Sussman v. United States Marshals Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2007 Decided July 31, 2007

No. 06-5085

MICHAEL SUSSMAN,

APPELLANT

v.

UNITED STATES MARSHALS SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00610)

Sean J. Hartigan, pro hac vice, argued the cause for

appellant. On the briefs was Michael Sussman, pro se.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Laurie Weinstein and Michael J. Ryan, Assistant U.S. Attorneys,

entered appearances.

Before: SENTELLE, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

2

BROWN, Circuit Judge: Citing the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act of 1974, id.

§ 552a, Michael Sussman sought the release of various docu-

ments maintained by the United States Marshals Service

(“Marshals Service” or “USMS”). Sussman also asserted

fourteen claims for damages against the Marshals Service

predicated on alleged violations of the Privacy Act. The district

court granted summary judgment to the Marshals Service on all

these claims, and Sussman appealed. For reasons detailed

below, we now affirm in part, reverse in part, vacate in part, and

remand for further proceedings.

I

On July 19, 2002, Michael Sussman wrote to the Depart-

ment of Justice (“DOJ”) requesting disclosure, pursuant to FOIA

and the Privacy Act, of “[a]ny and all records relating to me,

mention[ing] me, or otherwise pertain[ing] to me” that were held

by any of nine listed agencies, including the Marshals Service.

In response to Sussman’s letter, the Marshals Service began an

investigation. Eventually it announced it had found only one

document, a four-page “Notice of Invocation of Rights”

Sussman had sent to a judge’s home. The Marshals Service

disclosed this Notice to Sussman with one redaction, which

Sussman has not challenged.

In an administrative appeal, Sussman argued the Marshals

Service had performed an inadequate search. As evidence, he

cited a “Wanted Poster” it had issued for Keith Maydak, which

listed “Michael Sussman” as an alias for Maydak. Sussman

further claimed the Marshals Service had investigated him, his

businesses, and his associates, so that the Notice could not be

the only material it maintained regarding him.

3

In March 2003 Sussman changed tactics and filed a

complaint in the U.S. District Court for the District of Columbia.

Sussman’s amended complaint asserted sixteen causes of action.

In Counts I and II, Sussman sought disclosure of additional

USMS materials pursuant to FOIA, 5 U.S.C. § 552(a)(3), and

the Privacy Act, id. § 552a(d)(1), (g)(1)(B), (g)(3)(A). In Count

III, Sussman sought damages under the Privacy Act for the

Marshals Service’s alleged failure to keep an accurate account-

ing of disclosures it had made during its investigation of him.

See id. § 552a(c)(1), (g)(1)(D), (g)(4). In Counts IV through

XVI, Sussman sought damages under the Privacy Act for

unlawful disclosures the Marshals Service allegedly made

regarding him. See id. § 552a(b), (g)(1)(D), (g)(4).

In August 2003, Sussman moved for summary judgment as

to Counts I and II. The Marshals Service in turn moved for

summary judgment on all sixteen claims (“Def.’s 1st S.J.

Memo”) but only provided arguments for Counts I and IV

through XVI.

On August 3, 2004, the district court granted summary

judgment to the Marshals Service on Counts IV through XVI.

But the court deemed the Marshals Service’s search inadequate

and granted summary judgment to Sussman on Count I, ordering

the Marshals Service to “file a status report regarding the results

of a further search to comply with plaintiff’s FOIA request.”

The court’s order left unclear the status of Counts II and III, the

merits of which it did not discuss.

In response to the court’s order, the Marshals Service

renewed its search efforts, now taking into account Sussman’s

connections to Maydak, as revealed during his administrative

appeal. This second search yielded 813 additional pages of

documents relating to Sussman. The Marshals Service released

156 pages in full and 477 pages with redactions, and withheld 47

4

pages in their entirety. Other documents were referred to the

agencies that had originally produced them. The Commodity

Futures Trading Commission, the U.S. Citizenship and Immigra-

tion Services, and the Federal Bureau of Investigation (“FBI”)

all released in full the documents referred to them. The Execu-

tive Office for United States Attorneys (“EOUSA”) released 110

pages in full and ten further pages with redactions. The United

States Postal Service (“Postal Service”) withheld in their entirety

the seven pages referred to it.

Upon completing its disclosures, the Marshals Service again

moved for summary judgment on all outstanding claims1

(“Def.’s 2nd S.J. Mot.”), asking the court to “dismiss this case

with prejudice with regard to everything but the documents

referred to other agencies.” It argued its search was now

adequate under FOIA and all its decisions to withhold or redact

materials were proper under the exemptions to FOIA set forth at

5 U.S.C. § 552(b). In support of this contention, the Marshals

Service supplied a declaration from Shaaron L. Keys (“Keys

Declaration”), including a table listing twenty-five categories of

documents released with redactions (“Redacted Categories

1–25”) and four categories of documents withheld in their

entirety (“Withheld Categories 1–4”). The Marshals Service

again presented no arguments concerning Counts II and III.

Sussman opposed this motion and filed a cross-motion for

summary judgment as to Counts I and II (“Pl.’s 2nd S.J. Br.”).

In support of his cross-motion, Sussman presented a signed

1

In its August 3, 2004 opinion, the court purported to grant

summary judgment to Sussman on Count I. Nonetheless, both the

court and the parties subsequently acted as if Count I remained

undecided pending the Marshals Service’s conclusion of its additional

search, as ordered by the court. We shall treat Count I the same way

and therefore review the court’s subsequent ruling from October 13,

2005, on that claim.

5

declaration from Maydak, who announced, “I do not object to

the disclosure of information about me to Sussman.” Supple-

mental Declaration of Keith Maydak ¶ 7 (“Supp. Maydak

Decl.”).

In a memorandum opinion issued October 31, 2005, the

court refused to address Sussman’s Count II arguments, stating

it had “granted summary judgment on the Privacy Act claim in

its August 3, 2004 order.” As neither motion addressed Count

III, and Counts IV through XVI were dismissed by the August

3, 2004 opinion, the court focused exclusively on Count I.

