Jane DOE, Appellant, v. UNITED STATES of America, et al.
No. 84-5613
United States Court of Appeals, District of Columbia Circuit
Decided June 19, 1987
Argued Dec. 2, 1986.
821 F.2d 694
For the reasons stated in this opinion, the jury verdict of August 21, 1985 is vacated and the case is remanded to the district court. The district court‘s award of sanctions is affirmed.
Affirmed in part and reversed and remanded in part.
Wendy M. Keats, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph
Bruce J. Terris, with whom Monica Blong Wagner, was on the brief, for appellant.
Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH BADER GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
Dissenting opinion filed by Chief Judge WALD.
Dissenting opinion filed by Circuit Judge MIKVA, with whom Circuit Judges SPOTTSWOOD W. ROBINSON, III, and HARRY T. EDWARDS join.
RUTH BADER GINSBURG, Circuit Judge:
This case arises under the civil remedies prescriptions of the Privacy Act,
The ROI in question contains the agent‘s and Doe‘s sharply conflicting accounts of what Doe said at the interview; it reports that “[t]here is no reason to doubt the statements made by [the] [a]gent,”2 but it does not announce which account—Doe‘s or the agent‘s—the Department believes. The precise issue before us is whether the ROI so maintained satisfies the Privacy Act standard, directed initially to the agency, then to the reviewing court, that all records concerning individuals be maintained with “such accuracy ... and completeness as is necessary to assure fairness to the individual.”
Doe sought primarily an order requiring not correction of the March 1981 ROI, but its physical removal from her files; she also requested damages.3 The district
The district court ultimately ruled that, except for specific, relatively minor amendments, which it ordered to clarify the March 1981 ROI,4 that report, as maintained by the State Department, was as “accurate” as was “necessary to assure fairness” to Doe. We hold that the district court correctly defined the responsibility Congress assigned to the recordkeeping agency and to the reviewing court in the Privacy Act, and we affirm the district court‘s judgment.
I.
In the fall of 1980, plaintiff Jane Doe applied to the State Department for a position in the foreign service. The Department pursued the background investigation routine for such applications. As part of the investigation, on January 23, 1981, Doe was interviewed by Department Special Agent, Billy N. Hughes. Notable discrepancies appeared when the Department checked Doe‘s application and her responses at the January 23 interview against her military and Veterans Administration (VA) records. In particular, Doe had answered “no” on State‘s application form to an inquiry whether she had “ever had medical treatment for a mental condition.” Her military and VA records revealed, however, that she was receiving a disability pension from the United States predicated in significant part on a mental condition.
To obtain Doe‘s explanation for this and other apparent inconsistencies between her current representations and her prior records, the Department instructed its agent Hughes to reinterview Doe. Hughes did so on March 26, 1981. According to Hughes, Doe explained at this second interview that she in fact suffered from no mental condition, but had dishonestly claimed to have a depressive condition in order to obtain disability pay, with its tax advantage over straight retirement pay; Hughes further reported that Doe expressed regret about what she had done. Doe denies ever having made the incriminating statements agent Hughes attributed to her.
Doe did not pursue her foreign service officer application, for she obtained a high level position in another agency. When she encountered a problem gaining a security clearance at that other agency, she obtained from State, in response to her Privacy Act request, portions of the March 1981 ROI, and began the process of seeking to have the report expunged.
Doe submitted long affidavits and legal memoranda explaining, inter alia, that her original depressive symptoms, as later diagnosis revealed, had in fact been hormonally caused and were now corrected by medication. Following the correction of her diagnosis, however, she continued to accept disability retirement benefits based in part (30%) on a “nervous condition.” See Joint Appendix (J.A.) at 51. Doe‘s counsel observed that Doe had “sent the VA a physician‘s report on April 30, 1982, which stated ... that she was no longer suffering from depression“; counsel further asserted that “[it] was the VA‘s, not [Doe‘s] responsibility to review [her] disability benefits based on current medical
The State Department analyzed Doe‘s submissions in detail. State contacted agent Hughes and obtained his specific responses to Doe‘s allegations that he had misrepresented what she had said;5 State also checked or rechecked Doe‘s VA file and educational records. The Department ultimately ordered (1) that the ROI in question be amended in small particulars, and (2) that Doe‘s account of “what she said or did not say” at the March 26, 1981 interview “be made part of the record without affirming or denying her allegations.”6 The Department further stated: “The record should also indicate that there is no reason to question the integrity of Agent Hughes.”7 Doe commenced this action when State refused to expunge or further amend the March 1981 ROI.8
II.
The Privacy Act speaks first and foremost to agencies. It directs them, inter alia, to maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination[.]
