Jane Doe v. United States of America

821 F.2d 694, 261 U.S. App. D.C. 206, 1987 U.S. App. LEXIS 7847

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 19, 1987
• Docket: 84-5613
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This case arises under the civil remedies prescriptions of the Privacy Act, 5 U.S.C. § 552a(g). The appeal requires this court to construe the Act’s prescriptions authorizing court-ordered correction when an agency refuses to amend an individual’s record, id. § 552a(g)(l)(A), and thereby fails to maintain [the] record ... with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness ... to the individual.” Id. §§ 552a(g)(l)(C) & (g)(2)(A). The controversy centers on a State Department report of investigation (ROI) concerning a March 26, 1981 unwitnessed interview; the interviewee was plaintiff-appellant Jane Doe,¹ then an applicant for a position in the foreign service; the interviewer was Department Special Agent Billy N. Hughes. (Í

The ROI in question contains the agent’s and Doe’s sharply conflicting accounts of what Doe said at the interview; it reports that “[t]here is no reason to doubt the statements made by [the] [a]gent,” ² but it does not announce which account — Doe’s or the agent’s — the Department believes. The precise issue before us is whether the ROI so maintained satisfies the Privacy Act standard, directed initially to the agency, then to the reviewing court, that all records concerning individuals be maintained with “such accuracy ... and completeness as is necessary to assure fairness ... to the individual.” Id. § 552(g)(1)(C) (court remedy); see id. § 552a(e)(5) (agency requirement).

Doe sought primarily an order requiring not correction of the March 1981 ROI, but its physical removal from her files; she also requested damages.³ The district court, on cross motions for summary judgment, denied Doe’s motion and granted the government’s. Doe v. United States, Civil Action No. 83-951 (D.D.C. July 6, 1984). In the circumstances presented, the district court concluded, the Privacy Act did not require the judge “actually to determine what was said during the March 26, 1981 interview”; instead, it sufficed for the court to determine whether the ROI, as the Department maintained it, was as “accurate as is reasonably necessary.” Doe, supra, slip op. at 10, 11.

The district court ultimately ruled that, except for specific, relatively minor amendments, which it ordered to clarify the March 1981 ROI,⁴ that report, as maintained by the State Department, was as “accurate” as was “necessary to assure fairness” to Doe. We hold that the district court correctly defined the responsibility Congress assigned to the recordkeeping agency and to the reviewing court in the Privacy Act, and we affirm the district court’s judgment.

I.

In the fall of 1980, plaintiff Jane Doe applied to the State Department for a position in the foreign service. The Department pursued the background investigation routine for such applications. As part of the investigation, on January 23, 1981, Doe was interviewed by Department Special Agent, Billy N. Hughes. Notable discrepancies appeared when the Department checked Doe’s application and her responses at the January 23 interview against her military and Veterans Administration (VA) records. In particular, Doe had answered “no” on State’s application form to an inquiry whether she had “ever had medical treatment for a mental condition.” Her military and VA records revealed, however, that she was receiving a disability pension from the United States predicated in significant part on a mental condition.

To obtain Doe’s explanation for this and other apparent inconsistencies between her current representations and her prior records, the Department instructed its agent Hughes to reinterview Doe. Hughes did so on March 26, 1981. According to Hughes, Doe explained at this second interview that she in fact suffered from no mental condition, but had dishonestly claimed to have a depressive condition in order to obtain disability pay, with its tax advantage over straight retirement pay; Hughes further reported that Doe expressed regret about what she had done. Doe denies ever having made the incriminating statements agent Hughes attributed to her.

Doe did not pursue her foreign service officer application, for she obtained a high level position in another agency. When she encountered a problem gaining a security clearance at that other agency, she obtained from State, in response to her Privacy Act request, portions of the March 1981 ROI, and began the process of seeking to have the report expunged.

