PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN R. WILLIAMS, JR.,
Plaintiff-Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee,                                                   No. 95-2609

and

SHERWIN E. LITTLE, PH.D.; PHILLIP
M. HAMME, MSW; LINDA WILSON,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-1545-A)

Argued: September 25, 1996

Decided: January 16, 1997

Before HALL and ERVIN, Circuit Judges, and HALLANAN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.

_________________________________________________________________

Reversed in part, vacated, and remanded by published opinion. Judge
Ervin wrote the opinion, in which Judge Hall and Judge Hallanan
joined.

_________________________________________________________________

COUNSEL

ARGUED: Cynthia Masucci Kratz, GILL & SIPPEL, Rockville,
Maryland, for Appellant. Richard Wayne Sponseller, Assistant United
States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:
John G. Gill, Jr., GILL & SIPPEL, Rockville, Maryland; John D.
Brosnan, Fairfax, Virginia, for Appellant.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Plaintiff-Appellant John R. Williams, Jr. appeals from a final judg-
ment determining that materials he requested pursuant to the Privacy
Act of 1974, 5 U.S.C. § 552a, were draft documents and not "records"
within the meaning of the Act and, as such, were not records that
were kept in the normal "system of records." Nevertheless, these
materials were substantially "about" Williams. The statutory lan-
guage, legislative history, and case law indicate no exception for
requested access to "drafts." We reverse the legal determination that
the requested materials were not "records" within the meaning of 5
U.S.C. § 552a(a)(4).

The determination of whether these records are contained within a
"system of records" is much more problematic and cannot be properly
resolved on the record before us. The nature of Defendant-Appellee
Department of Veterans Affairs's (DVA's) system of records, as well
as its storage and retrievability characteristics in practice, are too
uncertain. Therefore, we vacate the judgment below and remand for
further factual development.

I.

John R. Williams, Jr. is a Vietnam veteran who suffers from post-
traumatic stress disorder. He sought treatment at the DVA's Vet Cen-
ter in Springfield, Virginia, in the fall of 1992. In February 1993, he
phoned and wrote to the director of the Center to complain about the
conduct of his psychologist. Dr. W. Sherod Williams was assigned to
investigate Appellant Williams's complaints.1 As part of the investi-
_________________________________________________________________
1 To avoid any possibility of confusion between Appellant John R. Wil-
liams, Jr. and Dr. W. Sherod Williams, the assigned investigator of
Appellant's complaints, the former will be referred to hereinafter as "Ap-
pellant Williams" and the latter will be simply "Dr. Williams."

                    2
gation, Dr. Williams wrote a summary of his review, called a Report
of Contact, and drafted a letter to Appellant Williams that contained
his conclusions and gave suggestions to Appellant Williams about the
future course of his treatment. The record contains two versions of
this draft letter.

Although Dr. Williams promised to provide Appellant Williams
with a copy of the letter on or around February 18, 1993, Dr. Wil-
liams did not receive approval from his supervisors to do so, appar-
ently because the letter was critical of the DVA. For the next several
months thereafter, Appellant Williams made various attempts to
obtain copies of the material prepared by Dr. Williams related to the
investigation, invoking both the Freedom of Information Act and the
Privacy Act. On April 8, 1993, Appellant Williams was informed that
no letter could be found, and on April 14 that the draft of "findings"
had, in fact, been destroyed.

Although Dr. Williams had apparently not retained paper copies of
the materials, on or about April 30 and May 3, he discovered he did
possess them as computer files. One version of the letter to Appellant
Williams was discovered in a floppy disk box in the"clinical" section,
on a floppy disk titled "clinical correspondence," under the filename
"WILLIAMS.LTR". A second version of the letter was discovered on
an unlabeled floppy disk under the filename "WILLIAMS.LTR", pre-
sumably in the disk's main directory. A draft of the Report of Contact
(ROC) was discovered on an unlabeled floppy disk with the filename
"228.ROC", also presumably in the disk's main directory. The actual
content of the ROC refers to Appellant Williams's assigned client
number, "Client #0402". In addition, one version of the letter was
found on the hard disk of the office's network server (called by the
DVA the "transporter") in drive "c:" in the "wp51" (WordPerfect 5.1)
directory under the filename "WILLIAMS.LTR".

