J. Roderick MacArthur Foundation v. F.B.I.

• Decision Date: 11 April 1997
• Docket Number: No. 95-5386,95-5386
• Citation: 102 F.3d 600
• Parties: , 65 USLW 2448 J. RODERICK MacARTHUR FOUNDATION and Lance E. Lindblom, Appellants, v. FEDERAL BUREAU OF INVESTIGATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 600

102 F.3d 600

322 U.S.App.D.C. 202, 65 USLW 2448

J. RODERICK MacARTHUR FOUNDATION and Lance E. Lindblom, Appellants, v. FEDERAL BUREAU OF INVESTIGATION, Appellee.

No. 95-5386.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1996.

Decided Dec. 24, 1996.

Rehearing Denied April 11, 1997. ^*

Appeal from the United States District Court for the District of Columbia (No. 90cv02906).

Kate A. Martin, Washington, DC, argued the cause for appellants, with whom Harvey M. Grossman was on the briefs.

Freddi Lipstein, Senior Counsel, U.S. Department of Justice, Washington, DC, argued the cause for appellee, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., U.S. Attorney, and Leonard Schaitman, Attorney, U.S. Department of Justice, were on the brief.

Before: GINSBURG, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part by Circuit Judge TATEL.

GINSBURG, Circuit Judge:

The J. Roderick MacArthur Foundation and its former president Lance E. Lindblom seek to compel the Federal Bureau of Investigation to expunge its records relating to their associational activities and to refrain from maintaining such records in the future. Lindblom invokes both the Privacy Act, 5 U.S.C. § 552a, and the First Amendment to the Constitution of the United States; the Foundation relies solely upon the first amendment.

Lindblom challenges only the FBI's retention of information about him, not its initial collection of that information. We hold that the Act does not forbid the Government from keeping information that it has lawfully collected and therefore we reject Lindblom's statutory claim. We decline to reach the appellants' first amendment claims because neither Lindblom nor the Foundation has standing to raise them. Accordingly, we affirm the order of the district court.

I. Background

As president of the Foundation, which provides grants to organizations involved with various political, social, and economic issues, Lindblom occasionally met with foreign leaders and political dissidents. At some point Lindblom's associations caught the attention of the FBI. When Lindblom and the Foundation later got wind of the FBI's interest they asked the Bureau, pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a), for copies of all documents it had relating to them. The FBI informed them that it had a file on Lindblom consisting of 23 pages of materials and that, although the FBI did not have a file on the Foundation, it had located in other files five pages on which the Foundation's name appears. (For the purposes of this case, the distinction between a "file" and the statutory term "record" is immaterial and we use the terms interchangeably.) The FBI released redacted copies of several of the documents relating to Lindblom and the Foundation but refused to release others, invoking exemptions 1, 2, 7(C), and 7(D) to the FOIA. At least some of the documents that the FBI released from the Lindblom file refer to Lindblom's associational activities.

Displeased by the nature of the material released and dissatisfied because other material was withheld, Lindblom and the Foundation sued the FBI in District Court claiming that the Bureau's conduct violates their rights under the FOIA and under the First Fifth, and Ninth Amendments to the Constitution of the United States. Lindblom also claimed that the FBI violated § (e)(7) of the Privacy Act, which forbids a government agency from maintaining records on an individual's first amendment activities unless the records are pertinent to and within the scope of an authorized law enforcement activity. In addition to monetary damages and an injunction, the parties asked the court to order the FBI to expunge its records concerning them and to refrain from maintaining any such records in the future.

After reviewing the documents in camera, the district court granted the FBI's motion for summary judgment. The court held that the documents were exempt from release under the FOIA and that the court's review of the documents had shown "that the investigation(s) referred to therein were not of the plaintiffs, but of others with whom the plaintiffs came into incidental (and, to appearances, innocent) contact." (Emphasis in original.)

II. Analysis

On appeal, Lindblom and the Foundation have abandoned their claims under the FOIA and under the fifth and ninth amendments in favor of pursuing only their Privacy Act and first amendment claims. We begin by analyzing Lindblom's claim under the Privacy Act. We then turn to the appellants' separate efforts to demonstrate their standing to raise a first amendment claim.

