Petition for Writ of Certiorari — Krowitz v. Department of Agriculture

87-777 Ci

No.

In the

Supreme Court of the United States

OcTOBER TERM, 1987

ZANDER KROWITZ,

PETITIONER,

DEPARTMENT OF AGRICULTURE,

UNITED STATES FOREST SERVICE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Of Counsel: PeTrer B. Bropa *

ERNEST C. HADLEY PASSMAN AND BROIDA

Attorney at Law Suite 1102

P.O. Box 3121 1717 K Street, N.W.

Wareham, MA 02571 Washington, D.C. 20006

(617) 291-1354 (202) 659-2357

Attorney for Petitioner

* Attorney of Record

Blanchard Press, Inc., Boston, Mass. Law Printers [617] 426-6690

’

Question Presented for Review

Whether the United States Court of Appeals for the Sixth

Circuit erred in ruling that a disclosure within the meaning of

the Privacy Act, 5 U.S.C. 552a, can only occur by physical

retrieval of information from a protected record immediately

prior to dissemination of that information to a third party?’

' The parties below are reflected in the caption: Zander Krowitz and the

U.S. Department of Agriculture.

Ill

TABLE OF CONTENTS

Page

EO rE I

a a IV

TS ea l

es sa a es vb bho aed eee ]

ER eee eee ee eee ee Tee ee 2

ee ee ee 2

ee 8

Reasons for Granting the Writ....................... 10

There Is a Split in the United States Court of Appeals

Over the Definition of a Disclosure Within the Mean-

ing of the Privacy Act, 5 U.S.C. 552a(b)............ 10

a fk au yp oe dae ena elves 23

ar ag Ea a A-1

Opinion of the United States District Court for the

Western District of Michigan, Northern Division

(Douglas Hillman, Chief Judge)................. A-1l

Order of Dismissal, United States District Court for

the Western District of Michigan, Northern Division

Judgment of the United States Court for the Western

District of Michigan, Northern Division....... eS

Opinion of the United States Court of Appeals for

the Sixth Circuit (Kennedy, Milburn and Norris,

NE a A-23

Relevant Statutes and Regulations............... A-24

IV

TABLE OF AUTHORITIES

Cases:

Bartel v. Federal Aviation Administration, 725 F.2d 1403

ca es NG ctw nck ted ee eee ree 15, 19,

Chapman v. National Aeronautics and Space Adminis-

tration, 682 F.2d 526 (5th Cir. 1982)................

Jackson v. Veterans Administration, 503 F.Supp. 653

Se WE <5 end b Swen ne poe eee eer ass

Olberding v. U.S. Department of Defense, 709 F.2d 621

es SS 5 kha a oe eee eae a oes,

Savarese v. U.S. Department of Health, Education and

Welfare, affd mem. sub nom. Savarese v. Harris,

620 F.2d 298 (5th Cir. 1980) cert. den. 449 U.S. 1078

CONE coca Wo dnddws dled eesarsert enh ee

Thomas v. U.S. Department of Energy, 719 F.2d 342

Cs ES Goo econo hbo nko evade eb eau mens

21

14

13

14

Tijerina v. Walters, Nos. 85-6240 and 85-6241 (D.C.

rE ere eee 22

Statutes:

Der SE io oe ch ea ky owe eae eee i0

rer or erry ere ee 12, 15

ere Pre rr ee rer T 10, 11

yn rer ne Ar 12

a kad Leslee ee eee eee eae 21

Gens SOO os kv dcu nese eeeeen oes 19

Regulations:

U.S. Forest Service Manual, Title 6100, Chapter 6143,

Sette 4....kcs odes ie bdcavis eee 20

In the

Supreme Court of the United States

OcToBER TERM, 1987

No.

ZANDER KROWITZ,

PETITIONER,

v.

DEPARTMENT OF AGRICULTURE,

UNITED STATES FOREST SERVICE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Opinion Below

The August 25, 1986 opinion of the United States District

Court for the Western District of Michigan, Northern Divi-

sion, __ F.Supp. __ (1986), and the August 14, 1987, opinion

of the United States Court of Appeals for the Sixth Circuit, not

reported, appear in the Appendix.

Jurisdiction

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered on August 14, 1987. This petition for

certiorari was filed within ninety days from that date.

Jurisdiction of this court is invoked pursuant to 28 U.S.C.

1254(1).

Statement of the Case

A. The Facts

Petitioner Zander Krowitz began serving as the Adminis-

trative Officer, Department of Agriculture, U.S. Forest

Service, Ottawa National Forest, on April 17, 1978.' Like

many employees of the Ottawa National Forest (“ONF” or

“Forest”), Mr. Krowitz and his wife, Shirley, took up

residence in the Town of Ironwood, Michigan. Ironwood is a

piece of smalltown Americana. Friends congregate in front-

yards to watch the Fourth of July parade,? the men belong to

the Kiwanis Club,*® and wives do volunteer work at the local

hospital,* and on Friday nights couples gather at the local

restaurants for fish fries.* It was into this setting that Joseph

Zylinski arrived in September 1981 to become Supervisor of

the Ottawa National Forest. Upon his arrival, Mr. Krowitz

took it upon himself to be the first to extend “the hand of

friendship” to Mr. Zylinski and his wife by introducing them

to a circle of friends with whom Mr. Krowitz and his wife

associated.°®

Shortly after his arrival at the Forest, Mr. Zylinski began

to have concerns about the performance of Mr. Krowitz.

Prompted by these concerns, Mr. Zylinski contacted John

Karwoski, a personnal specialist at the Regional Office of the

Forest Service in Milwaukee, Wisconsin, and requested that

Mr. Karwoski come to the ONF to meet with Mr. Krowitz and

determine his level of skills and interests. Mr. Karwoski came

' The Ottawa National Forest is a tract of land of approximately 926,000

acres on the western tip of the Upper Peninsula of Michigan. It was estab-

lished by an Act of Congress in 1931. The headquarters for the Forest is

located in Ironwood, Michigan.

* Trial Record, hereinafter “T.R.”, Testimony of Zander Krowitz at

110-11.

3 fd. at 111-12.

* Id., Testimony of Shirley Krowitz at 130.

° Id., Testimony of Joseph Zylinski at 7-8.

® Id. at 6.

to the Forest in February of 1982 and met with Mr. Krowitz,

Mr. Zylinski and the Deputy Forest Supervisor Frank Voytas.

Following his visit to the Forest, Mr. Karwoski sent a

memorandum to Mr. Zylinski stating he believed there was a

70-80 percent chance that Mr. Krowitz’ performance would

not meet his established performance standards,’ and recom-

mending that Mr. Krowitz be “isolated” in his work

assignments so that his performance could be precisely

monitored.* Upon receipt of the Karwoski memorandum in

February 1982, Mr. Zylinski began keeping a file designated

“Krowitz”, and he placed the memo into that file and kept it in

his desk.®

The “isolation” of Mr. Krowitz began on March 31, 1982

when Mr. Zylinski relieved him of his duties as Administrative

Officer and assigned Mr. Krowitz a series of “special

projects.” '° Mr. Krowitz’ first special project was designated

“Areas for Contracting”, and was completed by the scheduled

due date of June 14, 1982. Mr. Zylinski reviewed the project

himself and also circulated it among ONF staff members for

review.'! On June 14, 1982, Mr. Zylinski met with Mr. Krowitz

and informed him that the project was “not satisfactory and

[was] unacceptable.” Mr. Zylinski recorded this meeting in

a memorandum to Mr. Krowitz dated September 29, 1982,

and placed that memorandum in the file kept in his desk.'*

3 Pursuant to 5 U.S.C. 4202-3, a federal employee who fails to meet the

critical elements of his or her performance standards may be removed for

unacceptable performance

* T.R., Entry 44, Plaintiff's Exhibit No. 1

* The file kept by Mr. Zylinski was one of at least four maintained on

Mr. Krowitz by the Forest Service. There also was an employee development

file and a change of status file maintained in the Personnel Office of the ONF,

and an official personnel file maintained at the Forest Service Regional Office

in Milwaukee. (T.R., Testimony of J. Zylinski at 15-16.) All memoranda

documenting Mr. Krowitz’ performance, Plaintiff's Exhibits Nos. 1 through

11, were placed into the fite maintained by Mr. Zylinski.

© T.R., Entry 44, Plaintiff's Exhibit No. 2.

"Id. at 25

‘2 T.R., Entry 44, Plaintiffs Exhibit No. 3. Several of Mr. Zylinski's

memoranda were written well after the fact. At trial, Mr. Zylinski explained

this was because he felt Mr. Krowitz should focus his energies on his next

assigned project. (T.R., Testimony of J. Zylinski at 40.)

Mr. Krowitz was advised to proceed with his second special

project concerning implementation of the Forest Level Infor-

mation Processing System (“FLIPS”)—a computer system

designed to meet the word and data processing needs of the

Forest Service.

Throughout this period of time, Mr. Zylinski and his wife

associated with the circle of friends to whom Mr. Krowitz had

introduced them and participated in Friday night fish fries

with the group. Mr. Zylinski continued to have concerns

regarding Mr. Krowitz’ work and in the summer of 1982 ex-

pressed these concerns to Mrs. Zylinski.'? Eventually, these

concerns surfaced among the Krowitz’ circle of friends in the

form of unsubstantiated rumors generated by Mrs. Zylinski.'*

Not wanting his personal business aired amongst his friends,

Mr. Krowitz, on at least two occasions during the summer of

1982, deflected inquiries generated by the rumors by stating

that there was nothing going on between him and Mr. Zylinski

other than the “normal day-to-day business of supervisor and

employee.” '®

From June 14 to September 30, 1982, Mr. Krowitz con-

tinued to work on the FLIPS Project. Shortly after receiving

the finished product, Mr. Zylinski circulated the report to

members of his staff for review and also sent a copy for review

to the Regional Office in Milwaukee.'® The FLIPS Project was

evaluated by Kathleen Wolf in the Regional Office. Ms. Wolf's

evaluation was reflected in an unsigned, undated memoran-

dum which was received by Mr. Zylinski on or about Novem-

ber 1, 1982, and placed into Mr. Zylinski’s desk file."’

Ms. Wolf's assessment of the FLIPS Project concluded:

'S T.R., Testimony of J. Zylinski at 75.

'* T.R., Entry 26, Deposition of John Fitzgerald, July 23, 1985 at p. 8;

Entry 32, Deposition of James Shaw, September 13, 1985 at p. 10. Messrs.

Fitzgerald and Shaw and another member of Mr. Krowitz’ circle of friends,

Thomas Vizanko, did not testify at trial. By joint mention of the parties,

their depositions were accepted into evidence. (T.R. at 132.)

'S T_R., Testimony of Z. Krowitz at 103-04.

'* Id.. Testimony of J. Zylinski at 28.

* Id., at 31. See also, T.R., Entry 44, Plaintiffs Exhibit No. 5.

