MAGISTRATE RECOMMENDS DENIAL OF SUMMARY JUDGMENT TO IRS AND PLAINTIFF IN DISCLOSURE SUIT.

                    UNITED STATES DISTRICT COURT

[1] Pending before the court ¹ are Plaintiff's and Defendant's Motions for Summary Judgment. The court has considered the motions, all relevant findings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that both Defendant's Motion for Summary Judgment and Plaintiff's Motion for Summary Judgment be DENIED at this time for the reasons set forth below.

I. FACTUAL BACKGROUND

THE PRIOR LAWSUIT

[2] On November 19, 1997, Plaintiff filed an action against the Internal Revenue Service under the Privacy Act, 5 U.S.C. 552a, seeking disclosure of records kept by the IRS concerning Plaintiff's alleged violations of IRS policies and procedures. According to the complaint, Plaintiff sought documents concerning his alleged violations of IRS policies which were maintained in a "secret unofficial personnel folder" by his supervisor. The action was docketed in this district as "Khevaja Nazimuddin v. Internal Revenue Service," H-97-3797.

[3] On November 13, 1998, the parties announced settlement of the lawsuit and requested that it be dismissed, with prejudice. See Docket Entry #27, H-97-3797. On November 19, 1998, the court entered an order of dismissal without prejudice to the right of any party to seek reinstatement within 30 days. See Docket Entry #28, H-97-3797. No reinstatement was sought, and on January 5, 1999, this action was dismissed, with prejudice, by the court. See Docket Entry #29, H-97- 3797. ²

THE PRESENT LAWSUIT

[4] On August 6, 1999, Plaintiff, Khevaja Nazimuddin, proceeding pro se, filed this action against the Internal Revenue Service, again seeking redress for violation of the Privacy Act. In this second suit, Plaintiff claims that portions of three documents which he received in the prior lawsuit were wrongfully redacted.

[5] The three documents in issue are: Document One -- an October 6, 1997, internal memorandum from an anonymous informant to the Plaintiff's supervisor, Douglas Pierre; Document Two -- a November 27, 1997, memorandum of interview conducted by Inspector Donna Vernoskii; and Document Three -- an IRS memorandum documenting conversations between Inspector Vernoski and an anonymous employee informant. Plaintiff seeks disclosure of the redacted portions of Document One and the entirety of Documents Two and Three.

[6] The parties have filed cross motions for summary judgment.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

[7] Pursuant to Fed. R. Civ. P. 56(c), the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant always bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers, admissions, or affidavits which demonstrate the absence of a genuine issue of material fact. Id. at 323. The moving party will be entitled to summary judgment if it can show an absence of essential element of the nonmovant's case. Id. In other words, "a complete failure of proof concerning an essential element of the nonmoving party's case precludes the finding of a genuine issue of material fact." Id.

[8] If the moving party meets this burden, the opposing party must go beyond the pleadings and set forth evidence that designates specific facts showing that there is a genuine issue for trial. Id. at 324. A material fact is a fact which is identified by applicable law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Genuine facts must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. Id. at 250. While evidence used by the nonmoving party to avoid summary judgment need not be in a form admissible at trial, affidavits supporting and opposing summary judgment must be made on personal knowledge and provide facts which would be admissible in evidence. FED. R. Civ. P. 56(e); 477 U.S. at 324.

[9] The court must view the facts and inferences in a light most favorable to the nonmoving party. Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th Cir. 1995). The nonmoving party must show more than some metaphysical doubt as to the material facts. Id. Conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence will not carry this burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

III. ANALYSIS

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[10] The undisputed summary judgment evidence reveals that in 1997 Plaintiff was investigated by his employer, the IRS, for misuse of the IRS Lexis research account. A co-worker had informed Plaintiff's supervisor, under a promise of anonymity, of his belief that Plaintiff misused the IRS Lexis account for personal reasons. The disputed documents were generated as a result of this investigation.

DOCUMENT

[11] Document One is an October 6, 1997, internal memorandum addressed to Douglas Pierre from a co-worker of the Plaintiff. The summary judgment evidence established that the co-worker had verbally advised Pierre about his observations of the Plaintiff and his belief that Plaintiff was violating IRS policy. Pierre requested that the co-worker provide him with a written statement. The co-worker requested anonymity in making the report based on his expressed concern that Plaintiff might harass him as he had previously harassed other co-workers who had reported Plaintiff for perceived violations of IRS policies. Pierre assured the co-worker that he would do his utmost to protect his identity.

