IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-61050 Charles R. Fulbruge III
Clerk
ROBERT EARL PIERCE
Plaintiff-Appellant
v.
DEPARTMENT OF THE UNITED STATES AIR FORCE
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In this appeal, Plaintiff-Appellant Robert Pierce (“Pierce”) challenges the
district court’s summary judgment rendered against him and in favor of
Defendant-Appellee Department of the Air Force (the “Air Force”) concluding
that the Air Force did not violate Pierce’s rights under the Privacy Act of 1974,
5 U.S.C. § 552a(b) (the “Privacy Act”). The district court held that the
documents at issue were not “records” contained within a “system of records” for
purposes of the Privacy Act and granted summary judgment on that ground. We
agree with the district court and affirm.
No. 06-61050
I.
In February 2001, Col. (Ret.) Joe Bryant (“Bryant”), a former pilot in the
186th Air Refueling Wing of the Mississippi Air National Guard, once stationed
at the Key Field Air National Guard Base in Meridian, Mississippi, filed a
complaint that alleged wrongful conduct and improprieties by several officers of
his unit. Included in the complaint were allegations against Pierce.1
In February 2003, Colonel Kenneth Emmanuel (“Emmanuel”) was
designated by the Air Force Inspector General to investigate some of Bryant’s
allegations, and he did so over a period of several months. On May 31, 2004,
Emmanuel issued his findings in a Report of Investigation (“ROI”). Additionally,
and pursuant to regulation, Emmanuel prepared a Summary Report of
Investigation (“SROI”), a version of the ROI that omits names and personally-
identifying information of individuals in the report. AIR FORCE INSTRUCTION
(AFI) 90-301, §§ 2.61, 2.49 (January 30, 2001). In the SROI, Emmanuel did not
name the officers against whom Bryant lodged his complaints (including Pierce).
Instead, consistent with regulation guidance, he identified them by duty titles.
Id. § 2.49, Figure 2.6 (“Do not use names in the SROI. Use duty titles . . . .”).
Pertinently, Pierce was referred to in the SROI as C-26 Program Manager and
Counterdrug Coordinator.2
In July 2004, Colonel Ronnie Rogers (“Rogers”) took over and assumed the
responsibility for closing the investigation of Bryant’s allegations. In the course
1
Bryant alleged that Pierce improperly disposed of government property, cheated on
examinations and research papers, wrongfully fraternized with, had an unprofessional
relationship with, or sexually harassed a subordinate enlisted female, wrongfully referred one
of his subordinate pilots for a mental health evaluation, wrongfully used aircraft for
unauthorized flights and funds for improper expenditures, wrongfully received Air Force wings,
wrongfully manipulated the merit selection process, wrongfully falsified or failed to update his
military medical records and failed to take sick leave, and wrongfully threatened subordinates
with unspecified adverse actions if they cooperated with investigators.
2
Pierce was C-26 Program Manager from 1996 to 2001, after which he became a
Counterdrug Coordinator.
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No. 06-61050
of closing the investigation, he determined that Bryant was a “complainant” per
Air Force regulations. As a “complainant” for the allegations, Bryant was
entitled to a final response letter and an SROI. Id. § 2.61.4 (Complainant “will
receive a final response, in writing, with the findings of the investigation and a
copy of the SROI (if available).”). On October 15, 2004, Rogers sent Bryant the
final response letter and a copy of the SROI, in compliance with the Air Force
regulations he considered applicable. After receiving the final response letter
and the SROI, Bryant or his wife allegedly leaked information contained in those
documents and informed the press that Pierce was the individual listed under
the duty titles C-26 Program Manager and Counterdrug Coordinator. On
October 22, 2004, The Meridian Star and The Clarion Ledger reported
information from the final response letter and SROI and listed Pierce by name
as a subject of the investigation.
Pierce filed suit against the Air Force alleging a violation of the Privacy
Act. The parties later filed cross-motions for summary judgment. The district
court held that the final response letter and SROI provided to Bryant were not
records protected by the Privacy Act and dismissed the suit. Pierce now appeals.
II.
A. STANDARD OF REVIEW
We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party's favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “We may affirm
a summary judgment on any ground supported by the record, even if it is
different from that relied on by the district court.” Lozano v. Ocwen Federal
Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (quoting Holtzclaw v. DSC
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No. 06-61050
Commc'ns Corp., 255 F.3d 254, 258 (5th Cir. 2001)) (internal quotation marks
omitted).
