Opinion for the Court filed by Senior Circuit Judge VAN DUSEN.
VAN DUSEN, Senior Circuit Judge:
Plaintiff-appellant, Alan R. Smiertka, filed this action under the Privacy Act, 5 U.S.C. § 552a (1977), seeking access to documents held by the defendant-appellee, Internal Revenue Service. The district court, on February .16, 1978, entered summary judgment for defendant, in part on the basis of § 3(d)(5) of the Act, 5 U.S.C. § 552(d)(5), which exempts “information compiled in reasonable anticipation of a civil action or proceeding” from the Act’s access requirements. This appeal raised the narrow issue of whether the § 3(dX5) exemption embraces materials compiled in anticipation of adversary administrative proceedings, or only those compiled for litigation in a judicial forum. However, intervening events not brought to the attention of the district court have changed the factual context of the issue here presented. Therefore, we vacate the judgment and remand for a further determination of the pertinent facts and of the law applicable thereto.
I.
The background facts in this controversy are not disputed. Plaintiff Smiertka was a special agent for the defendant Internal Revenue Service (“IRS” or “agency”) in its Detroit district office until July 16, 1975, when he was dismissed on charges of misconduct. Having contested his discharge unsuccessfully before the IRS,
plaintiff ap
pealed the agency’s adverse personnel action to the Civil Service Commission (“CSC”).
After hearings in January and March of 1977, the CSC ruled in plaintiff’s favor on December 14, 1977. Although the IRS subsequently reinstated Mr. Smiertka, this fact and the December 14, 1977, ruling do not appear to have been disclosed to the district court before entry of the judgment here on appeal. See p. 702 below.
The documents which plaintiff seeks were compiled by officers of the IRS in connection with his dismissal, and plaintiff does not dispute that their compilation was “in reasonable anticipation of” the termination proceedings and subsequent appeal to the CSC. On the date his discharge became effective, plaintiff filed simultaneous requests under both the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1977),
and under the access provisions in § 3(d)(1) of the Privacy Act, 5 U.S.C. § 552a(d)(l),
seeking a wide variety of documents relating to the charges against him and to the evidence supporting those charges. The agency released some of the requested documents but withheld the balance on various grounds, including that of the exemption in § 3(d)(5) of the Privacy Act, 5 U.S.C. § 552a(d)(5).
In this appeal, plaintiff contests only the applicability of this “(d)(5)” exemption, which provides:
“[Njothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.”
Documents withheld on the basis of this exemption are described in an affidavit of an agency attorney, reproduced in the margin.
In brief summary, those documents
consist of memoranda and intra-agency communications analyzing various aspects of the adverse action against plaintiff. The analyses cover, among other items, “technical, procedural and evidentiary problems” potentially arising during the adverse action, the nature of the charges to be le-velled against plaintiff, and problems of coordinating plaintiff’s adverse action with other adverse actions initiated in the same region.
After exhausting administrative procedures under FOIA and the Privacy Act, and while the appeal of his termination was pending before the CSC, plaintiff Smiertka continued his quest for documents in the district court, as authorized by § 3(g) of the Privacy Act, 5 U.S.C. § 552a(g).
In this action for an injunction and damages, filed November 16, 1976, plaintiff sought relief solely under the access provisions of the Privacy Act, 5 U.S.C. § 552a(d)(l); he chose not to proceed under FOIA. Following the defendant agency’s answer, cross-motions for summary judgment, a hearing on June 14, 1977, and supplemental cross-motions for summary judgment, the district court entered an order denying plaintiff’s motion and granting summary judgment to the
agency.
Smiertka v. United States Department of Treasury, Internal Revenue Service,
447 F.Supp. 221 (D.D.C., Feb. 16,1978).
With respect to the documents analyzing various aspects of the agency’s adverse action, the district court addressed the following issue:
“. . . [whether] the protection afforded by section 3(d)(5) was meant to extend only to items protected under the attorney’s work product doctrine, and not, as in this case, to documents prepared by and at the direction of law agency staff persons.”
447 F.Supp. at 227. Plaintiff also contended in that court that a series of daily reports, prepared by an agency investigator and containing references to the investigation of him, were accessible under Privacy Act § 3(d)(1). The district court ruled against plaintiff on both of these issues. It held that the documents compiled in anticipation of the termination proceedings fell within the language of the § 3(d)(5) exemption and that that exemption was not “limited to work product materials.”
Id.
The court further held that the daily reports fell outside, the scope of § 3(d)(1) because they were “not accessed by plaintiff’s name or other personal identifier.”
Id.
at 229. See notes 9, 11 and 12 below.
In December 1977, prior to entry of judgment in the district court action, plaintiff had prevailed in his appeal to the CSC of the defendant IRS’s adverse action. However, it appears that the parties failed to notify the district court of this successful appeal and of Mr. Smiertka’s subsequent reinstatement, since the court’s opinion of February 1978 refers to the CSC appeal as “presently pending.” 447 F.Supp. at 223. Therefore, the district court had no opportunity to consider what effects these events might have had upon the parties’ contentions.
