McCready, Sheila v. Nicholson, R. James

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2005 Decided September 19, 2006

Reissued December 5, 2006

No. 04-5425

SHEILA CLARKE MCCREADY AND

E. ROBERT MCCREADY, JR.,

APPELLANTS

v.

R. JAMES NICHOLSON, IN HIS CAPACITY AS SECRETARY OF THE

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02219)

Joseph G. Cosby argued the cause for appellants. With him

on the briefs was Richard H. Gordin.

Lisa S. Goldfluss, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.

Craig Lawrence, Assistant U.S. Attorney, entered an

appearance.

Before: SENTELLE, GARLAND and GRIFFITH, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Appellant Sheila McCready

claims that her employer, the United States Department of

Veterans Affairs (“VA”), violated various provisions of the

Privacy Act, 5 U.S.C. § 552a, in investigating allegations of

misconduct in her office. McCready alleges that the VA, in the

course of its investigation, created records about her that were

filled with inaccuracies, and that she is entitled under the

Privacy Act to review and amend those records. She also

alleges that the VA improperly disclosed those records to the

media and public, and illegally used them to take adverse action

against her. The District Court granted summary judgment in

favor of the VA on all twelve of McCready’s claims, eight of

which, McCready argues on appeal, should have survived the

VA’s summary judgment motion. For the reasons below, we

affirm the District Court’s judgment in part, reverse in part, and

remand for further proceedings.

I.

In June 1999, the VA’s Inspector General, in response to a

confidential complaint of fiscal mismanagement and operational

abuse, began an audit of the VA’s Office of Congressional

Affairs (the “Office”) and McCready, who had been the head of

the Office since July 1998. On October 21, 1999, the Secretary

of the VA relieved McCready of her responsibilities and

reassigned her to the Office of the Secretary. McCready would

later be reassigned on November 22, 1999, to the Office of the

Under Secretary for Veterans Health Administration. The

Inspector General’s audit produced three documents that have

become the subject of this litigation: (1) a “Draft Audit Report,”

issued only to the Assistant Secretary for Policy and Planning in

3

October 1999;1 (2) a “Final Audit Report,” issued on January 7,

2000, to various VA officials, the Office of Management and

Budget, the General Accounting Office,2 and various

Congressional committees; and (3) an “Addendum Audit

Report,” issued on March 22, 2000, to the same recipients as the

Final Audit Report (collectively, the “Inspector General’s

Reports”). The Inspector General’s Office posted the Final

Audit Report and the Addendum Audit Report on its website in

spring 2000.

On January 19, 2000, twelve days after the Final Audit

Report was released, the Assistant Secretary for Personnel

Management, Edward Powell, sent a memorandum to the

Secretary of the VA (the “Powell Memorandum”), discussing

McCready’s financial management of the Office. That very day,

the Associated Press published an article highly critical of

McCready’s management. A short time later, on February 11,

2000, the Associated Press published a second article about

McCready’s performance. This second article quoted verbatim

from Powell’s private memorandum to the Secretary.

McCready wrote a memorandum to the General Counsel of

the VA on March 17, 2000, responding to the Final Audit

Report’s allegations. McCready similarly responded to the

Addendum Report on March 23, 2000. The Secretary of the VA

asked the General Counsel’s Office and the Office of the

1

The Draft Audit Report is dated October 29, 1999—a date

approximately one week after McCready’s reassignment by the

Secretary.

The “General Accounting Office” is now known as the

2

“Government Accountability Office.” See GAO Human Capital

Reform Act of 2004, Pub. L. No. 108-271, § 8(a), 118 Stat. 811, 814

(2004).

4

Assistant Secretary for Human Resources and Administration to

determine whether the Inspector General’s Reports “provide[]

a basis for an adverse or other action against” McCready. The

General Counsel and Assistant Secretary examined the Inspector

General’s charges and McCready’s responses, and made a

recommendation to the Secretary on July 17, 2000 (the “General

Counsel’s Review”). The VA completely redacted that

recommendation from the copy of the memorandum it provided

to McCready, but the Secretary of the VA wrote to McCready

three days later that “[a]fter reviewing [McCready’s] point-by-

point response to the [Inspector General’s] audit,” he

“concluded that no disciplinary action is warranted” and “[t]he

matter is closed.”

On February 8, 2001, McCready’s counsel requested that

the Inspector General correct several errors in the Final Audit

and Addendum Reports, expunge the entire reports in light of

those errors, or, in the alternative, incorporate McCready’s

response. The Inspector General denied that request.

McCready’s counsel appealed the Inspector General’s decision

to the VA’s General Counsel. Citing the Privacy Act, McCready

again wrote to the Inspector General on March 29, 2001, and

requested various documents relating to the Inspector General’s

audit. The Inspector General responded that “records pertaining

to [McCready] are not maintained in a Privacy Act system of

records” and “therefore, we are processing [McCready’s] letter

as a [Freedom of Information Act] request.”

McCready also requested that various VA offices expunge

the Powell Memorandum. The Director of the VA’s

Information Management Service determined that five offices

within the VA maintained copies of the Powell Memorandum.

The Office of the General Counsel expunged the Powell

Memorandum from its files, but the other offices decided to

retain it. McCready wrote to the remaining four offices and

5

asked them to attach her response to the Powell Memorandum,

or, alternatively, correct the Memorandum based upon her

response, and inform anyone known to possess the

Memorandum of her response and any corrections. The

Inspector General agreed to include McCready’s response in its

files.

McCready and her husband, Robert,3 filed an eleven-count

complaint on October 26, 2001, and a twelve-count amended

complaint on January 24, 2002, alleging that the VA improperly

maintained, disclosed, refused access to, and/or refused to

amend the Inspector General’s Reports, the Powell

Memorandum, and the General Counsel’s Review. In essence,

McCready’s twelve counts sought to compel the VA to correct

alleged inaccuracies in various documents, notify all recipients

(including Congress) that the documents had been amended and

that McCready would not be subject to disciplinary action, and

require the VA to act in accordance with the Privacy Act.

McCready also sought damages, attorneys’ fees, and costs.

The VA requested, without objection from the plaintiffs,

that it be allowed to immediately file what the District Court

deemed “a preliminary motion for summary judgment based on

lack of subject matter jurisdiction.” The District Court granted

that request. Plaintiffs represent in their brief, and the

Government does not contest, that the “parties agreed that the

case would benefit from determining several purely legal issues

before engaging in discovery.” Appellants’ Br. at 11. The

Government filed its motion for summary judgment based on

lack of subject matter jurisdiction, and, shortly thereafter, the

3

The parties have not conclusively addressed what role Robert

McCready has in this litigation. Consequently, in using “McCready,”

we refer only to Sheila McCready and leave it to the parties to clarify

Mr. McCready’s role.

