Ames v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
HARRIET A. AMES, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-00629 (ESH)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Harriet A. Ames brings this action alleging that the United States Department of
Homeland Security (“DHS”) and the United States Department of Defense violated her rights
under the Privacy Act, 5 U.S.C. § 552a, by unlawfully disclosing DHS’s investigative report on
plaintiff’s past misconduct to her subsequent employer, the National Geospatial-Intelligence
Agency (“NGA”). (Compl. ¶ 1, May 2, 2013 [ECF 1].) Before the Court is defendants’ Motion
for Summary Judgment. (Defs’ Mot., July 2, 2015 [ECF 49].) As explained herein, defendants’
motion will be granted.
BACKGROUND
In October 2008, plaintiff began working for the Federal Emergency Management
Agency (“FEMA”) of DHS as a GS-13 personnel security specialist. In September 2009,
plaintiff was selected to be Acting Branch Chief of the Personnel Security Branch. She was
subsequently promoted to Branch Chief (GS-14) in October 2010. The Personnel Security
Branch is responsible for conducting suitability and national security checks for permanent full-
time employees, On-Call Response Employees, Disaster Assistant Employees, contractors,
affiliates, and interns at FEMA. As Branch Chief, plaintiff was personally responsible for
adjudicating and granting high level security clearances, including Top Secret with Sensitive
Compartmented Information access.
On August 1, 2011, Senior Special Agent K.C. Yi of the DHS Office of Inspector
General (“DHS OIG”) interviewed plaintiff as part of an active investigation of FEMA’s Chief
Security Officer and plaintiff’s supervisor, Burt Thomas. The investigation of Mr. Thomas
determined that he appeared to have engaged in a conflict of interest when he hired Gary Walker
and James Bland as supervisory fraud investigators while Walker and Bland were the owners of
a FEMA vendor, and that Mr. Thomas provided false statements to DHS OIG regarding his
knowledge of their criminal histories.
Agent Yi subsequently initiated and conducted a separate investigation of plaintiff. The
investigation ultimately determined that she had also provided false statements to DHS OIG, and
that she appeared to have violated security standards in favorably adjudicating security
clearances for Walkers and Bland, both of whom had criminal records. Specifically, the
investigation found that, at the time of her interview, plaintiff had detailed knowledge of Mr.
Walker’s past criminal conviction—information which was material to the OIG’s investigation—
but denied knowing anything about it. The inquiry additionally determined that plaintiff may
have provided false information or lacked candor when she had been previously interviewed by
an Office of Personnel Management investigator as part of Mr. Bland’s official background
investigation for a security clearance—information which was considered material to the OPM
investigation and was used to assist in determining Bland’s suitability for FEMA employment.
Finally, the investigation concluded that plaintiff failed to follow DHS policy and federal
regulations when she approved national security clearances for both Walker and Bland.
2
On February 15, 2012, DHS OIG presented the investigative findings to the U.S.
Attorney’s Office for the District of Columbia, which declined criminal prosecution in favor of
administrative remedies. On February 16, 2012, DHS OIG conducted a second interview with
plaintiff and gave her formal notice that she was the subject of an investigation. During the
interview, plaintiff admitted in a sworn statement that she had granted interim Secret security
clearances regardless of whether positions were designated Special Sensitive, in violation of
DHS and Director of National Intelligence regulations, guidelines, and policies. (Defs’ Mot., Ex.
3F, Plaintiff’s February 16, 2012 Sworn Statement, at 8.)
The same day, February 16, 2012, plaintiff submitted her two-week notice of resignation
from FEMA, which took effect on February 24, 2012. Two days later, plaintiff started working
as the Division Chief of Personnel Security (GS-15) at NGA, another agency in the government
intelligence community, which is located within the Department of Defense.
