Pierce v. Department of the United States Air Force

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 21, 2007

No. 06-61050 Charles R. Fulbruge III

Clerk

ROBERT EARL PIERCE

Plaintiff-Appellant

v.

DEPARTMENT OF THE UNITED STATES AIR FORCE

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this appeal, Plaintiff-Appellant Robert Pierce (“Pierce”) challenges the

district court’s summary judgment rendered against him and in favor of

Defendant-Appellee Department of the Air Force (the “Air Force”) concluding

that the Air Force did not violate Pierce’s rights under the Privacy Act of 1974,

5 U.S.C. § 552a(b) (the “Privacy Act”). The district court held that the

documents at issue were not “records” contained within a “system of records” for

purposes of the Privacy Act and granted summary judgment on that ground. We

agree with the district court and affirm.

No. 06-61050

I.

In February 2001, Col. (Ret.) Joe Bryant (“Bryant”), a former pilot in the

186th Air Refueling Wing of the Mississippi Air National Guard, once stationed

at the Key Field Air National Guard Base in Meridian, Mississippi, filed a

complaint that alleged wrongful conduct and improprieties by several officers of

his unit. Included in the complaint were allegations against Pierce.1

In February 2003, Colonel Kenneth Emmanuel (“Emmanuel”) was

designated by the Air Force Inspector General to investigate some of Bryant’s

allegations, and he did so over a period of several months. On May 31, 2004,

Emmanuel issued his findings in a Report of Investigation (“ROI”). Additionally,

and pursuant to regulation, Emmanuel prepared a Summary Report of

Investigation (“SROI”), a version of the ROI that omits names and personally-

identifying information of individuals in the report. AIR FORCE INSTRUCTION

(AFI) 90-301, §§ 2.61, 2.49 (January 30, 2001). In the SROI, Emmanuel did not

name the officers against whom Bryant lodged his complaints (including Pierce).

Instead, consistent with regulation guidance, he identified them by duty titles.

Id. § 2.49, Figure 2.6 (“Do not use names in the SROI. Use duty titles . . . .”).

Pertinently, Pierce was referred to in the SROI as C-26 Program Manager and

Counterdrug Coordinator.2

In July 2004, Colonel Ronnie Rogers (“Rogers”) took over and assumed the

responsibility for closing the investigation of Bryant’s allegations. In the course

1

Bryant alleged that Pierce improperly disposed of government property, cheated on

examinations and research papers, wrongfully fraternized with, had an unprofessional

relationship with, or sexually harassed a subordinate enlisted female, wrongfully referred one

of his subordinate pilots for a mental health evaluation, wrongfully used aircraft for

unauthorized flights and funds for improper expenditures, wrongfully received Air Force wings,

wrongfully manipulated the merit selection process, wrongfully falsified or failed to update his

military medical records and failed to take sick leave, and wrongfully threatened subordinates

with unspecified adverse actions if they cooperated with investigators.

2

Pierce was C-26 Program Manager from 1996 to 2001, after which he became a

Counterdrug Coordinator.

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No. 06-61050

of closing the investigation, he determined that Bryant was a “complainant” per

Air Force regulations. As a “complainant” for the allegations, Bryant was

entitled to a final response letter and an SROI. Id. § 2.61.4 (Complainant “will

receive a final response, in writing, with the findings of the investigation and a

copy of the SROI (if available).”). On October 15, 2004, Rogers sent Bryant the

final response letter and a copy of the SROI, in compliance with the Air Force

regulations he considered applicable. After receiving the final response letter

and the SROI, Bryant or his wife allegedly leaked information contained in those

documents and informed the press that Pierce was the individual listed under

the duty titles C-26 Program Manager and Counterdrug Coordinator. On

October 22, 2004, The Meridian Star and The Clarion Ledger reported

information from the final response letter and SROI and listed Pierce by name

as a subject of the investigation.

Pierce filed suit against the Air Force alleging a violation of the Privacy

Act. The parties later filed cross-motions for summary judgment. The district

court held that the final response letter and SROI provided to Bryant were not

records protected by the Privacy Act and dismissed the suit. Pierce now appeals.

II.

A. STANDARD OF REVIEW

We review a grant of summary judgment de novo, viewing all evidence in

the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party's favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence

reflects no genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “We may affirm

a summary judgment on any ground supported by the record, even if it is

different from that relied on by the district court.” Lozano v. Ocwen Federal

Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (quoting Holtzclaw v. DSC

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No. 06-61050

Commc'ns Corp., 255 F.3d 254, 258 (5th Cir. 2001)) (internal quotation marks

omitted).