The court first held the Marshals Service’s second search

was adequate under FOIA and found all the claimed FOIA

exemptions properly invoked. Going beyond the Marshals

Service’s motion for summary judgment, the court also re-

viewed the actions of the EOUSA and the Postal Service in

withholding materials from Sussman. The court held that the

EOUSA had properly redacted ten pages. The court likewise

upheld the Postal Service’s decision to withhold seven pages, on

the ground Sussman had failed to raise any arguments against

that decision.

The accompanying order stated that “[j]udgment is entered

in favor of defendant,” and “[t]his is a final appealable order.”

We read this language as granting summary judgment to the

Marshals Service on Counts II and III.

Sussman filed a timely motion for reconsideration, contest-

ing the court’s handling of several FOIA exemptions and

arguing he had not forfeited his challenge to the withholding of

the Postal Service materials. In its ruling on this motion, the

court rejected Sussman’s exemption arguments and addressed

the Postal Service materials on the merits for the first time.

6

The Postal Service had first informed Sussman of its

decision to withhold the seven pages in a letter dated March 17,

2005, in which it asserted FOIA Exemptions 6 and 7(C) as

grounds. Sussman filed an administrative appeal of that

decision on March 28, and the Postal Service affirmed its initial

decision in a letter sent May 3, 2005, now citing Exemption

7(A), as well. The Marshals Service never officially invoked

FOIA exemptions to explain its own failure to release the

materials, instead relying on its referral of the materials to the

Postal Service as effectively shifting the final responsibility to

the latter agency.

The district court reviewed the Postal Service’s arguments

and found them all valid. On this basis, it “conclude[d] that

defendant [i.e., the Marshals Service] has withheld records

exempt under FOIA’s provisions,” and it denied Sussman’s

motion for reconsideration.

II

Sussman appealed the district court’s rulings as to all

sixteen of his claims.2 We granted the Marshals Service’s

motion for summary affirmance in part and therefore now need

decide only the following: (1) whether the Marshals Service’s

invocation of FOIA Exemptions 2, 3, 5, 7(A), 7(C), and 7(E) as

grounds for withholding and redacting documents was proper;

(2) whether the Marshals Service could properly withhold the

documents referred to the Postal Service; and (3) whether the

district court was right to grant summary judgment to the

Marshals Service as to Counts II through XVI. We review the

district court’s decisions on summary judgment motions in

FOIA and Privacy Act cases de novo. Sample v. Bureau of

Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006); McCready v.

Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). Summary judgment

2

Sussman has not challenged the EOUSA’s redactions.

7

is proper 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).

III

We first address Count I as it relates to the Marshals

Service’s treatment of Redacted Categories 1–25 and Withheld

Categories 1–4.

According to 5 U.S.C. § 552(b), FOIA’s disclosure require-

ments are subject to specified exemptions, see id. § 552(b)(1)–

(9), provided that “[a]ny reasonably segregable portion of a

record shall be provided” after exempt portions are deleted. An

agency asserting such an exemption has the burden of sustaining

its action if challenged in court. Id. § 552(a)(4)(B). The

exemptions “must be construed narrowly, in such a way as to

provide the maximum access consonant with the overall purpose

of [FOIA].” Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir.

1973).

Sussman challenges various FOIA exemptions claimed by

the Marshals Service as grounds for withholding or redacting

materials. With respect to Count I, we affirm the district court’s

grant of summary judgment on Exemptions 5 and 7(E) on the

basis of longstanding precedent that requires no further elucida-

tion. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d

854, 862 (D.C. Cir. 1980) (recognizing Exemption 5 as exempt-

ing from disclosure materials shielded from discovery by

traditional evidentiary privileges, including the deliberative

process privilege); Mead Data Cent., Inc. v. U.S. Dep’t of the

Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (“In some

circumstances . . . the disclosure of even purely factual material

may so expose the deliberative process within an agency that it

must be deemed exempted by section 552(b)(5).”); Blanton v.

8

DOJ, 64 F. App’x 787, 788–89 (D.C. Cir. 2003) (per curiam)

(supporting application of Exemption 7(E) to withhold confiden-

tial details of a program whose general contours were publicly

known).

Exemptions 2, 3, 7(A), and 7(C) present more complex

questions, which we now examine.

A

Exemption 2 covers matters “related solely to the internal

personnel rules and practices of an agency.” 5 U.S.C.

§ 552(b)(2). The agency must show that the materials are

“predominant[ly] internal[].” Schwaner v. Dep’t of the Air

Force, 898 F.2d 793, 795 (D.C. Cir. 1990). An agency need not

disclose if (1) disclosure may risk circumvention of agency

regulation, or (2) the material relates to trivial administrative

matters of no genuine public interest. Id. at 794; see also

Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d

1051, 1074 (D.C. Cir. 1981) (en banc).

We affirm the district court’s finding that the Marshals

Service properly applied Exemption 2 to shield certain internet

addresses, but the application of this exemption to “information

reflecting communications between agencies,” Keys Decl. ¶ 7,

is more problematic. Sussman argues this information is not

predominantly internal, and the Marshals Service has provided

no evidence to counter his claim. Thus, the Marshals Service

failed to carry its burden of proof under 5 U.S.C. § 552(a)(4)(B),

and we reverse the district court’s finding that Exemption 2 was

properly applied to information reflecting interagency communi-

cations. Such information appears in Redacted Categories 4, 5,

and 13, as well as Withheld Categories 3 and 4. As the Mar-

shals Service asserts additional exemptions with regard to those

same materials, however, we vacate the grant of summary

9

judgment as it relates to those categories, rather than ordering

immediate disclosure.

B

Exemption 3 covers matters “specifically exempted from

disclosure by statute.” 5 U.S.C. § 552(b)(3). The Marshals

Service applied this exemption to Redacted Category 13, which

includes “material that is the subject of a grand jury investiga-

tion.” Keys Decl. ¶ 8. Federal Rule of Criminal Procedure 6(e)

(“FRCP 6(e)”) prohibits certain persons from “disclos[ing] a

matter occurring before [a] grand jury,” FED. R. CRIM. P.

