National Aeronautics and Space Administration v Robert M. Nelson

Respondents were twenty-eight Jet Propulsion Laboratory (JPL) employees in Pasadena, California. JPL is a NASA facility staffed exclusively by contract employees. NASA’s workforce numbers in the tens of thousands of employees. Contract employees play an important role in NASA’s mission, and their duties are functionally equivalent to those performed by civil servants. NASA owns JPL, but the California Institute of Technology (Cal Tech) operate the facility under a Government contract.

In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for federal employees, including contractor employees.  The Department of Commerce implemented this directive by mandating that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI). The process begin when the applicant or employee fill out a form questionnaire. Employees who work in “non sensitive” positions (as all respondents in the present case) complete Standard Form 85 (SF–85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non-Sensitive Positions. Most of the questions on SF–85 sought basic biographical information: name, address, prior residences, education, employment history, and personal and professional references. The form also asked about citizenship, selective service registration, and military service. The last question asked whether the employee had “used, possessed, supplied, or manufactured illegal drugs” in the last year. If the answer was yes, the employee must provide details, including information about any treatment or counseling received. A truthful response, the form noted, could not be used as evidence against the employee in a criminal proceeding. Once a completed SF–85 was on file, the agency check and inquiries began. The Government run the information provided by the employee through FBI and other federal-agency databases. It also send out form questionnaires to the former employers, schools, landlords, and references listed on SF–85.

Form 42 is a two-page document that explain to the reference that your name had been provided by a particular employee or applicant to help the Government determine that person’s suitability for employment or a security clearance. After several preliminary questions about the extent of the reference’s associations with the employee, the form asked if the reference had any reason to question  the employee’s honesty or trustworthiness. It also asked if the reference knew of any adverse information concerning the employee’s violations of the law etc.

All responses to SF–85 and Form 42 are subject to the protections of the Privacy Act. The Act authorize the Government to keep records pertaining to an individual only when they are relevant and necessary to an end required to be accomplished  by law. 5 U. S. C. §552a(e)(1). Individuals are permitted to access their records and request amendments to them. §§552a(d)(1),(2). Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual’s written consent. §552a(b). Respondents brought the suit claiming that the background-check process violated a constitutional right to informational privacy. The  District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal and later reversed the District Court’s order. The court held that portions of both SF–85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. The court held that the open-ended questions like the drug-treatment question on SF–85, likely violate respondents’ informational-privacy rights. The Ninth Circuit denied rehearing en banc. Supreme Court granted certiorari.

After discussing Whalen v. Roe, 429 U. S. 589 and Nixon v. Administrator of General Services, 433 U. S. 425 in detail, the Supreme Court held that the Government could ask reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that was subject to the Privacy Act’s safeguards against public disclosure. When the Government asked respondents and their references to fill out SF–85 and Form 42, it did not exercise its sovereign power to regulate or license [Cafeteria & Restaurant Workers v. McElroy, 367  U. S. 886, 896 (1961)]. Rather, the Government conducted the challenged background checks in its capacity as proprietor and manager of its internal operation.

The Supreme Court further held that the questions challenged by respondents were part of a standard employment background check of the sort used by millions of private employers. And the particular investigations challenged in the case arose from a decision to extend that requirement to federal contract employees requiring long-term access to federal facilities. Respondents unsuccessfully argued that because they were contract employees and not civil servants the Government’s broad authority in managing its affairs should apply with diminished force. The Supreme Court thus concluded that the challenged portions of both SF–85 and Form 42 consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations.

 As to SF–85, the only part of the form challenged was its request for information about “any treatment or counseling received” for illegal-drug use within the previous year. The “treatment or counseling” question was a follow up to SF–85’s inquiry into whether the employee has “used, possessed, supplied, or manufactured illegal drugs” during the past year. The Supreme Court concluded that Government had good reason to ask employees about their recent illegal-drug use. Like any employer, the Government was entitled to have its projects staffed by reliable, law-abiding persons. In context, the follow-up question on “treatment or counseling” for recent illegal-drug use was also held to be a reasonable, employment-related inquiry.

The Supreme Court held that not only were SF–85 and Form 42 reasonable in light of the Government interests at stake, they were also subject to substantial protections against disclosure to the public. Notwithstanding the safeguards, respondents argued that statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), left its protections too porous to supply a meaningful check against unwarranted disclosures, but the Supreme Court held that respondents’ reliance on the exceptions rested on an incorrect reading of both the Court’s precedents and the terms of the Privacy Act.  The Supreme Court in Whalen and Nixon had referred approvingly to statutory or regulatory protections against unwarranted disclosures and undue dissemination of personal information collected by the Government. The mere fact that the Privacy Act’s nondisclosure requirement was subject to exceptions did not show that the statute provide insufficient protection against public disclosure. Nor did the substance of the routine use exception relied on by respondents created any undue risk of public dissemination as none of the authorized routine uses of respondents’ background-check information allowed for release to the public. Citing past violations of the Privacy Act, respondents unsuccessfully argued that it was possible that their personal information could be disclosed as a result of a breach. The Court noted that  mere possibility that security measures will fail provide no “proper ground” for a broad-based attack on government information-collection practices.

Thus in light of the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, the Supreme Court concluded that the Government’s inquiries did not violate a constitutional right to informational privacy. Thus the judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion.