CONDITIONS OF DISCLOSURE TO THIRD PARTIES

B. Twelve Exceptions to the "No Disclosure Without Consent" Rule

11. 5 U.S.C. § 552a(b)(11) (court order)

"pursuant to the order of a court of competent jurisdiction."

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This exception--like the subsection (b)(3) routine use exception--has generated a great deal of uncertainty. Unfortunately, neither the Act's legislative history, see 120 Cong. Rec. 36,959 (1974), reprinted in Source Book at 936, nor the OMB Guidelines, see 40 Fed. Reg. 28,948, 28,955 (1975), shed light on its meaning.

As a general proposition, it appears that the essential point of this exception is that the Privacy Act "cannot be used to block the normal course of court proceedings, including court-ordered discovery." Clavir v. United States, 84 F.R.D. 612, 614 (S.D.N.Y. 1979); see also, e.g., Martin v. United States, 1 Cl. Ct. 775, 780-82 (Cl. Ct. 1983); Newman v. United States, No. 81-2480, slip op. at 3 (D.D.C. Sept. 13, 1982).

What Does "Court Order" Mean?

In Doe v. DiGenova, 779 F.2d 74, 77-85 (D.C. Cir. 1985), the Court of Appeals for the District of Columbia Circuit decisively ruled that a subpoena routinely issued by a court clerk--such as a federal grand jury subpoena--is not a "court order" within the meaning of this exception because it is not "specifically approved" by a judge. Prior to Doe v. DiGenova, a split of authority existed on this point. Compare Bruce v. United States, 621 F.2d 914, 916 (8th Cir. 1980) (dictum) (subpoena not court order), and Stiles v. Atlanta Gas Light Co., 453 F. Supp. 798, 800 (N.D. Ga. 1978) (same), with Adams v. United States Lines, No. 80-0952, slip op. at 2-3 (E.D. La. Mar. 16, 1981) (subpoena is court order). Cf. Moore v. United States Postal Serv., 609 F. Supp. 681, 682 (E.D.N.Y. 1985) (subpoena is court order where required to be approved by judge under state law).

Note that an agency cannot avoid the result in Doe v. DiGenova by relying on a routine use that seeks to authorize disclosure pursuant to a subpoena. See Doe v. Stephens, 851 F.2d 1457, 1465-67 (D.C. Cir. 1988) (discussed above under routine use exception).

What is the Standard for Issuance of a Court Order?

Unlike similar provisions in other federal confidentiality statutes, see, e.g., 42 U.S.C. § 290dd-2 (1994) (listing "good cause" factors to be weighed by court in evaluating applications for orders permitting disclosure of records pertaining to substance abuse), subsection (b)(11) contains no standard governing the issuance of an order authorizing the disclosure of otherwise protected Privacy Act information. However, several courts have addressed the issue with varying degrees of clarity. It has been held, for example, that because the Privacy Act does not itself create a qualified discovery "privilege," a showing of "need" is not a prerequisite to initiating discovery of protected records. See Laxalt v. McClatchy, 809 F.2d 885, 888-90 (D.C. Cir. 1987); see also Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980) (noting that objection to discovery of protected records "does not state a claim of privilege"); Bosaw v. NTEU, 887 F. Supp. 1199, 1215-17 (S.D. Ind. 1995) (citing Laxalt with approval, although ultimately determining that court did not have jurisdiction to rule on merits of case); Ford Motor Co. v. United States, 825 F. Supp. 1081, 1083 (Ct. Int'l Trade 1993) ("[T]he Privacy Act does not establish a qualified discovery privilege that requires a party seeking disclosure under 5 U.S.C. § 552a(b)(11) to prove that its need for the information outweighs the privacy interest of the individual to whom the information relates."); Clavir v. United States, 84 F.R.D. at 614 ("it has never been suggested that the Privacy Act was intended to serve as a limiting amendment to . . . the Federal Rules of Civil Procedure"); cf. Baldrige v. Shapiro, 455 U.S. 345, 360-62 (1981) (Census Act held to constitute statutorily created discovery "privilege" because it precludes all disclosure of raw census data despite need demonstrated by litigant).