6(e)(2)(B), and that rule counts as a statute for purposes of

Exemption 3, as it has been positively enacted by Congress,

Fund for Const. Gov’t v. Nat’l Archives & Records Serv., 656

F.2d 856, 867 (D.C. Cir. 1981); see also Act of July 30, 1977,

Pub. L. No. 95-78, § 2, 91 Stat. 319, 319–20. FRCP 6(e) bars

disclosure, however, only where it would “tend to reveal some

secret aspect of the grand jury’s investigation.” Senate of the

Commonwealth of P.R. ex rel. Judiciary Comm. v. U.S. DOJ,

823 F.2d 574, 582 (D.C. Cir. 1987) (“SCPR”) (internal quotation

marks omitted).

Persons not described in FRCP 6(e)(2)(B) incur no obliga-

tion of secrecy under FRCP 6(e). FED. R. CRIM. P. 6(e)(2)(A).

On the other hand, we do not believe FOIA requires us to

compound Rule 6(e) violations by requiring full disclosure

whenever an agent not covered by FRCP 6(e)(2)(B) obtains

information. Thus, for Sussman to defeat the Marshals Ser-

vice’s invocation of Exemption 3, there must be a clear path by

which the information sought to be withheld has reached

someone within the Marshals Service without violating FRCP

10

6(e), and that USMS agent must be able to disclose the material

to Sussman without himself violating FRCP 6(e).3

On the current record, we are unable to determine whether

these conditions are satisfied. Moreover, the Marshals Service

has failed to demonstrate disclosure would “tend to reveal some

secret aspect of the grand jury’s investigation,” as required by

our holding in SCPR, 823 F.2d at 582. We therefore vacate the

district court’s finding that the Marshals Service acted properly

with respect to Redacted Category 13. On remand, the trial

court should resolve both outstanding issues, reviewing the

materials in camera if necessary. See 5 U.S.C. § 552(a)(4)(B);

Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000).

C

Exemption 7 permits the withholding of “records or

information compiled for law enforcement purposes,” but only

to the extent one or more listed risks are present. 5 U.S.C.

§ 552(b)(7); see NLRB v. Robbins Tire & Rubber Co., 437 U.S.

214, 221–22 (1978). Sussman does not dispute that the materi-

als withheld pursuant to Exemption 7 were compiled for law

enforcement purposes; he does, however, argue that none of the

listed risks apply. We address Exemptions 7(A) and 7(C) in

turn.

1

Exemption 7(A) covers materials compiled for law enforce-

ment purposes whose disclosure “could reasonably be expected

to interfere with enforcement proceedings.” 5 U.S.C.

§ 552(b)(7)(A). The enforcement proceedings need not be

currently ongoing; it suffices for them to be “reasonably antici-

3

The Marshals Service of course retains the burden of proving

these conditions are not satisfied. 5 U.S.C. § 552(a)(4)(B).

11

pated.” Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir. 1993)

(emphasis omitted).

The Marshals Service applied Exemption 7(A) to Redacted

Category 13, withholding “records or information that is

relevant to pending grand jury investigations into the financial

activities of plaintiff’s associates.” Keys Decl. ¶ 10. The Keys

Declaration further opined, “Release of this information could

reasonably be viewed as revealing the focus of the grand jury

investigation.” Id. ¶ 8. Under Campbell v. Department of

Health & Human Services, however, it is not sufficient for an

agency merely to state that disclosure would reveal the focus of

an investigation; it must rather demonstrate how disclosure

would reveal that focus. 682 F.2d 256, 265 (D.C. Cir. 1982).

In the context of Exemption 7(A), the affidavits we have

approved in the past have all gone a significant distance further

than the Keys Declaration. See, e.g., Ctr. for Nat’l Sec. Studies

v. U.S. DOJ, 331 F.3d 918, 923 (D.C. Cir. 2003); Swan v. SEC,

96 F.3d 498, 499 (D.C. Cir. 1996); Mapother, 3 F.3d at 1542–

43; Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 312

(D.C. Cir. 1988). Even in Boyd v. Criminal Division of the U.S.

DOJ, 475 F.3d 381 (D.C. Cir. 2007), which the Marshals

Service cites as setting a low threshold for Exemption 7(A)

supporting documents, we required specific information about

the impact of the disclosures, see id. at 386. Absent testimony

of similar or greater specificity, and without an in camera

review of the documents at issue, courts cannot determine that,

as a matter of law, disclosure “could reasonably be expected to

interfere with enforcement proceedings.” Hence, we must

vacate the district court’s finding that Exemption 7(A) was

properly applied.

The Marshals Service cites Robbins Tire for the proposition

that “whenever the government’s case in court would be harmed

12

by the premature release of evidence or information,” the harm

from disclosure is sufficient to support application of Exemption

7(A). Appellee’s Br. 24 (internal quotation marks omitted). But

it is not clear the Supreme Court actually adopted such a rule,

see Robbins Tire, 437 U.S. at 232 (noting Senator Hart had

expressed such a view), and on the record before us it is

impossible to determine whether disclosure would in fact

impede such an investigation. In Curran v. DOJ, another case

cited by the Marshals Service, the First Circuit approved the use

of Exemption 7(A), but only because a government affidavit

“carefully explained to the district court how the release . . .

would ‘interfere’ with enforcement proceedings,” which the

court deemed sufficient when “coupled with the remaining

divulgements in the ten page affidavit.” 813 F.2d 473, 476 (1st

Cir. 1987). Finally, to the extent Spannaus v. U.S. DOJ, 813

F.2d 1285, 1287 (4th Cir. 1987), can be read as setting a lower

hurdle for affidavits in support of an invocation of Exemption

7(A), we decline to follow the Fourth Circuit’s lead.4

On remand, the district court must determine whether

disclosure of the materials withheld pursuant to Exemption 7(A)

could in fact reasonably be expected to interfere with enforce-

ment proceedings. See 5 U.S.C. § 552(b)(7)(A). And, contrary

to the Marshals Service’s contention, the relevant proceedings

must be pending or reasonably anticipated at the time of the

district court’s eventual decision, not merely at the time of

Sussman’s original FOIA request, in order to support redaction

under Exemption 7(A). See August v. FBI, 328 F.3d 697, 698

(D.C. Cir. 2003).

