IG Investigations 101, or The IG called and wants to interview your client now what?

Transcription

1 MWELA BROWN BAG March 27, 2015 IG Investigations 101, or The IG called and wants to interview your client now what? PAUL KIYONAGA Kiyonaga & Soltis, P.C. ANDREW J. PERLMUTTER Passman & Kaplan, P.C. 1

2 THE NUTS & BOLTS OF AN OIG INVESTIGATION 2

3 LEGAL AUTHORITY FOR OIGs Federal inspectors general (IGs) are authorized to combat waste, fraud, and abuse within their affiliated federal entities. To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations among other duties. Two major enactments the Inspector General Act of 1978 and its amendments of 1988 (codified at 5 U.S.C. Appendix) established federal IGs as permanent, nonpartisan, and independent offices in more than 70 federal agencies

4 The IG Act grants the OIG the administrative authority to: Receive full access to all records and materials available to the agency; Determine which audits, investigations, inspections, and reviews are necessary and issue appropriate reports; Issue subpoenas for non-federal records Report directly to the head of the Agency; Receive employee and other complaints, protect sources, and when necessary, refer matters to the United States Attorney General Hire employees, experts and consultants and procure necessary equipment and services Obtain assistance from other agencies, including Federal, state and local government

5 Note: Statutory IGs are not identical, in jurisdiction or authority. For example, while most IGs only have authority to investigate their department or agency, some IGs have authority to investigate or audit more than one agency. Nonetheless, in general, statutory IGs follow the standards, guidelines, and directives in the IG Act.

6 OIG STAFF OIGs are generally staffed with sworn Special Agents, investigative attorneys and administrative investigators. Sworn Special Agents are vested with law enforcement authority and can make an arrest without a warrant while engaged in official duties

7 INVESTIGATION PROCESS The Inspector General Act authorizes OIG to have access to all records, communications, reports, audits, reviews, documents, papers, recommendations and other material available to the Department that related to Department programs and operations. OIG is authorized to access electronic and data systems. OIG Investigations can include criminal, civil and administrative matters. Ex. Allegations of fraud involving Department grants; improprieties in the administration of Dept. programs and operations, etc.

8 Generally an investigation is carried out to resolve specific allegations, complaints or information concerning possible violations of law, regulation or policy. Information may be received from a variety of sources, including OIG fraud, waste and abuse hotline, Departmental, GAO and DOJ referrals, congressional requests and referrals from OSC regarding whistleblower disclosures.

9 STANDARDS FOR OIG INVESTIGATIONS OIG investigation are conducted in compliance with, the Quality Standards for Investigations issued by the Council of Inspectors General for Integrity and Efficiency (CIGIE) the Attorney General Guidelines for Offices of Inspectors General with Statutory Law Enforcement Authority

10 OIG INTERVIEWS EMPLOYEE OBLIGATIONS Employees are obligated to cooperate fully, which includes being interviewed, providing sworn oral or subscribed statements upon request. OIG cannot compel anyone to be interviewed; however, management can direct an employee to be interviewed as requested by OIG, and take disciplinary action if the employee declines.

11 CONFIDENTIALITY OF INTERVIEWS It is inappropriate for an employee to disclose the contents of the communication with an OIG investigator with any one else (excluding his or her attorney). Similarly it is not appropriate for management to question employees about OIG interview or requests, including specific questions asked or the contents of interviews. Such actions, by employees or their management, could compromise the investigation.

12 EMPLOYEE RIGHTS RE INTERVIEWS Prior to addressing the subject matter of an interview, a federal employee who is the subject of the investigation must be informed of his/her rights applicable to the situation. A non-employee must also be apprised of his/her right in certain situations.

13 THREE WARNINGS Miranda Warning Miranda v. Arizona, 387 US 436 (1966) Garrity Warning Garrity v. New Jersey, 386 US 493, 500 (1967) Kalkines Warning Kalkines v. US, 473 F.2d 1391 (Ct. Cl. 1973)

14 Miranda Warning Miranda v. Arizona, 387 US 436 (1966) Given to subjects of OIG investigations when they are placed under arrest. Miranda warning advise the subject of the OIG investigations who are under arrest or otherwise in custody that they have a right to remain silent, that statements they make can be used against them; that they have a right to an attorney during questioning; and that an attorney will be appointed to them if they cannot afford one.

