Marshals
Service completed its court-ordered search of its records, this
court has previously required disclosure where authorization
arrived late. Computer Prof’ls for Soc. Responsibility v. U.S.
Secret Serv., 72 F.3d 897, 900–01, 904–05 (D.C. Cir. 1996).
Thus, if Maydak waived his privacy interest under FOIA, the
 15

Marshals Service cannot withhold materials concerning him
based on Exemption 7(C).

We cannot determine on the record before us whether
Maydak in fact waived his FOIA privacy interest. First, as the
district court did not reach the question of Maydak’s waiver, we
cannot say with certainty that it is genuine, much less that it was
knowing, intelligent, and voluntary. Though we have no reason
to doubt the authenticity of the waiver, these are issues for the
district court to analyze on remand. Second, Maydak’s Supple-
mental Declaration states, “I do not object to the disclosure of
information about me to Sussman.” Supp. Maydak Decl. ¶ 7.
It is not clear this amounts to a full-scale waiver of Maydak’s
privacy interest under FOIA, where disclosure would release the
contested materials to the world at large, not just to Sussman.
Here too the district court is the proper forum for determining
whether Maydak in fact consents to such unlimited disclosure,
for which reason we vacate the finding that Exemption 7(C) was
properly applied to cover materials private to Maydak.

As we cannot be sure which categories this ruling impacts,
we must vacate the district court’s grant of summary judgment
on Count I to the extent it covers Redacted Categories 2, 4–22,
and 24–25, as well as all four Withheld Categories. But as
Maydak’s waiver has no effect on the privacy interests of others,
we affirm the district court’s finding that the Marshals Service
properly applied Exemption 7(C) to protect the privacy of
individuals other than Maydak. On remand, the district court
should determine whether Maydak has indeed waived his FOIA
privacy interest, and if so which materials may thus be disclosed
without concomitantly revealing information private to others.
See Computer Prof’ls, 72 F.3d at 904 (requiring materials
disclosed pursuant to waivers to be “redacted to protect the
interests of individuals who have not waived their rights”).
 16

D

Even when FOIA exemptions apply, “[a]ny reasonably
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt.” 5 U.S.C. § 552(b). This rule of segregation applies to
all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731 F.2d 16,
21 (D.C. Cir. 1984). “It has long been a rule in this Circuit that
non-exempt portions of a document must be disclosed unless
they are inextricably intertwined with exempt portions.” Mead
Data Cent., 566 F.2d at 260. Before approving the application
of a FOIA exemption, the district court must make specific
findings of segregability regarding the documents to be with-
held. Summers v. DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998);
Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993).
If the district court approves withholding without such a finding,
remand is required even if the requester did not raise the issue
of segregability before the court. Johnson v. EOUSA, 310 F.3d
771, 776 (D.C. Cir. 2002); Trans-Pac. Policing Agreement v.
U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

Agencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material.
Boyd, 475 F.3d at 391. The quantum of evidence required to
overcome that presumption is not clear. Compare United States
v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (“The presump-
tion of regularity supports the official acts of public officers and,
in the absence of clear evidence to the contrary, courts presume
that they have properly discharged their official duties.”), with
Favish, 541 U.S. at 174 (holding that “[g]iven FOIA’s pro-
disclosure purpose,” a less stringent standard whereby a
requester need only “produce evidence that would warrant a
belief by a reasonable person” “is more faithful to the statutory
scheme” in some contexts). If the requester successfully rebuts
this presumption, the burden lies with the government to
 17

demonstrate that no segregable, nonexempt portions were
withheld. 5 U.S.C. § 552(a)(4)(B); Paisley v. CIA, 712 F.2d
686, 700 (D.C. Cir. 1983), vacated in part on other grounds, 724
F.2d 201 (D.C. Cir. 1984) (per curiam).

Here, the district court made the necessary finding that the
Marshals Service had not withheld any segregable, nonexempt
materials. Even under the less demanding Favish standard,
Sussman has not persuaded us that these findings were incorrect.
However, to the extent the district court orders additional
disclosures on remand, new segregability findings will be
required.

