Witt v. Department of the Air Force et al

Filing 88

RESPONSE, by Defendants Department of the Air Force, Donald H Rumsfeld, Michael W Wynne, Mary L Walker, to 84 MOTION to Compel Production of Documents Responsive to Requests for Production No. 33 to 36. Oral Argument Requested. (Attachments: # 1 Exhibit)(Buckingham, Stephen)

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Witt v. Department of the Air Force et al Doc. 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Judge Ronald B. Leighton UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C06-5195 RBL OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS ORAL ARGUMENT REQUESTED 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Plaintiff seeks the production of documents from the personnel files of individual Air Force Reserve service members relating to alleged disciplinary actions taken against those service members, and alleged relationships in which those members may have engaged. The information plaintiff seeks relates to individuals who are not parties to this case, and who have not consented to disclosure of their personnel records. These personally identifiable personnel records are exactly the type of information that the Privacy Act, 5 U.S.C. § 552a, is designed to protect. The Privacy Act expressly prevents the United States from releasing otherwise protected material without a court order allowing for such production, even in the context of civil discovery. Accordingly, defendants cannot release the information plaintiff seeks without an ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 1 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 order directing defendants to do so. FACTUAL BACKGROUND Plaintiff has challenged her discharge from the United States Air Force Reserve for violations of the statutory proscription on homosexual conduct by service members. See 10 U.S.C. § 654. In the course of civil discovery, plaintiff has requested the production of the entire personnel files of four individual Air Force Reserve service members who are not parties to this action. See Declaration of Sher Kung (Kung Decl.), Ex. A (Dkt. No. 86). Plaintiff has also requested documents relating to any disciplinary actions taken against some of those service members, and documents relating to relationships in which some of those service members may have engaged. Id. Plaintiff subsequently limited her request to documents pertaining to disciplinary action or admonishment as to specific service members, and documents relating to relationships among other service members, including documents reflecting an alleged same-sex relationship. Id. at Ex. B; Pl.'s Mot. to Compel at 2-3 (Dkt. No. 84). Defendants responded to plaintiffs original requests by noting that the requests called for "the production of material protected from disclosure by the Privacy Act." See Defs.' Objections & Responses to Pl.'s Second Set of Requests for Production of Documents & Things 25-27 (attached hereto in redacted form as Ex. 1). Defendants also stated their belief that "the actual or purported relationships of other members of Plaintiff's unit have no bearing on Plaintiff's effect on unit morale and cohesion, the sole facts at issue in this matter as remanded from the Ninth Circuit." Id. Accordingly, defendants declined to produce documents responsive to plaintiff's request. Id. ARGUMENT The Privacy Act Prohibits the Release of the Requested Information Absent a Court Order Authorizing the Production of that Information. The Privacy Act prohibits any agency of the federal government from releasing "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless" one of the enumerated exceptions apply. 5 ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 2 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S.C.A. § 552a(b); St. Michael's Convalescent Hospital v. State of Cal., 643 F.2d 1369, 1373 (9th Cir. 1981). The only exception potentially applicable to this matter provides for the release of otherwise protected material "pursuant to the order of a court of competent jurisdiction." 5 U.S.C. § 552a(b)(11). Plaintiffs do not dispute that the documents they seek fall within the Privacy Act's definition of a protected record. The Privacy Act defines a "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph." 5 U.S.C.A. § 552a(a)(4). Where a document "clearly identifies [an individual] by name . . . it unmistakably constitutes a record for Privacy Act purposes." Reuber v. United States, 829 F.2d 133, 142 (D.C. Cir. 1987). The information plaintiff seeks includes documentation of disciplinary actions that may have been taken against certain individuals and documentation of certain relationships in which individual service members may have engaged. Such information would undoubtedly contain identifying information, and would clearly fall within the ambit of the Privacy Act's provisions. As mentioned above, defendants believe that information concerning disciplinary action that may have been taken against individual service members, or information concerning the actual or purported relationships of other members of plaintiff's unit have no bearing on plaintiff's effect on unit morale and cohesion. Thus, the information plaintiff seeks is not relevant to plaintiff's claims, nor is it likely to lead to the discovery of relevant information. Accordingly, that information does not fall within the scope of discovery defined by Rule 26(b). Additionally, disclosure of any responsive information has the potential to cause undue annoyance or embarrassment to the service members about whom that information is sought. Thus, in accordance with Rule 26(c), the Court should