B. DISCUSSION

To establish that an agency failed to comply with the Privacy Act, a

plaintiff must demonstrate that: (1) the information is a “record” within a

“system of records;” (2) the agency disclosed the information; (3) the disclosure

adversely affected the plaintiff; and (4) the disclosure was willful or intentional.

5 U.S.C. § 552a(g); Jacobs v. National Drug Intelligence Center, 423 F.3d 512,

516 (5th Cir. 2005). The Air Force moved for summary judgment on grounds

that the summary judgment record demonstrated that Pierce could not establish

prongs one, two, or four. The district court held that Pierce could not satisfy the

first prong because duty titles used in lieu of names were not “identifying

particulars,” and thus the use of duty titles did not make the final response

letter and SROI “records” within a “system of records.”3 Specifically, the district

court found that the response that Bryant received did not include Pierce’s name

and held that a duty title is not unique to an individual because many people

have the same or similar duty titles. The district court reasoned that duty titles

change over time and that individuals typically have both a predecessor and a

successor at any specific duty title. Thus, the district court found that although

the newspapers were able to connect Pierce to the allegations against him, the

newspapers could not have made such a connection without information found

outside of the final response letter and SROI. As such, the final response letter

3

The Privacy Act defines “record” as “any item, collection, or grouping of information

about an individual that is maintained by an agency, including, but not limited to, his

education, financial transactions, medical history, and criminal or employment history and

that contains his name, or the identifying number, symbol, or other identifying particular

assigned to the individual, such as a fingerprint or voice print or a photograph.” 5 U.S.C. §

552a(a)(4). The Privacy Act defines “system of records” as “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.”

Id. § 552a(a)(5).

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No. 06-61050

and the SROI were not protected records per the Privacy Act, and Pierce’s claim

failed to meet the first prong. As discussed below, we agree that the newspapers

could not have identified Pierce without additional information not released by

the Air Force and that the duty titles released here are not the equivalent of

names of particular individuals.

Appellant first relies on the plain language of the Privacy Act which states

that a “record” is “any item . . . that contains his name, or the identifying

number, symbol, or other identifying particular assigned to the individual, such

as a finger or voice print or a photograph.” 5 U.S.C. § 552a(a)(4). Appellant

argues that this language suggests that duty titles are the equivalent to the

names of particular individuals. We disagree. Although the Privacy Act protects

more than just documents that contain a person’s name, it does not protect

documents that do not include identifying particulars. Here, the district court

found that the duty titles were not numbers, symbols, or other identifying

particulars. Similarly, the district court found that duty titles were not

comparable to captured immutable characteristics such as finger or voice prints

or photographs. The district court reached these conclusions because an

individual’s duty title changes over time, because multiple people can

concomitantly have the same or similar duty titles, and because each individual

has predecessor and successor holders of the same duty titles. We agree with the

reasoning and conclusions of the district court. In circumstances where duty

titles pertain to one and only one individual, such as the examples of identifying

particulars provided in the statutory text (finger or voice print or photograph),

duty titles may indeed be “identifying particulars” as that term is used in the

definition of “record” in the Privacy Act. For the reasons detailed by the district

court, however, the duty titles in this case are not “identifying particulars”

because they do not pertain to one and only one individual. See, e.g., 32 C.F.R.

§ 806b.45 (2007) (permitting disclosure of an individual’s past and present

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No. 06-61050

position title and stateside duty assignments without written consent of that

individual); 32 C.F.R. Pt. 505, App. H (defining “personal identifier” as “name,

number, or symbol that is unique to an individual, usually the person’s name or

SSN”). And the plain language of the Privacy Act does not support the

conclusion that duty titles are identifying particulars.

Appellant next relies on an Office of Management and Budget regulation

to argue that to be a “record” under the Privacy Act, the information does not

have to be unique to an individual, only that it be “about” that individual.

Guidance on the Privacy Act Implications of “Call Detail” Programs, 52 Fed. Reg.

12,990–91 (April 20, 1987). This regulation was promulgated to provide

guidance to agencies creating “call detail programs” that collect and use

information relating to their employees’ use of long distance telephone systems.

Id. at 12,990. The regulation provides that call detail records that contain only

telephone numbers are not records under the Privacy Act, but that when linked

with a name they become such records. Appellant correctly notes that the

Privacy Act’s definition of “record” is thus not limited to purely unique or

immutable identifying information, as telephone numbers can be protected. Id.

at 12,991.