Rather, Laxalt v. McClatchy establishes that the only test for discovery of Privacy Act-protected records is "relevance" under Rule 26(b)(1) of the Federal Rules of Civil Procedure. 809 F.2d at 888-90; see also, e.g., Hernandez v. United States, No. 97-3367, 1998 WL 230200, at **2-3 (E.D. La. May 6, 1998); Forrest v. United States, No. 95-3889, 1996 WL 171539, at *2 (E.D. Pa. Apr. 11, 1996); Bosaw, 887 F. Supp. at 1216-17 (citing Laxalt with approval, although ultimately determining that court did not have jurisdiction to rule on merits of case); Ford Motor Co., 825 F. Supp. at 1083-84; Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 49 (N.D.N.Y. 1991); O'Neill v. Engels, 125 F.R.D. 518, 520 (S.D. Fla. 1989); Murray v. United States, No. 84-2364, slip op. at 1-3 (D. Kan. Feb. 21, 1988); Broderick v. Shad, 117 F.R.D. 306, 312 (D.D.C. 1987); Smith v. Regan, No. 81-1401, slip op. at 1-2 (D.D.C. Jan. 9, 1984); In re Grand Jury Subpoenas Issued to United States Postal Serv., 535 F. Supp. 31, 33 (E.D. Tenn. 1981); Christy v. United States, 68 F.R.D. 375, 378 (N.D. Tex. 1975). But see Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984) (requests for court orders "should be evaluated by balancing the need for the disclosure against the potential harm to the subject of the disclosure"); Newman, No. 81-2480, slip op. at 3 (D.D.C. Sept. 13, 1982) (evaluating "legitimacy" of discovery requests and "need" for records as factors governing issuance of court order).

However, it is important to note that a protective order limiting discovery under Rule 26(c) of the Federal Rules of Civil Procedure (based, if appropriate, upon a court's careful in camera inspection) is a proper procedural device for protecting particularly sensitive Privacy Act-protected records when subsection (b)(11) court orders are sought. See Laxalt, 809 F.2d at 889-90; see also, e.g., Boudreaux v. United States, No. 97-1592, 1999 WL 499911, at **1-2 (E.D. La. July 14, 1999) (recognizing relevancy of subsection (b)(11) to court's resolution of dispute over motion to compel responses to production of documents subject to Privacy Act, but ordering in camera review of documents so that legitimacy of agency objections may be determined "in the considered and cautious manner contemplated by the Privacy Act"); Gary v. United States, No. 3:97-cv-658, 1998 U.S. Dist. LEXIS 16722, at **10-11 (E.D. Tenn. Sept. 4, 1998) (finding that while third party's personnel file may contain relevant information, disclosure of that file must be made pursuant to protective order); Bustillo v. Hawk, No. 97-WM-445, 1998 WL 299980, at **4-6 (D. Colo. May 28, 1998) (ordering defendant to provide United States Marshals Service with addresses of individually named defendants for service of process on behalf of inmate and ordering that addresses be safeguarded by Marshals Service); Hernandez, No. 97-3367, 1998 WL 230200, at **2-3 (E.D. La. May 6, 1998) (granting motion to compel agency to produce individual's personnel file "which is likely to contain information 'relevant to the subject matter involved in the pending action,'" but accommodating "legitimate privacy and confidentiality concerns" with protective order); Wright v. United States, No. 95-0274, 1996 WL 525324 (D.D.C. Sept. 10, 1996) (order "pursuant to the Privacy Act and Rule 26 of the Federal Rules of Civil Procedure" establishing procedures to be followed by parties "[i]n order to permit the parties to use information relevant to th[e] case without undermining the legislative purposes underlying the Privacy Act"); Bosaw, 887 F. Supp. at 1216-17 (citing Laxalt with approval, although ultimately determining that court did not have jurisdiction to rule on merits of case); PHE, Inc. v. Department of Justice, No. 90-0693, slip op. at 13 & accompanying order (D.D.C. Nov. 14, 1991); Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. at 49; Avirgan v. Hull, Misc. No. 88-0112, slip op. at 1-3 (Bankr. D.D.C. May 2, 1988); Baron & Assocs. v. United States Dep't of the Army, No. 84-2021, slip op. at 2-4 (D.D.C. Apr. 1, 1985); Granton v. HHS, No. 83-C-3538, 1984 U.S. Dist. LEXIS 19113, at **2-3 (N.D. Ill. Feb. 27, 1984); White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 1-3 (D.D.C. Oct. 14, 1983); LaBuguen v. Bolger, No. 82-C-6803, 1983 U.S. Dist. LEXIS 13559 (N.D. Ill. Sept. 21, 1983) (order); Clymer v. Grzegorek, 515 F. Supp. 938, 942 (E.D. Va. 1981); cf. Forrest, 1996 WL 171539, at **2-3 (parties ordered to "explore the possibility of entering into a voluntary confidentiality agreement regarding protecting the privacy interests of those individuals affected by disclosure"); Loma Linda Community Hosp. v. Shalala, 907 F. Supp. 1399, 1405 (C.D. Cal. 1995) ("Even if release of the data . . . had unexpectedly included information not already known to [the recipient], a confidentiality order could have been imposed to protect the privacy interests in issue."); Williams v. McCausland, No. 90 Civ. 7563, 1992 WL 309826, at *3 (S.D.N.Y. Oct. 15, 1992) (parties directed to agree on and execute appropriate protective stipulation for information sought in discovery that, under Privacy Act's subsection (b)(2) standard, would not be required to be disclosed under FOIA).