On May 31, 2012, DHS OIG issued its Report of Investigation. (Defs’ Mot., Ex. 3, DHS
OIG Report of Investigation (“Report”).) When Agent Yi learned that plaintiff had accepted the
position at NGA, he became concerned that plaintiff posed a national security risk, in view of
DHS OIG’s conclusion that she had provided false information to investigators and violated
various national security regulations. (See Report at 6 (citing violations of 5 C.F.R. §§
732.202(a)(2)(i) (waivers and exceptions to investigative requirements), 731.104(b)(2)
(appointments subject to investigation), and 731.202 (suitability standards for security clearance
and pre-employment checks).) On July 11, 2012, Agent Yi emailed his supervisor, Special
Agent James Izzard, as well as Danielle Blue at the Personnel Security Division, and Kimberly
Lew (Blue’s supervisor) to discuss his concerns that plaintiff had “hopped” agencies before her
clearance could be revoked. Agent Yi wrote:
3
One of the concerns that came up during the investigation is that federal employees
can hop agencies knowing that their clearance was about to be revoked, and thus no
action is taken once they leave that particular agency. The employee’s new agency
never finds out about the clearance issue because the revocation is not in the system.
This occurred with Gary Walker when he left Department of Transportation OIG
under threat of termination and his clearance was not revoked. FEMA-OCSO, in
particular, Harriet Ames, used this as an excuse to grant him a TS clearance based on
reciprocity.
(Defs’ Mot. at 8) (quoting Agent Yi email).
Ms. Lew responded that the Personnel Security Division had taken no actions prior to
plaintiff’s departure from FEMA, although her office “would have initiated a security clearance
action,” and recommended that “since this information may have a bearing on Ms. Ames[’s]
employment,” that the DHS OIG office “would forward/share this with the OIG of the agency in
which she is now employed.” (Defs’ Mot. at 8-9.)
On July 13, 2012, Agent Yi contacted his counterpart in the Office of Inspector General
for NGA, Special Agent Heather K. Alexander, and disclosed the contents of the Report by
telephone. He also mentioned that DHS OIG would provide a copy of the Report upon receipt of
a formal request. On July 13, 2012, NGA formally requested the Report. Agent Yi forwarded
NGA’s request to Richard Doery, Assistant Counsel for the DHS OIG Office of Counsel, and
Special Agent Izzard to review any possible privacy law concerns related to disclosure of the
Report. On July 17, 2012, NGA initiated its own investigation into whether plaintiff had made
false statements. On July 18, 2012, Agent Yi emailed Investigator Alexander to explain that
DHS OIG Office of Counsel’s review would delay official disclosure of the Report.
On August 30, 2012, Agent Yi sent the Report to NGA in a series of four emails. NGA
subsequently terminated plaintiff’s employment. On May 2, 2013, plaintiff initiated this action
alleging that defendants violated her rights under the Privacy Act. Defendants moved for
summary judgment on July 2, 2015. Plaintiff filed her Opposition to defendants’ Motion for
4
Summary Judgment on September 24, 2015. (Pl’s Opp’n, September 24, 2015 [ECF 67].)
Defendants filed their Reply on November 10, 2015. (Defs’ Reply, Nov. 10, 2015 [ECF 74].)
ANALYSIS
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be
granted if the pleadings, discovery, and any affidavits show that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A genuine issue of material fact exists if the evidence, viewed in a light most favorable
to the nonmoving party, could support a reasonable jury’s verdict for the non-moving party.”
Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014) (quoting Hampton v. Vilsack, 685
F.3d 1096, 1099 (D.C. Cir. 2012)) (internal citation marks omitted). To defeat a summary
judgment motion, however, “the non-movant must do more than simply show that there is some
metaphysical doubt as to the material facts; [i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Gibbs v. Washington Metro. Area
Transit Auth., 48 F. Supp. 3d 110, 121 (D.D.C. 2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249-250 (1986).
II. THE PRIVACY ACT
When it passed the Privacy Act, Congress declared that “in order to protect the privacy of
individuals identified in information systems maintained by federal agencies, it is necessary and
proper for the Congress to regulate the collection, maintenance, use, and dissemination of
information by such agencies.” Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 88 Stat.
