Nasa v. Nelson

131 S.Ct. 746 (2011)

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Nature of the Case

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Facts

NASA is an independent federal agency charged with planning and conducting the Government's “space activities.” Many of its workers are federal civil servants. A substantial majority are employed directly by Government contractors. The Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. Ps are twenty-eight JPL employees. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. Background checks were standard only for federal civil servants. 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). NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech. The NACI process requires that the employee fills out the Standard Form 85 questionnaire. Most of the questions on SF-85 seek information that would be put on a resume. The form also asks about citizenship, selective-service registration, and military service. The last question asks whether the employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. If the answer is yes, the employee must provide details, including information about “any treatment or counseling received.” Ibid. A “truthful response,” the form notes, cannot be used as evidence against the employee in a criminal proceeding. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF-85. The particular form at issue in this case--the Investigative Request for Personal Information, Form 42--goes to the employee's former landlords and references. All responses to SF-85 and Form 42 are subject to the protections of the Privacy Act. Ps sued claiming the background check violates a constitutional right to informational privacy. The court denied P’s motion for a preliminary injunction. The Court of Appeals Reversed. The court upheld SF-85's inquiries into recent involvement with drugs as “necessary to further the government's legitimate interest” in combating illegal-drug use. The court went on to hold that the portion of the form requiring disclosure of drug “treatment or counseling” furthered no legitimate interest and was thus likely to be held unconstitutional. It held that Form 42's “open-ended and highly private” questions were not “narrowly tailored” to meet the Government's interests in verifying contractors' identities and “ensuring the security of the JPL.” D appealed.