The regulation, however, does not support the conclusion that the final

response letter and SROI are records protected by the Privacy Act. The

regulation states that identifying information alone, unless accompanied by a

link between the identifying information and a specific individual, is insufficient

to make a record protected. Id. (“Standing alone, a telephone number, is not a

Privacy Act record. To achieve the status of a Privacy Act record, a telephone

number must be maintained in a way that links it to an individual’s name or

some other identifying particular such as a Social Security Account Number.

When an agency assigns a specific phone number to an employee and maintains

that information in a way that the name and number are inseparably connected,

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No. 06-61050

there is sufficient identification linkage that a Privacy Act record is created.”).

Thus, the regulation confirms what has been recognized by other courts: To be

a Privacy Act record, the information must be both (1) “about” the individual and

(2) linked to that individual by name or identifying particular. See, e.g., Tobey

v. N.L.R.B., 40 F.3d 469, 471 (D.C. Cir. 1994). The final response letter and

SROI sent to Bryant included the allegations and other information “about”

Pierce. This satisfies the first prong of the definition of “record.” The second

prong, however, is unsatisfied. As explained above, the duty titles in this case

do not qualify as identifying particulars. As such, the final response letter and

SROI did not include the requisite linkage to Pierce by his name or other

identifying particular. The final response letter and SROI are thus not Privacy

Act records.

In support of the argument that duty titles are not unique to an individual,

Appellee points out that at the time the newspaper articles were printed Pierce

no longer held the duty title of C-26 Program Manager, his duty title prior to

2001. The newspaper articles were printed on October 22, 2004. At that time

Pierce held the duty title of Counterdrug Coordinator, his assignment after his

C-26 Program Manager position, and against which only one allegation from the

final response letter and SROI pertained. Thus, Pierce’s duty title had changed,

and all but one of the eight allegations listed in the October 15, 2004 final

response letter pertained to a duty title he no longer held. As such, Appellee

argues that the link to Pierce was not so simple as identifying the current holder

of the listed duty titles because that inquiry would not have identified Pierce

except for as to one of the allegations. The inclusion of one allegation involving

Pierce’s then-current duty title does not mean that the report specifically

identified only Pierce for this allegation, because a person reading the report

would have to know which allegations pertained to military personnel in their

current positions instead of their previous positions. Had the report included

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No. 06-61050

both duty titles and dates for the allegations, the report very well might have

linked specifically to Pierce because only one person could have held his duty

title on those dates. But simply listing allegations by duty titles without

specifying when the personnel involved held those duty titles is insufficient to

turn Pierce’s then-current duty title into an “identifying particular.”

To answer this argument, Appellant relies on Quinn v. Stone, 978 F.2d 126

(3d Cir. 1992). In Quinn, the court determined that data stored in a hunting

records database and accessible by the names of the hunters were Privacy Act

records, despite the fact that some of the information was out-of-date. Id. at 132.

(“As this case demonstrates, the meaningful privacy interest in a particular piece

of information may be lessened by the passage of time, but such an interest is

unlikely to be extinguished. We conclude that this out-of-date home address was

meaningful information and was protected by the Privacy Act.”). The hunting

database stored information regarding where and when the plaintiffs had been

hunting. Critically, the stored information in question linked the plaintiffs’

names to their phone numbers and addresses. In relying on Quinn, Appellant

both fails to respond to the relevant Appellee argument and again fails to satisfy

the second prong of the definition of “record” under the Privacy Act. Appellee’s

argument is that duty titles are not identifying particulars because they change

over time. In the instant case, the duty title for all but one of the allegations was

no longer temporally accurate. The Quinn holding, that an individual may have

a privacy interest in an outdated piece of information, does not respond to

Appellee’s argument. It is true that an individual may have a privacy interest

in outdated information, but that privacy interest is limited to instances where

the outdated information is linked to the individual by name or identifying

particular. Id. at 133 (holding that the definition of “record” pertains to

“information about an individual that is linked to that individual through an

identifying particular”). Thus, Appellant repeats the mistake addressed above

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No. 06-61050

and focuses on the first requirement of a Privacy Act record while failing to

fulfill the second. It is true that the allegations are “about” Pierce, but the duty

titles in this case do not link the allegations to him.

In holding that the documents were not “records,” the district court relied

on Fleming v. United States R.R. Ret. Bd., No. 01-C-6289, 2002 WL 252459 (N.D.