On May 24, 1993, Appellant Williams was informed about the
existence of these computer files. However, he was denied access to
this material. The DVA's stated ground for the denial was that

          since the records you are seeking are not retrieved by either
          your name or other identifier assigned to you, and since the
          records you seek are not contained in any file that is retriev-

                    3
          able by your name or other identifier assigned to you, your
          appeal is not subject to consideration under the Privacy Act
          of 1974.

J.A. at 111.

On November 22, 1994, Appellant Williams filed a three-count
complaint against the DVA, including in Count II, the issue on appeal
here, allegations of violations of the Privacy Act for refusal to comply
with Appellant Williams's records request and seeking injunctive
relief, damages, costs, and attorney's fees. The draft letters and
Report of Contact were provided to Appellant Williams during
discovery.2 Both parties filed motions for summary judgment on
Count II and both were denied. Following a bench trial, judgment was
pronounced in favor of the DVA on all counts.

The legal issues on appeal are whether the materials Appellant Wil-
liams requested were (1) "records" and (2) if so, were records within
the "system of records" maintained by the DVA within the meaning
of 5 U.S.C. § 552a(a) and thus subject to disclosure under the Privacy
Act. Appellant Williams contends that the district court erred because
the requested documents concerned him and were retrieved by access-
ing his name or assigned client number from a computer disk, thereby
falling within the broad terms of the Act. The DVA maintains that the
materials Appellant Williams sought were neither his"records" nor
contained within the DVA's "system of records."

II.

Appellant Williams instituted the present action pursuant to the Pri-
vacy Act, 5 U.S.C. § 552a(g)(1), which grants federal jurisdiction. See
_________________________________________________________________
2 Since Appellant Williams has received the materials he sought and
therefore has apparently gotten everything he wanted from the DVA, we
recognize that the entire purpose of this appellate litigation is to deter-
mine whether Appellant Williams has "substantially prevailed" so that
his counsel may collect attorney's fees and costs pursuant to 5 U.S.C.
§ 552a(g)(3)(B). Our disposition of this case makes it clear that the par-
ties are far from resolving that matter, with the unfortunate consequence
that further judicial resources are likely to be expended.

                    4
also 28 U.S.C. § 1331. This appeal arises from a final decision below,
and thus we possess appellate jurisdiction under 28 U.S.C. § 1291.
This appeal involves questions of law, which we review de novo.
Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S.
485 (1984); Waters v. Gaston County, N.C., 57 F.3d 422, 425 (4th
Cir. 1995) ("We review the district court's legal conclusions de novo
and its factual findings for clear error.").

III.

The Privacy Act provides in relevant part:

         (d) Access to records.--Each agency that maintains a sys-
         tem of records shall--

         (1) 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 in a form comprehensible
         to him . . . .

5 U.S.C. § 552(d)(1). The access provision is thus confined to records
or information within a system of records. Manuel v. Veterans Admin.
Hosp., 857 F.2d 1112, 1116 (6th Cir. 1988), cert. denied, 489 U.S.
1055 (1989). The Act defines "record" and"system of records" as fol-
lows:

         (4) the term "record" means any item, collection, or group-
         ing of information about an individual that is maintained by
         an agency, including, but not limited to, his education,
         financial transactions, medical history, and criminal or
         employment history and that contains his name, or the iden-
         tifying number, symbol, or other identifying particular
         assigned to the individual, such as a finger or voice print or
         a photograph;

         (5) the term "system of records" means a group of any
         records under the control of any agency from which infor-

                    5
          mation 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)(4), (5).

A.