Doe submitted long affidavits and legal memoranda explaining, inter alia, that her original depressive symptoms, as later diagnosis revealed, had in fact been hormonally caused and were now corrected by medication. Following the correction of her diagnosis, however, she continued to accept disability retirement benefits based in part (30%) on a “nervous condition.” See Joint Appendix (J.A.) at 51. Doe’s counsel observed that Doe had “sent the VA a physician’s report on April 30, 1982, which stated ... that she was no longer suffering from depression”; counsel further asserted that “[it] was the VA’s, not [Doe’s] responsibility to review [her] disability benefits based on current medical information.” Appellant’s Reply Brief at n. 3.

The State Department analyzed Doe’s submissions in detail. State contacted agent Hughes and obtained his specific responses to Doe’s allegations that he had misrepresented what she had said;⁵ State also checked or rechecked Doe’s VA file and educational records. The Department ultimately ordered (1) that the ROI in question be amended in small particulars, and (2) that Doe’s account of “what she said or did not say” at the March 26, 1981 interview “be made part of the record without affirming or denying her allegations.”⁶ The Department further stated: “The record should also indicate that there is no reason to question the integrity of Agent Hughes.”⁷ Doe commenced this action when State refused to expunge or further amend the March 1981 ROI.⁸

II.

The Privacy Act speaks first and foremost to agencies. It directs them, inter alia, to

maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination!;.]

5 U.S.C. § 552a(e)(5); see also id. § 552a(e)(6) (agency shall “make reasonable efforts to assure” that records it disseminates to persons other than an agency “are accurate, complete, timely, and relevant for agency purposes”) (emphasis supplied). The Act also details the rights of individuals to gain access to records pertaining to them, id. § 552a(d), and to request agency correction of “any portion [of a record] which the individual believes is not accurate, relevant, timely, or complete.” Id. § 552a(d)(2)(B)(i). Finally, the Act speaks to the courts. An individual may bring a civil action in federal district court challenging an agency’s determination not to amend the individual’s record. Id. § 552(g). “In such a case the court shall determine the matter de novo.” Id. § 552a(g)(2)(A).

To pare this controversy down to its core, we address first the question whether the term “de novo” in the above quoted sentence means something less than what that expression generally signals. We hold that the term has no different, diminished meaning in the context at hand. De novo means here, as it ordinarily does, a fresh, independent determination of “the matter” at stake; the court’s inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency’s conclusion. See, e.g., Augustine v. McDonald, 770 F.2d 1442, 1444 (9th Cir. 1985) (appeals court reviews grant of summary judgment de novo, which means it “appl[ies] the same test as did the district court”); Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983) (appeals court reviews “de novo orders dismissing for lack of subject matter jurisdiction”); Weahkee v. Perry, 587 F.2d 1256, 1263 (D.C.Cir.1978); 5 B. Mezines, J. Stein, & J. Gruff, Administrative Law § 51.04 (rev. ed. 1985) (court engaged in de novo review is not confined to the administrative record, but may pursue whatever further inquiry it finds necessary or proper to the exercise of court’s independent judgment).⁹

Essentially then, the district court’s charge was to put itself in the agency’s place, to make anew the same judgment earlier made by the agency: Were the amendments Doe requested needed to maintain the record of the March 26, 1981 interview “with such accuracy ... and completeness as is [reasonably] necessary to assure fairness” to Doe? 5 U.S.C. § 552a(g)(l)(C).¹⁰ The district judge correctly understood that charge.¹¹ He observed that Privacy Act “procedural rights” were not “a dispositive issue.” See Doe, supra, slip op. at 9. Rather, the district judge stated, the “proper issue,” the one requiring his de novo determination, concerned the “accuracy” of the March 1981 ROI for agency purposes. Id. at 9-10; see 5 U.S.C. § 552a(e)(6), supra at 697-98. The judge then proceeded to determine, positively and without words of obeisance typical of review under the “arbitrary and capricious” or “substantial evidence” standard:¹² “We conclude that here accuracy is best served by supplementing the Agent’s Report with the plaintiff’s denials and other information.” See Doe, supra, slip op. at 11.

