Petition for Writ of Certiorari — Gowan v. Department of the Air Force
Supreme Court brief1998
Ask Donna
What actually matters in this document.
Text
no. 8S 688 ocr 15 998_
OFFIC
sala iCE OF THE CUBRK
Supreme Court of the United States
+
October Term, 1998
JOHN G. GOWAN,
UNITED STATES AIR FORCE
Respondents.
Petition for a Writ of Certiorari to the United States Court of Appeals
for the 10” Circuit
PETITION FOR A WRIT OF CERTIORARI
JOHN G. GOWAN
Pro Se
12520 Iroquois Pl NE
Albuquerque, NM 87112-4725
(505) 292-8676
Il.
Il.
QUESTIONS PRESENTED
Whether the Court committed reversible error by
failing to find that the "mean-spirited" attack on
Major Gowan for his advocacy of civil rights was
carried out through violations of the Privacy Act
of 1974.
Whether the Court committed reversible error by
failing to find that the Air Force creation and
maintenance of false records about Major Gowan
was a violation of the Privacy Act of 1974.
Whether the Court committed reversible error by
failing to find that the Air Force failed to collect
information to the greatest extent practicable
directly from Major Gowan and in so doing
violated the Privacy Act of 1974.
Whether the Court committed reversible error by
failing to find that the Air Force failed to grant
access, amendment, and right to file a statement
of disagreement to Major Gowan and in so doing
violated the Privacy Act of 1974.
Whether the Court committed reversible error by
failing to find that the Air Force did not make a
reasonable effort to assure that records about
Major Gowan were properly protected and that
they were accurate, relevant, timely, and
complete before they were used or disseminated
and in so doing violated the Privacy Act of 1974.
Whether the Court committed reversible error by
failing to find that Major Gowan's First and
Fourth Amendment Constitutional rights have
been violated by the Air Force creation and
maintenance of record which show how he
exercises those rights and in so doing violated the
Privacy Act.
VII. Whether the Court committed reversible error by
failing to find that Major Gowan substantially
prevailed in the action brought against the Air
Force and whether financial and emotionally
damaged was caused by Air Force violations of
the Privacy Act of 1974.
LIST OF PARTIES
The names of all parties to the proceedings in the
court whose judgment is sought to be reviewed here
appear in the caption of the case. There is no parent or
subsidiary company of any party to be listed.
iil
TABLE OF CONTENTS
Page
GET SIIIIIIIINTE a. cencacnnacnnceccnesnesocepepeonesenaccocoezecees i
ST icin teneendina ss cadhinannmmansdanannseneamenmnenqesoene ii
BE III cicconsscnccnadecboncnnnncenddbibdpenenebeebocsessecsd iii
III | icc cncn suc aphabsdbadinpnecssasederccsansssaccssnetiol Vv
CRG TOU dc ctsscrcecbstasccccccccnsccecsccsstsccsescsasccocccccce 1
Statement of Jurisdiction SEVERAL SSE TE 2
I iii a cen cnnplinndghasdupedbsipssinsiditoineuseesees 2
EI na so ccc sn guesnednancnasessessaneconecte 2
Reasons for Granting the Writ .................seseeeceeeeeeesees 5
I. Whether the Court committed reversible
error by failing to find that the "mean-
spirited" attack on Major Gowan for his
advocacy of civil rights was carried out
through violations of the Privacy Act of
1974.
pdedeapnhbbbuabbodesdebedboduéescucesnesacreesetoccccsoseuccnseseccces 7
Il. Whether the Court committed reversible
error by failing to find that the Air Force
creation and maintenance of false records
about Major Gowan was a violation of the
Privacy Act of 1974.
Ill.
Contents
Page
Whether the Court committed reversible
error by failing to find that the Air Force
failed to collect information to the greatest
extent practicable directly from Major
Gowan and in so doing violated the Privacy
Act of 1974.
IV. Whether the Court committed reversible
error by failing to find that the Air Force
failed to grant access, amendment, and the
right to file a statement of disagreement to
Major Gowan and in so doing violated the
Privacy Act of 1974.
Whether the Court committed reversible
error by failing to find that the Air Force did
not make a reasonable effort to assure that
records about Major Gowan were properly
protected and that they were accurate,
relevant, timely, and complete before they
were used or disseminated and in so doing
violated the Privacy Act of 1974.
Whether the Court committed reversible
error by failing to find that Major Gowan's
First and Fourth Amendment Constitutional
rights have been violated by the Air Force
creation and maintenance of record which
show how he exercises those rights and in so
doing violated the Privacy Act.
Contents
Vil. Whether the Court committed reversible
error by failing to find that Major Gowan
substantially prevailed in the action
brought against the Air Force and whether
financial and emotionally damaged was
caused by Air Force violations of the Privacy
Act of 1974.
ddan bulb spat idib cea tendbicpbadsdntesasicddveddisidctsbavkotctecce 25
RIE CF BRIBE NENT RRR ey 30
TABLE OF CITATIONS
Cases Cited:
Doe v. United States (1986) 251 App DC 54,781 F2d 907
reg gi, vacated on other grounds, en banc 252 App DC
41, 786 F2d 1203, on reh 261 1 APP DC 206, 821 F2d
694... Seveakuimias’ Prag edie tant Pe ie
Wisdom v. Dek of of Hous. & Urban Dev., 713 F2d at 425
(8th Cir. 1983.)... seth sienaiana
Albright v. United States, s, citing Parks, 7 732 F2d 181,189;
(DC Cir. 1984.)... aabmiine ae
Moskiewicz v. ae Dept of Agriculture, 7 791 F2d 561, 564
(7% Cir.1986.)... sala
Parks v. IRS, 618 F2d 677 (10th Cir. PO Bic cccdintieintonion an
Wren v. Harris (CA10 NM) 675 F2d 1144.............. 12, 29
Trujillo v. Sniroval Ca ae 608 F2d 815
(10th Cir.1979)............. a
Waters v. Thornburgh, 888 F2d 870, 873
Boyd v. Secretary of the Navy, 709, F2d. 684 (11 Cir.,
1983) cert. Den’d, 104 S.Crt. 709, 464 US 1043, 79
L.Ed.2d. 173, reiterates the rule...........scsccccccccccscscecees 16
Cuneo v. Rumsfeld, 553 F.2d 1360 (DC Cir. 1977)...... 16
Baker v. Dept of Navy, 814 F2d at 1384, 1385........... 17
BHanies, OD F.34 af. 1480 0.28. .nncncnswecisreianiaaeieedi 17
Vymetalik v. FBI, (1986) 251 App DC 402, 785 F2d
19
Robinson v. Shell Oil, = npr Court Case No. 95-1376,
decided February 18, 1997... sascesecs 19
Hernandez v. Alexander, 671 F2d 402 (10th Cir. 1982)..20
Glarkeon v_ IRS. ¢ 678 F2d 1368, 1374-77
(1.1% Cir. 1982)........cecccecsosoee ee
Irons v. Bell (1979, CA 1 Mass) 596 F2d 468................24
Contents
Page
. t. of icul Forest ice,
641 F Supp 1536, 1542 (WD Mich 1986).................... 24
Olberding v. Dept of Defense, 564 F Supp 907, 913
(SD Iowa 1982), affd, 709 F2d 621 (8th Cir 1983)........24
Fitzpatrick v. IRS, 1 GDS para. 80.232 (ND Ga.
1980), aff'd in part, vacated and scp al
665 F2d 327 (11th Cir 1982)... a eee coieiae ae
Swenson v. 3 Postal Servi ke, 890 F F2d 1075
(9th Cir 1989)... sciniie incite
Doe v. Naval Air Station, Pensacola Fla., 768 F2d
1229, 1231 (11th Cir 1985)... cciai a
Covert v Herrington, 876 F2d 751 (9th Cir 1989...........25
Lovell v. Alderete, 630 F2d 428, 432 (Sth Cir. 1980)...... 26
Andrews v. Veterans Admin. ene La, | 838 F.2d 418,
425 (10thCir. 1988)... paca
Laningham v. x. United States a Navy, § 813 F.2d
1236 at 1242)... mete cepatictdiiniias iu
Statutes Cited:
EE ee ee ree 1-30
United States Constitution, First and Fourth
ESE 7: ST SE 23, 24, 25
Other Authorities Cited:
Contents
Page
APPENDIX
Appendix A - Opinion of the United States Court of
Appeals, Tenth Circuit, Dated 17 July 1998.......... A-1
Appendix B -- Privacy Act of 1974 (Selected
I ac cicstncscsnsvegynsiccnesitsborinsentisseansecsinenca A-22
Appendix C - Testimony from District Court........... .A-26
Appendix D - Magistrate Judge’s Findings of Fact,
District Court for the District of New Mexico.........A-30
No.
in The
Supreme Court of the Anited States
*
October Term, 1998
JOHN G. GOWAN,
UNITED STATES AIR FORCE
Respondents.
Petition for a Writ of Certiorari to the United States Court of Appeals
for the 10” Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner, John Griffin Gowan, respectfully
petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Tenth Circuit.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at
2
http: / /lawlib.wuacc.edu/cal0/cases/ 1998 /07/96-
2134.htm and is reproduced in the Appendix A.
STATEMENT OF JURISDICTION
The Court of Appeals entered its judgement on 17
July 1998. The jurisdiction of this Court is invoked
under 28 USC § 1254(1).
STATUTE INVOLVED
The pertinent provisions of Title V, United States
Code, as amended by the addition of Section 552a, The
Privacy Act of 1974 (Public Law 93-579).
STATEMENT OF THE CASE
Major Gowan was working on Kirtland AFB, NM as a
Materials Engineer for the Air Force Weapons Laboratory
(Appendix D-2,4,5,6,7). In addition to his duties as an
engineer, he began to act, under the regulations, as the
employee representative for others working at the base
who were complaining of unlawful employment
discrimination. (D-18,23) The complaints were largely
against commanders and their representative, the Staff
Judge Advocate, Lt Col Charles L. Brower. During this
same period, junior officers in Gowan’s organization
began disclosing to him acts of fraud, waste and abuse
in the Weapons Laboratory, commanded by Col John P.
Amor. Gowan made many good faith efforts to resolve
the problems without seeking help outside command.
When these failed he reported the wrongdoing to the
FBI. One of the cases of employment discrimination
named Major General Bernard Weiss and Brower as
discriminating officials. Gowan tried to resolve the
complaint by offering a compromise plan to Brower in
which Mr Maximo Hernandez stated that he was willing
to abandon his complaints of discrimination, if Weiss
would consent to his reassignment. The plan was flatly
rejected. This started a chain of events that led to an
3
intentional and willful attack on Gowan that was
orchestrated by Brower and supported by Weiss. They
had no trouble enlisting Amor into their plan to prevent
Gowan from continuing to support Hernandez in his
lawful complaints. Brower sought, and got, support from
Judge Advocates Major Randall H. Kehl, Capt William
Gampel, Major Mark Ruppert and George P. Elder. Amor
used a subordinate administrative officer, Lt Col Richard
Steele. These ‘staff officers were selected because they
could be easily manipulated by Brower and Amor. Kehl
had twice approved an off-duty employment request for
Gowan to work in a private business in preparation for
retirement.(D-27 ,33,35,36,45,46) The Air Force normally
encourages preparation for retirement. Brower sent
Kehl to the Air Force Office of Special Investigation
(AFOSI) to make the allegation that Gowan was hiding
technology that he had discovered in the course of his
duties and planning to use it for private gain when he
retired. (D-9,12,15,17) Kehl’s statement to the AFOSI is |
as Appendix C,g. The written statement is mostly true,
but it conflicts materially with the statement he invented
to perpetuate the attack on Gowan after the OSI
investigation failed to find wrongdoing. The later
statements that were reported to Congress, claimed that
Gowan said, at the off-duty interview, he was going to be
working on “T’shirt embossing.” It would have been a
simple matter for the Air Force to check Kehl’s original
statement to the OSI when Gowan pointed out the
difference. The AFOSI did conduct an investigation and
went as far a Norway in the collection of records. (D-
54,56,60,61,66) After four months, they concluded that
Gowan had done nothing wrong and closed the
investigation. (D-61) None of the Judge Advocate officers
made any attempt to obtain information from Gowan.
The information the AFOSI did collect was available in
New Mexico from several sources. The OSI asked Gowan
for a statement when they called him in to tell him they
were closing the investigation. The findings of the
AFOSI did not please Brower. (D-66,68,71,74) He sent
Kehl and Gampel to Steele with the allegation that
Gowan had committed a violation of the Air Force
4
Standards of Conduct regulation. (D-84) Steele was
easily persuaded to accept the charges that were
fabricated by the judge advocates, without any proof or
personal knowledge. On 29 Jan 88 they filed criminal
charges. Gowan was providing testimony to an EEOC
investigator in the Hernandez case concerning Brower
and Weiss, when he was called to Steele’s office and told
that court martial charges were going to be preferred
against him. (D-76) From that point dozens of false
records were generated by the judge advocate attorneys
against Gowan. His security clearance was suspended,
his retirement date was cancelled, and he was removed
from his managerial role. (D-86) Gowan made a request
to obtain a copy of the AFOSI report under the Privacy
Act; after an initial denial, an umredacted copy was
provided, but only after the charges had been preferred.
The Air Force had no evidence of any wrongdoing on the
part of Gowan. Daniel M. Rondeau, Gowan’s business
partner, was not charged even though he was the
President of the partnership that the Air Force was
claiming as the basis for the charges against Gowan.
Unlike Gowan, Rondeau was not engaging in any
protected activity. They did not want to go to Gowan for
information because they knew that he would have
provided exculpatory information which would have
foreclosed any further pursuit of charges and fabrication
of false information. In fact, the charges were
summarily dismissed as soon as the FBI commenced an
obstruction of justice against the Air Force and the judge
advocates. (D-96,97,101) Brower then fabricated a
reason for dropping the charges by saying that Gowan
had now provided information about his business that
was exculpatory. (D-99,100) Serious damage had
already been done to Gowan’s business and to his
reputation. (D-87.138) The information that caused the
charges was available from Gowan from the beginning;
however, Brower had refused to request it or even accept
it when it was offered by Gowan. Brower’s written
explanation for dropping the charges led to numerous
other documents which paraphrased the Brower letter
and conveyed the lies to Congress and Air Force officials.
