An appeals court has sent a federal executive’s privacy act challenge against the Department of Veterans Affairs back to the district court after determining that the lower court improperly granted summary judgment to the government on several counts. (McCready v. Nicholson, C.A.D.C. No. 04-5425, 9/19/06) Here’s a summary as taken from the court’s decision.
McCready headed the VA Office of Congressional Affairs. The agency Inspector General’s office opened an audit of the office after receiving confidential complaints against McCready and her organization for fiscal mismanagement and operational abuse. The IG audit led to first a “Draft Audit Report,” which was released to just a few officials within VA; next, a final report that was released within the agency, OMB and Congress; and finally an “Addendum Audit Report,” released to the same offices that received the final report. (opinion, pp. 2-3)
Following receipt of the final audit report, the VA Assistant Secretary for Personnel Management sent a memo to the VA Secretary discussing McCready’s financial management within her office. The AP published a report that same day that was highly critical of McCready. Several days later, the AP issued a second report that quoted from the above private internal agency memo. (p. 3)
McCready formally responded to both the final audit and the addendum audit reports. The reports and McCready’s responses were considered and the agency concluded that no discipline was warranted against McCready. (p. 4)
McCready then launched efforts under the Privacy Act to get the agency reports about her either corrected and/or deleted. Not satisfied with the agency’s response, she filed suit in the U.S. District Court for the District of Columbia, asserting 12 claims of violations of the Privacy Act. That court granted summary judgment to the government on all 12. McCready appealed.
The appeals court in its recently issued decision sustained the district court in part, reversed in part, and remanded for further handling. One issue was whether a Privacy Act challenge could be considered where the records were not retained in a Privacy Act system of records. The appeals court did not agree with the district court on this point, stating in pertinent part: “Where an aggrieved person can identify a specific document, prove its inaccuracy, and demonstrate that the document was used against her, all the values of the Act are vindicated. As a subsection (g)(1)(C) claim is predicated upon an individual simply challenging the accuracy of a particular document used against her, there was no need for subsection (g)(1)(C) to incorporate a system of records requirement and thereby prevent a fishing expedition. The fish has already been caught at no expense to the agency.” (p. 17)
If the government believes that there must be a system of records identified before a challenge such as McCready’s should be considered, then it needs to take that up with Congress.