In sum, the district judge made the same judgment earlier entrusted to the agency head, and he apparently did so for himself, i.e., on the basis of information he found sufficient to make the judgment, and without deferring to the prior agency conclusion on the same matter. Having clarified that how the court is to determine the matter is not in doubt — the determination is to be made de novo — we turn to the critical question in this case: Just what is “the matter” to be determined?

III.

The parties delineate “the matter” at stake differently. According to Doe, “the matter” to be determined is this: Which version of the March 26, 1981 interview — Doe’s or the agent’s — does the State Department, and subsequently and independently, the court, choose to believe? Absent that credibility determination, Doe contends, impermissible inaccuracy infects the record. According to the government and the district court, “the matter” to be determined is not what Doe in fact said at the interview. Instead, the dispositive “matter” is whether the March 1981 ROI, as currently composed, meets the Privacy Act’s instruction that all records concerning individuals be maintained “with such accuracy ... and completeness as is necessary to assure fairness ... to the individual.” 5 U.S.C. § 552a(g)(l)(C). We hold, in agreement with the district court and the Department, (1) that the Privacy Act establishes as the recordkeeper’s polestar, “fairness” to the individual about whom information is gathered, and (2) that the “fairness” criterion does not demand a credibility determination in the atypical circumstances of this case.¹³

In the typical Privacy Act case, as the district court observed, it is feasible, necessary, and proper, for the agency and, in turn, the district court to determine whether each filed item of information is accurate. See Doe, supra, slip op. at 10, 11. The Act was designed to create “a code of fair information practices” to govern “federal agencies that collect, store, and disseminate personal information about [individuals].” Smiertke v. United States Department of Treasury, 447 F.Supp. 221, 224 (D.D.C.1978), remanded on other grounds, 604 F.2d 698 (D.C.Cir.1979). An agency, we think it plain, dishonors the Privacy Act standard of “accuracy ... necessary to assure fairness” if it collects and keeps without careful investigation derogatory information from unreliable sources or of a kind that could be run to earth with a reasonable degree of certainty. An agency will not have “done what is reasonable in assuring the accuracy of [its] information,” Edison v. Department of the Army, 672 F.2d 840, 843 (11th Cir.1982), if it squirrels away, deliberately or out of bureaucratic habit, unsubstantiated rumors, McCarthyesque innuendo, unchecked reports of dubious informers or prying neighbors. See H.R.Rep. No. 93-1416, 93d Cong., 2d Sess. 4-5 (1974).¹⁴

The Department in this case, however, did not neglect its statutory duty to “assure fairness” when individuals, situated as Doe is, complain. Mindful that “only [Doe] and the reporting agent ... were present during the [March 26, 1981] personal interview,” the Department considered it particularly important to verify the ROI contents, to the extent possible, against the “factual record,” i.e., Doe’s VA file and her educational records.¹⁵ By checking or rechecking Doe’s amendment requests against documentary evidence, the Department was able to resolve a number of issues. In some instances, State granted Doe’s request and corrected the ROI as she proposed; in other instances, the Department rejected her claim, pointing to the refutation of it in her YA file.¹⁶

Only when the Department had narrowed the controversy to what Doe said —as distinguished from what in fact existed in the world outside the Doe/Hughes interview — did the Department allow the conflicting accounts to stand together as part of the ROL The Department settled on that course, we note, only upon finding no reason to doubt that agent Hughes had acted with integrity and in the manner expected of him. See supra note 7 and accompanying text. The verification steps and checks undertaken by the Department, and the corrections made based upon that review, the district court indicated and we conclude, rendered the March 1981 ROI a record maintained with the accuracy and completeness reasonably required to assure fairness to Doe. See supra notes 10-13 and accompanying text.

