Q:
About 3 months ago, I filed a records-amendment request with a VA hospital, asking them to remove certain information. Under the federal statute, the hospital was required within a certain number of days to acknowledge in writing its receipt of my request and either make the requested corrections or explain its refusal to do so and permit and permit administrative review of the refusal. The hospital’s response was grossly out of the required time frame. Do I have cause of action for statutory damages?
A:
You may have a cause of action for any agency’s failure to timely respond to a request per the Privacy Act to amend records, and for an agency’s denial of your request to amend a record pertaining to you. The Privacy Act affords the right to file a civil action in U.S. district court including but not limited to the following circumstances: an agency declines an individual’s request to amend a record about that individual that is contained within a system of records see 5 U.S.C. § 552a(g)(1)(A), and an agency fails to comply with any provision of the Privacy Act. See 5 U.S.C. § 552a(g)(1)(D).
If you prevail on your claim that the agency improperly declined your request to amend a record pertaining to you, contained within a system of records, the court may order the agency to amend the record and award attorney’s fees and costs. See 5 U.S.C. § 552a(g)(2). If you prevail on your claim that the agency violated provisions of the Privacy Act by failing to timely respond to your request to amend a record pertaining to you that is contained within a system of records, you must also prove that the agency “acted in a manner which was intentional or willful.” See 5 U.S.C. § 552a(g)(4). If the court determines that the agency’s failure to timely respond to your request to amend a record was “intentional or willful,” then you will be entitled to an award of damages “equal to the sum of actual damages sustained” by you, which will require you to prove how you were harmed or damaged by the agency’s intentional or willful untimely response, and an award of attorney’s fees and cost.
This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.
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