IV

We turn next to Count I as it relates to the seven pages the
Marshals Service referred to the Postal Service, which the Postal
Service then decided to withhold pursuant to FOIA Exemptions
6, 7(A), and 7(C).

A

The Marshals Service moved for summary judgment “with
regard to everything but the documents referred to other
agencies.” Def.’s 2nd S.J. Mot. 1–2 (emphasis added). In its
accompanying brief, the Marshals Service provided no argu-
ments supporting summary judgment as to the Postal Service
materials. The Marshals Service mentioned the Postal Service’s
invocation of Exemptions 6 and 7(C) in its opposition to
Sussman’s second motion for summary judgment,5 but only as
a reason to deny summary judgment to Sussman, not as a basis

5
Exemption 6 protects from disclosure “personnel and medical
files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6).
 18

for summary judgment in its own favor. Nonetheless, the
district court granted the Marshals Service summary judgment
as to the Postal Service materials and later denied Sussman’s
motion for reconsideration.

“While district courts possess the authority to enter sum-
mary judgment against a party sua sponte, that authority may
only be exercised ‘so long as the losing party was on notice that
she had to come forward with all of her evidence.’” McBride v.
Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1212 (D.C. Cir.
1986) (citation omitted) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 326 (1986)). Here, notice was inadequate, and the
Marshals Service’s response to Sussman’s motion to reconsider
did not correct this inadequacy. Therefore, summary judgment
in favor of the Marshals Service was improper.

B

We next consider whether, instead, Sussman is entitled to
summary judgment as regards disclosure of the seven pages
referred to the Postal Service.

Agencies cannot simply refer documents to other agencies
as a matter of course but must show that the procedure is
reasonable under the circumstances. See McGehee v. CIA, 697
F.2d 1095, 1110 (D.C. Cir. 1983) (describing a test for when
referrals result in improper withholding). In particular, FOIA
explicitly permits “consultation . . . with another agency having
a substantial interest in the determination of the request,” 5
U.S.C. § 552(a)(6)(B)(iii)(III), and if an agency chooses outright
referral instead, “the advantages that would be secured by
delegating all responsibility for reviewing the document . . .
rather than engaging in . . . ‘consultation’ . . . must then be
balanced against any inconvenience to the requester caused by
the referral,” McGehee, 697 F.2d at 1111 n.71.
 19

Sussman mistakenly reads McGehee as barring referrals
outright. McGehee’s description of consultation as “the only
procedure expressly set forth in [FOIA]” to deal with situations
in which one agency possesses documents in which a second
agency has a substantial interest, id., merely reiterates that
consultation is per se acceptable; it does not preclude other
reasonable procedures. Similarly, McGehee’s admonition that
the agency receiving the initial request “cannot simply refuse to
act on the ground that the documents originated elsewhere,” id.
at 1110, indeed imposes a duty on that agency, but the agency
may acquit itself through a referral, provided the referral does
not lead to improper withholding under the McGehee test. See,
e.g., Peralta v. U.S. Attorney’s Office, 136 F.3d 169, 175–76
(D.C. Cir. 1998) (applying McGehee where the EOUSA referred
materials to the FBI for final disposition rather than releasing
them or citing exemptions directly).

Thus, Sussman’s argument against referrals fails. As the
current record contains insufficient evidence to establish
improper withholding under McGehee, Sussman does not
deserve summary judgment on this ground.

