Lead Opinion
This аppeal involves several consolidated eases arising under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976) and the Privacy Act of 1974 (Privacy Act or Act), 5 U.S.C. § 552a (1976). In each of these cases the Court below granted summary judgment in favor of the Internal Revenue Service (IRS) and Director Henderson. Seeking to obtain attorney fees and costs relating to the FOIA actions and to have the judgment relating to the Privacy Act suit reversed, Clarkson filed this appeal pursuant to 28 U.S.C. § 1291 (1976). We affirm in part and reverse in part for the reasons which follow.
I. BACKGROUND
Appellant Clarkson has for several years been active in various organizations formed to protest the federal government’s system of taxation. In February of 1979, Clarkson sеrved as the principal speaker at a meeting
The IRS refused these requests on the ground that it maintained no files on any of the entities named in Clarkson’s letters. Dissatisfied with the IRS’s responses to his requests, Clarkson filed his first FOIA suit in propria persona against the IRS and Director Henderson on April 18, 1979. After further correspondence between the parties concerning Clarkson’s FOIA requests, thе IRS provided Clarkson with 109 pages of documents on August 1,1979, and informed him that other documents were being withheld based on certain exemptions from disclosure under the FOIA. On August 31, 1979, Clarkson filed a second FOIA suit in propria persona against the IRS and Director Henderson. Clarkson also filed a Vaughn Rosen motion to compel the IRS to provide him with a detailed justification for the withholding of all documents claimed to be exempt from disclosure under the FOIA. By order of December 28, 1979, the district court consolidated these two suits, granted Clarkson’s Vaughn Rosen motion, and directed the IRS to respond to Clarkson’s FOIA request within thirty days. Clarkson contends that it was primarily because of this order that he received a second group of documents from the Department of Justice on January 18,1980. The district court then reviewed in camera the documents for which the IRS claimed specific exemptions. By order of June 27,1980, the district court granted the IRS’s motion for summary judgment on the basis that the exemptions claimed as to this third set of documents were proper. The costs of the actions were taxed against Clarkson.
Meanwhile, on March 31, 1980, after exhausting his administrative remedies, Clarkson filed a Privacy Act suit against the IRS and Henderson. In this suit Clark-son sought declaratory, injunctive and monetary relief against the defendants for alleged violations of subsections (e)(1), (5) and (7) of the Privacy Act. 5 U.S.C. § 552a(e)(l), (5) and (7) (1976). By order dated July 31,1980, the district court granted summary judgment in favor of the defendants on the ground that the Privacy Act is not applicable to documents which are not contained in the agency’s “system of records” as that phrase is defined by the Act.
Clarkson also filed a series of motions in these cases. On July 24, 1980, he filed a motion for attorney fees in the two FOIA actions. On July 30, 1980, Clarkson filed a motion for a new trial in the FOIA suit. On August 11, 1980, Clarkson filed a motion to consolidate all three cases, a motion for a new trial in the Privacy Act suit, and a cross-motion for summary judgment in the Privacy Act suit. On August 12, 1980, Clarkson filed a motion in opposition to defendant’s bill of costs in the FOIA suits. The court treated the new trial motions and the cross-motion for summary judgment as motions for reconsideration.
Ii: ATTORNEY FEES AND COSTS
Awards of attorney fees and costs against the United States are allowable only to the extent that the government has waived its right of sovereign immunity.
The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
5 U.S.C. § 552(a)(4)(E) (1976). Thus, in the context of FOIA litigation, an award of attorney fees and costs is proper only where the party seeking the award has “substantially prevailed” in the litigation and where the court, in its discretion, determines that such аn award is justified in a particular case. E.g., Cazalas v. United States Department of Justice,
Moreover, with respect to attorney fees, the Fifth Circuit Court of Appeals recently interpreted a similar provision of the Privacy Act to authorize such an award only to the extent that the “services of an attorney were utilized and fees incurred.” Barrett v. Bureau of Customs,
Unlike attorney fees, however, costs of litigation can be reasonably incurred even by a pro se litigant who is not an attorney. Thus, the rationale of the Barrett decision would not preclude a pro se litigant from recovering his costs of litigation if the other requirements of the statute are satisfied. See, e.g., Crooker v. United States Department of Justice,
In the instant case, the district court found, without discussion, that Clarkson had not substantially prevailed in his FOIA suits. As is often the case in FOIA suits brought to enforce an administrative request for documents, the record in this case is somewhat confusing as to when and to what extent the government provided Clarkson with the documents requested in his various letters. Yet it is undisputed that Clarkson received two sets of documents from the government at some point after suit had been filed.