6

Calendar Committee of the District Court reassigned the matter

to a new district judge.

On the merits, the VA argued that the Privacy Act did not

provide the District Court subject matter jurisdiction because the

various documents were not maintained in a “system of

records,” as required by the Act. The VA also argued that,

pursuant to 5 U.S.C. § 552a(k)(2), the Inspector General’s

Reports were exempt from some of the Privacy Act provisions

at issue because they were investigative materials compiled for

law enforcement purposes. Some of McCready’s claims also

failed, the VA contended, because McCready’s complaint did

not establish that any fact compiled by the VA was inaccurate,

and that McCready had not suffered an adverse effect or adverse

determination.

McCready opposed the VA’s motion, arguing that most of

her Privacy Act claims did not require proof of a system of

records. In any event, the Government’s declarations,

McCready contended, were too “conclusory” to support

summary judgment, as they did not, among other things, identify

the systems of records searched. McCready also argued that she

was “entitled to discovery to determine whether the records at

issue are in any ‘system of records.’” In her view, the

Government had not met its burden to show that the Inspector

General’s Reports qualified for an exemption under the Privacy

Act. Finally, McCready contended there were material issues of

fact precluding summary judgment regarding whether the

documents at issue were accurate and whether McCready had

suffered adverse determinations.

McCready also invoked Federal Rule of Civil Procedure

56(f), arguing that several issues raised by the Government went

beyond pure issues of law and required discovery for their

resolution. Plaintiffs’ counsel filed an affidavit identifying

7

several issues needing discovery. The Government argued in

reply that discovery was not necessary. McCready was

permitted to file a sur-reply.

After receiving the parties’ briefs, the District Court sua

sponte ordered additional briefing. The existing briefs, the

Court determined, were “sufficient to allow the Court to decide

all issues except for allegations raised in Count XI of the

Complaint that the VA website and EDMS [Electronic Data

Management System],” a database used by the VA, are “Privacy

Act ‘systems of records.’” A declaration provided by the

Government, however, was “insufficient” to decide that

remaining issue. The District Court invited the parties to file

further “supporting materials” and address “the arguments that

the VA website and EDMS are Privacy Act systems of records.”

The Government argued that the Inspector General’s website

was not a system of records, and that although the “Powell

Memorandum [is] included in the EDMS System of Records,”

it “is not . . . retrievable” or “actually retrieved[] using any

personal identifier belonging to . . . McCready.” McCready

contended that the VA had now “admit[ted] that the EDMS

system is a Privacy Act system of records that includes the

Powell memorandum” and had previously even acknowledged

in the Federal Register that EDMS is a system of records subject

to the Privacy Act. The VA had only submitted one paragraph

of a declaration about the website at issue, which was entirely

conclusory and could not, in McCready’s view, support

summary judgment.

On December 31, 2003, the District Court granted the

Government’s motion for summary judgment. McCready v.

Principi, 297 F. Supp. 2d 178 (D.D.C. 2003). McCready filed

a timely motion to amend the District Court’s judgment under

Federal Rule of Civil Procedure 59(e), arguing that “facts . . .

not available when the parties briefed the Motion for Summary

8

Judgment” demonstrate she was denied a bonus in December

2003 based upon the Final Audit Report and Addendum Report

and thus that she had suffered an adverse employment action,

which she believed was relevant to her Privacy Act claims. The

District Court denied McCready’s motion, holding that “the

denial of a bonus in 2003 is not new evidence that bears upon

the current complaint” and is instead “grounds for a distinct

claim against the agency.” McCready filed a timely notice of

appeal, invoking our jurisdiction under 28 U.S.C. § 1291 to

review the District Court’s final order granting summary

judgment to the VA and subsequent denial of her motion to

amend. See Fed. R. App. P. 4(a)(4).

We review the grant of summary judgment de novo,

applying the same standard as the district court. See, e.g.,

Maydak v. United States, 363 F.3d 512, 515 (D.C. Cir. 2004).

Summary judgment may be granted only where “there is no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);

see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). A

dispute over a material fact is “genuine” if the evidence is “such

that a reasonable jury could return a verdict for the nonmoving

party.” George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005)

(quotation marks omitted). At summary judgment, “all

inferences must be viewed in a light most favorable to the non-

moving party.” Tao, 27 F.3d at 638.

II.

The Privacy Act, 5 U.S.C. § 552a, seeks “to protect the

privacy of individuals identified in information systems

maintained by Federal agencies,” Pub. L. No. 93-579, § 2(a)(5),

88 Stat. 1896, 1896 (1974), because such privacy “is directly

affected by the collection, maintenance, use, and dissemination

of personal information by Federal agencies,” id. § 2(a)(1). The

9

Act “represents the compromise reached by Congress between

a citizen’s right to correct inaccurate records and the

government’s need to assemble critical information for

responsible employment decision making.” Dickson v. Office of

Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir. 1987). In furtherance

of those goals, the Privacy 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, 540 U.S. 614, 618 (2004). Put simply, the Act

“safeguards the public from unwarranted collection,

maintenance, use and dissemination of personal information

contained in agency records . . . by allowing an individual to

participate in ensuring that his records are accurate and properly

used.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984).

The Act attempts to strike a balance between an individual’s

interest in correcting inaccurate information and the burdens

placed on agencies in locating such information. To do so, it

imposes a series of substantive and procedural obligations on

federal agencies regarding records they maintain while

simultaneously limiting what records are subject to the Act. At

issue in this case is how those limitations apply to the Inspector

General’s Reports and the Powell Memorandum.

McCready’s claims implicate several subsections of the

Privacy Act, which we briefly summarize. Under subsection (b)

of the Act, 5 U.S.C. § 552a(b), agencies may not “disclose any

record which is contained in a system of records” unless certain

exceptions apply. Id. Even where an agency makes a

permissible disclosure from a system of records, it must “keep

an accurate accounting” of its disclosure under subsection (c),

id. § 552a(c).

Subsection (d) grants an individual the right to review and

10

make a copy of his “record or . . . any information pertaining to

him which is contained in the system.” Id. § 552a(d)(1). If an

individual takes issue with the accuracy of such a “record,” he

may “request amendment of a record pertaining to him.” Id.