5
(D-111,148,150) Steele did not approve of the KAFB
Commanders decision to dismiss the charges, and took
it on himself to reinvent the same charges by calling the
Inspector General. This caused additional damage to
Gowan by creating more false and damaging records. (D-
104,166) It was only after Gowan filed this lawsuit that
the Air Force began to provide his records, to amend the
AFOSI report, and to agree to accept statements of
disagreement. (D-147,177) The Air Force used the Board
of Correction for Military Records to avoid compliance
with the Privacy Act. They directed Gowan to the Board
when other Air Force offices had failed to comply with
the Act. The Board (AFBCMR) promptly “lost” Gowan’s
records and would never have answered his request, if
not for the instant lawsuit. (D-183,184,185,187) The Air
Force is to this day refusing to provide access in
response to Gowan’s request for his records and this is
preventing him from amending or entering statements of
disagreement.
REASONS FOR GRANTING THE WRIT
The United States Court of Appeals has so far
departed from the accepted and usual course of judicial
proceedings, and sanctioned such a departure by a
lower court, as to call for an exercise of the Supreme
Court's supervisory power. The testimony has described
clear violations of the Privacy Act and the Courts have
failed to hold in a manner that is consistent with the
evidence and with the legal requirements of both the
Privacy Act and the Constitution of the United States.
Additionally, there is an ad hoc procedure employed in
the Circuits concerning what constitutes a "record"
under the Privacy Act, what constitutes a "system of
records", as to what constitutes "disclosure", as to what
constitutes "retrieval" of an individual's records, and
proper “exemptions” of records. Some elements of this
case make it a case of First Impression. No where in
existing case law has there been such a challenge to
governmental abuse of the Privacy Act that has been so
clear and so thoroughly and completely documented.
6
The evidence is compelling and unequivocal that both
the District Court and the Court of Appeals failed to
adhere to any and all requirements of the Privacy Act. If
we are to be a nation of laws that are respected we
cannot allow such defilation to go uncorrected. Such
acts offend the Constitution of the United States as it
provides for individual privacy. If the ruling of the Tenth
Circuit Court of Appeals is allowed to stand, it will
eviscerate a cornerstone of American democracy.
The Privacy Act implements one of our most
cherished fundamental rights. The Congressional intent
for this law is clear. “Privacy is a personal and
fundamental right protected by the Constitution of the
United States.” The stated Congressional intent is--to
provide everyone with the right to discover what
information is being collected on them by the
government. It requires that access be granted to that
information. It mandates that individuals be allowed to
correct or amend information about them. It requires
that “information cannot be used or made available for
another purpose without his [the individuals] consent.”
It requires that the information be used “for a necessary
and lawful purpose, fand] that the information is
current and accurate for its intended use, and that
adequate safeguards are provided to prevent misuse...”
In the case that Gowan has brought against the Air
Force, the Air Force has failed in all of its obligations
under the Law as stated by the Privacy Act of 1974. It
has failed to comply with its most basic obligation—to
coliect information directly from Gowan first. It has
created false records. It has covered up the truth by
failing to provide access and thus defeating the
amendment and_ statement oof disagreement
requirements of the Act. It has used the records for
purposes other than the ones for which they were
created. It has made unlawful disclosures of protected
records. It continues to use the records for unlawful
purposes. It has never made any attempt to assure
accuracy of the records it is maintaining nor to provide
the necessary safeguards required to prevent misuse. It
has never made any attempt to punish the individuals
who willfully violated Gowan’s privacy rights. Congress
intended that damages which result from such
violations, when willful and intentional, should be
recovered by civil suit. The mean-spirited Air Force
falsification of Gowan’s records, the persecution of
Gowan for performing his duty as an officer who
witnessed and reported violations of Title VII and fraud,
waste, and abuse; can be nothing but willful and
intentional violations of the Privacy Act. If the decisions
of the lower Courts are allowed to stand, the result shail
be continued Air Force contempt for the Privacy Act and
the protections it provides to all our citizens. Public Law
96-303, Code of Ethics for Government Service requires:
“IX. Expose corruption wherever discovered.” Gowan
was required by law to make the corruption he
witnessed known to the proper authorities, to which he
has testified. He met his obligation to his Country and
to the law. It is now the responsibility of the Court to
provide him with relief from the injuries he has suffered
in the performance of his duty. The Court of Appeals
and the lower court both failed to find any violation of
the Privacy Act and failed to provide any protection to
Major Gowan rights under the law.
I. Whether the Court committed reversible error
by failing to find that the "mean-spirited"
attack on Major Gowan for his advocacy of
civil rights was carried out through violations
of the Privacy Act of 1974.
The Court committed reversible error in holding that
Gowan failed to prove willful or intentional conduct on
the part of the Air Force attorneys who prosecuted
Gowan to prevent him from acting as a civil rights
advocate and from disclosing fraud, waste and abuse.
The actions the Air Force took against Gowan had no
basis in military justice. To carry out their plot they
intentionally created false records, untruthful
investigations, and unfounded rumors to discredit
Gowan’s character, destroy the unblemished record of
8
his career,-and ruin his business opportunities after
retirement. The records that they created in the process
were fabricated to create an imaginary “crime” to cover
up their real intent and to give them the protection of
the exemptions to the Privacy Act, enjoyed by all
legitimate military justice criminal prosecutions. There
never was a crime nor probable cause of a crime.
Therefore, their claim of protection under 5 U.S.C. §
552a(j)(2) exemptions for “criminal” investigations and
“criminal” reports is illegitimate and illegal. There was
an investigation, but that investigation found no
wrongdoing on the part of Gowan, and that investigation
rightfully falls under 5 U.S.C. § 552a{(k)(2) not (j)(2). 5
U.S.C. § 552a(k)(2) provides rights to the subject of the
investigation. It states: “That if any individual is denied
any right, privilege, or benefit that he would otherwise
be entitled by Federal law, or for which he would other
wise be eligible as a result of the maintenance of such
material, such material shall be provided to such
individual...” Gowan certainly had a right to have the
material since he was being deprived of the right to an
earned retirement and would have been deprived to his
freedom if the Air Force had succeeded in their plot.
The Air Forc: was ostensibly investigating Gowan’s off-
duty busizess activities, which had already been
disclosed co the Air Force and approved by the Air Force,
twice. Gowan also made a full disclosure to the FBI.
Brower, the Staff Judge Advocate, KAFB, was named as
a discriminating official by an employee that Gowan was
representing. In any case, the proper agency to be
investigating conflict of interest was the FBI. AFR 124-
12/DoD Directive 5525.7 (Plaintiffs exhibit 17)
describes a Memorandum of Understanding with the
DoJ that told the Air Force to refer suspected cases of
conflict of interest (18 U.S.C. 208) to the FBI for
investigation and prosecution. The Air Force allegation
to the OSI cited a violation of 18 U.S.C. 208. When the
FBI was informed of the actions by Brower, they opened
an obstruction of justice investigation against the Air
Force and their attorneys. Brower immediately
BEST AVAI
9
discovered a reason to dismiss the charges against
Gowan.
Men and women in uniform are subject to military
law and, as a consequence, are more vulnerable to loss
of due process rights than any other segment of our
society. While the military must be given enough
freedom to perform it duties, it must be held
accountable for conduct that is lawless. At the
conclusion of the District Court hearing on this case,
the Honorable Lorenzo F. Garcia, presiding, said:
This lawsuit does not concern negligent,
wrongful, or indeed intentional misconduct by the
United States Air Force, and particularly Kehl
and Steele. The tenacious and mean-spirited
pursuit of the groundless allegations of wrong-
doing irreparably tarnished Gowan’s otherwise
sterling reputation. Gowan, by virtually all
accounts, was a consummate professional,
dedicated Air Force officer, and a gifted scientist
who devoted his time, talents and energy to
further the interests of his country, and who
sought, at every instance, to do the right thing.
He complied with Air Force regulations, and
sought to avoid even the appearance of
impropriety. Like the biblical Job, Gowan was an
honorable man who did all that was required of
him, yet, he was rewarded for his efforts by
charges that he violated his responsibilities as an
Air Force officer and the regulations which he had
sworn to uphold. Rather than retiring with pride,
respect and admiration that were owed him, his
retirement was marked with disgrace and person
humiliation. Those responsible for the immoral
treatment afforded Gowan are immune under the
Feres Intra-Military Doctrine, Feres v. United
States, 340 US 135, 146, 71 S.Ct. 153 (1950).
The Air Force was only able to engage in this
"intentional misconduct", by violating the Privacy Act. If
ABLE COPY
10
they had gone to Gowan for the information as the Act
requires, in the first place, all issues would have been
resolved. If they had not intentionally falsified the
AFOSI report, all issues would have been resolved. If
they had properly provided access when it was first
requested, all issues would have been resolved. They
had no desire to resolve any issues; they were simply
bent on a cowardly attack, sanctioned by their authority
as Judge Advocates. The lower Court committed
reversible error when it concluded that the Privacy Act
provides no relief. It is stated in the Privacy Act that the
intent and purpose is to allow a “civil suit for any
damages which occur as a result of the willful or
intentional action which violates any individual’s rights
under this Act.” The United States Air Force cannot give
dispensation to its officers to act in an unlawful manner
nor should it protect them when they do so. The
Nuremberg Trials should be instructive in that regard.
I. Whether the Court committed reversible error
by failing to find that the Air Force creation
and maintenance of false records was a
violation of the Privacy Act of 1974.
The most damaging and unfounded statement in the
findings of the Court of Appeals is its statement that:
“Although the court may award damages, attorney fees
and costs upon finding that an agency intentionally and
willfully failed to maintain records with such accuracy
and completeness as to ensure fairness, ...the record on
appeal does not demonstrate that Major Gowan raised
this issue in the district court." This issue was raised
repeatedly and consistently in the District Court. The
first paragraph in the “General Nature of the Claim of
the Parties”, in the Pretrial Order addresses this issue.
It is also addressed in the Brief in Chief of the appeal to
the Court of Appeals.
The Appeals Court made a reversible error when it
failed to properly consider the statement of the Plaintiff's
contentions in the Pretrial Order. Gowan's Pretrial
11
Order makes a direct claim under "IV. Contested Issues
of Fact” and states: 11. Whether Defendant intentionally
failed to adequately maintain the Plaintiffs employment
records in accordance with the Privacy Act. "The General
Nature of the Claims,” Plaintiffs Contentions states:
“Plaintiff contends that Defendant, Department of the
Air Force, created false records and thereafter failed to
maintain accurate and complete records relating to his
activities and employment with Defendant, and
knowingly utilized such inaccurate and incomplete
records to promote and prosecute court-martial charges
against Gowan contrary to the Privacy Act. Plaintiff
further contends that Defendant improperly utilized
such false and inaccurate records, causing damage to
Plaintiff." Again, under contested issues of law, Gowan
contested: Whether Defendant's acts are in violation of
the Privacy Act, 5 U.S.C. Section 552a, et seq." All this
is contained in the Pretrial Order.
The Court erred in holding that Gowan was not
harmed by the OSI report. The Air Force violated the first
requirement of the Privacy Act by not collecting objective
information directly from Gowan. The Air Force admitted
to falsifying the OSI report by omitting exculpatory
information. Gowan was compelled to file suit to obtain
an amendment to the OSI report. The Air Force removed
its false statement asserting that Gowan's witnesses were
interviewed but had no information. The Air Force did not
determine which version of events was correct, but filed
its report with its own version of events. See, Doe v.
United States (1986) 251 App DC 54,781 F2d 907 reg gr,
vacated on other grounds, en banc 252 App DC 41, 786
F2d 1203, on reh 261 App DC 206, 821 F2d 694. (Duty
to amend by agency keeping copy of subject's rebuttal
together with allegedly false record; although the Act does
not require perfect accuracy, agency has a duty to
determine which version of events is accurate, and is not
free to include its agent's report in files without
concluding that it is accurate.) In Gowan's rebuttal, he
proved that falsifying the OSI report by omitting
exculpatory witnesses, caused him harm because the
12
intentional omission led to an opportunity for judge
advocate attorneys Brower, Kehl, Gampel and Ruppert, to
file false criminal charges against Gowan, which were
eventually dismissed when the “exculpatory” information
was considered by Brower. However, Gowan had already
knowledge of violation of law_Wisdom v. Dept of Hous. &
Urban Dev., 713 F2d at 425 (8th Cir. 1983.); Albright v.
United States, citing Parks, 732 F2d 181,189; (DC Cir. |
1984.) Moskiewicz v. US Dept. of Agriculture, 791 F2d ;
561, , $64.00 Cir.1986); Parks v. IRS, 618 F2d 677 (10th
statements in that letter or any of the other Air Force
letters Gowan has brought to the attention of the Court.
Both the Trial Court and the Court of Appeals erred when
they failed to hold that the Air Force failed to maintain
by failing to find that the Air Force failed to
collect information to the greatest extent
practicable directly from Major Gowan end in
so doing violated the Privacy Act of 1974.
The Court of Appeals erred in holding that Gowan
failed to raise the claim that the Air Force violated the
mandate of the Act to obtain information directly from
him. Claim for failure to adequately maintain records
gives rise to cause of damages. Wren v. Harris (CA10
NM) 675 F2d 1144. 5 U.S.C. § 552a(a)(3) provides that
—L—<—<—_—-= —
13
the term “maintain” includes maintain, collect, use, and
disseminate. See argument in Question II showing that
the claim of failure to maintain is in the Pretrial Order
and throughout Gowan’s case. Contrary to the holding of
the Court Gowan did properly raise the issue of the Air
Force duty to obtain information from him and
consequently the Court erred by failing to consider
Gowan’s claim.
Not only did the Pretrial Order clearly raised the issue
with the lower court, it was also considered by the lower
court as is reflected in the findings of fact (D-71). The rule
regarding the effect of a pretrial order was set forth in,
jillo v. ., 608 F2d 815 (10th Cir.1979).
("A definitive pretrial order reflecting the agreement of the
parties, having been entered into after full discovery,
must, of course, control the subsequent course of the
action. F.R.Civ.P. 16{6).”)
The Air Force did not comply with 5 U.S.C. § 552afe}(2)
to obtain the information it sought “directly from the
subject individual” Instead the Air Force immediately
launched a criminal attack against Gowan which
produced numerous false and damaging records
concerning him. The evidence shows that the information
was available from Gowan and that it would have averted
the investigations that created the false records. If the
AFOSI had told the truth and created a complete and
accurate record the document would have prevented any
further inquiry. Instead the AFOSI lied in their report by
declaring that Gowan's witnesses had been interviewed
but had no pertinent information. In fact, the witnesses
testified to having exculpatory information at trial,
which, would have prevented the court martial charges
and the ensuing damages. Waters v. Thornburgh, 888
F2d 870, 873 (DC Cir 1989). (The Court ruled that the
Justice Department violated section (e)(2) when it
contacted the Pennsylvania State Bar to determine if an
employee had actually taken the bar exam, but did not
first contact the individual directly in an effort to get
definite proof from him. The Court specifically rejected
14
the argument that doubts about plaintiffs credibility
justified seeking information first from a third party,
noting that "in the context of an investigation that is
seeking objective, unalterable information, reasonable
questions about a subject's credibility cannot relieve an
agency from its responsibility to collect that information
first from the subject.")