15 Garrity Warning (Garrity v. New Jersey, 386 US 493, 500 (1967)) Garrity warning are given to subject of OIG investigations, who are not under arrest or in custody. Garrity warnings are designated to ensure that employee s interviews are voluntary. Garrity warnings advise subjectst that they may remain silient on matters where there may be criminal exposure, but must report on activities for which there is no criminal exposure. Subjects are also reminded that the interview is strictly voluntary. A subject of a criminal investigation is someone against whom evidence exists of criminal wrongdoing.

16 Kalkines Warning (Kalkines v. US, 473 F.2d 1391 (Ct. Cl. 1973)) Kalkines warnings are given to subjects of OIG investigations to assure employees that their statements may not be used against them in any criminal proceeding. Court have long held that once an individual s statements are immunized, the employee no longer has a right to remain silent. Kalkines warnings remind employees that they have a duty to respond to investigators questions and that agency disciplinary actions may follow if employees fail to cooperate or fail to answer fully and truthfully. Employees are also told that statements they provide may be used in civil or administrative proceedings, but cannot be used in criminal proceedings.

17 OTHER EMPLOYEE RIGHTS An employee may request transcripts of recorded interviews, which must be provided. An employee does not have the right to conduct his/her own audio or video recording of interview. Agents are directed to deny requests by employee s counsel to record the interview. An employee may have an attorney present at the interview. In DC and Third Circuit, an employee who is a union member may have union representation during interviews An employee may assert their Fifth Amendment right to refuse to provide information on the grounds that the information might be used against them in a criminal proceeding.

18 ATTORNEY S ROLE If an employee requests an opportunity to consult with an attorney at any time during the interview, the Special Agent should honor that request. The Special Agent may not ask an employee or attorney about the nature of their discussions. A Special Agent should not interrupt or bar all statements by the attorney during the course of an interview. The attorney should be allowed to clarify a Special Agent s questions and may clarify an employee s responses. The special agent should balance the attorney s participation with the orderly flow of the interview and should allow the representatives to ask questions of the employee at the end of the interview.

19 USES OF OIG INVESTIGATIVE REPORTS OIG investigators will respect the confidentiality of Department employees as provided by law. Section 7 of the Inspector General Act states that the IG shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the IG determines such disclosure is unavoidable during the court of the investigation. Employee may seek non-public OIG investigative reports by filing a FOIA request with OIG.

20 The results of an investigation may be used for administrative action by the Department, or used for criminal or civil actions by the DOJ Investigative reports in certain circumstances are made public or placed on an Agency s website

21 Legal Ramifications Criminal Charges and Adverse Actions Retaliation Protections Inaccurate IG Reports Improper IG Conduct in Investigation Claims That Don t Work 21

22 Criminal Charges and Adverse Actions 5 th Amendment privilege against compelled self-incrimination generally applies in IG proceedings in appropriate circumstances, because they can lead to prosecution. 22

23 Criminal Charges and Adverse Actions 5 th Amendment Privilege does not apply if the employee has no risk of prosecution: Immunity Statute of Limitations TIP: make sure to get any immunity offer confirmed in writing first. 23

24 Criminal Charges and Adverse Actions Public Employees Situation: the IG or the employing agency orders the employee to questions and expressly threatens an adverse action (such as removal) if the employee fails to these questions. 24

25 Criminal Charges and Adverse Actions Public Employees Result? The threat to the employee s job coerces the testimony, tainting it and creating use and derivative use immunity for criminal prosecution purposes. However, the employee can then potentially be disciplined if they refuse to answer, and cannot assert the 5th Amendment. See Garrity et al. v. New Jersey, 385 U.S. 493 (1967); Kalkines v. United States, 473 F.2d 891 (Ct.Cl. 1973); Uniformed Sanitation Men v. City of New York, 436 F.2d 619 (2nd Cir. 1970), cert. denied 406 US. 961 (1972); see, e.g., Bucknor v. U.S. Postal Service, 93 M.S.P.R. 271 (2003). 25

26 Criminal Charges and Adverse Actions Public Employees Tips: Make sure to get the threat in writing first. Once threat is confirmed in writing, employee will have to answer the questions. 26

27 Retaliation Protections Protections May Vary, Depending On: Who the Employee Works For Where the Employee Works What Employee Disclosed When Disclosure Made 27

28 Retaliation Protections Federal Civil Service Employees 28

29 Retaliation: Federal Civil Service Whistleblower Reprisal 5 U.S.C. 2302(b)(8)(B): Covers any disclosure [ ] to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures Reasonable Belief Standard Substance of Disclosure: (i) any violation (other than a violation of this section) of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety 29