B. DISCUSSION
To establish that an agency failed to comply with the Privacy Act, a
plaintiff must demonstrate that: (1) the information is a “record” within a
“system of records;” (2) the agency disclosed the information; (3) the disclosure
adversely affected the plaintiff; and (4) the disclosure was willful or intentional.
5 U.S.C. § 552a(g); Jacobs v. National Drug Intelligence Center, 423 F.3d 512,
516 (5th Cir. 2005). The Air Force moved for summary judgment on grounds
that the summary judgment record demonstrated that Pierce could not establish
prongs one, two, or four. The district court held that Pierce could not satisfy the
first prong because duty titles used in lieu of names were not “identifying
particulars,” and thus the use of duty titles did not make the final response
letter and SROI “records” within a “system of records.”3 Specifically, the district
court found that the response that Bryant received did not include Pierce’s name
and held that a duty title is not unique to an individual because many people
have the same or similar duty titles. The district court reasoned that duty titles
change over time and that individuals typically have both a predecessor and a
successor at any specific duty title. Thus, the district court found that although
the newspapers were able to connect Pierce to the allegations against him, the
newspapers could not have made such a connection without information found
outside of the final response letter and SROI. As such, the final response letter
3
The Privacy Act defines “record” as “any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not limited to, his
education, financial transactions, medical history, and criminal or employment history and
that contains his name, or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a fingerprint or voice print or a photograph.” 5 U.S.C. §
552a(a)(4). The Privacy Act defines “system of records” as “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.”
Id. § 552a(a)(5).
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No. 06-61050
and the SROI were not protected records per the Privacy Act, and Pierce’s claim
failed to meet the first prong. As discussed below, we agree that the newspapers
could not have identified Pierce without additional information not released by
the Air Force and that the duty titles released here are not the equivalent of
names of particular individuals.
Appellant first relies on the plain language of the Privacy Act which states
that a “record” is “any item . . . that contains his name, or the identifying
number, symbol, or other identifying particular assigned to the individual, such
as a finger or voice print or a photograph.” 5 U.S.C. § 552a(a)(4). Appellant
argues that this language suggests that duty titles are the equivalent to the
names of particular individuals. We disagree. Although the Privacy Act protects
more than just documents that contain a person’s name, it does not protect
documents that do not include identifying particulars. Here, the district court
found that the duty titles were not numbers, symbols, or other identifying
particulars. Similarly, the district court found that duty titles were not
comparable to captured immutable characteristics such as finger or voice prints
or photographs. The district court reached these conclusions because an
individual’s duty title changes over time, because multiple people can
concomitantly have the same or similar duty titles, and because each individual
has predecessor and successor holders of the same duty titles. We agree with the
reasoning and conclusions of the district court. In circumstances where duty
titles pertain to one and only one individual, such as the examples of identifying
particulars provided in the statutory text (finger or voice print or photograph),
duty titles may indeed be “identifying particulars” as that term is used in the
definition of “record” in the Privacy Act. For the reasons detailed by the district
court, however, the duty titles in this case are not “identifying particulars”
because they do not pertain to one and only one individual. See, e.g., 32 C.F.R.
§ 806b.45 (2007) (permitting disclosure of an individual’s past and present
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No. 06-61050
position title and stateside duty assignments without written consent of that
individual); 32 C.F.R. Pt. 505, App. H (defining “personal identifier” as “name,
number, or symbol that is unique to an individual, usually the person’s name or
SSN”). And the plain language of the Privacy Act does not support the
conclusion that duty titles are identifying particulars.
Appellant next relies on an Office of Management and Budget regulation
to argue that to be a “record” under the Privacy Act, the information does not
have to be unique to an individual, only that it be “about” that individual.
Guidance on the Privacy Act Implications of “Call Detail” Programs, 52 Fed. Reg.
12,990–91 (April 20, 1987). This regulation was promulgated to provide
guidance to agencies creating “call detail programs” that collect and use
information relating to their employees’ use of long distance telephone systems.
Id. at 12,990. The regulation provides that call detail records that contain only
telephone numbers are not records under the Privacy Act, but that when linked
with a name they become such records. Appellant correctly notes that the
Privacy Act’s definition of “record” is thus not limited to purely unique or
immutable identifying information, as telephone numbers can be protected. Id.
at 12,991.
The regulation, however, does not support the conclusion that the final
response letter and SROI are records protected by the Privacy Act. The
regulation states that identifying information alone, unless accompanied by a
link between the identifying information and a specific individual, is insufficient
to make a record protected. Id. (“Standing alone, a telephone number, is not a
Privacy Act record. To achieve the status of a Privacy Act record, a telephone
number must be maintained in a way that links it to an individual’s name or
some other identifying particular such as a Social Security Account Number.
