The U.S. Court of Appeals for the District of Columbia has issued a major Privacy Act decision. The case entitled McCready v. Nicholson, Civ. No. 01-02219 (Sept. 19, 2006) concerned McCready's attempts to get the Department of Veterans Affairs ("VA") to destroy or amend records concerning an Office of Inspector General ("OIG") report concerning McCready's tenure as head of the VA's Office of Congressional Affairs. The U.S. District Court for the District of Columbia had granted summary judgment on all counts of McCready's complaint before it.
The first issue before the Court was whether a claim under 5 U.S.C. Section 552a(g)(1)(C) requires a record to be within a system of records. The VA, of course, argued that to be actionable under the subsection, the record at issue had to be maintained in a system of records. The Court found that the subsection applied to any record and the record did not have to be within a Privacy Act system of records. The Court made this finding due to the clear language of the Privacy Act, and invited the VA to ask Congress to amend the Privacy Act if it didn't like this result. This finding makes it easier for individuals to bring actions under this subsection of the Privacy Act.
The next issue was whether certain records at issue in the case were records under a system of records. The record at issue was the OIG's report on McCready's tenure. The VA argued that this was not a record under the system of records because it was not identifiable to McCready. After a lengthy discussion of whether or not a specific record not identifiable to an individual in a system of records qualified as being considered records in a system of records, the Court found that the discussion was solely academic and did not make an ultimate ruling. This is because the record at issue was retrievable by the initials of McCready's position, which was a unique personal identifier, and therefore subject to the Privacy Act suit. The Court then remanded the case for further proceedings before the District Court.