In general, courts have been lenient in determining what informa-
tion constitutes a "record" within the meaning of the Act. See, e.g.,
Quinn v. Stone, 978 F.2d 126, 131-33 (3d Cir. 1992) (finding that
both the information on a hunting roster and on a time card were "re-
cords" within the meaning of the Privacy Act); Bartel v. Federal Avi-
ation Admin., 725 F.2d 1403, 1407-1411 (D.C. Cir. 1984) (finding
that letters sent by FAA official that indicated that plaintiff employee
had improperly obtained access to files of FAA inspectors, although
not themselves agency records, did not, as a matter of law, bar claim
that Privacy Act's disclosure provisions had been violated); Boyd v.
Secretary of the Navy, 709 F.2d 684, 686 (11th Cir. 1983) (finding
that supervisors' memorandum reflecting employee's failure to follow
the chain of command was a "record" within the meaning of the Pri-
vacy Act), cert. denied sub nom. Boyd v. Lehman , 464 U.S. 1043
(1984); cf. Manuel, 857 F.2d at 1116-17 (assuming, without deciding,
that two Veterans Administration Reports of Contact generated by
undercover investigators were records); Cuccaro v. Secretary of
Labor, 770 F.2d 355, 360 (3d Cir. 1985) (assuming, without deciding,
that investigative files compiled as a result of plaintiff's complaints
were records); Brooks v. Veterans Admin., 773 F. Supp. 1483, 1486
(D. Kan. 1991) (finding that information that "an unidentified doctor
supported or failed to support an employee's disability retirement
application is an item of `information about an individual' which is
covered by the Privacy Act"); but see Bowyer v. United States Dep't
of Air Force, 804 F.2d 428, 431 (7th Cir. 1986) (finding that "private
notes are not subject to the requirements of the Privacy Act" but that
"once the notes are used by the agency to make a decision concerning
an individual's employment status, the notes become subject to the
provisions of the Act"); Johnston v. Horne , 875 F.2d 1415, 1423 (9th
Cir. 1989) (same). Nevertheless, the DVA asserts that what Appellant
Williams sought were not his "records," but rather were "the results

                    6
of an investigation into the conduct of VA personnel." Brief of Appel-
lee at 16.

To this end, the DVA relies on Tobey v. NLRB, 40 F.3d 469 (D.C.
Cir. 1994), in which the court drew a distinction between, on the one
hand, information that is "about" an individual, i.e. that "actually
describes the individual in some way," and to which the Act applies
and, on the other hand, information that simply"applies to" the indi-
vidual by containing the individual's name and to which the Act does
not apply. Id. at 471-72. Whether the Tobey court's distinction be
accepted, the legislative history of the Act makes it clear that a "re-
cord" was meant to "include as little as one descriptive item about an
individual." Analysis of House and Senate Compromise Amendments
to the Federal Privacy Act, reprinted in Legislative History of the Pri-
vacy Act of 1974: Source Book on Privacy, at 866 (1976) (hereinafter
Source Book). Moreover, neither the Act itself, its legislative history,
nor case law interpreting it indicates that a record's status as a "draft"
somehow removes it from the Act's purview.3 Indeed, were that the
case, agency bureaucrats could too easily circumvent the purposes of
the Act by stamping all records "Draft."

An examination of the two versions of the letter from Dr. Williams
to Appellant Williams and of the draft ROC plainly reveals that these
materials substantially pertain to Appellant Williams. They clearly
contain "information about" Appellant Williams, as well as his
"name" or "identifying number," 5 U.S.C.§ 552a(a)(4), and do more
than merely apply to him. These materials discuss his medical history,
clinical observations concerning him, suggested past therapies that
were not undertaken, a possible future course of treatment, and infor-
mation pertaining to his personal relationships. Given the language of
the Act itself and the intent behind the words, we find that the docu-
ments sought by Appellant Williams were "records" within the mean-
ing of 5 U.S.C. § 552a(a)(4).
_________________________________________________________________

3 Upon questioning at oral argument, counsel for the DVA essentially
conceded that in some circumstances a draft may be a record. The gov-
ernment thereafter principally focused its argument on its contention that
these documents were not in the "system of records." See infra part III.B.