30 Retaliation: Federal Civil Service IG Reprisal 5 U.S.C. 2302(b)(9)(C): Covers cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law No Reasonable Belief Standard No Limitation on Substance of Disclosure 30

31 Retaliation: Federal Civil Service Mechanics of 5 U.S.C (b)(8, 9) Claims No Statute of Limitations Litigated at Merit Systems Protection Board (MSPB) Two Chief Procedural Avenues Independent Right of Action Must Exhaust at Office of Special Counsel (OSC) First Affirmative Defense in Otherwise Appealable Action (OAA) Claim IF you have MSPB appeal rights 31

32 Retaliation: Federal Civil Service Current Remedies for 5 U.S.C (b)(8, 9) Injunctive Relief Back Pay Compensatory Damages Attorneys Fees and Costs 32

33 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Jurisdiction Not All Federal Employees Covered Notable Exceptions: Military Officers Legislative Employees (but GPO is covered) Judicial Branch Employees Intelligence Agency Employees FBI, GAO and U.S. Postal Service Certain Unusual Appointment Categories 33

34 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Jurisdiction FBI and GAO have their own whistleblower protection statutes FBI: 5 U.S.C. 2303; see also 28 C.F.R et seq. Whistleblower Protection Only Claims go to DOJ OIG or DOJ Office of Professional Responsibility Consequential Damages Only GAO: 31 U.S.C. 732(b)(2); 4 C.F.R et seq. Whistleblower Reprisal and IG Reprisal Covered Claims go to GAO Personnel Appeals Board (PAB) File first at GAO PAB Office of General Counsel 30 day filing deadline 34

35 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Jurisdiction USPS has its own whistleblower protection rules 39 U.S.C. 410 ELM Whistleblower Reprisal Can be raised as affirmative defense in OAA claim if employee has MSPB Appeal Rights Otherwise, internal USPS grievance Complaints filed with USPS OIG 35

36 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Jurisdiction Military Whistleblowers: DoD Unusual Appointment Categories e.g.: DoD Nonappropriated Fund: DoDI National Guard Technicians Foreign Service Nationals Peace Corps Volunteers Other Legislative Branch Employees Executive Office of the President Employees Judicial Branch Employees 36

37 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Jurisdiction Intelligence Agency Whistleblowers Retaliation involving Security Clearances Presidential Policy Directive 19 (PPD-19) Sections of Pub.L ( 50 U.S.C U.S.C. 3341(j) Both Awaiting Implementation Regulations 37

38 Retaliation: Federal Civil Service Limits of 5 U.S.C (b)(8, 9): Other Problem: Limited Retroactivity under the Whistleblower Protection Enhancement Act of 2012 (WPEA) No Independent Right of Action under 5 U.S.C (b)(9) Pre-WPEA No Compensatory Damages Pre-WPEA Consequential Damages Only TIP: Watch the dates in your fact pattern! 38

39 Retaliation: Federal Civil Service Federal civil service employees generally have no qui tam claims in most circuits but there are some exceptions. Federal civil service employees generally not separately covered by qui tam reprisal or other whistleblower statutes coverage generally comes from WPA. 39

40 Retaliation Protections Federal Contractors, Subcontractors and Grantees 40

41 Retaliation Protections Contractors IG Reprisal Whistleblower Reprisal General Statutes Subject Matter-Specific Statutes Qui Tam reprisal 41

42 Retaliation Protections Contractors IG and Whistleblower Reprisal 41 U.S.C year pilot program Similarities to WPA Covers all federal contractors, subcontractors and grantees Enforced by IG office Judicial Review 42

43 Retaliation Protections Contractors IG and Whistleblower Reprisal 10 U.S.C Not a pilot program Similarities to WPA Covers Defense and NASA contractors, subcontractors and grantees Enforced by IG office Judicial Review 43

44 Retaliation Protections Contractors 10 U.S.C and 41 U.S.C exclude intelligence agencies. 44

45 Retaliation Protections Contractors Whistleblower Reprisal Subject Matter-Specific Statutes Myriad of statutes Different remedies and SOLs Jurisdiction depends on specific substances of disclosures to OIG Often enforced by DOL/OSHA ower_acts-desk_reference.pdf 45

46 Retaliation Protections Contractors Qui Tam claims & Qui Tam reprisal 46

47 Retaliation Protections Contractors Qui Tam claims Federal False Claims Act and certain other statutes provide bounties for blowing the whistle Strict filing requirements apply Disclosures made to OIG or others may negatively impact bounty claim 47