To pare this controversy down to its core, we address first the question whether the term “de novo” in the above quoted sentence means something less than what that expression generally signals. We hold that the term has no different, diminished meaning in the context at hand. De novo means here, as it ordinarily does, a fresh,
Essentially then, the district court‘s charge was to put itself in the agency‘s place, to make anew the same judgment earlier made by the agency: Were the amendments Doe requested needed to maintain the record of the March 26, 1981 interview “with such accuracy ... and completeness as is [reasonably] necessary to assure fairness” to Doe?
In sum, the district judge made the same judgment earlier entrusted to the agency head, and he apparently did so for himself, i.e., on the basis of information he found sufficient to make the judgment, and without deferring to the prior agency conclusion on the same matter. Having clarified that how the court is to determine the matter is not in doubt—the determination is to be made de novo—we turn to the critical question in this case: Just what is “the matter” to be determined?
III.
The parties delineate “the matter” at stake differently. According to Doe, “the matter” to be determined is this: Which version of the March 26, 1981 interview—Doe‘s or the agent‘s—does the State Department, and subsequently and independently, the court, choose to believe? Absent that credibility determination, Doe contends, impermissible inaccuracy infects the record. According to the government and the district court, “the matter” to be determined is not what Doe in fact said at the interview. Instead, the dispositive “matter” is whether the March 1981 ROI, as currently composed, meets the Privacy Act‘s instruction that all records concerning individuals be maintained “with such accuracy ... and completeness as is necessary to assure fairness ... to the individual.”
In the typical Privacy Act case, as the district court observed, it is feasible, necessary, and proper, for the agency and, in turn, the district court to determine whether each filed item of information is accurate. See Doe, supra, slip op. at 10, 11. The Act was designed to create “a code of fair information practices” to govern “federal agencies that collect, store, and disseminate personal information about [individuals].” Smiertka v. United States Department of Treasury, 447 F.Supp. 221, 224 (D.D.C.1978), remanded on other grounds, 604 F.2d 698 (D.C.Cir.1979). An agency, we think it plain, dishonors the Privacy Act standard of “accuracy ... necessary to assure fairness” if it collects and keeps without careful investigation derogatory information from unreliable sources or of a kind that could be run to earth with a reasonable degree of certainty. An agency will not have “done what is reasonable in assuring the accuracy of [its] information,” Edison v. Department of the Army, 672 F.2d 840, 843 (11th Cir.1982), if it squirrels away, deliberately or out of bureaucratic habit, unsubstantiated rumors, McCarthy-esque innuendo, unchecked reports of dubious informers or prying neighbors. See H.R.Rep. No. 93-1416, 93d Cong., 2d Sess. 4-5 (1974).14
The Department in this case, however, did not neglect its statutory duty to “assure fairness” when individuals, situated as Doe is, complain. Mindful that “only [Doe] and the reporting agent ... were present during the [March 26, 1981] personal interview,” the Department considered it particularly important to verify the ROI contents, to the extent possible, against the “factual record,” i.e., Doe‘s VA file and her educational records.15 By
Only when the Department had narrowed the controversy to what Doe said—as distinguished from what in fact existed in the world outside the Doe/Hughes interview—did the Department allow the conflicting accounts to stand together as part of the ROI. The Department settled on that course, we note, only upon finding no reason to doubt that agent Hughes had acted with integrity and in the manner expected of him. See supra note 7 and accompanying text. The verification steps and checks undertaken by the Department, and the corrections made based upon that review, the district court indicated and we conclude, rendered the March 1981 ROI a record maintained with the accuracy and completeness reasonably required to assure fairness to Doe. See supra notes 10-13 and accompanying text.
These were the choices the Department faced once it resolved every issue save what Jane Doe said at the unwitnessed, untaped interview. First, State might have capitulated to Doe‘s insistence that the ROI be expunged unless the Department, in a trial-type proceeding, determined where the truth lay. See Appellant‘s Brief at 51-55 (examination and cross-examination of Doe and Hughes are essential).
Second, having found “no indication that Agent Hughes acted in any manner other than what was expected of him,”17 the Department might simply have rested upon Hughes‘s report of Doe‘s words, and flatly refused Doe‘s record amendment request to the extent that it concerned what Doe said. In that event, Doe would have had the statutory right “to file with the [Department] a concise statement setting forth the reasons for [her] disagreement with [State‘s] refusal” to amend the record.
Third, the choice in fact made by the Department, State could recognize that what Doe said at the March 26, 1981 interview is indeed “unknowable” by third persons, and that, consequently, a file setting out both Hughes‘s version and Doe‘s may be more accurate than a record embracing only one side‘s story. See Doe, supra, slip op. at 11 (district court‘s conclusion that choice Department made best served accuracy).
