The opinion of the court was delivered by: Marovitz, Senior District Judge.
MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
Plaintiff David Ely brings this action for damages pursuant
to the Privacy Act of 1974 (the Act), 5 U.S.C. § 552a against
defendant The Department of Justice, The Office of the United
States Attorney, Elizabeth Stein, and Norman Lerum, complaining
that Stein disclosed certain records that the FBI had
maintained on him to Lerum, Ely's court appointed attorney in a
separate civil rights action that Ely was then pursuing against
various federal defendants. Presently pending before the Court
are all of the defendants' motions to dismiss and/or for
summary judgment. After full review of the pleadings,
memoranda, affidavits and other materials filed with the Court,
the Court disposes of the motions as follows.
In order to fully understand the posture of the case, some
background information about Ely and his past and current
litigation is necessary. Ely is a federal prisoner currently
incarcerated at the Federal Correctional Facility in Oxford,
Wisconsin where he is serving two consecutive 15 year terms
for conspiracy to distribute cocaine and distribution of
cocaine. His sentence was imposed after he pled guilty to
three counts of a seven count indictment for narcotics laws
violations (Ely I).
Ely had previously been the subject of an investigation by
the FBI regarding an attempted bank robbery for which he was
arrested on August 20, 1982 near Peoria, Illinois. Pursuant to
Ely's plea agreement in Ely I, the government agreed to drop
the charges of attempted bank robbery against him. U.S. v. Ely,
719 F.2d 902, 904 (7th Cir. 1983). Ely then filed a pro se
civil action in the Northern District of Illinois alleging
numerous violations of his constitutional and civil rights by
federal officers and private individuals in connection with the
investigation and his arrest. That case, (Ely II) was assigned
to Judge Leighton who appointed Norman Lerum to represent Ely.
Assistant U.S. Attorney Elizabeth Stein was assigned to
represent all of the federal defendants in Ely II.
During the course of the proceedings in Ely II, Lerum, upon
Ely's request, attempted to issue certain subpoenas directed
to some of the federal defendants. Stein moved to quash the
subpoenas for failure to comply with 28 C.F.R. § 1621, et seq.,
which sets forth the procedures to be followed with respect to
the production or disclosure of any material contained in the
Department of Justice files, and Judge Leighton granted the
motion. Stein also moved to transfer the action to the Central
District of Illinois. This motion was taken under advisement by
Judge Leighton. Prior to the court's decision on the motion to
transfer, Stein gave Lerum certain documents that Ely had
already obtained from the FBI through the Freedom of
Information Act. It is undisputed that the materials that Stein
gave to Lerum contained some of the documents Lerum had
attempted to subpoena on behalf of Ely. Why Ely wanted to
subpoena documents already in his possession is unclear.
Subsequently, Ely requested that Lerum withdraw as his counsel
and Lerum moved to do so. On July 27, 1984, Judge Leighton
granted Lerum's motion to withdraw, refused to appoint a
different attorney to represent Lerum stating his reasons for
the refusal, and granted Stein's motion to transfer venue.
On September 18, 1984, Ely filed a pro se civil action in
this Court, Ely v. Hegarty, No. 84 C 8070 (Ely III) charging
that Stein, Lerum, and Edward Hegarty, Special Agent in Charge,
Chicago Field Office, FBI, engaged in a conspiracy to violate
his constitutional rights. He also charged Lerum with legal
malpractice. One month later, October 18, 1984, Ely filed this
action (Ely IV) charging Lerum, Stein, and the Department of
Justice with having violated certain provisions of the Privacy
Act when Stein gave the documents to Lerum during the course of
The gist of Ely's complaint is that Stein violated 5 U.S.C. § 552a(b)
by giving the documents concerning Ely to Lerum
without first obtaining Ely's written consent. According to the
complaint, Ely alleges that Stein gave the documents to Lerum
to "create, foster, and garner ill thoughts and dislikes
between Plaintiff and Lerum for the purpose of prejudicing
Lerum against Plaintiff." Complaint ¶ 9. The complaint also
alleges that the Department of Justice failed to comply with
the provisions of 5 U.S.C. § 552a(b)(7) by disclosing
information concerning him to another agency, i.e., the U.S.
Attorney's office without the head of the agency making a
request in writing and stating what the disclosure was to be
for, and that Stein, the Department of Justice, and the Office
of the U.S. Attorney failed to comply with the provisions of 5
U.S.C. ¶¶ 552a(c)(1)(A), (B) and (c)(2), (3) by not properly
accounting for the disclosures as required by those sections of
the Act. Finally, the complaint alleges that the Department of
Justice and the Office of the U.S. Attorney failed to comply
with 5 U.S.C. § 552a(e)(10) by not establishing the required
safeguards to insure the confidentiality of plaintiff's
records, and that Stein, Lerum, and the Department of Justice
and Office of the U.S. Attorney all conspired to violate the
aforementioned provisions of the Privacy Act.
The Privacy Act of 1974 serves to safeguard the public
interest in informational privacy by delineating the duties
and responsibilities of federal agencies that collect, store,
and disseminate personal information about many individuals.
Doe v. United States Civil Service Commission, 483 F. Supp. 539
(S.D.N.Y. 1980). The Act limits the kind of information that
can be collected or disclosed and imposes a standard of quality
and diligence on the maintenance of government records.
Individuals can obtain access to agency records that pertain to
them and can seek amendments to records thought to contain
erroneous information. Id.
The Act itself sets forth remedies for violations of its
provisions. A civil damage action may be brought solely
against an "agency." 5 U.S.C. § 552a(g)(1). As the Seventh
Circuit recently held "[t]he Privacy Act authorizes private
civil actions for violations of its provisions only against an
agency, not against any individual." Brown-Bey v. United
States, 720 F.2d 467, 469 (7th Cir. 1983) (emphasis added);
Windsor v. The Tennessean, 719 F.2d 155 (6th Cir. 1983).
Accordingly, all claims against Stein and Lerum must be
The Department of Justice and the Office of the U.S.
Attorney have moved for summary judgment upon the "routine
use" exception contained in 5 U.S.C. § 552a(b)(3). Section (b)
of the Act prohibits unconsented disclosures of information
concerning an individual unless the circumstances attendant the
disclosure place it within one of Section (b)'s exceptions. One
such exception is the routine use exception. Routine use is
defined as a "use of such record for a purpose which is
compatible with the purpose for which it is collected."
5 U.S.C. § 552a(a)(7). That exception allows an agency to make
unconsented to disclosures provided the use to which the
disclosed information is to be put is one which has previously
published in the Federal Register. Zeller v. United States,
467 F. Supp. 487, 503 (E.D.N.Y. 1979). 5 U.S.C. § 552a(e)(4)(D).
In opposition to the motion for summary judgment, Ely has
failed to present any evidentiary material either by way of
deposition, affidavit or as otherwise provided in Rule 56 of
the Federal Rules of Civil Procedure, choosing instead to
merely restate his allegation that the disclosure was made to
garner ill thoughts and dislikes between him and Lerum. Ely's
submissions are clearly inadequate under the Federal Rules.
"When a motion for summary judgment is made and supported as
provided in this Rule, an adverse party may not rest upon the
mere allegations or denials of his pleadings, but his
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. ...