§ 552a(d)(2). If the agency refuses his request, he may “request

a review of such refusal.” Id. § 552a(d)(3). Following such

review, if the agency still refuses to amend the record, the

agency must “permit the individual to file . . . a concise

statement setting forth the reasons for his disagreement with the

refusal of the agency” and “notify the individual of the

provisions for judicial review of the reviewing official’s

determination.” Id. § 552a(d)(3).

In order to maintain appropriate confidentiality of personal

information, subsection (e)(2) provides that agencies “that

maintain[] a system of records shall . . . collect information to

the greatest extent practicable directly from the subject

individual when the information may result in adverse

determinations.” Id. § 552a(e)(2). “[P]rior to disseminating any

record about an individual to any person other than an agency,”

agencies must under subsection (e)(6) “make reasonable efforts

to assure that such records are accurate, complete, timely, and

relevant for agency purposes.” Id. § 552a(e)(6).4 Agencies

must also “establish appropriate . . . safeguards to insure the

security and confidentiality of records and to protect against any

anticipated threats or hazards to their security or integrity.” Id.

§ 552a(e)(10).

These subsections begin with qualifying language referring

to the Act’s system of records requirement: “any record which

is contained in a system of records,” id. § 552a(b) (emphasis

4

Subsection (e)(6), however, does not apply to disseminations

made pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et

seq. See id. § 552a(b)(2), (e)(6).

11

added); “with respect to each system of records under [an

agency’s] control,” id.§ 552a(c) (emphasis added); and “[e]ach

agency that maintains a system of records,” id. § 552a(d), (e)

(emphasis added). Some provisions falling under these

subsections make explicit that an alleged violation requires that

the challenged record be within a system of records. See, e.g.,

id. § 552a(d)(1) (addressing a “request by any individual to gain

access to his record . . . which is contained in the system”)

(emphasis added); see Baker v. Dep’t of Navy, 814 F.2d 1381,

1383-84 (9th Cir. 1987) (subsection (d)(1) applies to a record

within a system of records). Other provisions are less explicit.

See, e.g., 5 U.S.C. § 552a(e)(7) (addressing “record[s]

describing how any individual exercises rights guaranteed by the

First Amendment,” but not indicating whether such records must

be within a system of records) (emphasis added); see Albright v.

United States, 631 F.2d 915, 916-17 (D.C. Cir. 1980)

(concluding that a record need not be within a system of records

to bring a claim under § 552a(e)(7)); Clarkson v. IRS, 678 F.2d

1368, 1375-76 (11th Cir. 1982). The Government contends that

all of McCready’s claims require her to prove that the records

she challenges were within a system of records. McCready

recognizes, as she must, that we have held that subsections

(e)(2) and (e)(10) apply to records within a system of records.

Maydak, 363 F.3d at 517-18. With the exception of two claims

we discuss below that were brought pursuant to one specific

civil remedy provision of the Act, 5 U.S.C. § 552a(g)(1)(C),

McCready does not otherwise contest that the provisions of the

Act she invokes apply only to records within a system of

records.

The Act defines “record” in a relatively broad fashion: “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

12

photograph.” Id. § 552a(a)(4). That is, to be a “record,” an item

must contain “information that actually describes the person in

some way.” Tobey v. NLRB, 40 F.3d 469, 472 (D.C. Cir. 1994).

A “system of records,” on the other hand, is defined more

narrowly under the Act: “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) (emphasis added). The key

limitation in the Act’s definition of “system of records” is its use

of “retrieved.” As the Fifth Circuit has explained, “[t]his

qualifying language in the statute reflects a statutory

compromise between affording individuals access to those

records relating directly to them and protecting federal agencies

from the burdensome task of searching through agency records

for mere mention of an individual’s name.” Bettersworth v.

FDIC, 248 F.3d 386, 391 (5th Cir. 2001).

The Act contains four provisions authorizing civil relief,

which the Supreme Court recently summarized as follows:

Subsection (g)(1) recognizes a civil action for agency

misconduct fitting within any of four categories (the

fourth . . . being a catchall), 5 U.S.C.

§§ 552a(g)(1)(A)-(D). . . . The first two categories

cover deficient management of records: subsection

(g)(1)(A) provides for the correction of any inaccurate

or otherwise improper material in a record, and

subsection (g)(1)(B) provides a right of access against

any agency refusing to allow an individual to inspect a

record kept on him.

***

13

The two remaining categories deal with derelictions

having consequences beyond the statutory violations

per se. Subsection (g)(1)(C) describes an agency’s

failure to maintain an adequate record on an individual,

when the result is a determination “adverse” to that

person. Subsection (g)(1)(D) speaks of a violation

when someone suffers an “adverse effect” from any

other failure to hew to the terms of the Act.

Chao, 540 U.S. at 618-19. McCready’s lawsuit implicates all of

these provisions.

III.

Although the District Court granted summary judgment to

the VA on all twelve counts of McCready’s complaint,

McCready only challenges the Court’s determination with

respect to eight counts. Two counts require us to decide whether

a specific provision of the Privacy Act, 5 U.S.C.

§ 552a(g)(1)(C), authorizes suit only when a record, id.

§ 552a(a)(4), is within a system of records, id. § 552a(a)(5). The

six remaining counts turn on whether the Inspector General’s

Reports and the Powell Memorandum were records within a

system of records.

A. Whether a Claim Under 5 U.S.C. § 552a(g)(1)(C)

Requires a Record to be Within a System of Records.

The Privacy Act’s third civil relief provision, subsection

(g)(1)(C), 5 U.S.C. § 552a(g)(1)(C), provides that an “individual

may bring a civil action against the agency” where “any

agency”:

fails to maintain any record concerning any individual

with such accuracy, relevance, timeliness, and

14

completeness as is necessary to assure fairness in any

determination relating to the qualifications, character,

rights, or opportunities of, or benefits to the individual

that may be made on the basis of such record, and

consequently a determination is made which is adverse

to the individual.

Id. (emphasis added). The text of subsection (g)(1)(C) does not

incorporate or otherwise refer to the Act’s definition of a

“system of records” found in § 552a(a)(5).

In contrast, for example, subsection (g)(1)(B), 5 U.S.C.

§ 552a(g)(1)(B), applies to a specific subsection of the Act that

incorporates the Act’s system of records requirement. See id.

(providing civil relief for a “refus[al] to comply with an

individual request under subsection (d)(1) of this section”); id.

