§ 552a(a)(4). Defendants contend that the letter is not a record for purposes of this action because it was not a document "about" plaintiff but only about persons other than plaintiff.
In support of their position, defendants rely upon Unt v. Aerospace Corp., 765 F.2d 1440 (9th Cir. 1985), in which the court, by a 2-1 majority, held that a letter sent by an employee of the defendant corporation to a federal agency regarding certain disputes he was having with his employer was not a record because it was not "about" him, but about the employer. The court said that the letter reflected directly on the employer's performance of its federal contract, but "only indirectly on any quality or characteristic possessed by" the plaintiff. Id. at 1449. Although the letter mentioned the plaintiff's problems with the employer, the court held, "this fact did not change the communication into an item about him." Id.
In Tobey v. NLRB, 309 U.S. App. D.C. 213, 40 F.3d 469, 471 (D.C.Cir. 1994), the District of Columbia Circuit also examined the requirement that information be "about" a person in order to constitute a record with respect to that person. The court stated that "the fact that information contains an individual's name does not mean that the information is 'about' the individual." To be "about" a person, the court stated, the information must not simply "apply to" him, but must "actually describe the individual in some way." Id. at 472. Applying that reasoning to the facts before it, the court held that a computer system used by the National Labor Relations Board to track and monitor cases before it, although it contained information showing which field examiner was assigned to a particular case, was not "about" the examiners. Id. at 471.
In my view, the language of the statute and the reasoning of these cases compel the conclusion that the letter at issue in the instant case was not a "record" with respect to plaintiff because it was not "about" him. Both here and in Unt, the letters were not "about" the authors of the letters, but about the subjects of the letters: in Unt, the author's employer, and here, certain alleged drug dealers.
Although there might be situations in which a letter could contain sufficient information about the author to be deemed "about" the author, this is not such a case. Plaintiff's letter contained many accusations of illegal activity on the part of various other persons, but said virtually nothing about plaintiff himself. If the letter was "about" anyone, it was about the people that plaintiff accused of criminal activities, not about himself. Unt, 765 F.2d at 1449.
In opposition to defendants' motion, plaintiff relies principally upon Sterling v. U.S., 798 F. Supp. 47 (D.D.C. 1992)
in which the court denied a motion to dismiss a Privacy Act claim by a prisoner who alleged that the government had violated the Act by releasing, in response to a Freedom of Information Act request by his cellmate, a redacted copy of a document containing information about the cellmate that the plaintiff had provided to prison authorities under a promise of confidentiality. The plaintiff claimed that despite the redactions, his cellmate was able to deduce from the contents of the letter who had provided the information, and that as a result the plaintiff was subjected to death threats. In reaching its decision, the court stated that 5 U.S.C. § 552a(k)(2) exempts investigatory material from release if "the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence." Id. at 49.
I do not find the Sterling court's analysis persuasive. A close examination of the statute indicates that § 552a(k)(2) does not prohibit agencies from releasing material that would reveal the identity of a confidential source. Rather, it allows agencies to promulgate rules exempting certain types of documents from mandatory disclosure under other portions of the Act. Specifically, subsection (k)(2) states that "investigatory material compiled for law enforcement purposes" may be exempted from, inter alia, § 552a(d) (which provides that agencies must generally allow any person to gain access to his own record),
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, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence ...
The statute, then, states that under certain circumstances an agency must provide an individual with investigatory material, unless doing so would reveal the identity of a confidential source. In other words, an agency is not required to provide the material if it would thereby reveal the source's identity, but the statute nowhere prohibits the agency from providing such material. See Rutner v. Reed, 176 U.S. App. D.C. 95, 538 F.2d 443, 445 n. 1 (D.C. Cir. 1976) (§ 552a(k)(2) "provides specific authority to withhold " information received under a promise of confidentiality) (emphasis added).
Thus, although the DEA has issued rules exempting certain materials pursuant to § 552a(k)(2), see 28 CFR § 16.98, the effect of those rules is simply to relieve DEA of any obligation to release those materials upon the request of a person who would otherwise be entitled to see them. The rules do not state that information from a confidential informant cannot be released under any circumstances.
It is apparent, then, that plaintiff's reliance on § 552a(k)(2) is misplaced. It is clear from the statute that restrictions upon disclosure are set forth in § 552a(b), which is entitled "Conditions of Disclosure," and which states that "no agency shall disclose any record which is contained in a system of records ...," except in certain circumstances. Had Congress wanted to prohibit agencies from disclosing information that would reveal the identity of confidential sources, subsection (b) would have been the logical and obvious place to do so. Subsection (k), on the other hand, which is entitled "Specific exemptions," is clearly not intended to prohibit agencies from releasing certain types of information, but simply to allow them to avoid the Act's mandatory-disclosure requirements for such information. Subsection (k), then, is irrelevant to this case.
I conclude, therefore, that plaintiffs letter was not a "record" for purposes of this action because it was not "about" plaintiff. Under § 552a(b), defendants were accordingly not obligated to obtain plaintiffs permission to release the letter, and plaintiff's claim under the Privacy Act therefore fails.
II. First Amendment Claim
In his second cause of action against Gelina and Nearing, plaintiff alleges that the agents violated plaintiffs First Amendment rights to free speech and to petition the government. This claim is asserted directly under the Constitution pursuant to Bivens v. Six Unknown Federal Narcotics Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), in which the Supreme Court held that plaintiffs may sue federal officials for damages arising from the officials' violation of the plaintiff's constitutional rights.
Plaintiff contends that disclosure of the letter to the Sheriff's Department "punished" him for exercising his First Amendment rights. I am not persuaded by this contention.
Because Bivens actions and actions under 42 U.S.C. § 1983 "share the same 'practicalities of litigation,' federal courts have typically incorporated 1983 law into Bivens actions." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (quoting Burnett v. Grattan, 468 U.S. 42, 50, 82 L. Ed. 2d 36, 104 S. Ct. 2924 (1984)). Thus, § 1983 cases involving First Amendment claims are relevant to an analysis of plaintiff's claims in the case at bar.
Although plaintiff asserts that defendants violated two separate rights--his right to free speech and his right to petition the government, which includes the right to approach investigative and prosecutorial authorities concerning alleged unlawful activities, see Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1353 (2d Cir. 1994), the gist of these claims is the same: that by sending the letter to Christensen, defendants in effect retaliated against plaintiff because he had provided them with information about suspected drug activity. Assuming that plaintiff's actions did amount to an exercise of both of these First Amendment rights, then, for purposes of the summary judgment motions this cause of action can be analyzed as a single claim.
To establish a violation of one's rights under the First Amendment, a plaintiff must show that the defendants took some action against him because of his exercise of those rights. See, e.g., Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 133 L. Ed. 2d 114, 116 S. Ct. 173 (1995). Plaintiff has presented no evidence whatsoever of such action here. The mere fact that the agents sent a copy of the letter to the Sheriff's Department does not suggest any desire on their part to punish plaintiff or that they were somehow motivated by the fact that plaintiff had written the letter. Furthermore, there is no indication that they were in any way involved in instituting the criminal prosecutions or civil lawsuits against plaintiff subsequent to the letter's distribution. Thus, the acts that were allegedly taken against plaintiff on account of his exercise of his rights were not even taken or instigated by the agents.
Defendants' motion for summary judgment (Item 10) is granted. Plaintiff's cross-motion for partial summary judgment (Item 15) is denied. The complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
August 2, 1996.