The Court of Appeals sites the Privacy Act at 5 U.S.C.
§ 552a(e)(2) saying: "Each agency that maintains a
system of records shall...collect information to the
greatest extent practicable directly from the subject
when the information may result in adverse
determinations about an individual's right, benefits, and
privileges under Federal programs. “The district court
may award damages, attorney fees, and costs for an
intentional and willful violation of Section 552 (e)(2) that ;
results in an adverse effect on the plaintiff." The Court
of Appeals held: That Gowan did not include this issue
in the pretrial report, and so it was not part of the case
before the district court." The definition at 5 U.S.C. §
552a(a)(3) and the Pretrial Order show the error of that
statement. The Appeals Court erred as a matter of law.
In fact, the Plaintiffs Brief in Chief again raises the
issue at 5. The record shows that all the information
collected about Gowan was derogatory and had an
adverse effect on Gowan's career. The Trial Judge was
compelled to note that Gowan was damaged by acts of
the Defendant Air Force. Judge Garcia states: "The
tenacious and mean-spirited pursuit of groundless
allegations of wrong-doing irreparably tarnished
Gowan's otherwise sterling reputation.” The "groundless
allegations” against Gowan were dropped when the Air
Force found their thinly veiled reprisal had made them
the subject of an obstruction of justice investigation by
the FBI. The Judge Advocate officers then went to
Gowan and obtained the information. They quickly
claimed it was exculpatory. Had this been done when it
was required by the Privacy Act, all of the subsequent
problems and this litigation would have not been
necessary. The Appeals Court erred when it failed to
15
find the Air Force committed a willful and intentional
violation the Privacy Act by refusing to collect
information, directly from Gowan in the first place.
IV. Whether the Court committed reversible error
by failing to find that the Air Force failed to
grant access, amendment, and the right to file
a statement of disagreement to Major Gowan
and in so doing violated the Privacy Act of
1974.
The Court of Appeals erred in holding that the
“Ethics” file, containing personal information about
Gowan, and used to initiate a number of adverse
investigations, did not constitute a privacy record
pertaining to Gowan. This holding is contrary to
common law. In Chapman v. National Aeronautics and
Space Administration. 682 F2d. 526 (5t Cir., 1982), the
Fifth Circuit concluded that a supervisor’s purely private
notes related to the qualifications of an individual to
maintain employment were subject to all aspects of the
Privacy Act once reliance had been placed on the notes
by the agency to consider Chapman’s discharge:
It is uncontroverted that the subject notes played
a part in Chapman’s discharge. We make neither a
qualitative nor quantitative analysis of this use,
confining ourselves to the observation that the notes
in fact were involved in the decision to termination
Chapman’s employment...When Phinney tendered
his notes to Hall for use by NASA in proceedings
looking to the discharge of Chapman, the private
aspects of the notes evanesced and they became
subject to the requirements of the Privacy Act.
Chapman, at 528-529.
The Fifth Circuit concludes by noting that when
private notes bear negatively on a worker’s employment
status or situation, such notes must be handled in a
manner consistent with both the letter and the spirit of
the Act. Chapman, at 529. The Eleventh Circuit in
16
Boyd v. Secretary of the Navy, 709, F2d. 684 (11% Cir.,
1983) cert. Den’d, 104 S.Crt. 709, 464 US 1043, 79
L.Ed.2d. 173, reiterates the rule. A supervisor’s private
notes on an employee “must be kept private, and cannot
be used in decision affecting the employment statue of
the employee.” Boyd, at 689. In the instant case, the
record is replete with references to use by the Air Force
of Kehl’s “Ethics” file in determinations relating to
Gowan’s employment rights and privileges. The Air
Force considered off-duty employment a privilege,
subject to Air Force approval or denial. The “Ethics” file
was a product of, and was utilized to determine the
propriety of §Gowan’s off-duty employment.
Subsequently, the “Ethics” file was used to determine
cause to prefer criminal charges by the Air Force against
Gowan. The “Ethics” file was used by Brower to respond
to the MAC Judge Advocate inquiry about Gowan.
Finally, the “Ethics” file was used by Elder to oppose
Gowan in EEO and civil rights proceedings at KAFB.
Given the official use of the file in at least three
instances where Gowan’s rights, benefits, and privileges
were determined, the Air Force had an obligation to
maintain the “Ethics” file in a system of records.
Further, the “Ethics” dossier was widely used and
disseminated from October, 1987, to January, 1994,
before it was finally released to Gowan. The failure to
identify and release this file to Gowan for more than six
years is a willful and intentional violation of the Act. It
was only disclosed to Gowan just before the trial in the
lower court in 1994. These acts alone entitle Gowan _to
the award of damages, costs, and attorney’s fees. Cuneo
v. Rumsfeld, 553 F.2d 1360 (DC Cir. 1977).
The Court of Appeals erred by failing to find that
Gowan was denied access to documents that he was
properly entitled to under the Privacy Act. Without
access there was no possibility of amendment. Even
when the information was eventually provided as a
result of the law suit, amendments and statements of
disagreement were denied. The Air Force was required
to timely respond to Gowan’s request for access,
17
amendment and statement of disagreement requests
and describe procedures available for the review and
challenge of a refusal. 5 U.S.C. § 552a(d)(2)(Ajand(B).
See Baker v. Dept of Navy, 814 F2d at 1384, 1385.
Release of the “Ethics” file 4 years after it should have
been properly released is a gross violation of the Privacy
Act time requirements. Kehl claimed that there was
other information in this file that did not concern Gowan
The Court relies on the self-serving statements of a
former officer, who was allegedly forced from the service
for falsifying official records, to resolve the issue. They
could have just a easily referred to the testimony of
Ruppert, the Pentagon Judge Advocate who testified
about the "Ethics File" at P109 of his testimony. He
said that all the documents in that file concerned
Gowan and that Kehl told him that he had compiled
them on Gowan. (Appendix C, a.)
The Appeals Court made a reversible error in
determining that the documents contained in the
“Ethics” file did not constitute a system of records, as
defined by the Privacy Act. “ The US Court of Appeals for
the DC Cir has recently relied on retrieval in practice
and not retrieval capability as being essential in order
for a system or records to exist. See Henke, 83 F.3d at
1460 n.12. The records in the "Ethics” File, the OSI file
and the IG file were documents concerning Gowan
alone. In the instant case, the Appeals Court said: "We
recognize the possibility that an unscrupulous person
may try to mask a record properly subject to the Privacy
Act by labeling it with a generic code word that
effectively acts as a ‘personal identifier."" The evidence is
clearly there that shows this possibility to be reality in
this case. The Appeal Court chose to ignore it.
Gowan has not abandoned his claims regarding any
of the Air Force failures to properly amend or to properly
attach a statement oi disagreement to documents that
the Air Force refuses to properly amend. The Court of
Appeals states that: "In its brief the Air Force submits
that it is willing to and will attach statements of
18
disagreement to the Nameth and Brower letters. In light
_ of this representation, we assume that the Air Force has
or will immediately voluntarily comply with the Privacy
Act and attach Major Gowan's. statements of
disagreement to the Nameth and Brower letters." With
that statement the Court disposes of the entire issue.
After years of failure to correct the numerous false
statements and their failure to attach the mandatory
statement disagreement the defendant is now not only
offering to add the statements of disagreements, but
threatening to do it for Gowan, if he does not submit
them immediately. There is no Privacy Act provision
that would allow the agency to insert a statement of
disagreement into a person's records, against his will.
This act shows the Air Force’s callous disregard for the
law that is prevalent throughout this case.
The Court of Appeals ruled that: "Before 1990, however,
the Air Force did not permit amendment or the inclusion
of statements of disagreement when the objectionable
material was an opinion or subjective belief." The
implementing Air Force Regulation was in direct conflict
with the law as stated in the Privacy Act of 1974. The
Privacy Act makes no such provision for denial of a
statement of disagreement. The Court of Appeals held
that: ..."The Privacy Act clearly grants individuals the
right to seek agency review of a denial of a request to
amend, to file a statement of disagreement, and to seek
judicial review of the agency's determination. See 5
U.S.C. § S52a(d}{(3), (g){1)(A). Therefore, any Air Force
policy that provides to the contrary would be invalid
under the Act." The testimony of the Air Force Privacy
Act Manager, Anne Rollins is instructive on this matter.
She testified that Gowan was absolutely right
concerning statements of disagreements and that the Air
Force changed its policy to make it consistent with the
Act. (Appendix C, b.)
The Air Force claim that Gowan had no right to
amend because the requested amendments were
subjective and also their refusal to allow a statement of
19
disagreement are clear violations of the Privacy Act. Any
regulation to the contrary is invalid as stated by the
Appeals Court. The Privacy Act did not change in 1990.
Air Force attempted to bring regulations into compliance
with the law as a result of this litigation during 1990.
The Appeals Court clearly committed reversible error in
not finding the Air Force denials to be a violation of the
Privacy Act.
The Court erred in holding that the OSI report was not
subject to amendment because it was claimed to be
exempt as a law enforcement record. The OSI's function
is not that of law enforcement merely because it conducts
"investigations." ("Records maintained in Central Records
System of FBI are not exempt from demands of Privacy
Act since record simply by virtue of fact that the function
of the FBI is law enforcement, rather characterization of
records at issue turns upon type investigation involved,
further if Congress had wanted to exempt entire filing
system of FBI from Privacy Act it could have done so.")
Vymetalik v. FBI, (1986) 251 App DC 402, 785 F2d 1090.
Further, there is ambiguity in the language of the Privacy
Act at 5 U.S.C. § 552a{j)}(2), exempting "law enforcement
agencies," whose principal function is law enforcement
and the Court must determine if "the statutory scheme is
coherent and consistent." United States v. Ron Pair
Enterprises, Inc., 489 U.S. 253, 240 (1989). The
plainness or ambiguity of the statutory language is
determined by reference to the language itself, the specific
context of the statute in which the language is used, and
the broader context of the statute as a whole." Robinson
v. Shell Oil, Supreme Court Case No. 95-1376, decided
February 18, 1997. The Air Force in fact amended the
OSI report to delete false information because the
investigative report is not exempt from the demands of the
Privacy Act, even if the Court held to the contrary. There
is ambiguity in the Act's definition of law enforcement and
the Supreme Court must resolve it. ("We are left to
resolve that ambiguity.") Robinson at 8. The OSI and
Inspector General reports must be released to the target
of the investigation, as mandated by 5 U.S.C. § 552a(k)(2),
20
albeit minus_ confidential material. Hernandez __v.
Alexander, 671 F2d 402 (10th Cir. 1982). The Air Force
has never claimed a confidential source was involved.
V. Whether the Court committed reversible error
by failing to find that the Air Force did not
make a reasonable effort to assure that
records were properly protected and that they
were accurate, relevant and complete before
they were used or disseminated and in so
doing violated the Privacy Act of 1974.
The Trial Court and the Appeals Court erred by
failing to conclude that the Air Force willfully and
intentionally disclosed the charge sheet and information
derived from the charge sheet to persons not authorized
to receive it, in violation of the Privacy Act, thus causing
Gowan injury. It is not disputed that the charge sheet
was in a system of records (Conclusion of Law 46). The
Federal Register at F111 AF JA/B instructs that
offenses charged (the charge sheet) are: "accessed by
custodian of the record system and person(s) who are
properly screened and cleared for need-to-know.
Records are stored in vaults and locked cabinets or
reoms. Records are protected by guards, and controlled
by personnel screening and by visitor registers.
Exemptions claimed for the system: None." The Court
of Appeals held correctly: "We disagree with the district
court's conclusion that a matter of public record is not
subject to the provisions of 5 U.S.C. 552a(b).” The
entire compilation of records maintained on Gowan in
the attempt to discredit and punish him for acting as a
civil rights advocate never rose past the level of
allegations. No Article 32 hearing was ever conducted to
determine whether or not evidence was sufficient to
proceed to a courts martial. All of the false charges were
unconditionally dropped by the Air Force. This did not
stop the Air Force Judge Advocates from disclosing false
and misleading information to the Wyoming Bar, the
Texas Bar, Gowan's co-worker in the Air Force
21
Laboratory, to the EEOC, or to Senators Wallop, Nunn,
and Bingaman in direct violation of the 5 U.S.C. §
552a(b). The Air Force had a responsibility to maintain
truthful and accurate records 5 U.S.C. § 552a(5) and (6).
See Doe v. United States (1986) 251 App DC 54,781 F2d
907, reg gr, vacated on other grounds, en banc 252 App
DC 41, 786 F2d 1203, on reh 261 App DC 206, 821 F2d
694. (Duty to amend by agency keeping copy of subject's
rebuttal together with allegedly false record; although act
does not require perfect accuracy, agency has duty to
determine which v“-sion of events is accurate, and is not
free to include its agent's report in files without
concluding that it is accurate.) It was the responsibility
of the Air Force to: 5 U.S.C. § 552a(6) prior to
disseminating any record about an individual to any
person other that an agency, make reasonable efforts to
assure that such records are accurate, complete, timely,
and relevant for agency purposes. Transmitting records
which they knew were false 13 a violation of the Act.
Refusing to let Gowan correct them under his Privacy —
Act rights left the false information in the record for
years. The Trial Court failed to consider the intentional
and willful intent of Kehl, et al., in his disclosure of the
charges to Elder and others, relying instead on a non-
existent "public records" exception. The Court of
Appeals was not convinced by the Trial Court's
argument when it cited US Dep't of Justice v. Reporters
Comm. For Freedom of the Press, 489 US 749, 762-64
(1989). The Appeals Court held that: "We adopt the
Third Circuits reasoning and hold that an agency may
not defend a release of Privacy Act information simply by
stating that the information is a matter of public
record." Both Courts erred by failing to protect or act to
preserve Gowan's privacy rights and find a violation of 5
U.S.C. § 552a(b). There were findings that disclosures
occurred by both Amor and Elder but the Court
erroneously held that there had been no violation of the
Privacy Act. A disclosure under 5 U.S.C. § 552a(b} does
not need to be intentional or willful to be a violation.