In the alternative, Sussman argues he deserves summary
judgment as to the Postal Service materials because the Mar-
shals Service failed to “show[] evidence . . . that the documents
were exempt from disclosure.” Pl.’s 2nd S.J. Br. 2. Sussman
raised this argument in the brief accompanying his second
summary judgment motion, and the only evidence the Marshals
Service provided to support its opposition was the Postal
Service’s March 17, 2005 letter to Sussman, which announced
the Postal Service’s invocation of Exemptions 6 and 7(C) but
did not explain why they applied. In its subsequent opposition
to Sussman’s motion for reconsideration, however, the Marshals
Service did present evidence sufficient to create a genuine issue
of fact as to the applicability of Exemptions 6, 7(A), and 7(C),
 20

to wit a declaration by Postal Service employee John Patrick
Tyrrell. We have in the past permitted agencies to escape
summary judgment in FOIA cases based on evidence first
submitted on motions for reconsideration, see Computer Prof’ls,
72 F.3d at 900, 903, and Sussman has presented no argument as
to why this rule should not apply in the instant case. Therefore,
based on the Tyrrell Declaration, we find Sussman’s second
argument fails as well, and hence we affirm the district court’s
denial of his motion for summary judgment as to the Postal
Service materials.

C

Because neither party deserves summary judgment as to
these materials, we vacate the district court’s grant of summary
judgment to the Marshals Service and remand for further
proceedings. Sussman argues that on remand, the Marshals
Service should not be permitted to assert FOIA exemptions, as
it failed to do so in proceedings before the district court prior to
this appeal.

Sussman errs with regard to Exemptions 6 and 7(C). In its
opposition to Sussman’s second motion for summary judgment,
the Marshals Service explicitly referenced those two exemp-
tions, and the court needed to consider those exemptions when
ruling on the motion. Thus, the invocation sufficed to avoid
waiver. See Ryan v. DOJ, 617 F.2d 781, 792 n.38a (D.C. Cir.
1980).

As for Exemption 7(A), the question is closer. We have
found no case in this circuit that definitively confirms or rejects
the power of the government to avoid waiver by invoking a
FOIA exemption for the first time in a motion for—or opposi-
 21

tion to—reconsideration.6 But the logic underlying our cases in
this area suggests that invocation even at that late stage is
proper, at least where the district court chooses to entertain the
new argument.

For example, our seminal case on waiver in the FOIA
context held that “[a]n agency cannot prevail on an exemption
that it has not raised either at the agency level or in the district
court and that it has invoked for the first time in the appellate
court.” Jordan v. U.S. DOJ, 591 F.2d 753, 779 (D.C. Cir. 1978)
(en banc) (emphasis added), overruled in part on other grounds,
Crooker, 670 F.2d 1051. Furthermore, where an agency fails
“through pure mistake” to cite a particular exemption, the
appellate court has discretion to remand for consideration of the
exemption, at least where the government’s case is sufficiently
strong. See August, 328 F.3d at 700. As the Postal Service had
already issued its May 3, 2005 letter invoking Exemption 7(A)
when the Marshals Service filed its opposition to Sussman’s
second motion for summary judgment, the Marshals Service’s
omission of that exemption qualifies as such a mistake. Finally,
we note that the district court “is vested with a large measure of
discretion in deciding whether to grant a Rule 60(b) motion,”
Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138
(D.C. Cir. 1988), and it chose to entertain the Marshals Service’s
Exemption 7(A) argument on reconsideration.

For all of these reasons, we hold that the Marshals Service
properly invoked Exemption 7(A), as well as Exemptions 6 and
7(C). We remand to the district court for consideration of the
merits of these three exemptions.

6
The Internal Revenue Service raised new exemptions in a
motion for reconsideration in Taxation with Representation Fund v.
IRS, 646 F.2d 666 (D.C. Cir. 1981), but abandoned the new
exemptions on appeal.
 22

V

Sussman’s remaining claims all rely on the Privacy Act, 5
U.S.C. § 552a. We consider first Count II, in which Sussman
again seeks disclosure of the materials described above. Under
5 U.S.C. § 552a(d)(1), each “agency that maintains a system of
records” must, “upon request by any individual to gain access to
his record or to any information pertaining to him which is
contained in the system, permit him . . . to review the record and
have a copy made of all or any portion thereof in a form
comprehensible to him.” Heads of agencies may, however,
promulgate rules exempting particular systems of records from
§ 552a(d)(1) under conditions described at § 552a(j)–(k).

