United States District Court, Northern District of Illinois
March 10, 1981
WESLEY WATERFORD SOUTH, PLAINTIFF,
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.
The opinion of the court was delivered by: Moran, District Judge.
MEMORANDUM AND ORDER
The plaintiff Wesley Waterford South brings this action
claiming that he is entitled to damages under the Privacy Act,
5 U.S.C. § 552a et seq. The defendant FBI released records to a
third party pursuant to the Freedom of Information Act, 5 U.S.C. § 552.
In doing so, the government failed to excise plaintiff's
name from one of the released documents in alleged violation of
the Privacy Act. The document identified plaintiff as a
"potential security informant." An article written in The Chicago
Tribune on May 15, 1978 revealed the contents of the memo, which
plaintiff claims subjected him to "public contempt and ridicule,
loss of dignity and self-respect." He seeks damages from
defendant as a result of his injuries.
Defendant has filed a motion to dismiss the complaint for lack
of subject matter jurisdiction. Plaintiff has countered with a
motion for partial summary judgment as to liability. Both motions
are denied for the reasons hereinafter stated. Plaintiff has
sought answers to interrogatories and requests to produce to
which defendant has
refused to respond. The plaintiff seeks a motion to compel and
sanctions for failure to respond. Defendant counters with a cross
motion for a protective order. Both motions, which are tactically
related to the substantive motions, are denied, and defendant is
directed to answer or object to the discovery requests within 30
days. Finally, the government's motion to strike is denied, the
court not having relied in any respect on the Moss affidavits and
plaintiff now being able to proceed by discovery to determine
The Privacy Act specifies that the government shall not
disclose records pertaining to an individual where the agency has
not first obtained permission from the individual. 5 U.S.C. § 552a(b).
The Act provides a remedy for the violation whenever any
(g)(1)(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 Act further provides that:
(g)(4) In any suit brought under the provisions of
subsection (g)(1)(C) or (D) of this section in which
the court determines that the agency acted in a
manner which was intentional or willful, the United
States shall be liable to the individual. . . .
The defendant makes much of the distinction between sections
(g)(1) and (g)(4). It views the former as a general grant of a
right of action for remedial relief and the latter as a special
waiver of sovereign immunity raising additional jurisdictional
requirements when damages are sought. The plaintiff urges that
(g)(1) provides the threshold jurisdictional requirement and that
(g)(4) establishes only the additional elements necessary for
recovery of monetary damages in an action brought under (g)(1).
We need not decide this issue because jurisdiction in this court
is proper whichever way this court chooses to view the matter.
Under the plaintiff's view, jurisdiction is appropriate once a
violation has been established and the plaintiff is aggrieved by
it. The defendant here concedes improper disclosure and the
plaintiff properly pleads allegations of an adverse effect upon
him. Similarly, if the plaintiff is required to show intentional
and willful conduct as a threshold jurisdictional requirement, he
has adequately pleaded a colorable claim.
Since plaintiff pleads a colorable claim, plaintiff cannot be
foreclosed from seeking discovery to sustain it solely because of
defendant's sworn denials. The motions to dismiss and for partial
summary judgment raise, however, an issue bearing upon the
possible merits of the claim, and it would serve no useful
purpose to further delay disposition of that issue.
The essential dispute between the parties focuses upon whether
the defendant's improper release of documents was "intentional or
willful" within the meaning of the statute. The defendant insists
that its actions resulted from "mere inadvertence" or negligent
conduct for which the Privacy Act provides no monetary remedy.
The plaintiff maintains that the defendant's actions were
intentional and willful as he defines that term, or at the very
least raises a question of fact under the defendant's definition.
The court must squarely define the statutory standard
"intentional or willful" before the parties can determine their
potential rights and liabilities under it. In accord with general
rules of statutory construction, this court will first attempt to
find the plain meaning of the term. The defendant presents the
court with the common definition of these terms as referring to
"conscious," "knowing" and "designed" acts, citing Black's Law
Dictionary. That definition, however, fails to account for more
subtle characterizations that courts have used to describe the
terms. In the securities area, for example, courts have commonly
required something more than negligence but less than a "design"
to impose liability.