[12] In Document One, the co-worker outlined specific observations of Plaintiff's using a government computer and accessing Lexis on what the co-worker believed was personal business. The memo was disclosed to Plaintiff in its entirety with the exception that the co-worker's name was redacted. ³ Plaintiff seeks the name of the anonymous informant. Defendant argues that the redaction of the co-worker's name was rightfully withheld to protect the employee's identity pursuant to 5 U.S.C. section 552a(d)(5).

[13] Exemption (d)(5) shields information compiled in reasonable anticipation of a civil action or proceeding. Defendant argues that a "civil action or proceeding" encompasses "litigation, equal employment opportunity grievances, and agency disciplinary actions." See Varville v. Rubin, 82 A.F.T.R. 2d 98-6142 (D.Conn. 1998) (finding that exemption (d)(5) protected from disclosure a report of investigation of alleged improprieties by Varville in the filling of a job vacancy).

[14] Although summary judgment evidence established that the supervisor requested this document, Defendant has failed to provide competent summary judgment evidence that this document was requested in anticipation of a civil action or proceeding. Defendant also fails to disclose the system of records in which this particular document was located.

DOCUMENTS TWO AND THREE

[15] Document Two is a November 27, 1997, Memorandum of Interview or Activity conducted by IRS Inspector Donna Vernoski. Document Three is an IRS memorandum documenting a conversation between Donna Vernoski and an individual whose name is redacted. Defendant argues that Documents Two and Three are exempt from production under the Privacy Act as they are contained in an exempt system of records maintained by the Treasury Inspector General for Tax Administration ("TIGTA") known as "60.003 -- Conduct Investigation Files, Inspection, Treasury/IRS."

[16] 31 C.F.R. section 1.36 exempts this system of records from the Privacy Act based on the 5 U.S.C section 552a(k)(2). That section states:

     [I]nvestigatory material compiled for law enforcement purposes,

[17] 31 C.F.R. section 1.36(d)(1) referring to the office of the Inspector General states:

     Under 5 U.S.C. 552a(k)(2), the head of any agency may exempt any

[18] However, Defendant provides the court with no competent summary judgment evidence to substantiate the claim that these documents were found in the exempt system of records known as 60.003 -- Conduct Investigation Files. Without any supporting evidence, the court will not infer that these records were, in fact, part of the exempt "Conduct Investigation File" system of records.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

[19] Plaintiff requested summary judgment on January 10, 2000. ⁴ Instead of seeking summary judgment based on undisputed facts, Plaintiff's motion attacks each of Defendant's Answer responses and claims that an IRS agent fabricated evidence or lied about Plaintiff's use of the IRS Lexis account. Although Plaintiff frequently cites to affidavits and exhibits throughout his Motion, the affidavits do not support his allegations and are irrelevant to the Privacy Act claim before this court.

[20] Viewing the facts and inferences in a light most favorable to the nonmoving party, Plaintiff has not met the burden supporting summary judgment on his Privacy Act claim. Thus, Plaintiff's motion for summary judgment must be denied in the present case.

IV. CONCLUSION

[21] Based on the foregoing, the court RECOMMENDS Defendant's Motion for Summary Judgment be DENIED, and Plaintiff's Motion for Summary Judgment be DENIED.

[22] If Defendant has competent summary judgment evidence to support its contention that Documents Two and Three are exempt as "Conduct Investigation Files" or that Document One was prepared in anticipation of a civil action or proceeding, it has five (5) business days from receipt of this Memorandum to submit that evidence in proper form. Plaintiff may file any responsive supplemental summary judgment evidence five (5) business days after he has received Defendant's supplemental pleading. Plaintiff may also supplement the record with competent summary judgment evidence in support of his motion for summary judgment within the same five day period.

[23] The Clerk shall send copies of this Memorandum and Order to the respective parties who have ten (10) days from the receipt thereof to file written objections thereto pursuant to General Order 80-5. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.

[24] The original of any written objections shall be filed with the United States District Clerk, P.O. Box 61010, Houston, Texas, 77208. Copies of such objections shall be mailed to opposing parties and to the chambers of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.

[25] SIGNED at Houston, Texas, this 18th day of August, 2000.

                                   Nancy K. Johnson

² Defendant has not sought to bar the present action on res judicata grounds, hence the court will reach the merits of Plaintiff's cause of action.

³ According to the summary judgment evidence, the identities of the two co-workers who had submitted memoranda to management was disclosed to Plaintiff in documents provided in the prior lawsuit.

⁴ The court recognizes Plaintiff's untimely service of this motion, but due to the deference afforded pro se litigants and the court's determination that no harm occurred, the court addresses only the merits of this motion.