Oe

The Ottawa National Forest FLIPS planning docu-

ment is difficult to evaluate The Ottawa package

lacks much of the detail necessary to produce specific

plans for site preparation. There is no mention of the

Federal requirements for fire retardant walls and ceilings

in the computer space. The plexiglas windows recom-

mended for the computer walls would be extremely

expensive if indeed it is possible to acquire plexiglas with

the necessary fire rating

The Ottawa document appears to violate several

FLIPS objectives. As has been repeatedly stated, the

primary and initial function of the FLIPS equipment is

word processing....The entire tone of this document

focuses on the use of FLIPS as a data processing device.

Little attention is given to the considerable number of

tasks required to initially move word processing to FLIPS

and later to integrate word and data processing on the

same equipment

Mr. Zylinski met with Mr. Krowitz to discuss the results of

the FLIPS Project on November 1, 1982 and he later

memorialized this meeting in a memorandum to Mr. Krowitz

on December 23, 1982, which he placed in his desk file.'®

Mr. Zylinski’s assessment of the project mirrored that of

Ms. Wolf:

I have concluded that the project as submitted is un-

acceptable. It does not meet the objectives of the project

for several reasons. Those include:

1. The document reflects your personal major concern

and interests, is indicative of an apparent

misunderstanding of what FLIPS really is, and

focuses upon data processing as a central theme.

This is erroneous. The primary function of FLIPS

'* T.R., Entry 44, Plaintiffs Exhibit No. 9

6

equipment is word processing. This emphasis on data

processing injects an element of complexity into the

document that makes it difficult to understand and

follow.

2. Since the major objective of FLIPS is word processing,

the document does not give me enough information to

logically and sequentially move from where we are

now to word processing and then to data processing.

Your bias toward data processing distorts that sequen-

tial necessity.

3. The document contains several major technical flaws

that cast an uncertainty as to its overall validity and

accuracy. For instance:

a. It does not address the need for fire retardant

walls and ceilings in the computer space. This is

a Federal requirement.

b. It recommends plexiglas for a computer room

wall. Not only is this extremely expensive and

impractical, there is the real question of the

availability of plexiglas with the appropriate fire

rating characteristics.

By late November 1982, Mr. Krowitz had started work on

his third special project. Hoping to satisfy Mr. Zylinski’s per-

formance criteria, Mr. Krowitz had not discussed his work-

related problems with either his wife or friends.'* At no time,

did Mr. Krowitz give Mr. Zylinski permission to discuss his

employment situation with anyone.” On his own initiative, in

late November 1982, Mr. Zylinski had a series of discussions

with three members of the Zylinski- Krowitz social group dur-

ing which the details of Mr. Krowitz’ work performance were

divulged.

'? T.R., Testimony of Z. Krowitz, at 101, 104.

20 Td. at 101.

~]

On or about November 24, 1982, Mr. James Shaw, a friend

of Mr. Krowitz and a member of the Friday night fish fry

group, made a social visit to the home of Mr. and *Mrs.

Zylinski. According to Mr. Shaw: *!

... During the course of the evening Mr. Zylinski asked

me to join him in another room to discuss something. The

something was his information that he was going to

terminate your [Mz. Krowitz’] employment as you were

not competent to perform the tasks he assigned to you as

Administrative Officer.

The above statement summarizes the conversation of

one and one-half hours duration. The entire time was

basically that of my listening to the very lengthy and

detailed account of the basis for his decision... .

Specifically, Mr. Shaw recalled that Mr. Zylinski discussed

some six to eight projects, including the FLIPS Project, and his

dissatisfaction with the FLIPS report.”

On or about November 26, 1982, Mr. Zylinski met John

Fitzgerald, another friend of Mr. Krowitz and a member of

the Friday night fish fry group, for lunch. According to Mr.

Fitzgerald: *°

...My recall is that Zander [Krowitz] had—or was

involved with them [the Forest Service] in an evaluation

process, which Joe [Zylinski] viewed as fair and laid out,

and I accepted that, in administrative terms, I have some

familiarity with it, though I don’t know theirs. But that

Zander was coming up short, and that he expected Zander

to be gone within a short time. I think he referred to the

Spring.

21 T.R., Entry 44, Plaintiff's Exhibit No. 12, Tab. 3.

22 T.R., Entry 32, Deposition of James Shaw at 22-24.

*3 T.R., Entry 26, Deposition of John Fitzgerald, at 9.

s

During this same time period, Mr. Zylinski held a similar

conversation with Thomas Vizanko, yet another friend of

Mr. Krowitz and member of the Friday night fish fry group.

Mr. Vizanko had a difficult time remembering the specifics of

that conversation other than it appeared Mr. Zylinski was try-

ing to “get me aware of his side of the affair, or something to

that effect.”

On December 27, 1982, Mr. Zylinski issued a performance

appraisal to Mr. Krowitz for the period from October 1, 1981

to September 30, 1982.29 Mr. Krowitz’ performance was rated

unacceptable on the critical element of Management Analysis

and only minimally acceptable overall. On December 29,

1982, Mr. Zylinski issued a letter of warning to Mr. Krowitz

indicating that if Mr. Krowitz’ performance did not improve

within 60 days, Mr. Zylinski would recommend his removal

from federal employment.”® Finally, on April 23, 1983,

Mr. Krowitz was removed from his position as Administrative

Officer at the ONF on the basis of unacceptable performance.

Mr. Krowitz made timely appeal of his removal to the Merit

Systems Protection Board. By order of the MSPB dated

December 16, 1983, Mr. Krowitz’ removal was reversed and

he was ordered reinstated with back pay to the U.S. Forest

Service.

B. Proceedings Below

On November 13, 1984, Mr. Krowitz filed a complaint in

the United States District Court for the Western District of

Michigan, Northern Division, against the U.S. Department of

Agriculture, U.S. Forest Service, alleging violations of the

Privacy Act, 5 U.S.C. 552a, and the Federal Tort Claims Act,

28 U.S.C. 2674. On December 11, 1984, an amended com-

plaint was filed adding Mr. Krowitz’ wife, Shirley, as a plain-

4 T.R., Entry 25, Deposition of Thomas Vizanko, July 23, 1985, at 7.

25 T.R., Entry 44, Plaintiff's Exhibit No. i0.

6 T.R., Entry 44, Plaintiff's Exhibit No. 11.

9

tiff. The amended complaint alleged that the U.S. Forest Ser-

vice, through Joseph Zylinski, had violated the Privacy Act

and the Federal Tort Claims Act by making disclosures regard-

ing Mr. Krowitz’ work performance to John Fitzgerald, James

Shaw and Thomas Vizanko on November 24-26, 1982. By

order of the U.S. District Court, dated August 9, 1985, the

allegations under the FTCA were dismissed as untimely. Prior

to trial, the parties agreed that Mrs. Krowitz was not a proper

plaintiff to the remaining allegations under the Privacy Act

since no disclosure of information from records regarding Mrs.

Krowitz had occurred.

A trial on the matter was held before the Honorable Judge

Douglas Hillman, U.S. District Court for the Western District

of Michigan, Northern Division, in Marquette, Michigan on

February 20, 1986. By motion dated April 14, 1986,

Mr. Krowitz moved to amend his complaint to conform with

proofs offered at trial to include allegations that the Depart-

ment of Agriculture had violated the Privacy Act through

disclosures made by Mr. Zylinski to his wife in June 1982 and

to members of the ONF staff in January 1983.*’ By order dated

August 25, 1986, the U.S. District Court granted Mr. Krowitz’

motion to amend his complaint, but found in favor of the

Defendant Agency and accordingly entered judgment.

A timely appeal with the United States Court of Appeals for

the Sixth Circuit was filed on October 2, 1986. Subsequent to

the submission of briefs, oral argument was held before a

panel of the Sixth Circuit on August 6, 1987. By a per curiam,

unpublished decision dated August 14, 1987, the United States

Court of Appeals for the Sixth Circuit affirmed the judgment

of the U.S. District Court.

27 This latter allegation concerning disclosures to the ONF staff does not

form any part of the instant petition for certiorari.

‘BEST AVAILABLE COPY.

10

Reasons for Granting the Writ

THERE Is A SPLIT IN THE UNITED STATES CourRTS OF APPEALS

OVER THE DEFINITION OF A DISCLOSURE WITHIN THE MEANING

OF THE Privacy Act, 5 U.S.C. 552a(b).

This case involves the willful disclosure of information con-

cerning the performance of a federal employee by his super-

visor, without prior consent, to three of the employee’s close

friends. It is undisputed that the information disclosed was

contained within records maintained within a system of

records as those terms are defined by the Privacy Act, 5 U.S.C.

552a. The District Court and the Court of Appeals for the

Sixth Circuit found that, in order for a disclosure under the

Privacy Act to occur, there must be a retrieval of the informa-

tion immediately prior to disclosure. Those courts held that no

violation of the Act occurred because the information disclosed

by Mr. Zylinski was based on his personal knowledge and

observation of Mr. Krowitz’ work. This issue squarely

presented by this case is whether a plaintiff demonstrates a

violation of the Privacy Act by showing that an official disclos-

ing information contained within records had actual knowl-

edge of the existence and contents of those records.

The Privacy Act, Pub. L. 93-579, 88 Stat. 1896 (December

31, 1974), as codified at 5 U.S.C. 552a, was born in the post-

Watergate era out of Congressional concern over the

maintenance and dissemination of information contained

within governmental records as defined by the Act. Consistent

with this concern:

[t]he Congress finds that—

(1) the privacy of an individual is directly affected by

the collection, maintenance, use, and dissemina-

tion of personal information by Federal agencies;

(2) the increasing use of computers and sophisticated

information technology, while essential to the effi-

cent operations of the Government, has greatly

11

magnified the harm to individual privacy that can

occur from any collection, maintenance, use, or

dissemination of personal information;

(3) the opportunities for an individual to secure

employment, insurance, and credit, and his right

to due process, and other legal protections are en-

dangered by misuse of certain information systems;

(4) the right to privacy is a personal and fundamental

right protected by the Constitution of the United

States; and

(5) in order to protect the privacy of individuals

identified in information systems maintained by

Federal agencies, it is necessary and proper for the

Congress to regulate the collection, maintenance,

use, and dissemination of information by such

agencies.

Congressional findings and statement of purpose. Pub. L.

93-579, Section 2, 88 Stat. 1896.

To effectuate these purposes, the Act provides:

No agency shall disclose any record which is contained in

a systems of records by any means of communication to

any person, or to another agency except pursuant to a

written request by, or with the prior written consent of,

the individual to whom the record pertains... .

5 U.S.C. 552a(b).*

The Act defines a record as:

[A]ny item, collection, or grouping of information about

an individual that is maintained by an agency, including,

*8 The section goes on to describe some 12 exceptions which are not appli-

cable to the instant case. The definition of records or systems of records

within the meaning of the Act is not at issue. The U.S. District Court prop-

erly found, and the Government has never challenged, that the disputed

records in this case were covered by the Act.

