* In the present case, Pippinger sued the “Secretary of the United States

Treasury” without naming the Secretary personally. We take judicial notice of the fact that Robert E. Rubin is the Secretary of the U nited States Treasury, and substitute his name accordingly. See Fed. R. App. P. 43(c). 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 5 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN PIPPINGER, Plaintiff-Appellant,

v. ROBERT E. RUBIN, * Secretary of the United States Treasury, Defendant-Appellee. No. 96-8057

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 95-CV-17-D)
Charles M. Pratt, Denver, CO, argued the cause for the appellant. Annette M. Wietecha, United States Department of Ju stice, Washington, DC, argued the cause for the appellee. Gilbert S. Roth enberg assisted on the brief.

Before ANDERSON, BALDOCK, and EBEL , Circuit Judges.

EBEL , Circuit Judge.Because of a romantic relationship with a subordinate, Plaintiff-Appellant

John Pippinger was temporarily suspended from his j ob as an Internal Revenue Service (“IRS”) branch manager. Several IRS employ ees were involved in helping the local IRS District Director reach the d ecision to suspend Pippinger. Eventually, many IRS employees in the district knew why Pippinger was suspended. Before Pippinger’s suspension was carried out, Pipp inger’s supervisor Patrick Schluck got into trouble with the IRS becau se he too had a romantic relationship with a subordinate. During the deposi tions and proceedings pertaining to Schluck’s case, Pippinger’s case was discussed and the IRS disclosed information from records of Pippinger’s c ase to Schluck and his attorneys. Pippinger sued the IRS, alleging violations of the Privacy Act of 1974, 5 U.S.C. § 552a (1994). The district court granted s ummary judgment in favor of the IRS. Pippinger appeals. Because we agree with the district court that Pippinger’s rights under the Privacy Act were not v iolated, we affirm.

BACKGROUND This is an appeal from a grant of summary judgment. Thus, the following facts are set forth in the light most favorable to Pippinger, the non-movant. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). All reasonable inferences from the factual record have been drawn in favor of Pippinger.1 Lynn Boak was known as Lynn Orr until 1993, when sh e obtained a

divorce from her former husband. **-3-** Since 1978, Plaintiff-Appellant John Pippinger has been employed by the Internal Revenue Service (“IRS”) as a manager. In July 1988, IRS employee Lynn Boak 1 began to work under Pippinger’s supervision in the IRS’s Cheyenne, Wyoming office. Although both Pippinger and Boak w ere married to other people at the time, they began having an affair in Novembe r 1992. In December 1992, an anonymous tip was phoned in to the IRS’s Internal Security Hotline. This tip alleged not only the ex istence of an affair between Pippinger and Boak, but also that Pippinger was giv ing preferential treatment to Boak over other employees, and that, without justif ication, Pippinger had arranged for Boak to travel with him on “official b usiness.” Pippinger was given a copy of a memo reporting this allegation, but was not asked to respond to it. Pippinger’s supervisor, Patrick Schluck, drafted a response for the District Director’s signature, denying the allegations of tr avel improprieties and preferential treatment. This response did not addr ess the extramarital affair allegation. In March 1993, a second anonymous complaint was mad e to the Internal Security Hotline. This complaint was nearly identi cal to the first. At Schluck’s request, Pippinger drafted a response to the secondcomplaint which was modeled**-4-**

after Schluck’s response to the first complaint. T his response, like the first, specifically refuted the allegations of travel impr oprieties but did not address the issue of a “romantic” relationship between Pippinge r and Boak. On March 31, 1993, the IRS District Director for Ch eyenne retired and was replaced by an acting District Director, James Wals h. On April 19, 1993, Pippinger informed Schluck that Pippinger and Boak had been romantically involved since November 1992, and were now planning to live together. Schluck then transferred Boak to an other group not under Pippinger’s supervision. After learning the detail s of this meeting, acting District Director Walsh wrote to the Officer of Internal Sec urity to explain the situation. Walsh proposed that the matter be closed with no fu rther action. On June 1, 1993, Stephen Taylor became the new, per manent, IRS District Director in Cheyenne. After reviewing the Pippinge r affair with members of his staff, Taylor decided to suspend Pippinger without pay for two days for making misleading statements in response to the hotline co mplaints and crafting the appearance of a conflict of interest. Specifically , Taylor believed that Pippinger should have revealed the nature of his relationship immediately and taken steps to eliminate the supervisor/subordinate relationship. On July 12, 1993, Pippinger received written notice of his proposed suspension, and was advised of his right to reply. He replied to Schluck on2 An MSPB proceeding is initiated by an employee seek ing “corrective

action” regarding personnel action which has been t aken (or is proposed to be taken) against that employee. 5 U.S.C. § 1221(a) ( 1994). Its procedures are governed by 5 U.S.C. § 1221 (1994). **-5-** July 28, 1993. Schluck affirmed Pippinger’s suspen sion, but informed Pippinger of his right to appeal to Taylor. In August 1993, a short time after Schluck held Pip pinger’s reconsideration hearing, Schluck also became romantically involved with a subordinate employee. When this affair became known to the District Direc tor, Schluck was quickly demoted from his position as Chief of Exam. A majo r factor contributing to Schluck’s demotion was the fact that, as Pippinger’ s direct supervisor, Schluck presided over proceedings to discipline Pippinger f or having an affair with a subordinate, while Schluck himself was also having an affair with a subordinate. On September 27, 1993, Pippinger’s appeal of his su spension was denied by District Director Taylor. Pippinger then filed an Agency Grievance concerning his suspension with the Regional Commissioner’s off ice. In November 1993, Pippinger married Boak. In January 1994, Schluck both resigned from the IRS , and initiated a proceeding through the Merit Systems Protection Board (“MSPB”) to have his Chief of Exam position reinstated. 2 An MSPB administrative proceeding is similar to a judicial proceeding, and involves a pr ocess of discovery. See 5**-6-**