48 Retaliation Protections Contractors Qui Tam claims Tip: If possible qui tam claim in play, specifically evaluate with qui tam counsel before any contact with OIG to determine if claims should be brought as qui tam instead in order to preserve bounty claim. 48

49 Retaliation Protections Contractors Qui Tam reprisal 31 U.S.C. 3730(h) Covers retaliation for lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter 49

50 Retaliation Protections Contractors Qui Tam reprisal 31 U.S.C. 3730(h) Enforceable in U.S. District Court Remedies Injunctive relief Back pay with interest Special damages Fees and costs 3 year SOL 50

51 Retaliation Protections Other Private Sector and State/Local Government Employees 51

52 Retaliation Protections General Whistleblower Reprisal Protections DC DC Govt. Employees: D.C. Code et seq. DC Contractors: D.C. Code et seq. Subject matter scope of protected disclosures originally based on federal WPA for whistleblower reprisal (not IG reprisal) Covers disclosures made to IGs but as opposition, not participation. Enforced in Superior Court Common law wrongful discharge claim exists in limited cases 52

53 Retaliation Protections General Whistleblower Reprisal Protections MD State government employees: MD Code, State Personnel and Pensions, et seq. Private Sector: Healthcare workers: MD Code, Health Occupations, et seq. State contractors: MD Code, State Finance and Procurement, et seq. OSHA disclosures: MD Code, Labor and Employment, Common law wrongful discharge claim exists in limited cases 53

54 Retaliation Protections General Whistleblower Reprisal Protections VA State employees: VA Code, et seq. Private Sector: Health and Safety: VA Code :1et seq. Workers Comp: VA Code Assisted Living/Childcare: VA Code Asbestos/Lead: VA Code Common law wrongful discharge claim exists in limited cases 54

55 Retaliation Protections IG reprisal statutes DC: DC Code, a(f-4) MD and VA: No statutes. Local Government: Code of Montgomery County, 2-151(l)(5), 2-151(m)(3) Not all have independent causes of action. 55

56 Retaliation Protections Qui Tam reprisal statutes DC: DC Code, VA: VA Code, MD: MD Code, Health-General, health care fraud only 56

57 Inaccurate IG Reports Federal IG Reports State/Local IG Reports 57

58 Amendment of Records Privacy Act Cause of Action for Federal IG Records 58

59 Privacy Act Causes of Action This presentation will provide only a highlevel review of the IG-specific aspects of Privacy Act litigation. For further details, see the Powerpoint slides from the Joseph V. Kaplan/Andrew J. Perlmutter June 6, 2013 MWELA brown bag, available in the MWELA brief bank. 59

60 Amendment of Records Agencies are required to allow individuals to request amendment of any Privacy Act records regarding them. 5 U.S.C. 552a(d)(2). Amendments are limited to information believed to be not accurate, relevant, timely, or complete. 5 U.S.C. 552a(d)(2)(b)(i). 60

61 Amendment of Records This amendment provision is subject to exemption for law enforcement or intelligence records under 5 U.S.C. 552a(j, k), if the Agency has invoked that exception in their published Privacy Act notice in the Federal Register. Always check the relevant Privacy Act notice to see if 5 U.S.C. 552a(j, k) has been invoked. 61

62 Procedure for Amendment of Records Initial request for amendment are made to the agency. 5 U.S.C. 552a(d)(3). Response required in 10 working days. 5 U.S.C. 552a(d)(2). If the request for amendment is rejected, the requestor can then seek higher-level review within the agency. Id. If that reconsideration request is denied, then the case can be appealed into court. 5 U.S.C. 552a(d)(3); (g)(1)(a). 62

63 Procedure for Amendment of Records In addition, the agency must provide the requestor with the ability to lodge a statement of disagreement in the Privacy Act-covered records themselves with the inaccurate record, which the agency is required to provide to anyone who accesses the inaccurate records along with the records themselves. 5 U.S.C. 552a(d)(4). 63

64 Amendment of Records: Practical Concerns If IG refuses to amend internally, cause of action is a public lawsuit in federal court. Risk of additional publicity for IG report contents by suing in court. 64

65 Procedure for Amendment of Records In proceedings in court, the requestor is eligible to receive injunctive amendment of the records, plus attorneys fees and costs but no damages. 5 U.S.C. 552a(g)(1)(a); (g)(2). Two year statute of limitation for suits. See 5 U.S.C. 552a(g)(5). 65

66 Correction of Records: Non-Federal IGs Not covered by the Federal Privacy Act Look to Equivalent State and Local Laws Maryland: MD Code, General Provisions, No equivalent statute in DC or VA. 66

