Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-0889.
Gibbons, Chief Judge, and Higginbotham and Sloviter, Circuit Judges.
This appeal requires that we interpret the extent to which the "routine use" exception in the Privacy Act, 5 U.S.C. § 552a (1982), permits a federal agency to divulge investigatory information about an individual to his employer.
In 1985 Stephen Britt was a Special Agent for the Immigration and Naturalization Service (INS), where he conducted investigations which resulted in administrative and criminal prosecutions. In addition, Britt was a major in the Marine Corps Reserves, where he performed as a communications officer.
In March 1985, the home of gunnery sergeant Steven Reinert, who was a subordinate of Britt's in the Reserves, was searched pursuant to a warrant executed by the Camden County (N.J.) Sheriff's Department and the federal Bureau of Alcohol, Tobacco and Firearms. They found various items of military ordnance (e.g., flares, blank ammunition, smoke grenades) and requisition forms bearing the signatures of Reinert and Britt. Britt appeared at Reinert's arraignment and advised the court that the ordnance was lawfully requisitioned, although improperly stored in Reinert's basement.
After a preliminary determination that Britt did not have the authority to requisition ordnance, the Naval Investigative Service (NIS), largely through the efforts of Agent James Simprini, commenced an investigation of Britt. During the pendency of the investigation, Simprini contacted Britt's superior at the INS, Lyle Karn, and subsequently met with Karn in late June 1985 and "told him what [the] investigation had disclosed so far." App. at 37. Karn requested photocopies of all NIS reports in the case. Id. On or about June 30, 1985 Simprini, with the approval of his immediate superior, the deputy regional director of NIS, provided Karn with copies of "all related reports of investigation to date." App. at 40. These reports include accounts of persons interviewed, results of the execution of any searches, and a record of all physical evidence seized. A few days after releasing the investigation reports to the INS, Simprini requested that INS "hold any administrative action against Britt in abeyance pending completion of NIS investigation and subsequent judicial proceedings." App. at 39.
The NIS investigation of Britt was concluded in late 1985. No charges were brought against Britt and no disciplinary action was taken by the Marines. Indeed, Britt's name was submitted in April 1987 for promotion to Lieutenant Colonel, and he has since been promoted.
In February 1986 Britt filed suit against Simprini, Walter Moss (another NIS agent who allegedly assisted Simprini) and the NIS. He alleged that the NIS improperly released information about its investigation to his commanding officer and to his INS employer, and that the NIS investigation was in retaliation for his assistance to Reinert in asserting his constitutional rights. Britt sought damages and injunctive relief from the NIS under the Privacy Act and damages from the individual defendants for violation of his due process rights. On July 10, 1987 the district court dismissed the claim against the individual defendants, and Britt does not challenge that ruling. Thereafter NIS filed a motion for summary judgment which the district court granted. Britt timely filed this pro se appeal.
The Privacy Act, 5 U.S.C. § 552a, governs the control by government agencies of information about citizens of the United States or permanent residents, including information concerning one's education, financial transactions, medical history, criminal record, and employment history. 5 U.S.C. § 552a(a)(2), (4). In addition to establishing certain requirements relating to the collection and maintenance of such records, see 5 U.S.C. § 552a(e), and the publication of notice of the existence of such records, see 5 U.S.C. § 552a(e)(4), the Act limits an agency's authority to disclose information in its records to other individuals or other agencies without the permission of the person to whom the record pertains, see 5 U.S.C. § 552a(b).
The provisions of the Privacy Act applicable to the disclosure of information ...