U.S.C. § 1221(d) (1994). During discovery in Schlu ck’s MSPB proceeding, District Director Taylor, Administrative Officer St ephen Webb, and IRS labor relations specialists Joni Probasco and DeWayne Wic ks each gave deposition testimony in which they “disclosed information from. . . his personal records concerning John Pippinger.” (Affidavit of Patrick S chluck, Aplt.’s App. at 45). IRS attorney Susan Neiser, a private attorney repre senting Schluck, a court reporter, and Schluck himself were all privy to thi s deposition testimony. In April 1994, Pippinger was granted a hearing by the Regional Commissioner’s office. Around that time, Pippingerlearned that his case had been discussed, and his and Boak’s identities revea led, during discovery in Schluck’s MSPB proceeding. At that time, Pippingeralso learned that the IRS had been maintaining a computer database known as t he “Automated Labor Employee Relations Tracking System” (“ALERTS”). (I d. at 9-10, 154-56). The nationwide ALERTS system was used by the IRS perman ently to record all disciplinary action proposed or taken against any I RS employee. The ALERTS system contained two separate entries onPippinger: one describing Pippinger’s alleged misconduct and his p roposed two-day suspension; the other documenting Pippinger’s appeal through th e agency’s grievance process. Information from the ALERTS entry pertaining to Pip pinger’s misconduct and**-7-**

suspension had been disclosed in depositions taken during Schluck’s MSPB proceedings. In May 1994, the Regional Commissioner upheld Pippi nger’s suspension. Pippinger then requested the appointment of an IRS Grievance Examiner. On November 2, 1994, the Grievance Examiner issued a R eport of Findings and Recommendations upholding Pippinger’s suspension. On January 19, 1995, Pippinger sued the Secretary o f the Treasury (also referred to in this opinion as the “IRS”), alleging that the IRS had violated the Privacy Act of 1974, 5 U.S.C. § 552a (1994), by mai ntaining disciplinary records on Pippinger in the allegedly unlawful ALERTS datab ase and also by allegedly disclosing information from those records on severa l occasions. In a second count, Pippinger also claimed that the IRS had viol ated his First, Fourth and Fifth Amendment rights to Due Process and Privacy. The IRS moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Pippinger’s constitutional claims, and moved for summary judgme nt with respect to Pippinger’s Privacy Act claims. Before ruling on the IRS’s motions, the district court allowed discovery to proceed. During the course of discovery, Pippinger and sever al other witnesses were deposed by the IRS. In his deposition, Pippinger a dmitted that at the time of his two-day suspension, rumors had circulated at his wo rkplace about the cause of the**-8-**

suspension. Pippinger further testified that he wa s very angry when Taylor first informed him that he would be suspended, and that h e told Taylor that “if anybody asked me, I’m going to tell them the truth, ” including the truth about the fact that he had been suspended for two days. Pipp inger also admitted that he had told several of his co-workers about his suspension

. Pippinger faced two obstacles to obtaining discovery from the IRS. First, Pippinger sought informally to interview certain IR S employees who were “friendly witnesses” willing to talk to him, outsid e the presence of IRS counsel. The IRS, however, prohibited its employees from spe aking to Pippinger about Pippinger’s case, unless formally deposed. Pipping er filed a Motion to Compel, in which, inter alia , he asked the district court to “order [the IRS] t o instruct certain witnesses and potential witnesses that theyare not prohibited from meeting with and answering questions posed by [Pipp inger] and his counsel outside the formal discovery process.” In November , 1995, a magistrate judge denied this aspect of Pippinger’s motion. Pippinge r v. Secretary of the Treasury , No. 95-CV-17-D (D. Wyo. Nov. 28, 1995) (Order on Pl aintiff’s Motion to Compel) (Beaman, Mag. J.). Pippinger now appeals this denial. Second, Pippinger had difficulty conducting discove ry because District Director Taylor and IRS labor relations specialist Probasco, who were deposed by Pippinger, initially claimed a “governmental delibe rative process privilege” and**-9-**

refused to answer many of Pippinger’s questions. A lthough the magistrate judge eventually ordered Taylor and Probasco to answer Pi ppinger’s questions, it stayed its order “until January 15, 1996, or such time as the Honorable William F. Downes rules upon the pending dispositive motions, whichever first occurs.” Pippinger claims that the dispute over the “governm ental deliberative process privilege” claim and the magistrate’s order staying further discovery deprived Pippinger of a reasonable opportunity to re-depose Taylor and Probasco before the district court ruled on the merits of IRS’s mot ion for summary judgment. On April 10, 1996, the district court exercised jur isdiction pursuant to 28 U.S.C. § 1331 (1994) (general federal question juri sdiction), and 5 U.S.C. § 552a(g)(1)(D) (1994) (specifically granting juris diction to the district court over claims arising under the Privacy Act), granted the IRS’s motion to dismiss Pippinger’s constitutional claims, Pippinger v. Sec retary of the Treasury , No. 95- CV-017-D, slip op. at 4-7 (D. Wyo. April 10, 1996), and granted the IRS’s motion for summary judgment on Pippinger’s Privacy Act cla ims. Id. at 7-11. Although Pippinger does not appeal the district court’s dism issal of his constitutional claims, he now appeals that portion of the districtcourt’s order granting summary judgment in favor of the IRS on his Privacy Act cla ims. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1994 ).
DISCUSSION**-10-**

We review a grant of summary judgment de novo . Applied Genetics Int’l, Inc. v. First Affiliated Sec. , 912 F.2d 1238, 1241 (10th Cir. 1990). We apply t he same standard under Fed. R. Civ. P. 56(c) used by t he district court: we determine whether a genuine issue of material fact was in dis pute, and, if not, whether the substantive law was correctly applied. Id.