4

We note that in Spannaus, the Fourth Circuit was not reviewing

the district court’s decision de novo. Spannaus, 813 F.2d at 1288 &

n.4. It is not clear that the court would have found the government’s

affidavit sufficient under the more probing standard of review we

apply.

13

2

Exemption 7(C) covers materials compiled for law enforce-

ment purposes whose disclosure “could reasonably be expected

to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). To determine whether Exemption 7(C)

applies, we “balance the privacy interests that would be compro-

mised by disclosure against the public interest in release of the

requested information.” Davis v. U.S. DOJ, 968 F.2d 1276,

1281 (D.C. Cir. 1992). Where a legitimate privacy interest is

implicated, the requester must “(1) show that the public interest

sought to be advanced is a significant one, an interest more

specific than having the information for its own sake, and (2)

show the information is likely to advance that interest.” Boyd,

475 F.3d at 387 (internal quotation marks omitted) (quoting

Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172

(2004)).

On one side of the scale, the exemption protects the privacy

interests of all persons mentioned in law enforcement records,

whether they be investigators, suspects, witnesses, or infor-

mants. See Schrecker v. U.S. DOJ, 349 F.3d 657, 661 (D.C. Cir.

2003) (citing cases). On the other side, “the only public interest

relevant for purposes of Exemption 7(C) is one that focuses on

the citizens’ right to be informed about what their government

is up to.” Davis, 968 F.2d at 1282 (internal quotation marks

omitted) (quoting U.S. DOJ v. Reporters Comm. for Freedom of

the Press, 489 U.S. 749, 773 (1989)). Names of private individ-

uals are thus generally exempt from disclosure except, for

example, where they are required to confirm or refute allega-

tions of improper government activity. SafeCard Servs., Inc. v.

SEC, 926 F.2d 1197, 1205–06 (D.C. Cir. 1991). Even then, “the

requester must produce evidence that would warrant a belief by

a reasonable person that the alleged Government impropriety

14

might have occurred” in order to gain disclosure. Favish, 541

U.S. at 174; see also Boyd, 475 F.3d at 387.

The Marshals Service applied Exemption 7(C) to withhold

names, addresses, telephone numbers, social security numbers,

and other such private information regarding law enforcement

officials, a “judicial protectee,” other government employees,

unnamed “third-party individuals,” and (apparently) Maydak.

Keys Decl. ¶ 11; Supp. Maydak Decl. ¶ 2. The Marshals

Service used this exemption in relation to all the Redacted and

Withheld Categories aside from Redacted Category 3. Redacted

Categories 1 and 23 concerned a law enforcement officer and

the judicial protectee respectively; all others included informa-

tion on unspecified individuals, possibly including Maydak. See

Keys Decl. ¶¶ 18–19.

The district court found Sussman had not alleged miscon-

duct on the part of the Marshals Service and hence upheld

application of Exemption 7(C). See SafeCard Servs., 926 F.2d

at 1205–06. While we find Sussman did in fact allege miscon-

duct, his bare and undeveloped allegations would not warrant a

belief by a reasonable person that impropriety might have

occurred. See Favish, 541 U.S. at 174.

However, Sussman makes one substantive argument. He

maintains Exemption 7(C) cannot apply to materials concerning

Maydak, as Maydak “authorize[d] the release of documents

about him[self].” Appellant’s Br. 26 (citing Supp. Maydak

Decl. ¶ 7). While Sussman first produced this apparent authori-

zation on May 16, 2005, several weeks after the Marshals

Service completed its court-ordered search of its records, this

court has previously required disclosure where authorization

arrived late. Computer Prof’ls for Soc. Responsibility v. U.S.

Secret Serv., 72 F.3d 897, 900–01, 904–05 (D.C. Cir. 1996).

Thus, if Maydak waived his privacy interest under FOIA, the

15

Marshals Service cannot withhold materials concerning him

based on Exemption 7(C).

We cannot determine on the record before us whether

Maydak in fact waived his FOIA privacy interest. First, as the

district court did not reach the question of Maydak’s waiver, we

cannot say with certainty that it is genuine, much less that it was

knowing, intelligent, and voluntary. Though we have no reason

to doubt the authenticity of the waiver, these are issues for the

district court to analyze on remand. Second, Maydak’s Supple-

mental Declaration states, “I do not object to the disclosure of

information about me to Sussman.” Supp. Maydak Decl. ¶ 7.

It is not clear this amounts to a full-scale waiver of Maydak’s

privacy interest under FOIA, where disclosure would release the

contested materials to the world at large, not just to Sussman.

Here too the district court is the proper forum for determining

whether Maydak in fact consents to such unlimited disclosure,

for which reason we vacate the finding that Exemption 7(C) was

properly applied to cover materials private to Maydak.

As we cannot be sure which categories this ruling impacts,

we must vacate the district court’s grant of summary judgment

on Count I to the extent it covers Redacted Categories 2, 4–22,

and 24–25, as well as all four Withheld Categories. But as

Maydak’s waiver has no effect on the privacy interests of others,

we affirm the district court’s finding that the Marshals Service

properly applied Exemption 7(C) to protect the privacy of

individuals other than Maydak. On remand, the district court

should determine whether Maydak has indeed waived his FOIA

privacy interest, and if so which materials may thus be disclosed

without concomitantly revealing information private to others.

See Computer Prof’ls, 72 F.3d at 904 (requiring materials

disclosed pursuant to waivers to be “redacted to protect the

interests of individuals who have not waived their rights”).

16

D

Even when FOIA exemptions apply, “[a]ny reasonably

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt.” 5 U.S.C. § 552(b). This rule of segregation applies to

all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731 F.2d 16,

21 (D.C. Cir. 1984). “It has long been a rule in this Circuit that

non-exempt portions of a document must be disclosed unless

they are inextricably intertwined with exempt portions.” Mead

Data Cent., 566 F.2d at 260. Before approving the application

of a FOIA exemption, the district court must make specific

findings of segregability regarding the documents to be with-

held. Summers v. DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998);

Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993).

If the district court approves withholding without such a finding,

remand is required even if the requester did not raise the issue

of segregability before the court. Johnson v. EOUSA, 310 F.3d

771, 776 (D.C. Cir. 2002); Trans-Pac. Policing Agreement v.

