Appeal from the United States District Court for the District of Columbia (No. 1:97-cv-02199)
The opinion of the court was delivered by: Edwards, Senior Circuit Judge:
Argued September 13, 2010
Before: BROWN, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
This is the third time that we have heard an appeal involving the parties in this case. This litigation is now thirteen years old and, unsurprisingly, it presents a weighty and complicated record. The case concerns trust fund claims brought pursuant to 28 U.S.C. § 1331 and 31 U.S.C. § 1321, and Privacy Act claims arising under 5 U.S.C. § 552a(g)(1). The appellants, Keith Maydak, Paul Lee, and Gregory A. Smith, were incarcerated in federal prison facilities when this action was initiated in the District Court, but they are no longer in federal custody. Their action was lodged against the Bureau of Prisons ("BOP") and the United States (collectively, "the Government").
Appellants' complaint is aimed at the operation of inmate photography programs at several BOP correctional facilities. The photo programs allow inmates to have their pictures taken, either by themselves or with visitors, at the cost of $1.00 per photo. The cost of the program is covered by monies from the Inmate Trust Fund, a trust administered by the United States government that provides programs, goods, and services to federal prison inmates nationwide. Until recently, several prison facilities that participated in the program regularly obtained two copies of each photograph, giving one print to the inmate while retaining the duplicate print. These duplicates were reviewed by BOP officials for various purposes, including detection of inappropriate inmate gestures or relevance to internal investigations of suspected gang activity.
In 1997, upon learning that BOP officials were secretly retaining duplicate prints, Lee, along with two of his fellow inmates, Maydak and Ambrose Mitchell, the latter of whom was eventually replaced in this litigation by Smith, filed a complaint in the District Court. They alleged, in relevant part, that (1) BOP's charges for and uses of the duplicate prints for security- related purposes violated the terms of the Trust; and (2) BOP's undisclosed retention of duplicate prints violated various provisions of the Privacy Act. Throughout this litigation, the Government has maintained that BOP's retention of unsorted duplicate photos did not create a "system of records" containing information about the inmates that was then retrieved by personal identifiers giving rise to Privacy Act protections. 5 U.S.C. §§ 552a(a)(5), 552a(e). The "system of records" issue was remanded by this court for further consideration by the District Court following appellants' last appeal. Maydak v. United States ("Maydak I"), 363 F.3d 512 (D.C. Cir. 2004).
Following proceedings on remand of the case, the District Court granted summary judgments in favor of the Government. Maydak v. United States, No. 1:97-cv-02199 (D.D.C. Mar. 30, 2006) ("Maydak II"), reprinted in App. to the Opening Br. of Appointed Amicus Curiae in Supp. of Appellants ("App.") 319- 31; Maydak v. United States, No. 1:97-cv-02199, 2007 WL 1018469 (D.D.C. Mar. 30, 2007) ("Maydak III"); Maydak v. United States, No. 1:97-cv-02199, 2007 WL 2381388 (D.D.C. Aug. 20, 2007) ("Maydak IV"). The District Court concluded that BOP had satisfactorily reimbursed the Trust Fund for any misappropriations. The trial court also rejected appellants' request for nationwide discovery, holding that further discovery was unnecessary. Maydak III, 2007 WL 1018469 at *1; Maydak IV, 2007 WL 2381388 at *1. In addressing the Privacy Act claims, the District Court held that prison officials' searches through boxes of unsorted photos in the hopes of recognizing an inmate did not constitute a "system of records" within the compass of the Act. Maydak II, slip op. at 4, App. 322. The District Court additionally held that, even if the disputed photo searches were covered by the Privacy Act, appellants' claims lacked merit because the appellants had proffered no evidence that would allow a reasonable juror to find that BOP acted willfully or intentionally to violate their rights under the Act. Id. at 6-8, App. 324-26. Appellants, with the able support of appointed amicus curiae, the Georgetown University Law Center Appellate Litigation Clinic, now seek reversal of the District Court's judgments.
We vacate the District Court's judgment on the Trust Fund claims. All three appellants have been released from incarceration, so their claims are now moot. And it is clear that appellants no longer have standing to challenge the management of the Trust.
We affirm the District Court's grant of summary judgment for the Government on the Privacy Act claims. Even assuming that BOP's review and retention of duplicate photos created a "system of records" triggering Privacy Act protections, civil remedies are only available if appellants can show "that the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). At summary judgment, the Government presented affidavits declaring that BOP officials did not intentionally or willfully commit Privacy Act violations and that the duplicate photos were used solely in furtherance of legitimate law enforcement interests. In response, appellants proffered no evidence and thus failed to establish a genuine issue for trial regarding the intent and willfulness of Government officials. In these circumstances, the District Court was obliged to grant summary judgment for the Government.
