United States District Court, Northern District of Illinois, E.D
September 8, 1980
LEWIS J. JACKSON, PLAINTIFF,
VETERANS ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court are cross-motions for summary judgment. For
the reasons herein stated, this court denies plaintiff's motion
and grants defendant's motion.
Plaintiff, Lewis J. Jackson, has brought this suit for damages
claiming that Ms. Quandt, Director of the Veteran's
Administration Hospital, North Chicago, Illinois, intentionally
disclosed confidential information concerning plaintiff to a
third party without plaintiff's prior consent, thereby violating
the Privacy Act. 5 U.S.C. § 552a(b).
The parties agree that the facts are not in dispute. Plaintiff
Jackson was employed by the Veteran's Administration at its North
Chicago Hospital from May 16, 1976 to January 28, 1977, when he
resigned. At the time of his resignation, termination proceedings
were pending against plaintiff.
Sometime between plaintiff's termination and his subsequent
employment on May 17, 1977, a dispute arose between plaintiff and
Ms. Quandt regarding plaintiff's access to the Veteran's
On April 26, 1977, Ms. Quandt wrote a letter to plaintiff in
which she stated that she was imposing limitations on plaintiff's
access to the VA Hospital and in which she apparently warned
plaintiff that he would be subjected to criminal prosecution for
violation of those limitations.
On May 17, 1977, plaintiff obtained employment as a police
officer with the Department of Navy, Great Lakes, Illinois.
It is undisputed that on May 27, 1977, Ms. Quandt, without
obtaining plaintiff's consent, called Leroy Ellis, Chief of
Security at the Naval Base at Great Lakes, Illinois, and
plaintiff's supervisor, to relay to him that VA officials in
Washington, D.C. had told her that plaintiff Jackson had
threatened various VA personnel, and to ask Ellis whether the
Navy Security force and, therefore, plaintiff carried guns. In
addition, it is undisputed that Ms. Quandt further inquired as to
whether the Navy had reviewed plaintiff's references and previous
employment and stated that such a review would have shown that
plaintiff resigned from the VA pending termination for "poor
judgment in the performance of his duties." Ms. Quandt may also
have told Ellis that she had written a letter to plaintiff
excluding plaintiff from the hospital grounds except for certain
The sole question facing this court is whether the information
disclosed by Ms. Quandt to Mr. Ellis concerning plaintiff
constituted an unlawful disclosure within the meaning of the
Privacy Act since plaintiff's consent was not obtained.
Under the Privacy Act's provisions, any disclosure of
information covered by the Privacy Act is prohibited unless
authorized by the prior written consent of the individual whose
information is disclosed or unless authorized by one or more of
the Act's specific exceptions. See, 5 U.S.C. § 552a(b); Local
2047 v. Def. Gen. Sup., 423 F. Supp. 481, 483 (E.D.Pa. 1976)
aff'd. 573 F.2d 184 (4th Cir. 1978); see also, Note, The Privacy
Act of 1976: An Overview, 1976 Duke L.J. 301 (1976).
In the immediate case, defendant concedes that no prior consent
to disclose information was obtained from the plaintiff, and that
Ms. Quandt transmitted the information alleged in the complaint
to Mr. Ellis. Additionally, defendant does not contend that the
information was properly disclosed pursuant to an exception under
Rather, defendant's position, is that the information disclosed
is not covered by the Privacy Act.
Section 552a(b) of the Privacy Act provides, with certain
No agency shall disclose any record which is
contained in a system of records by any means of
communication to any person,
or to another agency, except pursuant to a written
consent by, or with the prior written consent of, the
individual to whom the record pertains.
Section 552a(g)(1)(D) provides in relevant part that:
Whenever any agency . . . (D) fails to comply with
any other provision of this section, or any rule
promulgated thereunder, in such a way as to have an
adverse effect on an individual,
The individual may bring a civil action against the
agency, and the district courts of the United States
shall have jurisdiction in the matters under the
provisions of this subsection.
In order to prevail in this action, plaintiff must show that
the information disclosed constituted "a record which is
contained in a system of records" pursuant to the Privacy Act.
While defendant concedes that the plaintiff's personnel file
("OPF") is such a system of records within the meaning of the
Privacy Act, it is defendant's contention that the information
disclosed was not a record contained in plaintiff's OPF or in any
system of records concerning the plaintiff.
Apparently arguing in the alternative, the defendant also
contends that none of the disclosed information is protected or
intended to be protected by the Privacy Act of 1974.
First, we note that plaintiff Jackson concedes that Quandt's
disclosure of information relating to Jackson's activities
subsequent to his termination from the VA Hospital is not covered
by the Privacy Act's protections.
Consequently, plaintiff's only argument concerns Quandt's
disclosure of the fact that Jackson resigned pending termination
proceedings, a fact which is, and which defendant acknowledges
is, contained in plaintiff's OPF file.
