Reporters Committee urges high court to enforce Privacy Act damage limits

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief with the U.S. Supreme Court today urging the justices to recognize that the Privacy Act requires plaintiffs to prove that they suffered actual damage in order to recover when the government releases information protected by the Privacy Act.

In Doe v. Chao, the justices will review a decision by the U.S. Court of Appeals in Richmond, Va. (4th Cir.), that denies unidentified plaintiff “Buck Doe” any right to a monetary award for the emotional distress he says he suffered when the federal government released his social security number — a violation of the Privacy Act.

Information about Doe was contained in government files because he is a recipient of black lung disease benefits. He told the court that the illegal disclosure of his number caused him to worry that he could become a victim of identity theft.

The Reporters Committee told the court that the Privacy Act, passed in tandem with amendments to the Freedom of Information Act, has only limited application. Congress in the FOI Act intended to make clear that the public is entitled to see government information except when narrowly drawn exemptions apply. The Privacy Act includes an exemption for information required to be made public under the FOI Act, and it provides that, even when information about individuals is mishandled, they can recover damages only when they are actually harmed.

The levy of harsh penalties for disclosure would chill the release of information not protected by the Act, the Reporters Committee’s brief stated, and that was not what Congress intended. “Privacy Act enforcement actions were intended to be — and should be — limited in scope so that government employees are not chilled from making appropriate decisions to release harmless information not protected by the Act.”

The Committee’s executive director Lucy Dalglish said, “Penalties for disclosing information always trigger secrecy way beyond what the law justifies. For instance, the broad penalties associated with another privacy law, one protecting patient information, have frightened officials and others into withholding information about medical care that is simply not protected either by that law or the rules drawn up to implement it. And, as a result, reporters are having a very rough time covering health issues.”

In a footnote the brief points out that there are virtually no penalties against government officials who fail to comply with the FOI Act.

Doe v. Chao is the Supreme Court’s first case under the 1974 Privacy Act.

The brief is available online at: www.rcfp.org/news/documents/20030925-doevchao.pdf