<< COB00001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
	ELOUISE PEPION COBELL et al	)
)
	Plaintiffs,	)
	v.	)
)
	GALE A. NORTON, Secretary of	)
	the Interior et al.,	)
)
	Defendants.	)
)
INTERIOR DEFENDANTS' REPLY IN SUPPORT OF INTERIOR'S
MOTION FOR ORDER PERMITTING THE PROVISION OF
hISTORICAL STATEMENTS OF ACCOUNT TO CLASS COUNSEL
The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants," or "Interior") respectfully submit the following reply in support of Interior's
Motion for Order Permitting the Provision of Copies of Historical Statements of Account to
Class Counsel ("Interior's Motion"). To comply with the Privacy Act, 5 U.S.C. § 552a, Interior's
Motion should be granted.
	As describcd in Interior's Motion, Interior has prepared historical statements of account
for approximately 7,900 Individual Indian Money ("IIM") account holders and is preparing to
send them to the account holders as part of Interior's trust responsibility to these beneficiaries. In
Interior's Motion, filed September 10, 2002, Interior sought an order granting Court permission
to send these statements of account to Plaintiffs' counsel, citing Privacy Act concerns. On
September 20, 2002, Plaintiffs filed an opposition to Interior's Motion ("Opposition").'
	In the same paper containing the Opposition, Plaintiffs also moved for a temporary
restraining order and a preliminary injunction ("TRO Motion") to prevent Interior from sending
the statements of account to the account holders. Interior filed its opposition to the TRO Motion
on September 23, 2002, and only addresses the Opposition to Interior's Motion in this reply.
<< COB00002 >>
Plaintiffs do not dispute that the statements of account contain information subject to the Privacy
Act. Plaintiffs simply claim that existing orders of the Court already satis~' Privacy Act concerns
and provide authority to send these statements to Plaintiffs' counsel. Interior believes that
Plaintiffs are mistaken.
	Under the Privacy Act "safe harbor" provision, 5 U.S.C. § 552a(b)(1 1),2 Interior needs an
order authorizing the production of information subject to the Privacy Act before such
information can be sent to someone other than the individual for whom the information was
prepared. The protective order of November 27, 1996 ("Protective Order"), cited by Plaintiffs
(Opposition at 2), provides that after documents containing Privacy Act information are produced
to Plaintiffs' counsel pursuant to an order the information will, or should, be handled as
described in the Protective Order to maintain its confidentiality. The Protective Order itself does
not provide the necessary authority to produce Privacy Act information. That is why the
Protective Order was accompanied by an order dated the same day, the First Order for the
Production of Information, also cited by Plaintiffs (Opposition at 2), that authorized the
production of certain Privacy Act information, not including the information in the statements of
account at issue here. In other words the existence of an order to maintain the confidentiality of
Privacy Act information afler its production — the Protective Order here — does not provide the
necessary authority to produce Privacy Act information in the first place.
	5 U.S.C. § 552a(B)(1 1) 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 — pursuant to
the order of a court of competent jurisdiction."
2
<< COB00003 >>
	The other orders cited by Plaintiffs (Opposition at 2), the December 21, 1999 order and
the September 17, 2002 order, reiterate Interior's obligation to complete an accounting, but do
not provide the necessary specific authority for production of statements of account containing
Privacy Act information to anyone other than the account holder. In short, under the Privacy Act,
Interior needs an order from this Court granting it permission to send the statements of account to
Plaintiffs' counsel. Interior's Motion should be granted.
Dated: September 26, 2002	Respectfully submitted,
ROBERT D. MeCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIEFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
~	2
	ANDRA P.	NER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
CYNTHIA L. ALEXANDER
PHILLIP M. SELIGMAN
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
3
<< COB00004 >>
CERTTFICATE OF SERVICE
	I declare under penalty of perjury that, on September 26, 2002 I served the foregoing
Interior Defendants 'Reply in Support of Interior's Motion for Order Permitting the Provision of
Historical Statements ofAccount to Class Counsel by facsimile, in accordance with their written
request of October 31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
(202) 822-0068	Washington, D.C. 20004
	(202) 318-2372
and by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Copy by Facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Joseph S. Kieffer, III
Special Master Monitor
420 7~ Street, N.W.
Apartment 705
Washington, D.C. 20004
(202) 478-1958
kevin P.