A. The Privacy Act Claim

Section (e)(7) of the Act provides in relevant part that a government agency "shall ... maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless ... pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7). Section (a)(3) of the Act defines to "maintain" as to "collect, maintain, use [or] disseminate."

Lindblom does not challenge the FBI's having collected information about him, and we assume that the information was pertinent to an authorized law enforcement activity when it was collected. Lindblom's claim is that an agency may not maintain (that is, retain) such lawfully collected information unless there is a current law enforcement necessity to do so. More specifically, he claims that "information which may have been properly collected as part of a legitimate law enforcement investigation may not be permanently kept under the name of the individual, especially when that individual is not the target of the investigation."

First, we note that the Act does not distinguish between the "target" of an investigation and any other subject (such as a crime victim) mentioned in the course thereof. Second, contrary to Lindblom's argument, the Act refers not to a "law enforcement investigation" but to an "authorized law enforcement activity." Materials may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed--of which more later. These points aside, Lindblom's primary assertion, that the Act forbids maintenance of information about first amendment activities unless that information serves a "current law enforcement necessity," requires more extended analysis.

Lindblom cites no authority for this proposition. We have not had occasion to consider it before, even in cases in which it seems obvious that the authorized law enforcement activity pursuant to which records were collected was of no current law enforcement interest, much less "necessity." See Doe v. FBI, 936 F.2d 1346, 1348, 1360-61 (D.C.Cir.1991) (§ (e)(7) "permits an agency to maintain records describing" plaintiff's "political activities during the late 1960s and early 1970s"); Nagel v. U.S. Dept. of Health, Educ. and Welfare, 725 F.2d 1438, 1441-42 (D.C.Cir.1984) (maintenance of records describing exercise of first amendment rights by long-since fired employee does not violate § (e)(7) because records were compiled as part of effort to determine whether employee was adequately doing his job). Nor does a recent Seventh Circuit case upon which Lindblom lays great stress quite reach the issue before us: In Becker v. IRS, 34 F.3d 398, 408-09 (1994), the court held that the Privacy Act requires the IRS to remove from the appellants' files newspaper articles about tax protesters that neither named nor referred to the appellants. The court seemed to think that the lack of connection between the newspaper articles and the appellants was a reason for ordering the documents excised. 34 F.3d at 409. Yet if the articles did not relate to the appellants, we do not understand how the articles could qualify for expungement under § (e)(7) as records "describing how [the appellants] exercise[ ] rights guaranteed by the First Amendment." 5 U.S.C. § 552a(e)(7). At any rate, the court's analysis of § (e)(7) in Becker is neither clear nor compelling. The court set out to determine the meaning "of the 'law enforcement purposes' phrase of § 552a(e)(7)" not realizing that the phrase used in the Privacy Act is "authorized law enforcement activity." The court appears to have confused § 552a(e)(7) with § 552a(k)(2), which exempts from the requirements of the Act a system of records containing "investigatory material compiled for law enforcement purposes." The latter section, however, relates to the disclosure of material in an agency's files. It is not surprising that an agency must shoulder a greater burden in order to avoid merely disclosing law enforcement material than it must in order to avoid expunging such material. A record disclosed pursuant to the Privacy Act or the FOIA is not thereby made unavailable for use in future law enforcement activities. A record expunged pursuant to the Privacy Act, on the other hand, is a record gone forever. That the court in Becker confused the statutory standard is suggested also by its reliance upon Voelker v. IRS, 646 F.2d 332, 335 (8th Cir.1981), a case involving only the disclosure, not the expungement, of records under the Privacy Act.

Looking at the terms of § (e)(7), we find no support for Lindblom's argument that the Act authorizes an agency to maintain a record describing first amendment activities only if and so long as there is a "current law enforcement necessity" to do so. [Reply Br. 4] The noun "record" in § (e)(7) is modified in only two ways: the record must be " pertinent to and within the scope of an authorized law enforcement activity." We do not understand this to mean, as Lindblom would in essence require, that the record must be pertinent to an active investigation; "an authorized law enforcement activity" such as foreign counter-intelligence,...