Ill. Feb. 21, 2002). In that case, an agency summary report, which listed the

plaintiff by a description of his job rather than by his name, was published on its

website listing information regarding an investigation of whether the plaintiff

was conducting his private law practice during official government time. Id. at

*2. Importantly, the investigation at issue was the only one described in the

report, such that other employees at the agency would have no trouble

identifying the subject. Id. (“[H]is was the only disciplinary case described in

[the] . . . report and . . . fellow employees who had been questioned . . . knew that

plaintiff was being investigated.”). The plaintiff claimed that the summary

report was a Privacy Act record. The court held that the information did not

constitute a “record” because the disclosure was “about” the plaintiff but was not

linked to him by his name or identifying particular. Id. The Fleming court

acknowledged that the Privacy Act definition of “record” includes the words

“such as” before the list of example identifying particulars (finger or voice print

or photograph), which indicates the list is neither exclusive nor exhaustive. The

court held, however, that the information in question (plaintiff’s job description)

“would have identified plaintiff only to an individual who had other information

that would have caused that individual to infer from the report that plaintiff was

the subject of the investigation.” Id. (emphasis added). Fleming supports that

information “about” an individual is not a Privacy Act record unless it is linked

to that individual by name or identifying particular and that a description of an

individual’s job is not an identifying particular. Id. Thus, even when those with

inside knowledge are able “to infer” who an undisclosed individual is, the fact

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No. 06-61050

that the insiders have to use “other information” to do so does not justify a

conclusion that the released information is a “record.”

Appellant argues that Fleming is inconsistent with Dep’t of the Air Force

v. Rose, 425 U.S. 352 (1976). In Rose, law review editors brought an action

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel

disclosure of case summaries of service academy honor and ethics hearings with

personal references and other identifying material deleted. 425 U.S. at 355. The

case turned on exemption 6 to FOIA, which exempts “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) (“Exemption 6”). The district

court concluded that Exemption 6 was inapplicable because

disclosure of the summaries without names or other identifying

information would not subject any former cadet to public

identification and stigma, and the possibility of identification by

another former cadet could not, in the context of the Academy’s

practice of distribution and official posting of the summaries,

constitute an invasion of personal privacy proscribed [by Exemption

6].

Rose, 425 U.S. at 357. The Court of Appeals disagreed with this approach, and

held that the district court and the agency must produce the documents in court

and redact the records so as to “delete personal references and all other

identifying information.” Id. at 358 (citing Rose v. Dep’t of the Air Force, 495

F.2d 261, 267 (2d Cir. 1974)). The Supreme Court granted certiorari and agreed

with the Court of Appeals that the documents should be produced and redacted,

and stated, inter alia, that “what constitutes identifying information regarding

a subject cadet must be weighed not only from the viewpoint of the public, but

also from the vantage of those who would have been familiar, as fellow cadets or

Academy staff . . . .” Rose, 425 U.S. at 380. Appellant argues that this passage,

describing the subjective nature of redaction in an Exemption 6 context,

supports the conclusion that there was a Privacy Act violation in the instant case

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No. 06-61050

because Bryant’s knowledge was not taken into account when the final response

letter and SROI were sent to him. Appellant’s reliance on Rose is unpersuasive.

Most importantly, Rose does not apply in the context of the instant Privacy

Act case. Rose deals with the privacy interest of an individual under a FOIA

exemption that the Supreme Court has stated should be construed narrowly.

See United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150–51 (1989)

(“Congress formulated a system of clearly defined exemptions to the FOIA’s

otherwise mandatory disclosure requirements . . . . Consistent with the [FOIA]

goal of broad disclosure, these exemptions have been consistently given a narrow

compass.”); see also Rose, 425 U.S. at 366 (quoting Vaughn v. Rosen, 523 F.2d

1136, 1142 (D.C. Cir. 1975)). While the Privacy Act was designed to provide

individuals with more control over the gathering, dissemination, and accuracy

of agency information about themselves, FOIA was intended to increase the

public’s access to governmental information and was drafted with a strong

presumption for disclosure to allow public scrutiny of government processes.

Thus, the language taken from Rose, specific to Exemption 6 to FOIA, is not

applicable to the Privacy Act, which is an entirely different framework. See

Greentree v. United States Customs Service, 674 F.2d 74, 76 (D.C. Cir. 1982)

(stating that the Privacy Act and FOIA each “has its own functions and

limitations”); Rojem v. United States Dep’t of Justice, 775 F. Supp. 6, 13 (D. D.C.

1991) (“[T]here are instances in which the FOIA denies access and the Privacy

Act compels release. . . . Thus, the Court must evaluate the Plaintiff’s Privacy

Act claim independently.”) (citations omitted); see also Simon v. United States

Dep’t of Justice, 752 F. Supp. 14, 22–23 (D. D.C. 1990) (conducting separate

inquiries despite significant overlap of the two statutes). Courts have noted that

the two statutes have very different goals which result in different outcomes.

