498 F.2d 1017 (D.C. Cir. 1974), 71-1768, Menard v. Saxbe

Docket Nº:71-1768.
Citation:498 F.2d 1017
Party Name:Dale B. MENARD, Appellant, v. William B. SAXBE, Attorney General of the United States and Clarence M. Kelley.
Case Date:April 23, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1017

498 F.2d 1017 (D.C. Cir. 1974)

Dale B. MENARD, Appellant,


William B. SAXBE, Attorney General of the United States and Clarence M. Kelley.

No. 71-1768.

United States Court of Appeals, District of Columbia Circuit.

April 23, 1974

Argued Jan. 3, 1973.

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Ralph J. Temple, Washington, D.C., with whom Howard Adler, Jr., Bruce P. Saypol, R. Raymond Twohig, Law Student, Noah Menard, Robert A. W. Boraks, Thomas C. Arthur, Warren C. Nighswander and Keith S. Watson, Washington, D.C., were on the brief, for appellant.

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James F. McMullin, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry, and Joseph M. Hannon, Asst. U.S. Attys., at the time the brief was filed, were on the brief, for appellees.

Before LEVENTHAL and ROBB, Circuit Judges, and GASCH, [a1] United States District Judge of the United States District Court for the District of Columbia.

LEVENTHAL, Circuit Judge:

Appellant Dale B. Menard brought this action praying that the files of the Federal Bureau of Investigation be purged of all information relating to his detention by the Los Angeles police on August 10, 1965. In prior proceedings before this court, we reversed summary judgment in favor of appellees because of the 'necessity for a clear and complete factual record as a basis for adjudication.' Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970). On remand, the District Court, after a full trial, declined to order expungement, but limited distribution of Menard's record to Federal and state law enforcement agencies and agencies of the Federal Government for the purposes of employment. 1 Menard v. Mitchell, 328 F.Supp. 718 (D.D.C.1971). We hold that Menard is entitled to an order directing the FBI to remove his record from its criminal files, and therefore remand.


At the time of his arrest, Dale Menard was a 19-year-old college student spending the summer working in Los Angeles. On the evening of August 9, 1965, he visited with friends in the vicinity of Sunland Park, a recreational area in Los Angeles. At approximately 11:30 p.m., Menard walked to the park to wait for a friend who had arranged to pick Menard up and drive him to his room in a Los Angeles suburb (JA 165-69). The friend failed to arrive at the agreed time, and in the early hours of August 10th, after dozing on a park bench and then walking across the street to look through the window of a rest home in search of a clock, Menard returned to the bench to wait once more. See Joint Appendix (JA) 169-71.

At approximately 3:00 a.m., Menard was approached by two Los Angeles police officers (JA 171-73), who questioned him about a prowler report from the rest home. They also confronted him with a wallet they evidently had found on the ground near the park bench. (JA 179, 308). The wallet contained $10 and bore the name and address of an individual who lived about three miles from Sunland Park. (JA 175, 219-220). Despite Menard's insistence that he knew nothing of the wallet, and despite the subsequent arrival of Menard's friend, who corroborated his account, Menard was placed under arrest, booked and fingerprinted at the stationhouse, and held in police custody for over two days. No criminal complaint was ever filed; no evidence was found indicating that the wallet had been stolen; and no information was adduced that tied Menard to any crime. Nevertheless, the Los Angeles police routinely forwarded to the FBI a fingerprint card, containing Menard's fingerprints and the notation that he had been arrested for burglary and two days later 'Released--Unable to connect with any felony or misdemeanor at this time.' The FBI has retained a record of Menard's arrest. 2

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A few months later, Menard's mother wrote the FBI to inquire whether any record had been kept of the encounter; the Bureau referred her to the California authorities. Correspondence continued for over a year, with the FBI, the Los Angeles police, and the California Department of Justice each taking the position that it was powerless to effect the removal of the record from the FBI's files.

However, on January 16, 1968, after the complaint in this action had been filed earlier in the month, the FBI had a special agent review the Los Angeles police file. 3 By April 1968 the FBI record was changed, 'upon decision of Federal Bureau of Investigation and United States Attorney's Office.' 4 The entry for 'Disposition or sentence' originally read: 'Released-- unable to connect with any felony or misdemeanor at this time.' As changed, the FBI record shows that two days after Menard was arrested, he was 'Released-- Unable to connect with any felony or misdemeanor-- in accordance with 849b(1)-- not deemed an arrest but a detention only.' Although the change entry does not say so specifically, it presumably referred to California Penal Code § 849(b)(1). 5

Unable to obtain relief expunging his arrest record through the administrative processes, Menard turned to the courts.


The record developed in the trial court subsequent to our order of remand presents information concerning the Identification Division of the FBI, which has maintained fingerprint and arrest records since 1924. The Attorney General is authorized to maintain identification files by 28 U.S.C. § 534, which provides:

§ 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.

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The practice of the FBI in implementing the statute reflects a series of positions taken by the Attorney General over the years. These have been 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 missing persons type cases, including those from insurance companies.

The Chief of the Technical Section of the FBI's Identification Division described the Division as a 'central depository for fingerprints submitted to us on a volunteer basis.' (JA 482). These records are maintained in separate criminal files and 'applicant' files. The FBI's criminal files consist of those prints submitted in connection with an arrest or conviction. The FBI's applicant files consist of prints submitted in conjunction with induction into the armed services, applications for government employment, or other activity pursuant to which local authorities deem it appropriate to require fingerprinting to determine whether the applicant has a criminal record. The records are not sorted or cross-referenced in any way, nor is there special treatment of records of juveniles. (JA 88-9).

The Bureau also maintains a file containing only the name of the individual and his prints. 6 Primary contributors to this file, which is used for identification purposes only, are tourists, who submit their prints as they tour FBI facilities. (JA 656-57). This information may be made available to private groups, such as insurance companies, for the sole purpose of establishing identity, often in the case of missing or deceased individuals. (JA 629-630).

Two hundred million fingerprint cards are currently on file with the FBI, of which 19 million relate to criminal activity. (JA 511). Fingerprints are submitted to the Bureau by Federal, state and local agencies, on standard cards issued by the FBI (JA 10, 12, 201). The Bureau checks its records when it receives a fingerprint card and reports back to the contributing agency any prior arrests or convictions contained in its files.

The FBI disseminates records to contributing agencies throughout the country. For each 'applicant' fingerprint card submitted to it by an 'authorized agency' 7 the Identification Division runs an automatic identification check (JA 46-7). If there is no prior arrest or conviction record, the FBI returns the fingerprint card with the notation, 'No arrest record F.B.I.' (JA 471). If 'criminal' fingerprint cards have previously been submitted, the contributing agency receives a copy of the records of the individual's prior arrests. (JA 46-7, 54-5, 74, 95-6). Where 'criminal' cards are submitted, the Bureau notes the information and sends the law enforcement agency such information as the FBI has.

The Division also receives hundreds of 'name check' requests from 'legitimate sources,' including congressmen and contributing agencies, asking for criminal records with only the subject's name given as identification. Whenever possible,

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the Division honors these requests. The number of such 'name checks' was estimated to be 'in the...

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