III. PRIVACY ACT CLAIMS
Appellant Clarkson raises several statutory challenges to the IRS’s practice of collecting and maintaining various documents, including surveillance reports, newsletters and press releases, pertaining to him individually. Specifically he asserts that the collection of documents describing his exercise of First Amendment rights violates subsection (е)(7) of the Privacy Act which provides:
(e) ... Each agency that maintains a system of records shall—
(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
5 U.S.C. § 552a(e)(7) (1976). Moreover, he asserts that by maintaining these documents, the IRS has violated two other provisions
Privacy Act which require:
(e) Each agency that maintains a system of records shall—
(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;
(5) 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;
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 thаt 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) (1976). The phrase “system of records” is defined 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;
5 U.S.C. § 552a(a)(5) (1976).
In the instant case, there is no dispute that the IRS is an agency which maintains a system of records. Similarly there can be no dispute that at least some of the surveillance reports or other documents identified by Clarkson are “records” since the IRS has admitted that these documents contain individual references to Clarkson. According to the IRS, these records are not, however, retrievable by Clarkson’s name or other identifying particular. Rather these records are maintained only in a separate file entitled the “Tax Protest Project” file. Because these records have not been incorporated in the agency’s “system of records,” the district court held that the requirements of subsection (e)(1), (5) and (7) were not applicable and that the IRS was not required to comply with Clarkson’s requests for amendment or expungement.
Asserting that the district court’s interpretation of the Act is erroneous, Clarkson urges this Court to adopt the rationale espoused by the Circuit Court of Appeals for the District of Columbia in Albright v. United States,
Conceding that the Albright court’s literal interpretation of the Act is “grammatically possible” the IRS nevertheless contends that this interpretation is erroneous. It asserts that the district court’s decision in this case ascribes the correct meaning to the requirements imposed on the agency by the Act. Thus, the IRS would have us interpret subsection (e)(7), for example, as requiring that an agency shall “maintain no record [which is incorporated into a system of records] describing how any individual exercises rights guaranteed by the First Amendment .... ” Since most of the arguments presented by the IRS are directed toward
A. Subsection (e)(7)
The IRS raises numerous arguments in support of its assertion that the Albright interpretation of subsection (e)(7) is erroneous. Many of these arguments were discussed in detail by the court in Albright and we see no reason to repeat them here. In this case, however, the IRS presents two additional arguments which merit individual consideration by this Court.
The IRS first asserts that if this Court adopts the rationale of the Albright decision, every piece of paper collected by a government agency will subject it to a claim for a subsection (e)(7) violation. We believe the IRS has seriously overstated its case for several reasons. In order for the prohibition of subsection (e)(7) to apply, the documents involved must constitute “records” which implicate an individual’s First Amendment rights. As we have previously noted, at least some of the documents involved in this case clearly fall within the definition of records provided by the Act. 5 U.S.C. § 552a(a)(4) (1976). And, it cannot be disputed that memoranda reflecting the contents of Clarkson’s political speech would be subject to First Amendment protections. Even where records implicating an individual’s First Amendment rights are involved, however, the prohibition against collection of such records is not absolute. Thus, Congress has provided that an agency may collect such records if
expressly authorized by statute or by the individual about whom the record is maintained or [if the collection is] pertinent to and within the scope of an authorized law enforcement activity.
5 U.S.C. § 552a(e)(7) (1976). Indeed, while the first two exceptions are not applicable in this case, the IRS asserted during oral argument that the surveillance of tax protest meetings is an authorized law enforcement activity. The Privacy Act does not specifically define the term “authorized law enforcement activity.” Some guidance is provided, however, by the legislative history and the OMB Guidelines. The objective of the law enforcement exception
Merely because [an agency] may act within its authority by monitoring the public or private speeches of a person in the course of a legitimate security investigation does not give it the right to maintain records relating to the contents of these speeches where the investigation does not focus on a past or anticipated specific criminal act.
Jabara v. Kelley,
The IRS next asserts that even if subsection (e)(7) applies to records not contained within a system of records, Clarkson would be unable to obtain any effective relief under the Act. Although subsections (d)(2) and (d)(3) of the Act require the IRS to amend or expunge its records under certain circumstances, the IRS asserts that the applicability of these subsections is limited to records contained within a system of records.
We find unpersuasive the government’s argument that the Act provides no effective relief for a violation of subsection (e)(7) as interpreted by the Court in Albright v. United States, supra. Section (d) of the Act provides in pertinent part:
(d) Access to records — Each agency that maintains a system of records shall—
(1) 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 and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, ..
