OVERVIEW OF THE PRIVACY ACT OF 1974

AGENCY REQUIREMENTS

Each agency that maintains a system of records shall--

G. 5 U.S.C.  552a(e)(7)

"maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity."

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The OMB Guidelines advise agencies in determining whether a particular activity constitutes exercise of a right guaranteed by the First Amendment to "apply the broadest reasonable interpretation." 40 Fed. Reg. 28,948, 28,965 (1975); see also 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 860. As noted above, Albright v. United States, 631 F.2d 915, 918-20 (D.C. Cir. 1980), establishes that the record at issue need not be within a system of records to violate subsection (e)(7); see also MacPherson v. IRS, 803 F.2d 479, 481 (9th Cir. 1986); Boyd v. Secretary of the Navy, 709 F.2d 684, 687 (11th Cir. 1983) (per curiam); Clarkson v. IRS, 678 F.2d 1368, 1373-77 (11th Cir. 1982). See also discussion under "System of Records" definition, above.

However, the record at issue "must implicate an individual's First Amendment rights." Boyd, 709 F.2d at 684; accord Banks v. Garrett, 901 F.2d 1084, 1089 (Fed. Cir. 1990); see also Reuber v. United States, 829 F.2d 133, 142-43 (D.C. Cir. 1987) (noting threshold requirement that record itself must describe First Amendment-protected activity); Pototsky v. Department of the Navy, 717 F. Supp. 20, 22 (D. Mass. 1989) (same), aff'd, 907 F.2d 142 (1st Cir. 1990) (unpublished table decision). Thus, subsection (e)(7) is not triggered in the first place unless the record describes First Amendment-protected activity. See, e.g., England v. Commissioner, 798 F.2d 350, 352-53 (9th Cir. 1986) (record identifying individual as having "tax protester" status does not describe how individual exercises First Amendment rights); Weeden v. Frank, No. 1:91CV0016, slip op. at 7-8 (N.D. Ohio Apr. 10, 1992) (to read subsection (e)(7) as requiring privacy waiver for agency to even file plaintiff's request for religious accommodation is "a broad and unreasonable interpretation of subsection (e)(7)"; however, agency would need to obtain waiver to collect information to verify plaintiff's exercise of religious beliefs), aff'd, 16 F.3d 1223 (6th Cir. 1994) (unpublished table decision); Cloud v. Heckler, 3 Gov't Disclosure Serv. (P-H)  83,230, at 83,962 (W.D. Ark. Apr. 21, 1983) (maintenance of employee's letters criticizing agency--written while on duty--does not violate subsection (e)(7) because "[p]oor judgment is not protected by the First Amendment").

Assuming that the challenged record itself describes activity protected by the First Amendment, subsection (e)(7) is violated unless maintenance of the record is:

(1) expressly authorized by statute, see, e.g., Abernethy v. IRS, 909 F. Supp. 1562, 1570 (N.D. Ga. 1995) (IRS "authorized by statute" to maintain copies of documents relevant to processing of plaintiff's requests under FOIA and Privacy Act, which both "provide implied authorization to federal agencies to maintain copies for their own records of the documents which are released to requesters under those Acts"), aff'd per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997); Hass v. United States Air Force, 848 F. Supp. 926, 930-31 (D. Kan. 1994) (agency's maintenance of FOIA and PA requests "cannot logically violate the Privacy Act"); Attorney Gen. of the United States v. Irish N. Aid Comm., No. 77-708, 1977 U.S. Dist. LEXIS 13581, at *14 (S.D.N.Y. Oct. 7, 1977) (Foreign Agents Registration Act); OMB Guidelines, 40 Fed. Reg. at 28,965 (Immigration and Nationality Act); cf. Abernethy, 909 F. Supp. at 1570 (maintenance of documents in congressional communications files "does not violate the Privacy Act" because IRS "must respond to Congressional inquiries" and maintenance was necessary to carry out that responsibility (citing Internal Revenue Manual 1(15)29, Chapter 500, Congressional Communications)); Gang v. United States Civil Serv. Comm'n, No. 76-1263, slip op. at 5-7 & n.5 (D.D.C. May 10, 1977) (recognizing that 5 U.S.C. 7311, which prohibits individual from holding position with federal government if he advocates--or is member of organization that he knows advocates--overthrow of government, may be read together with subsection (e)(7) as permitting maintenance of files relating to membership in such groups, but ruling that "it cannot fairly be read to permit wholesale maintenance of all materials relating to political beliefs, association, and religion"; nor does 5 U.S.C.  3301, which authorizes President to ascertain fitness of federal applicants for employment as to character, provide authorization for maintenance of such information); or