U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

Agencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material.

Boyd, 475 F.3d at 391. The quantum of evidence required to

overcome that presumption is not clear. Compare United States

v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (“The presump-

tion of regularity supports the official acts of public officers and,

in the absence of clear evidence to the contrary, courts presume

that they have properly discharged their official duties.”), with

Favish, 541 U.S. at 174 (holding that “[g]iven FOIA’s pro-

disclosure purpose,” a less stringent standard whereby a

requester need only “produce evidence that would warrant a

belief by a reasonable person” “is more faithful to the statutory

scheme” in some contexts). If the requester successfully rebuts

this presumption, the burden lies with the government to

17

demonstrate that no segregable, nonexempt portions were

withheld. 5 U.S.C. § 552(a)(4)(B); Paisley v. CIA, 712 F.2d

686, 700 (D.C. Cir. 1983), vacated in part on other grounds, 724

F.2d 201 (D.C. Cir. 1984) (per curiam).

Here, the district court made the necessary finding that the

Marshals Service had not withheld any segregable, nonexempt

materials. Even under the less demanding Favish standard,

Sussman has not persuaded us that these findings were incorrect.

However, to the extent the district court orders additional

disclosures on remand, new segregability findings will be

required.

IV

We turn next to Count I as it relates to the seven pages the

Marshals Service referred to the Postal Service, which the Postal

Service then decided to withhold pursuant to FOIA Exemptions

6, 7(A), and 7(C).

A

The Marshals Service moved for summary judgment “with

regard to everything but the documents referred to other

agencies.” Def.’s 2nd S.J. Mot. 1–2 (emphasis added). In its

accompanying brief, the Marshals Service provided no argu-

ments supporting summary judgment as to the Postal Service

materials. The Marshals Service mentioned the Postal Service’s

invocation of Exemptions 6 and 7(C) in its opposition to

Sussman’s second motion for summary judgment,5 but only as

a reason to deny summary judgment to Sussman, not as a basis

5

Exemption 6 protects from disclosure “personnel and medical

files and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6).

18

for summary judgment in its own favor. Nonetheless, the

district court granted the Marshals Service summary judgment

as to the Postal Service materials and later denied Sussman’s

motion for reconsideration.

“While district courts possess the authority to enter sum-

mary judgment against a party sua sponte, that authority may

only be exercised ‘so long as the losing party was on notice that

she had to come forward with all of her evidence.’” McBride v.

Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1212 (D.C. Cir.

1986) (citation omitted) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 326 (1986)). Here, notice was inadequate, and the

Marshals Service’s response to Sussman’s motion to reconsider

did not correct this inadequacy. Therefore, summary judgment

in favor of the Marshals Service was improper.

B

We next consider whether, instead, Sussman is entitled to

summary judgment as regards disclosure of the seven pages

referred to the Postal Service.

Agencies cannot simply refer documents to other agencies

as a matter of course but must show that the procedure is

reasonable under the circumstances. See McGehee v. CIA, 697

F.2d 1095, 1110 (D.C. Cir. 1983) (describing a test for when

referrals result in improper withholding). In particular, FOIA

explicitly permits “consultation . . . with another agency having

a substantial interest in the determination of the request,” 5

U.S.C. § 552(a)(6)(B)(iii)(III), and if an agency chooses outright

referral instead, “the advantages that would be secured by

delegating all responsibility for reviewing the document . . .

rather than engaging in . . . ‘consultation’ . . . must then be

balanced against any inconvenience to the requester caused by

the referral,” McGehee, 697 F.2d at 1111 n.71.

19

Sussman mistakenly reads McGehee as barring referrals

outright. McGehee’s description of consultation as “the only

procedure expressly set forth in [FOIA]” to deal with situations

in which one agency possesses documents in which a second

agency has a substantial interest, id., merely reiterates that

consultation is per se acceptable; it does not preclude other

reasonable procedures. Similarly, McGehee’s admonition that

the agency receiving the initial request “cannot simply refuse to

act on the ground that the documents originated elsewhere,” id.

at 1110, indeed imposes a duty on that agency, but the agency

may acquit itself through a referral, provided the referral does

not lead to improper withholding under the McGehee test. See,

e.g., Peralta v. U.S. Attorney’s Office, 136 F.3d 169, 175–76

(D.C. Cir. 1998) (applying McGehee where the EOUSA referred

materials to the FBI for final disposition rather than releasing

them or citing exemptions directly).

Thus, Sussman’s argument against referrals fails. As the

current record contains insufficient evidence to establish

improper withholding under McGehee, Sussman does not

deserve summary judgment on this ground.

In the alternative, Sussman argues he deserves summary

judgment as to the Postal Service materials because the Mar-

shals Service failed to “show[] evidence . . . that the documents

were exempt from disclosure.” Pl.’s 2nd S.J. Br. 2. Sussman

raised this argument in the brief accompanying his second

summary judgment motion, and the only evidence the Marshals

Service provided to support its opposition was the Postal

Service’s March 17, 2005 letter to Sussman, which announced

the Postal Service’s invocation of Exemptions 6 and 7(C) but

did not explain why they applied. In its subsequent opposition

to Sussman’s motion for reconsideration, however, the Marshals

Service did present evidence sufficient to create a genuine issue

of fact as to the applicability of Exemptions 6, 7(A), and 7(C),

20

to wit a declaration by Postal Service employee John Patrick

Tyrrell. We have in the past permitted agencies to escape

summary judgment in FOIA cases based on evidence first

submitted on motions for reconsideration, see Computer Prof’ls,

72 F.3d at 900, 903, and Sussman has presented no argument as

to why this rule should not apply in the instant case. Therefore,

based on the Tyrrell Declaration, we find Sussman’s second

argument fails as well, and hence we affirm the district court’s

denial of his motion for summary judgment as to the Postal

Service materials.

C

Because neither party deserves summary judgment as to

these materials, we vacate the district court’s grant of summary

judgment to the Marshals Service and remand for further

proceedings. Sussman argues that on remand, the Marshals

Service should not be permitted to assert FOIA exemptions, as

it failed to do so in proceedings before the district court prior to

this appeal.

