judge after the hearing the judge rendered a decision on that complaint finding against mr burnett no discrimination in that decision the judge in the conclusion of that decision made the following statement i further find that complainants attempt to minimize the impact of his deposition testimony after he had an opportunity to reflect on it and realize how damaging some of his statements were were not persuasive or credible the decision was rendered april thirty two thousand three or five months later the da someone at the v a unnamed made a telephone call to a prosecutor for whom mr burnett as a part of his duties and responsibilities was about to testify in a criminal case about a substance he had analyzed in a telephone call saying some credibility information concerning mr burnett has come to light the prosecutor then asked him if the information the a person whoever was sent the administrative judge's decision based on the argument that that was credibility information and information that based giggling over to the united states should be disclosed to defense counsel our contingent is that that disclosure the oral statement the telephone call and subsequent disclosure violated the privacy act and we would respectfully disagree with the district court in finding otherwise there are at least three areas of care that i would like to submit to the court that the district court made the first error was the district court's acceptance of the facts that had no evidence re support the district court accepted as fact argument of counsel the first in most obvious example of this was the district court said on an excerpt the record paid seventy seven lines five produce that in the decision the l j noted that plaintiff delivered inconsistent testimony and that he doubted plaintiff's credibility absolutely the a l j did not note any inconsistent testimony in his decision there was in fact no evidence to support or clarify or give any understanding to the statement i read to you about attempting to minimize deposition testimony none whatsoever but there was no inconsistent testimony noted in the decision and this is crucial because the district court i believe when it determined that the record in this case the record in the system of records was the age a decision included that misunderstanding a second acceptance of fact based on nothing but the argument of counsel was the district court statement that based on playchess record as it existed when the there is no evidence in the record that the da treated the administrative judge's decision as a finding of lack of candor basically as i said when the unknown person call assistant u s attorney his name was kraus he merely said some credibility information that's come to light also mr kraus concluded before he disclosed the information to defense counsel merely that the evidence was favorable to the defense because it could be used to impeach mr burnett and of course they're after the d a investigated what get alleged was the basis of the judge decision and its office of or board of professional review responsibility found there was no lack of candor and mr burnett just attempted to respond to questions as best he could during his deposition testimony so examples of situations where the judge accepted as fact arguments of counsel that were not supported by any evidence and indeed in some instances contradicted by evidence the second area of error i would respectfully submit your honor this is even more important when i believe it was the failure of the district court to recognize the difference between what an employee is obligated to self disclose when the prosecutor comes to him and says you're going to be a witness for me in the criminal case you know what about your background get real policy initially broad scope of information general the second category of information which is by no means coterminous with the first is what an agency is allowed to disclose on an employee with out the employees permission and the good legal policy specifies what that information is there are three categories of information only those three categories are findings of misconduct that reflects upon the truthfulness and bias of the employee including a finding of lack of candor past or pending criminal charges brought against the employee and any credible allegation of misconduct that reflects upon the truthfulness a possible bias of the employee that is the subject of a pinning investigation your argument seems to me rises or falls on whether the thank you prosecutor communicates with the prospective quit this employee and in that interchange generally gets all the information he or she needs as a prosecutor to determine whether there's italy or information the policy then stays if the prosecutor decides he or she needs to the prosecutor may make a request of the agency for information so under the policy and agency may i think that's telephone call it probably epitomizes what the giggly all policy was intended to prohibit some employee in an agency calling a prosecutor and saying i got something i want your witnesses and then the run with it constitutional first they can communicate only upon request that's number one for the for the policy secondly i said creates a good situation and the information submitted is not fall within one of the three categories i just spoke about and that's the part that i was saying earlier yes and it's a finding of lack of candor the fact will it work the in this particular situation although the agency never made a finding of lack of candor the defense counsel argue that that's what the agency so first if the court with throughout this read what the evidence was this motion for summary judgment against the play that was based on argument of counsel and we have ironically the plaintiff and the agreed on two crucial facts number one that the parameters of the information that the da was permitted to disclose including only those three categories of information and i say we agreed on it because if you read the wh letter to form letters we have in the record that were sent out there found at the at the exits of records pages fifty nine fifty seven through fifty nine  stating that the da was complying with its requirements in the policy in those form letters it states those three categories the records were searched for those three categories of information that was if it were a reasonable inference that there that you read at the beginning showed a lack of candor or lack of credibility did the d n a violate the privacy act in providing that information to the u s attorney's office ye defense argued that these disclosures were routine use my submission to the court is you cannot have a routine use of information that violates the policy exception which permits giving over to another entity when there's a law enforcement purpose well i thought we were talking