See, e.g., Greentree, 674 F.2d at 78 (“It is readily apparent . . . that the Privacy

Act and FOIA substantially overlap. However, it is apparent also that the two

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No. 06-61050

statutes are not completely coextensive; each provides or limits access to

material not opened or closed by the other.”); Tobey, 40 F.3d at 472. With these

differences between the statutes in mind, Appellant points to no precedent that

supports the use of the Rose FOIA Exemption 6 principal in this Privacy Act

case.

One court, however, has contemplated applying the Exemption 6

framework in the Privacy Act context. See Tobey, 40 F.3d at 472; New York

Times Co. v. National Aeronautics and Space Administration, 920 F.2d 1002

(D.C. Cir. 1990). When comparing “similar files,” the document analog in

Exemption 6 to “record” under the Privacy Act, the Tobey court stated that there

was substantial difference between the meanings of the terms. Tobey, 40 F.3d

at 472. Specifically, to qualify as a “record” under the Privacy Act, the

information must be “about” the individual. Id. To qualify as a “similar file”

under Exemption 6, on the other hand, the information need only “appl[y]” to the

individual. Id.; see also New York Times, 920 F.2d at 1006 (citing United States

Dep’t of State v. Washington Post Co., 456 U.S. 595 (1982)). This distinction is

crucial because the “latter category is a broad one, encompassing virtually all

data that relate to an individual; the former, however, includes only information

that actually describes the individual in some way.” Tobey, 40 F.3d at 472. This

makes sense because under Exemption 6 a broad range of documents are

applicable, but there is a limiting second step of weighing the individual’s

privacy interest versus the interest in public disclosure. 5 U.S.C. § 552(b)(6); see

also New York Times, 920 F.2d at 1006. Under the Privacy Act there is no such

second limiting step; instead, documents are filtered by the limitation ingrained

in the definition of “record” that they be both “about” the individual and include

his name or identifying particular. 5 U.S.C. § 552a(a)(4); Tobey, 40 F.3d at 472

(“The Privacy Act notice requirement provides for no comparable bifurcated

analysis that would justify a similarly low threshold for defining ‘records.’”).

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This distinction “is necessary given the different functions that [E]xemption 6

and the Privacy Act fulfill” and illustrates why the Exemption 6 approach “does

not translate well to the Privacy Act.” Tobey, 40 F.3d at 472. This difference

demonstrates that the two statutes work fundamentally differently and that

especially in this context, the determination of what is a “record” per the Privacy

Act, the Exemption 6 framework is inapplicable.

Also, to accept Appellant’s reading of Rose would eviscerate the entire

response framework the Air Force has established with regard to complainants.

Complainants will almost certainly know the identity of the person against

whom they lodge a complaint. Under Appellant’s reading of Rose, the Air Force

would be required to investigate every complainant as well as the subject of each

investigation, to determine whether the complainant could identify the subject

before deciding on the response. Using this reasoning, the Air Force should have

released little or no information to Bryant because it should have ascertained

that Bryant knew Pierce’s identity and would likely leak his name to the press.

We are satisfied that Rose does not mandate this outcome.

Finally, Appellant relies on United States Department of State v. Ray, 502

U.S. 164 (1991), another FOIA case regarding Exemption 6, which held that

“invasion of privacy becomes significant when the personal information is

linked” to a particular individual. Id. at 176. In Ray, the Court held that the

names of individuals should be redacted to protect the privacy interests of those

individuals. Even if this FOIA case applied here, it is not helpful to Appellant

because the Air Force did not release Pierce’s name.

We agree with the district court that the final response letter and SROI

released by the Air Force were not “records” within a “system of records” per the

Privacy Act. Emmanuel generated the SROI, a type of report specifically

designed to omit identifying particulars, pursuant to Air Force regulation.

Later, and again pursuant to regulation, Rogers sent the SROI along with a final

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response letter to Bryant. The fact that the newspapers made the connection to

Pierce and identified him does not establish a Privacy Act violation. If we were

to accept Appellant’s interpretation of the Privacy Act, the Air Force would not

have been able to respond to Bryant about the results of its investigation of

activities of persons against whom Bryant complained. To be sure, any update

regarding the status of the investigation would have allowed Bryant to divulge

information to the press about the individuals being investigated. The Air Force,

however, followed its regulation and released information it was required to

release after omitting the names and identifying particulars of the subjects of

the investigation, and it cannot be held accountable for Bryant’s intervening act.

The district court correctly granted summary judgment to the Air Force.

III. CONCLUSION

For the foregoing reasons, the decision of the district court is AFFIRMED.

AFFIRMED.

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