§ 552a(d)(1) (addressing a “request by any individual to gain

access to his record or to any information pertaining to him

which is contained in the system”) (emphasis added); see

Clarkson, 678 F.2d at 1375-76 (“The language of paragraph

(d)(1) expressly limits its applicability to records contained

within a system of records.”); cf. Dickson, 828 F.2d at 39

(“[T]he statute expressly limits the judicial remedies available

under section (g)(1)(A) and (B) to violations of other named

sections of the Act. Section (C) also could have been so

restricted [but was not].”).

Thus, to bring a claim under § 552a(g)(1)(C), an individual

need not address how agencies maintain their systems of

records, but instead must show that:

(1) [she] has been aggrieved by an adverse

determination; (2) the [agency] failed to maintain [her]

records with the degree of accuracy necessary to assure

fairness in the determination; (3) the [agency’s]

15

reliance on the inaccurate records was the proximate

cause of the adverse determination.

Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir.

1996) (emphasis added).5

Count VIII of McCready’s amended complaint alleges that

the VA and Inspector General failed to maintain the Inspector

General’s Reports and the Powell Memorandum with accuracy,

relevance, timeliness, and completeness, as required by

§ 552a(g)(1)(C), resulting in “determination[s] . . . which [are]

adverse” to McCready. Count V of McCready’s amended

complaint makes substantially the same allegations, but invokes

§ 552a(e)(5). The VA concedes, however, that Count V is also

predicated upon the civil relief provision in subsection (g)(1)(C).

In addressing McCready’s (g)(1)(C) counts, the District

Court recited the statutory text of that subsection, which

contains no “system of records” requirement. The Court then

turned to a footnote in Hubbard v. EPA, 809 F.2d 1, 6 n.8 (D.C.

Cir. 1986), which the District Court stated “referenc[es] in dicta

the need for a record to be within a ‘system of records’” in order

to pursue a § 552a(g)(1)(C) claim. 297 F. Supp. 2d at 186. The

District Court distinguished Dickson, 828 F.2d at 39, one of our

cases encouraging a plain reading of subsection (g)(1)(C):

Because the record in Dickson was indisputably

5

Deters describes a fourth element: that an agency “acted

intentionally or willfully in failing to maintain accurate records.” 85

F.3d at 657 (discussing subsection (g)(4)). This fourth element is only

necessary to prevail upon a claim for actual damages, costs, and

attorneys’ fees under subsection (g)(4), as opposed to other forms of

relief available under the Act. 85 F.3d at 657; see Chao, 540 U.S. at

619; Maydak, 363 F.3d at 521.

16

contained in a “system of records,” the Circuit Court

did not address this requirement. It would be contrary

to the balance of the statute to extract the Dickson

language from its context and to find that the

government has waived its immunity for literally “any

record concerning any individual” that may be

inaccurate. The Court finds that a civil claim under

subsection (g)(1)(C) must rest on a record contained in

a system of records.

297 F. Supp. 2d at 187 (emphasis added). McCready’s claims

predicated upon subsection (g)(1)(C) could thus not go forward,

the District Court concluded, without proof that she was

challenging a record within a system of records.

As we have seen, however, the text of subsection (g)(1)(C)

does not require that a “record,” see 5 U.S.C. § 552a(a)(4), be

within a “system of records,” see id. § 552a(a)(5). The VA has

not argued that following the plain text of § 522a(g)(1)(C)

would be “absurd.” See, e.g., Friends of Earth, Inc. v. EPA, 446

F.3d 140, 146 (D.C. Cir. 2006). Nor could the VA meet the

“exceptionally high burden” of doing so. Id. (discussing Engine

Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996)).

The Privacy Act’s distinction between a claim that requires

a system of records and a claim under § 552a(g)(1)(C) that does

not require a system of records makes perfect sense. The Act

attempts to strike a balance between protecting the

Government’s need to maintain accurate information about an

individual and granting the individual access to such information

to verify its accuracy. See Carton v. Reno, 310 F.3d 108, 111

(2d Cir. 2002). The system of records requirement protects

agency interests by shielding agencies from costly fishing

expeditions. See Bettersworth, 248 F.3d at 391. An agency can

only be held accountable under Privacy Act provisions tied to a

system of records requirement for records it can easily retrieve

17

consistent with its day-to-day practice of information

management—records found within a “system of records.” This

legitimate concern with preserving an agency’s resources is

simply not present where, as under a (g)(1)(C) claim, an

individual and an agency already have identified the record at

issue, that record is therefore easily retrieved, and the only issue

is the accuracy of the record.

Nor would following the plain text of subsection (g)(1)(C)

lead to an absurdly broad form of civil relief. Subsection

(g)(1)(C) specifically requires a showing that a “determination”

has been “made which is adverse to the individual.” 5 U.S.C.

§ 552a(g)(1)(C). Where an individual can show that an adverse

determination has been made based upon a specific, inaccurate

record, Congress may well have thought—as the text of its

statute indicates—that inquiring into whether the record was

within a “system” was irrelevant. Quite simply, the text of the

statute conditions relief upon a concrete, adverse determination.

Congress could have chosen to apply the system of records

requirement to subsection (g)(1)(C) as a limiting principle

instead, but it did not.

Where an aggrieved person can identify a specific

document, prove its inaccuracy, and demonstrate that the

document was used against her, all the values of the Act are

vindicated. As a subsection (g)(1)(C) claim is predicated upon

an individual simply challenging the accuracy of a particular

document used against her, there was no need for subsection

(g)(1)(C) to incorporate a system of records requirement and

thereby prevent a fishing expedition. The fish has already been

caught at no expense to the agency. Thus, subsection (g)(1)(C)

applies to “any record,” and not “any record within a system of

records,” as the VA would have us alter the statute. If the VA

believes that this provision of the Privacy Act is too burdensome

in requiring it to accurately maintain a record specifically

brought to its attention, and thinks that the Act should first

18

require individuals to demonstrate the existence of a system of

records, the VA is free to raise that concern with Congress.

Congress can amend the Privacy Act; we, however, must follow

its text.

B. The Inspector General’s Reports.

Six counts of McCready’s complaint invoke provisions of

the Privacy Act that McCready concedes apply to a record

within a system of records.6 These counts all challenge the

Inspector General’s Reports, although they also challenge the

Powell Memorandum, as discussed below. McCready’s appeal

requires us to address essentially four issues involving the

Inspector General’s Reports: (1) whether the Inspector General’s

website, which contains copies of two of the reports, constitutes

a system of records; (2) whether the fact that the public can

search the Inspector General’s website by name or individual

identifier makes the website a system of records; (3) whether the

Inspector General’s Office maintains the reports in another

system of records; and (4) whether several other offices of the

VA maintain the Inspector General’s Reports in a system of

records.

