Gowan v. U.S. Air Force ( 1998 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    JUL 17 1998
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    TENTH CIRCUIT
    JOHN G. GOWAN,
    Plaintiff-Appellant,
    v.
    No. 96-2134
    UNITED STATES DEPARTMENT
    OF THE AIR FORCE,
    Defendant-Appellee.
    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-Appellant.
    Maria Simon, Department of Justice, Washington, D.C. (Leonard Schaitman,
    Department of Justice, with her on the briefs), for Defendant-Appellee.
    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 (“ESPI”) – which enabled the scanning
    of a component for defects without having to destroy the test subject. Major
    Gowan, however, was unable to interest the Air Force in evaluating ESPI 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 Kehl (“Major Kehl”), 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 Kehl and by Major Gowan’s squadron
    commander, Lt. Colonel Richard Steele (“Lt. Colonel Steele”).
    -2-
    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 Kehl’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 Kehl 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 (“Kirtland 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 Kehl, 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.
    -3-
    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 nor his social security number, with the papers collected by
    Majors Kehl 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 became involved with
    Hill’s case. Just before charges were preferred against 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.
    -4-
    As part of the response to 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 in rebutting
    Major Gowan’s charges. Major Gowan, not knowing that 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. Colonel Brower and Gampel
    recommended withdrawing the charges. Major Kehl 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 alleged 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
    investigation.
    -5-
    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
    -6-
    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
    Colonel 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 Kirtland OSI
    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 OSI report to reflect what
    persons were in fact interviewed during the Kirtland OSI 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 Kehl’s and Major
    Ruppert’s papers, several years after his initial request, and the AFBCMR took
    -7-
    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.
    The district court, United States Magistrate Judge Lorenzo Garcia 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
    -8-
    “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).
    I. 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 amendment 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
    -9-
    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 disagreement 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 shall . . . [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 OSI 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 complaint is not amendable because it is
    a statement of opinion, and (2) the Privacy Act does not apply because
    “[c]omplaints made to the Inspector General are exempt from disclosure.”
    - 10 -
    Because we affirm on the second basis, we do not need to address the first reason
    for the district court’s ruling.
    The district court correctly held that the Air Force has exempted 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 (I) 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). 1 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
    1
    This regulation was originally promulgated in 1986. See Rules and
    Regulations, Department of Defense, 
    51 Fed. Reg. 20,277
    , 20,284 (1986).
    - 11 -
    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--irrespective 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 , 
    957 F.2d 139
    , 143 (4th Cir. 1992);      Doe v. Federal Bureau of
    Investigation , 
    936 F.2d 1346
    , 1352 (D.C. Cir. 1991);      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.”).
    - 12 -
    B.     Kirtland OSI Report
    Major Gowan also contends that the Kirtland 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 Kirtland OSI report was
    exempted from the provisions of § 552(d), but did not specify which § 552a(k)(2)
    exemption it relied upon. We agree with the district court that the Kirtland OSI
    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(j)(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 subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),
    (7), (9), (10), and (11), and (i) 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
    - 13 -
    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
    investigators, and associated with an identifiable
    individual . . . .
    The Air Force has promulgated regulations under § 552a(j)(2) exempting
    certain material from the requirements of § 552a(d), including “Investigative
    Support Records” and “Criminal Records.”         See 32 C.F.R. Pt. 806(b), App. C(a)
    (1997). 2 The “Investigative Support Records” category includes “[r]eports of
    investigation, collection reports, statements of individuals, affidavits,
    correspondence, and other documentation pertaining to criminal collection
    activities investigative surveys . . .” which are used “by AFOSI 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 includes
    “[r]eports of investigation, statements of individuals, correspondence, and other
    informational material pertaining to specific investigations of alleged violations
    2
    This regulation was originally promulgated in 1986. See Rules and
    Regulations, Department of Defense, 
    51 Fed. Reg. 20,277
    , 20,283 (1986).
    - 14 -
    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 OSI 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
    - 15 -
    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 disagreement, 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 complaints 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 Lujan v. Defenders of Wildlife   , 
    504 U.S. 555
    ,
    563-64 (1992). As a result, we decline to hear his challenge to the AFBCMR
    referral 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
    - 16 -
    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).
    II. 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 Gampel 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
    - 17 -
    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(g)(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.    3
    3
    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 district 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.
    - 18 -
    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 Kehl 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).
    - 19 -
    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 Kehl, Major Ruppert, Gampel, and Lt. Colonel Brower actually
    used the file in making decisions about him. 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, 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
    - 20 -
    a record sufficient for consideration of that issue, the court may decline to
    consider it.”).
    III. Methods of Collecting Information
    Major Gowan also contends that the Air Force violated the Privacy Act
    when the Kirtland OSI, Major Kehl, 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 district 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).
    - 21 -
    IV. Methods of Maintaining Records
    Major Gowan suggests that the Air Force’s maintenance of inaccurate and
    incomplete records, namely the Kirtland OSI 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
    willfully in failing to maintain accurate records.
    Deters v. United States Parole Comm’n   , 
    85 F.3d 655
    , 657 (D.C. Cir. 1996).
    Major Gowan has no § 552a(e)(5) cause of action regarding either the
    Kirtland 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. 806b, 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
    - 22 -
    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
    plaintiff’s 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
    - 23 -
    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 available 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 United States Dep’t of Justice v. Reporters Comm.
    for Freedom of the Press , 
    489 U.S. 749
    , 762-64 (1989) (upholding privacy interest
    in rap sheet, even though components of summary are in public record). We
    - 24 -
    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 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 plaintiff to undergo psychiatric evaluation, not from plaintiff’s records).
    - 25 -
    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 of 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 already done so.
    Consequently, Elder’s providing the same information (even though before Major
    - 26 -
    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’ inquiries resulted directly from Major Gowan’s soliciting
    their assistance. Unlike in   Swenson v. United States Postal Serv.   , 
    890 F.2d 1075
    ,
    1077-78 (9th Cir. 1989), where the disclosure of 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 on his behalf.    See 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
    - 27 -
    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).
    - 28 -
    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 prevail[]” in order to receive
    attorney’s fees and costs.   See 5 U.S.C. §§ 552a(g)(1)(A), (g)(1)(B), (g)(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 Clarkson , 
    678 F.2d at 1371
    (applying Privacy Act analysis to FOIA claim for fees).
    - 29 -
    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
    that he or she has “substantially prevailed” on his claim.    See Anderson v.
    Secretary of Health and Human Serv.      , 
    80 F.3d 1500
    , 1504 (10th Cir. 1996). If the
    plaintiff 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. Department of Agriculture         , 
    11 F.3d 211
    , 216 (D.C. Cir. 1993);    see also Alan R. Gilbert, Annotation,    Construction and
    Application of Freedom of Information Act Provision (5 USCS § 552(a)(4)(E))
    Concerning Award of Attorney Fees and Other Litigation Costs          , 
    36 A.L.R. Fed. 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
    - 30 -
    motivated by Major Gowan’s lawsuit but by new, less restrictive directives issued
    during the pendency of the litigation.
    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.
    CONCLUSION
    For the reasons stated above, the judgment of the district court is
    AFFIRMED.
    - 31 -