Supreme Court to Decide Important “Informational Privacy” Case

John Chatowski
June 25, 2010 — 812 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

The United States Supreme Court has stepped into the fray in a closely watched case involving the collection of personal information by the National Aeronautics and Space Administration (NASA) from “low risk” contract employees at the California Institute of Technology’s (Caltech) Jet Propulsion Laboratory (JPL). Robert M. Nelson, et al., v. National Aeronautics and Space Administration, et al., Supreme Court Case No. 09-530. While the result of this case will directly impact the extent to which the government can collect background information from its employees and third-party contractors, a broad decision by the Supreme Court may impact other areas of the Court’s “privacy” jurisprudence.

All federal civil service employees undergo a “national agency check with inquiries” (NACI). This was true of NASA, which screened all of its civil service employees, but not its contract employees. In 2000, however, NASA decided that the incomplete screening of its contractor employees “posed a security vulnerability for the agency,” and decided to impose the same baseline NACI for all employees, civil servant or contractor. These rules went into effect at Caltech’s JPL in January 2007. In August 2007, 28 contractor employees filed a class action lawsuit against NASA and others contending that NASA’s newly implemented background investigations were unlawful because (1) NASA did not have statutory authority to impose these regulations on contract employees, (2) the investigations violated the plaintiffs’ Fourth Amendment rights, and (3) the investigations violated the plaintiffs’ right to “informational privacy,” that is, their interest in avoiding disclosure of certain personal information, including alcohol and drug use, counseling, and medical history. The plaintiffs asked Judge Otis Wright of the United States District Court for the Central District of California to preliminarily enjoin the implementation of the investigations. Judge Wright rejected each of the plaintiffs’ above arguments. As to their third, Judge Wright recognized that while the plaintiffs’ informational privacy rights were implicated, they were outweighed by the government’s legitimate security interests.

A unanimous panel of the Ninth Circuit Court of Appeals agreed with Judge Wright’s rejection of the plaintiffs’ first two claims, but reversed as to the third. Robert M. Nelson, et al., v. National Aeronautics and Space Administration, et al., 530 F.3d 865 (9th Cir. 2008). The panel found troubling two areas of inquiry by the government. The first was a requirement that each applicant consent to the sending of an “Investigative Request for Personal Information” form (a “Form 42”) to the applicant’s references, employers, and landlords, which would ask recipients to state if the applicant is honest and trustworthy, and whether the recipient has any information concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional security,” “general behavior or conduct,” or “other matters.” Applicants also were required to complete an “SF 85 Questionnaire” asking for background information, including information about past drug use and any treatment or counseling received.

Regarding the SF 85 Questionnaire, the court of appeals agreed with the government that questions about past drug use were acceptable in light of the government’s security concerns, but it held that the government had not demonstrated a legitimate state interest to compel disclosure of an applicant’s history of treatment and counseling. The court of appeal found even more problematic the government’s Form 42 inquiries. While acknowledging NASA’s “general interest in keeping the JPL facility secure,” the court noted that there was no “specific evidence” in the record to suggest that any of the “low risk” JPL employees pose a security risk. Indeed, the court was particularly concerned with Form 42’s “broad, open ended questions” that would invite recipients to “reveal any negative information of which he or she is aware,” information that has no bearing on the applicant’s identity or security.

The government filed a petition for en banc review by the entire Ninth Circuit, but its motion was denied. Three circuit judges (Judge Maria Callahan, Judge Andrew Kleinfeld, and Chief Judge Alex Kozinski) each wrote dissents from the court’s denial of rehearing en banc. Judge Callahan in particular chastised the panel for failing to “engage in the ‘delicate balancing’ of plaintiffs’ privacy rights and NASA’s legitimate need for information ensuring that those it trusts with access to JPL do not pose an unacceptable safety and security risk.” Robert M. Nelson, et al., v. National Aeronautics and Space Administration, et al., 568 F.3d 1028, 2039 (9th Cir. 2008) (“Nelson II”). On March 8, 2010, the United States Supreme Court agreed to settle the issue.

However the Supreme Court decides this very interesting and timely case, it will not only impact prospective government employees’ informational privacy rights, but it may expand (or restrict) federal privacy rights generally. Or perhaps the Supreme Court will simply answer the broader question Chief Judge Alex Kozinski posed in his dissent from denial in the Ninth Circuit: “Does one really have a free-standing constitutional right to withhold from the government information that others are aware of?” and if not, how can the government be precluded from asking third parties what they know about a person? Nelson II, 568 F.3d at 1053. Either way, the case will certainly garner extensive attention in light of the government’s undisputed national security interests in this area.

John Chatowski

Nixon Peabody LLP