deny plaintiff's attempt to obtain discovery of the requested information. See Gay-Straight Alliance of Okeechobee High Sch. v. Sch. Bd. of Okeechobee County, 242 F.R.D. 644, 645 (S.D. Fla. 2007) (issuing a protective order ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 3 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to prevent inquiry into sexual orientation of members in plaintiff organization). Should this Court determine that the requested information is relevant, however, entry of an order requiring the disclosure of the information is necessary to allow the defendants to overcome the statutory prohibitions contained in the Privacy Act. Plaintiff's contention that the Privacy Act provides "no bar to the disclosure of information in discovery during the course of litigation," Pl.'s Mot. to Compel at 6, is misleading; the very precedent upon which plaintiff relies clearly demonstrates that the Privacy Act bars disclosure of protected information absent a court order, and that parties seeking such information in the course of civil discovery are routinely required to move for an order from the court authorizing production of that information. In Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987), the D.C. Circuit recognized that the plain language of the statute permits disclosure of Privacy Act protected information "pursuant to the order of a court of competent jurisdiction." Id. (internal quotations omitted) (emphasis added); see also Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980) ("[A] court order is . . . one of the conditions of disclosure.") (internal quotations omitted); Hassan v. United States, No. C05-1066, 2006 WL 681038, at *2 (W.D. Wash. March 15, 2006) ("[I]nformation falling under the ambit of the Privacy Act may be disclosed pursuant to the order of a court of competent jurisdiction.") (internal quotations omitted) (emphasis added).1 Laxalt further held that, while statutory bans on publication­like the one contained in the Privacy Act­do not serve as a complete bar to the disclosure of otherwise discoverable material, "the applicability of the Privacy Act to the material requested is a relevant factor for the District Court to consider in determining the appropriate scope and manner of discovery in a given case." 809 F.2d at 889. Thus, to give weight to the interests protected by the Privacy Act, "[t]he courts can limit, and in actual practice do limit, the persons having access to information, their freedom to discuss the Indeed, because defendants are statutorily prohibited from releasing the information plaintiff seeks absent a court order, the Court should reject plaintiff's request for attorney's fees to cover the costs of obtaining such an order. See Pl.'s Mot. to Compel at 1. Plaintiff provides no support for her contention that she is entitled to attorney's fees, nor could she, as that contention is simply without merit. 1 ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 4 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information to which they are given access, and the uses to which the information may be put." Id. (quoting Freeman v. Seligson, 405 F.2d 1326, 1350 (D.C. Cir. 1968)). In sum, the parties disagree about two points: (i) the relevance of the requested materials and (ii) the need for a protective order. As explained above, the requested materials are not relevant under the standards for relevance in civil discovery. If the materials were relevant, then a protective order would still be necessary for the documents to be released because the requested information is protected under the Privacy Act. CONCLUSION For the forgoing reasons, the Court should deny Plaintiff's motion to compel. Dated: May 24, 2010 Respectfully submitted, TONY WEST Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director Of Counsel: LT. COL. TODI CARNES AFLOA/JACL Military Personnel Litigation 1501 Wilson Blvd, 7th Floor Rosslyn, VA 22209-2403 (703) 588-8428 /s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM BRYAN R. DIEDERICH PETER J. PHIPPS United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3330 Fax: (202) 616-8470 E-mail: stephen.buckingham@usdoj.gov Mailing Address: Post Office Box 883, Ben Franklin Station Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Attorneys for Defendants ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 5 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482 1 2 3 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA CERTIFICATE OF SERVICE 4 I hereby certify that on May 24, 2010, I electronically filed the foregoing Defendants' 5 Opposition to Plaintiff's Motion to Compel with the Clerk of the Court using the CM/ECF 6 system which I understand will send notification of such filing to the following persons: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James E. Lobsenz Carney Badley Spellman, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Tel: (206) 622-8020 Fax: (206) 622-8983 E-mail: lobsenz@carneylaw.com Sarah A. Dunne American Civil Liberties Union of Washington 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel: (206) 624-2184 E-mail: dunne@aclu-wa.org /s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Ben Franklin Station Washington, DC 20044 Tel: (202) 514-3330 Fax: (202) 616-8470 E-mail: stephen.buckingham@usdoj.gov Attorney for Defendants ( C 0 6 -5 1 9 5 ) DEFS' OPP'N TO PL'S MOT. TO COM PEL - 6 U N I T E D STATES D E P A R T M E N T O F JU S T I C E C I V I L D I V I S I O N , FED E R A L PR O G R A M S BR A N C H P . O . BOX 883, BEN FRANKLIN STATION W A S H IN G T O N , D . C . 20044 ( 2 0 2 ) 616-8482

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