(2) permit the individual to request amendment of a record pertaining to him and—
(B) promptly, either—
(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;
(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, ... and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;
5 U.S.C. § 552a(d)(1)(3) (1976). The language of paragraph (d)(1) expressly limits its applicability to records contained within a system of records. See Hanley v. United States Department of Justice,
The IRS asserts that the application of paragraphs (d)(2) and (d)(3) must be implicitly limited by the language in paragraph (d)(1) because the former paragraphs apply only to records obtained under paragraph (d)(1). This argument, however, ignores not only the plain language of the statute, but also the reality that the Privacy Act is not the exclusive means for obtaining access to records maintained by an agency. Without delving into the complex interrelationship between the FOIA and the Privacy Act, we note that the FOIA is, of course, in no way limited to records contained within a system of records. See 5 U.S.C. § 552 (1976). As one commentator has explained: “An individual may utilize the Privacy Act or the FOIA or both to seek access to information about himself in agency records and is entitled to the cumulative total of access rights under the two Acts.”
B. Subsections (e)(1) and (e)(5).
The language of subsections (e)(1) and (e)(5) compels a different analysis. Unlike subsection (e)(7), these subsections do not address the protections afforded to individuals by the First Amendment. Indeed, subsection (e)(1) merely provides a general overall prohibition against the collection and maintenance of information which is irrelevant to the purposes of an agency. By definition the language of this subsection imposes a much less rigorous standard upon the agenсy than that required by subsection (e)(7). See OMB Guidelines,
Similarly, the language of subsection (e)(5) cannot be read to apply to records not incorporated within an agency’s system of records. The objective of this provision is to require an agency to take reasonable steps to insure the informational quality of the records which it relies upon in making determinations about an individual. See, e.g., Edison v. Department of the Army,
Accordingly, we affirm the district court’s decision insofar as it holds that Clarkson is not entitled to an award of attorney fees under the FOIA and that subsections (e)(1) and (e)(5) of the Privacy Act are not applicable to the instant case. With respeсt to issue of costs under the FOIA and the alleged violation of (e)(7) of the Privacy Act, we REVERSE and REMAND to the district court for further proceedings consistent with the views expressed in this opinion.
Notes
. Clarkson’s first letter, dated February 20, 1979, requested copies of all documents
pertaining to me or an organization known as “We the People” or the Georgia Patriots, especially the materials pertaining to the sur-vaillance [sic] operation conducted on 6 Feb 79 at the Holiday Inn in Atlanta.
. We find no error in the district court’s decision to treat these motions as motions for reconsideration. Since one of these motions was served within the time period prescribed by Rule 59 by the Federal Rules of Civil Procеdure, we find that appellate jurisdiction was properly invoked in this case. See Fed.Rules App.Proc. 4(a)(4).
. In construing this portion of the Privacy Act, the court in Barrett concluded that the phrase “reasonably incurred” modifies the phrase “reasonable attorney fees and other litigation costs.”
. Based on the legislative history of the FOIA, courts have identified four criteria to be evaluated in reaching the discretionary determination of whether the award is justified:
1. The benefit to the public deriving from the case;
2. The commercial benefit to the complainant;
3. The nature of plaintiffs interest in the records sought;
4. The basis for the government’s withholding of the requested documents.
. The government asserts, however, that until it received Clarkson’s letter of June 25, 1979, it lacked adequate notice of the documents requested. Recognizing that the mere delivery of information after a suit has been filed does not in itself establish that a party has “substantially prevailed,” Cox v. United States Dept. of Justice,
. Clarkson also alleges that the IRS has violated 5 U.S.C. § 552a(e)(6) by disseminating these documents without making reasonable efforts to insure their accuracy. We will not consider this issue since it was raised for the first time in this appeal.
. The Senate Report makes special note of “the preferred status which the Committee intends managers of information technology to accord to information touching areas protected by the First Amendment to the Constitution.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916, 6971.
. See 40 Fed.Reg. 28949 (1975). The OMB’s authority to promulgate guidelines to the Privacy Act is contained in § 6 of the Act, Pub.L. No. 93-579, 88 Stat. 1896 (1974).
. Criticizing the breadth of this exception one commentator has noted that it “opens a loophole that threatens to swallow the rule” and “may well perpetrate those ‘fishing expeditions’ that subsection (e)(7) is designed to preclude.” Guidebook to the Freedom of Information and Privacy Acts 46, 74-75 n.70 (R. Bouch-ard & J. Franklin ed. 1980).