Did the Department, in effect, do no more than the law already required of it in allowing Doe to include in the record her version of what she said? There is a genuine difference, we believe, between the ROI State maintained, which comprehends that truth may lie in the middle ground between divergent accounts each affirmed by one
Did Congress allow the Department to choose a middle way, or does the Privacy Act rigidly adopt an adjudicatory model forcing a decision for one side and against the other? District judges, of course, sitting alone or instructing juries, are “at home” with the task of finding what “truth” is more probable than not. But judges so engaged know that they, or the juries they instruct, make definitive findings out of necessity; a winner must be declared, although in the generality of civil cases that go to trial, a decision for either side would be reasonable. We do not discern in the Privacy Act any unyielding instruction always to adjudicate in that customary bipolar way so as to find and record “truth,” rather than to adjust a file equitably to reveal actual uncertainty.19
CONCLUSION
The Department fulfilled its responsibility under the Privacy Act when it verified the March 1981 ROI, to the extent possible, against the factual record, and narrowed the controversy to Doe‘s statements at the March 26, 1981 interview. Having no reason to doubt that its agent Hughes acted with integrity in the manner expected of him, the Department refused to expunge Hughes‘s version of the interview. At the same time, the Department complemented the ROI with Doe‘s conflicting account of the interview. Reviewing the Department‘s performance, and arriving at its own judgment of how “accuracy is best served” in this case, Doe, supra, slip op. at 11, the district court thought it a fair accommodation, one consistent with the Privacy Act‘s terms and purposes, to retain as part of State‘s ROI the contradictory descriptions of agent Hughes and interviewee Doe, the two sole participants in, and auditors of, the episode in question. We agree for the reasons stated in this opinion.20
The judgment of the district court is therefore
Affirmed.
I write separately because of my deep concern about the implications of today‘s majority decision for the future of the Privacy Act. By allowing agencies to retain in files maintained on individuals accusations of alleged damaging admissions by the subjects of the files without any need to determine the accuracy of such accusations or their fairness to the individuals, the court writes out of the Act‘s protections a significant source of unevaluated yet potentially ruinous material, with critical consequences to the future of the individuals involved. The majority‘s rationale, unless cabined in some principled way I cannot find in its opinion, could pave the way for the return of the old-style government dossier replete with unfiltered and unproved charges.
I. THE FACTS
In this case, the State Department‘s file on appellant Jane Doe includes a report submitted by a State Department agent named Billy N. Hughes. Hughes’ report states that during his interview with Doe she admitted that she had faked an illness in order to get government disability benefits. Doe denies ever making such an admission during the interview and requested the State Department to amend its file on her by deleting the statement about the admission from the agent‘s report. The State Department responded:
It is possible that when Agent Hughes asked her about the VA benefits ... she did, in fact, tell Agent Hughes what he wrote in the [report].... [T]hose areas in contention (what she said or did not say) [shall] be made part of the record without affirming or denying her allegations where it is patently impossible to do so. The record should also indicate that there is no reason to question the integrity of Agent Hughes....
Joint Appendix (J.A.) at 59, 64.
Doe then sued the State Department, asking the District Court to order the State Department to delete the statement from its record. On the State Department‘s motion for summary judgment, the District Court dismissed Doe‘s claim. In its memorandum opinion, the District Court explained its decision: “[A] determination of truth or falsity was not possible since only two people were present at the interview and their recollection of what was said is so contradictory.” J.A. at 17 (footnote omitted).
II. WHAT THE PRIVACY ACT REQUIRES
The Privacy Act grants an individual the right to request an agency to amend a record pertaining to her when “the individual believes” that “any portion” of the record “is not accurate.”
Section (d) does not itself state any standard of proof that an agency must use in deciding whether to grant a request to amend. Section (e), however, states that an agency must “maintain all records which are used by the agency in making any determination about any individual with such accuracy ... as is reasonably neces
In many cases, perhaps most, fairness to the individual will require that the disputed material be more likely accurate than not.1 But fairness may not always demand proof of accuracy by a preponderance of the evidence. In some instances, a lesser burden—like substantial evidence—might suffice. The crucial point, however, is before an agency may deny an amendment request, it must determine that the material in its records is sufficiently likely to be accurate that keeping the material in the record is fair to the individual. If the agency cannot determine that keeping the information in the file is fair, then it must grant the amendment request, either by correcting the material or by deleting it from the record. Otherwise, the agency fails to fulfill its statutory duty to “maintain all records ... with such accuracy ... as is reasonably necessary to assure fairness to the individual.”2
The majority, however, refuses to apply this statutory standard to the present case. Instead, the majority allows the State Department to keep in its records Agent Hughes’ assertion that Doe admitted to faking an illness to receive government benefits as long as the State Department also includes in its record Doe‘s denial that she made this admission to Hughes. According to today‘s decision, neither the State Department nor the District Court needs to evaluate the accuracy of Hughes’ statement or determine whether keeping it in the file is fair to Doe.3
Certainly lawyers and judges who read the majority‘s decision must ask themselves: “Just what is the rule of the case? On what principle, if any, is it based?” I frankly cannot answer those questions. The majority, at one point, protests emphatically that its holding would not apply to different circumstances in which one person claims that another admitted something damaging in an unrecorded and unwitnessed conversation. See Maj. op. at 701 n. 20. The majority tells us that its “decision ... is securely cabined by [the following] facts: an experienced agent whose actions and integrity the Department found no tenable reason to question; an agency that diligently investigated all facets of the matter susceptible of objective verification.”