I. Maintenance of Disciplinary Records As a threshold matter, Pippinger claims that the Pr ivacy Act of 1974, 5 U.S.C. § 552a (1994), prohibits the IRS from mainta ining disciplinary records of its employees in the ALERTS system, because the ALE RTS system is not adequately described in the Federal Register. In s upport of this claim, Pippinger cites 5 U.S.C. § 552a(e)(4) (1994), which provides that: Each agency that maintains a system of records shal l . . . publish in the Federal Register upon establishment or revisiona notice of the existence and character of the system of records, w hich notice shall include-- (A) the name and location of the system; (B) the categories of individuals on whom records are maintained in the system; (C) the categories of records maintained in the sys tem; (D) each routine use of the records contained in th e system, including the categories of users and the purpose of such use ; (E) the policies and practices of the agency regard ing storage, retrievability, access controls, retention, and dis posal of the records; (F) the title and business address of the agency of ficial who is responsible for the system of records; (G) the agency procedures whereby an individual canbe notified at his request if the system of records contains a rec ord pertaining to him;**-11-** (H) the agency procedures whereby an individual canbe notified at his request how he can gain access to any record pe rtaining to him contained in the system of records, and how he can contest its content; and (I) the categories of sources of records in the sys tem. In particular, Pippinger claims that the IRS failed to comply with subsections (A) through (E) of 5 U.S.C. § 552a(e)(4 ) (1994). With respect to subsections (B) through (E), Pippinger’s claim is p redicated on his factual misconception that the IRS never published any noti ce regarding the keeping of records on disciplinary actions taken against emplo yees. This assertion is simply incorrect. The ALERTS system contains a limited subset of the information authorized in two systems that are described in the Federal Register : (1) the Appeals, Grievance, and Complaint System; and (2) t he General Personnel and Payroll [Records] System. 57 Fed. Reg. 14,056-59 ( 1992). By erroneously equating the ALERTS system just with the Appeals, G rievance, and Complaint System, Pippinger has completely ignored the Genera l Personnel and Payroll Records System, data from which is also stored in the ALERTS system. The General Personnel and Payroll Records System is defined in the Federal Register to cover “[p]rospective, current a nd former employees of the IRS.” 57 Fed. Reg. 14,056, 14,058 (1992). This statement satisfies the publication requirement of 5 U.S.C. § 552a(e)(4)(B) (1994). Pippinger falls within the category of individuals covered.**-12-**

The General Personnel and Payroll Records System is also defined in the Federal Register to include “a variety of records r elating to personnel actions and determinations made about an individual while emplo yed in the Federal service.” Id. The categories of records include “reprimands; ad verse or disciplinary charges; . . . [and] adverse and disciplinary actio n files.” Id. ; see also 5 C.F.R. § 293.403(b) (providing numerous examples of employee performance-related records which may be maintained as a system of reco rds within the meaning of the Privacy Act). This statement satisfies the pu blication requirement of 5 U.S.C. § 552a(e)(4)(C) (1994). Pippinger’s discipl inary records fall within the category of records covered. The Federal Register contains an extensive section defining the “Routine uses of records maintained in the [General Personne l and Payroll Records System], including categories of users and the purp oses of such uses.” 57 Fed. Reg. 14,056, 14,058-59 (1992). One such routine us e of records is to provide the records to the Merit Systems Protection Board and o ther federal agencies “for the purpose of properly administering Federal Personnel systems . . . in accordance with applicable laws, Executive Orders, and applica ble regulations.” Id. at 14,059. This section satisfies the publication re quirement of 5 U.S.C. § 552a(e)(4)(D) (1994). Pippinger’s personnel record s were maintained, in part, so that they could be made available to the Merit Syst ems Protection Board if3 The Privacy Act defines the term "system of records " to mean “a group of

any records under the control of any agency from wh ich information is retrieved by the name of the individual or by some identifyin g number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5) (1994). **-13-** necessary, in order properly to administer the IRS’ s personnel systems. This use falls within the category of routine uses covered i n the Federal Register. Finally, the policies and practices of the IRS rega rding storage, retrievability, access controls, retention, and dis posal of the records contained in the General Personnel and Payroll Records System we re all published in the Federal Register. See 57 Fed. Reg. 14,056, 14,059 (1992). The publicat ion requirements of 5 U.S.C. § 552a(e)(4)(E) (1994) wer e thus satisfied. Pippinger does, however, state one facially valid c laim against the legality of the ALERTS system. He correctly notes that the name and location of the ALERTS system have never been published in the Fede ral Register, which he claims is in violation of 5 U.S.C. § 552a(e)(4)(A) (1994). Thus, we must decide whether the abstraction of certain individual recor ds from a “system of records,” or the transcription of such an abstract from paperto computer or electronic storage media, constitutes the creation of a new “s ystem of records” under 5 U.S.C. § 552a(a)(5) (1994), where, as here, the ele ctronic abstract may be accessed only by the same users, and only for the s ame purposes, as the original “system of records.” 3**-14-**

Although no court, to our knowledge, has addressed these questions directly, there is limited case authority consisten t with the proposition that abstraction of individual records from a “system of records” does not by itself create a new system of records. In Henke v. United States Dep’t of Commerce , 83 F.3d 1453, 1459-61 (D.C. Cir. 1996), the court a ddressed whether an agency can be deemed to maintain a computerized “system of records” where it has the capabilityto retrieve information about an individual by nam e, but not the practice of doing so. Although this is not the question be fore us, the approach of the Henke court to determining the meaning of a “system of r ecords” under 5 U.S.C. § 552a(a)(5) is instructive. In holding that the records at issue there did not constitute a “system of records” under the Privacy Act, the Henke court noted that the phrase “system of records” should be narrowly construed, because unde r an expansive reading of the phrase: an agency faces the threat of being found retrospec tively to be maintaining a system of records it did not even kno w existed, simply by dint of a potential use it neither engaged in no r contemplated. This in turn would create serious compliance proble ms for the agency, because if it had not recognized that it ma intained a system of records and had therefore not published notice o f its system in the Federal Register, then neither would it have follow ed the procedures necessary [under the Privacy Act]. . . .**-15-**