12

but not limited to, his education, financial transactions,

medical history, and criminal or employment history and

that contains his name, or identifying number, symbol, or

other identifying particular assigned to the individual... .

5 U.S.C. 552a(a)(4).

To enforce the disclosure provision of the Act, Congress pro-

vided for a cause of action in U.S. District Court for violations

of the Act through which injured plaintiffs could recover

damages. 5 U.S.C. 552a(g). There can be little doubt that the

intent of the Congress which passed the Act was to give indi-

viduals some reasonable assurance that private aspects of their

lives would not become topics of public knowledge merely

because some agency of the federal government maintains

records on those individuals. This sentiment was stated during

debate on the measure.

This landmark 'egislation...gives an individual as a

matter of right some meaningful control over how the

Federal Government utilizes personal information. . . .

Civil damages are available to individuals who are in-

jured by determinations made on the basis of inaccurate

or incomplete records... .

This is just to try to make a citizen whole when the

Government damages him.

Remarks of Representative Moorehead, 120 Cong. Rec.

36643-46, 36959.

These same sentiments were expressed by Congressman Biaggi:

{T]his legislation sets a new and important precedent by

allowing for a civil remedy to be acquired by individuals

in instances when they have been denied access to their

records or whose records have been kept or used in viola-

tion of the provisions of this law.

120 Cong. Rec. 36652.

13

The House of Representatives itself embraced these

statements of intent in its final report on the Act.

The consent requirement may well be one of the most

important, if not the most important, provisions of the

bill. No such transfer [of information] could be made

unless it was pursuant to a written request by the indi-

vidual or by his prior written consent. This requirement

would apply to all so-called “non-routine” transfers of

information. It is not the Committee’s intent to impede

the orderly conduct of government or delay services per-

formed in the interests of the individual. Under the con-

ditional disclosure provisions of the bill, “routine”

transfer will be permitted without the necessity of prior

written consent. A “non-routine” transfer is generally one

in which the personal information on an individual is

used for a purpose other than originally intended.

House Report No. 93-1416 at p. 12, as reprinted in Legis-

lative History of the Privacy Act of 1974, S. 3418 (Pub. L.

93-579) at p. 306.

Congress made no attempt to define a disclosure within the

meaning of the Privacy Act, leaving that task to the courts. As

a result of early Privacy Aci litigation involving the disclosure

provision, federal courts fashioned the so-called “retrieval” or

“source” rule. The rule was spawned in cases involving alleged

disclosures under the Act where the federal official accused of

making the disclosure either had no knowledge of the existence

of the records in question, or was unaware of the contents of

the record. See, e.g., Savarese v. U.S. Department of Health,

Education and Welfare, 479 F.Supp. 304, aff'd mem. sub

nom., Savarese v. Harris, 620 F.2d 298 (5th Cir. 1980), cert.

den. 449 U.S. 1078 (1981). Responding to plaintiff's argument

that the Act covered the disclosure of any information con-

tained within a system of records, even when the official

making the disclosure was unaware of the records, the District

Court stated:

14

Under plaintiff's view no government employee could

utter a single word concerning any person without first

reviewing all systems of records within the agency to

determine whether or not the information in question

was contained therein. In day-to-day operations of the

federal government, officials are appropriately called on

to make numerous statements concerning persons who

may have information concerning them contained in a

system of records somewhere within the agency. It

borders on the absurd to contend that all officials should

have panoscopic recall concerning every record within

every system of records within the agency... .

[T]he court finds, after consideration of the Act’s stated

purpose, that for a disclosure to be covered by section

552a(b), there must initially have been a retrieval from

the system of records which was at some point a source of

the information... .

Id., 479 F.Supp. at 308.

Several courts were quick to adopt the Savarese holding and

rationale. See, Olberding v. U.S. Department of Defense, 709

F.2d 621, 622 (8th Cir. 1983) (“It is this court’s

conclusion,...that the only disclosure actionable under sec-

tion 552a(b) is one resulting from a retrieval of information

initially and directly from the record contained in the system

of records.”); Jackson v. Veterans Administration, 503

F.Supp. 653, 656 (N.D. Ill. 1980) (“Merely because informa-

tion disclosed in a telephone conversation was also contained

within plaintiff's OPF [Official Personnel File] does not sus-

tain an action for damages under the Privacy Act.”); Thomas

v. U.S. Department of Energy, 719 F.2d 342, 345 (10th Cir.

1983) (“The disclosure of information derived solely from

independent sources is not prohibited by statute even though

identical information may be contained in an agency system of

records.”’).

15

In the context of these early cases, the retrieval rule made

sense. As noted by the court in Savarese, supra, there is no

indication that Congress sought, through the Privacy Act, to

create strict liability where government officials could, unwit-

tingly and unknowingly, violate the disclosure provision by

imparting information coincidentally contained in an official

government record. There also is no indication that Congress

intended to restrict the disclosure provision to those instances

where government officials physically retrieved and disclosed

information from a record. That restriction thwarts the stated

purposes of the Congress in regulating the “use and dissemina-

tion” of personal information. The reality is that government

records do not appear out of thin air; they are created by

people. Under the District Court’s extension of the Savarese

rationale, the creator of a record would always be free to

disclose the same information which other government

officials would be prohibited from disclosing under the Act.

The very definition of a record under the Act mandates a

contrary result:

[T]he term “record” means any item, collection, or

grouping of information about an individual that is main-

tained by an agency, including, but not limited to, his

education, financial transactions, medical history, and

criminal or employment history... . -

5 U.S.C. 552a(a)(4).

The concern of Congress was not limited to the use and

dissemination of physical records, but extended to the infor-

mation contained within those records.

In 1984, the United States Court of Appeals for the District

of Columbia Circuit, found the retrieval rule made little sense

when applied to the wide variety of circumstances in which an

alleged violation of the Act could occur. In Bartel v. Federal

Aviation Administration, 725 F.2d 1403 (D.C. Cir. 1984), an

agency official commissioned an investigation into the manner

16

in which plaintiff obtained the complete personnel files of

three fellow inspectors. Based on the results of the investiga-

tion, the official subsequently wrote to the three inspectors

and informed them that plaintiff may have violated the

Privacy Act in obtaining their files. Responding to arguments

that the information disclosed to the three inspectors was not

obtained from a system of records, the Bartel court wrote:

[T]his case demonstrates that an absolute policy of

limiting the Act’s coverage to information physically

retrieved from a record would make little sense in terms

of its underlying purpose. Nor does the Act’s language

require such a hypertechnical interpretation. The Privacy

Act forbids nonconsensual disclosure of records “by any

means of communication,” 5 U.S.C. 552a(b), and it re-

quires that where disclosure is permitted, it must be

accurate and complete. 5 U.S.C. 552(e)(6). Under the

appellee’s suggested standard, an official could circum-

vent both requirements with respect to a record he

himself initiated by simply not reviewing it before repor-

ting its contents or conclusions. Ironically, the Act would

prohibit dissemination where such an official reviews a

record in order to ensure the accuracy of the disclosure,

but inadvertently mischaracterizes it, yet would im-

munize dissemination of the same inaccurate information

if the official did not even bother to check the disclosure

against the record. Thus, rigid adherence to the “retrieval

standard” makes little sense in this case, whatever its

merits as a guideline in other Privacy Act situations.

Id., at 1409 (footnote omitted).

In this case, the District Court wrote on a clean slate insofar

as the Sixth Circuit was concerned. Specifically, the court

found that the records generated by Mr. Zylinski and other

agency officials were records as defined by the Act and were

17

maintained within a system of records.”* The Court then con-

cluded that Mr. Zylinski had not used a protected system of

records to “initially gather or ultimately retrieve” the informa-

tion disclosed, but rather “the source of [Mr.] Zylinski’s

knowledge of [Mr.] Krowitz’ performance was his personal

observation of and participation in supervising [Mr.]

Krowitz.”*° The Court concluded: *!

When analyzed using the majority “retrieval” rule, it is

apparent that there were no disclosures in violation of the

Privacy Act in this case. The testimony of Messrs. Zylin-

ski, Shaw, Fitzgerald and Vizanko supports a finding

that the information Zylinski disclosed to his wife in June

1982 was general in nature and nothing more than inde-

pendent recollections and personal opinions on his part

concerning his work-related problems with Krowitz. I

find no evidence of disclosures of specific records, nor any

evidence that Zylinski relied upon notes and records per-

taining to Krowitz’ performance problems prior to or

during discussions with his wife and social friends. The

argument propounded by plaintiff, that by virtue of

discussing any aspect of his work relationship with

Krowitz, Zylinski impermissibly disclosed “records” from

a “system of records” has been raised and rejected on

sound grounds by several courts. See, e.g., Savarese,

supra, 479 F.Supp. at 308.

The United States Court of Appeals for the Sixth Circuit

affirmed the opinion of the lower court in a per curiam

decision.

Ironically, it is the United States Court of Appeals for the

Fifth Circuit which spawned the Savarese rationale that has

shown the greatest tendency to reject it in circumstances

similar to the case at bar. In Chapman v. National Aeronautics

* Petitioner's Appendix at A-13.

* Id. at A-18.

*! Id. at A-17 through 18

18

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

court found that otherwise private notes taken by supervisors

of federal employees become subject to the Privacy Act when

used for purposes other than refreshing the maker’s memory.

We agree that private note-taking offers a useful tool,

aiding supervisors in recalling events when workers’

evaluation reports or promotion or job assignment recom-

mendations are being prepared. Used for these and

similar legitimate purposes, notes equate with the

maker’s memory and are not proscribed by the Privacy

Act. However, when notes bear negatively on a worker's

employment status or situation, they must be handled in

a manner consistent with the letter and spirit of the

Privacy Act.

Id., at 529.

If indeed supervisory notes equate with the maker’s memory

and such notes must be treated consistent with the re-

quirements of the Privacy Act, then even the Savarese

rationale must yield to the logical conclusion that the informa-

tion contained in those notes must be treated in the same

fashion. Distinctions based on the initial source of the infor-

mation are meaningless when viewed in light of the plain

language and stated purposes of the Privacy Act.

Under the current state of affairs what constitutes a

disclosure within the meaning of the Privacy Act depends

upon which federal court is interpreting the Act. The D.C.

Circuit has eschewed the retrieval rule in favor of a rationale

that advances the purpose of the Privacy Act without unduly

infringing upon the ability of the federal government to con-

duct legitimate business in an effective and efficient manner.

Other circuits rigidly hold to a formalistic interpretation

which thwarts the purpose of the Act. This split in the circuits

has particular relevance to Privacy Act litigation due to its

liberal venue provisions. Under subsection (g)(5):

19

An action to enforce any liability created under this sec-

tion may be brought in the district court of the United

States in the district in which the complainant resides, or

has his principal place of business, or in which the agency

records are situated, or in the District of Columbia,

without regard to the amount in controversy... .

Astute litigants will select their forum with care.