Sussman properly issued a § 552a(d)(1) request, and the
Marshals Service does not contest its status as an “agency that
maintains a system of records.” Furthermore, by failing to raise
the issue before the district court, the Marshals Service has
forfeited the right to argue a Privacy Act exemption applies to
the materials it processed directly. See Benavides v. U.S.
Bureau of Prisons, 995 F.2d 269, 273 (D.C. Cir. 1993) (extend-
ing Jordan’s waiver rule to Privacy Act cases). Likewise, as
neither the Marshals Service nor the Postal Service invoked
them, Privacy Act exemptions for the Postal Service materials
are also forfeited.

But that is not the end of the story. The Marshals Service
argues the materials Sussman seeks do not qualify for manda-
tory disclosure under § 552a(d)(1). The precise contours of an
agency’s duty under § 552a(d)(1) have never been defined in
this circuit.7 We do, however, have guidance from the Office of

7
While we have occasionally summarized this provision in
language that suggests its scope, e.g., McCready, 465 F.3d at 8;
Horowitz v. Peace Corps, 428 F.3d 271, 280 (D.C. Cir. 2005), we
have never confronted the question directly.
 23

Management and Budget (“OMB”), the language of the statute,
and common sense.

First, OMB guidelines released in 1975 advise that “[i]f an
individual is named in a record about someone else . . . and the
agency only retrieves the portion pertaining to him by reference
to the other person’s name . . . , the agency is not required to
grant him access” pursuant to 5 U.S.C. § 552a(d)(1). Privacy
Act Guidelines, 40 Fed. Reg. 28,949, 28,957 (1975) (“OMB
Guidelines”). Congress explicitly tasked the OMB with
promulgating guidelines for implementing the Privacy Act,
Privacy Act of 1974, § 6, Pub. L. No. 93-579, 88 Stat. 1896,
1909, and we therefore give the OMB Guidelines “the deference
usually accorded interpretation of a statute by the agency
charged with its administration,” Albright v. United States, 631
F.2d 915, 920 n.5 (D.C. Cir. 1980).8

Second, the language of § 552a(d)(1) strongly suggests
individuals may access only their own records, not information
pertaining to them in other people’s records. Under that
provision, the duty to disclose is triggered by an individual’s

8
The OMB apparently invited no public comment prior to
publishing its guidelines, see OMB Circular A-108, 40 Fed. Reg.
28,948 (1975) (announcing rules without citing earlier notice), and
after we decided Albright, Congress pointedly replaced its original
grant of authority to the OMB with one that expressly required the
OMB to respect such procedural niceties before its guidelines could
be binding, Computer Matching and Privacy Protection Act of 1988,
§ 6, Pub. L. No. 100-503, 102 Stat. 2507, 2513. But Congress made
clear the change was not meant to disturb existing guidelines. H.R.
REP. NO. 100-802, at 36 (1988). Hence, the old OMB Guidelines still
deserve the same level of deference they enjoyed prior to the 1988
amendment. See Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453,
1460 n.12 (D.C. Cir. 1996) (quoting Albright in dicta after the
amendment); see also Doe v. Chao, 540 U.S. 614, 633 (2004)
(Ginsburg, J., dissenting) (citing the OMB Guidelines).
 24

request for either (1) “his record” or (2) “any information
pertaining to him which is contained in the system [of records],”
but in either case the agency is required to present only “the
record.” It is a well-established rule of statutory construction
that “when Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 452 (2002) (internal quotation
marks omitted). According to this principle, the OMB is right
to exclude from mandatory disclosure those materials pertaining
to a requesting individual but contained only in other individu-
als’ files.

Third, this seems the only reasonable interpretation, as the
opposite approach would force agencies to search every last
datum they maintain, in case it might pertain to the requesting
party. With records spread through multiple databases, kept in
disparate forms, and retained in non-electronic media, this
would be such an onerous task that we hesitate to assume
Congress imposed it upon agencies sub silentio.