In addition to being fuzzy, the majority‘s reasoning is untenable. First, the fact that the agency has no reason to doubt the integrity of Doe‘s accuser does not justify an exception from the statutory standard, although it might be relevant to the agency‘s evaluation of the likelihood that the person‘s statement about Doe is accurate. Indeed, in some cases the agency‘s confidence in the integrity of its own agent (or even a highly reputable private citizen) might itself provide a basis for the conclusion that the disputed assertion is sufficiently accurate to be fair. The critical difference between the majority and myself is that I can find no warrant in the Act for dispensing with the duty to decide if the statement is accurate enough to be fair. Suppose, for a moment, that the statement about Doe in the State Department‘s file was that she had admitted to past Communist associations, homosexual relations, or child abuse. If Doe claimed that the statement was inaccurate and requested its deletion from the State Department‘s records, it certainly would not be fair under the Privacy Act for the State Department or the District Court to deny this request, without judging the accuracy of the statement, because the State Department had no reason to “question” the integrity of Doe‘s accuser.4
Next, the majority draws a distinction between those cases in which an agency has done all that it can to verify “objective[ly]” whether the subject of its file did what she allegedly admitted to doing, and those cases in which the agency has not conducted an objective investigation. See Maj. op. at 701 n. 20. But, again, I do not understand why this distinction should ever allow an agency to evade its duty under the Privacy Act to judge the accuracy of its records when faced with a claim that a record is inaccurate.
In some cases, an agency may be able to find objective evidence that an individual did what she allegedly admitted to doing. For example, if the assertion in the agency‘s record is that Doe admitted to membership in the Communist Party, an examination of the Party‘s membership list would reveal whether her name was on the list. This evidence would be relevant to whether she told someone that she was a member of the Party and the agency certainly could consider this evidence in judging the accuracy of that assertion, if she continued to dispute its accuracy.
In other cases, however, no such “objective” evidence may exist. For example, proof of the act of child abuse, sexual harassment, or a homosexual relationship itself often turns on one person‘s word against another‘s, in the very same way as proof of an admission to engaging in these kinds of activities does. To use the Communist associations example, what if the only “objective” evidence were that Doe was seen attending several meetings of a Communist-front organization? An agency investigator asserts that, when asked why she participated in these meetings, Doe said that she was a Communist. Doe, how
In the end, the majority bases its holding in large measure on the grounds that what one person told another in a conversation attended only by the two is “unknowable” by third persons. See Maj. op. at 700. But this reasoning cannot justify the exemption of alleged admissions, whatever the circumstances, from the statutory standard. It is obviously true that the agency cannot “know” with absolute certainty whether the individual in fact made the alleged admission. But the Privacy Act does not require absolute certainty about the accuracy of agency records. The Act demands only a sufficient likelihood that a disputed assertion about an individual is accurate to meet the standard of fairness. Agencies and courts are entirely capable of making this kind of judgment about alleged admissions. There is no basis in the text or legislative history of the statute for adopting a different rule for determining the accuracy of alleged admissions than the rule which governs other kinds of assertions about individuals.6
Thus, I have no sense at all about the scope of today‘s decision, or on what principle it is based that may or may not have application in future cases. Perhaps it is a ticket good for one ride only. Perhaps we now have “the trusted agent” exception to the statutory requirement that the agency and the court assess the accuracy of disputed statements about individuals in the agency‘s records. Read most hospitably, the majority‘s exception must at least extend to any case in which the agency has no reason to “question” the “integrity” of the person who assertedly heard the damaging admission and in which the agency has completed a search for “objective” evidence to back up one or the other‘s story. If the last description is accurate, then I fear today‘s decision covers a host of disturbing situations, because many alleged admissions involve matters that are not “susceptible to objective verification.”7 But regardless of the intended or actual scope of today‘s decision, it is an unjustified aberration from the legal rule mandated by
III. THE PROPER DISPOSITION OF THIS CASE
I would hold that the standard set forth in
In this case, neither the agency nor the court conducted this inquiry. Instead, both claimed that it is “impossible” to determine whether Doe, in fact, had admitted to Hughes that she faked an illness to get government funds. But, as I have explained, the Privacy Act does not require either the agency or the court to judge the accuracy of the agent‘s statement about Doe in any absolute sense; and if, after conducting the proper inquiry, it remains “impossible” to say that the statement is sufficiently likely to be accurate to assure fairness to Doe, then the State Department may not keep the allegation in its record.
Since both the agency and the District Court failed to apply the correct legal standard, there remains the question of “how far” to remand this case for proper proceedings. Normally, one would send the case back to the agency; but because under the Privacy Act the District Court must determine the matter de novo, even if the agency had applied the correct legal standard, its decision would not be entitled to any deference. Therefore, it seems pointless to remand this case to the agency for an initial decision. Consequently, I would remand the case to the District Court for its de novo determination.8
I respectfully dissent.