In the Sixth Circuit, at least, Mr. Krowitz’ right to privacy

under the Act meant only that Mr. Zylinski was not free to

disclose, verbatim, the contents of his personnel records. It is,

apparently, of no moment that Mr. Zylinski, as Mr. Krowitz’

supervisor, launched the equivalent of an official investigation

into his performance—an investigation during which Mr.

Zylinski and other agency officials generated records ulti-

mately used to justify Mr. Krowitz’ termination from the

federal service. Without Mr. Krowitz’ prior consent or

knowledge, Mr. Zylinski then disclosed to three of Mr.

Krowitz’ closest personal friends the details and results of that

investigation. In the Sixth Circuit, his behavior is justified

because Mr. Zylinski retained and disclosed from memory in-

formation he obtained as a result of his role as Mr. Krowitz’

supervisor. In the D.C. Circuit, the same conduct—disclosure

by an agency official of his determination made on the basis of

an agency investigation—constitutes a violation of the Privacy

Act. Bartel, supra, 725 F.2d at 1408.

The investigation in Bartel was no more formal than the

inquiry conducted by Mr. Zylinski into Mr. Krowitz’ perform-

ance. It was, in fact, required by statute and agency regula-

tion. As early as February of 1982, Mr. Zylinski was advised

that Mr. Krowitz was not likely to meet the established

performance standards for his position and that he should

carefully document Mr. Krowitz’ performance. This advice

was given pursuant to 5 U.S.C. 4301, et seq., which

establishes that, to the extent practicable, the performance of

20

federal employees must be measured by objective standards,

and that such employees may only be removed after notice and

an opportunity to demonstrate acceptable performance. To

implement these provisions, the Forest Service has promul-

gated regulations regarding performance appraisals. In par-

ticular, the agency has established regulations at Title 6100,

Chapter 6143, Section 4 of the Forest Service Manual:

4-1 Records.

a. All records maintained under this chapter must

meet the requirements of Part 297, of Title 5 of

_ the Code of Federal Regulations as well as any

Departmental provisions of the Privacy Act and

Freedom of Information Act.

4-2. Uses of Performance Appraisals.

g. Reduction-in-Grade or Removal for Unaccept-

able Performance—failure to meet the mini-

mally acceptable standard of performance

established by management in one or more

critical elements constitutes unacceptable

performance. Management shall reduce-in-_

grade, remove or reassign employees who con-

tinue to have unacceptable performance. Before

taking such action, management must assist

employees in improving unacceptable perform-

ance and provide an opportunity to demonstrate

acceptable performance. Opportunities for im-

proving performance must be documented. .. .

Interpretation of the retrieval rule by the Sixth Circuit has

led to the anomalous result that Mr. Zylinski was

free to disclose information contained in records regarding

21

Mr. Krowitz’ performance, but could not have actually

disclosed the records themselves. The Bartel court realized the

full implications of the retrieval rule in declining to follow it.

Restricting the Act’s coverage to disclosure of information

retrieved from a record would allow, for example, an

agency investigator who, in the process of making a

record, learned of some information damaging to an indi-

vidual to make public that information without violating

the Act....

Bartel, supra, 725 F.2d at 1411, n.15.

What is at issue in this case is whether the Privacy Act

protects information contained within records as the plain

language of the Act clearly indicates, or, if it merely extends

protection to the physical records themselves. If it is the latter,

then the courts have subverted any meaning the Privacy Act

holds. In its brief history, the Privacy Act, if nothing else, has

demonstrated a willingness of federal courts to entertain

arguments by government lawyers who engage in mental gym-

nastics to vault through meaningless distinctions to avoid

government liability. The D.C. Circuit alone has been guar-

dian of the purposes of the Privacy Act. Responding to recent

arguments that agencies could use subsection (j)** of the Act to

exempt themselves from civil liability for violating the

disclosure provision, Judge Mikva wrote:

We are aware that some other courts have indicated in

dicta that agencies may employ subsection (j) to exempt

themselves from the Act’s civil remedies provision. See,

e.g., Kimberlin v. Department of Justice, 788 F.2d 434,

436 n.2 (7th Cir. 1986); Ryan v. Department of Justice,

595 F.2d 954, 958 (4th Cir. 1979). Having considered the

*? Subsection (j) provides that, pursuant to certain conditions, an agency

head may exempt specific systems of records from the requirements of the

Act.

22

strict limitations on disclosure that Congress intended to

impose. We cannot agree that at the same time it forbade

agencies to exempt systems of records from disclosure re-

quirements, Congress intended them to be able to elude

civil liability at their caprice.

Tijerina v. Walters, Nos. 85-6240 and 85-6241 (D.C.

Cir.), Nov. 17, 1986, Slip Op. at 9.

The retrieval rule likewise reduces the Privacy Act to a

“foolishness” and “defangs” the limitations on disclosure of

information contained within systems of records maintained by

federal agencies. It is with this Court that such “foolishness”

must stop. It is this Court which must restore the bite of the Act

by giving meaning to the disclosure provision. Petitioner does

not ask this Court to impose upon government officials the

Savarese burden of checking all records prior to making any

utterance whatsoever. Petitioner does ask this Court to settle

the split in the Courts of Appeals by giving the disclosure provi-

sion an interpretation which is consistent with both the letter

and spirit of the Privacy Act: a disclosure under the Act occurs

when a federal official who has knowledge that information is

contained within a system of records imparts that information

to third parties without the consent of the person to whom that

information pertains. That interpretation gives due regard for

the personal privacy of individuals that Congress sought to

protect without unduly interfering with the ability of federal

agencies to deal effectively and efficiently with the vast

amounts of information they must process.

23

For petitioner, this Court represents the last stop on a long

legal journey. For others who follow, it could represent the

first line of protection from the unwarranted public intrusion

of the federal government into the most private aspects of their

lives.

Conclusion

For the foregoing reasons, Petitioner respectfully prays that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit. _

Respectfully submitted,

Of Counsel: PeTer B. Broipa *

ERNEST C. HADLEY PASSMAN AND BrROIDA

Attorney at Law Suite 1102

P.O. Box 3121 1717 K Street, N.W.

Wareham, MA 02571 Washington, D.C. 20006

(617) 291-1354 (202) 659-2357

Attorney for Petitioner

* Attorney of Record

24

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing Petition for

Certiorari have been served, by mail, on this 12th day of

November 1987, upon:

Solicitor General

U.S. Department of Justice

Washington, D.C. 20530

Peter B. Broida

A-1

UNITED STATES OF AMERICA

District CourRT FOR THE WESTERN DistrRicT OF MICHIGAN

NORTHERN DIVvISION

No. M84-303CA2

ZANDER KROWITZ,

PLAINTIFF,

v.

DEPARTMENT OF AGRICULTURE,

UNITED STATES FOREST SERVICE,

DEFENDANT.

OPINION

This litigation stems from disclosures regarding the job

performance of plaintiff Zander Krowitz (“Krowitz”) during

his tenure as an administrative officer (“AO”) and employee of

the Ottawa National Forest (“ONF’). The ONF, head-

quartered in Ironwood, Michigan, is operated by defendant

United States Department of Agriculture, Forest Service

(“Forest Service”), and the disclosures were made by Joseph

Zylinski (“Zylinski’”), Forest Supervisor of the ONF. Plaintiff

claims that Zylinski’s disclosures violated the Privacy Act of

1974, (“The Act”), specifically Section 3 thereof, codified at

5 U.S.C. §552a, concerning the disclosure of agency records

maintained on individuals. Jurisdiction is premised upon

5 U.S.C. §55la(g)(1)(D).

The matter was tried to a court in Marquette, Michigan, on

February 20, 1986. The court thereafter requested and re-

ceived post-trial briefs from both parties. Plaintiff also filed a

motion for leave to amend his complaint to conform with the

evidence offered at trial. This opinion constitutes the court’s

ruling on that motion and the court’s findings of fact and con-

clusions of law, as required by Rule 52(a), Fed. R. Civ. P.

A-2

Zylinski, a Forest Service employee for some 30 years,

became Forest Supervisor of the ONF in September 1981.

Krowitz had been employed as AO for the ONF since April 17,

1978. Upon Zylinski’s arrival in Ironwood, Krowitz be-

friended him, introducing Mr. and Mrs. Zylinski to Mrs.

Krowitz and to the Krowitz’s circle of friends in the com-

munity. That circle included a Friday Night social “couples’

group,” comprised of the Krowitzes, the James R. Shaws, the

John R. Fitzgeralds, and the Tom Vizankos.

Soon after his arrival in Ironwood, Zylinski developed con-

cerns regarding Krowitz’ work performance. Zylinski con-

tacted Mr. Karwoski, a personnel specialist in the Forest Ser-

vice’s Regional Office in Milwaukee, Wisconsin. At Zylinski’s

request, Karwoski came to the ONF in February 1982 to assess

Krowitz’ skills, abilities and interests, to suggest alternative

career opportunities for him, and to develop a plan of action,

jointly with Zylinski, to deal with Krowitz’ performance prob-

lems. Karwoski reviewed Krowitz’ personnel file and inter-

viewed Krowitz, Zylinski, and Frank Voytas, Zylinski’s

deputy forest supervisor. Following the visit, Karwoski sent

Zylinski a memo (Pltf's Ex. 1) with his findings and sugges-

tions. Karwoski found Krowitz to be an “idea” person with an

aversion to task-oriented duties. Krowitz’ AO _ position

required him to handle the business affairs of the ONF and AO

performance standards were mainly task-oriented in nature.

Karwoski thus concluded that there was a 70-80 percent cer-

tainty that Krowitz would not be able to perform according to

those performance standards. Karwoski suggested several

alternatives, including counseling Krowitz on possible alter-

native job placements, while continuing to document his

performance inadequacies and advise him on how they might

be corrected. After reading the memo and considering its sug-

gestions Zylinski placed it in a file identified as “AO” or

“Krowitz” which he had started and kept in his desk.

A-3

In addition to this desk file folder, Zylinski identified other

files generally maintained on all Forest Service employees, in-

cluding Krowitz. These included an employee development

file (“EDF”), containing documents pertaining to employee

training, and an official personnel file (“OPF’’), the latter kept

at the Regional Office in Milwaukee. The EDFs for ONF

employees were kept in the Ironwood office’s personnel section

headed by personnel officer David Weber and staffed by three

employees. The personnel section was located three doors from

Zylinski’s office. The EDFs, to Zylinski’s knowledge, were

kept in locked file cabinets within that section, accessible to

staff officers without permission but to others with permission

only.

Zylinski met with Krowitz on March 31, 1982. In that

meeting it was agreed that Krowitz’ job emphasis would shift

from day-to-day administrative coordination of the business

management section to management analysis of a series of

Forest Service programs. In a March 31, 1982 letter from

Zylinski to Krowitz memorializing this meeting (Pltf's Ex. 2),

Krowitz’ new job responsibilities were detailed. It was noted

that most of his then-current AO responsibilities were being

waived to allow ample time for completion of new assigned

management analysis projects, and that the changes were con-

sidered necessary because “of the difficulties experienced with

existing job standards and the need to better channel and

utilize [Krowitz’] skills.” Zylinski further noted that “the

ultimate objective of this action involves an outplacement,”

and Krowitz was “urged to expend extra efforts to seek out

those opportunities.”!