In seeking summary judgment, the Government argued that

“[n]either the Draft Audit Report, the Final Audit Report nor the

6

Count I is predicated upon § 552a(d), Count VI upon

§ 552a(b), Count VII upon § 552a(e)(6), Count IX upon

§ 552a(e)(10), Count X upon § 552a(c), and Count XII upon

§ 552a(e)(2). McCready also argues that this Court in “Maydak held

that most of the provisions in § 552a(e) apply only to records that can

be found in a system of records” and, in doing so, “neglected the plain

language of § 552a(e).” Appellants’ Br. at 44-45. Maydak, 363 F.3d

at 517-18. McCready takes issue with Maydak’s holding, but

acknowledges that her beef with Maydak is one this panel cannot

address anew. Appellants’ Br. at 46.

19

Addendum Audit Report are, or ever have been maintained in

any of the ‘systems of records.’” The VA attached to its

summary judgment motion a declaration by Jon Wooditch, the

Assistant Inspector General for Management and

Administration, which attested that the Inspector General’s

“website is not a Privacy Act system of records because its

purpose was to provide electronic access to . . . reports and other

documents that were deemed by the Freedom of Information Act

staff and [the Inspector General’s] counsel to be releasable [sic]

to the public.” In opposition, McCready argued that Wooditch’s

declaration was conclusory. This exchange prompted the District

Court to request “information sufficient to allow the Court to

decide” whether “the VA website . . . [is a] Privacy Act

‘system[] of records.’”

In response, the VA submitted a revised declaration from

Mr. Wooditch attesting that personnel do not use the website to

“to retrieve . . . records [of the Inspector General] or documents,

either by use of a personal identifier or otherwise.” The District

Court concluded that this second Wooditch declaration was

“detailed and non-conclusory” and “demonstrate[d] that the

[Inspector General’s] Reports are not in any [Office of the

Inspector General] system of records” and “establish that these

[Inspector General’s] Reports are maintained and retrieved by

the title of the report or the report number, and not by Ms.

McCready’s name or other personal identifier.” 297 F. Supp. 2d

at 188. McCready continues to argue on appeal that Wooditch’s

declaration is conclusory.

Having reviewed the revised Wooditch declaration, we

agree with the District Court, however, that the VA is entitled to

summary judgment on the issue of whether the Inspector

General’s Office retrieves records from its website “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). The Wooditch declaration attests that it does not,

20

and McCready has proffered no evidence to the contrary.

McCready sought further discovery on this issue. But given the

information McCready already received from the revised

Wooditch declaration, the burden McCready’s request would

place on the VA, and McCready’s failure to make a sufficient

showing of what specifically the VA could further disclose

about the website, we cannot say that it was an abuse of

discretion, see Diamond Ventures, LLC v. Barreto, 452 F.3d

892, 898 (D.C. Cir. 2006), to not permit additional discovery on

this score.

McCready nonetheless suggests that even if the Inspector

General’s website is not used internally to retrieve records via

an individual identifier, the public could nonetheless do so using

the website’s search function. We agree with the District Court,

however, that, under § 552a(a)(5), the “practice of retrieval by

name or other personal identifier must be an agency practice to

create a system of records and not a ‘practice’ by those outside

the agency.” 297 F. Supp. 2d at 199 (emphasis added). Our

case law has said as much. See Henke v. U.S. Dep’t of

Commerce, 83 F.3d 1453, 1461 (D.C. Cir. 1996) (inquiring

whether “there is evidence that an agency in practice retrieves

information about individuals by reference to their names”)

(emphasis added); Maydak, 363 F.3d at 520 (“the agency must

in practice retrieve information by personal identifier”)

(emphasis added; quotation marks and citation omitted). The

Privacy Act constrains agencies regarding their records and

imposes obligations on agencies when they use such records.

See 5 U.S.C. § 552a(a)(5) (limiting systems of records to

“group[s] of . . . records under the control of any agency”)

(emphasis added); Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896,

1896 (1974) (“[I]n order to protect the privacy of individuals

identified in information systems maintained by Federal

agencies, it is necessary . . . to regulate the collection,

maintenance, use, and dissemination of information by such

agencies.”) (emphasis added).

21

Beyond the Inspector General’s website, McCready argues

that the District Court should have allowed her discovery

regarding whether the Inspector General maintained the

Inspector General’s Reports in any other system of records. “At

the summary judgment stage, where the agency has the burden

to show that it acted in accordance with the statute, the court

may rely on a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that

all files likely to contain responsive materials (if such records

exist) were searched.” Valencia-Lucena v. U.S. Coast Guard,

180 F.3d 321, 326 (D.C. Cir. 1999) (quotation marks and

alterations omitted) (discussing an agency’s analogous

obligation under the Freedom of Information Act). The District

Court did so here and concluded that the revised Wooditch

declaration “demonstrate[s] that the [Inspector General’s]

Reports are not in any [Office of the Inspector General] system

of records” and “establish that these [Inspector General’s]

Reports are maintained and retrieved by the title of the report or

the report number, and not by Ms. McCready’s name or other

personal identifier.” 297 F. Supp. 2d at 188. “[I]f a review of

the record raises substantial doubt, particularly in view of well

defined requests and positive indications of overlooked

materials, summary judgment is inappropriate.”

Valencia-Lucena, 180 F.3d at 326 (quotation marks and citations

omitted). We cannot say that McCready has raised substantial

doubt about whether the Inspector General’s office otherwise

maintains the Inspector General’s Reports in a system of

records. The revised Wooditch declaration establishes that it

does not.

Finally, McCready contends that she was entitled to

additional discovery to determine whether the Inspector

General’s Reports were within any other systems of records

maintained by other units of the VA, other than the Office of the

Inspector General. In granting summary judgment to the VA on

Count I and a count not at issue on appeal, the District Court

22

held:

[b]ecause the only Privacy Act request and

[administrative] appeal at issue concerning the

[Inspector General’s Reports] were directed

exclusively to the [Office of the Inspector General],

only a possible system of records within [the Office of

the Inspector General] is relevant on review of the

administrative record. Even if the [Inspector General’s

Reports] are in systems of records over which other

VA offices have jurisdiction, there is no administrative

“determination” from such offices before the Court.

297 F. Supp. 2d at 188. That is, because McCready directed her

requests regarding the Inspector General’s Reports to the

Inspector General’s Office and appealed that request, “discovery

into records that might be maintained in other offices of VA”

was not necessary because “there is no outstanding request or

final agency action.” Id. at 189.

