Each agency that maintains a system of records shall--
B. 5 U.S.C. § 552a(e)(2)
"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."
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The leading cases under this provision are Waters v. Thornburgh, 888 F.2d 870 (D.C. Cir. 1989), and Brune v. IRS, 861 F.2d 1284 (D.C. Cir. 1988). Waters involved a Justice Department employee whose supervisor became aware of information that raised suspicions concerning the employee's unauthorized use of administrative leave. 888 F.2d at 871-72. Without first approaching the employee for clarification, the supervisor sought and received from a state board of law examiners verification of the employee's attendance at a bar examination. Id. at 872. In finding a violation of subsection (e)(2) on these facts, the Court of Appeals for the District of Columbia Circuit ruled that "[i]n 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." Id. at 873 (emphasis added); accord Dong v. Smithsonian Inst., 943 F. Supp. 69, 72-73 (D.D.C. 1996) ("concern over Plaintiff's possible reaction to an unpleasant rumor" did not warrant Institution's "fail[ure] to elicit information regarding alleged unauthorized trip directly from her"), rev'd on grounds of statutory inapplicability, 125 F.3d 877 (D.C. Cir. 1997) (ruling that "Smithsonian is not an agency for Privacy Act purposes"), cert. denied, 524 U.S. 922 (1998). The D.C. Circuit in Waters distinguished its earlier decision in Brune, which had permitted an IRS supervisor to contact taxpayers to check on an agent's visits to them without first interviewing the agent, based upon the "special nature of the investigation in that case--possible false statements by an IRS agent" and the concomitant risk that the agent, if contacted first, could coerce the taxpayers to falsify or secret evidence. Waters, 888 F.2d at 874.Consistent with Brune, two other decisions have upheld the IRS's practice of contacting taxpayers prior to confronting agents who were under internal investigations. See Alexander v. IRS, No. 86-0414, 1987 WL 13958, at **6-7 (D.D.C. June 30, 1987); Merola v. Department of the Treasury, No. 83-3323, slip op. at 5-9 (D.D.C. Oct. 24, 1986).
In addition, the Court of Appeals for the Sixth Circuit relied on Brune and the OMB Guidelines, referenced below, to hold that subsection (e)(2) had not been violated by an investigator looking into charges of misconduct by an Assistant United States Attorney who had interviewed others before interviewing her. Hudson v. Reno, 130 F.3d 1193, 1205 (6th Cir. 1997), cert. denied, 525 U.S. 822 (1998). Given that the district court had found that the attorney "was suspected of making false statements and she was allegedly intimidating and threatening people and otherwise dividing the U.S. Attorney's office," the Sixth Circuit held that "[a]ll of these practical considerations demonstrate that [the investigator] did not violate the Privacy Act when he interviewed others before interviewing [her]." 130 F.3d at 1205; see also Jacobs v. Reno, No. 3:97-CV-2698-D, 1999 U.S. Dist. LEXIS 3104, at **19-22, 29-35 (N.D. Tex. Mar. 11, 1999) (finding no subsection (e)(2) violation in agency's "extensive, multifaceted investigation of an entire district office" where plaintiff was "both a charging party in several complaints and an accused in several others," as it "was not always practical" for agency to interview plaintiff first, given nature of allegations against him), subsequent decision, 1999 WL 493056, at *1 (N.D. Tex. July 9, 1999) (denying motion for relief from March 11, 1999 order because "newly-discovered evidence" would not have produced different result), aff'd, 208 F.3d 1006 (5th Cir. 2000) (unpublished table decision).
The Court of Appeals for the Eighth Circuit recently examined the issue of whether a "collection" subject to the requirements of subsection (e)(2) occurs when an agency reviews its own files to obtain information. Darst v. Social Sec. Admin., 172 F.3d 1065 (8th Cir. 1999). The Eighth Circuit held that because the "situation merely involved a review of the agency's files," the agency "did not contact third party sources to gather information," and because "the indications of impropriety were apparent from the face of the documents and the sequence of events" reflected in the file, there was "no need to interview Darst about the sequence of events," and thus no violation of subsection (e)(2). Id. at 1068. The Eighth Circuit further stated that, "[a]s the district court noted, the Privacy Act does not require that the information be collected directly from the individual in all circumstances," and that "[h]ere the information in the [agency] file obviated the need to interview Darst or third persons." Id.; see also Brune v. IRS, 861 F.2d 1284, 1287 (D.C. Cir. 1988) (stating that "investigations of false statement charges, by their nature, involve a suspect who has already given the government his version of the facts").
For other decisions concerning this provision, see Olivares v. NASA, No. 95-2343, 1996 WL 690065, at **2-3 (4th Cir. Dec. 3, 1996), aff'g per curiam 882 F. Supp. 1545 (D. Md. 1995); Hubbard v. United States Envtl. Protection Agency, Adm'r, 809 F.2d 1, 11 n.8 (D.C. Cir.), vacated in nonpertinent part & reh'g en banc granted (due to conflict in circuit), 809 F.2d 1 (D.C. Cir. 1986), resolved on reh'g en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988); Jones v. Runyon, 32 F. Supp. 2d 873, 876 (N.D. W. Va. 1998), aff'd, 173 F.3d 850 (4th Cir. 1999) (unpublished table decision); Magee v. United States Postal Serv., 903 F. Supp. 1022, 1028-29 (W.D. La. 1995), aff'd, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision); and Kassel v. VA, 709 F. Supp. 1194, 1203 (D.N.H. 1989). Cf. Felsen v. HHS, No. CCB-95-975, slip op. at 62-65 (D. Md. Sept. 30, 1998) (granting defendants summary judgment on alternative ground on subsection (e)(2) claim due to "lack of a 'practicable' need to collect information directly from the plaintiffs"); Beckette v. United States Postal Serv., No. 88-802, slip op. at 10 (E.D. Va. July 3, 1989) (subsection (e)(2) requirements satisfied where information contained in records was derived from other records containing information collected directly from individual).
The OMB Guidelines suggest several factors to be evaluated in determining whether it is impractical to contact the subject first. OMB Guidelines, 40 Fed. Reg. 28,948, 28,961 (1975); see also 120 Cong. Rec. 40,407 (1974), reprinted in Source Book at 863.
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