(2) expressly authorized by the individual about whom the record is maintained, see Abernethy, 909 F. Supp. at 1570 ("Plaintiff authorized the maintenance of the documents at issue by submitting copies to various components of the Defendant IRS."); OMB Guidelines, 40 Fed. Reg. at 28,965 ("volunteered" information is properly maintained); see also Radford v. Social Sec. Admin., No. 81-4099, slip op. at 4-5 (D. Kan. July 11, 1985) (plaintiff's publication of contents of offending record does not constitute "express authorization"); Murphy v. NSA, 2 Gov't Disclosure Serv. (P-H)  81,389, at 82,036 (D.D.C. Sept. 29, 1981) (consent to maintain may be withdrawn); cf. Weeden v. Frank, No. 93-3681, 1994 WL 47137, at *2 (6th Cir. Feb. 16, 1994) (Postal Service's procedure requiring individual to expressly waive subsection (e)(7) Privacy Act rights in order to allow agency to collect information regarding employee's exercise of religious beliefs so that accommodation could be established held not unreasonable); or

(3) pertinent to and within the scope of an authorized law enforcement activity.

Perhaps the leading precedent in the early case law on the "law enforcement activity" exception is Patterson v. FBI, 893 F.2d 595, 602-03 (3d Cir. 1990), a case that attracted national media attention because of its unusual factual background: An elementary school student, in the lawful exercise of his constitutional rights to write an encyclopedia of the world based upon requests to 169 countries for information, became the subject of an FBI national security investigation. The Court of Appeals for the Third Circuit, in affirming the dismissal of the student's subsection (e)(7) claim, ruled that a standard of "relevance" to a lawful law enforcement activity is "more consistent with Congress's intent and will prove to be a more manageable standard than employing one based on ad-hoc review." Id. at 603.

The "relevance" standard articulated in Patterson had earlier been recognized by the Court of Appeals for the Sixth Circuit in Jabara v. Webster, 691 F.2d 272, 279-80 (6th Cir. 1982), a case involving a challenge to the FBI's maintenance of investigative records regarding surveillance of the plaintiff's overseas communications. In Jabara, the Sixth Circuit vacated as "too narrow" the district court's ruling that the exception is limited to "investigation of past, present or future criminal activity." Id. It held that the exception applies where the record is "relevant to an authorized criminal investigation or to an authorized intelligence or administrative one." Id. at 280.

In MacPherson v. IRS, 803 F.2d at 482-85, the Court of Appeals for the Ninth Circuit ruled that the applicability of the exception could be assessed only on an "individual, case-by-case basis" and that a "hard and fast standard" was inappropriate. On the facts before it, however, the Ninth Circuit upheld the maintenance of notes and purchased tapes of a tax protester's speech as "necessary to give the IRS [and Justice Department] a complete and representative picture of the events," notwithstanding that no investigation of a specific violation of law was involved and no past, present or anticipated illegal conduct was revealed or even suspected. Id. The Ninth Circuit cautioned, though, that its holding was a narrow one tied to the specific facts before it. Id. at 485 n.9.

In Clarkson v. IRS, 678 F.2d at 1374-75--a case involving facts similar to MacPherson in that it likewise involved a challenge to the IRS's maintenance of records regarding surveillance of a tax protester's speech--the Court of Appeals for the Eleventh Circuit quoted with approval the standard set forth by the district court decision in Jabara (subsequently vacated and remanded by the Sixth Circuit) and held that the exception does not apply if the record is "unconnected to any investigation of past, present or anticipated violations of statutes [the agency] is authorized to enforce." On remand, the district court upheld the IRS's maintenance of the surveillance records as "connected to anticipated violations of the tax statutes" inasmuch as such records "provide information relating to suggested methods of avoiding tax liability" and aid in the "identification of potential tax violators." Clarkson v. IRS, No. C79-642A, slip op. at 6-10 (N.D. Ga. Dec. 27, 1984), aff'd per curiam, 811 F.2d 1396 (11th Cir. 1987); accord Tate v. Bindseil, 2 Gov't Disclosure Serv. (P-H)  82,114, at 82,427 (D.S.C. Aug. 4, 1981) ("[An] IRS investigation of activist organizations and individuals prominently associated with those organizations which advocate resistance to the tax laws by refusing to file returns or filing blank returns is a legitimate law enforcement activity.").

The Court of Appeals for the Seventh Circuit, although recognizing the "varying views" adopted by other courts of appeals, adopted what seems to be the most strict application of the law enforcement exception to date. The Seventh Circuit ordered the IRS to expunge information in a closed investigative file, based upon its determination, through in camera inspection, that it could not "be helpful in future enforcement activity." Becker v. IRS, 34 F.3d 398, 408-09 (7th Cir. 1994); cf. J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 607 (D.C. Cir. 1996) (Tatel, J., dissenting) (opining in favor of requirement that information be maintained only if pertinent to current law enforcement activity). In so ruling, the Seventh Circuit appeared to confusingly engraft the timeliness requirement of subsection (e)(5) onto subsection (e)(7). See Becker, 34 F.3d at 409 & n.28. Additionally, the Seventh Circuit appeared to confuse the district court's determination that the information was exempt from access under subsection (k)(2) with the district court's further ruling that the information also satisfied the requirements of subsection (e)(7). See id. at 407-08; see also Becker v. IRS, No. 91 C 1203, 1993 WL 114612, at *1 (N.D. Ill. Apr. 13, 1993).