When an agency assigns a specific phone number to an employee and maintains
that information in a way that the name and number are inseparably connected,
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No. 06-61050
there is sufficient identification linkage that a Privacy Act record is created.”).
Thus, the regulation confirms what has been recognized by other courts: To be
a Privacy Act record, the information must be both (1) “about” the individual and
(2) linked to that individual by name or identifying particular. See, e.g., Tobey
v. N.L.R.B., 40 F.3d 469, 471 (D.C. Cir. 1994). The final response letter and
SROI sent to Bryant included the allegations and other information “about”
Pierce. This satisfies the first prong of the definition of “record.” The second
prong, however, is unsatisfied. As explained above, the duty titles in this case
do not qualify as identifying particulars. As such, the final response letter and
SROI did not include the requisite linkage to Pierce by his name or other
identifying particular. The final response letter and SROI are thus not Privacy
Act records.
In support of the argument that duty titles are not unique to an individual,
Appellee points out that at the time the newspaper articles were printed Pierce
no longer held the duty title of C-26 Program Manager, his duty title prior to
2001. The newspaper articles were printed on October 22, 2004. At that time
Pierce held the duty title of Counterdrug Coordinator, his assignment after his
C-26 Program Manager position, and against which only one allegation from the
final response letter and SROI pertained. Thus, Pierce’s duty title had changed,
and all but one of the eight allegations listed in the October 15, 2004 final
response letter pertained to a duty title he no longer held. As such, Appellee
argues that the link to Pierce was not so simple as identifying the current holder
of the listed duty titles because that inquiry would not have identified Pierce
except for as to one of the allegations. The inclusion of one allegation involving
Pierce’s then-current duty title does not mean that the report specifically
identified only Pierce for this allegation, because a person reading the report
would have to know which allegations pertained to military personnel in their
current positions instead of their previous positions. Had the report included
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No. 06-61050
both duty titles and dates for the allegations, the report very well might have
linked specifically to Pierce because only one person could have held his duty
title on those dates. But simply listing allegations by duty titles without
specifying when the personnel involved held those duty titles is insufficient to
turn Pierce’s then-current duty title into an “identifying particular.”
To answer this argument, Appellant relies on Quinn v. Stone, 978 F.2d 126
(3d Cir. 1992). In Quinn, the court determined that data stored in a hunting
records database and accessible by the names of the hunters were Privacy Act
records, despite the fact that some of the information was out-of-date. Id. at 132.
(“As this case demonstrates, the meaningful privacy interest in a particular piece
of information may be lessened by the passage of time, but such an interest is
unlikely to be extinguished. We conclude that this out-of-date home address was
meaningful information and was protected by the Privacy Act.”). The hunting
database stored information regarding where and when the plaintiffs had been
hunting. Critically, the stored information in question linked the plaintiffs’
names to their phone numbers and addresses. In relying on Quinn, Appellant
both fails to respond to the relevant Appellee argument and again fails to satisfy
the second prong of the definition of “record” under the Privacy Act. Appellee’s
argument is that duty titles are not identifying particulars because they change
over time. In the instant case, the duty title for all but one of the allegations was
no longer temporally accurate. The Quinn holding, that an individual may have
a privacy interest in an outdated piece of information, does not respond to
Appellee’s argument. It is true that an individual may have a privacy interest
in outdated information, but that privacy interest is limited to instances where
the outdated information is linked to the individual by name or identifying
particular. Id. at 133 (holding that the definition of “record” pertains to
“information about an individual that is linked to that individual through an
identifying particular”). Thus, Appellant repeats the mistake addressed above
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No. 06-61050
and focuses on the first requirement of a Privacy Act record while failing to
fulfill the second. It is true that the allegations are “about” Pierce, but the duty
titles in this case do not link the allegations to him.
In holding that the documents were not “records,” the district court relied
on Fleming v. United States R.R. Ret. Bd., No. 01-C-6289, 2002 WL 252459 (N.D.