Henke , 83 F.3d at 1461; see also Williams v. Department of Veterans Affairs , 104 F.3d 670, 674 (4th Cir. 1997) (“Courts have constru ed § 552a(a)(5) narrowly”) (citing cases). The Henke court expressly disclaimed suggesting “that an age ncy may simply refuse to acknowledge that it maintains a sy stem of records and thereby insulate itself from the reach of the Privacy Act.” Henke , 83 F.3d at 1461. However, it opined that a major factor in determini ng whether a “system of records” exists “is the purpose for which the information on individuals is being gathered, an approach which is consistent with Cong ress’ distinction between a mere group of records and a system of records.” Id. (emphasis in original). In the present case, Pippinger has presented n o evidence suggesting that the records abstracted from the Appeals, Grievance, andComplaint System and the General Personnel and Payroll Records System and st ored in the ALERTS computer system were used for any purposes other th an the purposes, published in the Federal Register, for which those records were intended. Similarly, he has presented no evidence that the abstracted records c ould be accessed via the ALERTS system by anyone not identified in the Feder al Register as an authorized user of the same records contained in the Appeals, Grievance, and Complaint System or the General Personnel and Payroll Records System. Thus, consistent**-16-**

with Henke , a properly “narrow” construction of 5 U.S.C. § 55 2a(a)(5) leads to the conclusion that ALERTS is not a “system of reco rds.” We turn then to the question of whether transcripti on of a system of records from paper to computer or electronic storage media necessarily constitutes the creation of a new “system of records” under 5 U.S.C . § 552a(a)(5) (1994). In addition to requiring publication of the establishm ent and existence of a government-maintained “system of records,” the Priv acy Act also requires government agencies to publish in the Federal Regis ter notice of revisions in the characterof existing systems of records. 5 U.S.C. § 552a(e )(4) (1994). For this reason, one circuit court recently remanded a Priva cy Act case to the district court to determine whether a government agency had, in fa ct, transferred a system of records stored in paper documents to a digitally st ored format. Williams v. Department of Veterans Affairs , 104 F.3d 670, 676 (4th Cir. 1997). In doing so, the Williams court suggested the possibility that if such a cha nge had occurred without proper publication, 5 U.S.C. § 552a(e)(4) w ould have been violated. Id. We need not, in the present case, decide whether ornot we agree with the Williams court that routine transcription of records from p aper to computer or electronic storage media always necessitates public ation in the Federal Register. Here, unlike in Williams , the IRS properly published the fact that records maintained in both the Appeals, Grievances and Comp laint System and the**-17-**

General Personnel and Payroll Records System would be stored on “magnetic media.” See 57 Fed. Reg. 14,057 (1992) (Appeals, Grievances an d Complaint System records will be stored on “magnetic media”); 57 Fed. Reg. 14,059 (1992) (General Personnel and Payroll Records System recor ds will be stored on “magnetic media” and “discs”). Because the transcr iption of records stored in the Appeals, Grievances and Complaint System and the Ge neral Personnel and Payroll Records System to “magnetic media” was cont emplated and announced in the Federal Register, the “character” of the record s was not revised when the records were in fact transcribed to the ALERTS syst em. In addition, even if the ALERTS system were a separ ate “system of records” under 5 U.S.C. § 552a(e) (1994), Pippingerwould lack standing to challenge the IRS’s failure to publish the ALERTS s ystem’s name and location in the Federal Register. In its “civil remedies” subs ection, the Privacy Act provides that: Whenever any agency . . . fails to comply with [5 U .S.C. § 552a], . . . in such a way as to have an adverse effect on an indiv idual , the individual may bring a civil action against the agency. . . . 5 U.S.C. § 552a(g)(1)(D) (1994) (emphasis added). Here, Pippinger has introduced no evidence tending to suggest that the mere maintenance in the ALERTS system of records th at could be lawfully maintained by the IRS in other systems of records “ adversely affected” him in any**-18-**

way. See Parks v. Internal Revenue Serv. , 618 F.2d 677, 682 (10th Cir. 1980) (Privacy Act plaintiff must be adversely affected b y the violation in order to state a cause of action). Indeed, when Pippinger request ed copies of all IRS records pertaining to him, the ALERTS system assisted the IRS in locating Pippinger’s two records--which were kept in two different syste ms--in order to provide them to him. Thus, even if the ALERTS system were a “sy stem of records” subject to the publication requirements of 5 U.S.C. § 552a(e)( 4)(A) (1994), Pippinger would not recover for the IRS’s technical failure to comp ly with those requirements.

II. Disclosure of Disciplinary Records The Privacy Act of 1974 limits the circumstances un der which government agencies, including the IRS, may disclose informati on contained in their records. In general, the Act provides that: No agency shall disclose any record which is contai ned in a system of records by any means of communication to any per son, or to another agency, except pursuant to a written reques t by, or with the prior written consent of, the individual to whom th e record pertains

. . . . 5 U.S.C. § 552a(b) (1994); accord5 C.F.R. § 297.401 (1996) (specifically applying to personnel records of government employe es). However, the Act goes on to enumerate twelve exceptions to this general p rohibition. See id. Pippinger, who did not consent to any disclosure, c laims that the IRS unlawfully disclosed his employment records on thre e different occasions. In**-19-**

analyzing each of these three claims, we must decid e whether a record was “disclosed,” and, if so, whether it was disclosed p ursuant to an exception enumerated in 5 U.S.C. § 552a(b). Although “disclosure” is not defined in the text of the Privacy Act, the Office of Personnel Management (“OPM”) has defined “disclosure” under the Privacy Act to mean “providing personal review of arecord, or a copy thereof, to someone other than the data subject or the data subject’s authorized representative. . . .” 5 C.F.R. § 297.102 (1997). Although the OPM’s definition of “disclosure” would appear to be limited to discl osures of the physical records themselves (or mechanical reproductions thereof), this court and other courts have assumed or held that the Privacy Act more broadly p rohibits disclosure of information directly or indirectly derived from an agency system of records, even where the physical records are not disclosed. See Wilborn v. Department of Health and Human Servs. , 49 F.3d 597, 600 (9th Cir. 1995) (“Under a long l ine of cases interpreting the Privacy Act, courts have agr eed that the Act covers more than the mere physical dissemination of records. . . [because] the Privacy Act, if it is to be given any force and effect, must be int erpreted in a way that does not ‘go against the spirit’ of the Act.”) (citing cases ); Kline v. Department of Health and Human Servs. , 927 F.2d 522, 524 (10th Cir. 1991); Thomas v. Uni ted States Dep’t of Energy , 719 F.2d 342, 345 (10th Cir. 1983). Accord5 C.F.R. § 293.406**-20-**

