Kerry apparently signed Form 180 for Brinkley, but Brinkley is cooperating in the cover-up

I had always assumed that Sen. Kerry had himself provided his biographer Douglas Brinkley with Kerry's official military records that were already in Sen. Kerry's hands.  But in reviewing Brinkley's citations and references for ToD, I came upon this statement at page 520 of his "Acknowledgements" section (boldface mine):

Also with Kerry's permission, I obtained his Navy records and have used them as a reliable source.

I don't know any other way to interpret this than to presume that Kerry signed, and gave to Brinkley for Brinkley's submission to the DoD, Standard Form 180.  Brinkley's wording — "I obtained" — indicates that he submitted the form and that the results were sent directly to him by the DoD.

If so, I believe that a strong argument can be made that by authorizing the DoD to release these confidential materials directly at the request, and into the hands of, one historian, Kerry thereby waived any and all rights to insist that he has a privilege to prevent their release to other interested members of the press, the academic community of historians, and the public.  Brinkley's not Kerry's lawyer, wife, priest, or otherwise in a position such that sharing privileged information with him might not constitute a waiver.  [Important Note: as discussed in an update below, I haven't been able to find caselaw under the Privacy Act of 1974 to support this broad waiver argument, and it may well be incorrect.]

The public disclosure of these records via Standard Form 180 is precisely what the SwiftVets have been demanding since May 2004.  WaPo's Michael Dobbs has pointed out Kerry's refusal to release these records — although he didn't use the perfectly apt phrases "cover-up" or "stonewall" — in the same August 22nd article that Kerry's sympathizers in the media claim to have "knocked down" the SwiftVets' claims:

Some of the mystery surrounding exactly what happened on the Bay Hap River in March 1969 could be resolved by the full release of all relevant records and personal diaries. Much information is available from the Web sites of the Kerry campaign and Swift Boat Veterans for Truth, and the Navy archives. But both the Kerry and anti-Kerry camps continue to deny or ignore requests for other relevant documents, including Kerry's personal reminiscences (shared only with biographer Brinkley), the boat log of PCF-94 compiled by Medeiros (shared only with Brinkley) and the Chenoweth diary.

Although Kerry campaign officials insist that they have published Kerry's full military records on their Web site (with the exception of medical records shown briefly to reporters earlier this year), they have not permitted independent access to his original Navy records. A Freedom of Information Act request by The Post for Kerry's records produced six pages of information. A spokesman for the Navy Personnel Command, Mike McClellan, said he was not authorized to release the full file, which consists of at least a hundred pages.

Brinkley insists — both in ToD's Author's Note (at page xiii) and in its Acknowledgements (at page 520) — that Kerry "had no editorial control" over Brinkley's book manuscript or the entire biography project.  Fine.  If that's so, and if Brinkley didn't obtain Kerry's military records from Kerry as part of the personal archives subject to Kerry's exclusive control and subject to some sort of contractual restriction that would bind Brinkley, then nothing prevents Brinkley from handing them over to WaPo's Dobbs or any other reporter (or blogger, or SwiftVet). 

Nothing, that is, except a partisan desire to help Kerry succeed in his cover-up.

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Update (Fri Sep 3 @ 11pm):  My working assumption in writing this post is that the Privacy Act of 1974, 5 U.S.C. § 552a, is what creates Sen. Kerry's right to maintain the privacy of his military records.  This is similar to, but not quite the same as, common law rights to assert privileges against compelled disclosure (for instance, attorney-client).  Although I have a good familiarity with privileges and the ways in which they may be deliberately and inadvertantly waived, I'm not an expert on the Privacy Act.  Hence the qualification of my suggestion above that a "strong argument" can be made that if Kerry authorized Brinkley to receive his military records with Form 180, he's waived his right to continue to insist upon those records' privacy.  I'm doing some digging in the caselaw to see if this precise issue has come up under the Privacy Act, and may update this post, or start a new post, depending on what I find.

Update (Fri Sep 3 @ 11:50pm):  The relevant portion of the statute is 5 U.S.C. § 552a(b), which provides:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be [followed by a number of exceptions that don't appear to apply].

The question is whether Kerry's prior written consent for DoD to disclose Kerry's records directly to Brinkley would operate as a broad waiver and, in effect, consent for DoD to disclose Kerry's records to anyone else who might later ask.  Alas, and somewhat to my surprise, I cannot find a case in the annotations to the statute that's directly on point in either direction.  But given the prohibitory language of the statute as it applies to government agencies — and, frankly, given the purposes of the statute — it may be too great a stretch to argue that "consent for anyone equals consent for everyone."  This may indeed be a situation where a statutory privacy right differs from a common-law privilege.  I've deleted the phrase "thereby waiving confidentiality" from the original title of this post.  Mea culpa; I plead guilty to probably going off half-baked on the broad waiver argument.

My other main point in this post, however, I think is still valid.  On its face, once Brinkley has the records, nothing in the Privacy Act would appear to prevent him from making whatever further distribution of them he chooses.  {return to text}