. Subsection (e)(7) of the Act has rarely been construed by the courts. A similar reference to “law enforcement activities” is, however, contained in subsection (b)(7) of the FOIA. See 5 U.S.C. § 552(b)(7). Examples of properly authorized law enforcement activities in an analogous context may thus be found from a review of FOIA cases involving subsection (b)(7) exemptions from disclosure. See, e.g., NLRB v. Robbins Tire & Rubber Co.,
. The Privacy Act expressly provides for in-junctive relief for only two types of agency misconduct, that is, wrongful withholding of documents under subsection (d)(1) and wrongful refusal to amend an individual’s record under subsection (d)(3). See 5 U.S.C. § 552a(g)(2) & (3). The remedy for violations of all other provisions of the Act is limited to recovery of damagеs upon a showing that the agency acted in an intentional or willful manner. See 5 U.S.C. § 552a(g)(4) (1976); Edison v. Department of the Army,
Section (g) of the Act also contains a detailed provision for establishing jurisdiction. The jurisdictional requirements vary depending on which provision of the Act has been violated. Since Clarkson may fall within at least one of these provisions by establishing a violation of subsection (e)(7) alone, we find it more appropriate to discuss the question of the scope of paragraphs (d)(2) and (d)(3) in terms of an available remedy rather than as a separate basis for jurisdiction. We do not intend to restrict the district court’s ability to reexamine the question of jurisdiction on remand after the appropriate jurisdictional facts have been developed.
. Indeed, the correctness of this explanation is amply illustrated by the ability of the plaintiffs in Albright to obtain a copy of the videotape, see
. In making this comparison, we of course do not intend to suggest that the enactment of the Privacy Act in any way precludes a plaintiff from asserting a constitutional claim for violation of his privacy or First Amendment rights. Indeed, several courts have recognized that a plaintiff is free to assert both Privacy Act and constitutional claims. See, e.g., Metadure Corp. v. United States, 490 F.Supp, 1368 (S.D. N.Y.1980); Jabara v. Kelley,
. The Senate Report confirms this difference in the scope of protections afforded by the various provisions of sеction (e) by noting that only certain subsections, including subsection (e)(7), reflect “another dimension of the privacy issue [which prevails] whether or not the information is intended to be used to make decisions about specific individuals.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916, 6960.
. Indeed, it is apparent that if the IRS had intended to rely on these records to make individual determinations, the Act would require these records to be indexed by the name or other identifying particular of the individuals involved. As the OMB Guidelines make clear:
Systems, however, should not be subdivided or reorganized so that information which would otherwise have been subject to the act is no longer subject to the act. For example, if an agency maintains a series оf records not arranged by name or personal identifier but uses a separate index file to retrieve records by name or personal identifier it should not treat these files as separate systems.
40 Fed.Reg. at 28963 (1975).
Concurrence Opinion
specially concurring:
I agree that the Privacy Act claims in this case should be remanded to the district court for further consideration; I write sep
In addressing the breadth of the exception in subsection (e)(7) of the Privacy Act
The inquiry into the law enforcement exception’s relevance in a given case must, of course, depend on the facts and circumstances. In the case before us, the defendant is a tax protester. Tax protesters often set out to violate the law, see, e.g., United States v. Douglass,
I also add a comment to the court’s holding that a plaintiff who proves a subsection (e)(7) violation “may be entitled to have the offending records amended or expunged even if the records are not maintained within the agency’s system of records.” Ante, рp. 1376-1377. On the facts of this case, where the IRS has admitted the existence of (e)(7) material outside of its records system, I agree that Clarkson may be entitled to relief if the law enforcement exception is found not to apply. I express no view, however, as to whether a plaintiff’s bare allegation that an agency is maintaining records in violation of subsection (e)(7) is sufficient to require the agency to search beyond its system of records for potentially offensive material. I am concerned that such a holding could
cause an enormous burden to be placed upon agencies that maintain records. For each Privacy Act request, a staff would have to cull and screen the countless, potentially millions of pages of documents, regardless of how labelled, indexed, or stored, in order to discover materials pertaining to the requestor. Such a ruling would be contrary to the purpose of the statute and to sound public policy.
Grachow v. United States Customs Service,
. I do not address the issue of costs in the FOIA case or the applicability of subsections (e)(1) and (e)(5) of the Privacy Act.
. 5 U.S.C. § 552a(e)(7) (1976) provides:
(e) ... Each agency that maintains a system of records shall—
(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
(Emphasis supplied.)
Concurrence Opinion
specially concurring.
I enthusiastically concur in Judge Tuttle’s opinion which admirably and painstakingly analyzes a citizen’s First Amendment protection of his freedom of speech rights as amplified by the Privacy Act. However, once again I take issue with the holding that a pro se litigant who substantially prevails cannot recover attorney fees, as I did in Lovell v. Alderete,
Nevertheless, I continue to speak out against an interpretation of the statute that permits reimbursement for money spent for attorney fees but denies it for time spent to accomplish the same result. Time is precious to everyone. Taking time away from gainful employment or enjoyable leisure to enforce one’s rights is a valuable consideration for which reimbursement should be obtainable, and is just as much “a stock in trade” as is an attorney’s time. There is nothing in the Act or Congressional history to suggest that Congress intended to favor a person with money who could afford an attorney over a poorer person who could not, and who could not enlist free legal services.
Therefore, I register my disagreement with this holding, while recognizing that we as a panel are bound by Lovell.