The Apr als Court erred by requiring that the disclosure
be wi.iul or intentional. The Appeals Court also erred
22
by failing to find that the information disclosed to the
Senators was known to be false and a violation of the
Privacy Act at 5 U.S.C. § 552a(e)({6).
The AFOSI report of investigation found no
wrongdoing by Gowan but was intentionally falsified.
The report stated that witnesses such as MacMullen and
Hoyt had been interviewed when they had not. The Air
Force Board of Corrections, years after a request for
correction by Gowan, and just prior to the District Court
hearing, acknowledged that several witnesses had not
been interviewed. They did nothing else to correct the
record. The Burton testimony was that they had lost
and loaned (to the IG) the record and had reconstructed
it for their review of Gowan's request for correction.
Burton, from the Board of Correction, testified that the
JAG advised them on their ruling. Judge Garcia
observed that Gowan’s complaint was against the JAG
and said that that was like “asking the fox to guard the
hen house.” Burton agreed. (Appendix C, c.)
Hoyt and MacMullien provided extensive testimony to
the District Court that would have prevented the Air
Force from forming the charge specifications against
Gowan. The testimony of Ruppert, a Pentagon Judge
Advocate, brought into the case by Brower, clearly
shows that Privacy Act protected records are routinely
falsified. It also shows that the reason for the
falsification is to prevent a truthful release to a person
requesting access. (Appendix C, d.)
The lower court and the Appeals Court committed
reversible error by not holding that the Board of
Correction process was used by the Air Force to subvert
the intent of the Privacy Act.
The lower court erred as did the Appeals Court by
failing to acknowledge and hold that the “cooking-the-
books” observation of Judge Lorenzo Garcia (Appendix
C, d.) constitutes a serious violation of the Privacy Act.
23
VI. Whether the Court committed reversible error
by failing to find that Major Gowan's First and
Fourth Amendment Constitutional rights have
been violated by the Air Force collection and
maintenance of record which show how he
exercises those rights and in so doing violated
the Privacy Act.
The Court erred in failing to find that Gowan’s
Constitutional rights under the First and Fourth
Amendments were not violated. The Privacy Act at 5
U.S.C. § 552a (e)(7) provides that each agency that
maintains a system of records “maintain no record
describing how an _ individual exercises rights
guaranteed by the First Amendment...” Gowan proved
that a file was kept illegally by Air Force attorneys Elder
and Brower and used to discredit Gowan in the
performance of his protected activities. Some testimony
from the District Court hearing is so damaging to the Air
Force that it must be directly reviewed to understand
the magnitude of the contempt for the Privacy Act
displayed by the Air Force. The testimony of George P.
Elder, an attorney who has been opposing Major Gowan
advocacy for civil rights for over ten years, is such
testimony. The questions are posed by the Air Force
counsel. (Appendix C, e.) This is specifically forbidden
by the Privacy Act at 5 U.S.C. § 552a(e)(7): "maintain no
record describing how any individual exercises rights
guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about who the
record is maintained..." Both Courts committed
reversible error in not finding the Air Force violated the
Privacy Act at 5 U.S.C. § 552aj(e)(7).
The Court of Appeals erred in not considering Gowan's
First Amendment claims and ruling that Air Force did not
violate subsection (e)(7). Albrieth_v. United States, 732
F.2d at 187 (DC, 1984). Subsection (e}(7) provides that an
agency must "maintain no records describing how any
individual exercises rights guaranteed by the First
Amendment.” 5 U.S.C. § 552a(e)(7) applies to a "record"
24
even if it is not incorporated in a “system of records.”
Clarkson v. IRS, 678 F2d 1368, 1374-77 (11th Cir.1982);
Albrigth at 918-20. Under 5 U.S.C. § 552a(e)}(7) general
monitoring of associations is illegal unless pertinent to
and within scope of authorized law enforcement activity.
Irons v. Bell (1979, CA 1 Mass) 596 F2d 468. Brower and
Elder have compiled information about LIBERTAD, and in
particular Gowan and Hernandez, to illegally monitor
their association with government employees.
In this case, the Staff Judge Advocate, Lt Col Charles
L. Brower left the entire record of the attempted courts
martial for Elder so that he could use it to oppose
Gowan on EEO matters. Elder has had the records for 8
years and continues to use the illegally collected records
to “tarnish” Gowan's reputation with each new
commander, judge advocate, and US attorney. This file
has become an illegal record, not authorized by the
Federal Register, which is used to show how Gowan
exercises his First Amendment rights. Staff attorney
Elder admitted in trial testimony to taking Gowan's
court's martial records from staff judge advocate Brower
and keeping them for the purpose of disclosing to anyone
how Gowan exercised First amendment rights. Further,
Elder improperly maintained said records and caused
harm to Gowan. (A record may be improperly
“maintained” if its is improperly collected, independent of
its subsequent use or dissemination.) Albrigth v. United
States, 732 F.2d at 919. The Act does not define
disclosure, leaving the meaning of that term to case law
development. Krowitz v. Dept. of Agriculture, US Forest
Service, 641 F Supp 1536, 1542 (WD Mich 1986).
Generally courts have read the term in connection with
the Act's purpose “to preclude a system of records from
serving as the source of personal information about a
person that is then disclosed without the person's
consent. (emphasis in the original) Olberding v. Dept of
Defense, 564 F Supp 907, 913 (SD Iowa 1982), affd, 709
F2d 621 (8th Cir 1983). Oral disclosures from memory
are included within the disclosure restriction. Fitzpatrick
v. IRS, 1 GDS para. 80.232 (ND Ga. 1980), affd in part,
25
vacated and remanded in part, 665 F2d 327 (11th Cir
1982). Elder's use of Gowan's records was not "routine
use." A "routine use" is defined in subsection (a)(7) to
mean "with respect to the disclosure of a record, the use
of such record for a purpose which is compatible with the
purpose for which it was collected." Swenson v. US Postal
Service, 890 F2d 1075 (9th Cir 1989). Subsection (e)(4)(D)
requires that each "routine use” be published in the
Federal Register, at least ually, for each system of
records. Thus, "the scope of routine uses is confined by
the published definitions." Doe _v. Naval Air Station
Pensacola Fla., 768 F2d 1229, 1231 (11th Cir 1985).
Covert v Covert v Herrington, 876 F2d 751 (9th Cir 1989. (The
Court found a disclosure improper because the agency
had not provided an appropriate routine use listing on the
form used to collect the data.)
According to the Analysis of Compromise
Amendments, the "routine use" exception was included to
permit the nonconsensual intra or inter agency transfer of
information where such transfer was for "housekeeping"
or was "necessarily frequent," but also was intended "to
discourage the unnecessary exchange of information to
another person or to agencies who may not be as sensitive
to the collection agency's reasons for using and
interpreting the material." Source Book at 850. (The
legislative history of the Act is exhaustively collected in
the Legislature History of the Privacy Act of 1974, S. 3418
(Pub. L. 93-579): Source Book on Privacy, Joint
Committee Print of Senate and House Committees on
Government Operations, 94th Cong., 2d Sess., September
1976 (hereafter "Source Book").
VII. Whether the Court committed reversible error
by failing to find that Major Gowan
substantially prevailed in the action brought
the Air Force and whether financial
and emotionally damaged was caused by Air
Force violations of the Privacy Act of 1974.
26
The Court erred in holding that Gowan was not
entitled to attorney fees and costs because he did not
substantially prevail and had not proven willful or
intentional conduct in violation of the Act. In deciding
whether a party has substantially prevailed, a court
should consider whether the “prosecution of the action
could reasonably be regarded as necessary to obtain the
information” and whether “the action had a substantial
causative effect on the delivery of the information.” Lovell
v. Alderete, 630 F2d 428, 432 (Sth Cir. 1980). If a party is
found to have substantially prevailed in the litigation,
then the court must exercise its discretion in determining
whether an award is justified." Clarkson v. IRS, 678 F2d
1368, at 1371 (11th Cir 1982).
The Court erred in failing to find evidence of willful or
intentional conduct by Air Force attorneys. The trial
court and the 10th Circuit of Appeals erroneously denied
Gowan's Privacy claim for damages. The Air Force
conduct clearly met the willful or intentional standard
adopted by the Tenth Circuit Court of Appeals. See
v. , 838 F.2d 418, 425
(10thCir. 1988) (We are persuaded by the District Court of
Columbia's Circuit's definition of willful or intentional that
it ‘unlawful, Laningham v. United States Navy, 813 F.2d
1236 at 1242). The conduct of the Air Force attorneys,
Brower, Gampel, Khel, and Ruppert, who engaged in
27
did Brower seek the exculpatory business contract and
public domain, journal articles from Gowan which proved
that Gowan had done nothing wrong. The exculpatory
information was always available to Kehl, even before he
asked for the OSI investigation. It was also attached to
the final OSI report. The OSI report was intentionally
falsified by excluding Gowan's witnesses, but reporting
that they were interviewed but lacked exculpatory
activity in the Air Force and was cooperating with the FBI
in disclosing Air Force fraud, waste and abuse. But the
damage was already done. Gowan's character and
reputation were blemished by the false and damaging
reports fabricated by Air Force attorneys. His business
associates withdrew their economic support and Gowan's
private business lost approximately $13.3 million in
business opportunities as a result of the egregious
conduct of the Air Force attorneys, contrary to Privacy
Act. Gowan's discharge from the Air Force was delayed
and prevented his expertise from being available to work
in the partnership. But the damage did not end there.
After the baseless court's martial charges were dismissed,
the identical information alleging criminal violations by
Gowan was released by Air Force attorneys to top level Air
Force officials and Congressional Offices to further
damage, discredit, and embarrass Gowan. His requests
to the Air Force to expunge the false information or to
attach his statements of disagreements were ignored. The
OSI report took about 4.5 years to be amended, but was
done only as a result of Gowan's Privacy Act lawsuit.
Thus, the 10th Circuit Court of Appeals erred as a matter
of law in denying Gowan's claims for damages for
intentional violation of his privacy rights granted to him
by the Privacy Act and the Fourth Amendment to the US
Constitution.
The Court of Appeals erred by not holding that
Gowan substantially prevailed in this litigation. Many of
the documents released by the Air Force were released
28
after and because of the filing of this litigation, including
several hundred documents released 3 Oct 1996 by the
Air Force General Counsel relating to an Inspector
General investigation. The records supplied were a
partial release of documents first requested on 29 Jan
90. Two amendments to documents, the AFOSI report
and an Air Force letter to Congress, were also made in
response to the filing of this litigation. The AFOSI
document was changed to show that witnesses who
were said to have been interviewed were not interviewed.
The letter to Congress from Col Joseph L. Nameth,
Office of Legislative Liaison, was amended to show that
there was never “a prima facie case of fraud" against
Gowan and that an Article 32 hearing was never held.
The week prior to the District Court hearing the Air
Force finally released the "Ethics" file to Gowan. The
information in that file was first requested on 19 Oct 88.
As can be seen from the testimony of Air Force Privacy
Act Manager, Rollins, these records were required to be
released at the time they were requested. A statement of
disagreement was also added to the Alison letter to
Congress. (The Air Force failed to even respond to
Gowan's request for amendment, dated 24 Aug 89, until
30 Jul 91.) The Air Force made and effort to reconstruct
Gowan's request for records correction to the Air Force
Board of Correction for Military Records and made a
ruling in response to this litigation.
According to Air Force testimony, the AFOSI report
was amended 4.5 years after the request by Gowan and
only because of the litigation in the District Court.
Burton's, AFBCMR, relevant testimony said that 4
names were deleted from the list of those interviewed,
including Hoyt and MjajcMullen. He claimed that the
file was loaned to the IG, inexplicably, and forgotten for
4.5 years. He testified that his boss found about the
litigation and wanted him to get the AFBCMR to “make a
ruling before the Court did.” (Appendix C,f.) Besides
showing that the AFOSI report is subject under the
Privacy Act, Gowan showed that the AFOSI report is not
a law enforcement record. Law enforcement records
29
cannot be corrected by the AFBCMR. Gowan also
showed that false statements in the report were deleted
4.5 years following his request. The damage to Gowan's
reputation and to his business had already occurred
and arguably could have been prevented had the AFOSI
report properly been amended within the 30 day time
requirement of the Privacy Act. If the report had been
amended, further investigations by the Judge Advocates
would not have been possible. Those secondary
investigations led to the courts martial charges and
cancellation of Gowan's retirement date. These actions
caused Gowan's business partners to withdraw from the
partnership. According to the uncontroverted trial
testimony of MacMullen, an officer in the SM Stoller
Corporation, and Rondeau led to business losses of
some $13.3 million. District Court Finding of Fact No
87 states exactly: "The delay in Gowan's retirement was
viewed as the last straw for Stoller [Corp]. The OSI
investigation had interfered with and delayed the
marketing plans. Now, with the delay in Gowan's
retirement, and indeed, prospect of a court-martial,
Stoller pulled funding for the development and
marketing of Conspectum A/S products [Gowan's
marketable products] in February 1988. Thus, Gowan's
economic prospects were materially and adversely
affected."(Quotation froza the Honorable Lorenzo Garcia.)
It is also shown from the testimony of Rollins that
Gowan's lawsuit cause the Air Force to change its
regulation to provide for the mandatory inclusion of a
statement of disagreement to a record. This change not
only benefited Gowan, it benefited the entire Air Force.
Gowan should be able to recover damages, costs and
attorney fees for this litigation.
Claim for failure to adequately maintain records gives
rise to cause of damages. Wren v. Harris (CA10 NM)
675 F2d 1144. The AFOSI lied in their report by
declaring that Gowan's witnesses were interviewed but
had no pertinent information. In fact, the witnesses
testified to exculpatory information at trial, which, had it
30
been included, would have prevented the court martial
charges and the ensuing damages.
The compilation and dissemination of false
information used against Gowan to prefer court martial
charges and conduct investigations into his private
business, damaged Gowan's reputation and his
business opportunities and exposed him to ridicule from
his commanders and the Congressional offices. As it
was stated by the District Court trial judge: “Rather
than retiring with pride, respect and admiration that
were owed him, his retirement was marked with
disgrace and personal humiliation."