Recently, the Court of Appeals for the District of Columbia Circuit was faced with interpreting the law enforcement exception in J. Roderick MacArthur Foundation v. FBI, 102 F.3d 600 (D.C. Cir. 1996). In MacArthur, the D.C. Circuit rejected the appellants' arguments, which were based on Becker, stating that "the court's analysis of  (e)(7) in Becker is neither clear nor compelling," and that the Seventh Circuit had "set out to determine the meaning 'of the "law enforcement purpose" phrase of  552a(e)(7)' not realizing that the phrase used in the Privacy Act is 'authorized law enforcement activity'" and that it "appears to have confused  552a(e)(7) with  552a(k)(2)." 102 F.3d at 603. In MacArthur, the appellant did not challenge the FBI's having collected the information about him, but rather claimed that the FBI could not maintain or retain such information unless there was a "current law enforcement necessity to do so." Id. at 602. The D.C. Circuit, however, realizing that "[m]aterial may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed," id. at 602-03, ruled that "[i]nformation that was pertinent to an authorized law enforcement activity when collected does not later lose its pertinence to that activity simply because the information is not of current interest (let alone 'necessity') to the agency," id. at 603. The panel majority went on to hold:

[T]he Privacy Act does not prohibit an agency from maintaining records about an individual's first amendment activities if the information was pertinent to an authorized law enforcement activity when the agency collected the information. The Act does not require an agency to expunge records when they are no longer pertinent to a current law enforcement activity.

Id. at 605. In its conclusion, the D.C. Circuit stated that subsection (e)(7) "does not by its terms" require an agency to show that information is pertinent to a "currently" authorized law enforcement activity, and that it found "nothing in the structure or purpose of the Act that would suggest such a reading." Id. at 607.

Several other courts have upheld the exception's applicability in a variety of contexts. See Doe v. FBI, 936 F.2d 1346, 1354-55, 1360-61 (D.C. Cir. 1991) (although holding that appellant was foreclosed from obtaining relief because he had "not suffered any adverse effect," stating that to extent appellant's argument as to violation of subsection (e)(7) was directed to underlying FBI records concerning investigation of appellant's "unauthorized possession of an explosive device" and reported advocacy of "violent overthrow of the Government," subsection (e)(7) was not violated as "'law enforcement activity' exception applies"); Wabun-Inini v. Sessions, 900 F.2d 1231, 1245-46 (8th Cir. 1990) (FBI maintenance of photographs seized with probable cause); Jochen v. VA, No. 88-6138, slip op. at 6-7 (9th Cir. Apr. 5, 1989) (VA evaluative report concerning operation of VA facility and job performance of public employee that contained remarks by plaintiff); Nagel v. HEW, 725 F.2d 1438, 1441 & n.3 (D.C. Cir. 1984) (citing Jabara with approval and holding that records describing statements made by employees while at work were properly maintained "for evaluative or disciplinary purposes"); Abernethy, 909 F. Supp. at 1566, 1570 (holding that maintenance of newspaper article that quoted plaintiff on subject of reverse discrimination and "Notice of Potential Class Action Complaint" were "relevant to and pertinent to authorized law enforcement activities" as they appeared in file pertaining to EEO complaint in which plaintiff was complainant's representative and was kept due to belief that a conflict of interest might exist through plaintiff's representation of complainant and, citing Nagel, holding that maintenance was also "valid" in files concerning possible disciplinary action against plaintiff); Maki v. Sessions, No. 1:90-CV-587, 1991 U.S. Dist. LEXIS 7103, at **27-28 (W.D. Mich. May 29, 1991) (holding that, although plaintiff claimed FBI investigation was illegal, the uncontested evidence was that plaintiff was the subject of an authorized investigation by FBI); Kassel v. VA, No. 87-217-S, slip op. at 27-28 (D.N.H. Mar. 30, 1992) (citing Nagel and Jabara, inter alia, and holding that information about plaintiff's statements to media fell within ambit of administrative investigation); Pacheco v. FBI, 470 F. Supp. 1091, 1108 n.21 (D.P.R. 1979) ("all investigative files of the FBI fall under the exception"); AFGE v. Schlesinger, 443 F. Supp. 431, 435 (D.D.C. 1978) (reasonable steps taken by agencies to prevent conflicts of interest are within exception); see also Felsen v. HHS, No. CCB-95-975, slip op. at 68-72 (D. Md. Sept. 30, 1998) (although not deciding whether report described First Amendment activity, finding no violation of subsection (e)(7) where report was relevant to authorized law enforcement activity of HHS and also was related to possible past violation of statute that HHS is empowered to enforce).

It should be noted that a finding that records are maintained in violation of subsection (e)(7) does not mean that those records must be disclosed. See Irons v. Bell, 596 F.2d 468, 470-71 & n.4 (1st Cir. 1979).


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