E.D.Va.: A claim that government agents disclosed the contents of the search of his house to FoxNews didn’t state a claim under The Privacy Act, 5 U.S.C. § 552a

A claim that government agents disclosed the contents of the search of his house to FoxNews didn’t state a claim under The Privacy Act, 5 U.S.C. § 552a. “Rule 41 does not authorize a court to manage the collection, storage, or use of property obtained pursuant to a search warrant, other than ordering the return of such property.” In re 2122 21st Rd. N. Arlington, 2018 U.S. Dist. LEXIS 11874 (E.D. Va. Jan. 25, 2018):

To prevail on a wrongful disclosure claim under the Privacy Act, a movant must show that (1) the disclosed information is a “record” contained within a “system of records”; (2) the agency improperly disclosed information; (3) disclosure was willful or intentional; and (4) disclosure adversely affected the movant. See Piccone v. U.S. Patent & Trademark Office, No. 1:15-CV-536, 2015 U.S. Dist. LEXIS 145765, 2015 WL 6499687, at *5 (E.D. Va. Oct. 27, 2015); Cloonan v. Holder, 768 F. Supp. 2d 154, 163 (D.D.C. 2011). Appellant’s attempt to meet this standard with regard to her complaint about the Government’s alleged disclosure of items seized during the search of her home fails in multiple respects.

First, Appellant has failed to show that evidence seized during a search conducted in a criminal investigation constitutes records that are “contained in a system of records” under the Privacy Act. The Privacy Act defines the term “system of records” to mean “a group of any records under the control of any agency 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). Appellant has made no showing that the information she asserts was disclosed by the Government was within such a system. See Dkt. 1; Dkt. 10; see also Dkt. 8 at 8-10.

Even if items seized during a government search warrant could be considered part of a “system of records,” the Court has been unable to find any prior case in which the disclosure of an item seized during the execution of a search warrant was found to constitute a violation of the Privacy Act. As the Government notes, applying the requirements of the Privacy Act to evidence sought by a search warrant would lead to illogical results. The Act requires an agency that maintains a system of records to “upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him … to review the record and have a copy made of all or any portion thereof.” 5 U.S.C. § 552a(d). It defies logic to conclude that Congress intended the Privacy Act to require government agencies such as the FBI to permit the subject of a criminal investigation “to gain access to his record or to any information pertaining to him which is contained in the system.” Indeed. Appellant seems to acknowledge this fact, admitting that a hearing before a magistrate judge would “not constitute a remedy [but] would be simply a means … of seeking to particularize the Government’s violation.” Dkt. 1 at 8.

Finally, even if there were a violation of the Privacy Act arising from an alleged disclosure of information obtained in a search warrant, jurisdiction would arise from that statute, which requires an original civil action filed with the district court. See 5 U.S.C. § 552a(g). A hearing before the magistrate judge who authorized the warrant would not be an appropriate forum in which to make an original Privacy Act claim. Rather, Appellant would better pursue the avenues for civil relief provided by the Privacy Act, such as a civil complaint in which Appellant could be entitled to obtain discovery related to the manner in which the information was disclosed to Fox News.