Conclusion
For the reasons stated, the petition for a writ of
certiorari should be granted. The numerous violations of
the Privacy Act which harmed Gowan resulted from the
Air Force attorney’s willful and intentional refusal to
obtain objective, exculpatory information directly from
him, 5 U.S.C. § 552a(e)(2). If the motives of the Air Force
attorneys were reasonable and objective and their
intention was protect and promote the best interest of the
Air Force, they would have simply asked Gowan for the
two or three documents that they eventually got from him
and never opened a case. Instead, they falsified records
and then prevented Gowan from gaining access to them
while they destroyed his career by violating every
paragraph and every intent of the Privacy Act.
espectively submitted,
“JOHN G. GOWAN
Pro Se
12520 Iroquois Pl] NE
Albuquerque, NM 87112-4725
(505) 292-8676
A-1
Appendix A -- Opinion of the United States
Court of Appeals, Tenth Circuit, Dated 17 July
1998
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN G. GOWAN,
Plaintiff-Appeliant,
v.
| No. 96-2134
UNITED STATES DEPARTMENT OF THE AIR
FORCE,
Detendant-Appeliee.
Appeal from the United States District Court
: for the District of New Mexico
(D.C. No. CIV 90-94 LFG)
E. Justin Pennington, Law Offices of E. Justin Pennington,
Albuquerque, New Mexico, for Plaintiff-Appeliant
Maria Simon, Department of Justice, Washington, D.C. (Leonard
Schaitman, Department of Justice, with her on the briefs), for
Defendant-Appeliee.
Before EBEL, Circuit Judge, MCWILLIAMS, Senior Circuit Judge, and
HENRY, Circuit Judge.
EBEL, Circuit Judge.
Retired Air Force Major John Gowan appeals the district court's
judgment against him in this Privacy Act suit. We affirm.
BACKGROUND
Major John Gowan ("Major Gowan") was an Air Force officer whose
area of expertise was high-energy laser optical materials and
technology. One of his duties was to keep current on technological
improvements that may have military value. In 1982, Major Gowan
reported to the Air Force a breakthrough improvement in the detection
of structural flaws in materials - a method known as electronic speckle
pattern interferometry ("ESP!") - which enabled the scanning of a
component for defects without having to destroy the test subject
Major Gowan, howeve’, was unable to interest the Air Force in
evaluating ESP! for possible future use.
in 1986, while stationed at Kirtland Air Force Base in New Mexico,
Major Gowan requested the privilege of off-duty employment with
Applied Optical Systems, Inc. ("AOS"), a New Mexico corporation
formed to research and market optical-related technologies, including
ESPI. His request was approved by Major Randall Kehi ("Major
Kehi"), Deputy Staff Judge Advocate at the Kirtland Air Force Base
legal office. Later in the year, following a transfer to a different
department, Major Gowan made a second request for off-duty
employment with AOS. This request was approved by Major Kehi and
by Major Gowan's squadron commander, Lt. Colonel Richaid Steele
("Lt Colonel Steele”).
Through a subsidiary AOS marketed the RETRA 1000, a device that
employs ESPI technology. Eventually the Air Force expressed interest
in purchasing the RETRA 1000. Major Gowan was concerned about
possible conflicts of interest. At Major Kehi's suggestion, Major
Gowan disclaimed any direct or indirect financial benefit accruing from
the Air Force's purchase of the RETRA 1000 from AOS.
Major Kehi still felt there might be a potential ethics problem. In the
summer of 1987, he instigated a Kirtland Air Force Base Office of
Special Investigations ("Kirtiand OSI") inquiry of Major Gowan. The
Kirtland OSI investigated Major Gowan's connections with AOS, but
its report indicated no violations of law or regulations. Major Kehi,
however, believed additional inquiry was necessary. He kept personal
notes and legal research in a file marked "Ethics" in his desk drawer.
The file did not distinguish anyone by name or other personal
identifier. He also asked military attorney Major Mark Ruppert ("Major
Ruppert’) to investigate Major Gowan. Major Ruppert reviewed Major
Kehl's Ethics file and the Kirtland OSI report, investigated AOS and
ESPI technology, and, with the assistance of military attorney William
Gampel ("Gampel"), interviewed Major Gowan's business partner
Daniel Rondeau, also a member of the Air Force. He did not interview
Major Gowan.
Major Ruppert found reason to believe Major Gowan had violated Air
Force regulations regarding standards of conduct and recommended
that charges be preferred against him. Gampel set up an attorney
working file, kept neither by Major Gowan's name ncr his social
security number, with the papers collected by Majors Kehi and
Ruppert Lt Colonel Steele signed the preferral of charges in January,
1988.
Major Gowan had been scheduled to retire from the Air Force on
February 29, 1988, but the legal proceedings delayed his retirement
As a result of the delay, the corporation which had funded AOS's
products pulled out of the agreement it had concluded with AOS. In
addition, the charges became a topic of conversation at Kirtland Air
Force Base. Colonel John P. Amor (“Colonel Amor”), Major Gowan's
commanding officer, disclosed the preferral of charges against Major
Gowan to certain of his staff, as well as possibly other Air Force
personnel, during a telephone conference.
Knowledge of the charges also spread further than among Air Force
personnel. At Kirtland, Major Gowan had befriended Dr. Thomas Hill,
who was involved in litigation against the Air Force. Major Gowan
involved with Hill's case. Just before charges were preferred
nst him, Major Gowan complained to the Wyoming Bar that David
Hickman ("Hickman"), one of the Air Force's attorneys in the Hill case,
had tampered with a signature on a deposition. As part of the
response te Major Gowan's complaint against Hickman, the Air
Force's second attorney, George Patrick Elder (“Elder”), provided a
copy of Major Gowan's charge sheet to the Wyoming Bar to provide
context *» rebutting Major Gowan's charges. Major Gowan, not
knowinc, j\at Elder had released the charge sheet, also informed the
bar of the charges against him.
After Major Gowan's civilian counsel pointed out that Major Gowan
had not received improper payments from AOS and that ESPI
technology had been publicly available for over a decade, Lt. Colone!
Brower and Gampel recommended withdrawing the charges. Major
Kehi and Lt Colonel Steele disagreed, but the charges were
withdrawn on March.22, 1988, and Major Gowan was cleared for
retirement Because Lt Colonel Steele was dissatisfied with the
withdrawal of charges, however, he called an anonymous fraud,
waste, and abuse hotline run by the Air Force Systems Command
Inspector General (‘AFSCIG") and reported Major Gowan's stand
improprieties. The call resulted in an inquiry to the Air Force Military
Airlift Command Judge Advocate ("MACJA"), who in turn consulted Lt
Colonel! Brower. Lt. Colonel Brower consulted the attorney working file
and responded to MACJA, explaining the circumstances surrounding
the preferral and withdrawal of charges against Major Gowan
("Brower letter’). AFSCIG concluded that the Steele complaint did not
warrant in
In 1987, 1988, and 1989, Major Gowan made a number of Privacy Act
and Freedom of Information Act requests and sought amendment of
many of the documents associated with the preferral proceeding.
Before 1990, however, the Air Force did not permit amendment or the
inclusion of statements of disagreement when the objectionable
material was an opinion or subjective belief. The only entity that could
change subjective material was the Air Force Board for the Correction
of Military Records ("AFBCMR’). Air Force regulations provide no
appeal from an AFBCMR decision and state that the Privacy Act
provides no remedy. Air Force policy was changed in 1990 to allow
the inclusion of statements of disagreement.
Two of the documents Major Gowan sought to amend resulted from
his seeking the assistance of members of the United States
Congress. While the charges against him were pending, Major Gowan
had asked Senator Sam Nunn for assistance. Nunn sent Major
Gowan's letter to the Office of the Legislative Liaison. That office's
response, authored by a Colonel! Nameth, was based upon the letter
Brower had written in response to MACJA's inquiry regarding the
Steele complaint ("Nameth letter"). Major Gowan requested the Air
Force amend the Nameth letter. Two statements were amended and
the remainder of Major Gowan's request was denied. Major Gowan's
request to include a statement of disagreement was denied as well.
Major Gowan also complained to Senator Jeff Bingaman about the Air
Force's treatment of him. Senator Bingaman sent that letter to the Air
Force Legislative Liaison office and was responded to by a Colone!
Alison ("Alison letter"). Major Gowan requested the Air Force amend
the Alison letter. Amendment was denied, but Major Gowan's |
statement of disagreement was placed with the Alison letter and a
copy was sent to Senator Bingaman.
Major Gowan also sought to amend several other documents,
including the Steele fraud, waste, and abuse complaint, the Brower
letter, and the Kirtiand OS! file. The Air Force refused to amend the
Steele complaint and the Brower letter on the grounds that they were
not contained in Privacy Act systems of records. However, it allowed
the amendment of the Kirtland OS! report to reflect what persons were
in fact interviewed during the Kirtiand OS! investigation.
Major Gowan filed this suit in the district court under the Privacy Act, 5
U.S.C. § 552a, on January 25, 1990. He sought injunctive relief and
compensatory damages for the Air Force's refusal to amend
documents or to allow him to attach statements of disagreement, its
denying him access to his records despite his Privacy Act requests; its
disclosures of the charge sheet; and its maintenance of inaccurate
records. While the suit was pending, Major Gowan was given a copy
of the attorney working file containing Major Kehi's and Major
Ruppert's papers, several years after his initial request, and the
AFBCMR took action on his requests to amend. The resolution of
Major Gowan's requests took over four years because his file “fell
through the cracks" at the AFBCMR.
presiding by consent of the parties, see 28 U.S.C. § 636(c), tried the
case without a jury. Although the court sympathized with Major
Gowan's concerns, it concluded that Major Gowan had not met the
requirements of the Privacy Act. The court granted judgment for the
Air Force and dismissed Major Gowan's suit with prejudice. Major
Gowan appeals.
ANALYSIS
The Privacy Act of 1974, 5 U.S.C. § 552a, governs the government's
collection and dissemination of information and maintenance of its
records. The Privacy Act generally allows individuals to gain access to
government records on them and to request correction of inaccurate
records.
The Privacy Act provides four causes of action: first, for an agency's
failure to review the denial of an amendment or to attach a statement
of disagreement, see 5 U.S.C. § 552a(g)(1)(A); second, for an
agency's denial of access to records, see 5 U.S.C. § 552a(g)(1)(B);
third, for an agency's failure to maintain its records with accuracy,
relevance, timeliness, and completeness to assure fairness in
determinations, see 5 U.S.C. § 552a(g)(1)(C); and fourth, for an
agency's failure to comply with any other Privacy Act provision which
Causes an “adverse effect on an individual,” see 5 U.S.C. §
552a(g)(1)(D). For the first two causes of action the court may award
injunctive relief, and, if the plaintiff has "substantially prevailed,” it may
also award attorney's fees and costs. See 5 U.S.C. §§ 552a(g)(2),
(g)(3). For the third and fourth causes of action, if the court
determines the agency acted intentionally and willfully, it may award
damages, attorney's fees, and costs. See 5 U.S.C. § 552a(g)(4).
|. Requests to Amend Records
The Privacy Act provides that individuals may request access to
records on them, may request amendment of those records, and may
attach a statement of disagreement to the record if amen iment is
refused. See 5 U.S.C. § 552a(d). It further provides that if an agency
refuses to review the denial of a requested amendment or to attach a
statement of disagreement the individual may file suit in the United
States district court See 5 U.S.C. § 552a(g)(1)(A). The district court
may order the agency to amend the record or attach the statement of
disagreement, and the individual may recover attorney fees and costs
if he or she substantially prevails in the action. See 5 U.S.C. §
552a(g)(2).
in the district court, Major Gowan requested the Air Force be directed
to amend the Nameth letter, the Alison letter, the Steele fraud, waste,
and abuse complaint, and the Brower letter. He also complained
about the Air Force's handling of his request to amend the Kirtland
OSI report On appeal, Major Gowan abandons his claims regarding
the Alison letter and any argument that the Nameth and Brower letters
should be amended. Instead, Major Gowan seeks only to include
statements of disagreemert with the Nameth and Brower letters. In its
brief the Air Force submits that it is willing to and will attach
statements of disagreement to the Nameth and Brower letters. In light
of this representation, we assume that the Air Force has or will
immediately voluntarily comply with the Privacy Act and attach Major
Gowan's statements of disagreement to the Nameth and Brower
letters. See 5 U.S.C. § 552a(d){3) (‘Each agency that maintains a
system of records shail . . . [if amendment is denied] permit the
individual to file with the agency a concise statement setting forth the
reasons for his disagreement with the refusal of the agency [to
amend] .. . ."). Thus, the only remaining amendment issues concern
the Steele fraud, waste, and abuse complaint, the Kirtland OS! report,
and the propriety of the Air Force amendment referral process.
A. Steele Fraud, Waste, and Abuse Complaint
The Steele complaint was processed by the Office of the Inspector
General. The district court held that (1) the Steele compiaint is not
amendable because it is a statement of opinion, and (2) the Privacy
Act does not apply because “[clompiaints made to the Inspector
General are exempt from disclosure." Because we affirm on the
second basis, we do not need to address the first reason for the
The district court correctly held that the Air Force has exernpted the
Inspector General's records from § 552a(d) of the Privacy Act. Under
5 U.S.C. § 552a(k)(2):
The head of any agency may promulgate rules . . . to exempt any
system of records within the agency from subsections (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (1) and (f) of this section if the system of
records is-
(2) investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection (j)(2) of this section:
Provided, however, That if any individual is denied any right, privilege,
or benefit that he would otherwise be entitled by Federal law, or for
which he would otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to such individual . . .
The Air Force has promulgated a regulation to exempt Inspector
General records from disclosure under the Privacy Act. See 32 C.F.R.
Pt 806b, App. C, § (b)(12) (1997). Steele's fraud, waste, and abuse
complaint, which alleged possible violations of military and federal
law, comes within § 552a(k)(2)'s specification of "investigatory
material compiled for law enforcement purposes.” See Viotti v. United
States Air Force, 902 F. Supp. 1331, 1335 (D. Colo. 1995). Although
Major Gowan argues that fraud, waste, and abuse complaints do not
constitute “investigatory material," the complaint is the catalyst of the
investigation and thus comes within the parameters of § 552a(k)(2).
Further, the charges contained in the complaint were deemed
unworthy of further action, so that § 552a(k)(2)'s exception, which
requires disclosure where the subject has been denied a benefit
because of the record, is inapplicable. Cf. Viotti, 902 F. Supp. at 1336.
Because this fraud, waste, and abuse complaint is properly exempt
from § 552a(d), Major Gowan does not have a Privacy Act cause of
action to require the Air Force to amend the records or attach a
statement of disagreement. "Where, as here, an agency has properly
exempted its records, the agency no longer has any obligation to
disclose those records—irespective of the underlying motives of the
agency or the impact of the records upon the parties." Nolan v. United
States Dept. of Justice, 973 F.2d 843, 848-49 (10th Cir. 1992); see
also Aquino v. Stone, 057 Fae es 143 (4th Cir. 1992); Doe v.
sderal Bureau of Investigation, 936 F.2d 1346, 1252 (D.C. Cir.
on Alexander v. United States, 787 F.2d 1349, 1351-52 (9th Cir.