Our inquiry, then, is whether the disclosure of this
information admittedly contained in plaintiff's OPF file is one
subject to the Privacy Act's protections thereby entitling
plaintiff to damages for his alleged injury, which is his loss of
job at Great Lakes. This court finds the reasoning in Savarese v.
U.S. Department of HEW, 479 F. Supp. 304, 306-308 (N.D.Ga. 1979)
to be particularly applicable to the instant case.
In Savarese, an official of the defendant had a telephone
conversation with plaintiff's prospective employer indicating
that plaintiff had had prolonged problems with his employment and
that he had once been absent without leave. This information was
formalized in a letter from defendant to the prospective employer
in which the defendant confirmed his recommendation that
plaintiff not be hired. The conversation and the letter formed
the basis of plaintiff's claim for damages under the Privacy Act.
The plaintiff contended that because the information which
defendant disclosed was contained in a system of records in the
agency, the information could not be disclosed without his
permission. The court, finding such a view implausible, stated
Under plaintiff's view no government employee could
utter a single word concerning any person without
first reviewing all systems of records within the
agency to determine whether or not the information in
question was contained therein. In day-to-day
operations of the federal government, officials are
appropriately called on to make numerous statements
concerning persons who may have information
concerning them contained in a system of records
somewhere within the agency. It borders on the absurd
to contend that all officials should have a pansophic
recall concerning every record within every system of
records within the agency.
The court concluded after considering the Privacy Act's stated
purpose and the related Congressional findings*fn1 that for a
disclosure to be covered by § 552a(b), there must have initially
been a retrieval from the system
of records which was at some point a source of the information.
It went on to state that
. . Congress had as its purpose the control of the
unbridled use of highly sophisticated and centralized
information collecting technology . . . That problem
is not, however, present in this action. On the
contrary, there was no utilization whatsoever of such
an information system to retrieve the information at
issue in this case. It may have been in such a
system, but the uncontradicted evidence shows that no
retrieval or disclosure from such a system was
present. Savarese at 308.
It could conceivably be argued that had the defendant in Savarese
or in this case read from a record or summarized document
specifically retrieved from a system of records, a claim might be
cognizable under the Act. However, in the present action (as in
Savarese) where only independently acquired information was
disclosed, there is no violation of either the letter or the
spirit of the Act.*fn2
As a practical matter, including the kind of disclosure which
occurred in the instant case under the protection of the Act
would create an administrative nightmare, making it nearly
impossible for federal officials to know when communication of
information based on personal knowledge might lead to criminal
and/or civil liability under the Privacy Act. There is no
provision of the Privacy Act which prohibits providing
information to a third party without prior consent of the subject
which a federal official has acquired from personal observation
or knowledge obtained from sources other than a record within the
meaning of the Privacy Act. To hold otherwise is inconsistent
with Congressional intent and with the effective administration
of government programs.
It is noteworthy in this regard that plaintiff's OPF was
forwarded to the National Personnel Records Center following his
resignation from VAMC and was not in the VA's custody or control
after April 8, 1977. At such time as plaintiff transferred to
another federal agency, the folder would be transferred to the
new employing agency upon that agency's request. 5 C.F.R. §§ 293.219
Moreover, in King v. Califano, 471 F. Supp. 180 (D.D.C. 1979),
the plaintiff claimed damages based on the alleged disclosure of
his personnel and medical records in violation of the Privacy
Act. The King Court, citing the OMB Guidelines and Green v.
Veterans Administration, No. 76-461 (M.D.N.C., July 3, 1978),
concluded that the information alleged to have been divulged was
an opinion stated from memory and did not constitute a record
within the meaning of the Act. King, supra, at 181.*fn3 In the
instant case as in Green and King, the official alleged to have
divulged protected information had knowledge of the facts
disclosed independent of any record in plaintiff's OPF or
elsewhere. It would be impossible to assume that Marjorie Quandt,
as Director of the VAMC, would not have had independent knowledge
of the circumstances of plaintiff's resignation given his history
of problems at that facility.
Merely because information disclosed in a telephone
conversation was also contained within plaintiff's OPF does not
sustain an action for damages under the Privacy Act. Granting
that the fact of plaintiff's involuntary resignation was
communicated without plaintiff's prior consent, the inquiry must
go further. The record shows that Quandt did not and could not
have referred to or utilized records retrieved from plaintiff's
OPF at the time of or prior to the conversation. Even though the
fact of plaintiff's resignation pending termination is a
component of his OPF, the information
Quandt communicated was not retrieved or disclosed from a record
within his OPF. There not only is no evidence to indicate that
Quandt had ever seen the folder, plaintiff has argued that this
fact would be irrelevant. This court disagrees.
Accordingly, it is ordered that plaintiff's motion for summary
judgment be and the same is hereby denied, and that defendant's
motion be and the same is hereby granted.