In some instances, it may even be appropriate for a court to entirely deny discovery. See, e.g., Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546-48 (11th Cir. 1985); Oslund v. United States, 125 F.R.D. 110, 114-15 (D. Minn. 1989); cf. Barnett v. Dillon, 890 F. Supp. 83, 88 (N.D.N.Y. 1995) (declining to order disclosure of FBI investigative records protected by Privacy Act to arrestees despite their assertion that records were essential to proper prosecution and presentment of claims in their civil rights lawsuit).

In Redland Soccer Club, Inc. v. Department of the Army of the United States, No. 1:CV-90-1072, slip op. 1-3 & accompanying order (M.D. Pa. Jan. 14, 1991), aff'd, rev'd & remanded on other grounds, 55 F.3d 827 (3d Cir. 1995), the court, recognizing the "defendants' initial reluctance to respond to plaintiffs' [discovery] requests without a specific order of court [as] a reasonable precaution in light of the terms of the Privacy Act," solved the dilemma by ordering that the Army respond to "all properly framed discovery requests in th[e] proceeding" and that such responses were to "be deemed made pursuant to an order of court." Id.

Must an Agency Obtain a Court Order to Publicly File Protected Records with the Court?

As noted above, the Act's legislative history indicates that a court is not a "person" or "agency" within the meaning of subsection (b), and that the Act was " designed to interfere with access to information by the courts." 120 Cong. Rec. 36,967 (1974), reprinted in Source Book at 958-59.

However, the nonconsensual public filing of protected records with a court, during the course of litigation, does constitute a subsection (b) disclosure. See Laningham v. United States Navy, No. 83-3238, slip op. at 2-3 (D.D.C. Sept. 25, 1984), summary judgment granted (D.D.C. Jan. 7, 1985), aff'd per curiam, 813 F.2d 1236 (D.C. Cir. 1987); Citizens Bureau of Investigation v. FBI, No. 78-60, slip op. at 3 (N.D. Ohio Dec. 14, 1979). Thus, such public filing is proper only if it is undertaken pursuant to: (1) the subsection (b)(3) routine use exception (previously discussed), or (2) the subsection (b)(11) court order exception. See generally Krohn v. United States Dep't of Justice, No. 78-1536, slip op. at 3-11 (D.D.C. Mar. 19, 1984) (finding violation of Privacy Act where agency's disclosure of records as attachments to affidavit in FOIA lawsuit "did not fall within any of the exceptions listed in Section 552a"), reconsideration granted & vacated in nonpertinent part (D.D.C. Nov. 29, 1984).

Where the routine use exception is unavailable, an agency should obtain a subsection (b)(11) court order permitting such public filing. Cf. Doe v. DiGenova, 779 F.2d at 85 n.20 ("This is not to say that a prosecutor, a defendant, or a civil litigant, cannot submit an in camera ex parte application for a [subsection (b)(11)] court order."). However, in light of Laningham, No. 83-3238, slip op. at 2-3 (D.D.C. Sept. 25, 1984), agencies should take care to apprise the court of the Privacy Act-related basis for seeking the order. In Laningham, the district court ruled that the government's nonconsensual disclosure of plaintiff's "disability evaluation" records to the United States Claims Court was improper--even though such records were filed only after the agency's motion for leave to file "out of time" was granted. Id. The court held that subsection (b)(11) applies only when "for compelling reasons, the court specifically orders that a document be disclosed," and it rejected the agency's argument that the exception applies whenever records happen to be filed with leave of court. Id. at 4.

One unique solution to the problem of filing Privacy Act-protected records in court is illustrated by In re A Motion for a Standing Order, 1 Vet. App. 555, 558-59 (Ct. Vet. App. 1990), in which the Court of Veterans Appeals issued a "standing order" permitting the Secretary of Veterans Affairs to routinely file relevant records from a veteran's case file with that court.

What Does "Competent Jurisdiction" Mean?

One of the few Privacy Act decisions to even mention this oft-overlooked requirement is Laxalt v. McClatchy, 809 F.2d at 890-91. In that case, the Court of Appeals for the District of Columbia Circuit appeared to equate the term "competent jurisdiction" with personal jurisdiction, noting that the requests for discovery of the nonparty agency's records "were within the jurisdiction of the District Court for the District of Columbia" as "[n]either party contends that the District Court lacked personal jurisdiction over the FBI's custodian of records." Id.