These were the choices the Department faced once it resolved every issue save what Jane Doe said at the unwitnessed, untaped interview. First, State might have capitulated to Doe’s insistence that the ROI be expunged unless the Department, in a trial-type proceeding, determined where the truth lay. See Appellant’s Brief at 51-55 (examination and cross-examination of Doe and Hughes are essential).

Second, having found “no indication that Agent Hughes acted in any manner other than what was expected of him,”¹⁷ the Department might simply have rested upon Hughes’s report of Doe's words, and flatly refused Doe’s record amendment request to the extent that it concerned what Doe said. In that event, Doe would have had the statutory right “to file with the [Department] a concise statement setting forth the reasons for [her] disagreement with [State’s] refusal” to amend the record. 5 U.S.C. § 552a(d)(3). In any disclosure of the ROI to other agencies or persons outside the government, State would have been obliged to note “any portion of the record which is disputed” and to “provide copies of the [objector's] statement.” Id. § 522a(d)(4). If the Department deemed it appropriate, however, it could have added to the disclosure its “reasons ... for not making the amendments requested.” Id.

Third, the choice in fact made by the Department, State could recognize that what Doe said at the March 26, 1981 interview is indeed “unknowable” by third persons, and that, consequently, a file setting out both Hughes’s version and Doe’s may be more accurate than a record embracing only one side’s story. See Doe, supra, slip op. at 11 (district court’s conclusion that choice Department made best served accuracy).

Did the Department, in effect, do no more than the law already required of it in allowing Doe to include in the record her version of what she said? There is a genuine difference, we believe, between the ROI State maintained, which comprehends that truth may lie in the middle ground between divergent accounts each affirmed by one witness,¹⁸ and a ROI that labels the government agent’s account “true” and the interviewee’s supplement “false.” Moreover, by taking the course it did, State relinquished the right to speak the last word — to accompany any disclosure of the ROI with its own statement of the reasons why it rejected the amendments requested by Doe. See 5 U.S.C. § 522a(d)(4).

Did Congress allow the Department to choose a middle way, or does the Privacy Act rigidly adopt an adjudicatory model forcing a decision for one side and against the other? District judges, of course, sitting alone or instructing juries, are “at home” with the task of finding what “truth” is more probable than not. But judges so engaged know that they, or the juries they instruct, make definitive findings out of necessity; a winner must be declared, although in the generality of civil cases that go to trial, a decision for either side would be reasonable. We do not discern in the Privacy Act any unyielding instruction always to adjudicate in that customary bipolar way so as to find and record “truth,” rather than to adjust a file equitably to reveal actual uncertainty.¹⁹

Conclusion

The Department fulfilled its responsibility under the Privacy Act when it verified the March 1981 ROI, to the extent possible, against the factual record, and narrowed the controversy to Doe’s statements at the March 26, 1981 interview. Having no reason to doubt that its agent Hughes acted with integrity in the manner expected of him, the Department refused to expunge Hughes’s version of the interview. At the same time, the Department complemented the ROI with Doe’s conflicting account of the interview. Reviewing the Department’s performance, and arriving at its own judgment of how “accuracy is best served” in this case, Doe, supra, slip op. at 11, the district court thought it a fair accommodation, one consistent with the Privacy Act’s terms and purposes, to retain as part of State’s ROI the contradictory descriptions of agent Hughes and interviewee Doe, the two solé participants in, and auditors of, the episode in question. We agree for the reasons stated in this opinion.²⁰ The judgment of the district court is therefore

Affirmed.

1 . At her request, and by order of the district court, the plaintiff is proceeding anonymously in this case.

2 . Supplemental Report of Investigation, March 31, 1981, as Amended by the Provisions of the Privacy Act on April 13, 1982, at 4, reproduced in Joint Appendix (J.A.) at 29, 32.

3 . Damages are available when "the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). See infra note 8.