1896. The Act provides agencies with “detailed instructions for managing their records and
provides for various sorts of civil relief to individuals aggrieved by failures on the Government’s
part to comply with the requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004). These
5
provisions for relief “protect [] individuals from injury that can result from the bureaucratic habit
of collecting and retaining information, however dated, prejudicial, or false.” Dickson v. Office
of Pers. Mgmt., 828 F.2d 32, 38 (D.C. Cir. 1987); see also McCready v. Nicholson, 465 F.3d 1,
7-8 (D.C. Cir. 2006) (quoting Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984) (“Put simply, the
Act safeguards the public from unwarranted collection, maintenance, use and dissemination of
personal information contained in agency records…by allowing an individual to…ensur[e] that
his records are accurate and properly used.”)
Plaintiff seeks recovery of damages under Section (g) of the Act, which creates a cause of
action for an agency’s violation of the Act. See 5 U.S.C. § 552a(g)(D). Plaintiff argues that
defendants violated Section 552a(b), which forbids disclosure of “any record which is contained
in a system of records by any means of communication to any person, or to another agency,
except…with the prior written consent of [] the individual to whom the record pertains.” To
prevail, plaintiff must prove four elements: “1) the disclosed information is a ‘record’ contained
within a ‘system of records’; 2) the agency improperly disclosed the information; 3) the
disclosure was willful or intentional; and 4) the disclosure adversely affected the plaintiff.” Reed
v. Dep’t of the Navy, 910 F. Supp. 2d 32, 40 (D.D.C. 2012) (citing Logan v. Dep’t of Veterans
Affairs, 357 F. Supp. 2d 149, 154 (D.D.C. 2004)); see also Doe v. Dep’t. of Justice, 660 F. Supp.
2d 31, 44-45 (D.D.C. 2009). “The burden of proof lies with the plaintiff.” Doe, 660 F. Supp. 2d
at 45 (citing Reuber v. United States, 829 F.2d 133, 141 (D.C. Cir. 1987).
Defendants do not contest that the DHS OIG Report disclosed by Agent Yi was a
“record” contained within a “system of records.” They instead argue that the disclosure was
legally proper under multiple exemptions. The Privacy Act recognizes 12 exemptions to the
disclosure-without-consent rule, including for “routine use[s].” 5 U.S.C. 552a(b)(3). A routine
6
use is defined as a disclosure of a record “for a purpose which is compatible with the purpose for
which it is collected.” 5 U.S.C. § 552a(a)(7); see also Budik v. United States, 949 F. Supp. 2d
14, 28 (D.D.C. 2013). An agency is also required to publish in the Federal Register notice of the
types of disclosures that it may make pursuant to the “routine use” exemption. 5 U.S.C. §§
552a(b)(3), 552a(e)(4)(D). Defendants may therefore successfully invoke the routine use
exemption only by demonstrating both “compatibility” and “publication” of the specific routine
use exemption. See Reed, 910 F. Supp. 2d at 41; Radack v. U.S. Dep’t of Justice, 402 F. Supp.
2d 99, 105 (D.D.C. 2005).
Given the facts as plaintiff presents them, the Court concludes that DHS OIG’s disclosure
of the Report was compatible with the use for which the Report was created and that it fell within
two published routine uses: Law Enforcement (Routine Use G) and National Security (Routine
Use H). The disclosure was therefore proper as a matter of law.
A. Compatibility
Compatibility of disclosure and collection must exist independent of a given agency’s
published routine uses. The compatibility requirement was intended to prevent the “unnecessary
exchange of information to another person or to agencies who may not be as sensitive to the
collecting agency’s reasons for using and interpreting the material.” Analysis of House and
Senate Compromise Amendments to the Federal Privacy Act, reprinted in 120 Cong. Rec. 40405,
40406 (1974).