A. The Inmate Trust Fund and the Inmate Photography Program
Each BOP correctional institution maintains a Commissary, which is charged with two purposes: (1) maintenance of inmates' monies through the Inmate Deposit Fund; and (2) provision of merchandise and services that are not generally supplied by the institution. BOP Program Statement No. 4500.07 (Apr. 19, 2010) ("Program Statement 4500.07")
¶ 2.1(a). Each Commissary maintains a store where inmates are able to purchase items such as snack foods, personal hygiene products, and postage stamps, with all sales proceeds being deposited into the Inmate Trust Fund. The United States Government serves as the trustee for the Trust Fund and, pursuant to 31 U.S.C. § 1321(b)(1), is obliged to ensure that "disburse[ments are made] in compliance with the terms of the trust." It is undisputed that "trust funds may [only] be used for any purpose accruing to the benefit of the inmate body, as a whole, such as amusements, education, library, or general welfare work." Maydak I, 363 F.3d at 521 (quoting Washington v. Reno, 35 F.3d 1093, 1096 (6th Cir. 1994)) (internal quotation marks omitted); see also Program Statement 4500.07 ¶ 2.3(d). "The inmates at federal correctional facilities throughout the country are . . . the sole beneficiaries of the trust," Washington, 35 F.3d at 1104, and as a result, "[s]security-related items," such as radios, fences, or razor wire, are prohibited uses of Trust Fund profits. Program Statement 4500.07 ¶ 2.3(d)(3).
One of the services supported by the Trust Fund is the inmate photo program, pursuant to which inmates are allowed to have personal pictures taken, either alone or with visitors, at the cost of $1.00 per photo voucher. Id. ¶ 5.4. Trust Fund monies are used to cover all operational costs of the program, including camera equipment, photo processing, and photographer salaries. Id. Until recently, officials at many BOP correctional facilities accepted duplicate prints from the photo developers, sometimes in connection with a complimentary promotion and sometimes for an additional nominal fee. Maydak I, 363 F.3d at 522. The duplicate photo prints often were reviewed by BOP officials, variously, to uncover visual signs of gang-related activity, obscenity, or potential threats to the institution's safety or security. Id. at 514. Photos marked as problematic were added to existing security files or scanned into electronic files. Unused photo duplicates were either given to the inmates, immediately destroyed, or retained for a short period of time and then discarded. Id.
On April 19, 2010, BOP updated its Trust Fund Manual to officially forbid individual institutions from accepting duplicate prints, even if provided for free. Compare BOP Program Statement No. 4500.07 ¶ 5.4 ("Institutions shall not accept double prints from the vendor.") with BOP Program Statement No. 4500.06 (Feb. 19, 2009) ¶ 5.4(b)(2) ("Duplicate prints may be offered if there is no increase in cost."), reprinted in Addendum to Br. for Appellees.
In 1997, appellant Paul Lee realized that several BOP institutions were ordering double prints but only releasing a single print to the inmate. See Maydak I, 363 F.3d at 514-15 (discussing much of the case's factual history). Lee, along with two of his fellow inmates - appellant Keith Maydak and Ambrose Mitchell, the latter of whom was eventually replaced in this litigation by appellant Gregory Smith - filed a complaint in the District Court. Am. Compl., reprinted in App. 32-71. The litigation has since focused on the photo retention and review practices at seven different federal correctional institutions ("FCI") in which the appellants were held - namely, McKean, Ray Brook, Beckley, Lewisburg, Oklahoma City, Cumberland, and Allenwood.
Appellants have alleged that BOP's undisclosed review and retention of the duplicate photos violated various provisions of the Privacy Act - including, for example, the requirement that information about a "system of records" must be disclosed to the public through publication in the Federal Register, 5 U.S.C. § 552a(e)(4), and the requirement that agencies must "establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records," § 552a(e)(9). Appellants also alleged that BOP improperly used duplicate photos for prison security purposes in violation of the terms of the Trust Fund and sought reimbursements to the Fund under 31 U.S.C. § 1321(b)(1) for these improper uses.
The District Court initially dismissed the complaint in its entirety, finding the Trust Fund claims unfounded and the photograph files exempt from the Privacy Act's requirements because of the statute's exception for information that is compiled for law enforcement purposes. Maydak v. United States, No. 1:97-cv-02199, slip op. at 2 (D.D.C. Mar. 31, 1999) (citing 5 U.S.C. § 552a(j)(2)). On appeal, this court vacated the dismissal of the Privacy Act and Trust Fund claims. Maydak v. United States, No. 99-5187, 1999 WL 1006593, at *1 (D.C. Cir. Oct. 27, 1999). We held that the law enforcement exception did not apply unless BOP had previously promulgated a regulation invoking the exemption. We also held that, even if a law enforcement exemption was properly sought, public disclosure in the Federal Register would still be required. Accordingly, the case was remanded for the District Court to determine whether the retained photographs constituted a "system of records" as necessary to trigger the Privacy Act requirements and to inquire further into the Trust Fund claims. Id.