Zylinski met with Krowitz again on April 13, 1982 and iden-

tified a series of six projects Krowitz was to perform in his new

' Regarding outplacement opportunities, Krowitz traveled to

Washington, D.C., on May 2 through 7, 1982, on official business. In addi-

tion to observing the Forest Service’s computer show, he visited the offices of

several other government agencies to discuss alternative employment

possibilities, and he left his resume at various agencies.

A-4

management analyst capacity. The first, entitled “Areas for

Contracting,” was intended to define areas for Forest Service

Contracting other than those already developed or then under

contract. Krowitz began work on this project on early May

1982 and submitted his report on June 7, 1982. On June 14,

1982 Zylinski and Krowitz met to discuss the quality of that

report, which Zylinski found unsatisfactory. This meeting was

memorialized in a September 19, 1982 memo (Pitf's Ex. 3)

from Zylinski to Krowitz.” Zylinski kept his copy of the memo

in his desk file. At the conclusion of the June 14, 1982 meeting,

Zylinski instructed Krowitz to start on the second special

project, due September 30, 1982, which concerned implemen-

tation in the ONF of “FLIPS,” the Forest Service’s automated

computerized system.*

Krowitz’ FLIPS reports, due on September 30, 1982, was

submitted to Zylinski on September 29, 1982. Zylinski re-

viewed it himself, had it reviewed by members of his staff, and

also sent a copy to Duane Breon, a deputy regional forester at

the Regional Office who had a staff experienced in the FLIPS

system and its implementation. Kathleen Wolf, a member of

Breon’s staff, evaluated Krowitz’ FLIPS report and forwarded

her evaluation of that report (Pltfs Ex. 5) to Zylinski. She

pointed out several errors and deficiencies in Krowitz’ analysis

and report.

2 Zylinski said the three-month delay in submitting this written evaluation

of the first project was because he felt it important for Krowitz to get started

on the next project.

3 The FLIPS computerized network was eventually to connect all Forest

Services offices and was designed to perform an array of data and word

processing. In Fall 1982, the system was being implemented in various

national forests but had not yet been implemented in the ONF. Prior to Fall

1982, Zylinski had received a general orientation on the FLIPS system during

several meetings with staff at the Regional Office. He also had a FLIPS

manual, or access to one, which covered requirements for locating the FLIPS

hardware, fireproofing and security requirements, and other technical

information pertaining to implementation and placement of the FLIPS at

the ONF.

|

A-5

On October 5, 1982, plaintiff made a written request (Pltf’s

Ex. 4) to the Regional Office for assistance under the employee

assistance program known as CONCERN, which was de-

signed to help employees having problems other than in the

performance area. Plaintiffs letter expressed concern about

the deterioration of his AO position during the preceding six

months. Zylinski eventually received a copy of this letter from

the Regional Office and filed it in his desk file. Plaintiff's letter

resulted in a 1% day visit to the ONF by Ronald V. Rydberg,

leader of the Regional Office’s Employee Relations and

Management Group. Rydberg met individually with Zylinski,

Voytas and plaintiff. Following his visit, Rydberg wrote to

Zylinski, on November 30, 1982, (Pitf’s Ex. 6), expressing his

view that the CONCERN program’s purview did not embrace

plaintiffs problems. He noted that what plaintiff described

was not, in reality, a personal problem which he brought to

work with him which interfered with his ability to perform

(the type of problem CONCERN was designed to address),

but rather involved problems arising strictly out of the work

environment. Rydberg opined that plaintiff's poor perform-

ance was really the root of his poor relations with Forest Ser-

vice officials and stated that “if he performed well, there

would be no issues to discuss here.” He noted that the CON-

CERN program did not intercede between employees and

work supervisors on such work problems. He concluded that

“the course remaining is to propose [Krowitz’] removal for

unacceptable performance,” and discussed procedural precau-

tions pertinent to that proposed course of action. Zylinski kept

his copy of this letter from Rydberg in his desk file.

Zylinski also received and filed in his desk file a copy of a

November 30, 1982 letter from Mr. Carl Webb to plaintiff

(Pltf's Ex. 7) summarizing the Forest Service’s investigation of

the concerns expressed in plaintiff's October 5, 1982 letter.

Mr. Webb also opined that plaintiffs poor performance,

rather than personal problems, was the root of his difficulties

A-6

INF. Mr. Webb urged plaintiff to work directly with

o improve his performance and concluded that if he

fe good performance, the concerns expressed in

tober 5, 1982 memo will be taken care of.”

er 1, 1982, Zylinski and Krowitz met to discuss

PS project report, which Zylinski found un-

‘his meeting was memorialized in a December

t from Zylinski to Krowitz (Pltf's Ex. 9), which

of the critcisms of the project expressed by

ll as Zylinski’s own comments and criticisms

report.‘ Zylinski kept his copy of this letter

ter Krowitz started the third special project,

-on February 15, 1983, Zylinski prepared some

tes to himself regarding plaintiff (Pltf's Ex. 8).

ch Zylinski kept in his desk file, detailed the

ance concerns regarding Krowitz and the

1 been taken regarding those concerns. The

lat prior to Krowitz’ preparation of his FLIPS

and the Regional Forester in Milwaukee had

bility of Krowitz being transferred to the

s FLIPS team if his FLIPS report had suffi-

Because of the substantive negative Regional

| by Ms. Wolf finding his FLIPS report essen-

le (Pitf's Ex. 5), the notes reflected that the

r would not consider the transfer because, in

witz would not contribute materially to the

ional Office FLIPS team.

the Forest Service's fiscal year, annual per-

sals of Forest Service employees normally

October | to the following September

| didn’t arrive at the ONF until September

ne-half interval between the meeting and this letter

S report was, according to Zylinski, because he felt it

owitz get started on the third special project, which

5, 1983.

A-7

1981, Krowitz’ 1980-81 appraisal was done by Deputy Forest

Supervisor Voytas, who had worked with Krowitz during the

preceding year. Zylinski prepared Krowitz’ appraisal for the

year running from October 1, 1981 to September 30, 1982.°

That appraisal (Pltfs Ex. 10) reflected that Krowitz was

meeting performance standards at a lower level than expected.

Performance appraisals were filed in “employee performance”

file folders, sub-files contained within employee “change-in-

status” files also maintained at the ONF.

Zylinski met with Krowitz on December 27, 1982 to discuss

Krowitz’ work performance deficiencies. That meeting was

memorialized in a December 29, 1982 “letter of warning”

from Zylinski to Krowitz (Plitfs Ex. 11). The letter detailed

their discussions and the steps Krowitz was expected to take to

improve his performance. The letter gave Krowitz notice that

if his performance did not improve to a satisfactory level

within sixty days, or by February 28, 1983, Zylinski would

take action to recommend his removal from his position.

Zylinski kept his copy of this letter in his desk file.

On January 3, 1983, Zylinski called a staff meeting of those

forest management team members who shared supervisory

responsibility with him. Zylinski felt it essentiai for them to

know what was going on at the ONF in light of rumors cir-

culating that Krowitz had hired a Washington, D.C., attorney

to defend him against a personnel action. Zylinski informed

the staff that Krowitz’ most recent performance evaluation

had been unsatisfactory, that he had been given sixty days to

improve his performance, and that the project Krowitz was

currently working on was going to be used to measure his per-

formance during that period. The staff was instructed to work

with and assist him in any way they could, short of doing the

work for him.

* This appraisal was not prepared until December 22, 1982. Zylinski could

not recall the reason for this delay in its preparation.

A-8

Krowitz was eventually discharged from his Forest Service

employment on or about April 22, 1983. He appealed his

discharge through the Civil Service system, and the United

States Merit Systems Protection Board eventually ordered the

Forest Service to reinstate him. For the last two and one-half

years, Krowitz has worked as a program analyst for the Forest

Service on the Huron-Manistee National Forest in Cadillac,

Michigan.

Since shortly after their arrival in Ironwood in September,

1981, Zylinski and his wife had been regularly participating in

Friday night “couples group” activities with the Krowitzes,

Fitzgeralds, Shaws and Vizankos, after being initially intro-

duced into the group by the Krowitzes. As tensions between

Zylinski and Krowitz mounted in the ONF office due to

Krowitz’ performance problems, tensions also began to mount

within the social group. Rumors began to circulate in the group

in the summer of 1982 regarding work tensions between Zylin-

ski and Krowitz and the possibility that Krowitz’ job might be

in jeopardy. Mrs. Zylinski was purportedly the source of the

rumors, passing the information on to Mrs. Fitzgerald who, in

turn, told Mrs. Shaw. Messrs. Fitzgerald and Shaw heard the

rumors from their wives. Zylinski stated that his wife was not

privy to any detailed information regarding the case because

they had a house policy not to discuss personnel problems, but

he had told her in very general terms that he was having a

performance problem with Krowitz.

In November of 1982, Zylinski initiated conversations with

Messrs. Shaw, Vizanko and Fitzgerald. Zylinski, aware of the

stress being generated in the social group, felt that continued

participation by him and his wife would only lead to more

stress. His sole purpose in initiating the conversations was to

explain to the group members why the Zylinskis would be

dropping out of the group.

On November 24, 1982, during a social gathering at the

Zylinski home, Zylinski took Shaw aside to privately discuss

A-9

the matter with him. According to the deposition testimony of

Shaw, (1) Zylinski said he was dissatisfied with Krowitz’ job

performance, did not believe he was competent to do his job,

was going to dismiss him sometime in the future, and went

into some detail about why he arrived at that decision; (2)

Zylinski generally asserted that Krowitz was slow in perform-

ing and didn’t have the requisite knowledge to complete an

assigned project involving implementation of a computer data

system at the ONF; (3) Zylinski generally expressed dissatisfac-

tion with Krowitz’ performance in completing assignments

and spoke generally of six or eight special projects, without

providing specific details of those projects or Krowitz’ ability

to complete them. Zylinski testified that he may have dis-

cussed some of Krowitz’ projects with Shaw but only in very

general terms. While Shaw may have walked away with the

impression that Krowitz was going to be terminated, Zylinski

said he was not thinking in terms of any imminent termination

at the time of his discussion with Shaw.

Zylinski met Fitzgerald for lunch on November 26, 1982, to

discuss the matter with him. At the outset, they agreed that it

was common knowledge within the social group that there

were work-related problems between Zylinski and Krowitz.