For all of these reasons, we interpret 5 U.S.C. § 552a(d)(1)
to give parties access only to their own records, not to all
information pertaining to them that happens to be contained in
a system of records. For an assemblage of data to qualify as one
of Sussman’s records, it must not only contain his name or other
identifying particulars but also be “about” him. Tobey v. NLRB,
40 F.3d 469, 472 (D.C. Cir. 1994). That is, it must actually
describe him in some way. Id. Hence, only those records that
are “about” Sussman are subject to disclosure based on his
§ 552a(d)(1) request. Accord OMB Circular A-130, § 8a(9)(d),
58 Fed. Reg. 36,068, 36,073 (1993) (instructing agencies to
“[p]rovide individuals, upon request, access to records about
them” (emphasis added)).
 25

Thus, pursuant to the Privacy Act, the Marshals Service
must disclose to Sussman those materials—and only those
materials—contained in records about him, the release of which
would not violate 5 U.S.C. § 552a(b).9 However, the current
record does not permit identification of those materials. For
FOIA purposes, the question of whose records contained the
requested information was immaterial, see Military Audit
Project v. Casey, 656 F.2d 724, 730 n.11 (D.C. Cir. 1981), and
the district court reviewed the Marshals Service’s search efforts
only in terms of FOIA. Therefore, the question remains
factually unresolved, and we vacate the grant of summary
judgment on Count II and remand to the district court.

VI

In Counts IV through XVI, Sussman alleges the Marshals
Service improperly revealed information about him and thereby
adversely affected him. See 5 U.S.C. § 552a(b), (g)(1)(D).
Sussman seeks an injunction against “further unlawful disclo-
sures,” as well as “any other relief that is appropriate and just
under the circumstances.” E.g., Am. Compl. at 11. Sussman
further claims the Marshals Service’s actions were “intentional
and willful,” so that he may recover monetary damages under 5
U.S.C. § 552a(g)(4). The Marshals Service moved for summary
judgment on these counts; Sussman did not.

9
If certain materials pertain to both Sussman and other
individuals, from whom the Marshals Service has received no written
consent permitting disclosure, the Privacy Act would both require (5
U.S.C. § 552a(d)(1)) and forbid (id. § 552a(b)) their disclosure. As
the consent requirement in § 552a(b) is “one of the most important, if
not the most important, provisions” in the Privacy Act, H.R. REP. NO.
93-1416, at 12 (1974), the prohibition must take precedence. See
Blazy v. Tenet, 194 F.3d 90, 96 (D.C. Cir. 1999) (“Unlike FOIA, the
Privacy Act’s primary purpose is not disclosure.”).
 26

According to 5 U.S.C. § 552a(b), “[n]o agency shall
disclose any record which is contained in a system of records”
except under certain listed circumstances, such as when the
disclosure would be for a “routine use.” If the materials were
not contained in a “record,” as defined at § 552a(a)(4), there can
be no violation. Sussman has, however, put forward sufficient
evidence to support a finding that the materials were contained
in a record, albeit potentially one pertaining primarily to
Maydak or a judge. See Supplemental Declaration of Michael
Sussman ¶¶ 2–3 (filed Apr. 26, 2004) (“1st Supp. Sussman
Decl.”). Summary judgment on this issue is therefore improper
at the present stage.

Counts IV through XVI are predicated on 5 U.S.C.
§ 552a(g)(1)(D), a catch-all provision creating a civil cause of
action for violations not described in § 552a(g)(1)(A)–(C). We
have held that only monetary damages, not declaratory or
injunctive relief, are available to § 552a(g)(1)(D) plaintiffs, Doe
v. Stephens, 851 F.2d 1457, 1463 (D.C. Cir. 1988),10 and such
monetary damages are available only where “the agency acted
in a manner which was intentional or willful,” 5 U.S.C.
§ 552a(g)(4). Thus, proof of intent or willfulness is a necessary
element of Sussman’s claims, and failure to provide supporting
evidence would lead to summary judgment in favor of the
Marshals Service. Celotex, 477 U.S. at 322–23.