(1997) (“Disclosure of informationfrom this file system shall be made only as permitted by the Privacy Act . . . .”) (emphasis ad ded). As the Wilborncourt explained: the Privacy Act applies to a situation where an age ncy official uses the government's sophisticated information collecti ng methods to acquire personal information for inclusion in a rec ord, and then discloses that information in an unauthorized fashi on without actually physically retrieving itfrom the record system. Id. at 601 (quoting Bartel v. FAA , 725 F.2d 1403, 1410 (D.C. Cir. 1984)) (emphasis in Wilborn ) (internal punctuation marks omitted). The courts’ broad interpretation of the Privacy Act ’s prohibition against disclosure is clearly consistent with Congressional intent. As the Joint House and Senate Report explained, a primary purpose of 5 U.S .C. § 552a(b) is to: require employees to refrain from disclosing record s or personal data in them , within the agency other than to officers or emplo yees who have a need for such record or data in the performa nce of their duties for the agency. This section is designed to prevent the office goss ip, interoffice and interbureau leaks of information ab out persons of interest in the agency or community, or such action s as the publicizing of information of a sensational or sala cious nature or of that detrimental to character or reputation. S. Rep. No. 93-1183, H.R. Rep. No. 93-1416, at 51 ( 1974) (emphasis added), reprinted in1974 U.S.C.C.A.N. 6916, 6966, and quoted in part i nParks v. Internal Revenue Serv. , 618 F.2d 677, 681 n.1 (10th Cir. 1980).**-21-**

With these broad purposes in mind, we proceed to an alyze Pippinger’s claim that improper disclosures were made on three occasions.

A. Disclosure to Taylor’s Staff Members As discussed in the “Background” Section, supra , Stephen Taylor began his job as IRS District Director in Cheyenne on June 1, 1993. At that time, Lynn Boak had already been transferred away from Pipping er’s supervision, and the investigation of Pippinger’s conduct was set to be closed without any action being taken. Taylor had not been present in the office f rom November 1992 to April 1993, when the events underlying Pippinger’s subseq uent suspension occurred. Thus, Taylor learned everything he knew about the P ippinger case by reviewing Pippinger’s records and by consulting Taylor’s staf f. Specifically, Taylor consulted with Pippinger’s dir ect supervisor Patrick Schluck, Taylor’s administrative officer Steve Webb , Denver-based IRS labor relations specialists Joni Probasco and DeWayne Wic ks, IRS Public Affairs/Ethics Officer Tim Harms, Chief Richard Harrod of the IRS Collection and Taxpayer Service Division, and Cheyenne distric t Equal Employment Opportunity Officer Robert Sonntag. Pippinger conc edes that Schluck and Webb “were appropriately involved in these discussions,” and he does not make an issue of Probasco’s or Wicks’s participation. However, P ippinger contends that his Privacy Act rights were violated by improper disclo sures made during Taylor’s**-22-**

consultations with Harms, Harrod, and Sonntag regar ding whether disciplinary action against Pippinger should be pursued. The IRS does not concede that Taylor disclosed any protected record to Harms, Harrod, or Sonntag. Nonetheless, the distri ct court appropriately assumed for purposes of summary judgment that such records were disclosed. Pippinger , slip op. at 8-9. Even under this assumption, the d istrict court held that Taylor did not violate the Privacy Act because: (1) Taylor’s s taff had “a need for the record in the performance of their duties,” a condition wh ich allows disclosure to them under 5 U.S.C. § 552a(b)(1) (1994) and 5 C.F.R. § 2 93.402(c)(1) (1997), and (2) Taylor did not “act[] in a manner which was intenti onal or willful,” a requirement for governmental liability under 5 U.S.C. § 552a(g) (4) (1994). See Pippinger , slip op. at 8-9. Pippinger counters that Taylor’s staff members did not need to know Pippinger’s name in order to do their jobs, and that Taylor’s discl osure of Pippinger’s name to Taylor’s staff members therefor e constituted a willful or intentional violation of Pippinger’s privacy. Taylor’s staff members’ jobs included helping Taylo r decide whether and how to discipline Pippinger. For this reason, the staff members clearly “needed to know” the information contained in Pippinger’s file s pertaining to Pippinger’s relationship with Boak and his subsequent allegedlymisleading statements pertaining thereto. In addition, contrary to Pippi nger’s argument, knowledge of**-23-**

Pippinger’s identity allowed Taylor’s staff members to put the investigation in context, and might potentially have enabled them to connect the information about Pippinger’s alleged misconduct with other data alre ady know to them. Because of the inherent difficulty of investigating an unident ified individual, a supervisor conducting an investigation into bona fide allegati ons of employee misconduct must be allowed some latitude under the Privacy Act ’s “need to know” exception to disclose the identity of the investigation’s subject to staff members who will assist in conducting and disposing of the investigation. To hold otherwise would slice the bread of the “need to know” exception farthinner than we believe Congress intended. We also agree with the district court’s second grou nd for holding that Taylor did not violate the Privacy Act. Under 5 U. S.C. § 552a(g)(4) (1994), a government agency may not be held liable unless “th e court determines that the agency acted in a manner which was intentional or w illful . . . .” In Andrews v. Veterans Admin. , 838 F.2d 418 (10th Cir.), cert. denied , 488 U.S. 817 (1988), we defined “intentional or willful” under the Privacy Act to mean “action so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful, or conduct committed without grounds for believing it to be lawful or action flagrantly disregarding others’ rights underthe Act.” Andrews , 838 F.2d at**-24-**

425 (internal punctuation and citations omitted). Such conduct “must amount to, at the very least, reckless behavior.” Id. Here, Taylor’s failure to redact Pippinger’s name f rom necessary discussions of Pippinger’s case certainly does not constitute an “intentional or willful” violation of Pippinger’s privacy as define d in Andrews . Harms, Harrod, and Sonntag were fellow IRS officials whose job inc luded helping Taylor fashion disciplinary action against Pippinger. In this con text, Taylor had ample reason to believe that it was lawful for him to discuss Pippi nger’s case--including Pippinger’s name--with his staff.

