Smithsonian Institution not subject to FOI, Privacy Acts

WASHINGTON, D.C.–The Smithsonian Institution is not a government agency subject to the federal Freedom of Information and Privacy Acts, a unanimous panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) ruled in mid-October. The court said that the Smithsonian is not an agency of the executive branch covered by those acts.

The Privacy Act case brought by a Smithsonian employee did not actually involve questions of access to records held by the Smithsonian, but because the “agency” for both acts is defined within the FOI Act, the court addressed both statutes within its decision.

The appeals panel found that the Smithsonian lacks both the “authority” necessary for it to qualify as an authority of the government of the United States and the executive department status necessary to bring it under the definition of “agency.”

Margaret Dong, a Smithsonian employee at the Hirshhorn Museum and Sculpture Garden sometimes serves as a courier for art which the Hirshhorn lends to other institutions. She accompanied the painting “Circus Horse” by Joan Miro from Barcelona to the Museum of Modern Art in September 1993.

Museum procedures require employees to obtain permission from the director of the Hirshhorn before they go on courier missions. Dong hoped to avoid friction with a co-worker, whom she believed made trouble while she was on courier duty, and took annual leave to perform the courier duties.

Without confronting Dong, her supervisor Douglas Robinson and Hirshhorn administrator Beverly Pierce telephoned the registrar at the New York museum to question whether Dong had acted as a courier and then suspended her for five days for not obtaining permission to do so.

The Privacy Act requires federal agency supervisors who contemplate action against an employee to gather information directly from the employee to the greatest extent practicable. Dong sued the Smithsonian for violation of her Privacy Act rights in March 1994 in federal District Court in Washington, D.C. In February 1995 that court ruled that the Smithsonian was an agency subject to the act and in October 1996 awarded her $2,500. The lower court had found that Congress intended in amending the FOI Act in 1974 to broaden the definition of agency. It noted the 1992 ruling in Cotton v. Adams that the Smithsonian was an agency subject to the FOI Act. However, an appeals panel reviewing a question of attorneys fees in that case questioned whether the Smithsonian is subject to the FOI Act. Portions of that case, which involves access to Inspector General reports on a buyer and a merchandise manager for the Museum Shops, is on appeal. (Dong v. The Smithsonian Institution; Dong’s Counsel: Joseph Kaplan, Washington, D.C.)