67 Improper IG Conduct in Investigation Improper IG Conduct in Investigation Information Collection Violations Wrongful Information Leaks Other IG Misconduct 67

68 Improper Collection of Information Privacy Act Cause of Action 68

69 Collection of Information-Coverage Privacy Act Claim not limited to federal civil service employees. Claim applies to wrongful information collection by federal agencies irrespective of whether the subject is a federal employee, a contractor, or a private citizen. 69

70 Collection of Information Cause of Action Federal agencies are required to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. See 5 U.S.C. 552a(e)(2). 70

71 Collection of Information Cause of Action Source Provisions General Prohibition: 5 U.S.C. 552a(e)(2) Cause of Action: 5 U.S.C. 552a(g)(1)(D) Remedies: 5 U.S.C. 552a(g)(4) 71

72 Collection Cause of Action-Elements A plaintiff must show that (1) the agency failed to elicit information directly from the plaintiff to the greatest extent practicable ; (2) the violation of the Act was intentional or willful ; (3) the action had an adverse effect ; and (4) actual damages resulted. See, e.g., Waters v. Thornburgh, 888 F.2d 870, 872 (D.C.Cir. 1989); accord Velikonja v. Mueller, 362 F.Supp.2d 1, 19 (D.D.C. 2004) (Huvelle, J.). 72

73 Collection of Information-SOL The Privacy Act statute of limitations is two years from the date on which the cause of action arises. See 5 U.S.C. 552a(g)(5). 73

74 Collection Cause of Action Element 1 Tip: Collection of Information cases are usually about greatest extent practicable 74

75 Collection Cause of Action Element 1 When must the subject individual be contacted? Unless an exception applies, FIRST! 75

76 Order for Contacting Subject Individual Even if an exception applies, the agency still must contact the subject individual before concluding its investigation. See Hubbard v. Environmental Protection Agency, 809 F.2d 1, 6 fn.8 (D.C.Cir. 1987). 76

77 Law Enforcement/Intelligence Exception? Some provisions of the Privacy Act are subject to exemption for law enforcement or intelligence records under 5 U.S.C. 552a(j, k), if the Agency has invoked that exception in their published Privacy Act notice in the Federal Register. Always check the relevant Privacy Act notice to see if 5 U.S.C. 552a(j, k) has been invoked. Caselaw is currently unclear as to whether this applies to (e)(2) collection cases. Cf. Velikonja v. Muller, 362 F.Supp.2d 1, 4-6,19-24 (D.D.C. 2004) (Huvelle, J.). 77

78 Law Enforcement/Intelligence Exception? 5 U.S.C. 552a(j) certain agencies exempt Central Intelligence Agency all records; or Agencies and units with law enforcement as their principal function, for Criminal records of individuals Criminal investigation reports, including informant reports Other reports on pending criminal investigations and prosecutions 78

79 Limit on Privacy Act Remedies The Supreme Court requires the plaintiff to show special damages such as pecuniary damages or back pay. Emotional distress is not an actual damage and so fails to state a claim under the Privacy Act by itself. Federal Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1451, 1451 fn.6 (2012). 79

80 Improper Collection Claims: Non-Federal IGs Not covered by the federal Privacy Act Look to Equivalent State and Local Laws Statutory claim may not be present in all jurisdictions. 80

81 The Privacy Act Causes of Action Wrongful Disclosure 81

82 Disclosure Cause of Action Source Provisions General Prohibition: 5 U.S.C. 552a(b) Cause of Action: 5 U.S.C. 552a(g)(1)(D) Remedies: 5 U.S.C. 552a(g)(4) 82

83 Disclosure Cause of Action--Elements A plaintiff must show that (1) the disclosed information is a record contained within a system of records'; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional ; (4) the disclosure had an adverse effect ; and (5) actual damages resulted. See Feldman v. Cent. Intelligence Agency, 797 F.Supp.2d 29, 38, (D.D.C. 2011) (Howell, J.); accord Doe v. Dept. of Justice, 660 F.Supp.2d 31, 51 (D.D.C. 2009) (Huvelle, J.). 83

84 Disclosure Cause of Action--SOL The Privacy Act statute of limitations is two years from the date on which the cause of action arises. See 5 U.S.C. 552a(g)(5). [T]statute of limitations begins to run when the plaintiff knows or should know of the alleged violation. See Tijerina v. Walters, 821 F.2d 789, (D.C.Cir. 1987). 84

