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Thursday, January 20, 2011

NASA v. Nelson: Informational Privacy (If It Exists) Does Not Bar Background Checks of Contract Employees

This is not a wage case, but I find it interesting. In National Aeronautics and Space Administration v. Nelson, --- S.Ct. ----, 2011 WL 148254 (1/19/11), contract employees at NASA's Jet Propulsion Laboratory (JPL), which is operated by the California Institute of Technology (Cal Tech), challenged a new government policy mandating that they complete a standard background check.

The Supreme Court (Alito, with Scalia and Thomas concurring and Kagan taking no part) held as follows:
In two cases decided over 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599-600, Nixon v. Administrator of General Services, 433 U.S. 425, 457. In Whalen, the Court upheld a New York law permitting the collection of names and addresses of persons prescribed dangerous drugs, finding that the statute's “security provisions,” which protected against “public disclosure” of patient information, 462 U.S. at 600-601, were sufficient to protect a privacy interest “arguably ... root[ed] in the Constitution,” id. at 605. In Nixon, the Court upheld a law requiring the former President to turn over his presidential papers and tape recordings for archival review and screening, concluding that the federal Act at issue, like the statute in Whalen, had protections against “undue dissemination of private materials.” 433 U.S. at 458. Since Nixon, the Court has said little else on the subject of a constitutional right to informational privacy.

Assuming, without deciding, that the Government's challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF-85 and Form 42 in an employment background investigation that is subject to the Privacy Act's safeguards against public disclosure.
The opinion is available here.

Note: FantasySCOTUS, which I blogged about here, correctly predicted this result. Scoreboard!

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