Following remand, the Government initiated summary judgment proceedings. BOP officials acknowledged that duplicate prints were retained and occasionally reviewed for signs of gang-related activities, offensive gestures or conduct, and investigative or informational purposes. Maydak v. United States, No. 1:97-cv-02199, slip op. at 7 (D.D.C. May 4, 2001), reprinted in App. 210. The Government maintained, however, and the District Court agreed, that these practices did not produce a "system of records" as defined by the Privacy Act, because the photos were never organized by any personal identifiers. Id. at 7-9, App. 210-12; Maydak v. United States, No. 1:97-cv-02199, slip op. at 1-2 (D.D.C. Mar. 22, 2002), reprinted in App. 218-19. The Government also argued, and the District Court again agreed, that 31 U.S.C. § 1321 violations only occurred where Trust Fund monies were used to pay for duplicates and that reimbursements were not necessary where the duplicate prints were provided by the vendor for free. In those institutions where BOP acknowledged misusing funds to cover the additional cost of duplicate prints, the District Court found reimbursements of those additional costs sufficient and concluded that further nationwide discovery of additional misappropriations was not warranted. Maydak v. United States, No. 1:97-cv-02199, slip op. at 2-4 (D.D.C. Mar. 22, 2002), App. 219-21. The District Court thus granted the Government's summary judgment motion on all counts.
The appellants appealed, and this court again vacated the judgment below. Maydak I, 363 F.3d at 512. In Maydak I, this court suggested strongly that the BOP photo review and retention practices might constitute a "system of records," although we ultimately remanded the issue for consideration by the District Court in the first instance. The relevant portion of Maydak I says:
[W]e believe that a genuine issue of material fact remains as to whether BOP's photo file in fact constitutes a system of records. Recall that a system of records is "a group of any records . . . from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5) (emphasis added). The term "record" includes "any item . . . about an individual . 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." Id. § 552a(a)(4) (emphasis added). Under the Act's plain language, then, a "system of records" may be a group of any records retrieved by an identifying particular such as a photograph. In other words, the personal identifier may be the photograph itself.
In asserting that the prisons at issue here maintained no such system of records, BOP officials failed to appreciate this point. They assumed that because the photographs were organized neither by name nor individually assigned number, they were not organized by personal identifier. For instance, the McKean [Special Investigative Supervisor ("SIS")] declared that duplicate photos with "investigative or informative value" were retained in investigation case files and other duplicates were "stored in a box for approximately six (6) months and then destroyed." Roy Decl. ¶ 9. Yet the SIS also claimed that "[n]one of the photographs . . . reviewed by the SIS office . . . [were] retrievable by an individual inmate as they [were] not filed by any personal identifier." Id. ¶ 10. As amicus quite properly asks, "What purpose would it serve to keep photographs that BOP investigators have purportedly determined have some significant importance to the security of the institution in a filing system from which they could not be retrieved by individual?" Amicus Br. at 12 n.4. "Presumably," amicus points out, "one of the primary reasons for keeping such a system is to enable the SIS to track and prevent unlawful activities by individuals whose photographs provide valuable information to do that." Id. Nor is it clear from the record why McKean officials retained for six months duplicate photographs having no investigative value. Although practices vary by prison, the Ray Brook declaration, which is very similar to the McKean declaration, suggests one such purpose: "to identify possible associates or accomplices of an inmate suspected of, or charged with, committing prohibited acts at FCI Ray Brook." Cross Decl. ¶ 9. This indicates that the duplicate photographs stored in a box were retrievable by personal identifier - the photograph itself - for how else could SIS staff have identified a particular inmate's associates or accomplices if not by the photograph?
The government argues that even if the photographs were retrievable by personal identifier, the photograph file would not constitute a system of records if the photos were not actually retrieved by personal identifier. The government is correct. In Henke [v. United States Department of Commerce, 83 F.3d 1453 (D.C. Cir. 1996)], we held that "retrieval capability is not sufficient to create a system of records"; the agency must in practice retrieve information by personal identifier. [Id.] at 1460-61.
Although incidental or ad hoc retrieval by personal identifier does not convert a group of records into a system of records, where an agency compiles information about individuals for investigatory purposes, "Privacy Act concerns are at their zenith, and if there is evidence of even a few retrievals of information keyed to [personal identifiers], it may well be the case that the agency is maintaining a system of records." Id. at 1461.
On the record before us, it seems clear that at least one institution, Ray Brook, retrieved photographs by personal identifier. With respect to the other institutions, because the declarations rested on a flawed understanding of personal identifier, they cannot support the grant of summary judgment. We will thus remand for the district court to determine whether the prisons' compilation of photos constitutes a system of records. In considering this issue, the district court should take into account "the entirety of the situation, including the agency's function, the purpose for which the information was gathered, and the agency's actual retrieval practices and policies." Id.
Maydak I, 363 F.3d at 519-20 (ellipses and third, fourth, fifth, and eighth brackets in original).
As for the Trust Fund claims, we concluded in Maydak I that reimbursements should not be confined to those institutions where duplicate prints required an additional fee; we also rejected as speculative the District Court's unverified determination that other BOP institutions were not misappropriating Trust Fund monies. Id. at 521-22.
On remand, the District Court again found that BOP's retention of duplicate photos within boxes or computer files did not constitute a system of records. On ...