with Stein's affidavit stating that as part of her
representation of the defendants in Ely v. Hersley, (Ely II)
she presented Lerum with a copy of the documents that the FBI
had previously released to Ely pursuant to the FOIA. Also
provided to the Court is a copy of the transcripts of certain
hearings before Judge Leighton in Ely II in which Stein informs
Judge Leighton that she had provided to Lerum "as a courtesy a
copy of the FOIA," the documents that were released under the
Freedom of Information Act . . . to Mr. Ely. . . . (Government
Exhibit No. (e)). A review of the transcript clearly reveals
that the documents were given to Lerum to help him oppose the
motion to transfer venue.
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. 56(e). Having failed to bring
forth a genuine issue, summary judgment must be granted to
defendants on Ely's claim that Stein's disclosure of the
documents to Lerum violated the Privacy Act.
Having determined that the disclosure of the FOIA documents
to Lerum did not violate Section (b) of the Act, all that
remains are Ely's allegations that the Department of Justice
and Office of the U.S. Attorney violated Section (c) of the
Act by not properly accounting for the disclosure and Section
(e) by not establishing appropriate safeguards to insure the
security of his records.
The Act provides that in order to avail oneself of the civil
remedies afforded by it, the lack of compliance with the Act
must result in some adversity to the claimant.
5 U.S.C. § 552a(g)(1)(C), (D); Fagot v. FDIC, 584 F. Supp. 1168 (D.C.P.R.
1984). Additionally, there must be a causal relationship
between the adversity and the agency's violation of the Act.
Id., Edison v. Department of the Army, 672 F.2d 840, 843 (11th
The only adverse effect alleged by Ely is the fact that
Lerum withdrew as his attorney. However, this, according to
Ely, was a direct result of Stein's disclosure to Lerum of the
documents. This disclosure the Court has already determined to
fall within the routine use exception and therefore did not
violate the Act. Ely has made no allegation that any of the
information contained in those documents was incorrect, thus
it is impossible for the alleged failure to properly account
for the disclosure or the alleged failure to properly
safeguard his records to have caused the alleged adverse
effect. It was the disclosure that Ely alleges to have caused
Lerum to garner ill thoughts about him, not the Department's
failure to properly record or account for the disclosure.
Thus, since Ely has not alleged to have suffered any adverse
effect caused by the alleged improper safeguarding and
accounting, his claims under Section (c) and (e) of the Act
fail to state a cause of action and are hereby dismissed.
In summation, the Court concludes that: 1) Stein and Lerum
are not amenable to suit under the Privacy Act and thus are
dismissed from the action; 2) Stein's disclosure of the
documents to Lerum during the course of her representation of
the federal defendants in Ely II falls within the "routine
use" exception and thus did not violate the Act. Therefore,
summary judgment is granted to the Department of Justice and
the U.S. Attorney's Office on Ely's claim that the disclosures
violated the Act; 3) Ely's claim that the Department of
Justice and U.S. Attorney's Office violated Sections (c) and
(e) of the Act by failing to
properly account for the disclosure and properly maintain
their records fails to state a claim since the adversity
alleged could not possibly have been caused by the alleged
violations. The claims are therefore dismissed. This entire
action is hereby dismissed with prejudice.
© 1992-2003 VersusLaw Inc.