Zylinski explained that he had advised Krowitz that his

projects were unsatisfactory, that this was creating tension

between them and was generating sufficient tension within

the social group that the Zylinskis were going to withdraw

from the group to ease the tensions. Zylinski recalls stating that

Krowitz’ work for him had resulted in some performance

problems and he may have discussed, in very general terms,

the performance evaluation process and that the end result of

that process was possibly termination. Fitzgerald’s deposition

confirmed that Zylinski reported, in very broad terms, that

Krowitz was involved in an evaluation process in which he

was coming up short. Zylinski did not provide any details

regarding either the process or the areas in which Krowitz was

A-10

purportedly deficient. Zylinski discussed a “time process” and

tasks were implied but not specifically described, according to

Fitzgerald. Fitzgerald inferred from the remarks that the

process would be winding down in the next couple of months

and that a decision would be reached at that time. Zylinski did

not discuss any of Krowitz’ specific projects, except in the very

broadest references to tasks which he had not performed suc-

cessfully. According to Fitzgerald, Zylinski’s comments were

in no way personal and Zylinski stated that he liked Krowitz

on a personal level. Fitzgerald felt that Zylinski’s motivation

was strictly social—that, given these facts, the tensions were so

great that the Zylinskis would withdraw from the social

group.

Also in late November, Vizanko stopped by Zylinski’s home

to pick up something and Zylinski used the opportunity to

advise him of the matter. Zylinski testified that he may have

discussed the performance evaluation process in general terms

but did not recall telling Vizanko that Krowitz was going to

lose his job. Vizanko, in his deposition, recalled being

informed that Krowitz was having problems at the office, but

Vizanko never knew the nature of the problems and Zylinski

did not discuss specifics with him, nor did he mention that a

performance evaluation of Krowitz had been or was going to

be done. According to Vizanko, because Zylinski did not know

how the problems with Krowitz would work out, the Zylinskis

were dropping out of the social group to alleviate group

tensions.

Plaintiff's December 11, 1984 amended complaint alleges

that the three November 1982 disclosures by Zylinski to

Messrs. Shaw, Vizanko and Fitzgerald violated the Privacy

Act. During the trial, counsel for plaintiff elicited testimony

regarding further allegedly unlawful disclosures—the June

1982 disclosure by Zylinski to his wife of performance prob-

lems with Krowitz, and the January 1983 disclosure by Zylin-

ski to his wife of performance problems with Krowitz, and the

aa

A-11

January 1983 disclosures by Zylinski to his forest management

team staff regarding Krowitz’ unsatisfactory performance

appraisal and his placement on a 60-day improvement period.

Defendant objected through trial on grounds that such

evidence was not within the issues framed by the pleadings.

The court reserved its ruling on those objections. Following

trial, plaintiff moved for leave to amend his complaint to con-

form with the evidence offered at trial. Defendant opposes the

motion.

Pursuant to Rule 15(b), Fed. R. Civ. P.,

“li]f evidence is objected to at the trial on the ground that

it is not within the issues made by the pleadings, the court

may allow the pleadings to be amended and shall do so

freely when the presentation of the merits of the action

will be subserved thereby and the objecting party fails to

satisfy the court that the admission of such evidence

would prejudice him in maintaining his action or defense

upon the merits.”

I am satisfied that the presentation of the merits is undeniably

served by allowing the amendment sought by plaintiff. I am

equally satisfied that the government’s defense upn the merits

would not be prejudiced by such an amendment in this case.

With respect to the June 1982 disclosure by Zylinski to his

wife, plaintiff appropriately points out that the government

cannot offer rebuttal evidence since Zylinski himself testified

that he did, in fact, disclose to his wife that he was having per-

formance problems with Krowitz. Accordingly, permitting

the admission of his testimony on this issue and the amend-

ment sought does not seriously prejudice the government’s

defense on the merits.

The allegation that the January 1983 disclosures by Zylinski

to his staff violated the Privacy Act was included in plaintiff's

administrative complaint to the agency and was thoroughly

investigated by the government at that time. Plaintiff's Ex. 12

A-12

is a thorough internal agency report by Special Agent Boren,

prepared in early 1983. That report, part of the government

records pertaining to this case, contains an exhaustive investi-

gation regarding the January 1983 staff meeting disclosures. It

includes signed statements from all staff members present at

that meeting regarding what Zylinski disclosed to them. It is

therefore apparent that the government has, since 1983, had

detailed knowledge of the fact and nature of the 1983

disclosures, a factor weighing against a finding of prejudice.

For the reasons stated, plaintiff's motion for leave to amend

his complaint to conform with the evidence offered at trial is

hereby granted. Plaintiffs December 11, 1984 complaint is

hereby deemed amended to include Privacy Act claims per-

taining to the June 1982 disclosure by Zylinski to his wife, and

the January 1983 staff meeting disclosures by Zylinski.

Plaintiff claims that the information disclosed by Zylinski in

June 1982, November 1982, and January 1983 was or should

have been contained in a system of records, as defined in the

Privacy Act, and thus, those disclosures, without Krowitz’

consent, violated 5 U.S.C. §552(a) which provides, in perti-

nent part, that:

“{njo agency shall disclose any record which is contained

in a system of records by any means of communication to

any person. . .except pursuant to a written request by, or

with the prior written consent of, the individual to whom

the record pertains, unless disclosure of the record would

be—[within any of the eleven enumerated permitted

disclosures].”

It is disputed that the Forest Service is an “agency” and plain-

tiff is an “individual” within the meaning of this provision.

The definitional section of the Act defines the term “record” to

mean,

“any item, collection, or grouping of information about an

an individual that is maintained by an agency, including

A-13

but not limited to, his education, financial transactions,

medical history, and criminal or employment history, and

that contains his name, or the identifying number, sym-

bol, or other identifying particular assigned to the indi-

vidual, such as a finger or voice print or a photograph.”

5 U.S.C. §552(a)(4). The term “system of records” is defined to

mean:

“a group of any records under the control of any agency

from which information is retrieved by the name of the in-

dividual or by some identifying number, symbol, or other

identifying particular assigned to the individual.”

5 U.S.C. §552a(a)(5). I find and conclude, and I believe defen-

dant concedes, that plaintiff's Exhibit Nos. 1 through 11

constitutes “records” within a “system of records” within the

meaning of the Act. Defendant claims, however, that there

was no “disclosure of a record contained in a system of records”

within the meaning of the Act because, at most, Zylinski

disclosed personal opinion and belief and not information

retrieved from a record within a system of records.

The Act does not define “disclosure,” leaving the meaning of

that term to case law development. From a review of the cases

interpreting the Act, I am satisfied that the Act’s purpose is “to

preclude a system of records from serving as the source of per-

sonal information about a person that is then disclosed without

the person’s prior consent.” (Emphasis in original.) Olberding v.

United States Dept. of Def., Dept. of the Army, 564 F. Supp.

907, 913 (S.D. Iowa 1982), aff'd, 709 F.2d 621 (8th Cir. 1983).

The Act was passed in the post-Watergate atmosphere. Con-

gress’ primary concern was controlling “the unbridled use of

highly sophisticated and centralized information collecting

technology,” and the Act sought to remedy the threat posed by

the “capacity of computers and related systems to collect and

distribute great masses of personal information.” Savarese v.

United States Dept. of Health, Education and Welfare, 479 F.

Supp. 304, 308 (N.D. Ga. 1979), aff'd mem. sub nom, Savarese

v. Harris, 620 F.2d 298 (5th Cir. 1980), cert. den. 449 U.S. 1078.

A-14

Until 1984, courts unanimously limited the Act’s coverage to

prohibit only non-consensual disclosure of information ini-

tially “retrieved” from a protected system of records “which

was at some point a source of the information” disclosed. Id.;

Olberding, supra. Under the prevailing “retrieval rule” of

disclosure:

“{cjourts. ..unanimously agreed that the Act covers more

than the mere physical dissemination of records (or

copies) but that it does not necessarily cover disclosure of

information merely because the information happens to

be contained in the records. The line they draw is that

where no statutory exception applies, the Act prohibits

nonconsensual disclosure of any information that has

been retrieved from a protected record. See, e.g.,

Thomas v. United States Dept. of Energy, 719 F.2d 341

(10th Cir. 1983); Jackson v. Veterans Administration,

503 F. Supp. 653, 656 (N.D. Ill. 1980); Savarese v.

United States Dept. of Health, Education & Welfare, 479

F. Supp. 304, 307 (N.D. Ga. 1979), aff'd mem. sub nom.

Savarese v. Harris, 620 F.2d 298 (5th Cir. 1980), cert.

denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801

(1981).”

Bartel v. Federal Aviation Administration, 725 F.2d 1403,

1408 (D.C. Cir. 1984). In 1984, the D.C. Circuit in Bartel

declined to apply the previously unanimous “retrieval” rule to

the peculiar facts before it,® concluding that the rationale

behind the “retrieval” rule did not support “reading out of the

Act’s coverage’ a situation:

® Bartel, while an F.A.A. air safety inspector, wanted to file an EEOC

complaint on grounds of reverse discrimination. With that purpose in mind,

he requested “flight times and rating” of fellow inspectors from the F.A.A.

Airmen Certification Branch, after allegedly being assured that such infor-

mation was public. He actually received the complete airman files of three

fellow F.A.A. inspectors, files which contained both public and nonpublic

information. He subsequently filed a complaint with the F.A.A. EEOC

office. Vincent, chief of an F.A.A. Flight Standards Division, ordered an

A-15

ee

where an agency official uses the government’s sophisti-

cated. . .information collecting methods to acquire per-

sonal information for inclusion in a[{n official inves-

tigative report] record and then discloses that information

in an unauthorized fashion [letters to three other F.A.A.

employees] without actually physically retrieving it from

the record system. Threats to privacy from the govern-

ment’s recordkeeping emanate not only from the ease of

retrieval, but also from the ease of collection and utiliza-

tion of vast amounts of personal information. Given this

broad lens view of privacy protection which Congress em-

braced, the Savarese rationale is consistent with extension

of the Act’s prohibition to nonconsensual disclosure of in-

formation as closely connected to the ‘maintenance’ of a

record as the situation here suggests, even absent physical

retrieval from a tangible recording. And, in contrast to

disclosures of general office knowledge, it would hardly

seem an ‘intolerable burden’ to restrict an agency official’s

discretion to disclose information in a record that he may

not have read but that he had a primary role in creating

and using, where it was because of that record-related role

that he acquired the information in the first place.”

investigation as to an apparent Privacy Act violation by Bartel. Documents

collected in the course of that investigation were placed in an investigative

report. Bartel left the F.A.A. before any action was taken on the report.

Almost a year after the report was prepared, Vincent, having learned that

Bartel was seeking re-employment with the F.A.A. sent letters to the three in-

spectors whose files had been sent to Bartel. The letters notified them of

Bartel’s name and place of work and listed the records Bartel had received on

each of them. The letters further reported that an investigation revealed that

Bartel had improperly obtained their records and stated that Bartel’s actions

appeared to constitute a violation of the Privacy Act. Bartel sued claiming

that the Vincent letters constituted prohibited nonconsensual disclosures of in-

formation about him in violation of the Privacy Act. The District Court

dismissed his pro se complaint in a brief order contending that Bartel “had

used his official position to invade the privacy of fellow employees” and that

his complaint accordingly “stands the Privacy Act on its head.” The D.C. Cir-

cuit vacated the dismissal and remanded the case for further proceedings,

finding that Bartel’s complaint stated a cause of action under the Privacy Act

and that issues of fact remained with respect to his claims thereunder.