Sussman argues the willfulness issue is not ripe for appeal,
citing Maydak v. U.S. DOJ, 363 F.3d 512 (D.C. Cir. 2004). In
that case, we found “no basis for summary judgment,” as the

10
As Doe, like the instant case, concerned remedies under 5
U.S.C. § 552a(g)(1)(D) for violations of § 552a(b), we treat it as
controlling, despite this court’s subsequent suggestion that the district
court retains “inherent equitable powers” to issue injunctions in
§ 552a(g)(1)(D) cases predicated on violations of § 552a(e)(7). See
Haase v. Sessions, 893 F.2d 370, 374 n.6 (D.C. Cir. 1990).
 27

question of intent or willfulness was “entirely undeveloped in
the record.” Id. at 521. Sussman reasons that an absence of
evidence as to this element in his case renders the question
equally undeveloped and prevents summary judgment here also.
But Sussman misreads Maydak. In that case, the government
contested the willfulness element only in a reply, not (as here)
in its original motion for summary judgment; thus, Maydak was
not obliged to produce evidence in rebuttal, while Sussman was.
See McBride, 800 F.2d at 1212.

“An agency acts in an intentional or willful manner ‘either
by committing the act without grounds for believing it to be
lawful, or by flagrantly disregarding others’ rights under the
Act.’” Deters v. U.S. Parole Comm’n, 85 F.3d 655, 660 (D.C.
Cir. 1996) (quoting Albright v. United States, 732 F.2d 181, 189
(D.C. Cir. 1984)). “‘The violation must be so patently egregious
and unlawful that anyone undertaking the conduct should have
known it unlawful.’” Id. (alteration omitted) (quoting Laning-
ham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per
curiam)). The only evidence Sussman cited before the district
court on this issue was paragraph 7 of his First Supplemental
Declaration, which asserted that “the allegations in the Amended
Complaint . . . are true and correct to the best of my knowl-
edge.” Those allegations touched on willfulness only at
paragraph 99, which claimed USMS agents “were yelling and
screaming their allegations and theories in an effort to intimi-
date.” But paragraph 99 applies only to Count VII, and Sussman
presented no similar evidence in relation to his other improper
disclosure claims. Thus, summary judgment was proper as to
Counts IV through VI and VIII through XVI, but Count VII
survives.

The Marshals Service argues that any disclosures it made
were covered by the “routine use” exception. See 5 U.S.C.
§ 552a(b)(3). In particular, the Marshals Service claims
 28

authorization under 64 Fed. Reg. 60,832, 60,839 (1999), which
permits disclosure of WIN records “to the extent necessary to
obtain information or cooperation in USMS fugitive investiga-
tions and apprehension efforts.” But the Marshals Service’s
motion for summary judgment cited no evidence tending to
show the disclosures in Count VII satisfied that criterion. See
Def.’s 1st S.J. Memo 15–17. By contrast, Sussman’s testimony
regarding “yelling and screaming” suggests the disclosures went
beyond what was “necessary to obtain information or coopera-
tion.” See 1st Supp. Sussman Decl. ¶ 7; Amended Complaint
¶ 99. Thus, we cannot say summary judgment for the Marshals
Service on Count VII was proper on this ground, either.

However, the Marshals Service also claims Sussman has
failed to show the information allegedly disclosed was in a
record “contained in a ‘system of records’ retrievable by
plaintiff’s name or other personal identifier.” Def.’s 1st S.J.
Memo 14. This is a subtle argument. The Marshals Service is
not denying the materials were in a system of records, a point it
concedes. See Appellee’s Br. 9 (“The information was not
maintained in a system of records retrievable by Sussman’s
name, but by Maydak’s name.” (emphasis added)). Rather, its
argument presumes that, in order to recover, Sussman must
show the Marshals Service improperly disclosed materials
located in records retrievable by Sussman’s name as opposed to
someone else’s name. We agree.