To assess compatibility, a court must conduct a “dual inquiry into the purpose for the
collection of the record in the specific case and the purpose of the disclosure.” Britt v. Naval
Investigative Serv., 886 F.2d 544, 548-49 (3rd Cir. 1989). Where a “concrete relationship or
similarity, some meaningful degree of convergence” exists “between the disclosing agency’s
purpose in gathering the information and in its disclosure,” compatibility is satisfied. U.S. Postal
7
Service Service v. National Ass’n of Letter Carriers, AFL-CIO, 9 F.3d 138, 145 (D.C. Cir. 1993)
(quoting Britt, 886 F.2d at 549-50). 1
Defendants meet the compatibility prong of the routine use exemption, and indeed,
plaintiff does not appear to contest the issue, independent of her individual arguments on the
specific routine uses. DHS OIG and Agent Yi prepared the Report on plaintiff in order to
determine if there had been misconduct by a government employee in a national security
position. OIG’s interest, of course, was to inquire into whether additional action was necessary
to prevent violations from occurring at an important gate-keeping function: the issuance of
security clearances to government personnel. OIG’s purpose in disclosing the Report was
precisely the same: to prevent such misconduct by that individual at another national security
agency. There is little doubt, therefore, that there is a “concrete relationship” between OIG’s
purpose in creating the record of investigation and its purpose in sharing that record of
misconduct with another agency’s OIG: both were motivated by the need to determine whether
plaintiff’s government employment responsibilities would need to be curtailed.
The fact that one government agency created the record of misconduct and then disclosed
it to a separate government agency does not defeat compatibility. See Radack, 402 F. Supp. 2d at
106 (OIG’s decision to turn over plaintiff’s record of misconduct to state bar authorities was
“precisely in accordance with the purpose for which it was collected” and “easily met” the
compatibility requirement because the investigation was conducted “to provide for the resolution
1
The precise definition of “compatibility” has not been independently established in this Circuit.
See Doe, 660 F. Supp. 2d at 47 n.7. Although the U.S. Postal Service opinion declined to
establish a detailed linguistic test for the D.C. Circuit, it did indicate general agreement (outside
the labor relations context) with the “meaningful convergence” and “concrete relationship” test
employed by the Third Circuit’s Britt decision. See U.S. Postal Service, 9 F.3d at 145.
8
of allegations of misconduct”); Reed v. Dep’t of Navy, 899 F. Supp. 2d 25, 33 (2012). 2 In Reed,
for example, the Navy investigated allegations of misconduct by a service member and then
shared the findings of the military investigation with the individual’s other employer, a local
police department. This Court found that the purpose of record collection and disclosure were
sufficiently compatible because they both addressed the individual’s “fitness for duty.” It
rejected plaintiff’s argument that an individual’s fitness as a member of the military entailed
different parameters than fitness as a civilian police officer. Reed, 899 F. Supp. 2d at 33.
Similarly, Agent Yi and DHS OIG created the Report on plaintiff’s misconduct to
address her fitness to serve in a position involving national security, and the Report was
disclosed to NGA OIG in accordance with that same purpose.
B. Routine Use G—Law Enforcement
In addition to compatibility, defendants must demonstrate publication of “routine use”
exemptions. The DHS publishes multiple routine use exemptions in the Federal Register. The
Court finds that the disclosure was proper under at least two of these routine uses.
The “Law Enforcement” Routine Use, or Routine Use G, allows disclosure:
To an appropriate Federal, State, tribal, local, international, or foreign law
enforcement agency or other appropriate authority charged with investigating or
prosecuting a violation or enforcing or implementing a law, rule, regulation, or
order, where a record, either on its face or in conjunction with other information,
indicates a violation or potential violation of law, which includes criminal, civil,
or regulatory violations and such disclosure is proper and consistent with the official
duties of the person making the disclosure.
