The opinion of the court was delivered by: Moran, District Judge.
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
(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