A Question of Trust

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Long-time employees of the Department of Housing and Urban Development with access to sensitive databases and certain civilian Defense Department employees must provide the government with information on their personal lives and allow the government to investigate them, a federal appeals court ruled this week.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on Tuesday that forms used by the two agencies requiring employees in "public trust positions" to disclose personal information, including whether they are in debt or have used drugs recently, do not violate the employees' rights.

The American Federation of Government Employees, which brought suit against DoD and HUD, argued that the disclosure requirement was an infringement on the employees' right to privacy.

The judges said they had "grave doubts as to the existence of a constitutional right to privacy in the non-disclosure of personal information" and ruled that even if there was one, "the individual interest in protecting the privacy of the information sought by the government is significantly less important where the information is collected by the government but not disseminated publicly."

The plaintiffs included three long-time HUD employees whose positions were determined to be "public trust positions" because they had access to the Line of Credit Control System, a database that controls $10 billion in annual disbursements. The employees had privileges allowing them to alter data.

HUD required the employees to complete Standard Form 85P, which is used to reinvestigate current employees whose positions involve policymaking, major program responsibility, law enforcement duties, or access to confidential or financial records.

The HUD plaintiffs challenged questions on SF 85P asking if they used drugs, if they had filed for bankruptcy in the past seven years or if they were currently in debt. The government argued that drug users are more likely to make negligent errors when accessing computer databases and that people in debt are more likely to embezzle funds.

The plaintiffs also challenged the release form accompanying the SF 85P, which authorizes the federal government to conduct a background investigation and "to obtain any information relating to my activities." The employees argued that the release form gave the government too much power to conduct background investigations.

The DoD employees who filed suit were civilians who challenged similar provisions in clearance forms they are required to complete.

The U.S. District Court for the District of Columbia had enjoined the agencies from requiring the employees to complete the forms, questioning the need for "so vast an intrusion by the government." The government appealed the lower court's decision.

The appeals court ruled that the agencies had proved that the questions asked on the forms were valid for employees in public trust positions. The court also said the release form did not grant the government too much power because the Privacy Act limits the information an agency can keep on record to that which is "relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order."

The court also allowed a question on the DoD form asking about an employee's mental health, because of the court's "traditional reluctance to intrude on executive decisionmaking in the area of national defense."

Kevin Grile, assistant general counsel for the American Federation of Government Employees, said he was disappointed with the ruling. The union has not yet decided whether to petition for a rehearing of the case.

Grile called the requirement that HUD and DoD employees subject themselves to investigation "bureaucratic overkill" that is "totally disrespectful of the employees."

"If you've worked at HUD for 20 years, it seems to me the government's interest in knowing about your private life should be pretty minimal," Grile said.

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