In the district court, Doe cast her entire case in a procedural frame. She asserted that the Privacy Act required certain procedures — a full investigation that would include interviewing Doe, affording Doe an opportunity to cross-examine agent Hughes, contacting other individuals who might have relevant information. Because the Department had not conducted such an investigation, Doe maintained, the case occasioned no need for any district court inquiry into the truth or falsity of Doe's account or the agent’s. Instead, Doe urged, the Department’s failure to conduct an extensive investigation, in and of itself, entitled her to an immediate ex-pungement remedy and an award of damages. See Doe v. United States, Civil Action No. 83-951, slip op. at 8 (D.D.C. July 6, 1984). The district court held that the Act does not dictate to agencies any particular procedures for determining the accuracy of records, id. at 9, and Doe has not argued otherwise before the en banc court. The legislative history, we note, speaks clearly to the point. See S.Rep. No. 1183, 93d Cong., 2d Sess. 1-2, 59-63 (1974), U.S.Code Cong. & Admin.News 1974, p. 6916 (final version of Act advertently dropped provision of Senate bill (subsection 201(d)(2)(F) of S. 3418) that would have required agency, at the individual’s request, to hold a hearing in order to resolve accuracy challenge); 120 Cong.Rec. 40407 (daily ed. Dec. 17, 1974) (section-by-section analysis of House and Senate Compromise Amendments to the Federal Privacy Act by Senator Ervin), reprinted in Legislative History of the Privacy Act of 1974, S. 3418 (Public Law 93-57-9), at 862 (1976).

4 . The district judge instructed, inter alia, clearer delineation of the opposing accounts of what was said at the March 26, 1981 reinterview. He ordered inclusion of an introductory “sentence indicating that Agent Hughes and the plaintiff dispute what was said at the March 26, 1981 reinterview and that the ROI contains each of their conflicting descriptions.” Doe, slip op. at 11-12. The court also instructed the Department to identify clearly the source of each informational passage in the ROI and, particularly, to preface "each passage of Agent Hughes’s report of the interview” with these words: "Agent Hughes reports that the [plaintiff] stated at the March 26, 1981 interview____" Id. at 12.

5 . Doe charged that Hughes had engaged in "sexual misconduct” during the March 1981 interview and implied that her reaction caused him to distort and falsify the interview report. The State Department promptly investigated this charge. It reviewed Doe’s written statements relating to the sexual misconduct accusation, and it conducted a transcribed interview with Doe in the presence of counsel. Based on this investigation, the Department found Doe’s allegations of sexual misconduct on the part of agent Hughes to be "without merit.” Supplemental Report of Investigation, supra note 2, at 20, reproduced in J.A. at 48. Doe does not challenge that fact finding.

6 . Memorandum to Marvin L. Garrett, Jr., Deputy Assistant Secretary for Security, from Caron A. McConnon, Acting Chief (undated), at 16, reproduced in J.A. at 49, 64.

7 . Id. Earlier in the Department’s response to Doe’s request for amendment of the March 1981 ROI, State explained with particularity, that ”[t]here is no indication that Agent Hughes acted in any manner other than what was expected of him.” Id. at 12, reproduced in J.A. at 60.

8 . Doe cites in her complaint only two Privacy Act sections: 5 U.S.C. § 552a(e)(5), set out in the text on this page (requirements imposed on agencies regarding record maintenance), and 5 U.S.C. § 552a(g)(5) (general prescriptions on actions "to enforce any liability created under this section"), Complaint paras. 3, 29, and does not delineate two separate "actions.” We acknowledge, however, that Doe’s complaint does seek two kinds of affirmative relief — injunctive relief in the form of expungement of the March 1981 ROI, and damages. See Complaint, Prayer for Relief. Judge Mikva’s dissent entitles the first remedy an “amendment action” under 5 U.S.C. § 552a(g)(l)(A) & (g)(2)(A), and the second, a "redress action” under 5 U.S.C. § 552a(g)(l)(C) A (g)(4). See Dissent of Judge Mikva at 707, 712-13. Nonetheless, whether the nature of the relief sought is injunctive or monetary, the standard against which the accuracy of the record is measured remains constant. That standard is found in 5 U.S.C. § 552a(e)(5) and reiterated in 5 U.S.C. § 552a(g)(l)(C). See infra note 10.