A-16

Id., 725 F.2d at 1410-1411. The Bartel court emphasized that

the written letter disclosures “on their face purport[ed] to

repeat findings and conclusions made as a result of” an investi-

gation which the disclosing official had himself ordered. Id..,

at 1411. The court vacated the trial court’s dismissal of Bartel’s

pro se complaint, ruling that “if the facts are as Bartel states,

we cannot agree...that the Privacy Act does not cover the

sending of these letters because they did not constitute ‘com-

munication’ of a protected ‘record.’ ” Id.

I am satisfied that Bartel’s holding is so inextricably inter-

twined with the peculiar factual situation in that case that it is

not intended and should not be permitted to generally displace

the previously unanimous “retrieval” rule.” Further, because

the facts in the case at bar are not analogous to those in Bartel,

I decline to apply its holding in this case. Zylinski did not use

the government’s “sophisticated information collecting

methods” to acquire personal information on plaintiff for in-

7 The Bartel opinion repeatedly emphasizes the peculiar factual basis for

its holding, to wit:

“Because we find that under the peculiar circumstances of this case, the

letters did in fact communicate sensitive information contained in the

[investigative report]... we conclude that the Act’s disclosure protec-

tions may have been triggered.” Id., 725 F.2d at 1408. [Emphasis

added]

“Although they [appellees] cite several cases from other circuits to sup-

port their position, none involved the peculiar set of circumstances

vresent here: disclosure by an agency official of his official determina-

tion made on the basis of an investigation which generated a protected

personnel record.” Jd., at 1409. [Emphasis added]

“Thus, a rigid adherence to the ‘retrieval standard’ makes little sense

in this case, whatever its merits as a guideline in other Privacy Act

situations.

Therefore, despite dicta from other circuits, we decline to rule, in

the factual context of this case, that the Act’s coverage is restricted to

information directly retrieved from a tangible recording.” /d.,

emphasis in original.

“We do not take issue with the importance of either concern in the

interpretation of the Act. But, neither do we think those rationales sup-

port reading out of the Act’s coverage the situation we may be dealing

A-17

clusion in an official investigative record, as the agency official

did in Bartel. As stated, the Bartel court was concerned with

the “ease of collection and utilization of vast amounts of per-

sonal information,” and with the official’s primary role in

creating and using a record where it was because of his record-

related role that he acquired the information in the first place.

Zylinski’s disclosures did not, as in Bartel, “on their face pur-

port to repeat findings and conclusions made as a result of” an

investigation which Zylinski himself had ordered. Although

Krowitz performance problems and Zylinski’s attempts to

deal with them generated documents falling within the Act’s

definition of “record” and although these “records” were con-

tained within a “system of records” within the meaning of the

Act, this is clearly not an instance, as in Bartel, where Zylinski

used the government’s sophisticated information collecting

methods to gain personal information for inclusion in an inves-

tigative report which he personally ordered and then disclosed

that specific report information in written form without

actually retrieving it from the record system.

When analyzed using the majority “retrieval” rule, it is

apparent that there were no disclosures in violation of the

Privacy Act in this case. The testimony of Messrs. Zylinski,

Shaw, Fitzgerald and Vizanko supports a finding that the

information which Zylinski disclosed to his wife in June 1982

was general in nature and nothing more than independent

recollections and personal opinions on his part concerning his

work-related problems with Krowitz. I find no evidence of

with here, where an agency official uses the government's

‘sophisticated. . information collecting’ methods to acquire personal

information for inclusion in a record and then discloses that informa-

tion in an unauthorized fashion without actually physically retrieving

it from the record system.” Jd., at 1410 [Emphasis added]

“In short, if the facts are as Bartel states, we cannot agree with appellees

that the Privacy Act does not cover the sending of these letters because

they did not constitute ‘communication’ of a protected ‘record.’ ” Id.,

at 1411 [Emphasis added]

A-18

disclosures of specific records, nor any evidence that Zylinski

relied upon notes pertaining to Krowitz’ performance prob-

lems prior to or during his discussions with his wife and social

friends. The argument propounded by plaintiff, that by virtue

of discussing any aspect of his work relationship with Krowitz,

Zylinski impermissibly disclosed “records” from a “system of

records,” has been raised and rejected on sound grounds by

several courts. See, e.g., Savares, supra, 479 F. Supp. at 308.

It is well established that independent recollections and

opinions are not covered by the Privacy Act. See, e.g.,

Thomas, Savarese and Olberding, supra; Doyle v. Behan, 670

F.2d 535 (5th Cir. 1982); Fagot v. Federal Deposit Insurance

Corp., 584 F. Supp. 1168 (D.C.P.R. 1984); King v. Califano,

471 F. Supp. 180 (D.D.C. 1979). Further, if the information

disclosed is previously known, the disclosure does not violate

the Privacy Act. See e.g., Federal Deposit Insurance Corp. v.

Dye, 642 F.2d 833 (5th Cir. 1981); King, supra. The testimony

of Messrs. Zylinski, Shaw, Vizanko and Fitzgerald establishes

that the fact of Krowitz’ performance problems and the

possibility of his eventual termination was known, albeit in

rumor form, as early as June 1982. Zylinski’s conversations

with Messrs. Fitzgerald, Shaw and Vizanko confirmed the

rumors, but information he disclosed was, in reality, not much

more than that which had previously been rumored—the

general information that Krowitz was having performance

problems and that his job was potentially in jeopardy because

of them. There is no evidence that Zylinski utilized a protected

system of records to initially gather or to ultimately retrieve

the information on Krowitz which he conveyed to his wife and

friends. The source of Zylinski’s knowledge of Krowitz’

performance was his personal observation of and participation

in supervising Krowitz, not a protected record from a system

of records within the meaning of the Act. The fact that Zylin-

ski was the custodian of records within a protected system of

records, and that those records contained information on

A-19

Krowitz’ performance problems, does not alter my conclusion

that the information Zylinski communicated to his wife and

friends was not retrieved from such protected records but,

rather, arose strictly from his personal knowledge and obser-

vations, fully independent of the records at issue.

Regarding the January 1983 disclosures, I am again satisfied

that the information Zylinski disclosed to his staff was simi-

larly based on personal observation and knowledge indepen-

dent of any protected record. Even assuming, arguendo, that

Zylinski had retrieved the disclosed information from records

protected by the Act, I am equally satisfied that his disclosure

of that information to members of the forest management

team who shared supervisory responsibility with him con-

stitutes a permitted disclosure “to those officers and employees

of the agency which maintains the record who have a need for

the record in the performance of their duties,” pursuant to

5 U.S.C. §552a(b)(1). I have reviewed the statements of Clyde

Knapp, Robert Brenner, Robert Mackender, Jim Thompson

and R. B. Burton (Pitf’s Ex. 12), the individuals in ‘attendance

at the staff meeting. Those statements reveal that Zylinski

specifically instructed all staff members in attendance to work

with and assist Krowitz on the third project during his 60-day

improvement period, short of actually doing the work for him.

To perform this assigned task of assisting Krowitz, it is elemen-

tal that the staff members needed to know the nature of

Krowitz’ performance status and problem and the nature of

the project on which they were expected to assist him. Accord-

ingly, the disclosures made by Zylinski to his staff during the

January 1983 meeting clearly fall within the disclosure excep-

tion provided by 5 U.S.C. §552a(b)(1). See, Beller v. Midden-

dorf, 632 F.2d 788, 799 n.6 (9th Cir. 1980), reh. denied, 647

F.2d 80, cert. denied, 454 U.S. 855, reh. denied, 454 U.S.

1069; Hernandez v. Alexander, 671 F.2d 402, 410 (10th Cir.

1982); Parks v. United States Internal Revenue Service, 618

F.2d 677, 680-681 (10th Cir. 1980).

A-20

The final component of plaintiff's claim is that the Forest

Service violated the Privacy Act by failing to provide adequate

safeguards to prevent disclosure of information protected by

the Act. The record evidence, previously recited in this

opinion, convinces me that this claim is without merit. Zylin-

ski’s testimony satisfies me that the records pertaining to

Krowitz were complied and maintained in substantial com-

pliance with Forest Service rules pertaining to the develop-

ment and maintenance of records protected by the Act, and i

find insufficient evidence to support a claim that the

safeguards and rules developed by the Forest Service were

inadequate in any respect.

CONCLUSION

Plaintiff's motion for leave to amend his complaint to con-

form with the evidence offered at trial is granted and his com-

plaint is deemed amended to include Privacy Act claims per-

taining to the June 1982 and January 1983 disclosures by

Zylinski. :

I find and conclude that there were no disclosures violative

of the Privacy Act in this case. I further find and conclude that

plaintiff has failed to prove, by a preponderance of the

evidence, his claim that the Forest Service failed to provide

adequate safeguards to prevent disclosure of information pro-

tected by the Act. Accordingly, plaintiff's complaint against

defendant shall be dismissed, with full prejudice, and judg-

ment shall be entered in favor of defendant, with costs as

permitted by law.

(s) Doucitas W. HiLtLMAN

Douc.ias W. HILLMAN

Chief Judge

Daten: Aug 25 1986

ee

A-21

UNITED STATES OF AMERICA

Districr CourT FOR THE WESTERN District OF MICHIGAN

NORTHERN DiIvIsION

Case No. M84-303 CA2

ZANDER KROWITZ,

PLAINTIFF,

v.

DEPARTMENT OF AGRICULTURE,

UNitTepD STATES Forest SERVICE,

DEFENDANT.

ORDER OF DISMISSAL

In accordance with the opinion filed this date,

Ir Is Heresy Orpenrep that plaintiff's motion for leave to

amend his complaint to conform with the evidence offered at

trial is granted and his complaint is deemed amended to

include Privacy Act claims pertaining to June 1982 and

January 1983 disclosures by Joseph Zylinski.

Ir Is FurrHeR Orperep that plaintiffs complaint against

defendant is hereby dismissed, with full prejudice, and judg-

ment shall be entered in favor of defendant, with costs as

permitted by law.

(s) Douctas W. HILLMAN

Douc.tas W. HiILLMAN

Chief Judge

Daten: Aug 25 1986

A-22

AO 450 (Rev. 5/85) Judgment in a Civil Case

Unitep States District Court

For THE WESTERN District oF MICHIGAN

Case NuMBER: M84-303 CA2

ZANDER KROWITZ.

PLAINTIFF,

vb.

DEPARTMENT OF AGRICULTURE,

UnitTep STATES Forest SERVICE.

DEFENDANT.

JUDGMENT IN A CIVIL CASE

() Jury Verdict. This case came before the Court for a trial

by jury. The issues have been tried and the jury has

rendered its verdict.

XX Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered.

Ir Is OrnpERED AND Apyupcep that judgment be entered in

favor of defendant and against plaintiff, with costs as

permitted by law.