74 Fed. Reg. 55569-01(G) (Oct. 28, 2009).
2
Although the Court in Reed was able to find compatibility as to one individual’s disclosures in
the case, it did not rule for defendant on summary judgment because facts remained in dispute
with regard to a separate individual’s disclosures. Reed, 899 F. Supp. 2d at 33.
9
Here, the disclosure was made by one law enforcement agency (DHS) to another law
enforcement agency (NGA). It is undisputed that the DHS OIG Report “indicate[d] a violation
or potential violation of law.” Id. The Report found that plaintiff had made false statements to
investigators and failed to follow numerous DHS guidelines and regulations when she approved
national security clearances for employees with criminal backgrounds. (See Report at 5 (citing 5
C.F.R. §§ 732.202, 731.104(b)(2), 731.202).) Indeed, plaintiff admitted that she knowingly
granted interim Secret clearances to new employees hired for positions designated Special
Sensitive, in contravention of DHS policy requiring pre-employment checks for such positions.
(See Defs’ Mot., Ex. 3F, Plaintiff’s February 16, 2012 Sworn Statement, at 8.)
In Reed, this Court held that a law enforcement routine use exemption with similar
wording applied where a Navy investigator disclosed information relating to plaintiff’s various
military code violations to the plaintiff’s civilian employer. 910 F. Supp. 2d at 44. The cases are
quite similar—after the Navy investigators disclosed their investigation’s findings of past
misconduct in the military, the police department conducted its own investigation, which yielded
additional disclosures of misconduct. 3 Id. at 37. The Court in Reed held that, even though the
police department “would not be charged with the responsibility of investigating or prosecuting
plaintiff’s military code violations” or past criminal acts, the law enforcement exemption still
applied. Id.
Moreover, disclosure of the Report was “proper and consistent with the official duties of”
DHS OIG and was made to NGA OIG, an “appropriate authority charged with investigating”
such misconduct. 74 Fed. Reg. 55569-01(G). The Inspector General Act of 1978 describes the
3
In this case, NGA’s independent investigation confirmed the false statements disclosed by the
DHS OIG Report, but also found additional evidence that plaintiff was conducting a personal
business using government resources. (Defs’ Mot., Ex. 4, NGA OIG Report, at 17.)
10
duties of OIG offices “[t]o…conduct…and coordinate audits and investigations relating to
programs and operations of” the relevant agency and “[t]o conduct, supervise or coordinate
relationships between such [agency] and other Federal agencies…with respect to…the
identification and prosecution of participants in…fraud or abuse.” The Inspector General Act of
1978, 5 U.S.C.A. App. 3, § 4(a)(4). DHS OIG had the authority to investigate whether to take
disciplinary action against plaintiff, but she resigned before any such action could be taken.
Given that NGA OIG also possessed the law enforcement authority to investigate potential
violations of law, the coordination provision of the Inspector General Act made communication
perfectly appropriate. 4
Disclosure of the Report therefore fell comfortably within the scope of Routine Use G
because the Report indicated violations of law, and the disclosure was properly made to a party
charged with investigative authority. 74 Fed. Reg. 55569-01(G).
C. Routine Use H—National Security
The disclosure was also proper under the National Security Routine Use (or Routine Use
H), which allows disclosure:
To a Federal, State, or local agency, or other appropriate entity or individual, or
through established liaison channels to selected foreign governments, in order to
provide intelligence, counterintelligence, or other information for the purposes of
intelligence, counterintelligence, or antiterrorism activities authorized by U.S.
law, Executive Order, or other applicable national security directive.
74 Fed Reg. 55569-01(H).
As a member of the Intelligence community, the NGA is a “combat support agency of the
Department of Defense” that provides “geospatial intelligence” for the United States government
4
Plaintiff insists that defendants’ argument relies upon the contention that the Inspector General
Act somehow supersedes the Privacy Act. (Pl’s Opp’n at 23.) That misconstrues the relevance
of the Inspector General Act, which simply makes clear that the OIG offices are appropriate
authorities to investigate misconduct pursuant to Routine Use G.