MIKVA, Circuit Judge, with whom Circuit Judges SPOTTSWOOD W. ROBINSON, III, and HARRY T. EDWARDS join, dissenting: The court today creates a framework for judicial review of a govern
I
The Privacy Act creates a panoply of duties and remedies for a broad range of situations in which the government might have caused harm to an individual by collecting or disseminating false or misleading information. The central command of the Act at issue here requires agencies to keep accurate records. Specifically, it provides that each agency must maintain all records pertaining to any individual with such accuracy as is reasonably necessary to assure fairness to the individual in any determination based on the records.
To supplement the requirements placed on the agencies, Congress also provided for a system of petition and review. Pursuant to the Act, an individual can gain access to and review agency records that pertain to her. Furthermore, the Act permits the individual to request agency correction of any portion of a record that she believes is not accurate. The Act offers an agency two choices when faced with such a request: promptly, either make the requested correction or explain to the individual why it has refused to do so. Alternatively, of course, the agency is free to remove the challenged material altogether. The Act grants the individual the right to administrative review of the agency‘s refusal to make the amendments requested and the right to file a statement of disagreement with the agency setting out her side of the story. According to the Privacy Act Guidelines promulgated by the Office of Management and Budget, the individual‘s statement of disagreement may be included separately or made an integral part of the record to which it pertains. See Legislative History of the Privacy Act of 1974, 1055 [hereinafter “Source Book“]. Pursuant to the Act, whenever the agency discloses the disputed records, it must include this statement and clearly mark the records to indicate the portions in dispute.
The Act also provides civil remedies, two of which are relevant to this case. First, the Act provides for judicial review whenever an agency decides not to amend an individual‘s record as requested (an “amendment” action). In an amendment action, the Act provides that the reviewing court shall “determine the matter de novo” and grants the court the authority to order the agency to amend its records regarding the plaintiff.
The majority correctly portrays Doe‘s Privacy Act request for access to and amendment of the security record maintained by the Department in connection with Doe‘s application for employment in the Foreign Service. Doe‘s request centered on a Department “Report of Investigation” (the “March ROI“) concerning an unwitnessed interview between Doe and a State Department agent. The majority, however, mischaracterizes the agency‘s response to Doe‘s request. The majority asserts that the Department fashioned some novel resolution, whereas in fact the agency responded exactly as contemplated by the Act. As to certain matters, the Department made corrections in the March ROI; as to others, particularly the agent‘s account of admissions made by Doe during the interview, the agency determined that the information met the accuracy requirements of the Act and refused to amend the March ROI as Doe requested, retaining the disputed information in Doe‘s file. In informing Doe of the reason for its refusal, the Department advised Doe that it had no reason to question the integrity of its agent. As obliged under the Act, the Department then included in the ROI Doe‘s counterstatements to the disputed, unamended portions. The Department also notified Doe of her statutory right to seek judicial review of her request for amendment.
Doe‘s subsequent lawsuit sought relief from the State Department pursuant to the Act‘s civil remedy provisions. The district court construed Doe‘s complaint as stating two claims under the Act—one under the amendment provisions and one under the redress provisions. See Doe v. United States, Civ. Action No. 83-00951, slip op. at 6 (D.D.C. July 1, 1984). Relevant to her amendment action, Doe contested the Department‘s decision not to expunge portions of the March ROI as she requested. Doe contended that the agency should have granted her request because the March ROI‘s account of Doe‘s statements made during her interview with the agent is inaccurate. Relevant to her redress action,
II
The majority pitches Doe‘s appeal by using a most selective statutory analysis. The majority couches its opinion in terms of reviewing Doe‘s redress claim, an issue not before the court, and ignores the issue that is before the court, Doe‘s amendment claim. In deciding the wrong question, the majority denies Doe her statutory right to judicial consideration of her amendment request and recasts the Act‘s provisions for judicial review.
My disagreement with the majority is over “the matter” that the Act calls upon the court to determine in this case. Doe‘s amendment claim required the district court to review de novo the State Department‘s decision not to amend the March ROI as Doe requested. Doe‘s amendment request challenged the truth of the March ROI. Thus, whereas the majority claims the court need only ascertain the reasonableness or fairness of the Department‘s response to Doe‘s request, the court in fact must determine the accuracy of the March ROI. In avoiding this inquiry, the majority renders meaningless the de novo review provided by Congress. Once the court‘s duty under the Act is properly understood, the impropriety of the district court‘s dismissal of Doe‘s claim on summary judgment is plain.
