TO:

FROM:

SUBJECT: Applicability of the Privacy Act to Disciplinary Investigations

This is in response to your request for guidance concerning the applicability of the 

Privacy Act to employee disciplinary investigations. The Privacy Act contains a 

provision restricting the gathering of information in disciplinary matters. Specifically, 

section 552a(e)(2) of the Privacy Act (5 U.S.C. § 552a(e)(2)) provides that agency will

collect information to the greatest extent practicable directly from the 

subject individual when the information may result in adverse 

determinations about an individual’s rights, benefits, and privileges under 

Federal programs. Thus, as a general rule, the agency should first seek 

clarification from the subject individual directly involved in disciplinary 

investigation. If another course of action is taken, jj*. seeking third party 

information, there must exist a good reason, such as those articulated 

below.

The leading cases regarding section 552a(e)(2) are Waters v. Thornburgh. 888 F.2d 

870 (D.C. Cir. 1989) and Brune v. IBS, 861 F.2d 1284 (D.C. Cir. 1988). Waters 

involved an employee of the Department of Justice whose supervisor became aware of 

information which raised suspicions regarding the employee’s use of approved leave. 

Without first approaching the employee to seek a clarification, the supervisor sought 

and received verification of the employee’s attendance at the state bar examination. 

The Court of Appeals for the District of Columbia Circuit held that

[l]n the context of an investigation that is seeking objective, 

unalterable information, reasonable questions about a subject’s 

credibility cannot relieve an agency from its responsibility to collect 

that information first from the subject. Waters, at 873.

U n i t e d S t a t e s G o v e r n m e n t

MEMORANDUM

FORM 0-1151(1-92)

R a i l r o a d R e t i r e m e n t B o a r d

APR 042000

L-2000-10

John L. Thoresdale 

Director of Administration

Steven A. Bartholow/^ 

General C ounsel/^
In Brune. the Court permitted the agency to first obtain information from a third party, 

since the employee involved, an IRS employee, had a unique ability to impede or 

compromise an investigation through the ability to pressure the potential witnesses, 

which were companies subject to tax review by the IRS employee.

Exceptions from the general rule contained in the statute are set forth in the OMB 

Guidelines on implementing the Privacy Act. See 40 Fed. Reg 28,948 and 28,961. 

Those guidelines stress that the statute provides “to the greatest extent practicable” 

information should be obtained from the subject individual. However, practical 

considerations, including cost, may dictate that a third party source may be used before 

the subject individual is contacted. In addition, an agency may contact a third party first 

where there exists a risk that the information sought might be lost, through the 

potential intimidation of other witnesses. Further, in an investigation where the 

credibility of the subject individual involved is questionable, the agency may seek the 

input of third parties before questioning the employee.

Recovery of damages under the Privacy Act can only arise if the violation is “ intentional 

or willful." 5 U.S.C. § 552a(g)(4). The Courts have interpreted this standard as being 

somewhat “greater than gross negligence” H ill v. U.S. Air Force. 795 F.2d 1067,1070 

(D.C. Cir. 1986) or an act committed “without grounds for believing it to be lawful, or by 

flagrantly disregarding others’ rights under the Act.” Albright v. United States. 732 F.2d 

181,189 (D.C. Cir. 1984).

I am available to discuss any questions you might have on this issue.

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