B. Disclosure to Pippinger’s Co-Workers Pippinger also claims that the IRS violated the Pri vacy Act because most of the people in the Cheyenne district office of the I RS knew about Pippinger’s twoday suspension and the reasons underlying it. Pipp inger claims that this widespread knowledge gives rise to an inference that Taylor or one of his staff members disclosed private information about Pipping er to Pippinger’s coworkers. The district court rejected this claim, noting that“[t]o the extent [Pippinger] argues that other individuals knew about his relationship with Ms. Boak and his suspension, there is no evidence in th e record that such information was disclosed by Taylor or someone else within an a gency who had learned the**-25-**

information from [Pippinger’s] personnel records.” Pippinger , slip op. at 9. We
agree. In his deposition, Pippinger admitted that rumors c oncerning his affair had been widespread within the Cheyenne district of the IRS, even before any disciplinary action was taken against him. Pipping er further testified that he was very angry when Taylor first told him about the sus pension, and that he told Taylor that “if anybody asked me, I’m going to tell them the truth,” including the truth about the fact that Pippinger had been suspen ded for two days. Pippinger admitted that he discussed the details of his suspe nsion with his paramour/coworker Lynn Boak. Pippinger also admitted that he had told several of his coworkers about his suspension, including Robert Heus chkel and Reggie Bruce, and may also have discussed it with co-workers Marilyn Beaman, Alice Kleiman, and Kent Ewing. Against this background, the mere fact that information contained in Pippinger’s personnel files was well-known in his w orkplace does not give rise to an inference that such knowledge was widespread because of a disclosure from Pippinger’s personnel files. As the district courtcorrectly noted, the Privacy Act does notprohibit disclosure of information or knowledge ob tained from sources other than “records.” Thomas v. United States Dep’ t of Energy , 719 F.2d 342, 345 (10th Cir. 1983). In particular, it does not p revent federal employees or**-26-**

officials from talking--even gossiping--about anyth ing of which they have nonrecord-based knowledge. Id. A number of people in Pippinger’s workplace had per sonally observed Pippinger’s relationship with Boak. Several learne d the details of Pippinger’s suspension from Pippinger himself. Accordingly, inthe absence of any evidence suggesting that the IRS actuallydisclosed information from Pippinger’s records, Pippinger’s “inferential” evidence of such disclosu re cannot withstand summary judgment. C. Disclosure During Schluck’s MSPB Proceedings During Patrick Schluck’s MSPB proceeding, IRS Distr ict Director Stephen Taylor, Administrative Officer Stephen Webb, and IR S labor relations specialists Joni Probasco and DeWayne Wicks each gave depositio n testimony in which they “disclosed information from the ALERTS system and f rom his personnel records concerning John Pippinger.” This deposition testim ony was heard by IRS attorney Susan Neiser, and was also heard by a priv ate attorney representing Schluck, a court reporter, and Schluck himself. Th e district court found that these disclosures did not violate Pippinger’s rights unde r the Privacy Act because they were authorized by either the “need to know” except ion of 5 U.S.C. § 552a(b)(1) (1994), or the “routine use” exception of 5 U.S.C. § 552a(b)(3) (1994). See Pippinger , slip op. at 10.4 In January, 1994, while pursuing his MSPB action, S chluck retired from

the IRS. He was thus no longer an IRS employee at the time of the alleged disclosures. **-27-** Pippinger responds, first, by asserting that there was no need for Webb, Probasco and Wicks to disclose the information about Pippinger’s case (especially Pippinger’s name) that they disclosed in their depo sitions. Second, Pippinger claims that disclosure of information obtained from Pippinger’s records to the MSPB at Schluck’s MSPB proceeding was unauthorized by the Privacy Act. Third, Pippinger claims that deposition testimony i s not a “routine use” of the records kept in the ALERTS system, and that the Pri vacy Act therefore prohibited any disclosure from Pippinger’s records to Schluck, Schluck’s attorney, and the court reporter, none of whom were then employed by the IRS. 4 We address each of Pippinger’s three arguments in turn. As discussed in Subpart A, supra , Taylor, Webb, Probasco, and Wicks each “needed to know” the information contained in Pippi nger’s Appeals, Grievances and Complaint System files and General Personnel an d Payroll Records System files, in connection with their duties to investigate the allegations against Pippinger and recommend or implement a disposition. For similar reasons, IRS attorney Neiser also “needed to know” the record in formation about the Pippinger/Boak incident. Although Neiser was not i nvolved in investigating Pippinger ’s case, Neiser was charged with defending the IRS’ s actions in**-28-**

Schluck ’s MSPB proceeding. The IRS’s primary charge again st Schluck was that Schluck had presided over disciplinary proceedings in which Pippinger was accused of having a romantic affair with a subordin ate, while Schluck himself was in a romantic relationship with a subordinate. The IRS’s position with respect to Schluck would have been rendered incompr ehensible to Neiser if Neiser had not been apprised of Pippinger’s situati on. Further, for the reasons discussed in Subpart A, supra , redaction of Pippinger’s name from Pippinger’s records was not required by the Privacy Act. We th us agree with the district court that disclosures from Pippinger’s files to IRS employees Taylor, Webb, Probasco, Wicks and Neiser fell squarely within the Privacy A ct’s “need to know” exception. What’s more, the “routine use” exception permits fa r more disclosure of records than does the “need to know” exception. Se e generallyDeborah Sprenger, Annotation, What Constitutes “Routine Use ” Disclosure of Employee Records Exempted from Provisions of Privacy Act of 1974 Under 5 U.S.C. § 552a(b)(3) , 107 A.L.R. Fed 857 (1992 & Supp. 1995). The “rou tine use” exception permits disclosure of an otherwise protec ted record whenever such disclosure would be “for a routine use.” 5 U.S.C. § 552a(b)(3) (1994). A “routine use” is defined as “the use of such record for a purpose which is compatible with the purpose for which it was collec ted.” 5 U.S.C. § 552a(a)(7)**-29-**