Sussman errs with regard to Exemptions 6 and 7(C). In its

opposition to Sussman’s second motion for summary judgment,

the Marshals Service explicitly referenced those two exemp-

tions, and the court needed to consider those exemptions when

ruling on the motion. Thus, the invocation sufficed to avoid

waiver. See Ryan v. DOJ, 617 F.2d 781, 792 n.38a (D.C. Cir.

1980).

As for Exemption 7(A), the question is closer. We have

found no case in this circuit that definitively confirms or rejects

the power of the government to avoid waiver by invoking a

FOIA exemption for the first time in a motion for—or opposi-

21

tion to—reconsideration.6 But the logic underlying our cases in

this area suggests that invocation even at that late stage is

proper, at least where the district court chooses to entertain the

new argument.

For example, our seminal case on waiver in the FOIA

context held that “[a]n agency cannot prevail on an exemption

that it has not raised either at the agency level or in the district

court and that it has invoked for the first time in the appellate

court.” Jordan v. U.S. DOJ, 591 F.2d 753, 779 (D.C. Cir. 1978)

(en banc) (emphasis added), overruled in part on other grounds,

Crooker, 670 F.2d 1051. Furthermore, where an agency fails

“through pure mistake” to cite a particular exemption, the

appellate court has discretion to remand for consideration of the

exemption, at least where the government’s case is sufficiently

strong. See August, 328 F.3d at 700. As the Postal Service had

already issued its May 3, 2005 letter invoking Exemption 7(A)

when the Marshals Service filed its opposition to Sussman’s

second motion for summary judgment, the Marshals Service’s

omission of that exemption qualifies as such a mistake. Finally,

we note that the district court “is vested with a large measure of

discretion in deciding whether to grant a Rule 60(b) motion,”

Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138

(D.C. Cir. 1988), and it chose to entertain the Marshals Service’s

Exemption 7(A) argument on reconsideration.

For all of these reasons, we hold that the Marshals Service

properly invoked Exemption 7(A), as well as Exemptions 6 and

7(C). We remand to the district court for consideration of the

merits of these three exemptions.

6

The Internal Revenue Service raised new exemptions in a

motion for reconsideration in Taxation with Representation Fund v.

IRS, 646 F.2d 666 (D.C. Cir. 1981), but abandoned the new

exemptions on appeal.

22

V

Sussman’s remaining claims all rely on the Privacy Act, 5

U.S.C. § 552a. We consider first Count II, in which Sussman

again seeks disclosure of the materials described above. Under

5 U.S.C. § 552a(d)(1), each “agency that maintains a system of

records” must, “upon request by any individual to gain access to

his record or to any information pertaining to him which is

contained in the system, permit him . . . to review the record and

have a copy made of all or any portion thereof in a form

comprehensible to him.” Heads of agencies may, however,

promulgate rules exempting particular systems of records from

§ 552a(d)(1) under conditions described at § 552a(j)–(k).

Sussman properly issued a § 552a(d)(1) request, and the

Marshals Service does not contest its status as an “agency that

maintains a system of records.” Furthermore, by failing to raise

the issue before the district court, the Marshals Service has

forfeited the right to argue a Privacy Act exemption applies to

the materials it processed directly. See Benavides v. U.S.

Bureau of Prisons, 995 F.2d 269, 273 (D.C. Cir. 1993) (extend-

ing Jordan’s waiver rule to Privacy Act cases). Likewise, as

neither the Marshals Service nor the Postal Service invoked

them, Privacy Act exemptions for the Postal Service materials

are also forfeited.

But that is not the end of the story. The Marshals Service

argues the materials Sussman seeks do not qualify for manda-

tory disclosure under § 552a(d)(1). The precise contours of an

agency’s duty under § 552a(d)(1) have never been defined in

this circuit.7 We do, however, have guidance from the Office of

7

While we have occasionally summarized this provision in

language that suggests its scope, e.g., McCready, 465 F.3d at 8;

Horowitz v. Peace Corps, 428 F.3d 271, 280 (D.C. Cir. 2005), we

have never confronted the question directly.

23

Management and Budget (“OMB”), the language of the statute,

and common sense.

First, OMB guidelines released in 1975 advise that “[i]f an

individual is named in a record about someone else . . . and the

agency only retrieves the portion pertaining to him by reference

to the other person’s name . . . , the agency is not required to

grant him access” pursuant to 5 U.S.C. § 552a(d)(1). Privacy

Act Guidelines, 40 Fed. Reg. 28,949, 28,957 (1975) (“OMB

Guidelines”). Congress explicitly tasked the OMB with

promulgating guidelines for implementing the Privacy Act,

Privacy Act of 1974, § 6, Pub. L. No. 93-579, 88 Stat. 1896,

1909, and we therefore give the OMB Guidelines “the deference

usually accorded interpretation of a statute by the agency

charged with its administration,” Albright v. United States, 631

F.2d 915, 920 n.5 (D.C. Cir. 1980).8

Second, the language of § 552a(d)(1) strongly suggests

individuals may access only their own records, not information

pertaining to them in other people’s records. Under that

provision, the duty to disclose is triggered by an individual’s

8

The OMB apparently invited no public comment prior to

publishing its guidelines, see OMB Circular A-108, 40 Fed. Reg.

28,948 (1975) (announcing rules without citing earlier notice), and

after we decided Albright, Congress pointedly replaced its original

grant of authority to the OMB with one that expressly required the

OMB to respect such procedural niceties before its guidelines could

be binding, Computer Matching and Privacy Protection Act of 1988,

§ 6, Pub. L. No. 100-503, 102 Stat. 2507, 2513. But Congress made

clear the change was not meant to disturb existing guidelines. H.R.

REP. NO. 100-802, at 36 (1988). Hence, the old OMB Guidelines still

deserve the same level of deference they enjoyed prior to the 1988

amendment. See Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453,

1460 n.12 (D.C. Cir. 1996) (quoting Albright in dicta after the

amendment); see also Doe v. Chao, 540 U.S. 614, 633 (2004)

(Ginsburg, J., dissenting) (citing the OMB Guidelines).