A
The term “de novo” is hardly vague—to a court of law. De novo review calls upon the court to “make an independent determination of the issues.” United States v. First City National Bank, 386 U.S. 361, 368, 87 S.Ct. 1088, 1093, 18 L.Ed.2d 151 (1967); accord Chandler v. Roudebush, 425 U.S. 840, 861-64 & n. 39, 96 S.Ct. 1949, 1959-61 & n. 39, 48 L.Ed.2d 416 (1984). The court should determine the matter “anew,” Black‘s Law Dictionary 392 (5th ed. 1979), without deference to the prior administrative proceedings and decision. See, e.g., Weahkee v. Perry, 587 F.2d 1256, 1265 (D.C.Cir.1978). Thus, the court must “determine for itself whether the [amendment] request should have been granted” on the basis of the evidence that was available to the agency and any supplemental evidence presented to the court. White v. Office of Personnel Management, 787 F.2d 660, 663 (D.C.Cir.), cert. denied, — U.S. —, 107 S.Ct. 276, 93 L.Ed.2d 252 (1986); see Doe v. United States Civil Service Commission, 483 F.Supp. 539, 578-79 (S.D.N.Y.1980).
Since the court‘s task is to render anew the decision earlier entrusted to the agency, the court‘s charge is shaped by the agency‘s charge under the Act—establish that the disputed record is accurate. See OMB Guidelines at 40, Source Book at 1053. The agency‘s responsibility when faced with an amendment request corresponds to the individual‘s right to seek access to agency records. The legislative history shows that the Act provides individuals access to records pertaining to them so that they can detect misinformation and seek corrective amendments to inaccurate documentation; the provision is aimed, in part, at improving the accuracy of governmental records. See S.Rep. No. 93-1183, 93d Cong., 2d Sess. 20 (1974), Source Book
Although the statute does not instruct the agency on the standard it must use in judging an amendment request, the standard of accuracy is best understood as that independently required of the agency under the Act. The legislative history of the Act makes clear that the individual‘s right to correction under the access provision complements the agency‘s duty to maintain accurate records. See S.Rep. No. 93-1183 at 50, Source Book at 203; H.R.Rep. No. 93-1416 at 15, Source Book at 308. Accordingly, when considering an amendment request, the proper inquiry for the agency is whether the challenged record is as accurate “as is reasonably necessary to assure fairness to the individual in [any] determination” which may be made about the individual on the basis of the record.
This statutory standard of accuracy is directed to ensuring that agency decisions affecting the individual will be based on accurate information. The overall objective of the standard is fairness to the individual. In order to assure such fairness, it is not “reasonably necessary” that all information contained in agency records be accurate. Only material and potentially injurious information need be accurate to assure fairness to the subject individual in any determination based on the information. That much, at least, is reasonably necessary. Thus, if the agency is likely to rely on the disputed information in making a determination about the subject individual and if the information is likely to be injurious to the individual if relied upon by the agency in making this determination, then the statutory standard demands that the agency, faced with an amendment request, determine that the information is accurate.
The burden is on the individual to establish the inaccuracy of the challenged record. See OMB Guidelines at 38, Source Book at 1051 (advising agencies to place the burden of going forward in an amendment request on the individual); Mervin v. F.T.C., 591 F.2d 821, 827 (D.C.Cir.1978) (holding that the reviewing court correctly places the burden of proof on the plaintiff seeking amendment). The OMB Guidelines suggest that the agency should grant an amendment request if it determines by a preponderance of the evidence that the record is inaccurate. OMB Guidelines at 38, Source Book at 1051. The few courts that have addressed amendment claims have not articulated the standard of proof they applied. Nevertheless, they appear to have adopted the ordinary rule applicable in civil actions, imposing a preponderance of the evidence standard on the plaintiff. See, e.g., Thompson v. Department of Transportation United States Coast Guard, 547 F.Supp. 274, 281, 282-83 (S.D.Fla.1982) (holding that based on evidence before the court, plaintiff had failed to establish inaccuracy warranting amendment); Zeller v. United States, 467 F.Supp. 487, 502-03 (E.D.N.Y.1979) (denying plaintiff‘s request for amendment because “there is no question that the statements contained within [the records] are factually accurate in all material respects“). In the absence of contrary indications from Congress, this traditional preponderance of the evidence standard is appropriate.
In sum, in an amendment case, the court, like the agency, must determine for itself whether the disputed agency record is as accurate as is reasonably necessary to assure fairness to the plaintiff in any determination based on the record. Assuming the disputed information is both likely to be relied upon in agency determinations and likely to injure the individual in those determinations if inaccurate, this inquiry requires the court to decide if the plaintiff has shown by a preponderance of the evidence that the record is inaccurate.
