Menard v. Mitchell

• Decision Date: 15 June 1971
• Docket Number: Civ. A. No. 39-68.
• Citation: 328 F. Supp. 718
• Parties: Dale B. MENARD, Plaintiff, v. John MITCHELL et al., Defendants.
• Court: U.S. District Court — District of Columbia

328 F. Supp. 718

Dale B. MENARD, Plaintiff, v. John MITCHELL et al., Defendants.

Civ. A. No. 39-68.

United States District Court, District of Columbia.

June 15, 1971.

COPYRIGHT MATERIAL OMITTED

R. Raymond Twohig, Jr., Georgetown Legal Intern Program, Washington, D. C., for plaintiff.

Joseph Hannon, Asst. U. S. Atty., for defendants.

MEMORANDUM OPINION

GESELL, District Judge.

Plaintiff has brought this action to expunge his arrest record contained in the Fingerprint Identification files of the Federal Bureau of Investigation. That record reads as follows:

Date arrested or received: 8/10/65

Charge or offense: 459 PC Burglary

Disposition or sentence: 8/12/65 Unable to connect with any felony or misdemeanor—in accordance with 849b(1)—not deemed an arrest but detention only.

Occupation: student

Originally the matter was presented to another Judge of this Court on cross-motions for summary judgment and defendants prevailed. The Court of Appeals reversed and remanded for the taking of testimony after expressing interest and concern with issues suggested by the pleadings which the Court apparently felt had not been fully developed in the record. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970). Accordingly, further evidence was taken at a full hearing and the issues have been briefed and argued.

Menard, age 19 at time of arrest and subsequently an officer in the Marine Corps, contends that his arrest in Los Angeles was without probable cause and that future dissemination of the above arrest record, now in the files of the FBI, may impede his employment opportunities and subject him to an increased risk of being suspected and arrested for crimes on other occasions. He seeks expungement of the record or, in the alternative, strict limitations on its dissemination by the FBI.

Before considering the merits of the expungement issue raised, it is appropriate to set forth complete findings on two subjects indicated by the Court of Appeals as matters for particular inquiry on remand: the procedures and practices of the FBI with respect to maintaining arrest records and the circumstances of Menard's arrest.

I. The Procedures of the FBI Identification Division

Fingerprint and arrest records such as Menard's are under the jurisdiction of the Federal Bureau of Investigation's Identification Division. This Division, which has been in existence since 1924, functions under the Attorney General, and proceeds by authority of 28 U.S.C. § 534, which reads as follows:

§ 534. Acquisition, preservation, and exchange of identification records; appointment of officials

(a) The Attorney General shall—

(1) acquire, collect, classify, and preserve identification, criminal identification, crime and other records; and

(2) exchange these records with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions.

(b) The exchange of records authorized by subsection (a) (2) of this section is subject to cancellation if dissemination is made outside the receiving departments or related agencies.

(c) The Attorney General may appoint officials to perform the functions authorized by this section. Added. Pub.L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 616.

The Attorney General has made a series of rulings interpreting the statute. These are largely codified in 28 C.F.R. § 0.85(b) which provides that the Director of the FBI shall:

Conduct the acquisition, collection, exchange, classification, and preservation of identification records, including personal fingerprints voluntarily submitted, on a mutually beneficial basis, from law enforcement and other governmental agencies, insurance companies, railroad police, national banks, member banks of the Federal Reserve System, FDIC-Reserve-Insured Banks, and banking institutions insured by the Federal Savings and Loan Insurance Corporation; provide expert testimony in Federal or local courts as to fingerprint examinations; and provide identification assistance in disasters and in missing persons type cases including those from insurance companies.

