Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ... ”
How later courts described this case
- Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ... ”
- “The language of paragraph (d)(1) expressly limits its applicability to records contained within a system of records.”
- "The Privacy Act expressly provides for injunctive relief for only two types of agency misconduct, that is, wrongful withholding of documents under subsection (d)(1) and wrongful refusal to amend an individual's record under subsection (d)(3). The remedy for violations of all other provisions of the Act is limited to recovery of damages upon a showing that the agency acted in an intentional or willful manner."
- “The language of subsections (e)(1) and (e)(5) compels a different analysis. Unlike subsection (e)(7), these subsections do not address the protections afforded to individuals by the First Amendment .... ”
Written by the judges who cited it.
The opinion
TJOFLAT, Circuit Judge,
specially concurring:
I agree that the Privacy Act claims in this case should be remanded to the district court for further consideration; I write sep *1378 arately to emphasize my understanding of the court’s decision. 1
In addressing the breadth of the exception in subsection (e)(7) of the Privacy Act 2 for records “pertinent to and within the scope of an authorized law enforcement activity,” the court holds “that to the extent that the IRS has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce, subsection (e)(7) of the Act has been violated.” Ante, p. 1375. I agree; subsection (e)(7)’s prohibition against collecting records that describe how an individual exercises his first amendment rights should not be circumvented by fishing expeditions disguised as “law enforcement activity.” I wish to emphasize, however, that the district court must have broad discretion in determining whether an agency’s record collection is part of a law enforcement activity; in actually reviewing the records and the circumstances surrounding their collection, the district court is in the best position to determine the applicability of the (e)(7) law enforcement exception. Thus, while the determination of the applicability of the exception is a mixed question of law and fact, its factual character predominates and our review of a district court’s finding on this issue should so recognize.
The inquiry into the law enforcement exception’s relevance in a given case must, of course, depend on the facts and circumstances. In the case before us, the defendant is a tax protester. Tax protesters often set out to violate the law, see, e.g., United States v. Douglass, 476 F.2d 260 (5th Cir. 1973), and the IRS may therefore be entitled to greater leeway in maintaining records on their activities. In my view, Clark-son’s status as a tax protester is a factor the district court may consider in determining the exception’s applicability. As the court notes, the law enforcement exception was designed “to make certain that political and religious activities are not used as a cover for illegal or subversive activities,” ante, p. 1374, citing 120 Cong.Rec. H10,892 (daily ed. Nov. 20, 1974). This concern seems especially relevant when the record collection involves tax protesters.
I also add a comment to the court’s holding that a plaintiff who proves a subsection (e)(7) violation “may be entitled to have the offending records amended or expunged even if the records are not maintained within the agency’s system of records.” Ante, pp. 1376-1377. On the facts of this case, where the IRS has admitted the existence of (e)(7) material outside of its records system, I agree that Clarkson may be entitled to relief if the law enforcement exception is found not to apply. I express no view, however, as to whether a plaintiff’s bare allegation that an agency is maintaining records in violation of subsection (e)(7) is sufficient to require the agency to search beyond its system of records for potentially offensive material. I am concerned that such a holding could
cause an enormous burden to be placed upon agencies that maintain records. For each Privacy Act request, a staff would have to cull and screen the countless, potentially millions of pages of documents, regardless of how labelled, indexed, or stored, in order to discover materials pertaining to the requestor. Such a ruling would be contrary to the purpose of the statute and to sound public policy.
Grachow v. United States Customs Service, 504 F.Supp. 632, 636 (D.D.C.1980). Thus, while on the facts of this case Clarkson maybe entitled to relief, this does not necessarily mean that every plaintiff who alleges *1379 agency maintenance of first amendment material will be entitled to a judicially enforced scavenger hunt through that agency’s records.
. I do not address the issue of costs in the FOIA case or the applicability of subsections (e)(1) and (e)(5) of the Privacy Act.
. 5 U.S.C. § 552a(e)(7) (1976) provides:
(e) ... Each agency that maintains a system of records shall—
(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.
(Emphasis supplied.)