Ill. Feb. 21, 2002). In that case, an agency summary report, which listed the
plaintiff by a description of his job rather than by his name, was published on its
website listing information regarding an investigation of whether the plaintiff
was conducting his private law practice during official government time. Id. at
*2. Importantly, the investigation at issue was the only one described in the
report, such that other employees at the agency would have no trouble
identifying the subject. Id. (“[H]is was the only disciplinary case described in
[the] . . . report and . . . fellow employees who had been questioned . . . knew that
plaintiff was being investigated.”). The plaintiff claimed that the summary
report was a Privacy Act record. The court held that the information did not
constitute a “record” because the disclosure was “about” the plaintiff but was not
linked to him by his name or identifying particular. Id. The Fleming court
acknowledged that the Privacy Act definition of “record” includes the words
“such as” before the list of example identifying particulars (finger or voice print
or photograph), which indicates the list is neither exclusive nor exhaustive. The
court held, however, that the information in question (plaintiff’s job description)
“would have identified plaintiff only to an individual who had other information
that would have caused that individual to infer from the report that plaintiff was
the subject of the investigation.” Id. (emphasis added). Fleming supports that
information “about” an individual is not a Privacy Act record unless it is linked
to that individual by name or identifying particular and that a description of an
individual’s job is not an identifying particular. Id. Thus, even when those with
inside knowledge are able “to infer” who an undisclosed individual is, the fact
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No. 06-61050
that the insiders have to use “other information” to do so does not justify a
conclusion that the released information is a “record.”
Appellant argues that Fleming is inconsistent with Dep’t of the Air Force
v. Rose, 425 U.S. 352 (1976). In Rose, law review editors brought an action
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel
disclosure of case summaries of service academy honor and ethics hearings with
personal references and other identifying material deleted. 425 U.S. at 355. The
case turned on exemption 6 to FOIA, which exempts “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) (“Exemption 6”). The district
court concluded that Exemption 6 was inapplicable because
disclosure of the summaries without names or other identifying
information would not subject any former cadet to public
identification and stigma, and the possibility of identification by
another former cadet could not, in the context of the Academy’s
practice of distribution and official posting of the summaries,
constitute an invasion of personal privacy proscribed [by Exemption
6].
Rose, 425 U.S. at 357. The Court of Appeals disagreed with this approach, and
held that the district court and the agency must produce the documents in court
and redact the records so as to “delete personal references and all other
identifying information.” Id. at 358 (citing Rose v. Dep’t of the Air Force, 495
F.2d 261, 267 (2d Cir. 1974)). The Supreme Court granted certiorari and agreed
with the Court of Appeals that the documents should be produced and redacted,
and stated, inter alia, that “what constitutes identifying information regarding
a subject cadet must be weighed not only from the viewpoint of the public, but
also from the vantage of those who would have been familiar, as fellow cadets or
Academy staff . . . .” Rose, 425 U.S. at 380. Appellant argues that this passage,
describing the subjective nature of redaction in an Exemption 6 context,
supports the conclusion that there was a Privacy Act violation in the instant case
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No. 06-61050
because Bryant’s knowledge was not taken into account when the final response
letter and SROI were sent to him. Appellant’s reliance on Rose is unpersuasive.
Most importantly, Rose does not apply in the context of the instant Privacy
Act case. Rose deals with the privacy interest of an individual under a FOIA
exemption that the Supreme Court has stated should be construed narrowly.
See United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150–51 (1989)
(“Congress formulated a system of clearly defined exemptions to the FOIA’s
otherwise mandatory disclosure requirements . . . . Consistent with the [FOIA]
goal of broad disclosure, these exemptions have been consistently given a narrow
compass.”); see also Rose, 425 U.S. at 366 (quoting Vaughn v. Rosen, 523 F.2d
1136, 1142 (D.C. Cir. 1975)). While the Privacy Act was designed to provide
individuals with more control over the gathering, dissemination, and accuracy
of agency information about themselves, FOIA was intended to increase the
public’s access to governmental information and was drafted with a strong
presumption for disclosure to allow public scrutiny of government processes.
Thus, the language taken from Rose, specific to Exemption 6 to FOIA, is not
applicable to the Privacy Act, which is an entirely different framework. See
Greentree v. United States Customs Service, 674 F.2d 74, 76 (D.C. Cir. 1982)
(stating that the Privacy Act and FOIA each “has its own functions and
limitations”); Rojem v. United States Dep’t of Justice, 775 F. Supp. 6, 13 (D. D.C.
1991) (“[T]here are instances in which the FOIA denies access and the Privacy
Act compels release. . . . Thus, the Court must evaluate the Plaintiff’s Privacy
Act claim independently.”) (citations omitted); see also Simon v. United States
Dep’t of Justice, 752 F. Supp. 14, 22–23 (D. D.C. 1990) (conducting separate
inquiries despite significant overlap of the two statutes). Courts have noted that
the two statutes have very different goals which result in different outcomes.