1986); Wentz v. Department of Justice, 772 F.2d 335, 338 (7th Cir.
1985) ("You cannot amend a document if you don't have access to
it”). ocr
B. Kirtland OSI Report
Major Gowan also contends that the Kirtand OSI report should be
amended. The AFBCMR amended the report to show which
individuals in fact were interviewed, but denied the remainder of Major
Gowan's request to amend. The district court held that under §
552a(k)(2) the Kirtiand OSI report was exempted from the provisions
of § 552(d), but did not specify which § 552a(k)(2) exemp<on it relied
upon: We agree with the district court that the Kirtand OS! report is
exempted from the requirements of § 552a(d), but disagree on which
exemption section to apply. However, we may affirm on any ground
supported by the record. See United States v. Knox, 124 F.3d 1360,
1362 (10th Cir. 1997).
None of the specific exemptions promulgated under § 552a(k)(2)
seems to apply to the Kirtland OSI report. See 32 C.F.R. Pt. 806b,
App. C(b) (1997). Besides the specific exemptions enumerated in 5
U.S.C. § 552a(k)(2), however, the Privacy Act provides that law
enforcement materials generally may be exempted from otherwise
applicable Privacy Act requirements. See 5 U.S.C. § 552a())(2). The
general exemption section, § 552a(j)(2), states:
The head of any agency may promulgate rules . . . to exempt any
system of records within the agency from any part of this section
except subsectuns (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7),
(9), (10), and (11), and (j) if the system of records is-
(2) maintained by an agency or component thereof which performs as
its principal function any activity pertaining to the enforcement of
criminal laws, including police efforts to prevent, control, or reduce
crime or to apprehend criminals, and the activities of prosecutors,
courts, correctional, probation. pardon, or parole authorities, and
which consists of . . . (B) information compiled for the purpose of a
criminal investigation, including reports of informants and
The Air Force has promulgated regulations under § 552a(j)(2)
exempting certain material from the requirements of § 552a(d),
See 32 C.F.R. Pt 806(b), App. C(a) (1997). The “Investigative
Support Records” category includes *[rjeports of investigation,
collection reports, statements of individuals, affidavits,
correspondence, and other documentation pertaining to criminal
cosection activities investigative surveys . . .” which are used “by
AFOS! to determine if, in fact, possible criminal activity requiring
further specialized investigation is occurring in a specific area” and
"by USAF and other military commanders as well as Department of
Justice officials to determine if judicial or administrative action is
warranted.” See Department of Defense System of Records Notices,
50 Fed. Reg. 22,090, 22,492 (1985). The “Criminal Records” system ~
specific investigations of alleged violations of laws, regulations or
directives” which are used “in taking judicial and administrative
actions involving suspected criminal activity concerning [Department
of Defense] personnel” and “to determine if legal or administrative
action is warranted.” See id. at 22,491.
The OS! report at issue fits both of these categories. It is located in a
system of records maintained by the Kirtland OSI, a law enforcement
body; it consists of information compiled for the purpose of a criminal
investigation and associated with an identifiable individual; and it has
been the subject of the proper rule-making procedures. Consequently,
it is exempt under § 552a(j)(2). See Nolan, 973 F.2d at 847. As stated
above, Major Gowan has no Privacy Act cause of action regarding
exempted records, and thus he cannot challenge the Air Force's
refusal to make further amendments to the Kirtland OSI report. See id.
at 848-49.
C. Air Force Referral Process
Beyond challenging the Air Force's handling of his specific
amendment requests, Major Gowan quarrels with the Air Force's
amendment process itself. Before about 1990, the Air Force Privacy
Act program automatically referred requests for amendment of
“subjective” or “opinion” matters to the AFBCMR. Major Gowan
complains that the AFBCMR did not allow the attachment of
statements of disagreement or judicial review. Consequently, he
seeks injunctive relief to ensure that the Air Force complies with the
provisions of the Privacy Act
The Privacy Act clearly grants individuals the right to seek agency
review of a denial of a request to amend, to file a statement of
and to seek judicial review of the agency's
determination. See 5 U.S.C. §§ 552a(d)(3), (g)(1)(A). Therefore, any
Air Force policy that provides to the contrary would be invalid under
the Act. However, Major Gowan's Privacy Act compiaints have been
resolved through this judicial action, and the Air Force eliminated its
nonconforming policy in about 1990. Although Major Gowan asserts
that he may in the future want to seek amendment of Air Force
records and that the Air Force may again wrongfully deny his Privacy
Act right to seek amendment or the filing of a statement of
disagreement, an assertion of such a contingent interest is insufficient
to confer standing. See Luian v. Defenders of Wildlife, 504 U.S. 555,
563-64 (1992). As a result, we decline to hear his challenge to the
AFBCMR referra’ process.
Finally, Major Gowan alleges that the Air Force failed to comply with
the Privacy Act when it did not inform him of his right to seek judicial
review of its denial of his requests to amend. See 5 U.S.C. §
552a(d)(3) (requiring the agency to notify the individual of the
provisions for judicial review under 5 U.S.C. § 552a(g)(1)(A)). To
redress violations of § 552a(d)(3), a plaintiff may secure injunctive
relief and, if he has substantially prevailed, recover attorney's fees
and costs. See 5 U.S.C. §§ 552a(g)(1)(A), (g)(2). Given that Major
Gowan was obviously aware of his right to seek judicial review,
however, we find it unnecessary to award him injunctive relief, and we
determine that he should not be awarded attorney's fees under 5
U.S.C. § 552a(g)(2)(B).
ll. Access to Records
Major Gowan argues that the Air Force violated the Privacy Act by not
turning over all materials in response to his Privacy Act request
Specifically, he complains that he did not receive the materials
contained in the attorney working file (the file set up by Gampe! which
included Major Kehl's “Ethics” file and Major Ruppert's papers) until
more than six years after his first Privacy Act request, four years after
he filed this case in the district court.
The Privacy Act grants individuals access to their records. See 5
U.S.C. § 552a(d)(1). However, only “records” kept in a “system of
records” are subject to the provisions of § 552a(d). See Wren v.
Heckler, 744 F.2d 86, 89 (10th Cir. 1984). The Privacy Act defines a
record as “any item, collection, or grouping of information about an
individual that is maintained by an agency . . . that contains his name,
or the identifying number, symbol, or other identifying particular
assigned to the individual.” 5 U.S.C. § 552a(a)(4). A “system of
records" is defined as “a group of any records under the control of any
agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual." 5 U.S.C. § 552a(a)(5). To
redress violations of § 552a(d)(1), the district court may award
injunctive relief, and, if the plaintiff has substantially prevailed in the
action, attorney fees and costs. See 5 U.S.C. §§ 552a(g9)(1)(B), (g){3).
The only file in existence at the time of Major Gowan's first request
was the "Ethics" file. By the time of his second request, the "Ethics"
file had been incorporated into an attorney working file. The district
court concluded that neither the "Ethics" file nor the attorney working
file were maintained in a Privacy Act “system of records,” and that
those files were not retrievable by means of Major Gowan's name or
other identifier. On appeal, Major Gowan argues that (1) the designate
“Ethics” was in fact an identifier personal to Major Gowan, so that the
"Ethics" file was part of a system of records and thus subject to the
Privacy Act, and (2) even if the “Ethics” file was not part of a Privacy
Act system of records, it should have been because it was used in
determining Major Gowan's rights, privileges, and benefits.©
Major Gowan contends that “Ethics” was in fact a code word referring
to him, and thus in effect was a "personal identifier." We recognize the
possibility that an unscrupulous person may try to mask a record
properly subject to the Privacy Act by labeling it with a generic code
word that effectively acts as a "personal identifier.” However, the
testimony before the district court does not indicate that here the
designation "Ethics" equals an “identifying particular assigned to the
individual." Major Kehi testified that his file was "not a folder about any
individual in particular,” and that at the time of the investigation into
Major Gowan's activities "there was other information in this file about
people other than Mr. Gowan, because my evaluation of ethics issues
included other people besides Mr. Gowan." On this record, we must
conclude that the word "Ethics" was not a personal identifier of Major
Gowan and.we do not find the district court's rulings regarding those
documents to be clearly erroneous. See Wren v. Heckler, 744 F.2d at
89 (documents contained in files entitled "Regional and Field Hearing
Office" were not part of a "system of records” because they were not
retrievable by “plaintiff's name or other identifying symbol” even
though they contained information about the plaintiff); see also
Hudson v. Reno, 130 F.3d 1193, 1206 (6th Cir. 1997) (notes kept in
locked drawer in file labeled as "First Assistant's” file not part of a
Privacy Act system of records even though they contained information
about the plaintiff).
Alternatively, Major Gowan contends that the file should have been
put into the system of records under 5 U.S.C. § 552a(e)(5) — which
directs agencies to maintain complete and accurate records to ensure
fairness in determinations - because Major Kehi, Major Ruppert,
Gampel, and Lt Colonel Brower actually used the file in making
decisions about him. Although the court may award damages,
attomey fees and costs upon finding that an agency intentionally and
willfully failed to maintain records with such accuracy-and
completeness as to ensure fairness, see 5 U.S.C. §§ 552a(g)(1)(C),
(g)(4), the record on appeal does not demonstrate that Major Gowan
raised this issue in the district court. The district court never
addressed the issue, and the pretrial report does not adequately set
forth the contention that the files should have been maintained in a
Privacy Act system of records. Although Major Gowan asserts that he
raised the issue below in his Proposed Findings of Fact and
Conclusions of Law, that filing has not been submitted as part of the
appellate record. Because it is impossible to review the arguments
made before the district court, we decline to address this issue on
appeal. See United States v. Vasquez, 985 F.2d 491, 494 (10th Cir.
1993) (‘When the record on appeal fails to include copies of the
documents necessary to decide an issue on appeal, the Court of
Appeals is unable to rule on that issue."); 10th Cir. R. 10.3 ("When the
party asserting an issue fails to provide a record sufficient for
consideration of that issue, the court may decline to consider it.").
iil. Methods of Collecting Information
Major Gowan also contends that the Air Force violated the Privacy Act
when the Kirtland OSI, Major Kehi, Major Ruppert, Gampel, and Lt
Colonel Brower failed to gather information from him directly rather
than from third parties. See 5 U.S.C. § 552a(e)(2) (Each agency that
maintains a system of records shall . . . collect information to the
greatest extent practicable directly from the subject individual when
the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.").
The district court may award damages, attorney fees, and costs for an
intentional and willful violation of § 552(e)(2) that results in an adverse
effect on the plaintiff. See 5 U.S.C. §§ 552a(g)(1)(D), (g)(4).
Major Gowan did not include this issue in the pre-trial report, and so it
was not part of the case before the flistrict court See Hernandez v.
Alexander, 671 F.2d 402, 407 (10th Cir. 1982) (pre-trial report controls
~ course of litigation). In support of our conclusion, the district court
made no ruling on this issue. We generally do not consider issues not
raised before the trial court, and so we find that this claim has been
waived. See Vitkus v. Beatrice Co., 127 F.3d 936, 946 (10th Cir.
1997).
IV. Methods of Maintaining Records
Major Gowan suggests that the Air Force's maintenance of inaccurate
and incomplete records, xamely the Kirtand OS! report and the
“Ethics” file, violated 5 U.S.C. § 552a(e)(5), which requires agencies
to “maintain all records which are used by the agency in making any
determination about any individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination." To redress intentional
and willful violations of § 552a(e)(5), the court may award damages,
attorney's fees and costs. See 5 U.S.C. §§ 552a(g)(1}(C), (g)(4). To
succeed with this claim, Major Gowan must show:
(1) he has been aggrieved by an adverse determination; (2) the
[agency] failed to maintain his records with the degree of accuracy
necessary to assure fairness in the determination; (3) the [agency's]
reliance on the inaccurate records was the proximate cause of the
adverse determination; and (4) the [agency] acted intentionally or
waney! in _—e to maintain accurate records.
ers v. Unite es m'n, 85 F.3d 655, 657 (D.C. Cir.
1996).
Major Gowan has no § 552a(e)(5) cause of action regarding either the
Kirtand OSI report or the "Ethics" file. As discussed above, the
Kirtland OSI report is exempted from several of the requirements of
the Privacy Act, including § 552a(e)(5). See 5 U.S.C. § 552a(j)(2); 32
C.F.R. Pt. 806, App. C(a) (1997). Further, the “Ethics” file is not a
“record” in a Privacy Act “system of records,” and thus Major Gowan
has no § 552a(e)(5) cause of action for Kehl's maintenance of the
"Ethics" report. See Clarkson v. Internal Revenue Serv., 678 F.2d
1368, 1377 (11th Cir. 1982).
V. Dissemination of Charges
Finally, Major Gowan claims that the Air Force violated 5 U.S.C. §
552a(b) by disclosing information about the charges against him to
various third parties. He contends that the Privacy Act was offended
by Amor’s discussion of the charges during a telephone conference
with other Air Force personnel, by Elder's release of the charges to
the Wyoming Bar, and by the Air Force's discussion of the charges in
response to inquiries by United States senators.
Under 5 U.S.C. § 552a(b), agencies are prohibited from “disclos[ing]
any record which is contained in a system of records by any means of
communication to any person, or to another agency” unless they have
the written consent of the individual to whom the record pertains or
the disclosure fits one of twelve listed exceptions. If an agency
intentionally and willfully violates § 552a(b) and the plaintiff suffers an
“adverse effect’ from the violation, the agency is liable for the
plaintiffs actual damages as well as attorney's fees and costs. See 5
U.S.C. §§ 552a(g)(1)(D), (g)(4). Consequently, to maintain a §
552a(b) claim, a plaintiff must show: (1) the information came from a
“record” in a “system of records"; (2) it was communicated to another
entity; (3) the communication was without the individual's consent or
does not fit one of the enumerated exceptions; (4) the communication
was made intentionally or willfully; and (5) the communication caused
an “adverse effect" on the plaintiff. See also Pippinger v. Rubin, 129
F.3d 519, 528 (10th Cir. 1997) (“In analyzing each of these three
claims, we must decide whether a record was ‘disclosed,’ and, if so,
whether it was disclosed pursuant to an exception enumerated in 5
U.S.C. § 552a(b).").
