The district court had found that “the responsible employee’s actions resulted in a disclosure actionable under 5 U.S.C. Sec. 552a(b) and (g)(1)(D) of the Privacy Act, and that the actions were ‘intentional or willful’ within the meaning of 5 U.S.C. Sec.
552a(g)(4) such that Plaintiffs were entitled to damages.” This finding was reached even though the district court had held the privacy disclosure was “inadvertent.”
The case arose out of an internal investigation into unauthorized computer usage by prisoners at a UNICOR program at FMC Lexington, during which one of the investigators assigned to the case, Special Investigative Agent Walter Clint Jones, “left behind a green file folder on a civilian employee’s desk that included a roster of all FMC Lexington employees’ names, addresses, Social Security numbers, home telephone numbers, pay grades, and other personal information.” Despite BOP directives to the contrary, the folder was not marked “Limited Official Use” (LOU-Sensitive) or marked with any other indication of its sensitive contents.
At about 3:00 a.m. on March 30, 2001, Jones left the unmarked folder on a desk, and shortly thereafter several prisoners employed in the UNICOR program were admitted to the same area. About two hours after the first prisoner arrived, FMC employee Susan Moore discovered the folder and turned it over to her supervisors. At trial, three prisoners testified that prisoner Charles Kinnard was at Moore’s desk prior to her arrival, despite the fact that prisoners are not supposed to be unsupervised during their work periods.
Acting manager James Jones reported the incident to Associate Warden Ann Mary Carter, who, after meeting with Moore and another supervisor, Mark Barnes, told them “that the folder had been properly secured, [and] asked them to submit memoranda explaining the incident.” She also asked them to keep quiet about the unattended folder. FMC Lexington Warden Maryellen Thoms later elected to consider Jones’ act to be a performance violation and, therefore, the matter was not reported to the BOP’s Office of Internal Affairs.
Regardless, Moore contacted the Union Steward, which resulted in the union filing an official grievance alleging that prison management had violated the Freedom of Information Act and the Privacy Act. The BOP’s Regional Director denied the grievance, and the union invoked arbitration on May 29, 2001. Thoms denied all requests for information, stating there was no evidence of any disclosure of privacy information.
Thoms then issued two memos to FMC staff that contained several factual inaccuracies, including that the file had been properly marked as “LOU-Sensitive” and misstating the amount of time the folder was left unattended. Before the arbitration date, Thoms instructed her Human Resources Manager, Scott Murchie, to destroy the folder.
The Sixth Circuit agreed with the analysis of the district court that Jones’ conduct had resulted in a disclosure under the Privacy Act, specifically 5 U.S.C. §§ 552a(b) and (g)(1)(D), and that “his actions were ‘intentional or willful’ within the meaning of Sec. 552a(g)(4), although his final act of leaving the folder unsecured was ‘inadvertent.’” The appellate court noted that the analysis of Sec. 552a(g)(4) was reviewed de novo as a matter of first impression. Although it found no case directly on point, the Court of Appeals did find “instructive” the case of Doe v. Chao, 540 U.S. 614 (2004).
In Doe, the Sixth Circuit found that “subsection g(1)(D) is intended to ‘deal with derelictions having consequences beyond the statutory violations per se,’ and ‘speaks of a violation when someone suffers an ‘adverse effect’ from any other failure [not covered under subsections (g)(1)(A)-(C)] to hew to the terms of the Act.’” The Court of Appeals noted that the Privacy Act attempted to “strike a balance between the government’s need to collect and maintain information and the privacy interests of the persons to whom such information pertains.”
The appellate court then reviewed the legislative history of the Privacy Act, and found the Senate had said one of the purposes of the Act was “to prevent the kind of illegal, unwise, overbroad, investigation and record surveillance of law-abiding citizens ... or the wrongful disclosure and use ... of personal files held by Federal agencies.”
The Sixth Circuit wrote, “The analysis explains the compromise reached for including the ‘intentional or willful’ standard of conduct rather than a greater standard of ‘willful, arbitrary, or capricious’ action or a lesser standard of ‘negligent’ action ... we conclude that a court may consider the entire course of conduct that resulted in the disclosure in making its required finding under Sec. 552a(g)(4). Such an interpretation will allow recovery under circumstances similar to those here, where an agency’s actions, although inadvertent at the last step, were in flagrant disregard of the plaintiff’s rights under the Privacy Act at other steps along the way and afterward.” Specifically, “a review of the facts in the instant case supports the district court’s conclusion ... [that] Jones carried the folder ... into an inmate-accessible work area ... [and the folder was] not properly marked LOU-Sensitive....”
The Court of Appeals further failed to find persuasive the defendants’ argument that destruction of the folder in question was excusable, and held “the district court here did not abuse its broad discretion in finding that an adverse inference was appropriate here as a spoliation sanction ...” for the destruction of the folder.
The Sixth Circuit affirmed the district court’s finding that the contents of the folder had been disclosed, based upon the testimony of prisoner witnesses, and discounted the testimony of the defendants to the contrary.
Finally, as to the issue of damages, the appellate court found that all of the plaintiffs were “entitled to recover the $1,000 statutory minimum because the cost of ... prophylactic measures each took to prevent harm from the disclosure constituted actual damages.”
They were not, however, entitled to damages for future protective measures. See: Beaven v. U.S. Department of Justice, 622 F.3d 540 (6th Cir. 2010).
Following remand, on February 4, 2011 the district court entered partial judgment to around 88 of the plaintiffs in the amount of $1,000 each. Then, on April 19, 2011, the court granted damages ranging from $1,574 to $9,284.76 to the remaining ten plaintiffs. Finally, attorney fees of $1,454,824 plus costs of $77,305.40 and $36,004.13 in expert witness expenses were awarded to the plaintiffs on February 7, 2012. See: Beaven v. U.S. Department of Justice, U.S.D.C. (E.D. Ky.), Case No. 5:03-cv-00084-JBC-REW.
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Beaven v. U.S. Department of Justice
|Cite||U.S.D.C. (E.D. Ky.), Case No. 5:03-cv-00084-JBC-REW|