The DLA has submitted the declaration of Matthew D. Shannon, who is Legal Counsel to the Clerk of the MSPB. In this capacity, he is familiar with the procedures followed by the MSPB in processing requests for information under the Privacy Act and the FOIA. In addition, the MSPB has submitted declaration of Sean P. Walsh, who is the Chief Administrative Judge of the MSPB-NY. In this capacity, he is familiar with the procedures followed by the MSPB-NY in processing requests for information pursuant to the FOIA and the Privacy Act. The Walsh and Shannon Declarations establish that Williams was provided with copies of administrative records for the four MSPB proceedings he requested in their entirety. Moreover, the Declarations establish that [48] both the MSPB main office in Washington and the MSPB-NY conducted thorough and reasonable searches to ensure that Williams received the administrative records that he requested. Because the MSPB has properly searched for and produced its administrative records, Williams claim against the MSPB must be dismissed for lack of subject matter jurisdiction. Under the Privacy Act, an individual may "request amendment of a record pertaining to him" maintained by a federal agency that the individual believes is not 'accurate, relevant, timely or complete." 5 U.S.C. § 552a(d)(2). The agency's determination not to amend a record is subject to de novo review by a district court. 5 U.S. C. 552a(g)(2)(A). Pursuant to this provision, Williams sought to supplement the administrative record of an MSPB proceeding in which he requested a stay of his termination of his employment with the DLA. (Shannon Dec. P 15.) On January 7, 1991, the MSPB issued an opinion ruling that Williams was not entitled to a stay of his removal. By letter dated March 28, 1991, Williams requested the MSPB to include in the administrative record of that [*49] proceeding a letter to him from a DODIG official concerning his allegations of reprisal for making whistleblowing disclosures. The MSPB denied plaintiff's request. Guidelines issued by the Office of Management and Budget provide that the Privacy Act's: Provisions for amending records are not intended to permit the alteration of evidence presented in the course of judicial, quasi-judicial or quasi-legislative proceedings. Any changes in such records should be made only through the established procedures consistent with the adversary process. 40 Fed. Reg. 28,948, 28,958 (July 9, 1975). Courts have routinely dismissed Privacy Act requests for amendment of records that constitute collateral attacks on quasi-judicial determinations recorded in agency records. See, e.g.. Pellerin K Veterans Admin, 790 F.2d 1553, 1555 (11th Cir. 1986) (affirming dismissal of Privacy Act request to amend plaintiff's medical records on the grounds that request was a collateral attack on the VA's disability benefit determination); Bashaw v. United States Dep't of Treasury, 468 F. Supp. 1195. 1196-97 (E.D. Wis. 1979) [50] (dismissing Privacy Act request to amend record consisting of opinion rejecting discrimination claim citing OMB guidelines); Kennedy v. Andrus, 459 F. Supp. 240, 242 (D.D. C. 1978) (noting that OMB Guidelines "clearly forbid collateral attack in the case of final judicial or quasi-judicial actions"). Williams' request to supplement the record of his administrative proceeding before the MSPB constitutes an attempt to contest the MSPB's determination on the merits of his request for a stay of his removal. Accordingly, the MSPB properly denied his request to amend the record of the MSPB proceedings. Williams' Motion for Sanctions or for Contempt Williams has also moved, pursuant to Local Rule 5(b). for default sanctions against the defendants for failure to defend diligently, or in the alternative, for sanctions for contempt of court. He requests that the Court award him damages or, in the alternative, that the defendants bear the costs of weekend depositions transcribed at their expense and any additional costs the Court may deem just and proper due to the defendants' obstruction of the effective administration of the Court's business. Local Rule [51] 5(b) of the Joint Rules for the United States District Courts for the Southern and Eastern Districts of New York provides that: Failure of counsel for any party. to appear before the court at a conference, or to complete the necessary preparations, or to be prepared to proceed to trial at the time set, may be considered an abandonment of the case [or] failure to prosecute or defend diligently, and an appropriate order may be entered against the defaulting party either with respect to a specific issue or on the entire case. Sanctions under Local Rule 5(b) are proper if a party's intentionally dishonest or unreasonable actions needlessly delay a court proceeding or increase its opponents costs. WWW. Pharmaceutical Co. v. Gillette Co., 808 F. Supp. 1013 (S.D.N. Y. 1992), aff'd, 984 F.2d 567 (2d Cir. 1993). Sanctions are also proper if a party fails to materialize at appearances scheduled in the course of EXIS NEXIS LEXIS NEXIS LEXIS NEXIS 1994 U.S. Dist. LEXIS 353, 51 conducting litigation despite adequate notice. Valentin In the present case, Williams claims that the defen- Finally, Williams requests the Court to order the defendants to bear the costs of weekend depositions, transcribed at their expense. On December 23, 1992, however, this Court ordered that depositions in this case shall Page 15 LEXSEE proceed on regular business days. Since Williams has demonstrated no grounds for imposing sanctions upon the defendants, his motion is denied. Conclusion For the reasons stated above, the defendants' motions are granted, and Williams' motion for sanctions