The district court held that the preferral of charges against Major
Gowan was a matter of public record and thus disclosure of the
charges did not violate § 552a(b). We disagree with the district court's
conclusion that a matter of public record is not subject to the
provisions of 5 U.S.C. § 552a(b). in Quinn v. Stone, 978 F.2d 126,
134 (3d Cir. 1992), the Third Circuit rejected an argument that a
disclosure of public information cannot violate the Privacy Act
Appellees have cited to this court no case that stands for the
proposition that there is no violation of the Act if the information is
merely readily accessible to the members of the public (such as in the
local telephone book) and our research has discovered none. We
doubt if any court would so hold. To do so would eviscerate the Act's
central prohibition, the prohibition against disclosure. . . . To define
disclosure so narrowly as to exclude information that is readily
accessible to the public would render superfluous the detailed
statutory scheme of twelve exceptions to the prohibition on disclosure.
We conclude the making availabie information which is readily
accessible to the members of the public is a disclosure under 552a(b),
subject, of course, to the Act's exceptions.
(footnote omitted). See also
Re 3 Press, 489 U.S. 749, 762-64
(1989) (upholding privacy interest in rap sheet, even though
components of summary are in public record). We adopt the Third
Circuit's reasoning and hold that an agency may not defend a release
of Privacy Act information simply by stating that the information is a
matter of public record.
A. Telephone Conference
The district court found that Colonel Amor’s discussion of the charges
against Major Gowan during a telephone conference with other Air
Force officers and staff did not violate the Privacy Act because the
a
charges were a matter of public record and because Colonel Amor
may have had independent knowledge of the preferral of charges.
"Section 552a(b) of the Privacy Act by its terms contemplates a
~‘system of records’ as the direct or indirect source of the information
disclosed. The disclosure of information derived solely from
independent sources is not prohibited by the statute even though
identical information may be contained in an agency system of
records." Thomas v. United States Dep't of Energy, 719 F.2d 342, 345
(10th Cir. 1983). The Air Force indicates that Colonel Amor was Major
Gowan's commanding officer and that he was kept apprised of the
investigation as it progressed. However, we need not decide whether
this satisfies the "independent source” exception. Cf. id. at 344
(supervisor's information came from personal participation in
discussions about plaintiff and being told to order piaintiff to undergo
psychiatric evaluation, not from plaintiffs records).
In this case the district court did not make an unequivocal finding that
Colonel Amor's information was all derived independently of a record
pertaining to Major Gowan found in a system of records. In any event,
in order to recover, Major Gowan must prove that Colonel Amor's
conduct was “intentional or willful." See 5 U.S.C. § 552a(g)(4). The
district court did not make this essential finding, and thus Major
Gowan cannot recover on this claim. Because of our ruling, we need
not address the Air Force's argument that this disclosure can be
justified under the "need to know” exception found in § 552a(b)(1).
B. Wyoming Bar
Major Gowan also contends that the Air Force is liable for Elder's
informing the Wyoming Bar oi the court martial charges. The district
court again held that the charges were public knowledge, but it also
held that Elder's actions were not intentional and willful, and thus
Major Gowan could not recover. However, we need not decide
whether Elder's actions were intentional and willful. See Knox, 124
F.3d at 1362 (court of appeals may affirm on any ground supported by
the record). To recover for a violation of § 552a(b), Major Gowan must
also show that the Air Force's disclosure had an “adverse effect" on
him. See 5 U.S.C. § 552a(g){1}(D). Major Gowan himself informed the
Wyoming Bar of the court martial charges without knowing Elder had
aiready done so. Consequently, Elder's providing the same
information (even though before Major Gowan did so) could not have
had an adverse effect on Major Gowan. Cf. Kline v. Department of
Health & Human Serv., 927 F.2d 522, 524 (10th Cir. 1991) ("A later
release of information previously known does not violate the Privacy
Act").
C. Responses to United States Senators
Major Gowan's final complaints about improper communications
concern the Air Force's responses to the letters sent by United States
Senators Nunn and Bingaman. Although this issue was raised below,
the district court did not resolve it
The senators’ GEES PER ENOINRy SUEDE COONS ARIA
their assistance. Unlike in Swenss 1 es Postal Serv., 890
F.2d 1075, 1077-78 (9th Cir. 1989), adam tee diceedast
information to congressmen violated the Privacy Act because the
information had nothing to do with the subject the plaintiff had asked
her legislators to investigate, Major Gowan requested the senators to
inquire about the matters he now complains the Air Force discussed
with them. Under these circumstances, Major Gowan's request for the
senators’ assistance estops him from complaining that the Air Force
responded to the senators‘ inquiries or his behalfSee Pellerin v.
Veterans Admin., 790 F.2d 1553, 1556 (11th Cir. 1986) ("Pellerin
Clearly solicited his congressmen's support in his battle with the VA.
He cannot state a claim against the VA for releasing information to the
congressmen when he requested their assistance in gathering such
information.").
In addition, § 552a(b)(3) establishes a "routine use” exception to the
general prohibition on disclosure. See 5 U.S.C. § 552a(b)(3).
Disclosure of information regarding an individual to members of
Congress in response to “an inquiry from the congressional office
made at the request of that individual’ has been established as a
routine use of Privacy Act information. See Department of Defense
Privacy Act Program, 51 Fed. Reg. 2364, 2389 (1986) (emphasis
added). We do not believe that the dissemination of this information in
response to the senators’ inquiries is incompatible with the purpose
for which the information was collected, see 5 U.S.C. § 552a(a)(7),
and thus the disclosures would likely be protected under the routine
use exception.
D. Attorney's Fees and Costs
A Privacy Act plaintiff may be awarded attorney's fees and costs. For
suits under 5 U.S.C. §§ 552a(g)(1)(A) and (g)(1)(B), to be eligible for
fees and costs the plaintiff must have “substantially prevailed." See 5
U.S.C. §§ 552a(g)(2)(B), (g)(3)(B). For suits under 5 U.S.C. §
552a(g)(1)(C) and (g)(1)(D), there is no requirement that the plaintiff
have “substantially prevailed" to be awarded fees, but the court must
determine that the agency acted intentionally or willfully. See 5 U.S.C.
§ 552a(g)(4).
Major Gowan's success in this lawsuit was limited to getting the
statements of disagreement added to the Brower and Nameth letters
and in obtaining access to the attorney working file. Both of these
successes come under the portions of the Act that require a plaintiff to
"substantially prevaill]" in order to receive attorney's fees and costs.
See 5 U.S.C. §§ 552a(g)(1)(A), (9)(1)(B), (9)(2)(B), (g)(3){B).
In Volz v. United States Dept. of Justice, 619 F.2d 49, 50 (10th Cir.
1980), we concluded without analysis that the plaintiff had not
“substantially prevailed” in his Privacy Act suit despite the fact that the
agency had released some of the information after the suit was filed.
We have not had occasion since Volz to determine whether a plaintiff
has “substantially prevailed" for purposes of obtaining fees under the
Privacy Act. However, we note that the Privacy Act attorney's fee
provisions are substantially similar to the fee provision of the Freedom
of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(E). Consequently, like
at least two of our sister circuits, we shall apply a FOIA attorney's fee
analysis to this Privacy Act case. See Sweatt v. United States Navy,
683 F.2d 420, 423 (D.C. Cir. 1982) (per curiam) (applying FOIA
principles to determine whether plaintiff “substantially prevailed" under
Privacy Act); Barrett v. Bureau of Customs, 651 F.2d 1087, 1088 (5th
Cir. 1981) (same); see also Clarkso;:, 678 F.2d at 1371 (applying
Privacy Act analysis to FOIA claim for fees).
In the FOIA attorney's fee context, we have held that a plaintiff must
establish both that he or she is eligible for an attorney's fee award and
that he or she is entitled to it. To show eligibility for the award, the
plaintiff must show = he or she has mgm nape on his
claim. See Ande alt ., 80
F.3d 1500, 1504 (tOth Cir. 1996). ifthe plaindi has “substantially
prevailed," the court must evaluate four factors to decide whether he
or she is entitled to an award: "'(1) the benefit to the public, if any,
derived from the case; (2) the commercial benefit to the complainant:
(3) the nature of the complainant's interest in the records sought, and
(4) whether the government's withholding of the records had a
reasonable basis in the law." Id. (quoting Aviation Data Serv. v. FAA,
687 F.2d 1319, 1321 (10th Cir. 1982)).
The plaintiff has “substantially prevailed” in a FOIA case if the lawsuit
was reasonably necessary and substantially caused the requested
records to be released. See
Chesapeake Bay Found., Inc. v.
Decarinent oats ee wt ys oe 105 aa a
530 § 4 (1978 & Supp. 1997), However, the Air Force contends that
its release of the file and its willingness to attach the statements of
disagreement were not motivated by Major Gowan's lawsuit but by
new, less restrictive directives issued during the pendency of the
litgaton.
Even assuming that the attachment of the statements of disagreement
and the release of the file were motivated by the lawsuit, so that Major
Gowan is eligible for a fee award, under the factors we have identified
he is not entitled to one. Although the government was not justified in
refusing to act according to the clear directives of the Privacy Act,
Major Gowan's suit was for his personal benefit rather than for the
benefit of the public interest and he gained no commercial benefit
from the attachment of the statements of disagreement or the release
of the file. Given Major Gowan's limited success in this suit, especially
in light of the fact that he had requested $13,300,000 in damages but
received none, we do not believe he is entitled to an award of fees
and costs.
CONCLUSAON
For the reasons stated above, the judgment of the district court is
AFFIRMED.
FOOTNOTES
Click footnote number to retum to corresponding location in the text.
1 This regulation was originally promulgated in 1986. See Rules and
Regulations, Department of Defense, 51 Fed. Reg. 20,277, 20,284
(1986).
é This regulation was originally promulgated in 1986. See Rules and
Regulations, Department of Defense, 51 Fed. Reg. 20,277, 20,283
(1986). -
2 In making this argument, Major Gowan does not appear to
recognize that there were two files: the "Ethics" file itself and the
attorney working file. Neither the parties nor the districi court identify
how the attorney working file was kept, but the district court found that
it was not kept under Major Gowan's name or other personal
identifier. Consequently, we will confine our discussion to the points
raised by Major Gowan and focus solely on the "Ethics" file.
index.htm} Keyword | Case | Docket | Date: Filed / Added
| 96-2134. wpd(60922 bytes) 96-2134.rifi64 154 bytes)
Comments to: WebMaster, cal O@law. wuacc.edu.
Updated: July 20, 1998.
HTML markup Copyright © 1998, Washburn University School of Law.
URL: http:/Aawlib.wuacc.edu/ca 1 O/cases/1998/07/96-2134.htm.
A-22
Appendix B -- The Privacy Act of 1974, 5 U.S.C.
552a, Citations of Pertinent Law by Subsection
5 U.S.C. § 552a(a)(3) Definitions provides: “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...that
contains his name, or the identifying number, symbol,
or other identifying particular assigned to the
individual...(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 identifying particular assigned to the individual.”
(7) the term foutine use’ means with respect to the
disclosure of a record, the use of such record for a
purpose which is compatible with the purpose for
which it was collected.
S U.S.C. § 552a(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 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, (3) for a routine use...
S U.S.C. § 552a(d) Access to Records - “Each agency
that maintains a system of records shall - upon
request by any individual to gain access to his record
or to any information pertaining to him which is
contained in the system, permit him and upon his
request, a person of his own choosing to accompany
him, to review the record and have a copy made of all
or any portion thereof in a form comprehensible to
A-23
him, except that the agency may require the individual
to furnish a written statement authorizing discussion
of that individual’s record in the accompanying
person’s presence; (2) permit the individual to request
amendment of a record pertaining to him and - (A) not
later thanl0 days...after the date of receipt of such
request, acknowledge in writing such a receipt; and (B)
promptly, either - (I) make any correction of any
portion thereof which the individual believes is not
accurate, relevant, timely, or complete; or (ii) inform
the individual of its refusal to amend the record in
accordance with his request, the reason, for the
refusal, the procedures, established by the agency for
the individual to request a review of that refusal by the
head of the agency or an officer designated by the head
of the agency, and the name and business address of
that officials; (3) permit in the individual who disagrees
with the refusal of the agency to amend his records to
request a review of such refusal, and not later than 30
days... from the date on which the individual requests
such a review, complete such review and make a final
determination unless, for good cause shown, the head
of the agency extends such 30-day period; and if, after
his review, the reviewing official also refuses to amend
the records in accordance with the request, permit the
individual to file with the agency a concise statement
setting forth the reasons for his disagreement with the
refusal of the agency, and notify the individual of the
provisions for judicial review of the reviewing officiai’s
determination under 5 U.S.C. § 552a(g)(1)(A) of this
section;”
5 U.S.C. § 552a(e): Agency Requirements. “Each
agency that maintains a system of records shall—
maintain in its records only such information about an
individual as is relevant and necessary to accomplish a
purpose for the agency required to be accomplished by
statute or by executive order of the President; (2)
collect information to the greatest extent practicable
directly from the subject individual when the
information may result in adverse determinations
A-24
about an individual's rights, benefits, and privileges
under Federal programs; (4) subject to the provisions
of paragraph (11) of this subsection, publish in the
Federal Register at least annually a notice of the
existence and character of the system of records,
which notice shall include--...(5) maintain all records
which are used by the agency in making any
determination about any individual with such
accuracy, relevance, timeliness as is reasonably
necessary to assure fairness to the individual in the
determination. (6) prior to disseminating any record
about an individual to any person other than an
agency, ... make reasonable efforts to assure that such
records are accurate, complete, timely, and relevant
for agency purposes; (7) maintain no record
describing how any individual rights
guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom
the record is maintained... (8) make reasonable efforts
to serve notice on an individual when any record on
such individual is made available to any person under
compulsory legal press when such process becomes a
matter of public record; (9) establish rules of conduct
for persons involved in the design, development,
operation, or maintenance of any system of
records....(10) establish appropriate administrative,
technical, and physical ».ieguards to insure the
security and confidentiality of records and protect
against any anticipated threats or hazards to their
security or integrity which could result in substantial
harm, embarrassment inconvenience, or unfairness to
any individual on whom information is maintained.”
S U.S.C. § SS2a(g)(S)(A) provides: “The court may
assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in
any case under this paragraph in which the
complainant has substantially prevailed.”
S U.S.C. § SS2a(g)(4) provides: “In any suit brought
under the provisions of Subsections (g)(1)(C) or (D) of
A-25
this section in which the court determines that the
agency acted in a manner which was intentional or
willful, the United States shall be liable to the
individual in an amount equal to the sum of: (A)
actual damages sustained by the individual as a result
of the refusal or failure, but in no case shall a person
entitled to recovery receive less than the sum of
$1,000. (B) the costs of the action together with
reasonable attorney fees as determined by the court.
