Appeal from the United States District Court for the District of Columbia (No. 97cv02199)
Before: Randolph, Rogers, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
In this case, three federal prisoners allege that the Federal Bureau of Prisons maintained a secret file of photographs of inmates and their visitors in violation of several provisions of the Privacy Act, as well as the federal statute that created the Inmate Trust Fund. The district court granted summary judgment to the government on all counts. We affirm with respect to one of the Privacy Act claims. Because we find that genuine issues of material fact preclude summary judgment on all remaining claims, we reverse and remand for further proceedings consistent with this opinion.
The Federal Bureau of Prisons (BOP) permits individual institutions to operate the "Inmate Photography Program," giving inmates the opportunity to have photographs taken with their visitors. Inmates pay a one dollar fee for each picture into the Inmate Trust Fund, which consists of money spent by inmates nationwide at prison commissaries and on other Trust Fund programs. The Fund pays for cameras, film, processing, and administrative costs associated with the Inmate Photography Program. BOP regulations allow prisons to offer inmates duplicate prints provided that doing so does not increase processing costs. Because developing services often offer free "double prints," most BOP institutions gave inmates (at the time of the events leading to this case) the second print.
Appellants, federal prison inmates Keith Maydak, Gregory
Smith, and Paul Lee, noticed that several prisons were giving
inmates only single photographs. An envelope obtained by
Lee from a photo developer revealed that although BOP
actually received double prints, inmates never received the
second copy. At several of the institutions in which appellants were incarcerated, BOP officials acknowledged that they
did in fact develop and keep duplicate photographs. For
example, officials at the McKean and Ray Brook federal
correctional institutions (FCI) explained that duplicates of
inmate-purchased photographs were given to the Special Investigative Supervisor's (SIS) office, which reviewed them for
"investigative or informative value." Roy Decl. ¶ ¶ 7, 9
(McKean); Cross Decl. ¶ ¶ 6, 8 (Ray Brook). Photos having
such value were "added to, and retained in, active investigation case files"; remaining duplicates were "stored in a box
for approximately six (6) months and then destroyed." Roy
Decl. ¶ 9; accord Cross Decl. ¶ ¶ 8-9. At the Beckley and
Cumberland federal correctional institutions, officials reviewed inmate-purchased photos for "gang-related activity."
Painter Decl. ¶ 3 (Beckley); Alvarado Decl. ¶ 6 (Cumberland).
At Beckley, "[i]f a photo showed gang-related activities, a
scanned copy was made and displayed in the SIS office for a
short period of time, then it was shredded." Painter Decl.
¶ 3. At Cumberland, such photographs were "scanned into
the computer and maintained in the SIS Office." Alvarado
Decl. ¶ 7. An official at the Lewisburg penitentiary declared
that the institution never developed duplicate photographs.
See Hoekman Decl. ¶ 4. Instead, SIS reviewed "the single
`print' to ensure that no one in the photograph made an
obscene gesture, and to ensure that nothing in the photograph pose[d] a threat to institution safety or security." Id.
¶ 6. In addition, Beckley and McKean officials acknowledged
that on a few occasions, inmate trust funds had been used to
develop duplicate prints that, instead of being given to inmates, were used or retained by BOP. See Clifton Decl. ¶ 3
(Beckley); Fitch Decl. ¶ ¶ 4-5 (McKean).
Proceeding pro se, appellants filed suit in the U.S. District Court for the District of Columbia alleging (among other things) that BOP's maintenance of what they call the "Secret Squirrel Photo File" violated the Privacy Act of 1974. See Pub. L. No. 93-579, § 3, 88 Stat. 1897 (1974) (codified at 5 U.S.C. § 552a (2000)). They also alleged that by using the second print for investigative purposes, BOP violated 31 U.S.C. § 1321 (2000), the statute that created the Inmate Trust Fund (formally known as the Commissary Fund). The district court initially dismissed the complaint for failure to state a claim. See Maydak v. United States, No. 97-2199 (D.D.C. Mar. 31, 1999). On appeal, this court vacated the dismissal of the Privacy Act and Inmate Trust Fund claims and remanded for further proceedings. See Maydak v. United States, No. 99-5187, 1999 WL 1006593, at *1 (D.C. Cir. Oct. 27, 1999). Acting on the basis of declarations submitted by BOP officials at several of the institutions at issue in this case -- Beckley, Cumberland, Lewisburg, McKean, and Ray Brook -- the district court on remand granted summary judgment to the government. See Maydak v. United States, No. 97-2199, slip op. at 11-12 (D.D.C. May 4, 2001) ( Maydak I ); Maydak v. United States, No. 97-2199, slip op. at 4-5 (D.D.C. Mar. 22, 2002) ( Maydak II ).
Appellants filed a notice of appeal, and we appointed Bruce V. Spiva as amicus curiae to present arguments on their behalf. We review the grant of summary judgment de novo, applying the same standards as the district court. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment may be granted only "where there are no genuine issues of material fact, and all inferences must be viewed in a light most favorable to the non-moving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). We consider appellants' Privacy Act claims in part II, their Trust Fund claim in part III, and several unrelated claims in an unpublished judgment issued herewith.
"[I]n order to protect the privacy of individuals identified in information systems maintained by federal agencies," the Privacy Act regulates "the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act, § 2(a)(5), 88 Stat. 1896. "The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements." Doe v. Chao, 124 S. Ct. 1204, 1207 (2004).
The Privacy Act imposes a series of substantive and procedural obligations on federal agencies that maintain what is known as a "system of records." A system of records is "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5). A "record" is "any item, collection, or grouping of information about an individual that is maintained by an agency ... that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph." Id. § 552a(a)(4). "Maintain" means "maintain, collect, use, or disseminate." Id. § 552a(a)(3).
Appellants claim that BOP's maintenance of the so-called Secret Squirrel Photo File violates Privacy Act subsections 552a(r), (e)(4), (e)(9), and (e)(11). These provisions require agencies to establish rules of conduct for employees who develop or maintain systems of records and to report certain information regarding those systems. Appellants also allege that the photo file violates subsections 552a(e)(1), (e)(2), (e)(3), (e)(7), and (e)(10), which regulate the collection and maintenance of the records themselves.
The district court concluded that none of the cited Privacy Act provisions applied to BOP's photo file because the institutions at which appellants were incarcerated did not maintain the photographs in a system of records. As we explain below, however, under the law of this circuit, incorporation of a record into a system of records is not required to trigger subsection 552a(e)(7). With respect to the other alleged Privacy Act violations, we believe that contested issues of ...