11
and receives support from the Central Intelligence Agency. 10 U.S.C. §§ 441(a), 444. It would
make sense for Routine Use H to contemplate disclosures to the NGA regarding the fitness of
NGA employees for security clearances, given how instrumental such sensitive security positions
are to NGA’s mission to support the intelligence community. Routine Use H is also
supplemented with other clearly published notices that an employee’s qualifications for access to
classified information is subject to re-assessment.
The clearance process for determining access to classified information is governed by
Executive Order 12968, 60 Fed. Reg. 40245 (Aug. 2, 1995) (“EO 12968”), which establishes an
elaborate system of classification designed to protect the national security interests of the United
States. Of particular note is Section 1.2(d), which states that “all employees shall be subject to
investigation by an appropriate government authority…any time during the period of access to
ascertain whether they continue to meet the requirements for access.” Id. § 1.2(d); see also 5
C.F.R. § 731.104(b)(2) (“An appointment to a covered position also will be subject to
investigation when…an agency obtains new information in connection with the person’s
appointment that calls into question the person’s suitability under [classified information access
regulations].”) The language of Executive Order 12968 is sweeping: “in determining eligibility
for access under this order, agencies may investigate and consider any matter that relates to the
determination of whether access is clearly consistent with the interests of national security.” EO
12968 §3.1(d) (emphasis added). The Executive Order gives clear notice that “[e]mployees who
are eligible for access to classified information…may also be reinvestigated if, at any time, there
is reason to believe that they may no longer meet the standards for access established in this
order.” Id. § 3.4(b).
12
Significantly, Executive Order 12968 also imposes affirmative duties on all covered
employees to “report all violations of security regulations to the appropriate security officials.”
Id. § 6.2(a). “Employees are encouraged and expected to report any information that raises
doubts as to whether another employee’s continued eligibility for access to classified information
is clearly consistent with the national security.” Id. § 6.2(b) (emphasis added). The reporting
requirement in Executive Order 12968 represents such a uniquely important national security
interest that the D.C. Circuit has narrowly interpreted the scope of Title VII liability that can be
triggered by such reporting, in order to prevent a chilling effect. See Rattigan v. Holder, 689
F.3d 764, 769 (noting that “the likely chilling effect” of full Title VII liability presents problems
because the national security employees “need all the evidence they can get to control access to
information bearing on national security and to determine whether an individual is sufficiently
trustworthy to…[have] access to such information.”) As the Rattigan Court explained: “The
Executive Order encourages broad reporting precisely because the entities charged with making
security clearance decisions…need full access to even unsubstantiated and doubtful information
in order to make …sensitive, predictive judgments” and “broad liability for such reporting could
compromise the integrity of decisions.” Id. at 770-771.
This Court believes that a crabbed reading of Routine Use H would have the same
chilling effect on security clearance-related reporting as Rattigan contemplated in the Title VII
context. While the Court acknowledges that Title VII includes an explicit statutory exemption
for national security, 42 U.S.C. § 2000e-(2)(g), in contrast to the Privacy Act, the Supreme Court
and D.C. Circuit have made clear that the judiciary should exercise the utmost caution in
interfering with national security agencies’ adjudication of matters related to security clearances.
See Department of Navy v. Egan, 484 U.S. 518, 529 (1988) (“The Court accordingly has
13
acknowledged that with respect to employees in sensitive positions ‘there is a reasonable basis
for the view that an agency head who must bear the responsibility for the protection of classified
information committed to his custody should have the final say in deciding whether to repose his
trust in an employee who has access to such information.’”) (quoting Cole v. Young, 351 U.S.
536, 546, (1956)); Rattigan, 689 F.3d at 769; Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir.
2005) (holding that, where an employee was fired from the Transportation Security
Administration after failing to receive a security clearance, the court “[could] not adjudicate the
credibility of the claim” that the firing was pretextual because it was not qualified to “evaluate
the validity of the agency's security determination”); Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir.
