Joseph W. Doyle, Plaintiff-appellant, v. John Behan, Administrator of Veterans' Administration,defendant-appellee, 670 F.2d 535 (5th Cir. 1979)

Joseph W. Doyle is a former counseling psychologist employed by the Veterans' Administration at the San Antonio branch unit of the Houston Regional Office. Following receipt of reports of Doyle's sexual advances toward female beneficiaries assigned to him for counseling, the VA commenced an investigation. On December 7, 1978, Doyle's attorney demanded, pursuant to the Freedom of Information Act (FOIA) and the Privacy Act, all documents in the investigative file. On December 26, 1978, the VA's Assistant Inspector General for Investigation responded to counsel's request, claiming that the documents were exempt from disclosure under 5 U.S.C. §§ 552(b) (7)¹  and 552a(d) (5),²  primarily because disclosure at that time would interfere with a pending investigation.

By letter dated February 14, 1979, Doyle was informed of his proposed termination.³  Doyle's counsel repeated his requests and the majority of the documents were furnished. In addition, the VA made available the "evidence file" containing the materials relied on to support the proposed discharge. Doyle complains about certain documents the VA declined to make available.⁴ 

On February 14, 1979, Dorothy Starbuck, the Chief Benefits Director of the VA, was notified by the Field Director of the Western Region, John Travers, that Doyle was to be removed. On that day, she was furnished a copy of the termination letter. Because Congressman Henry Gonzalez had manifested an abiding interest in the VA facilities and staff in his congressional district, Starbuck telephoned the congressman's office and informed Gail Beagle, a congressional staff member, that Doyle was being dismissed.

In the instant suit, Doyle claims that information was withheld wrongfully under the FOIA and that Starbuck's conversation with Beagle violated a provision of the Privacy Act, 5 U.S.C. § 552a(b). Both parties moved for summary judgment. The trial judge granted defendant's motion. We affirm.

In discussing Doyle's disclosure claims (set forth in footnote 4), the district court reasoned that the VA properly withheld the first two items according to the Veteran's Benefits statutes, particularly 38 U.S.C. § 3301(a) which provides:

All files, records, reports and other papers and documents pertaining to any claim ... administered by the Veterans' Administration ... in the possession of the Veterans' Administration shall be confidential and privileged, and no disclosure thereof shall be made ....

The counseling records, tests, and psychological profiles of the three females who reported Doyle's advances are covered by this statutory umbrella of confidentiality. A number of exceptions are enumerated in section 3301, but none is suggested, nor do we note any, as applicable. The trial court correctly upheld the administrator's decision to withhold these records.

Doyle complains that the investigator's summary was not made available to him. No merit exists in this contention. Prior to February 14, 1979, the file was the product of a pending investigation and the request for disclosure did not have to be honored under the FOIA. 5 U.S.C. § 552(b) (7) (A). See N. L. R. B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). After completion of the investigation, the evidence file was made available to Doyle. We find no credible support for the suggestion that a summary was secreted from the file so as to deny Doyle access. We concur with the trial judge's conclusions in this regard.

Doyle's final complaint relates to the demand for a copy of the authority for the VA to monitor his telephone conversations. In response to this request, the VA advised Doyle that the practice was authorized by federal law. The trial judge understood this to mean that no documentary information existed, obviously other than the statute, and there was nothing to produce. Doyle does not contravene this position and we discern no basis upon which to find that a genuine dispute of a material fact exists.

The most serious matter raised by Doyle in this appeal relates to Starbuck's conversation with Beagle concerning the charges against Doyle and his impending discharge. Doyle maintains that this communication was a willful and intentional disclosure of records protected by the Privacy Act, constituting a violation of 5 U.S.C. § 552a(b). This section provides:

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, the individual to whom the record pertains ....

The VA's position, as supported by Starbuck's affidavit, is that the content of her telephone communication with Beagle did not include the disclosure of a record contained in a system of records, but was based on memory and personal knowledge developed as the case unfolded. Specifically, in her affidavit Starbuck said: "In my conversation with Mrs. Beagle, I did not rely primarily on the proposed removal letter in giving her the message intended for the Congressman, but rather on my oral discussion with Mr. Travers and my previous knowledge of the case as it developed from September 1978 to the date of the conversation."

Citing King v. Califano, 471 F. Supp. 180 (D.D.C. 1979), and Savarese v. United States Dept. of Health, 479 F. Supp. 304 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S. Ct. 858, 66 L. Ed. 2d 801 (1981), the trial court reasoned that the "information imparted was merely a conclusionary statement from the utterer's memory," and ruled that a system of records had not been utilized by Starbuck to gather the information conveyed to Beagle. Further, the district court noted that according to Starbuck's affidavit, the "information was acquired independent of the records pertaining to Mr. Doyle."

On appeal, Doyle does not challenge the rationale of the King and Savarese decisions, that remarks based upon independent knowledge and not from an examination of an individual's records kept by the agency, do not violate the Privacy Act. Instead Doyle attempts to distinguish those cases by asserting that Starbuck's communication to Beagle contained data retrieved from VA files.

This naked allegation, however, is not sufficient to raise a genuine dispute of material fact in the face of Starbuck's affidavit. As against a motion for summary judgment, a litigant is required to present more than unsupported pleadings or allegations. Fed. R. Civ. P. 56(e). Doyle was required to come forth with evidence indicating that a triable issue of fact existed with regard to the informational source of Starbuck's conversation with Beagle.⁵  He did not do so.

From Starbuck's testimony, the trial court concluded that the information transmitted to Beagle was not retrieved from a system of agency records within the intendment of the Privacy Act; thus, the VA was entitled to summary judgment. Because we agree that 5 U.S.C. § 552a(b) forbids only the disclosure of such records, and considering that the only evidence offered on the issue is to the effect that the February 14, 1979 telephone conversation between Starbuck and Beagle was not drawn from agency record, we perceive no error in that disposition.

The judgment of the district court is AFFIRMED.