24

request for either (1) “his record” or (2) “any information

pertaining to him which is contained in the system [of records],”

but in either case the agency is required to present only “the

record.” It is a well-established rule of statutory construction

that “when Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 452 (2002) (internal quotation

marks omitted). According to this principle, the OMB is right

to exclude from mandatory disclosure those materials pertaining

to a requesting individual but contained only in other individu-

als’ files.

Third, this seems the only reasonable interpretation, as the

opposite approach would force agencies to search every last

datum they maintain, in case it might pertain to the requesting

party. With records spread through multiple databases, kept in

disparate forms, and retained in non-electronic media, this

would be such an onerous task that we hesitate to assume

Congress imposed it upon agencies sub silentio.

For all of these reasons, we interpret 5 U.S.C. § 552a(d)(1)

to give parties access only to their own records, not to all

information pertaining to them that happens to be contained in

a system of records. For an assemblage of data to qualify as one

of Sussman’s records, it must not only contain his name or other

identifying particulars but also be “about” him. Tobey v. NLRB,

40 F.3d 469, 472 (D.C. Cir. 1994). That is, it must actually

describe him in some way. Id. Hence, only those records that

are “about” Sussman are subject to disclosure based on his

§ 552a(d)(1) request. Accord OMB Circular A-130, § 8a(9)(d),

58 Fed. Reg. 36,068, 36,073 (1993) (instructing agencies to

“[p]rovide individuals, upon request, access to records about

them” (emphasis added)).

25

Thus, pursuant to the Privacy Act, the Marshals Service

must disclose to Sussman those materials—and only those

materials—contained in records about him, the release of which

would not violate 5 U.S.C. § 552a(b).9 However, the current

record does not permit identification of those materials. For

FOIA purposes, the question of whose records contained the

requested information was immaterial, see Military Audit

Project v. Casey, 656 F.2d 724, 730 n.11 (D.C. Cir. 1981), and

the district court reviewed the Marshals Service’s search efforts

only in terms of FOIA. Therefore, the question remains

factually unresolved, and we vacate the grant of summary

judgment on Count II and remand to the district court.

VI

In Counts IV through XVI, Sussman alleges the Marshals

Service improperly revealed information about him and thereby

adversely affected him. See 5 U.S.C. § 552a(b), (g)(1)(D).

Sussman seeks an injunction against “further unlawful disclo-

sures,” as well as “any other relief that is appropriate and just

under the circumstances.” E.g., Am. Compl. at 11. Sussman

further claims the Marshals Service’s actions were “intentional

and willful,” so that he may recover monetary damages under 5

U.S.C. § 552a(g)(4). The Marshals Service moved for summary

judgment on these counts; Sussman did not.

9

If certain materials pertain to both Sussman and other

individuals, from whom the Marshals Service has received no written

consent permitting disclosure, the Privacy Act would both require (5

U.S.C. § 552a(d)(1)) and forbid (id. § 552a(b)) their disclosure. As

the consent requirement in § 552a(b) is “one of the most important, if

not the most important, provisions” in the Privacy Act, H.R. REP. NO.

93-1416, at 12 (1974), the prohibition must take precedence. See

Blazy v. Tenet, 194 F.3d 90, 96 (D.C. Cir. 1999) (“Unlike FOIA, the

Privacy Act’s primary purpose is not disclosure.”).

26

According to 5 U.S.C. § 552a(b), “[n]o agency shall

disclose any record which is contained in a system of records”

except under certain listed circumstances, such as when the

disclosure would be for a “routine use.” If the materials were

not contained in a “record,” as defined at § 552a(a)(4), there can

be no violation. Sussman has, however, put forward sufficient

evidence to support a finding that the materials were contained

in a record, albeit potentially one pertaining primarily to

Maydak or a judge. See Supplemental Declaration of Michael

Sussman ¶¶ 2–3 (filed Apr. 26, 2004) (“1st Supp. Sussman

Decl.”). Summary judgment on this issue is therefore improper

at the present stage.

Counts IV through XVI are predicated on 5 U.S.C.

§ 552a(g)(1)(D), a catch-all provision creating a civil cause of

action for violations not described in § 552a(g)(1)(A)–(C). We

have held that only monetary damages, not declaratory or

injunctive relief, are available to § 552a(g)(1)(D) plaintiffs, Doe

v. Stephens, 851 F.2d 1457, 1463 (D.C. Cir. 1988),10 and such

monetary damages are available only where “the agency acted

in a manner which was intentional or willful,” 5 U.S.C.

§ 552a(g)(4). Thus, proof of intent or willfulness is a necessary

element of Sussman’s claims, and failure to provide supporting

evidence would lead to summary judgment in favor of the

Marshals Service. Celotex, 477 U.S. at 322–23.

Sussman argues the willfulness issue is not ripe for appeal,

citing Maydak v. U.S. DOJ, 363 F.3d 512 (D.C. Cir. 2004). In

that case, we found “no basis for summary judgment,” as the

10

As Doe, like the instant case, concerned remedies under 5

U.S.C. § 552a(g)(1)(D) for violations of § 552a(b), we treat it as

controlling, despite this court’s subsequent suggestion that the district

court retains “inherent equitable powers” to issue injunctions in

§ 552a(g)(1)(D) cases predicated on violations of § 552a(e)(7). See

Haase v. Sessions, 893 F.2d 370, 374 n.6 (D.C. Cir. 1990).

27

question of intent or willfulness was “entirely undeveloped in

the record.” Id. at 521. Sussman reasons that an absence of

evidence as to this element in his case renders the question

equally undeveloped and prevents summary judgment here also.

But Sussman misreads Maydak. In that case, the government

contested the willfulness element only in a reply, not (as here)

in its original motion for summary judgment; thus, Maydak was

not obliged to produce evidence in rebuttal, while Sussman was.

See McBride, 800 F.2d at 1212.

“An agency acts in an intentional or willful manner ‘either

by committing the act without grounds for believing it to be

lawful, or by flagrantly disregarding others’ rights under the

Act.’” Deters v. U.S. Parole Comm’n, 85 F.3d 655, 660 (D.C.