Section 552a(b) restricts the disclosure of “any record
which is contained in a system of records.” A grouping of
information is a “record” if it is (1) about an individual and (2)
maintained by an agency. 5 U.S.C. § 552a(a)(4). A “system of
records” is in turn “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
 29

identifying particular assigned to the individual.” Id. § 552a(a)(5).

If a record is retrievable by reference to some name other
than Sussman’s, the information is part of a “system of records,”
but it is not clear Sussman may recover damages for its disclo-
sure. We have never decided whether an adversely affected
individual can bring suit under § 552a(g)(1)(D) for the improper
disclosure of another person’s records, a question we once
described as “interesting and, so far as we determine, unre-
solved,” Tijerina v. Walters, 821 F.2d 789, 794 (D.C. Cir. 1987).

The Privacy Act authorizes civil suits by individuals who
satisfy any of the four subsections under 5 U.S.C. § 552a(g)(1).
Subsections (A) through (C) limit suits to individuals whose
Privacy Act rights are infringed, but subsection (D) includes no
such explicit limit, suggesting it may apply more generally. But
one could equally argue that as subsections (A) through (C)
create rights of action for the infringement of specific Privacy
Act rights, subsection (D)’s seemingly broad reference to an
“adverse effect” should likewise be read to encompass only the
infringement of Privacy Act rights. Given this ambiguity, we
must construe § 552a(g)(1)(D)’s waiver of sovereign immunity
narrowly. See Soc. Sec. Admin. v. FLRA, 201 F.3d 465, 471
(D.C. Cir. 2000); see also Ruckelshaus v. Sierra Club, 463 U.S.
680, 685–86 (1983). We therefore interpret § 552a(g)(1)(D) to
permit claims predicated on § 552a(b) violations only by a
person whose records are actually disclosed.

Thus, for his action to survive, Sussman must present
evidence that materials from records about him, which the
Marshals Service retrieved by his name, were improperly
disclosed. Since Sussman was unaware of this requirement or
the need to rebut it, fairness demands he be given a chance to do
so now. See McBride, 800 F.2d at 1212; cf. Kimberlin v.
Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (noting law-of-the-
 30

case doctrine is inapplicable if a change in the law intervenes).
Accordingly, we vacate the district court’s grant of summary
judgment as to Count VII and remand for further proceedings.

VII

Finally, we consider Count III. Sussman never moved for
summary judgment on this claim. The Marshals Service did, but
it provided no arguments supporting its request. The district
court granted summary judgment to the Marshals Service
without analysis or explanation. The core elements of the claim
are (1) failure by the Marshals Service to maintain an accurate
accounting of disclosures, and (2) a resultant adverse effect on
Sussman. 5 U.S.C. § 552a(c)(1), (g)(1)(D). Nothing in the
Marshals Service’s affidavits negates either element. Thus,
summary judgment was improper, and we vacate the district
court’s order as to Count III and remand for further proceedings.
As Count III is again predicated on 5 U.S.C. § 552a(g)(1)(D),
our interpretation of that provision governs here as well; that is,
Sussman can recover for accounting failures regarding disclo-
sures only to the extent those disclosures involved materials in
his records.

VIII

For the reasons described above, we affirm the district
court’s grant of summary judgment to the Marshals Service on
Count I to the extent it covers Redacted Categories 1, 3, and 23,
but vacate it to the extent it covers Redacted Categories 2, 4–22,
and 24–25, as well as the four Withheld Categories and the
seven pages of documents referred to the Postal Service. We
vacate the grant of summary judgment on Count II insofar as it
relates to the Withheld and Redacted Categories and the
materials referred to the Postal Service. We affirm the grant as
to Counts IV through VI and VIII through XVI, but vacate it
 31

with respect to Counts III and VII. The case is remanded to the
district court for such further proceedings as may be required,
consistent with this opinion.
So ordered.