The FBI Identification Division has some two hundred million sets of fingerprints on file. These records are maintained in separate criminal and applicant files. Fingerprints are submitted to the Bureau by federal, state, and local agencies on a reciprocal basis. Law enforcing agencies, primarily local police and sheriff's offices, submit prints of arrested persons in order to receive information on the person's prior criminal involvement. The Bureau reports its findings and maintains the fingerprint card so submitted, along with the occompanying arrest data, in its criminal file. Information on the subsequent disposition of each arrest is posted if received from the submitting agency. The information so recorded is cryptic and formal, without explanation or elaboration. Juvenile arrests and convictions, when submitted by local agencies, are treated the same as similar adult data. The criminal file currently contains information on some sixty million arrests of approximately nineteen million people.

Fingerprint cards are also received from agencies of the state and federal governments and others who seek information on an individual's record of criminal involvement in connection with permits, licenses, and employment clearance. After check against the criminal file, these cards are maintained in the applicant file for future reference. The Division also receives hundreds of "name check" requests from contributing and non-contributing sources, including an occasional Congressman, asking for the criminal record of an individual by name without submitting any fingerprints for comparison. Many of these cannot be processed because of inadequate identification of the person named, particularly where common names are involved. Where possible, however, and where the inquiring agency gives what the FBI considers a legitimate reason for the request, these inquiries are processed.

The volume of work of the Division is enormous, requiring about 3,300 employees. The Division receives an average of 29,000 fingerprints a day for processing, of which about 13,000 are received from law enforcing agencies in connection with arrests.

The Division, broadly speaking, considers any state, city or county official to be authorized to receive information if the agency has something to do with law enforcement or if it is authorized by statute, ordinance, or rule to fingerprint applicants for employment or for a permit or license. The laws and ordinances of various local areas vary widely. Some areas do not require fingerprinting for practically any purpose while others have highly detailed fingerprinting requirements for varied and often quite minor occupations. Examples are listed in Appendix A. The record contains a long list of state and local governments and a large number of different licensing authorities who by law or regulation are required to take fingerprints as part of their licensing duties. The Division maintains a current list of contributing or participating state and federal agencies which now numbers between 7,000 and 8,000. Of these, approximately 3,750 are local police departments and sheriff offices. Criminal record data is not sent directly to private employers, except in a few instances such as 390 banks insured by the F.D.I.C. and certain hospitals.¹

As far as the Federal agencies are concerned, Executive Order 10450 of April 1953, 3 C.F.R. 936 (1949-53 Comp.), 5 U.S.C. § 7311, requires a check of the FBI fingerprint files on practically all applicants for employment in the Federal Government whether or not engaged in law enforcement. The Civil Service Commission and the Military account for the highest volume of fingerprints submitted to the Bureau.

Given the very general nature of its purported authority the Bureau has proceeded cautiously. It investigates the authority of local agencies to require fingerprints and insists that detailed forms be filled out by contributors showing the purpose for which fingerprints are to be submitted. The Attorney General advises in doubtful situations. The Division has carried out its work in a responsible, meticulous manner. Nonetheless, the end result is most unsatisfactory. While the Division has vigorously sought to develop complete records and particularly to learn of dispositions resulting from each arrest, this effort has not been successful due to the failure of arresting agencies to send in follow-up data on forms provided. Some police departments do much better than others in this regard, but the Division has no sanctions and must be satisfied with what it can get by persuasion since the whole system functions on a voluntary basis. Even more troublesome is the fact that the Division has little opportunity to supervise what is actually done with the arrest records it disseminates. It requires that a proper purpose be stated by the agency requesting information but what is in fact done with the information as a practical matter cannot be constantly checked. It is apparent that local agencies may on occasion pass on arrest information to private employers. The Division makes no regular inspection to prevent this, for it has neither funds nor sanctions, and accordingly responds only to complaints. In a few instances police departments have been restricted, and in other instances when complaints were received personnel or administrative changes were demanded by the FBI and put into effect.

The FBI does not supply an individual with his arrest record except under rare special circumstances. The reasons are apparently two: the difficulty of obtaining definite identification of the person requesting the record, and fiscal considerations. There is no sure procedure for finding an arrest record by name only. A clear set of fingerprints is required for matching purposes. Thus as a practical matter an individual must submit his...