Cir. 1996) (quoting Albright v. United States, 732 F.2d 181, 189

(D.C. Cir. 1984)). “‘The violation must be so patently egregious

and unlawful that anyone undertaking the conduct should have

known it unlawful.’” Id. (alteration omitted) (quoting Laning-

ham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per

curiam)). The only evidence Sussman cited before the district

court on this issue was paragraph 7 of his First Supplemental

Declaration, which asserted that “the allegations in the Amended

Complaint . . . are true and correct to the best of my knowl-

edge.” Those allegations touched on willfulness only at

paragraph 99, which claimed USMS agents “were yelling and

screaming their allegations and theories in an effort to intimi-

date.” But paragraph 99 applies only to Count VII, and Sussman

presented no similar evidence in relation to his other improper

disclosure claims. Thus, summary judgment was proper as to

Counts IV through VI and VIII through XVI, but Count VII

survives.

The Marshals Service argues that any disclosures it made

were covered by the “routine use” exception. See 5 U.S.C.

§ 552a(b)(3). In particular, the Marshals Service claims

28

authorization under 64 Fed. Reg. 60,832, 60,839 (1999), which

permits disclosure of WIN records “to the extent necessary to

obtain information or cooperation in USMS fugitive investiga-

tions and apprehension efforts.” But the Marshals Service’s

motion for summary judgment cited no evidence tending to

show the disclosures in Count VII satisfied that criterion. See

Def.’s 1st S.J. Memo 15–17. By contrast, Sussman’s testimony

regarding “yelling and screaming” suggests the disclosures went

beyond what was “necessary to obtain information or coopera-

tion.” See 1st Supp. Sussman Decl. ¶ 7; Amended Complaint

¶ 99. Thus, we cannot say summary judgment for the Marshals

Service on Count VII was proper on this ground, either.

However, the Marshals Service also claims Sussman has

failed to show the information allegedly disclosed was in a

record “contained in a ‘system of records’ retrievable by

plaintiff’s name or other personal identifier.” Def.’s 1st S.J.

Memo 14. This is a subtle argument. The Marshals Service is

not denying the materials were in a system of records, a point it

concedes. See Appellee’s Br. 9 (“The information was not

maintained in a system of records retrievable by Sussman’s

name, but by Maydak’s name.” (emphasis added)). Rather, its

argument presumes that, in order to recover, Sussman must

show the Marshals Service improperly disclosed materials

located in records retrievable by Sussman’s name as opposed to

someone else’s name. We agree.

Section 552a(b) restricts the disclosure of “any record

which is contained in a system of records.” A grouping of

information is a “record” if it is (1) about an individual and (2)

maintained by an agency. 5 U.S.C. § 552a(a)(4). A “system of

records” is in turn “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

29

identifying particular assigned to the individual.” Id. § 552a(a)(5).

If a record is retrievable by reference to some name other

than Sussman’s, the information is part of a “system of records,”

but it is not clear Sussman may recover damages for its disclo-

sure. We have never decided whether an adversely affected

individual can bring suit under § 552a(g)(1)(D) for the improper

disclosure of another person’s records, a question we once

described as “interesting and, so far as we determine, unre-

solved,” Tijerina v. Walters, 821 F.2d 789, 794 (D.C. Cir. 1987).

The Privacy Act authorizes civil suits by individuals who

satisfy any of the four subsections under 5 U.S.C. § 552a(g)(1).

Subsections (A) through (C) limit suits to individuals whose

Privacy Act rights are infringed, but subsection (D) includes no

such explicit limit, suggesting it may apply more generally. But

one could equally argue that as subsections (A) through (C)

create rights of action for the infringement of specific Privacy

Act rights, subsection (D)’s seemingly broad reference to an

“adverse effect” should likewise be read to encompass only the

infringement of Privacy Act rights. Given this ambiguity, we

must construe § 552a(g)(1)(D)’s waiver of sovereign immunity

narrowly. See Soc. Sec. Admin. v. FLRA, 201 F.3d 465, 471

(D.C. Cir. 2000); see also Ruckelshaus v. Sierra Club, 463 U.S.

680, 685–86 (1983). We therefore interpret § 552a(g)(1)(D) to

permit claims predicated on § 552a(b) violations only by a

person whose records are actually disclosed.

Thus, for his action to survive, Sussman must present

evidence that materials from records about him, which the

Marshals Service retrieved by his name, were improperly

disclosed. Since Sussman was unaware of this requirement or

the need to rebut it, fairness demands he be given a chance to do

so now. See McBride, 800 F.2d at 1212; cf. Kimberlin v.

Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (noting law-of-the-

30

case doctrine is inapplicable if a change in the law intervenes).

Accordingly, we vacate the district court’s grant of summary

judgment as to Count VII and remand for further proceedings.

VII

Finally, we consider Count III. Sussman never moved for

summary judgment on this claim. The Marshals Service did, but

it provided no arguments supporting its request. The district

court granted summary judgment to the Marshals Service

without analysis or explanation. The core elements of the claim

are (1) failure by the Marshals Service to maintain an accurate

accounting of disclosures, and (2) a resultant adverse effect on

Sussman. 5 U.S.C. § 552a(c)(1), (g)(1)(D). Nothing in the

Marshals Service’s affidavits negates either element. Thus,

summary judgment was improper, and we vacate the district

court’s order as to Count III and remand for further proceedings.

As Count III is again predicated on 5 U.S.C. § 552a(g)(1)(D),

our interpretation of that provision governs here as well; that is,

Sussman can recover for accounting failures regarding disclo-

sures only to the extent those disclosures involved materials in

his records.

VIII

For the reasons described above, we affirm the district

court’s grant of summary judgment to the Marshals Service on

Count I to the extent it covers Redacted Categories 1, 3, and 23,

but vacate it to the extent it covers Redacted Categories 2, 4–22,

and 24–25, as well as the four Withheld Categories and the

seven pages of documents referred to the Postal Service. We

vacate the grant of summary judgment on Count II insofar as it

relates to the Withheld and Redacted Categories and the

materials referred to the Postal Service. We affirm the grant as

to Counts IV through VI and VIII through XVI, but vacate it

31

with respect to Counts III and VII. The case is remanded to the

district court for such further proceedings as may be required,

consistent with this opinion.

So ordered.