Count I of McCready’s complaint seeks relief under

§ 552a(d)(3) and its corresponding judicial review provision,

§ 552a(g)(1)(A). Subsection 552a(g)(1)(A) provides a civil

remedy only where an agency “makes a determination under

subsection (d)(3) . . . not to amend an individual’s record,” id.,

and we have accordingly held that an individual must exhaust

administrative remedies before seeking relief under subsection

(g)(1)(A). Dickson, 828 F.2d at 40. “[P]remature review

. . . would invade the obligation to make policy judgments

committed in the first instance to the record keeping agency.”

Id. Because McCready directed her request for access and

amendment of the Inspector General’s Reports to the Office of

the Inspector General and appealed that request, the District

Court correctly concluded that Count I is limited to the Inspector

General’s Office and further discovery as to the activities of

other parts of the VA would be irrelevant. McCready has not

23

argued that she exhausted her remedies with respect to any other

request brought under subsection (g)(1)(A).

Counts VI, VII, IX, X, and XII, however, are brought

pursuant to subsections (b), (c), (e)(2), (e)(6), (e)(10), and

(g)(1)(D) of the Act, which do not require exhaustion. See

Nagel v. U.S. Dep’t of Health, Educ. and Welfare, 725 F.2d

1438, 1441 n.2 (D.C. Cir. 1984). The District Court did not

explain why it denied McCready discovery to determine whether

the records at issue were contained in systems of records within

these other offices. As McCready notes, distribution lists for the

Final Audit and Addendum Reports indicate that both were sent

to several VA offices. We by no means suggest that an agency

must, on its own motion, scour files not likely to contain

relevant materials and never put at issue by a plaintiff. But these

distribution lists constitute “‘positive indications of overlooked

materials.’” Valencia-Lucena, 180 F.3d at 326 (quoting

Founding Church of Scientology v. Nat’l Sec. Agency, 610 F.2d

824, 837 (D.C. Cir. 1979)).

When “we review a district court’s decision . . . for an abuse

of discretion, it is imperative that a district court articulate its

reasons.” EEOC v. Nat’l Children’s Center, Inc., 98 F.3d 1406,

1410 (D.C. Cir. 1996). With no evidence from the Government

addressing whether the offices set out in the distribution lists

maintain these reports within a system of records, and no stated

basis for denying discovery on this front, we must remand for

further proceedings so that the District Court may either grant a

“reasonable opportunity to complete discovery,” Khan v.

Parsons Global Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir.

2005) (quotation marks omitted), or explain why discovery is

not warranted on other grounds.

C. EDMS Database.

All but one of McCready’s counts challenging the Inspector

24

General’s Reports also raise claims about the Powell

Memorandum.7 At issue is whether the Powell Memorandum

was within a system of records, as that term is defined by

§ 552a(a)(5)—specifically EDMS. According to the VA’s

declarations, EDMS is a “Department-wide tracking system

primarily used for managing the workflow processing of the 25-

30,000 pieces of correspondence received yearly at the VA

Central Office in Washington, D.C.” EDMS is:

organized into a three-part electronic folder concept

with every folder being automatically numbered upon

creation by an authorized user. The first part of the

folder shows folder data such as date entered,

correspondent, subject, due date, and other identifying

information. The second part of the folder shows what

attachments, if any, were scanned into the system . . . .

The third part of the folder shows the . . . workflow

used to process the folder, usually by organizational

elements from the delegating office to the responsive

office.

A declaration from the individual who typed the Powell

Memorandum indicates that she “realized the sensitive nature of

the document [and thus] entered into EDMS . . . only enough

information to identify the document.” She did “not scan the

Powell Memorandum into EDMS” and indicated only that the

“completed package was signed and to be hand-carried to 00,

the internal mail code symbol for the Office of the Secretary.”

When asked to do so for purposes of this litigation, a

representative of the Secretary of the VA searched for the

7

Count I is predicated upon § 552a(d); Count VI upon

§ 552a(b); Count VII upon § 552a(e)(6); Count IX upon

§ 552a(e)(10); and Count X upon § 552a(c). Count XII does not

address the Powell Memorandum.

25

Powell Memorandum in EDMS using the names of “Sheila

McCready or Robert McCready or any other personal identifier

assigned to them.” That effort was fruitless, although the

representative did not address what terms she tried when

inputting “any other personal identifier” assigned to McCready.

But when given an “EDMS folder number” from counsel

referencing the Powell Memorandum, the representative was

able to find a reference in EDMS to a specific file folder

containing a hard copy of the Memorandum, which she then

retrieved from a VA storage area.

The District Court concluded that the Powell Memorandum

is not within a system of records because although “an EDMS

folder was created for the Powell Memorandum for tracking

purposes,” the “document itself was never scanned into EDMS

electronically.” 297 F. Supp. 2d at 196 (emphasis in original);

see also id. at 198. As McCready notes, however, the VA’s

notice in the Federal Register describes EDMS as containing

both electronic and paper files, see Privacy Act of 1974; New

System of Records—Automated Electronic Document

Management System (EDMS)—VA, 65 Fed. Reg. 25534, 25535

(May 2, 2000) (“EDMS Notice”) (“Records are maintained in

electronic and paper form depending on the nature of the

materials received, background information compiled, and/or

response sent.”), and indicates that “[p]aper correspondence

records are maintained in file cabinets under the control of the

office responsible for processing the correspondence item,” id.

Thus, contrary to the District Court’s conclusion, the EDMS

Notice does not require that a record be scanned into EDMS in

order to be part of the system. Indeed, the Government’s own

declaration indicates that EDMS performs as described in the

EDMS Notice. As noted, when given an EDMS folder number

used to track the Powell Memorandum, a representative of the

Secretary was able to pull up an entry directing her to a file

folder, which contained the Powell Memorandum. The VA is

thus not entitled to summary judgment on this ground.

26

Before us, the VA mentions in a sentence that the Powell

Memorandum was not scanned into EDMS, but does not address

the EDMS Notice. Instead, the VA focuses on another argument.

The VA argues that it is entitled to summary judgment because

the “Powell Memorandum was neither retrieved, nor is

retrievable, using any unique personal identifier assigned to

either plaintiff in this case.”8 Appellee’s Br. at 43-44. In the

VA’s view, “[a] disclosure in violation of the Privacy Act

cannot occur unless a plaintiff’s record was actually retrieved by

reference [to] the plaintiff’s personal identifier.” Appellee’s Br.

at 43 (citing Bechhoefer v. U.S. Dep’t of Justice, 179 F. Supp. 2d

93, 95-101 (W.D.N.Y. 2001); Barhorst v. Marsh, 765 F. Supp.

