## Facts

- Career Hearing and Appeal Analysts at the Social Security Administration were recommended for promotion to GS-13, but a later classification review downgraded their positions to GS-12, and 24 analysts were denied the promotions.
- A personnel officer convened a workplace meeting during business hours to explain the reclassification; the meeting included a presentation, questions and answers, and a heated exchange.
- The agency secretly videotaped the entire meeting using concealed equipment without the analysts’ knowledge or consent.
- The videotape was labeled and stored in a locked agency file; after a union unfair labor practice charge, the tape was moved to a security office and kept sealed and confidential.
- The analysts sued seeking damages and declaratory and injunctive relief, alleging the videotaping and retention violated the Privacy Act’s First-Amendment-record provision, 5 U.S.C. § 552a(e)(7).

## Issues

1. Whether 5 U.S.C. § 552a(e)(7) applies only to records incorporated into an agency “system of records,” or instead reaches any covered record an agency maintains.
2. Whether the videotape constitutes a “record” and whether the agency “maintained” it within the meaning of the Privacy Act.
3. Whether any § 552a(e)(7) exception justified the making and retention of the videotape (statutory authorization, express consent, or pertinence to an authorized law enforcement activity).

## Decision

- The court reversed the district court’s summary judgment for the government and remanded.
- Section 552a(e)(7) applies even when the challenged record is not incorporated into a “system of records.”
- The videotape was a “record” and the agency “maintained” it under the Act.
- On summary judgment, the government did not establish that the videotape fit within any § 552a(e)(7) exception.

## Legal Principles

- Under 5 U.S.C. § 552a(e)(7), an agency that maintains a system of records may not maintain any record describing how an individual exercises First Amendment rights unless an enumerated exception applies.
- The statute’s reference to “any record” in § 552a(e)(7) is not limited by the Act’s separate definition of a “system of records”; “record” and “system of records” are distinct concepts.
- A videotape containing identifying information about individuals and retained by an agency can qualify as a Privacy Act “record,” and keeping it constitutes “maintain[ing]” (including collecting and keeping).
- The “authorized law enforcement activity” exception requires a showing of pertinence to an authorized enforcement-related activity; generalized personnel or workplace management rationales are insufficient on an undeveloped record.

## Conclusion

The D.C. Circuit held that the Privacy Act’s bar on maintaining records of First Amendment activity is not confined to records placed in a retrievable “system of records,” and it required further proceedings to determine whether any statutory exception justified the agency’s secret videotaping and retention of the meeting.


Albright v. United States, 631 F.2d 915 (D.C. Cir. 1980)