9 . See also Doe v. United States Civil Service Comm’n, 483 F.Supp. 539, 578-79 (S.D.N.Y. 1980) (court is authorized to take supplemental evidence in aid of its own, independent determination whether a record should be amended, but need not "sit as trier of fact while the plaintiff cross-examines the two sources who spoke against her”). The expression "de novo” may also be used when no record supplementation is involved, but the legal issue presented is to be reviewed nondeferentially. See, e.g., Commodity Futures Trading Comm’n v. Schor, — U.S. -, 106 S.Ct. 3245, 3259, 92 L.Ed.2d 675 (1986) (legal rulings of the CFTC are subject to de novo review). But cf. McGehee v. Casey, 718 F.2d 1137, 1148 (D.C.Cir.1983) (Wald, J.) ("reviewing courts should conduct a de novo review of [CIA] classification decision, while giving deference to reasoned and detailed CIA explanations of that classification decision”).

10 . Section 552a(g)(l)(C), in the portion of the Act dealing with civil remedies, tracks in large part the language of § 552a(e)(5), in the portion on agency record-keeping obligations. The latter uses the phrase "reasonably necessary to assure fairness”; the former does not include the word “reasonably.” We attribute no substantive significance, for the issue at hand, to the omission of the word “reasonably” in § 552a(g)(l)(C). The key element of the standard — the necessity "to assure fairness in any determination” — calls for a balanced judgment, one inherently involving a reasonableness criterion. See Edison v. Department of the Army, 672 F.2d 840, 843 (11th Cir.1982) ("reasonableness" standard explicit in 5 U.S.C. § 552a(e)(5) is implicit in 5 U.S.C. § 552a(g)(1)(C)).

My dissenting colleagues comprehend de novo review in this case to necessitate trial in the district court. But if the court is to make anew the same judgment earlier made by the agency, and the Privacy Act concededly does not oblige the agency to hold a hearing, see supra note 3, then it is difficult to understand why a court must accord a first hearing to something the agency was not obliged to hear, and in fact did not hear. As cases cited supra in note 9 and accompanying text (Augustine, Clayton, Schor) indicate, de novo review, in diverse contexts, does not entail any trial-type hearing.

11 . As we have pointed out, see supra note 10, for the purpose at hand, the standards for the record-keeping agency, 5 U.S.C. § 552a(e)(5), and for the reviewing court, 5 U.S.C. § 552a(g)(l)(C), are substantively the same. We therefore attribute no significance to the district court’s citation to the former rather than the latter subsection in reporting that the court had determined de novo not “what was said during the March 26, 1981 interview," but whether the Department had maintained the ROI with the accuracy required "to assure fairness.” See Doe, supra, slip op. at 10.

12 . See United States v. Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 1414, 10 L.Ed.2d 652 (1963) (distinguishing between de novo review on the one hand, and "arbitrary and capricious" or “substantial evidence” review on the other).

13 . We emphatically do not “claim” or hold that "the court need only ascertain the reasonableness or fairness of the Department’s response to Doe’s request." See Dissent of Judge Mikva at 708, 711. What the court must ascertain, we reiterate, is whether the record is maintained with the accuracy "necessary to assure fairness.” 5 U.S.C. §§ 552a(e)(5) & (g)(1)(C).

14 . The reasonable record-keeper, guided by a standard stressing fairness, should be particularly vigilant in requiring independent, reliable verification of undocumented damaging bits of information gathered from third parties. See Doe v. United States Civil Service Comm’n, 483 F.Supp. 539, 579-80 (S.D.N.Y.1980).

