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SOUTH v. FEDERAL BUR. OF INVESTIGATION

March 10, 1981

WESLEY WATERFORD SOUTH, PLAINTIFF,
v.
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.

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 agency:

  (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 ...


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