C. Duxe Hynex, Clerk

(By) (s) Metva I. RoBertson

Me va I. Rospertson, Deputy Clerk

Date: August 25, 1986

A-23

NOT RECOMMENDED FOR FILED

FULL-TEXT PUBLICATION AUG 14 1987

(Illegible)

Joun P. Henman, Clerk

United States Court of Appeals

For the Sixth Circuit

No. 86-1934 wra~ONas

ZANDER KROWITZ,

PLAINTIFF-APPELLANT,

SHIRLEY KROWITZ,

PLAINTIFF,

v.

DEPARTMENT OF AGRICULTURE;

UNITED STATES FOREST SERVICE,

DEFENDANTS- APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN.

Before:

KENNEDY, MILBURN and Nonraris, Circuit Judges.

Per CuriaM. Plaintiff-appellant Zander Krowitz appeals

the District Court’s order dismissing his Privacy Act claims

against defendant-appellee Department of Agriculture,

United States Forest Service.

Upon consideration of the entire record and the briefs filed

herein, we affirm the judgment of the District Court for the

reasons stated by Judge Hillman in his Opinion and Order

filed August 25, 1986.

ISSUED AS MANDATE: September 14, 1987

COSTS: None

A True Copy

Attest: JoHNn P. Henman, Clerk

By (s) (Illegible); Deputy Clerk

A-24

RELEVANT STATUTES AND REGULATIONS

5 U.S.C. §552a. Records maintained on individuals

(a) Definitions. For purposes of this section—

(1) the term “agency” means agency as defined in section

552(e) of this title [5 USCS §552(e) };

(2) the term “individual” means a citizen of the United

States or an alien lawfully admitted for permanent

residence;

(3) the term “maintain” includes maintain, collect, use or

disseminate;

(4) the term “record” means 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 indi-

vidual, such as a finger or voice print or a photograph;

(5) the term “system of records” means 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 iden-

tifying particular assigned to the individual;

(6) the term “statistical record” means a record in a

system of records maintained for statistical research or

reporting purposes only and not used in whole or in

part, except as provided by section 8 of title 13; and

(7) the term “routine use” means, with respect to the

disclosure of a record, the use of such record for a pur-

pose which is compatible with the purpose for which it

was collected.

(b) Conditions of Disclosure. No agency shall disclose any

record which is contained in a system of records by any

means of communication to any person, or to another

A-25

agency, except pursuant to a written request by, or with

the prior written consent of, the individual to whom the

record pertains, unless disclosure of the record would be—

(1)

to those officers and employees of the agency which

maintains the record who have a need for the record in

the performance of their duties;

required under section 552 of this title [5 USCS §552];

for a routine use as defined in subsection (a)(7) of this

section and described under subsection (e)(4)(D) of

this section;

to the Bureau of the Census for purposes of planning or

carrying out a census or survey or related activity pur-

suant to the provisions of title 13 [13 USCS §§ 1

et seq. |;

to a recipient who has provided the agency with

advance adequate written assurance that the record

will be used solely as a statistial research or reporting

record, and the record is to be transferred in a form

that is not individually identifiable;

to the National Archives and Records Administration

as a record which has sufficient historical or other

value to warrant its continued preservation by the

United States Government, or for evaluation by the

Archivist of the United States or the designee of the

Archivist to determine whether the record has such

value;

to another agency or to an instrumentality of any

governmental jurisdiction within or under the control

of the United States for a civil or criminal law enforce-

ment activity if the activity is authorized by law, and

if the head of the agency or instrumentality has made a

written request to the agency which maintains the

record specifying the particular portion desired and

the law enforcement activity for which the record is

sought;

A-26

(8) to a person pursuant to a showing of compelling cir-

cumstances affecting the health or safety of an indi-

vidual if upon such disclosure notification is

transmitted to the last known address of such indi-

vidual;

(9) to either House of Congress, or, to the extent of

matter within its jurisdiction, any committee or sub-

committee thereof, ary joint committee of congress

or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his authorized

representatives, in the course of the performance of

the duties of the General Accounting Office;

(11) pursuant to the order of a court of competent

jurisdiction; or

(12) to a consumer reporting agency in accordance with

section 3711(f) of title 31 [31 USCS §3711(f)].

5 U.S.C. §4301. Definitions

For the purpose of this subchapter [5 USCS §§4301 et seq. ]—

(1) “agency” means—

(A) an Executive agency;

(B) the Administrative Office of the United States

Courts; and

(C) the Government Printing Office;

but does not include—

(i) a Government corporation;

(ii) the Central Intelligence Agency, the

Defense Intelligence Agency, the Nationa!

Security Agency, or any Executive agency

or unit thereof which is designated by the

President and the principal function of

which is the conduct of foreign intelligence

or counter-intelligence activities; or

(iii) the General Accounting Office;

A-27

(2) “employee” means an individual employed in or under

an agency, but does not include—

(A) an employee outside the United States who is paid

in accordance with local native prevailing wage

rates for the area in which employed;

(B) an individual in the Foreign Service of the United

States;

(C) a physician, dentist, nurse, or other employee in

the Department of Medicine and Surgery,

Veterans’ Administration whose pay is fixed

under chapter 73 of title 38 [38 USCS §§ 4101

et seq. ];

(D) an administrative law judge appointed under sec-

tion 3105 of this title [5 USCS §3105];

) an individual in the Senior Executive Service;

) an individual appointed by the President; or

(G) an individual occupying a position rot in the com-

petitive service excluded from coverage of this

subchapter [5 USCS §§ 4301 et seq.] by regula-

tions of the Office of Personnel Management; and

(3) “unacceptable performance” means performance of

an employee which fails to meet the established

performance standards in one or more critical

elements of such employee's position.

§4302. Establishment of performance appraisal systems.

(a) Each agency shall develop one or more performance

appraisal systems which—

(1) provide for periodic appraisals of job performance of

employees;

(2) encourage employee participation in establishing per-

formance standards; and

(3) use the results of performance appraisals as a basis for

training, rewarding, reassigning, promoting, reducing

in grade, retaining, and removing employees;

A-28

(b) Under regulations which the Office of Personnel Manage-

ment shall prescribe, each performance appraisal system

shall provide for—

(1) establishing performance standards which will, to the

maximum extent feasible, permit the accurate evalua-

tion of job performance on the basis of objective

criteria (which may include the extent of courtesy

demonstrated to the public) related to the job in ques-

tion for each employee or position under the system;

(2) as soon as practicable, but not later than October 1,

1981, with respect to initial appraisal periods, and

thereafter at the beginning of each following appraisal

period, communicating to each employee the perform-

ance standards and the critical elements of the

employee’s position;

(3) evaluating each employee during the appraisal period

on such standards;

(4) recognizing and rewarding employees whose perform-

ance so warrants;

(5) assisting employees in improving unacceptable

perfermance; and

(6) reassigning, reducing in grade, or removing employees

who continue to have unacceptable performance but

only after an opportunity to demonstrate acceptable

performance.

§4303. Actions based on unacceptable performance

(a) Subject to the provisions of this section, an agency may

reduce in grade or remove an employee for unacceptable

performance.

(b)(1) An employee whose reduction in grade or removal is

proposed under this section is entitled to—

(A) 30 days’ advance written notice of the proposed action

which identifies—

A-29

(i) specific instances of unacceptable performance by

the employee on which the proposed action is

based; and

(ii) the critical elements of the employee’s position

involved in each instance of unacceptable per-

formance;

(B) be represented by an attorney or other representative;

(C) a reasonable time to answer orally and in writing; and

(D) a written decision which—

(i) in the case of a reduction in grade or removal

under this section, specifies the instances of unac-

ceptable performance by the employee on which

the reduction in grade is based, and

(ii) unless proposed by the head of the agency, has

been concurred in by an employee who is in a

higher position than the employee who proposed

the action.

(2) An agency may, under regulations prescribed by the

head of such agency, extend the notice period under

subsection (b)(1)(A) of this section for not more than

30 days. An agency may extend the notice period for

more than 30 days only in accordance with regulations

issued by the Office of Personnel Management.

(c) The decision to retain, reduce in grade, or remove an

employee—

(1) shall be made within 30 days after the date of expira-

tion of the notice period, and

(2) in the case of a reduction in grade or removal, may be

based only on those instances of unacceptable

performance by the employee—

(A) which occurred during the l-year period ending

on the date of the notice under subsection

(b)(1)(A) of this section in connection with the

decision; and

(B) for which the notice and other requirements of

this section are complied with.

a

A-30

(d) If, because of performance improvements by the employee

during the notice period, the employee is not reduced in

grade or removed, and the employee’s performance con-

tinues to be acceptable for 1 year from the date of the

advance written notice provided under subsection

(b)(1)(A) of this section, any entry or other notation of the

unacceptable performance for which the action was pro-

posed under this section shall be removed trom any agency

record relating to the employee.

(e) Any employee who is a preference eligible or is in the com-

petitive service and who has been reduced in grade or

removed under this section is entitled to appeal the action

to the Merit Systems Protection Board under section 7701

of this title [5 USCS §7701).

(f) This section does not apply to—

(1) the reduction to the grade previously held of a super-

visor or manager who has not completed the proba-

tionary period under section 3321(a)(2) of this title [5

USCS §3321(a)(2)],

(2) the reduction in grade or removal of an employee in

the competitive service who is serving a probationary

or trial period under an initial appointment or who

has not completed 1 year of current continuous

employment under other than a temporary appoint-

ment limited to 1 year or less, or

(3) the reduction in grade or removal of an employee in

the excepted service who has not completed | year of

current continuous employment in the same or similar

positions. =

A-31

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE MANUAL

Title 6100: Personnel Management

Chapter 6143, Section 4

4-1. Records

a. All records maintained under this chapter must meet the

requirements of Part 297, of Title 5 of the Code of Federal

Regulations as well as any Departmental provisions of the

Privacy Act and Freedom of Information Act.

4-2. Uses of Performance Appraisals

g. Reduction-in-Grade or Removal for Unacceptable

Performance—failure to meet the minimally acceptable

standard of performance established by management in

one or more critical elements constitutes unacceptable per-

formance. Management shall reduce-in-grade, remove or

reassign employees who continue to have unacceptable

performance. Before taking such action, management must

assist employees in improving unacceptable performance

and provide an opportunity to demonstrate acceptable

performance. Opportunities provided for improving

performance must be documented... .

A-32

Title 6200; Privacy Act Records

Chapter 6272, Section 11d(k)

General Personnel Records

Performance appraisal records including: appiaisal forms and

supporting documentation issued under employee (including

SES employees) appraisal systems; recommendations for per-

sonnel actions; Performance Review Board or Executive

Resource Borad (sic) records; forms and supporting documen-

tation issued in connection with removal actions; Letters of

commendation, reprimands, admonishments, cautions, or

warnings and supporting documentation; and documents cer-

tifying satisfactory completion of probationary periods or

recommendations for within grade or merit pay actions.