                     7
B.

Whether these records were within the DVA's "system of records"
and thus subject to the Act's access provision is a much more difficult
problem. Courts have construed § 552a(a)(5) narrowly. See, e.g.,
Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1459-61
(D.C. Cir. 1996) (finding that retrieval capability is not the test since
Congress's use of the words `is retrieved' "suggest[s] strongly that a
group of records should generally not be considered a system of
records unless there is actual retrieval of records keyed to individu-
als" (emphasis added)); Baker v. Department of Navy, 814 F.2d 1381,
1384 (9th Cir.) (stating that "the definition of`system of records'
makes coverage under the Act dependent upon the method of retrieval
of a record rather than its substantive content"), cert. denied, 484 U.S.
963 (1987); Boyd v. Secretary of the Navy, 709 F.2d 684, 686 (11th
Cir. 1983) (finding that "a record must be maintained by the agency
in a group of records cued to the requestor" (citations omitted)), cert.
denied sub nom. Boyd v. Lehman, 464 U.S. 1043 (1984); Savarese v.
United States Dep't of Health, Educ. and Welfare, 479 F. Supp. 304,
307 (N.D. Ga. 1979) (holding that neither a reading file nor a program
file, since not keyed to retrieval by names or identifiers, were systems
of records under the Act), aff'd sub nom. Savarese v. Harris, 620 F.2d
298 (5th Cir. 1980), cert. denied, 449 U.S. 1078 (1981); Smiertka v.
United States Dep't of Treasury, 447 F. Supp. 221, 228-29 (D.D.C.
1978) (holding that daily reports prepared by agency investigator
were not records within a system of records since they were retriev-
able by the investigator's identifier and not accessed by plaintiff's
name), vacated and remanded on other grounds, 604 F.2d 698 (D.C.
Cir. 1979); cf. Manuel v. Veterans Admin. Hosp. , 857 F.2d 1112,
1117 (6th Cir. 1988) (finding that two Reports of Contact, and a third
report, were not within the VA's system of records under any name),
cert. denied, 489 U.S. 1055 (1989); but see Bowyer v. United States
Dep't of Air Force, 804 F.2d 428, 431-32 (7th Cir. 1986) (finding that
there was a factual question as to whether memos kept by supervisor
on employee, that were in fact retrieved, were somehow keyed to
employee's name). This narrow construction is further supported by
OMB's Guidelines for Implementing Section 552a of Title 5 of the
United States Code which states:

          The definition of "system of records" limits the applicability
          of some of the provisions of the Act to "records" which are

                    8
          maintained by an agency, retrieved by individual identifier
          (i.e., there is an indexing or retrievel [sic] capability using
          identifying particulars . . . built into the system), and the
          agency does, in fact, retrieve records about individuals by
          reference to some personal identifier.

Source Book at 1027 (emphasis in original). The United States Court
of Appeals for the District of Columbia Circuit has recently relied on
this language in determining that retrieval in practice and not retrieval
capability is essential in order for a system of records to exist. See
Henke, 83 F.3d at 1460 n.12.

This close textual reading by courts of the statutory language and
OMB implementing guidelines appears to focus on the trees at the
expense of the forest. The careful analysis by the Henke court, for
example, is suffused with the sense that the language of the Act is not
so plain after all, but rather is ambiguous, although the court never
comes out and says so. See id. at 1459-61. And while the OMB guide-
lines are useful as a general starting point, OMB is not the agency
charged with the administration of the Privacy Act in this matter. Nat-
urally, no agency or court, as it seeks to construe the Act, can escape
the fact that there is no legislative history on why Congress chose the
phrase "is retrieved." However, context for interpreting the statutory
language, see King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991)
(stating that "the meaning of statutory language, plain or not, depends
on context"), is available on the larger scale. The Senate Report on
the Privacy Act makes it clear that Congress's intent was much more
expansive than the narrow construction heretofore given:

           No exemption from or qualification of the right of data
          subjects to have full access to their records should be
          granted unless there is a clearly paramount and strongly jus-
          tified societal interest in such exemption or qualification. . . .
          The instances in which it can be convincingly demonstrated
          that there is a paramount society [sic] interest in depriving
          an individual of access to data about himself would seem to
          be rare.

S. Rep. No. 1183, 93rd Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 6916, 6935 (quoting and adopting the report of the

                     9
HEW Secretary's Advisory Committee on Automated Personal Data
Systems).

With this broad intent in mind, and giving due deference to the
statutory language, Appellant Williams's claim that his records "were
in fact retrieved by accessing Plaintiff's name and personal identifier
number," Brief of Appellant at 14, is very colorable, especially since
all versions of Dr. Williams's letter to him possessed the filename
"WILLIAMS.LTR". However, the question of whether these records
were within a "system of records" remains. Unfortunately, we cannot
properly determine this issue on the record before us.