5 U.S.C. § 552a(i)(1) Criminal Penalties. “Any officer or
employee of an agency, who by virtue of his
employment or official position, has possession of, or
access to, agency records which contain individually
identifiable information the disclosure of which is
prohibited by this section or by rules or regulations
established thereunder, and who knowing that
disclosure of the specific material is so prohibited,
willfully discloses the material m any manner to any
person or agency not entitled to receive it, shall be
guilty of a misdemeanor and fined not more than
S5,000.”
A-26
Appendix C -- Testimony of Witnesses in the
District Court for the District of New Mexico
a. “I went to Major Kehl's office and got this stack
of documents that I referred to earlier in my
testimony. Q. And I believe that that stack of
documents that you referred to was Exhibit N,
Defendant's Exhibit N? A. I don't know that all of
this was in here, but I would say probably--my
recollection is that either something like this or
something in an alligator clip. Q. Was it a stack of
documents that pertained to Mr. Gowan? A. Yes. Q.
Was there anybody -- was there information about
other persons suspected of ethical concerns
besides Mr. Gowan in either this file or alligator clip
that you referred to? A. I don't recall anything else
on anyone else in terms of what I was provided. Q.
And this stack of documents was identified to you
by Major Kehl as the evidence that he had compiled
on Major Gowan? A. Yes.”
b. Q. Okay, Do you know whether or not attorney
work product is exempt under the Privacy Act? A.
Yes, they are exempt, for civil actions, not criminal
actions. P94, line 6 Q the reason you changed the
policy jon statements of disagreement] is because
you decided that Mr. Gowan was absolutely right,
isn't it? That he had a right to file a statement of
disagreement? A. ...yes. Q. In fact, it was your
opinion that the Air Force policy as of 1988,
denying a citizen the right to file a statement of
disagreement was inconsistent with Privacy Act
law. A. Yes, sir, that’s right.
c. We use the general counsel that served as the
counsel to the secretary | Air Force], any other kind
of official. The Court: Is that counsel for JAG.
Witness: No. The Court: I guess I'm curious.
When you were telling me about making references
ee —*
acceaateaiaatan iinet
A-27
to particular offices that have the available
information, I understood that the referral in this
case was to the JAG office; is that correct.
Witness: That’s correct. The Court: But the
complaint was against the JAG office. Isn’t that
rather like asking the fox to guard the hen house?
... The Court: Who did the analysis for the final
decision, as opposed to the advisory opinion? Was
that also JAG counsel? Witness: That was JAG,
yes.
d. Q. Major Ruppert, before taking the lunch
break, you testified about the practice that you're
aware of, of the OSI preparing intentionally
misleading reports, and you said that that often
occurred in drug cases, is that correct? A. That’s
the only kind of case that I have seen. Q. And
your testimony was that the OSI would sometimes
prepare a decoy report, so to speak, for
dissemination to the - perhaps the suspects, and
keep an accurate report for their own purposes? A.
They would publish interim reports before their
final report that had masked identities and
different statements attributed to different people
but maybe in incorrect order, and that sort of
thing. The final report would be correct. Q. And I
understand you learned of this practice through
your duties as a prosecutor with the judge
advocate’s office? A. Yes. Q. Did you ever object
to this practice? A. I questioned it initially upon
learning about it, and why it was done. Q. Did
you ever advise that - anyone within your capacity
to advise that you thought the practice was
improper? (Defense Objects) The Court: I’m going
to overrule the objection. This cooking-the-books
testimony I think is quite startling about record
keeping and obligations under the privacy act. You
may answer the question. Page 108, line 3: Q.
Did you ever criticize that practice as part of you
procedures with the JAG office? A. No, I did not.
A-28
e. Q. I direct you attention to what’s been marked
as Defendant’s Exhibit M for identification. Do you
recognize that? A. I’d looked at it earlier. It
appears to be the same file. I, of course, can't say
that all the documents are the same, but it looks
like the same file that I took from Colonel Brower’s
table in Colonel Brower’s office when he transferred
out from Kirtland. Q. When was that? A. That
was in early 1990. I don't remember the cxact
time. It was after we learned that CMD was going
to go away; after, I believed at least, that I would
stay at Kirtland AFB and would continue to have
responsibility for labor and EEO matters, including
litigation. I had already worked in this case and so
I wanted to make sure that all of the information
that the Air Force had relating to Mr. Gowan at
that time was preserved. And there was, like I say,
a pile of things. This file I perceive to be the file
maintained by the chief of military justice and
relating to what actions had occurred in relation to
the court-martial charges brought against Mr.
Gowan. And I! put them in a file, and I kept them
until I released them to you, I believe... Q. Did
you alter them once you got them? A. No. I don't
even—I went through them a couple of times, as we
changed US attorneys, and as we changed people
in the litigation division of the Air Force that were
assigned responsibility for this case, to tell them
again what I had, because they were always
interested in what kind of documentation we had.
f. The OSI report is amended to delete the
names of Laura Carson, Steve Eagon, Anthony
Hoyt and William McMullen from the list of
individuals identified as being interviewed. Q:
And a supervisor should have recognized that the
case had been pending for some four and a half
years? A: Exactly. Q: But you had no
explanation for why that wasn't brought to
anyone's attention? A: That's nght. That's right.
Q: How did you come to request this record back
saad
A-29
from the IG? A: My understanding is that
litigation called my boss sometime in, I believe,
middle of December, inquiring about the status of
the case. During that time, we discovered that
the case was lost. My boss gave the case to me
and at that time, we knew we had a court date
and asked me to do the best I could to get the
case to the Board and obtain a final decision
before the Court did.
g. "SUBJECT reported to KEHL during the
application process for off-duty employment that
the technology he was seeking to market was
discovered while stationed at the European Office
of Aerospace Research and Development (EOARD).
SUBJECT stated while working at EOARD he
routinely recommended technology discovered in
official travels. This technology would then be
evaluated by the Air Force for future study or
development. SUBJECT stated to KEHL that it
was during one of these trips that he visited
Trondheim University, Trondheim, Norway. It was
here that SUBJECT discovered research being
conducted on Electronic Speckle Pattern
Interferometry. (ESPI} SUBJECT stated to KEHL
that this information was reported to the Air Force
at EOARD, however, no research funding was
forthcoming nor was any attempt made to
purchase this technology based on SUBJECT's
proposal."
A-30
Appendix D
Magistrate Judge’s Findings of Fact, District
Court for the District of New Mexico
2. Gowan joined the Air Force in 1968 as a Second
Lieutenant, and at the time of his retirement, held the
rank of Major. A review of his officer effectiveness
reports from 1977 through 1988 shows that he was a
highly regarded, talented, and respected officer.
4. Gowan is recognized as a national authority in the
field of high-energy laser optical materials and
technology. He was considered one of the two or three
most outstanding metallurgists in the Air Force, as well
as “one of the outstanding scientists in Advanced
Radiation Technology.” Gowan was considered to have a
renowned reputation both in the Air Force and the
scientific community.
5S. Gowan was awarded five patents for optics design
and was the recipient of the first Edward B. Giller Award
for the most outstanding technical achievement in
science and engineering in the Air Force Weapons
Laboratory, Kirtland AFB, New Mexico, 1978 - 1979.
Gowan received fifteen separate awards for scientific and
engineering excellence over the course of his military
career. [Finding shortened]
6. Gowan typically received a superior rating in his
evaluations as an Air Force officer. Gowan's evaluations
are replete with laudatory terms and descriptive
phrases. His superior officers used words such as
“highest personal, ethical, and professional standards,”
“gifted scientist,” “leading edge of tomorrow's Air Force,”
“brilliantly innovative,” ‘integrity marked with
persistence,” “tremendous value to the Air Force,”
“selfless individual,” ‘renown reputation’, and
“absolutely outstanding officer.” [Finding shortened]
A-31
7. The only discordant comments in the evaluations
were that Gowan was perceived as an advocate for the
poor, down-trodden and oppressed. The evaluator's
comments concerning Gowan's advocacy are correct.
[Finding shortened]
9. In 1981, Gowan was assigned to the European Office
of Aerospace Research and Development (EOARD)
[London, UK]. Gowan was at EOARD until 1984.
12. Gowan reported major breakthroughs in a new
technology that allowed non-destructive testing of
materials by use of holographic evaluations and ESPI.
he sought to alert the Air Force to the potential for this
process and sought to enlist the Air Force’s assistance
in conducting a study of this process. {Finding
shortened]
15. The Air Force took no action on his request for
further study.
4 17. Gowan's repeated efforts and recommendations to
: pursue this developing technology, the Air Force was not
interested in Gowan's or Hoyt's proposals. In February
1987, the Department of the Air Force formally rejected
Major Gowan’s recommendation. [Finding shortened]
18. In 1984, Gowan was reassigned to KAFB.
23. Gowan became an advocate and employee
representative for Hernandez, who was involved in an
on-going dispute with the Air Force. Gowan was a vocal
proponent of equality and fair treatment of employees,
and became involved with Hernandez in an organization
called Libertad Advocates. Gowan actively promoted
equal employment opportunity (EEO) matters as part of
his involvement with Libertad Advocates. [Finding
shortened]
BGS Oe re ee Ae ee
ik
A-32
27. On March 6, 1986, Gowan made his first notice
and request for approval of off-duty employment with
Applied Optical Systems, Inc. ("AOS").
33. Gowan’s notice and request was approved on March
14, 1986. It had been approved by Major Bennie Miller,
Colonel Jerome Janick and [Randall H.] Kehl, [JA].
35. On November 6, 1986, [after Gowan changed jobs]
Kehl approved Gowan’s off-duty employment request.
Gowan’s request had been approved by Lt Colonel
William Finley and by Lt Colonel Richard Steele.
36. During the same month, a distribution agreement
and option agreement was entered into by AOS and
Conspectum A/S.
45. The first year and up to the early part of 1988,
three Retra 1000 devices were sold. One to Beta
Industries ($51,000), one to Unysis ($75,000) and one to
Hughes [Aircraft].
46. Given the potential of the portable scanner and the
interest shown, AOS-NDTIE and Stoller estimated
profits of three-million dollars over a three-year period.
54. Notwithstanding his earlier advice and the fact that
Kehl had twice before approved Gowan’s off-duty work
request, Kehl felt there might be a potential ethics
problem.
56. The OSI began its inquiry on July 1, 1987.
60. In a re-interview with Kehl, Kehl stated that there
were no apparent violations of Title 18, USC Section 208
and that the Air Force had no financial interest in the
technology and that the technology could not be
considered property. There was still a concern of a
“perceived” violation of Air Force Reg. 30-30.
A-33
61. The OSI compiled a written report, sent it to Kehl
without any finding of a violation, and closed the
inquiry.
66. Being dissatisfied that OSI failed to find a violation,
Kehl renewed his request for a new investigation and
asked that Major Mark Ruppert, who was at the time on
loan to KAFB, look into the allegations.
68. Kehl gave Ruppert the manila file that he kept in
his desk drawer.
71. Ruppert, inexplicably, did not interview Gowan.
74. Ruppert learned of this [Gowan’s “whistle blower”
activity] through Kurt Klossner, an FBI agent. [Finding
shortened] :
76. Brower did EEO work and was concerned that
Gowan would view the preferral charges as a retaliatory
action. [Finding shortened]
84. Kehl and Steele were primarily responsible for
pursuing the investigation and preferral of charges
against Gowan. [Finding shortened]
86. Because of the preferral of charges, Gowan was put
on administrative and could not retire as scheduled and
pursue his technological development plans.
27. The delay in Gowan’s retirement was viewed as the
last straw for Stoller. The OSI investigation had
interfered with and delayed the marketing plans. Now,
with the delay in Gowan’s retirement, and, indeed,
prospect of a court-martial, Stoller pulled funding for
the development and marketing of Conspectum A/A’
products in February 1988. Thus, Gowan's economic
prospects were materially and adversely affected.
96. Brower and Gampel concluded that the allegation
that Gowan received a gratuity was meritless because
,
A-34
Gowan had spent $40,000 in seed money and had
sufficient evidence to rebut the charge. [Finding
shortened]
97. The Air Force was aware of the use of electronic
speckle pattern interferometry because reference
materials concerning this technique had been published
in professional journals and available to the public as
early as 1971. [Finding shortened]
99. Brower and Gampel felt the charges should be
withdrawn.
100. Kehl and Steele continued with their tenacious
contentions of impropriety and opposed the withdrawal
of charges.
101. On March 22, 1988, Col Thomas, [KAFB
Commander] approved Brower’s recommendation and
the charges were withdrawn.
104. On March 28, 1988, Steele called an anonymous
fraud, waste, and abuse hot line run by the Air For
Systems Command Inspector General (AFSCIG) and
reported alleged improprieties concerning Gowan’s
business dealings. Steele’s report on the anonymous
hot line was made after the [OSI] investigation had long
been closed and after the charges against Gowan had
been withdrawn.
111. From October 20, 1987 through April 14, 1989,
Gowan made a series of twenty-three formal requests for
information.
138. The preferral of charges against Gowan became a
widespread topic of conversation and speculation at
KAFB.
147. Anne Turner Rollins explained that, before 1988,
the Air Force did not permit a statement of disagreement
or amendment when the subject of an objection was an
A-35
opinion or subjective belief. The only entity that could
change subjective type material was the... AFBCMR.
The policy was changed in 1990 and a statement of
disagreement may now be lodged.
148. On March 1, 1989, the Secretary of the Air
Force...amended two statements in the [Nameth] letter
and sent the amended information to Nunn. The
remainder of Gowan’s request to amend was denied.
150. On March 31, 1989, the Secretary denied Gowan’s
request to place his statement of disagreement with the
Nameth letter, and, alternatively, referred Gowan to
AFBCMR.
166. Since MACJA released the Steele [IG] complaint,
that office should have processed the amendment
request.
177. On January 13, 1994, Gowan was finally given the
attorney work file that he had requested October 19,
1988. Gowan had never been told that it was being
withheld.
183. The-AFBCMR typically takes six to eight months to
process a request.
184. Burton acknowledged that with respect to Gowan’s
requests, it took four and a half years.
185. Gowan's requests for correction of records were
not timely processed and Burton acknowledges that
Gowan’s requests “fell through the cracks.”.
187. The AFBCMR changed the OSI report to identify
who, in fact, was interviewed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.