Such a de novo review standard makes amendment cases unlikely prospects for disposal on summary judgment. See Savarese v. United States Department of Health, Education and Welfare, 479 F.Supp. 304, 307 (N.D.Ga.1979), aff‘d mem. 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). The only material issue in such cases is whether the disputed record is
The majority doubts that de novo review obliges the court to accord a “trial-type hearing” on an issue that the agency was not required to hear in the first instance and in fact did not hear. See Maj.Op. at 698 n. 10. De novo review requires the court to assess the issues “as it does in any civil matter tried to the court.” Weahkee, 587 F.2d at 1265. The court determines the accuracy of a factual matter in a civil action in only one way—by hearing and considering the conflicting evidence. When the court‘s judgment on the credibility of witnesses could be determinative, then the court should hear their testimony. See id. at 1266 (holding that the trial court inappropriately resolved the case containing “hotly disputed” material facts “without hearing any testimony from the parties most directly involved“). Other courts addressing amendment actions have so understood the Act‘s de novo review commands. For example, in Thompson, supra, the trial court reached the conclusion that the agency need not “correct” the challenged information only after “having considered the pleadings, the testimony of the witnesses, the exhibits, stipulations and argument of counsel, and the applicable law.” 547 F.Supp. at 274. Even as a matter of first impression, it is not clear that the majority‘s seeming preference for limited judicial review is correct. The judiciary is an institution uniquely devoted and suited to determining factual controversies. In carrying out a task as sensitive as ensuring the accuracy of the government‘s records, it is not at all odd that Congress should employ this finely-honed, truth-divining mechanism as a check on the inclusion of inaccurate or questionable information in the government‘s records—particularly since individuals may not be provided procedural protections before the agency.
The Privacy Act is not unusual in providing for the first hearing on a factual issue before the court on de novo review of an agency‘s determination. See, e.g., First City National Bank, supra, 386 U.S. at 368-69 (interpreting the de novo review provisions of the Bank Merger Act and envisioning a judicial proceeding that includes a hearing); United States v. Idaho First National Bank, 315 F.Supp. 261 (D.Idaho 1970) (following First City and conducting a trial on de novo review). In the cases cited by the majority, there is no material factual issue in dispute; the courts in these cases are conducting de novo review of an agency‘s or trial court‘s determination of legal issues. See Maj.Op. at 698 n. 10. Obviously, in such instances de novo review, like review in any civil action, does not entail a trial-type hearing.
B
Applying these principles to Doe‘s amendment claim, the court must determine whether those sections of the March ROI that the State Department refused to amend, as they existed at the time Doe requested expungement, are as accurate as is reasonably necessary to assure fairness to Doe. The March ROI states that Doe admitted to dishonesty and to scheming to defraud the government; Doe denies having made such admissions. The Department compiled the information for its use in deciding whether to employ Doe for a
The court must decide whether Doe has proven by a preponderance of the evidence that the agent‘s account of her admissions during the interview is inaccurate. Presumably, this determination will require the court to hear testimony from both Doe and the agent and judge the credibility of the two sharply conflicting versions of Doe‘s interview remarks. This task is admittedly difficult; ultimately, what transpired in the agent‘s interview with Doe is unknowable. But this is a task that courts regularly perform in other contexts—hearing the witnesses and deciding which one is telling the truth. No procedure will guarantee perfect accuracy in the records. To err in decision is unfortunately unavoidable even for judges. But the judge must reach a decision. It is the task set upon the court by Congress. The Privacy Act specifically directs the court to make a de novo determination of Doe‘s amendment request, and the factual issue of the accuracy of the March ROI is part of that determination.
Properly, this court should remand the case to the district court. The only material issue of fact—whether the March ROI‘s account of Doe‘s statements is inaccurate—is genuinely, and fundamentally, in dispute. The court itself recognized that if it was required to determine what was said during the interview, “there no doubt would be disputed issues of material fact.” Doe v. United States, supra, slip op. at 10. Given that the court was required to make this factual determination, the court erred in granting the Department‘s motion for summary judgment.
C
The district court and the majority both achieve their result by distorting the statute which governs this case. The district court stated that agency “[r]eview of a record‘s accuracy is required when an individual seeks amendment of the record.” Doe, slip op. at 6. But the court then inexplicably punted this task on review and concluded that in this case, the court is “not required by the statute to make a de novo determination of the ROI‘s accuracy.” Id. at 10. The court thought it need only determine the “reasonableness” of the State Department‘s actions in response to Doe‘s amendment request. The majority affirms this approach. It sees the matter to be determined by the court as whether “the ROI, as currently composed,” meets the Act‘s standard of accuracy and then sustains the agency‘s refusal to expunge the March ROI based on the “steps and checks undertaken by the Department” in adjusting Doe‘s file after her amendment request. See Maj.Op. at 699, 700.
What the majority ignores is that the focus of an amendment claim is not the agency‘s actions in response to the individual‘s request, but rather the merit of the request. See White, 787 F.2d at 663. Congress has mandated that the reviewing court determine de novo whether the challenged agency record should be corrected as requested. That mandate requires the court to consider the accuracy of the record, regardless of the reasonableness of the agency‘s record-keeping procedures. The proper subject of this inquiry is the agency record as it existed at the time of the request, not as it exists after the agency has fulfilled its statutory duty to insert the individual‘s statement of disagreement. Thus, whether the State Department acted reasonably in responding to Doe‘s request is irrelevant to the issue before the court.