Although not addressed below or by the parties on this appeal, the
DVA has, in fact, established a formal system of records, 32VA00,
titled "Veteran, Employee and Citizen Health Care Facility Investiga-
tion Records-VA" that includes as a category of individuals covered
by the system "[v]eterans and private citizens who have alleged abuse
by members of the health care facility staff." 2 Privacy Act Issuances,
1991 Compilation, 946. The categories of records in the system
include "[c]opies of reports of investigations, findings, and follow-up
concerning . . . patients . . . , complaints, . . . unethical conduct, etc."
Id. The letters and ROC of Dr. Williams, following from Appellant
Williams's complaint about the conduct of his psychologist, including
breaches of confidentiality, thus arguably fit within this system of
records. Indeed, the existence of the 32VA00 system of records sup-
ports our conclusion above that these materials are, in fact, "records"
within the meaning of §552a(a)(4). The stated policies and practices
for storage are "Paper documents and Photographs" and for retrieva-
bility are "Alphabetically by name." Privacy Act Issuances, supra, at
946. These policies and practices, however, have remained unchanged
since the establishment of this system of records in the mid-1970s,
see, e.g., 42 Fed. Reg. 49726, 49743 (1977); 41 Fed. Reg. 37718
(1976), that is, before the advent of the personal computer and floppy
disks. It is an unanswered question of fact as to whether in 1993 the
DVA only stored records within the 32VA00 system of records as
paper documents or whether some or all of the records were then
stored in digital format. Even though not directly at issue in this case,
our suspicion has been raised as to whether the DVA has complied
with its statutory duty to publish in the Federal Register any revisions
in the character of its systems of records. See 5 U.S.C. § 552a(e)(4).

                     10
Although we do not intend the analogy to be exact, surely at some
point federal agencies must acknowledge that computer files are like
paper documents, floppy disks are like file folders, and hard drives
are like file cabinets.

It is also questionable whether an agency that assigns individuals
client identification numbers, as the DVA did for Appellant Williams
here, would have for its only method of retrievability "alphabetically
by name." Yet notwithstanding this, it is undisputed that the filename
of the draft ROC by Dr. Williams was "228.ROC". This filename is
thus directly accessible by neither Appellant Williams's name nor cli-
ent number. Nevertheless, common computer utility programs exist
that can locate the occurrence of names or client numbers even if not
contained in the filename. We find the narrow Henke rationale--that
since this document was not in practice actually retrieved "by the
name of the individual or by some identifying number," 5 U.S.C.
§ 552a(a)(5), it cannot be a record within a"system of records"--
unconvincing in these circumstances where there appears to exist
already a formal system of records of which the ROC may be a part;
where it appears that the published characteristics of the agency's for-
mal system of records have not kept current with advances in and typ-
ical uses of computer technology, even by government standards; and
where, in general, the record we review is poorly developed on this
point.4 Instead, we believe it is more important in this posture to be
animated by the spirit of the Privacy Act. The foresight exhibited in
the Act's raison d'etre, to provide for protection against possible
abuses of governmental power to affect an individual's privacy and
confidential information, has become only more manifest as our soci-
ety enmeshes itself ever more deeply into the Information Age. Thus
because the ROC can be retrieved by Appellant Williams's client
number, and may in fact have been so, we vacate the judgment of the
district court and remand. We naturally make no pronouncement on
the merits of whether the ROC is, in fact, within the DVA's system
_________________________________________________________________
4 We express no opinion on the Henke court's rationale when applied
to circumstances where a plaintiff seeks to use retrieval capability to
transform a group of records into a "system of records," as in Henke
itself, when no formally-designated system of records exists. We thus do
not necessarily disagree with the Henke court but decide only that its
rationale should not be extended to the incomplete record before us.

                    11
of records; that is for the district court to determine on remand. We
simply do not wish to foreclose the possibility on the incomplete
record before us.

In addition to this disposition of the draft ROC, we also vacate the
judgment below and remand for further factual findings with respect
to the two versions of the letter addressed to Appellant Williams from
Dr. Williams. Among those aspects needing further development are
the nature of the 32VA00 system of records, how records are stored
in practice (in paper or digital form or both), and how records are
retrieved in practice (by client name or identifying number via file-
name or file number; utility program or search engine; or other
means). Until these things are determined, it is not possible to prop-
erly decide whether either version of the letter, and perhaps the ROC
as well, is within the "system of records" since it is clear that, at least
as computer files, stored on both labeled and unlabeled floppy disks
as well as on the DVA's network server, all versions were retrieved
by Appellant Williams's name.

IV.

For the foregoing reasons, we reverse the district court's legal
determination that the materials Appellant Williams requested were
not "records" within the meaning of the Privacy Act, 5 U.S.C.
§ 552a(a)(4). These materials were substantially "about" Appellant
Williams and did more than merely "apply to" him.

We also vacate the judgment below and remand the case for further
factual development as to whether the requested records were con-
tained within a "system of records." In particular, the district court
should determine the storage and retrievability characteristics in prac-
tice of the 32VA00 system of records.

REVERSED IN PART, VACATED, AND REMANDED

                     12