See, e.g., Greentree, 674 F.2d at 78 (“It is readily apparent . . . that the Privacy
Act and FOIA substantially overlap. However, it is apparent also that the two
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No. 06-61050
statutes are not completely coextensive; each provides or limits access to
material not opened or closed by the other.”); Tobey, 40 F.3d at 472. With these
differences between the statutes in mind, Appellant points to no precedent that
supports the use of the Rose FOIA Exemption 6 principal in this Privacy Act
case.
One court, however, has contemplated applying the Exemption 6
framework in the Privacy Act context. See Tobey, 40 F.3d at 472; New York
Times Co. v. National Aeronautics and Space Administration, 920 F.2d 1002
(D.C. Cir. 1990). When comparing “similar files,” the document analog in
Exemption 6 to “record” under the Privacy Act, the Tobey court stated that there
was substantial difference between the meanings of the terms. Tobey, 40 F.3d
at 472. Specifically, to qualify as a “record” under the Privacy Act, the
information must be “about” the individual. Id. To qualify as a “similar file”
under Exemption 6, on the other hand, the information need only “appl[y]” to the
individual. Id.; see also New York Times, 920 F.2d at 1006 (citing United States
Dep’t of State v. Washington Post Co., 456 U.S. 595 (1982)). This distinction is
crucial because the “latter category is a broad one, encompassing virtually all
data that relate to an individual; the former, however, includes only information
that actually describes the individual in some way.” Tobey, 40 F.3d at 472. This
makes sense because under Exemption 6 a broad range of documents are
applicable, but there is a limiting second step of weighing the individual’s
privacy interest versus the interest in public disclosure. 5 U.S.C. § 552(b)(6); see
also New York Times, 920 F.2d at 1006. Under the Privacy Act there is no such
second limiting step; instead, documents are filtered by the limitation ingrained
in the definition of “record” that they be both “about” the individual and include
his name or identifying particular. 5 U.S.C. § 552a(a)(4); Tobey, 40 F.3d at 472
(“The Privacy Act notice requirement provides for no comparable bifurcated
analysis that would justify a similarly low threshold for defining ‘records.’”).
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No. 06-61050
This distinction “is necessary given the different functions that [E]xemption 6
and the Privacy Act fulfill” and illustrates why the Exemption 6 approach “does
not translate well to the Privacy Act.” Tobey, 40 F.3d at 472. This difference
demonstrates that the two statutes work fundamentally differently and that
especially in this context, the determination of what is a “record” per the Privacy
Act, the Exemption 6 framework is inapplicable.
Also, to accept Appellant’s reading of Rose would eviscerate the entire
response framework the Air Force has established with regard to complainants.
Complainants will almost certainly know the identity of the person against
whom they lodge a complaint. Under Appellant’s reading of Rose, the Air Force
would be required to investigate every complainant as well as the subject of each
investigation, to determine whether the complainant could identify the subject
before deciding on the response. Using this reasoning, the Air Force should have
released little or no information to Bryant because it should have ascertained
that Bryant knew Pierce’s identity and would likely leak his name to the press.
We are satisfied that Rose does not mandate this outcome.
Finally, Appellant relies on United States Department of State v. Ray, 502
U.S. 164 (1991), another FOIA case regarding Exemption 6, which held that
“invasion of privacy becomes significant when the personal information is
linked” to a particular individual. Id. at 176. In Ray, the Court held that the
names of individuals should be redacted to protect the privacy interests of those
individuals. Even if this FOIA case applied here, it is not helpful to Appellant
because the Air Force did not release Pierce’s name.
We agree with the district court that the final response letter and SROI
released by the Air Force were not “records” within a “system of records” per the
Privacy Act. Emmanuel generated the SROI, a type of report specifically
designed to omit identifying particulars, pursuant to Air Force regulation.
Later, and again pursuant to regulation, Rogers sent the SROI along with a final
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No. 06-61050
response letter to Bryant. The fact that the newspapers made the connection to
Pierce and identified him does not establish a Privacy Act violation. If we were
to accept Appellant’s interpretation of the Privacy Act, the Air Force would not
have been able to respond to Bryant about the results of its investigation of
activities of persons against whom Bryant complained. To be sure, any update
regarding the status of the investigation would have allowed Bryant to divulge
information to the press about the individuals being investigated. The Air Force,
however, followed its regulation and released information it was required to
release after omitting the names and identifying particulars of the subjects of
the investigation, and it cannot be held accountable for Bryant’s intervening act.
The district court correctly granted summary judgment to the Air Force.
III. CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
AFFIRMED.
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