Proponents of the right to privacy collectively exhaled when the Supreme Court decided National Aeronautic and Space Administration v. Nelson in January 2011. More than 30 years ago, the Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589 (1977); Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Some had predicted that the current makeup of the Court – far more conservative than that in 1977 – would completely reverse Whalen and Nixon, and would find no privacy right that prohibited the compelled disclosure of private matters.
Instead, the Court’s decision in Nelson was a limited one. The case involved NASA’s Jet Propulsion Laboratory facility, staffed exclusively by contract employees. In 2004, the Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check. The background check was identical to that used for many years for prospective civil servants.
The process begins when the applicant or employee fills out a form questionnaire, usually a document known as Standard Form 85. Most of the questions on the form seek basic biographical information: Name, address, prior residences, education, employment history, and personal and professional references. 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.” 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.
Once a completed SF-85 is on file, 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 form asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” It also asks if the reference knows of any “adverse information” concerning the employee’s “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” If “yes” is checked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing “additional information” that may bear on “suitability for government employment or a security clearance.”
All responses on the two forms are subject to the protections of the federal Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are “relevant and necessary” to an end “required to be accomplished” by law. Individuals are permitted to access their records and request amendments to them. Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual’s written consent.
The Court found that this process did not violate the privacy rights of applicants and contract employees. Brushing aside what many had thought would be the core issue in the case – the potential reversal of Whalen and Nixon – the Court noted that “we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance. We hold, however, that, whatever the scope of this interest, it does not prevent the Government from asking reasonable questions of the sort included on the forms in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure.”
Continuing a theme that has dominated the Court’s public employee decisions in the last ten years, the Court observed: “Time and again our cases have recognized that the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large. This distinction is grounded on the common sense realization that if every employment decision became a constitutional matter, the Government could not function.
“The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. The Government itself has been conducting employment investigations since the earliest days of the Republic. Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce. Courts must keep those interests in mind when asked to go line-by-line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain.”
And what of the questions relating to “treatment or counseling” and drug use? The Court found those questions appropriate: “We conclude that the challenged portions of both forms consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. As to SF-85, the only part of the form challenged here is its request for information about ‘any treatment or counseling received’ for illegal drug use within the previous year. The ‘treatment or counseling’ question, however, must be considered in context. It is a follow-up to SF-85’s inquiry into whether the employee has ‘used, possessed, supplied, or manufactured illegal drugs’ during the past year. The Government has good reason to ask employees about their recent illegal drug use. Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties. Questions about illegal drug use are a useful way of figuring out which persons have these characteristics.
“In context, the follow-up question on treatment or counseling for recent illegal drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal drug use is both a criminal and a medical issue, seeks to separate out those illegal drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the treatment or counseling question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities. This is a reasonable, and indeed a humane, approach, and respondents do not dispute the legitimacy of the Government’s decision to use drug treatment as a mitigating factor in its contractor credentialing decisions.
“We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are ‘necessary’ or the least restrictive means of furthering its interests.”
National Aeronautic and Space Administration v. Nelson, 131 S. Ct. 746 (2011).
This article appears in the March 2011 issue.