1999) (holding that Egan applies to Title VII claims and bars judicial resolution of “a
discrimination claim based on an adverse employment action resulting from an agency security
clearance decision”).
The national security interest mandated in Executive Order 12968 not only made Agent
Yi’s disclosure consistent with Routine Use H, but also required it. His investigation had found
that plaintiff had committed numerous violations of DHS security policies and regulations.
Pursuant to Executive Order 12968 and in accordance with his duties as a member of the DHS
OIG, Agent Yi determined that such information warranted consideration at plaintiff’s new
agency. 5 Even setting aside Agent Yi’s legal obligations, common sense dictated that the DHS
5
Plaintiff emphasizes in her Opposition that matters pertaining to Agent Yi’s credibility are in
factual dispute. (Pl’s Opp’n at 3-8.) For example, she argues that Agent Yi could not have
thought that she was “agency-hopping” to elude disciplinary action at DHS, given the timing of
plaintiff’s hiring at NGA. (Id. at 4). Plaintiff’s concerns over Agent Yi’s veracity are irrelevant
for two reasons. First, Agent Yi’s precise motivation in disclosing the Report to NGA is not
material to whether the disclosure fell within a routine use exemption. The Report found, and
plaintiff admitted to, multiple violations of security policies and regulations and Agent Yi
communicated the records of those violations to another agency. Whether Agent Yi was
genuinely convinced that plaintiff resigned her FEMA position in order to avoid disciplinary
14
OIG’s findings should be communicated to plaintiff’s new employer given its place in the
intelligence community. NGA was thus an “appropriate entity” to receive such a disclosure, and
the communications were properly authorized by multiple laws, including the Inspector General
Act, Executive Order 12968l, and U.S. intelligence regulations.
In the Court’s view, plaintiff had sufficient notice that information relating to her
suitability for a sensitive national security position could be disclosed between agencies. In
addition to the published text of Routine Use H, the notices and directives of broad investigatory
powers in Executive Order 12968 and related security clearance regulations make it clear that
national security agencies enjoy wide latitude to share, question, and analyze information that is
relevant to one’s fitness for positions requiring security clearance.
DHS OIG’s disclosure of the Report to NGA OIG therefore fell within both the law
enforcement (Routine Use G) and national security (Routine Use H) exemptions. As a result, its
disclosure was proper as a matter of law. 6
action does not affect the improper disclosure analysis. Second, plaintiff’s contentions as to
Agent Yi’s credibility address the willfulness element of a Privacy Act violation, (see Pl’s Opp’n
at 14 (“The record contains material disputes of fact whether Yi intentionally and willfully
violated the Privacy Act.”), which the Court does not rely upon to reach its conclusion. See n. 6,
infra.
6
Because the Court finds that plaintiff cannot satisfy the improper disclosure requirement of the
Privacy Act, it need not reach the issues of willfulness or adverse effect. Given that plaintiff had
sought to compel additional deposition testimony from Agent Yi only with regard to the
willfulness element (see Pl’s Mot. to Compel at 5), the Court concludes that plaintiff’s
Objections to the Magistrate Judge's Ruling on the Motion to Compel Deposition Testimony
(Oct. 19, 2015 [ECF 70]) have no bearing on the Court's opinion. Nevertheless, the Court notes
its agreement with Magistrate Judge Kay's ruling denying the Motion to Compel. As Magistrate
Judge Kay noted, the allegations of misconduct by Agent Yi were unsubstantiated and too
dissimilar from the allegations in plaintiff's complaint to constitute evidence of intent or absence
of mistake under Rule 404(b). It was therefore neither clearly erroneous nor contrary to law for
Magistrate Judge Kay to deny plaintiff's motion to compel, and plaintiff's objections are
overruled.
15
CONCLUSION
Accordingly, defendants’ motion for summary judgment is granted. An Order
accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: January 27, 2016
16