In Wasson v. SEC, 558 F.2d 879 (8th Cir. 1977) rehearing denied,
the Eighth Circuit construed the word willful, commenting:
In negligence law the words `willful', `wanton' and
`reckless' are employed singly or in combination to
characterize conduct more heinous or culpable than
ordinary negligence . . . in several securities
cases . . . violations were found where the
defendant proceeded in apparent disregard of or with
reckless indifference to a known obligation or set
of facts. Id. at 887.
The Ninth Circuit in Sorenson v. United States, 521 F.2d 325 (9th
Cir. 1975) defined willful conduct as "reckless disregard for
obvious risks". The Seventh Circuit in Sundstrand v. Sun Chemical
Corp., 553 F.2d 1033 (7th Cir. 1977) observed that recklessness
is sometimes considered a form of intentional conduct for
purposes of imposing liability for some act. Id. at 1039. The
Seventh Circuit held that the district court acted correctly in
employing the intentional or reckless test.
The above discussion indicates that the words "intentional or
willful" are used as terms of art and given broader scope by
courts than the common definition would imply. To properly
construe the statute at issue, this court must attempt to give
effect to its intended meaning. The legislative history of the
Act provides such guidance.
A Congressional statement regarding the "intentional and
willful" standard was reported in the Congressional Record:
The standard for recovery of damages under the
House bill would have rested on the determination by
court that the agency acted in a manner which was
willful, arbitrary, or capricious. The Senate bill
would have permitted recovery against an agency on a
finding that the agency was negligent in handling his
These amendments represent a compromise between the
two positions, permitting an individual to seek
injunctive relief to correct or amend a record
maintained by an agency. In a suit for damages, the
amendment reflects a belief that a finding of
willful, arbitrary, or capricious action is too harsh
a standard of proof for an individual to exercise the
rights granted by this legislation. Thus the standard
for recovery of damages was reduced to "willful or
intentional" action by an agency. On a continuum
between negligence and the very high standard of
willful, arbitrary, or capricious conduct, this
standard is viewed as only somewhat greater than
Congressional Record — Senate S. 21817 (Dec. 17, 1974)*fn1
defendant points out that the differences between the House and
Senate bills were not resolved by a conference committee but
rather they were worked out informally due to the lateness of the
session. See Cell Associates v. National Institute of Health,
579 F.2d 1155
(9th Cir. 1978). Nonetheless, they express
Congressional intent with regard to the meaning of the statute.
The fact that it was not resolved by conference committee does
not defeat that. The defendant also points to amendments to the
House bill that were rejected. Those amendments would have
permitted recovery for a "mistake unintentionally made" and for
"any inadvertent inaccuracy." These standards are both negligence
standards, and the legislative history quoted above clearly does
not provide a remedy for negligent acts. Defendant's argument,
thus, does not undermine the above quoted passage.
Judicial interpretations of the intentional and willful
standard under the Privacy Act are sparse. The only court to
discuss this standard in any detail is the Tenth Circuit in Parks
v. Internal Revenue Service, 618 F.2d 677 (10th Cir. 1980). That
court noted that negligence was not enough but that "it does not
appear that premeditated malice is required." The court cited the
legislative history quoted above. The court's comments suggest a
gross negligence or recklessness standard would be sufficient to
provide a remedy under the Privacy Act.
The Eighth Circuit suggested the standard requires a "knowing"
release of documents,
Bruce v. United States, 621 F.2d 914 at 916-917 (8th Cir. 1979).
Another court has suggested the standard requires evidence of an
"intentional failure," Houston v. Department of the Treasury,
494 F. Supp. 24 (D.D.C. 1979).
This court is persuaded that the "only somewhat greater than
gross negligence standard" should apply in this case. There are
material issues of fact as to whether the plaintiff has met this
standard based upon the evidence in the record. For that reason,
the defendant's motion to dismiss is denied and the plaintiff's
motion for partial summary judgment is denied.