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Opinion for the Court filed by Senior Circuit Judge VAN DUSEN.
VAN DUSEN, Senior Circuit Judge:
Plaintiff-appellant, Alan R. Smiertka, filed this action under the Privacy Act, 5 U.S.C. § 552a (1977), seeking access to documents held by the defendant-appellee, Internal Revenue Service. The district court, on February .16, 1978, entered summary judgment for defendant, in part on the basis of § 3(d)(5) of the Act, 5 U.S.C. § 552(d)(5), which exempts “information compiled in reasonable anticipation of a civil action or proceeding” from the Act’s access requirements. This appeal raised the narrow issue of whether the § 3(dX5) exemption embraces materials compiled in anticipation of adversary administrative proceedings, or only those compiled for litigation in a judicial forum. However, intervening events not brought to the attention of the district court have changed the factual context of the issue here presented. Therefore, we vacate the judgment and remand for a further determination of the pertinent facts and of the law applicable thereto.
I.
The background facts in this controversy are not disputed. Plaintiff Smiertka was a special agent for the defendant Internal Revenue Service (“IRS” or “agency”) in its Detroit district office until July 16, 1975, when he was dismissed on charges of misconduct. Having contested his discharge unsuccessfully before the IRS,
plaintiff ap
pealed the agency’s adverse personnel action to the Civil Service Commission (“CSC”).
After hearings in January and March of 1977, the CSC ruled in plaintiff’s favor on December 14, 1977. Although the IRS subsequently reinstated Mr. Smiertka, this fact and the December 14, 1977, ruling do not appear to have been disclosed to the district court before entry of the judgment here on appeal. See p. 702 below.
The documents which plaintiff seeks were compiled by officers of the IRS in connection with his dismissal, and plaintiff does not dispute that their compilation was “in reasonable anticipation of” the termination proceedings and subsequent appeal to the CSC. On the date his discharge became effective, plaintiff filed simultaneous requests under both the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1977),
and under the access provisions in § 3(d)(1) of the Privacy Act, 5 U.S.C. § 552a(d)(l),
seeking a wide variety of documents relating to the charges against him and to the evidence supporting those charges. The agency released some of the requested documents but withheld the balance on various grounds, including that of the exemption in § 3(d)(5) of the Privacy Act, 5 U.S.C. § 552a(d)(5).
In this appeal, plaintiff contests only the applicability of this “(d)(5)” exemption, which provides:
“[Njothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.”
Documents withheld on the basis of this exemption are described in an affidavit of an agency attorney, reproduced in the margin.
In brief summary, those documents
consist of memoranda and intra-agency communications analyzing various aspects of the adverse action against plaintiff. The analyses cover, among other items, “technical, procedural and evidentiary problems” potentially arising during the adverse action, the nature of the charges to be le-velled against plaintiff, and problems of coordinating plaintiff’s adverse action with other adverse actions initiated in the same region.
After exhausting administrative procedures under FOIA and the Privacy Act, and while the appeal of his termination was pending before the CSC, plaintiff Smiertka continued his quest for documents in the district court, as authorized by § 3(g) of the Privacy Act, 5 U.S.C. § 552a(g).
In this action for an injunction and damages, filed November 16, 1976, plaintiff sought relief solely under the access provisions of the Privacy Act, 5 U.S.C. § 552a(d)(l); he chose not to proceed under FOIA. Following the defendant agency’s answer, cross-motions for summary judgment, a hearing on June 14, 1977, and supplemental cross-motions for summary judgment, the district court entered an order denying plaintiff’s motion and granting summary judgment to the
agency.
Smiertka v. United States Department of Treasury, Internal Revenue Service,
447 F.Supp. 221 (D.D.C., Feb. 16,1978).
With respect to the documents analyzing various aspects of the agency’s adverse action, the district court addressed the following issue:
“. . . [whether] the protection afforded by section 3(d)(5) was meant to extend only to items protected under the attorney’s work product doctrine, and not, as in this case, to documents prepared by and at the direction of law agency staff persons.”
447 F.Supp. at 227. Plaintiff also contended in that court that a series of daily reports, prepared by an agency investigator and containing references to the investigation of him, were accessible under Privacy Act § 3(d)(1). The district court ruled against plaintiff on both of these issues. It held that the documents compiled in anticipation of the termination proceedings fell within the language of the § 3(d)(5) exemption and that that exemption was not “limited to work product materials.”
Id.
The court further held that the daily reports fell outside, the scope of § 3(d)(1) because they were “not accessed by plaintiff’s name or other personal identifier.”
Id.
at 229. See notes 9, 11 and 12 below.