995, 999-1000 (E.D. Mo. 1991)).

Our own precedent has explained that “‘retrieval capability

is not sufficient to create a system of records’; the agency must

in practice retrieve information by personal identifier.” Maydak,

363 F.3d at 520 (quoting Henke, 83 F.3d at 1460-61) (emphasis

added). The Privacy Act defines a “system of records” as “a

group of any records under the control of any agency from

8

In discussing the fact that the Powell Memorandum had not

been scanned into EDMS, the District Court noted that “the Powell

Memorandum does not exist in any searchable format within EDMS

and cannot be retrieved either electronically or in manual form

through the use of any personal identifier.” 297 F. Supp. 2d at 196-97

(emphasis added). The District Court’s determination that the Powell

memorandum cannot be retrieved by individual identifier appears to

be based upon the Court’s earlier conclusion that the Powell

Memorandum had not been scanned into the EDMS system. The

District Court did not develop the argument the VA now makes: even

if “the Powell Memorandum was ‘part’ of the EDMS system of

records, . . . it did not exist in any searchable format within the EDMS

system, and could not be retrieved either electronically or in manual

form through the use of any personal identifier assigned to either

appellant.” Appellee’s Br. at 44-45.

27

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).

Analyzing that definition, we noted in Henke that “Congress

used the words ‘is retrieved,’ which suggest strongly that a

group of records should generally not be considered a system of

records unless there is actual retrieval of records keyed to

individuals.” 83 F.3d at 1460. Thus, in Henke, we looked to an

agency’s actual retrieval practices in analyzing whether an

agency “was in fact maintaining a system of records with respect

to” an individual. Id. at 1461 (emphasis added). We concluded

that an agency was not in practice maintaining a system of

records among “its paper files and computer databases” where

there was only evidence of “a few isolated incidents of retrieval”

using a personal identifier. Id. at 1461.

McCready suggests that the Government’s argument heads

down a completely inapplicable path of case law. McCready

does not seek to “create a system of records.” Maydak, 363 F.3d

at 520 (quoting Henke, 83 F.3d at 1460) (emphasis added).

Instead, McCready notes that EDMS has already been

designated as a system of records, as required by the Privacy

Act, see 5 U.S.C. § 552a(e)(4). Specifically, the VA’s May

2000 designation in the Federal Register indicates that EDMS is

a “new system of records” and that “[r]ecords [are] maintained

in this system of records in electronic and paper form.” 65 Fed.

Reg. at 25534. If the VA has already acknowledged that EDMS

is a “system of records” subject to the Privacy Act, why,

McCready argues, should the Court now delve into the

definition of system of records, see 5 U.S.C. § 552a(5), and

determine whether the Powell Memorandum is “retrieved by . . .

some identifying . . . particular,” id., assigned to McCready? In

McCready’s view, EDMS contains a tracking folder for the

Powell Memorandum that constitutes a record, EDMS is a

designated system of records because at least some of its records

are retrievable by an identifying particular, and it matters not

28

that this individual record about McCready is not retrievable

from this formal system of records by an identifying particular.

McCready makes a fair point. The statutory definition of

“system of records” looks to whether “information is retrieved”

from “a group of any records” by an “identifying particular

assigned to the individual.” 5 U.S.C. § 552a(a)(5) (emphasis

added). There is no dispute that the bulk of documents in

EDMS are retrieved by individual identifier, i.e., this group of

records is retrieved by individual identifier. The VA’s

designation in the Federal Register acknowledges that EDMS

meets the statutory definition of system of records, so why now

can the VA litigate whether a particular record is retrieved by

individual identifier? Henke itself provides support for this

view, noting that “if there is evidence of even a few retrievals of

information keyed to individuals’ names, it may well be the case

that the agency is maintaining a system of records.” 83 F.3d at

1461. The Fourth Circuit has also evidenced support for

McCready’s position, finding “unconvincing” the argument

“that since [a particular] document was not in practice actually

retrieved ‘by the name of the individual or by some identifying

number,’ 5 U.S.C. § 552a(a)(5), it cannot be a record within a

‘system of records’” where “there appears to exist already a

formal system of records of which the [record at issue] may be

a part.” Williams v. Dep’t of Veterans Affairs, 104 F.3d 670,

676 (4th Cir. 1997) (emphasis added). Indeed, one of the very

district court cases relied upon by the VA discusses this

important distinction, noting that at issue there was a “letter

[that] never became incorporated into [an agency’s] formal

recordkeeping system.” Bechhoefer, 179 F. Supp. 2d at 97.9

9

The VA’s argument produces some strange statements in its

brief: “Although the Powell Memorandum was ‘part’ of the EDMS

system of records, . . . it . . . could not be retrieved either electronically

or in manual form through the use of any personal identifier assigned

29

Nonetheless, despite the parties’ opposing positions, we can

leave resolution of this dispute to a case where it is truly

implicated, as it is ultimately not necessary to resolving the

VA’s summary judgment motion. The VA’s argument—that the

Powell Memorandum “was neither retrieved, nor is retrievable,

using any unique personal identifier,” Appellee’s Br. at 43—is

in conflict with the record. The EDMS entry for the Powell

Memorandum contains in a field labeled “Subject/Keyword” the

entry “PDAS for OCA.” McCready attests that she is the only

person to have held the title “PDAS for OCA,” i.e., Principal

Deputy Secretary for the Office of Congressional Affairs, which

the VA has not challenged at this stage. Thus, the VA is not

entitled to summary judgment on the ground that the Powell

Memorandum is not retrievable by individual identifier, even

assuming arguendo a record within a formally designated

system of records, from which records are generally retrieved by

individual identifier, must itself by retrievable by an individual

identifier. We must reverse the District Court’s grant of

summary judgment to the VA on Counts I, VI, VII, IX, and X

insofar as they challenge the Powell Memorandum.

IV.

Finally, we must address a few odds and ends. As an

alternative holding, the District Court concluded that McCready

“offer[s] no facts to support the argument that adverse

determinations have been made or to specify what they might

be.” 297 F. Supp. 2d at 193. Several of McCready’s counts

require her to prove the existence of an “adverse determination,”

to either appellant . . . .” Appellee’s Br. at 44-45 (citing 5 U.S.C.

§ 552a(a)(4) (the statutory definition of system of records)). Thus,

under the Government’s somewhat confusing reading of the Act, the

Powell Memorandum was “part” of a system of records, which was

nonetheless not a system of records.

