Government Says FBI Exempt From Privacy Protection Law
The Florida socialite whose FBI complaint led to the resignation of Gen. David Petraeus is suing the government for allegedly leaking her private emails to the press and tarnishing her reputation. But the Department of Justice is demanding that the suit be tossed on a technicality.
Until late last year, Jill Kelley was a fixture of Tampa society who regularly hosted parties attended by military leaders from U.S. Central Command. Kelley’s attorneys say she was just doing the right thing when she told the FBI she received anonymous threatening emails, noting that some of the messages contained personal information about Petraeus, who was then director of the CIA, and Gen. John Allen, the top U.S. commander in Afghanistan at the time.
The ensuing investigation revealed the anonymous emails came from Petraeus’ biographer Paula Broadwell, and that Broadwell and Petraeus were having an affair. But it also dredged up thousands of emails between Kelley and Allen, and an anonymous law enforcement official would soon tell the press that some of the messages were sexually explicit. Petraeus would ultimately resign as head of the CIA, and Allen would be stripped of a pending promotion.
Proving a Negative
Kelley and her husband filed suit against the FBI and several other federal agencies in June, stating their reputation was “indelibly tainted.” The suit asks for monetary damages, an official apology and a full accounting of how Kelley’s private emails were collected and leaked.
Kelley’s complaint says she “is consistently referred to as the ‘center’ of the ‘sex scandal’ and is often portrayed as the woman who brought down two American generals. As a result, she — the victim and a participant in none of the bad acts in the sex scandal — has shouldered the blame as the villain in the generals’ downfall.”
But in a court filing last month, the Department of Justice asked a judge to dismiss Kelley’s suit because she failed to substantiate her claims that her privacy was violated.
Kelley’s lawsuit is based in part on the Privacy Act, which establishes rules for federal agencies that handle the personal information of U.S. citizens. In its motion to dismiss, the Justice Department called the Privacy Act a “highly technical” statute from which many of the FBI’s records systems are exempt. The motion doesn’t specifically state that the FBI stored Kelley’s private emails in one of these exempted databases, but rather argues the lawsuit should be dismissed because Kelley can’t prove that it wasn’t.
“Disclosure claims under the Privacy Act are governed by a rule of retrieval – to be actionable, disclosed information about an individual must have been retrieved from a protected system of records,” according to the dismissal motion. “But plaintiffs fail to make allegations to satisfy the retrieval rule, and that omission prevents plaintiffs from stating a claim for a wrongful disclosure.”
Dismissal May Not Be Final
Kelley’s lawsuit details numerous personal, professional and financial opportunities that she and her husband allegedly lost as a result of being unwillingly swept up in the scandal. Nevada attorney Ryan Anderson told Lawyers.com that Kelley still has some legal options if the court grants the government’s dismissal request.
“I do not think Kelley will have a hard time proving damages,” Anderson said. “That said, if the Privacy Act exemption stands, her best bet may be defamation. If Kelley can prove that the FBI knew the emails it leaked gave one impression, while knowing the truth was different, she might have a viable defamation claim. No matter what, she is up against long odds.”
In a scathing statement, Kelley’s attorney, Alan Raul, was incredulous that the Justice Department would base its argument on the Privacy Act exemption “without any embarrassment” and accused the government of being “willing to defend the indefensible.”
“DOJ argues, unbelievably, that the Kelley’s [sic] simply ‘do not appreciate the broad scope of the law enforcement exception to that Privacy Act provision,’” Raul said, concluding that “the Justice Department, FBI and Defense Department don’t get it.”
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