(1994). Agencies that maintain a system of records are required to publish in the Federal Register a notice of “each routine use of t he records contained in the system, including the categories of users and the p urpose of each use.” 5 U.S.C. § 552a(e)(4)(D) (1994). Records may be disclosed u nder the “routine use” exception only“under a routine use published . . . for the syste m of records covering [the disclosed] records.” 5 C.F.R. § 293. 406 (1997). As discussed in Part I, supra , Pippinger’s records, though stored in the ALERTS system, were culled from two systems of reco rds described in the Federal Register: the Appeals, Grievance, and Compl aint System; and the General Personnel and Payroll Records System. The routine uses of records in both systems have been defined in the Federal Register t o include “provid[ing] records and information to the . . . Merit Systems Protecti on Board . . . for the purpose of properly administering Federal Personnel Systems inaccordance with applicable laws, Executive Orders, and regulations.” 57 Fed. Reg. 14,056, 14,057 (Appeals, Grievance, and Complaint System); id. at 14,059 (General Personnel and Payroll Records System). This language is broad enough to authorize the disc losure of Pippinger ’s records to the Merit Systems Protection Board durin g the course of Schluck ’s MSPB proceeding, so long as such disclosure is made “for the purpose of properly administering Federal Personnel Systems.” Id. In the case at bar,**-30-**

Pippinger has presented no evidence suggesting thathis records were disclosed to the MSPB for any other purpose. Accordingly, the d isclosures made by Taylor, Webb, Probasco, Wicks, and Neiser to the MSPB were authorized, “routine uses” of Pippinger’s records. The disclosures to Schluck, Schluck’s attorney, andthe court reporter were similarly made in conjunction with the MSPB proceed ing and, accordingly, fall within the same “routine use” exception. One of th e published uses for these systems of records is to allow the IRS to “disclose relevant, non-privileged information to a court, magistrate, or administrati ve tribunal, including . . . disclosure to opposing counsel or witnesses in the course of civil discovery. . . .” 57 Fed. Reg. 14,056, 14,057 (Apr. 17, 1992) (Appeal s, Grievance, and Complaint System) (emphasis added); accordid. at 14,059 (General Personnel and Payroll Records System). To avoid circularity, the qualifie r “non-privileged” can only refer to privileges existing outside of the PrivacyAct itself, such as the attorneyclient privilege or the doctor-patient privilege. Otherwise, this particular “routine use” exception could never be invoked. Cf. Laxalt v. McClatchy , 809 F.2d 885, 888 (D.C. Cir. 1987) (analyzing the “pursuant to th e order of a court of competent jurisdiction” exception to the Privacy Act (5 U.S.C . § 552a(b)(11)) and holding that the Act does not create any additional privile ges that would collide with the federal civil rules of discovery); Bosaw v. Nationa l Treasury Employees’ Union ,**-31-**

887 F.Supp. 1199, 1216 (S.D. Ind. 1995)(same). Thu s, the disclosures to Schluck, Schluck’s attorney, and the court reporterwere authorized under the “routine use” exception to the Privacy Act. Furthermore, we hold that Pippinger has no cause of action against the IRS for two additional reasons. First, Pippinger has p resented no evidence indicating that the disclosures to Schluck, Schluck’s attorney , or the court reporter, could possibly have had “an adverse effect” on Pippinger, as required under 5 U.S.C. § 552a(g)(1)(D) (1994); see also Parks v. Internal Revenue Serv. , 618 F.2d 677, 682 (10th Cir. 1980) (Privacy Act plaintiff must be adv ersely affected by the violation in order to state a cause of action). Although Sch luck no longer worked for the IRS at the time of the disclosure, he had been privy to every event described in Pippinger’s records at the time the event occurred. We simply fail to see how disclosure to Schluck of facts already known to Sch luck could “adversely affect” Pippinger. See generallyGeorge Chamberlin, Annotation, Applicability of § 3(b) of Privacy Act of 1974 (5 U.S.C. § 552a(b)), Requir ing Individual’s Consent to Disclosure of Agency Records Maintained on Individu al, To Disclosure of Information Otherwise Known to Federal Agency or Of ficial , 52 A.L.R.Fed 579 (1981 & Supp. 1995). Similarly, Schluck would certainly have discussed w ith his attorney the events leading to Schluck’s demotion. In doing so, Schluck could not have5 Pippinger has also failed to show that any such dis closure violated the

“intentional or willful” requirement of § 552(a)(g) (4) (1994).

6 Although Pippinger is not clear about the procedura l aspects of his request, it would appear that he would like us to vacate the district court’s Order, and remand for further discovery. **-32-** avoided telling the attorney about the Pippinger af fair. Thus, Schluck’s attorney, like Schluck, would already have known the “disclos ed” information about Pippinger at the time of the disclosure. Finally, Pippinger has made no attempt to explain how disclosure to the court reporter advers ely affected him. Thus, we hold that Pippinger has not satisfied the “adverse effect” requirement of 5 U.S.C. § 552a(g)(1)(D) (1994). 5

III. Discovery Issues Pippinger contends that even if the IRS is entitled to summary judgment on the record as it currently stands, the district cou rt committed two errors in regulating the discovery process. Accordingly, Pip pinger requests additional discovery to supplement the current record. 6 We consider each of his claims in

turn. Discovery rulings are reviewed for an abuse of disc retion. GWN Petroleum Corp. v. OK-Tex Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993) (citing Willner v. Budig , 848 F.2d 1032, 1035-36 (10th Cir.1988), cert. den ied , 488 U.S. 1031 (1989)). “Generally, ‘control of discovery is entrusted to the sound**-33-**

discretion of the trial courts, and a denial of a m otion to compel discovery will not be disturbed absent abuse of discretion.’” Mot ley v. Marathon Oil Co. , 71 F.3d 1547, 1550 (10th Cir. 1995), cert. denied , 116 S. Ct. 1678 (1996) (quoting Martinez v. Schock Transfer and Warehouse Co. , 789 F.2d 848, 850 (10th Cir.1986)). A. Informal Interviews Pippinger sought to conduct informal interviews, outside the presence of IRS counsel, with certain IRS employees who were ap parently willing to talk to him. However, the IRS forbade its employees from talking to Pippinger about Pippinger’s case, unless subpoenaed or deposed. Pi ppinger filed a motion to compel, asking the court to order the IRS “to infor m all of the individuals on [Pippinger’s] witness list, who did not have any management responsibility over the matters before the Court, that they may talk to [Pippinger] or to his attorney, and that no adverse action or retaliation will be t aken by the IRS in any form.” (Plaintiff’s Motion to Compel at 9, Aplt.’s App. at68). A magistrate judge denied Pippinger’s motion. Pippinger v. Secretary of the Treasury , No. 95-CV17-D, slip op. at 7-8 (D. Wyo. Nov. 28, 1995) (Beam an, Mag. J.) (Aplt.’s App. at 77-78). Pippinger appeals from the magistrate judg e’s order. It is a well established rule that the court of app eals cannot review a magistrate judge’s order under 28 U.S.C. § 636(b)(1 )(A) unless the party7 The Wyoming Rules of Court also require parties to file written objections