Of course, where an agency is a proper party in a federal case, the district court's personal jurisdiction over the agency presumably exists and thus court-ordered discovery of the agency's records is clearly proper under subsection (b)(11).

However, where a party seeks discovery of a nonparty agency's records--pursuant to a subpoena duces tecum issued under Rule 45 of the Federal Rules of Civil Procedure--Laxalt suggests that the district court issuing the discovery order must have personal jurisdiction over the nonparty agency in order to be regarded as a court of "competent jurisdiction" within the meaning of subsection (b)(11). See 809 F.2d at 890-91; cf. Mason v. South Bend Community Sch. Corp., 990 F. Supp. 1096, 1097-99 (N.D. Ind. 1997) (determining that Social Security Administration's regulations "generally do not authorize the release of . . . records upon order of a court, even a federal court, in the absence of a special circumstance as defined by the statutes and regulations" and thus finding SSA not to be in contempt of court for failure to comply with prior order compelling SSA, a nonparty, to produce documents). But cf. Lohrenz v. Donnelly, 187 F.R.D. 1, 8-9 (D.D.C. 1999) (finding that requisite showing of good cause had been made by nonparty agency and providing for entry of protective order with no discussion of jurisdiction over nonparty agency). The issue of whether personal jurisdiction exists in this kind of situation is not always a clear-cut one--particularly where the nonparty agency's records are kept at a place beyond the territorial jurisdiction of the district court that issued the discovery order. Indeed, this very issue was apparently raised but not decided in Laxalt, 809 F.2d at 890-91 (finding it unnecessary to decide whether federal district court in Nevada would have had jurisdiction to order discovery of FBI records located in District of Columbia).

The existence of "competent jurisdiction" is likewise questionable whenever a state court orders the disclosure of a nonparty federal agency's records--because ordinarily the doctrine of "sovereign immunity" will preclude state court jurisdiction over a federal agency or official. See, e.g., Bosaw, 887 F. Supp. at 1210-17 (state court lacked jurisdiction to order federal officers to produce documents because government did not explicitly waive its sovereign immunity and, because federal court's jurisdiction in this case was derivative of state court's jurisdiction, federal court was likewise barred from ordering officers to produce documents); Boron Oil Co. v. Downie, 873 F.2d 67, 70-71 (4th Cir. 1989) (state court subpoena held to constitute "action" against United States and thus sovereign immunity applied even though EPA was not party in suit); Sharon Lease Oil Co. v. Federal Energy Regulatory Comm'n, 691 F. Supp. 381, 383-85 (D.D.C. 1988) (state court subpoena quashed as state court lacked jurisdiction to compel nonparty federal official to testify or produce documents absent waiver of sovereign immunity); see also Moore v. Armour Pharm. Co., 129 F.R.D. 551, 555 (N.D. Ga. 1990) (citing additional cases on point); cf. Louisiana v. Sparks, 978 F.2d 226, 235 n.15 (5th Cir. 1992) (noting that "[t]here is no indication that [(b)(11)] evinces congressional intent to broadly waive the sovereign immunity of [federal] agencies . . . when ordered to comply with state court subpoenas").

In Moore v. United States Postal Serv., 609 F. Supp. 681, 682 (E.D.N.Y. 1985), the court assumed without explanation that a state court subpoena, required by state law to be approved by a judge, constituted a proper subsection (b)(11) court order; the issue of "competent jurisdiction" was not addressed. Cf. Henson v. Brown, No. 95-213, slip op. at 4-5 (D. Md. June 23, 1995) (although not disputed by parties, stating that judge's signature elevated subpoena to court order within meaning of subsection (b)(11) in context of determining whether defendant complied with order).

At least one state court has ruled that it has "competent jurisdiction" to issue a subsection (b)(11) court order permitting the disclosure of a Privacy Act-protected record. Tootle v. Seaboard Coast Line R.R., 468 So. 2d 237, 239 (Fla. Dist. Ct. App. 1984); cf. Saulter v. Municipal Court for the Oakland-Piedmont Judicial Dist., 142 Cal. App. 3d 266, 275 (Cal. Ct. App. 1977) (suggesting that state court can order state prosecutor to subpoena federal records for purpose of disclosing them to criminal defendant in discovery).

Agencies that construe state court orders as providing authority to disclose under subsection (b)(11) should be aware that compliance with such an order might be taken by a court as acquiescence to the court's jurisdiction, notwithstanding applicable principles of sovereign immunity.

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