In December 1977, prior to entry of judgment in the district court action, plaintiff had prevailed in his appeal to the CSC of the defendant IRS’s adverse action. However, it appears that the parties failed to notify the district court of this successful appeal and of Mr. Smiertka’s subsequent reinstatement, since the court’s opinion of February 1978 refers to the CSC appeal as “presently pending.” 447 F.Supp. at 223. Therefore, the district court had no opportunity to consider what effects these events might have had upon the parties’ contentions.
At oral argument in this appeal, counsel for the Government informed this court that one result of the successful appeal to the CSC has been removal of all references to the adverse action from plaintiff’s personnel file. While assuring this court that the documents plaintiff seeks do still exist, Government counsel stated that they are now placed in an “adverse action file,” at an unspecified location. He further indicated that access to such files is highly restricted and that they would not be available to persons requesting informatiort for personnel or credit reference purposes. However, counsel could not specify the conditions under which such records are kept or upon which access to them would be provided.
II.
These intervening circumstances may have given the issues in this case a shape entirely different from that delineated in the briefs on this appeal.
Plaintiff appealed only the issue of whether the § 3(d)(5) exemption was applicable to the documents analyzing the proposed adverse action. Regarding this exemption, he presented to this court a contention which was slightly different from that which the district court addressed: that the terms “civil actions or proceedings” in § 3(d)(5) refer only to actions or proceedings in federal courts, and that, therefore, the exemption “does not encompass administrative hearings such as the Civil Service Commission adverse action hearing here involved.” Brief for Plaintiff-Appellant at 5. The agency contended in opposition that the civil proceedings contemplated by the statutory exemption do encompass administrative proceedings, at least where such proceedings have most of the procedural earmarks of judicial proceedings, as in this case.
III.
Without ascertaining the present status of the documents which Mr. Smiertka seeks, this court is unable to determine whether any of the above contentions remain pertinent to the changed facts of this case. At least three new questions now intrude themselves upon the scene.
First, it is not clear that the requested materials are any longer contained in a “system of records” within the meaning of the Act: that is, whether the information therein is retrieved by any individual’s name or other identifier.
Even if the documents are still contained in a “system of records,” it is quite possible that they are no longer filed and retrieved by plaintiff’s own name or other identifier. According to the Office of Management and Budget’s Privacy Act Guidelines (“OMB Guidelines”), 40 Fed.Reg. 28,948 (July 9, 1975),
§ 3(d)(1) of the Act does not require the agency to grant access to information which is not retrievable by the requestor’s own name or identifier.
Thus it is necessary to ascertain whether the requested documents which are now contained in an “adverse action file” any longer fall within the scope of the access requirements of § 3(d)(1),
before answering the question presented to this court: whether those documents fall within the § 3(d)(5)
exemption
to the access requirements. A negative answer to the former question would, of course, make the latter inconsequential.
Another complication which may have arisen is that the materials in the “adverse action file” might be collected and retained
solely in anticipation of a potential civil damage action in federal court, brought by Mr. Smiertka after his reinstatement. In that event, the pertinent question would be whether the adverse action file’s contents should be considered to be “compiled in reasonable anticipation of” such a post-reinstatement civil action, within the contemplation of § 3(d)(5). The question presented in the appeal briefs, whether § 3(d)(5) applies to administrative as well as judicial proceedings, would again be no longer pertinent.
A third possible question is whether the requested documents, under their changed conditions of agency retention, now fall into a separate category of exemption from the access requirements of the Privacy Act.
See, e. g.,
§ 3(k)(4) of the Act, 5 U.S.C. § 552a(k)(4) (exemption for records “required by statute to be maintained and used solely as statistical records”). An affirmative answer to this question again obviates the need to answer the question presented in the appeal briefs.
In sum, the conditions under which an agency retains and retrieves information are a crucial determinant of the scope of the access requirement of the Privacy Act.
Cf. Zeller v. United States,
467 F.Supp. 487 (E.D.N.Y., 1979). The Act empowers courts only to “order the production to the complainant of any agency records
improperly
withheld from him.” 5 U.S.C. § 552a(g)(3)(A) (emphasis added). Without current knowledge of the status of the materials requested, a court cannot reliably ascertain whether the withholding of these materials is improper, nor otherwise determine how Congress intended to accommodate the competing governmental and individual interests affected by the Act.
Under these circumstances, therefore, we conclude that it is fruitless for this court to answer questions that may no longer be pertinent to the case, or to attempt to anticipate questions from an unknown state of present facts. Hence the case will be remanded so that the district court may determine the conditions under which the requested documents are now maintained and any other pertinent facts. That court shall thereupon determine whether the case should be dismissed as moot,
see County of Los Angeles v. Davis,
440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979);
Reporters Committee for Freedom of the Press v. Simpson,
192 U.S.App.D.C. 335, 341, 591 F.2d 944, 950 (1978), or decide it in accordance with the law applicable to the facts found. Each party will bear its own costs in this court.