to magistrate judge’s orders with the district court within ten days of receipt of those orders. Wyo. D.Ct. R. 74(a). See Niehaus , 793 F.2d at 1164-65 (applying similar Kansas District Court Rule). **-34-** requesting review objected to the order in writing to the district court within ten days of receiving a copy of the order. See Hutchinson v. Pfeil , 105 F.3d 562, 566 (10th Cir. 1997) (“Properly filed objections resolv ed by the district court are a prerequisite to our review of a magistrate judge’s order under § 636(b)(1)(A).”); Niehaus v. Kansas Bar Association , 793 F.2d 1159, 1164-65(10th Cir. 1986)(“In examining the right to appeal from a magistrate’s o rder, federal courts of appeals have held that appeals from magistrates’ rulings mu st be to the district courts and that appellate courts are without power to hear app eals directly from orders of federal magistrates.”). This rule is designed to a dvance the policy underlying the Magistrate’s Act of increased judicial efficiency. See Niehaus , 793 F.2d at 1165. Moreover, Rule 72(a) of the Federal Rules of Civil Procedure requires parties to file written objections to a magistrate judge’s ord er with the district court within 10 days. See Niehaus , 793 F.2d at 1164-65. 7Pippinger fails to argue or offer proof that he ever filed with the district court any objection to the magistrate judge’s order. Therefore, because Pippinger did notfile written objections to the8 Even if Pippinger had complied with the rule, his appeal would have failed

on the merits. The Secretary of the Treasury, “unde r the regulations as to the custody, use, and preservation of the records, pape rs, and property appertaining to the business of his department, may take from a sub ordinate . . . all discretion as to permitting the records in his custody to be usedfor any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character.” Boske v. Comingore , 177 U.S. 459, 470 (1900); see also United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1950). The Boske decision was based on a provision of the U.S. Code that has been revised several times, but presently provides that: The head of an Executive department . . . may presc ribe regulations for the government of his department, the conduct o f its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and p roperty. This section does not authorize withholding information from the public or limiting the availability of records to the publ ic. 5 U.S.C. § 301 (1994). Thus, the magistrate judge did not abuse its discre tion in denying Pippinger’s motion to compel. Pippinger had no leg al right to speak “informally” to any particular witness. Fed. R. Civ. P. 26(b)(1 ) provides that “[p]arties may obtain discoveryregarding any matter, not privileged, which is rel evant to the subject matter involved in the pending action . . . .” (emphasis added). Rules 26 through 36 enumerate the formal mechanisms of disco very. Nowhere do the Federal Rules of Civil Procedure provide litigants with a right to conduct informal interviews.

**-35-** magistrate judge’s order within the required ten days we may not consider the issues decided in that order on appeal. 8

B. Timing of Grant of Summary Judgment**-36-**

Finally, Pippinger claims that the district court a bused its discretion by issuing a summary judgment order before Pippinger c ould complete his discovery process. He asserts two reasons why he should have been allowed more time to take discovery: (1) the magistrate judge had only recently ruled in Pippinger’s favor on the IRS’s “governmental deliberative proce ss privilege” argument, leaving Pippinger with insufficient time to re-depo se District Director Taylor and IRS labor relations specialist Probasco; and (2) th e magistrate judge had only recently denied Pippinger’s motion to compel with r espect to the ex parte interviews, leaving Pippinger insufficient time for mally to depose the “friendly” witnesses he had hoped to informally interview. Pippinger originally filed his lawsuit on January 1 9, 1995. Some discovery began immediately. However, the IRS initially refu sed to comply with significant portions of Pippinger’s discovery requests until af ter the magistrate judge ruled on its motion to dismiss Pippinger’s constitutional claims. In particular, when Pippinger attempted to depose District Director Tay lor and IRS labor relations specialist Probasco, these witnesses claimed a “gov ernmental deliberative process privilege” and refused to answer many of Pippinger’ s questions. Partly for this reason, Pippinger filed his motion to compel on Oct ober 10, 1995. On November 28, 1995, the magistrate judge ruled th at Taylor and Probasco enjoyed no “governmental deliberative proc ess privilege,” and that**-37-**

Pippinger was entitled to re-depose them. However, the magistrate judge stayed these re-depositions “until January 15, 1996, or su ch time as the Honorable William F. Downes rules upon the pending dispositiv e motions, whichever first
occurs.” In the same November 28, 1995 Order, the magistrate judge denied Pippinger’s motion to compel with respect to the ex parte interviews. However, Pippinger had been free formally to depose his “fri endly” witnesses since filing his complaint in January 1995, and remained free to do so after his motion was denied. The district court granted the IRS’s motion to dism iss and its motion for summary judgment on April 10, 1996. By that time, Pippinger had enjoyed fifteen months in which to depose his “friendly” wi tnesses, and three months in which to take partial re-depositions of two “hostil e” witnesses. Although Pippinger did not know when the district c ourt was going to rule on the merits of the IRS’s motion for summary judgm ent, the record contains no evidence suggesting that Pippinger ever asked the d istrict court for more time.
See Fed. R. Civ. P. 56(f) (permitting the district cou rt, at the request of a nonmovant for summary judgment, to “order a continu ance to permit affidavits to be obtained or depositions to be taken or discoveryto be had,” and thereby delay**-38-**

action on the summary judgment motion). Further, Pippinger does not explain what type of evidence he hoped to develop through f urther discovery. For these reasons, we hold that the district court did not abuse its discretion by ruling on the IRS’s substantive motions on April 10, 1996.

CONCLUSION The judgment of the district court is AFFIRMED in a ll respects.