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COVERT v. HERRINGTON

June 18, 1987

Willard A. Covert Barbara Covert, h & w; Ramona Abbott, a single person; Ted Nichol & Yvonne Nichol, h & w; Jerome B. Lee and Jeannine Lee, h & w; Thomas G. Humphrey & Patty Humphrey, h & w; William Espinosa, Jr. & Janet Espinosa, h & w; Aldo Pineda & Bertha Pineda, h & w; Eldon Schlabach & Marlene Schlabach, h & w; Steven L. Bohan, a single person; Mark Studd, a single person; Larry Penor, h & w, Plaintiffs
v.
John Herrington, Secretary, Department of Energy, United States of America, Defendant



The opinion of the court was delivered by: QUACKENBUSH

JUSTIN L. QUACKENBUSH, United States District Judge

 BEFORE THE COURT are the summary judgment motions of plaintiffs (Ct. Rec. 10, 18) and the government (Ct. Rec. 14), heard with oral argument May 27, 1987, in Yakima, Washington. Appearing for plaintiffs were Daryl D. Jonson and James E. Egan; Assistant United States Attorney Robert S. Linnell appeared for the government.

 This action was brought for violations of the Privacy Act, 5 U.S.C. § 552a after disclosures of records by the Department of Energy were used for criminal indictments against seventeen (17) "job shoppers" at the Hanford Nuclear Reservation. Only one defendant -- William A. Covert -- was brought to trial, which resulted in a judgment of acquittal. The remaining cases were dismissed or had been subject to pretrial diversion. Trial of this matter revealed that the plaintiffs were not government employees, but were employees of a company who provided workers for companies such as Westinghouse and General Electric who had contracts with the government.

 
Personal information on the form(s) will be used to determine an individual's eligibility for a DOE personnel security clearance or access authorization.
 
. . . The name of the individual, Social Security number, and date and place of birth are used by DOE to establish and maintain records of DOE Personnel Clearance actions. . . . Access to or use of the information provided is permitted only to the authorized Federal Government investigative agencies conducting the investigations and to DOE personnel directly involved in the processing of the determination of the eligibility of the individual for security clearance or access authorization.

 . . .

 Att. to Ct. Rec. 213.

 Rather than using the information solely to determine eligibility for security clearances, argue plaintiffs, the DOE unlawfully disclosed it in an investigation of whether job shoppers were falsely claiming permanent residences more than 50 miles from the job site in order to obtain per diem payments.

 This investigation was spearheaded after Congressman Sid Morrison received a letter from a constituent alleging that a number of people employed by subcontractors of DOE were fraudulently receiving per diem payments. An auditor in the DOE's Office of the Inspector General (IG), James Steven Abernethy, examined the contract files -- including Certificates of Permanent Residence -- maintained by Westinghouse Hanford Co. and Rockwell Hanford Operations. To check the information on the Certificates of Permanent Residence, Mr. Abernethy used local telephone directories, commercial directories and property records from the Benton and Franklin County Assessors' offices. See, Exh. 1 to Ct. Rec. 15.

 The audit information gathered by Mr. Abernethy was provided to IG Special Agents Donald Farmer and Richard Young, who then examined personnel security clearance files maintained pursuant to the Privacy Act, 5 U.S.C. § 552a, by the DOE's Safeguards and Security Division. According to the Affidavits of Mr. Farmer and Mr. Young (Exh. 3 and 4 to Ct. Rec. 15) these security files were reviewed

 
. . . to confirm the information developed by Mr. Abernethy regarding these individuals' addresses and length of residence. The review also revealed (1) current employment status; (2) current residence; and (3) other information relevant to our investigation of individual claims for per diem allowance.
 
We then compared the information obtained by Mr. Abernethy and from the personnel security files, with the data these individuals had provided in the Certificates of Permanent Residence to determine if there were discrepancies between the two sets of records. We used this information to aid in the establishment of the veracity of the statements in the Certificates of Permanent Residence.

 Agents Farmer and Young then provided the IG audit and the results of their investigation to the United States Attorney, who decided to prosecute. An "oral summary of the results of the investigation" was also presented to the grand jury, which indicted the plaintiffs herein.

 The motions before the court involve the propriety of disclosures to both the IG special agents and to the Department of Justice. The central issue, as discussed below, is whether the Department of Energy could turn over the subject records to the Department of Justice without complying with the Privacy Act's specific provision regarding disclosure to another governmental entity for law enforcement purposes. Under that provision, 5 U.S.C. § 552a(b)(7), disclosure is permitted where it would be

 This procedure was designed to balance individual rights with agency uses of information by "assuring some high level evaluation of the need for the information." DOE v. DiGenova, 250 U.S. App. D.C. 274, 779 F.2d 74, 84 (D.C. Cir. 1985).

 The DOJ did not avail itself of the § 552a(b)(7) procedure, nor did it seek disclosure "pursuant to the order of a court of competent jurisdiction" under § 552a(b)(11). In the motions presently before the court, the government states that disclosure was permissible under two other statutory exceptions to the rule of non-disclosure, i.e., § 552a(b)(1) and (b)(3). That statutory language is as follows:

 
(b) Conditions of Disclosure. No agency shall disclose 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, *fn1" the individual to whom the record pertains, unless disclosure of the record would be --
 
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
 
(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;
 
(the above-referenced (a)(7) defines "routine use" as, "with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.")
 
. . .
 
(e) Agency requirements. Each agency that maintains a system of ...

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