ANNA LOBISCH, Individually and as Personal Representative of the ESTATE OF A.L., a Minor, Deceased, and as Next Friend of Z.L., a Minor; and JAMES LOBISCH, Individually, Plaintiffs, v. UNITED STATES OF AMERICA; ISLAND PALM COMMUNITIES, LLC, a Foreign Limited Liability Company; and DOE DEFENDANTS 1-50, Defendants Civil No. 20-00370 HG-KJM United States District Court, D. Hawai‘i Filed October 04, 2021 Counsel Amalia L. Fenton, Mark S. Davis, Michael K. Livingston, James Blaine Rogers, III, Loretta A. Sheehan, Davis Levin Livingston Grande, Honolulu, HI, for Plaintiffs. Harry Yee, Office of the United States Attorney, Honolulu, HI, John F. Lopez, U.S. Army Legal Services Agency, Litigation Division, Fort Belvoir, VA, for Defendant United States of America. Shannon L. Wack, Roeca Luria Shin LLP, Honolulu, HI, for Defendant Island Palm Communities, LLC. Mansfield, Kenneth J., United States Magistrate Judge ORDER GRANTING PLAINTIFFS’ MOTION FOR SUBPOENA PURSUANT TO 5 U.S.C. § 552a(b)(11) *1 On September 8, 2021, Plaintiffs James Lobisch and Anna Lobisch, Individually, and as Personal Representative for the Estate of her deceased daughter, Abigail Lobisch, and as Next Friend of her son, Zachariah Lobisch (together, “Plaintiffs”) filed a Motion for Subpoena Pursuant to 5 U.S.C. § 552a(b)(11) (“Motion”). ECF No. 102. Defendant United States of America (“USA”) filed an Opposition to the Motion on September 22, 2021. ECF No. 105. Plaintiffs filed a Reply on October 1, 2021. ECF No. 106. The Court elects to decide this matter without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii. For the reasons set forth below, the Court GRANTS the Motion. DISCUSSION The Motion concerns Plaintiffs’ ongoing efforts to obtain records, documents, materials, and electronic data regarding non-party U.S. Navy Chief Petty Officer Aaron Villa and Ms. Denise Villa related to their military housing while stationed at Naval Air Station Whidbey Island and any childcare provided therein (the “Whidbey Records”). The Whidbey Records have already been the subject of one discovery motion. ECF No. 97. Plaintiffs first sought to obtain the Whidbey Records via party discovery from the USA, which the USA successfully opposed. Id. Plaintiffs now seek the same discovery via a Federal Rule of Civil Procedure 45 subpoena issued pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a(b) (“Privacy Act”). The Privacy Act provides that “(n)o 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” except in certain situations. 5 U.S.C. § 552a(b). Among the exceptions are where disclosure is made “pursuant to the order of a court of competent jurisdiction[.]” 5 U.S.C. § 552a(b)(11). The Privacy Act does not prevent discovery; rather it requires the party seeking covered discovery to comply with the Act. Plaintiffs have done so here. The Whidbey Records are relevant and proportional to the needs of the case. The Government does not argue otherwise, but it continues to do everything it can procedurally to prevent production of the Whidbey Records. After (i) refusing to produce the Whidbey Records itself, and (ii) repeatedly directing Plaintiffs to subpoena the Whidbey Records – both in discovery responses and in two meet-and-confers – the Government now claims that a court order is premature because Plaintiffs have not yet subpoenaed the Whidbey Records. The Government also argues that Plaintiffs “could” seek consent from the Villas before seeking a court-ordered subpoena. Plaintiffs seek a court-ordered subpoena pursuant to the plain language of the Privacy Act and the cases interpreting it. The Court agrees with Plaintiffs’ analysis. Either a court order or the Villas’ consent is necessary before the Whidbey Records may be released. 5 U.S.C.§ 552a(b). To simply issue a subpoena – as the Government urges – would appear to violate the Privacy Act. Though the Government is correct that Plaintiffs “could” seek the Villas’ consent to the subpoena, Plaintiffs do not have to take that route. The Privacy Act expressly permits seeking a court-ordered subpoena. Given that Plaintiffs have been trying to obtain these records for nearly a year – and that they appear relevant and proportional – the Court will not require Plaintiffs to attempt to obtain the Villas’ consent. The stature permits this approach. *2 Lastly, the Court concurs that the U.S. Navy can appropriately designate records as confidential pursuant to the Stipulated Protective Order entered in this case, ECF No. 65, thereby alleviating the Government's privacy concerns of non-parties. The Court directs Plaintiffs to serve a copy of the Stipulated Protective Order with the subpoena it serves upon the U.S. Navy. Accordingly, for the foregoing reasons and authorities, the Court GRANTS Plaintiffs’ Motion and ORDERS that a subpoena issue to the U.S. Navy for the Whidbey Records in the form attached as Exhibit “A” to the Motion. The Court FURTHER ORDERS that Plaintiffs serve a copy of the Stipulated Protective Order with the subpoena it serves upon the U.S. Navy. IT IS SO ORDERED.