85 Element (2): improper Agency disclosure Did the subject individual consent to the disclosure? Does the disclosure fall into one of the twelve enumerated exceptions? If any exception applies, then the cause of action fails. Need to address each exception in analyzing the case. 85

86 Element (2): improper Agency disclosure Twelve enumerated exceptions in the statute (5 U.S.C. 552a(b)(1-12)). Most important exceptions: Exception 1: the need to know exception Exception 2: FOIA disclosures Exception 3: the routine use exception Exception 7: law enforcement exception 86

87 Element (2): improper Agency disclosure Exception 1: disclosures 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 a/k/a the need to know exception 87

88 Exception 1: need to know Only applies to disclosures within the same agency. The recipient officer or employee must have an official need to know. Also, the use should be generally related to the purpose for which the record is maintained. 40 Fed.Reg. 28,954 (July 9, 1975) (emphasis added). 88

89 Exception 1: need to know Who has a need to know? The courts construe 5 U.S.C. 552a(b)(1) by looking to the specific scope of duties of the disclosure recipient or that recipient s immediate agency component. See, e.g., Coburn v. Potter, 329 Fed.Appx. 644, 646 (7 th Cir. 2009); Ciralsky v. Cent. Intelligence Agency, 689 F.Supp.2d 141, 155 (D.D.C. 2010) (Shanstrom, S.J.); Thompson v. Dept. of State, 400 F.Supp.2d 1, 20-21, 21 fn.28 (D.D.C. 2005) (Huvelle, J.). 89

90 Exception 1: need to know The courts often take a broad view of what an employee s supervisors need to know. See, e.g., Gamble v. Department of Army, 567 F. Supp. 2d 150 (D.D.C. 2008) (Huvelle, J.). Harder to show Privacy Act violation for disclosures to a manager even an RMO. 90

91 Exception 1: need to know Disclosures can be made to assist in an investigation to individuals whose duties make it appropriate for them to conduct such investigations, such as personnelists or agency counsel. See Howard v. Marsh, 785 F.2d 645, 648 (8 th Cir. 1986), cert. denied, 107 S.Ct. 581 (1986); cf. Boyd v. Snow, 335 F.Supp.2d 28, 38 (D.D.C. 2004) (Collyer, J.). 91

92 Exception 7: law enforcement Disclosures to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought; 92

93 Exception 7: law enforcement Disclosure must be to a law enforcement agency or activity Law enforcement agencies Inspectors General Disclosure must be in response to a prior written request from the law enforcement agency No unsolicited disclosures. See, e.g., Tijerina v. Walters, 821 F.2d 789, 798 (D.C.Cir. 1987). Written request must be signed by the head of the law enforcement agency Written request must be specific as to records requested Written request must be specific as to what law enforcement activity requires disclosure 93

94 Exception 3: routine use Exception 3: disclosures for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(d) of this section; Perhaps the most important exception 94

95 Exception 3: routine use Law enforcement agencies cannot give themselves blanket exceptions from disclosure claims under 5 U.S.C. 552a(j, k). BUT, permission to disclose for law enforcement purposes often listed in the Routine Uses section of the relevant Privacy Act system of records notice. Tip: Always check the system of record notice! 95

96 Wrongful Disclosure Claim -Coverage Privacy Act Claim not limited to federal civil service employees. Claim applies to wrongful information disclosure by federal agencies irrespective of whether the subject is a federal employee, a contractor, or a private citizen. 96

97 Limit on Privacy Act Remedies The Supreme Court requires the plaintiff to show special damages such as pecuniary damages or back pay. Emotional distress is not an actual damage and so fails to state a claim under the Privacy Act by itself. Federal Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1451, 1451 fn.6 (2012). 97

98 Improper Disclosure Claims: Non-Federal IGs Not covered by the federal Privacy Act Look to Equivalent State and Local Laws Statutory claim may not be present in all jurisdictions. 98

99 How to report other IG misconduct? Complaints against federal OIGs can be filed with the Integrity Committee of the Council of the Inspectors General on Integrity & Efficiency (CIGIE) under 11 of the Inspector Generals Act of 1978 (found at 5 U.S.C. Appendix). 99

100 Claims That Don t Work Federal IGs Common Law Privacy Torts Defamation Libel/Slander Intentional Infliction of Emotional Distress False Light Federal Tort Claims Act see 28 U.S.C. 2680(h). HIPAA Claims against IG employees in their personal capacity. 100

101 Questions? 101

102 The End THANK YOU Paul Kiyonaga Andrew J. Perlmutter 102