is denied. It is so ordered. LEXIS NEXIS LEXIS NEXIS LEXIS NEXIS President Clinton has asked each Federal department and agency to take steps to ensure it is in compliance with both the letter and the spirit of the Freedom of Information Act (FOIA), 5 U.S.C. $552. The Department of Justice is fully committed to this directive and stands ready to assist all agencies as we implement this new policy. First and foremost, we must ensure that the principle of openness in government is applied in each and every disclosure and nondisclosure decision that is required under the Act. Therefore, I hereby rescind the Department of Justice's 1981 guidelines for the defense of agency action in Freedom of Information Act litigation. The Department will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure. To be sure, the Act accommodates, through its exemption structure, the countervailing interests that can exist in both disclosure and nondisclosure of government information. Yet while the Act's exemptions are designed to guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied with specific reference to such hara, and only after consideration of the reasonably expected consequences of disclosure in each particular case. In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be. It is my belief that this change in policy serves the public interest by achieving the Act's primary objective -- maximum responsible disclosure of government information -- while preserving essential confidentiality. Accordingly, I strongly encourage your FOIA officers to make "discretionary disclosures" 2 whenever possible under the Act. under a number of FOIA exemptions, especially when only a Such disclosures are possible governmental interest would be affected. The exemptions and opportunities for "discretionary disclosures" are discussed in the Discretionary Disclosure and Waiver section of the "Justice Department Guide to the Freedom of Information Act." As that discussion points out, agencies can make discretionary FOIA disclosures as a matter of good public policy without concern for future "waiver consequences" for similar information. Such disclosures can also readily satisfy an agency's "reasonable segregation" obligation under the Act in connection with marginally exempt information, see 5 U.S.C. $ 552 (b), and can lessen an agency's administrative burden at all levels of the administrative process and in litigation. policy is not intended to create any substantive or procedural I note that this rights enforceable at law. In connection with the repeal of the 1981 guidelines, I am requesting that the Assistant Attorneys General for the Department's Civil and Tax Divisions, as well as the United States Attorneys, undertake a review of the merits of all pending FOIA cases handled by them, according to the standards set forth above. The Department's litigating attorneys will strive to work closely with your general counsels and their litigation staffs to implement this new policy on a case-by-case basis. The Department's Office of Information and Privacy can also be called upon for assistance in this process, as well as for policy guidance to agency FOIA officers. In addition, at the Department of Justice we are undertaking a complete review and revision of our regulations implementing the FOIA, all related regulations pertaining to the Privacy Act of 1974, 5 U.S.C. § 552a, as well as the Department's disclosure policies generally. We are also planning to conduct Department-wide "FOIA Form Review." Envisioned is a comprehensive review of all standard FOIA forms and correspondence utilized by the Justice Department's various components. These items will be reviewed for their correctness, completeness, consistency, and particularly for their use of clear language. As we conduct this review, we will be especially mindful that FOIA requesters are users of a government service, participants in an administrative process, and constituents of our democratic society. I encourage you to do likewise at your departments and agencies. Finally, I would like to take this opportunity to raise with you the longstanding problem of administrative backlogs under the Freedom of Information Act. Many Federal departments and agencies are often unable to meet the Act's ten-day time limit for processing FOIA requests, and some agencies -- especially those dealing with high-volume demands for particularly sensitive records -- maintain large FOIA backlogs greatly exceeding the mandated time period. The reasons for this may vary, but principally it appears to be a problem of too few resources in the face of too heavy a workload. This is a serious problem one of growing concern and frustration to both FOIA requesters and Congress, and to agency FOIA officers as well. - It is my hope that we can work constructively together, with Congress and the FOIA-requester community, to reduce backlogs during the coming year. To ensure that we have a clear and current understanding of the situation, I am requesting that each of you send to the Department's Office of Information and Privacy a copy of your agency's Annual FOIA Report to Congress for 1992. Please include with this report a letter describing the extent of any present FOIA backlog, FOIA staffing difficulties and any other observations in this regard that you believe would be helpful. In closing, I want to reemphasize the importance of our cooperative efforts in this area. The American public's understanding of the workings of its government is a cornerstone of our democracy. The Department of Justice stands prepared to assist all Federal agencies as we make government throughout the executive branch more open, more responsive, and more |