Despite the majority‘s deliberate obfuscation, the Act itself plainly articulates two discrete civil remedies. See
Nor is there any inconsistency, as the majority intimates, stemming from the fact that both actions relate to the Act‘s requirement that each agency “maintain all records ... with such accuracy as is reasonably necessary to assure fairness to the [subject] individual.” See Maj.Op. at 701 n. 19. The import of the language for each is markedly different. The Act‘s independent record maintenance requirement directs the agency to do what is reasonable in assuring the accuracy of the information included in its files. It speaks to the agency‘s system of record maintenance, collection, use and dissemination. See
A system of record maintenance that conforms with this statutory mandate may nevertheless result in inaccurate records. In this regard, the majority is incorrect in asserting that “[i]f a record is maintained with the requisite accuracy, then it needs no amendment.” Maj.Op. at 701 n. 19. Recognizing that the statutory duty imposed on agencies may not be enough to ensure accuracy, Congress provided a “way for an individual to correct or amend an inaccurate record.” H.R. No. 93-1416 at 9, Source Book at 302. The Act‘s access and amendment provisions are not simply policing devices; they are aimed at improving the accuracy of government records. See Smiertka v. Department of the Treasury, 447 F.Supp. 221, 226 (D.D.C.1978), remanded on other grounds, 604 F.2d 698 (D.C.Cir.1979). In this sense, they serve as necessary and desirable adjuncts to the agency‘s independent statutory duty. As the Senate Report notes, the provisions “promise to be the most viable of all the methods to guarantee the accuracy of data systems. Unlike more complex internal mechanisms, they are triggered by the most powerful and consistent of motives, individual self-interest.” S.Rep. No. 93-1183 at 20-21, Source Book at 173-74, U.S. Code Cong. & Admin.News 1974, p. 6936. The provisions allow the agency to obtain the views of the individual with the greatest interest and ability to contribute
Once the individual presents evidence that contradicts the agency‘s information, the assessment of whether the agency‘s records are as accurate as is reasonably necessary to assure fairness begins anew, quite apart from the reasonableness of the agency‘s independent record maintenance system. In an amendment action, the individual is not challenging the agency‘s record maintenance system; she is challenging the accuracy of the records that the system has produced. Not surprisingly, the Act requires the individual to go to the agency in the first instance to seek correction. Since it is in the agency‘s best interest to have accurate records on which to rely and since no determination has yet been made based on the records, the agency should be given the first shot at assessing the necessity for correction in light of the subject individual‘s challenge and contradicting evidence.
By contrast, in a redress action, an individual directly challenges the agency‘s system of record keeping. The action presumes that the agency has failed to comply with the Act‘s accuracy requirements in that regard. When an agency has failed to maintain its records regarding an individual with the requisite accuracy and that failure has resulted in some adversity to the individual, the Act provides that the individual may repair to the court in the first instance for redress. An individual‘s success in a redress action is predicated on a finding that the agency has not taken reasonable steps to maintain the accuracy of its files. This determination is not necessarily measured by the degree to which the record may eventually be proven to correspond to the truth. See Edison, 672 F.2d at 843-44; Fagot v. Federal Deposit Insurance Corp., 584 F.Supp. 1168, 1176 (D.P.R.1984). In a redress action, the individual is not challenging the accuracy of the agency record per se; she is challenging the reasonableness and fairness of the agency‘s record maintenance system that has produced the inaccurate record.
The two actions serve two very different, yet complimentary, purposes. One, the amendment action, is designed to prevent injury: the Act permits the subject individual to seek correction of inaccuracies that would be injurious to her if relied upon. The right of action accrues before a determination based on the record has taken place. The second, the redress action, is designed to compensate injury: the Act permits the subject individual to sue the agency for reparations when the agency‘s failure to maintain accurate records has injured her. The right of action accrues after an adverse determination based on the record has occurred. Both actions, in unique ways, encourage improvement of the informational quality of government records. But only the amendment action has the added salutary effects of protecting the individual from injury and providing the government with more accurate information before it acts. These are among the basic primary principles underlying the Act. In stripping Doe‘s amendment action of its force, therefore, the majority twice offends. Congress’ intent in fashioning the Act‘s remedial provisions.
CONCLUSION
The majority seems unsettled by the possibility that Congress meant “de novo” when it said “de novo.” The legislative history suggests that the congressional concerns prompting the Privacy Act‘s enactment were such that only a “new trial” in court on the accuracy of the disputed material would meet those concerns. Whatever the concerns, Congress said “de novo.” Such judicial responsibility cannot be carried out in a summary judgment proceeding in which the trial judge abjures the accuracy question and substitutes examination of the fairness of the agency‘s procedures for the statutory command.
I dissent.