15 . Memorandum to Marvin L. Garrett, Jr., supra note 6, at 1, reproduced in J.A. at 49 ("It is important to establish credibility based on factual record, if possible, since only [Doe] and the reporting agent ... were present during the personal interview____”).

16 . The Department acknowledged that Doe was correct on these matters:

1) Doe's last post prior to retirement was not the Panama Canal Zone;

2) Doe had not withdrawn from her courses at Daytona Beach Community College;

3) Doe had not been denied admission to Georgetown University’s School of Foreign Service prior to enrolling at Daytona Community College.

In addition, Agent Hughes conceded that Doe had not used the term "fraudulent” in reference to her actions.

The Department also determined, contrary to Doe’s assertions, that:

1) Doe had in fact filed a disability claim for VA compensation;

2) Doe had been diagnosed as a manic depressive;

3) Doe did receive compensation based, in part, on that manic depressive illness.

Id. at 6-7, 14 reproduced in J.A. at 54-55, 62.

17 . See supra note 7.

18 . Cf. A. Strindberg, A Dream Play 48 (M. Meyer tr. 1973) (In an exchange on truth, the Philosophy Dean asks: "What is truth?" The Law Dean replies: "That which can be proved by two witnesses.”).

19 . Under the "two actions” theory the Dissent of Judge Mikva delineates, see supra note 8, our "construction of judicial review may be an appropriate approach to a redress action,” but "is [a] wholly inappropriate [approach] for an amendment case.” Dissent of Judge Mikva at 712. We have already stated that the accuracy standard is the same in both cases. See supra note 8. And we are indeed unwilling to attribute to “the 93rd Congress,” see Dissent of Judge Mikva at 706, a judicial review procedure pursuant to which an agency could be called to account for determining not to amend a record, 5 U.S.C. § 552a(g)(l)(A), even though it would be "appropriate” for the court simultaneously to hold that the record in question is indeed maintained "with such accuracy ... as is necessary to assure fairness.” Id. § 552a(g)(l)(C). If a record is maintained with the requisite accuracy, then it needs no amendment. Conversely, if the record needs to be amended, then it is not maintained with the requisite accuracy. The endeavor in Judge Mikva’s dissent to uncouple the requirement to amend from the requirement to maintain accurate records simply will not wash. See supra note 8.

20 . Chief Judge Wald, in her separate dissent, races away from the case that is, then lingers over "horribles” she describes in its stead. She asserts that we allow government to pack files with alleged damaging admissions "whatever the circumstances,” and she dramatizes her concern by turning and returning to the example of “Communist associations, homosexual relations, or child abuse." Dissent of Chief Judge Wald at 704-05. Assertions of such associations or conduct, however, generally are susceptible of objective inquiry, so that an agency would be remiss — it would dishonor the Privacy Act standard of “accuracy ... necessary to assure fairness" — if it sought no independent verification. We have underscored this very point. See supra at 699-700.

Contrast the case at hand. The State Department proceeded from conceded fact: Doe wrote "no” when asked by State whether she had ever been treated for a mental condition. See supra p. 696. By careful checking or rechecking, the Department also found as fact what Doe had denied, but does not currently contest: she filed a disability claim for VA compensation; she had been diagnosed a manic depressive; she received compensation based in part on that illness. See supra note 16. Having made those findings, the Department could take objective inquiry no further. The conflicting assertions it let stand, we reiterate, concerned not what Doe did, e.g., filed an application, joined an association, battered a dependent, but why.

Our decision is indeed narrow and does not purport to decide cases yet unseen. It does not, as Chief Judge Wald supposes, exonerate agencies of "any need to determine the accuracy of [alleged damaging admissions] or their fairness to the individuals.” Dissent of Chief Judge Wald at 702. It is securely cabined by its facts: an experienced agent whose actions and integrity the Department found no tenable reason to question; an agency that diligently investigated all facets of the matter susceptible of objective verification. That is the case before us; we rule on no other today.