30

see 5 U.S.C. § 552a(g)(1)(C), or “adverse effect,” see id.

§ 552a(g)(1)(D). See Toolasprashad v. Bureau of Prisons, 286

F.3d 576, 584 (D.C. Cir. 2002) (noting, with respect to

§ 552a(g)(1)(C), that the “Act provides little guidance as to the

intended breadth of the phrase ‘determination . . . adverse to the

individual,’” but holding “in the prison context [that] ‘adverse

determination’ denotes, at least, a decision that negatively

affects an inmate’s rights”) (quotation marks and alterations

omitted). The District Court did not explain, in denying

McCready’s Rule 59(e) motion, why McCready’s evidence of

being denied a bonus because of the Inspector General’s reports

would have to be pursued through “a distinct claim against the

agency,” which, McCready argues, might be barred by claim or

issue preclusion. “Because this issue is a question of fact

entirely undeveloped in the record, . . . it provides no basis for

summary judgment at this time.” Maydak, 363 F.3d at 521. We

express no opinion on the legal sufficiency of any adverse

effects or determinations suffered by McCready and leave this

issue for resolution by the District Court upon a more developed

record.

The District Court also held that McCready failed to show

that any of the statements she challenged were inaccurate

statements of fact. We agree with the District Court that,

generally speaking, the Privacy Act “allows for correction of

facts but not correction of opinions or judgments.” 297 F. Supp.

2d at 190-92 (citing Reinbold v. Evers, 187 F.3d 348, 361 (4th

Cir. 1999); Peller v. Veterans Admin., 790 F.2d 1553, 1555

(11th Cir. 1986); Blevins v. Plummer, 613 F.2d 767, 768 (9th

Cir. 1980) (per curiam)). But “[a]s long as the information

contained in an agency’s files is capable of being verified, then,

under subsection[] . . . (g)(1)(C) of the Act, the agency must take

reasonable steps to maintain the accuracy of the information to

assure fairness to the individual.” Sellers v. Bureau of Prisons,

959 F.2d 307, 312 (D.C. Cir. 1992) (analyzing Doe v. United

States, 821 F.2d 694, 699 (D.C. Cir. 1987) (en banc)).

31

One of the statements McCready takes issue with alleges

that McCready did not work on May 4, 1999 because she made

calls from her “government issued cell phone” to the Office.

McCready informed the Inspector General, however, that she

was attending a Senate Finance Committee hearing that day,

along with other high-level staff from the VA and several

witnesses. The District Court concluded that the Inspector

General was merely expressing an “opinion” on what

McCready’s telephone calls probably meant, but we fail to see

how McCready’s presence at a meeting is not a “fact” capable

of verification and why the VA need not correct that fact or

show that it took reasonable steps to verify its accuracy. Either

McCready’s witnesses will attest that she attended the meeting,

she did not, or they cannot remember. But the VA has not

explained why contacting these witnesses, or otherwise taking

other “reasonable steps” to verify the Inspector General’s

assertion about May 4, was not necessary in light of McCready

having brought her attendance at the committee meeting to the

Inspector General’s attention. See Toolasprashad, 286 F.3d at

583.

The VA argued for summary judgment on this ground

generally because McCready

produced no admissible evidence to support the claim

that there is any fact about [McCready] in any of the

subject records that is inaccurate, irrelevant, untimely,

or incomplete. That plaintiffs claim they need

discovery to figure that out . . . suggests that this entire

lawsuit is frivolous, and that, in filing it, plaintiffs are

seeking one big fishing expedition of VA

employees . . . .

The VA now asks us to weigh in on various arguments that the

Inspector General’s Reports were not inaccurate under the

Privacy Act. Because McCready has brought at least one

32

potential inaccuracy to our attention and because the record is

wholly undeveloped on the inaccuracy issue generally,

McCready should be afforded “a ‘reasonable opportunity’ to

complete discovery before responding to [the Government’s]

summary judgment motion.” Khan, 428 F.3d at 1087 (quotation

marks omitted).

The VA also briefly argues that the Inspector General’s

Reports “would have been exempt from any alleged Privacy Act

requirements giving rise to Count I.” Appellee’s Br. at 34. The

VA asserts that “the two . . . systems of records [belonging to

the Office of the Inspector General] that would be even

potentially relevant here,” consist of “investigatory material

compiled for law enforcement purposes,” 5 U.S.C. § 552a(k)(2),

and are thus exempt from certain provisions of the Privacy Act.

Appellee’s Br. at 34. Because the District Court did not reach

this ground and the record has not been developed as to how

these systems of records are relevant to this litigation, we

decline to reach it as an alternate ground for affirmance. See

Bechhoefer v. DEA, 209 F.3d 57, 63 (2d Cir. 2000) (“We decline

the DEA’s invitation to affirm on either of these alternative

bases. Although the DEA raised both issues in its motion for

summary judgment, the District Court did not rule on either

issue. Moreover, both issues turn in large part on information

that is within the control of the DEA, and as of yet there has

been no discovery.”) (footnote omitted).

Addressing Count VI, the District Court further held that

“[t]o maintain any action based on the Powell Memorandum,

Ms. McCready must overcome one additional hurdle.

Subsection 552a(g) of the Privacy Act requires proof that the

agency acted in a manner that was ‘intentional or willful.’ 5

U.S.C. § 552a(g)(4).” 297 F. Supp. 2d at 196. Section

552a(g)(4), however, only addresses what McCready would

need to show in order to prevail upon a “claim for money

damages,” Deters, 85 F.3d at 657; see Chao, 540 U.S. at 619;

33

Maydak, 363 F.3d at 521, and does not address other forms of

relief available under the Act. We express no opinion on

whether McCready will be able to show that the VA’s actions

were intentional or willful, and leave the resolution of that issue

for the District Court in the first instance upon a more developed

record.

Finally, relying upon Chapman v. National Aeronautics &

Space Administration, 682 F.2d 526 (5th Cir. 1982), McCready

argues that once the VA has used a record to “make a

determination adverse to an individual, the Privacy Act applies

to that record with the same force as though it were in a system

of records.” Appellants’ Br. at 28. Chapman does not provide

a basis, however, for departing from the text of the Privacy Act

and exempting provisions of the Act from the “system of

records” requirement based upon an agency’s adverse

determination. Chapman addressed Privacy Act claims brought

under § 552a(g)(1)(C), see 682 F.2d at 527-28, which, as we

have discussed, does not have a system of records requirement.

V.

For the foregoing reasons, we affirm in part, reverse in part,

and remand for further proceedings.

So ordered.