about the inter as opposed to the in try a g s yes we are there is a separate statutory candor first your honor the issue is whether you are going to make that finding out of the issue because the agency did not make that finding based on the evidence and i'm almost i'm out of time case is that as the supreme court's indicated there is a very big difference between the trying to figure out what potential  impeachment information is before the trial and what determination a judge might make post trial as to whether yes certain information was information and it was and as a result a prudent prosecutor is going to have to err on the side of disclosure when we're talking about something that is pretrial and so really what you act is section g four and the elements that are in that provision are first of all that you have a disclosure of a record that's in the system of a records second if you have no written consent of the individual about the victim the record pertains three none of the twelve exceptions that are under section b apply and then the next two are also extremely important and they are whether the agency acted in a manner that was intentional or willful and the fifth one is that the individual proves actual damages and the terms that are used here intentional or willful are terms of art and there are cases including one circuit cases of covert versus harrington a case that was actually cited by the appellant in his brief defines intentional or willful as something that is greater than gross states attorney is advised on the eve of trial literally that there is some information pertaining to the credibility of one of the witnesses for the prosecution that is mr burnett and what the a usa did at that point was obtain that information another thing that's extremely important that he didn't do prior to trial was consult with the given what was available to the a usa at that time again it's the eve of trial if the trial was the next day also the trial lasted excuse me lasted just one day so this wasn't really a situation which was really amenable to the usa if he thought that this was something that maybe did not need to be disclosed and when i look at the floor that just seems to be additional damages if the agency acted in a manner which was intentional or will and he actually that case dealt with the issue of whether somebody who is alleging an improper disclosure or certainly place a situation where somebody is alleging an improper disclosure under the privacy act that they must show actual damages and in analyzing why a plaintiff who was making this such a claim has to prove actual damages they also discussed that part of the provision that is g four includes not only that but also that the plaintiff my show that the act by the discloser was something that was intentional and willful i have another words on section has read it in its entirety not as an issue of these are additional remedies that is the only remedy that somebody in this situation has it's an action for damages in the same way that you might have a tort claim i have a question about the routine use which is your your of the routine uses and included categories of users does this information meet those standards i believe it does your honor and actually again there were other  exceptions that were addressed below and also by the so i just have to work and the one is well actually but if you would like me to address the question of routine use first i certainly can the information i think it says teen uses for law enforcement regulatory purposes that's that's correct your honor but the fact that under the giggly all policy which is  department of justice policy you had some doesn't seem like that he disclosed and it must be collected to be disclosed to the prosecutor for a law enforcement purpose which is the is the apple system of records and what you have here is a situation where you have a document that's been collected the administrate of judge's decision for the apply such that there should still be a disclosure but the disclosures that are at issue in this case were disclosures that were made before the administrative process the e o administrative process that there was not sufficient information to lead to a conclusion that there was misconduct in the form of lack of candor now that's a determination that's not necessarily the same determination that's being made by the it ministry of judge but there is that investigation that's sitting out there it's pending to ask each time there there is nothing to indicate in the record that that had not been done as a matter of course in the particular case where they say they did disclose obligation to turn over to the usa these anything that might come up and in this particular situation apparently it did come up at the referred to a p r investigation is is opened up and then if if there is not the obligation before there is certainly the obligation then to turn that material over to usa i just briefly i did want to point out that again i did provide some additional citations for the proposition that what you did have here between the a and the a u s a was a b one disclosure which was need to know the district court did not accept that argument that was made by the government before the district court but i court in his decision you do have in the form of the good policy of the attorney general making a written request for specific information i e potential impeachment information and and also it describes what the reason is for needing to make that disclosure your time has as that but basically what you have to here as i said is a privacy act case and what what you have is what i believe even if you needed to address even if you needed to make a conclusion as to whether there was an applicable exemption that applied i think you can do it here under any of those  is raising an issue now that was conceded in the district court also ms levine again is making arguments based on something other than the record i'm trying to stick with the record i would implore the court to just stick with what's in the record there is no evidence of that investigation began when it ended and since the defense in this case was arguing that the disclosures came with an exception the burden is on the defense to prove that so there's no there's no good defense to say the plaintiff hasn't shown us when an investigation began or when it ended therefore under the third category of items that could be disclosed there is no justifiable reason for time to do the research i can only say in the recesses of my own mind i believe that you only look at legislative history if the letter if the statute itself doesn't provide you with an answer and looking at the statute as the judge looked at the statute e r seventy seven through eighty he saw in the statute that the agencies are separate so this is inter agency not and try