that it has taken the precautions which are necessary in a democratic society, which places an extremely high value on personal privacy, to protect that information.
It is true that "in an organized society, there are few facts that are not at one time or another divulged to another." In fact, "'Hardly anyone in our society can keep altogether secret very many facts about himself. Almost every such fact, however personal or sensitive, is known to someone else. Meaningful discussion of privacy, therefore, requires the recognition that ordinarily we deal not with an interest in total nondisclosure but with an interest in selective disclosure.'" U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 109 S. Ct. 1468, 1476 and n. 14, 103 L. Ed. 2d 774 (1989), citing Karst, "The Files": Legal Controls Over the Accuracy and Accessibility of Stored Personal Data, 31 Law & Contemp.Prob. 342, 343-44 (1966). Nonetheless, this court takes the interest in "selective disclosure" quite seriously. The Board would require its employees to divulge to it (and, through the release form, to any other interested federal agency) the most personal sorts of information. While not all the information sought actually implicates the Fifth Amendment, all of it implicates the type of interest which the Fifth Amendment protects. That is, the right to keep certain information from the government, particularly when the government has expressed an intent to use that information as a basis for taking some adverse action against the individual making the disclosure. The government cannot require its employees to divulge their most intimate secrets; at least not without demonstrating a compelling need for those secrets. No such compelling need has been demonstrated here, and this court accordingly will not authorize the Board to collect the information requested in question 24.
B. Fifth Amendment
Even if this court were to find that part (a) of question 24 is constitutional, there is nonetheless a serious constitutional concern about part (b). Plaintiffs legitimately fear that an affirmative answer to question 24b could be used against them in a criminal proceeding. Thus, they argue that the Board's requirement that they respond to that question violates their Fifth Amendment right against self-incrimination. Attached to SF86 is a form entitled "Authority For Release of Information". An applicant signing that form authorizes the agency "to release [information gleaned from the SF86 and any concomitant investigation] upon request of the duly accredited representative of any authorized agency regardless of any agreement I have made with you previously to the contrary. (Emphasis added).
The Board claims that the Fifth Amendment claim is moot, since OPM intends to use the information on the questionnaire only as a basis for an investigation into "the applicant's suitability for Federal employment and eligibility for any required security clearance." Memorandum in Support of Defendant's Motion for Summary Judgment at 5. OPM has also sent all Executive Branch personnel offices FPM Bulletin No. 736-19, which is intended to inform persons completing SF86 that "the information you provide in response to question 24b on [SF86] is intended only as a basis for an investigation . . . to determine your suitability for Federal employment and/or eligibility for any required security clearance. The information you provide on question 24b will not be provided for use in any criminal proceeding against you." (Emphasis in original). The notice to the personnel officers states that "agencies should provide a copy of this notice to each individual who needs to complete an SF86." (Emphasis added).
The FPM bulletin is inadequate to protect the Fifth Amendment interests of persons required to complete an SF86. While the Board correctly argues that "it is well settled that a court may dismiss a case as moot based on the defendant's cessation of the challenged activity" (Memorandum in Support of Defendant's Motion for Summary Judgment at 6), it is not at all clear to this court that the FPM bulletin has solved the problems alleged by the plaintiffs. The Board has made no showing that the information gathered through question 24b would be sufficiently protected from release to law enforcement agencies. Nothing in the record indicates that Board employees with access to the SF86 are precluded from disclosing that information, and the Authority for Release of Information form specifically negates any other agreements made about the release of information. Accordingly, this court finds that the Board's requirement that its employees respond to question 24b as a condition of employment violates the Fifth Amendment.
III. Mental Health
Question 25 of SF86 asks the applicant to disclose the following:
Have you ever had a nervous breakdown or have you ever had medical treatment for a mental condition? If "Yes", provide information below. Give period of treatment under "From/To" starting from the present.
For all the reasons treated above, this court finds that question 25 is overbroad. It is not limited by time, nor by severity of the mental disorder. If substance abuse, which may contain some element of volition, is too private for a less open-ended inquiry, then certainly mental illness, which no one chooses, must be considered at least as private. The Board has not shown this court that it cannot protect its integrity unless its applicants volunteer such exhaustive information about their mental condition. The Board argues that the question is not overly intrusive since "only upon an affirmative answer to the question 'Have you ever had a nervous breakdown or have you ever had medical treatment for a mental condition' is an employee required to provide any details of medical treatment." This argument does not pass the "straight face" test, let alone persuade this court. Furthermore, the cases cited by the Board in which similar questions were found not to violate applicant's privacy rights are not applicable here. The first involved an applicant for a "sensitive" position within the Peace Corps, an organization which sends American volunteers to work in various foreign countries, Anonymous v. Kissinger, 163 U.S. App. D.C. 92, 499 F.2d 1097 (D.C. Cir. 1974). The other concerned police officers applying for positions with a special investigation unit, charged with exercising centralized control over internal corruption investigations, internal disciplinary investigations and vice investigations, Fraternal Order of Police, 812 F.2d 105. Both of those positions implicate security concerns which the Board has not shown here. To force these plaintiffs to answer question 25 as a condition of their employment is therefore an impermissible violation of their constitutional right to privacy.
IV. Financial Information
Questions 28 and 29 probe applicants' (and their spouses') financial history and status. Summary judgment on the constitutionality of those questions is not appropriate at this juncture.
The plaintiffs have submitted an affidavit alleging that a computer programmer simply could not manipulate a particular person's benefits, or manipulate the computer system in order to obtain personal financial gain. Rather, Helen Bell, who has been a Board employee for the past 29 years, and a programmer for the last 19, has sworn that no one in any of the positions in question has access to any data specific to an individual beneficiary, and no one in those positions could, as the Board has argued, secretly profit by altering an individual's entitlement. Affidavit of Helen Bell, Plaintiffs' Ex. F in Support of their Cross-Motion for Summary Judgment.
The Board, on the other hand, has submitted an affidavit to support its argument that questions 28 and 29 are necessary to protect the integrity of the funds handled through its computer system (and not to confirm the general trustworthiness of a particular applicant).
The parties do not agree whether computer operators might effect the security of the funds handled by the Board. Furthermore, the Board has not offered any evidence demonstrating that one is better able to predict whether an applicant would intentionally damage the computer system if one knows whether the applicant has ever suffered any financial woes. This court therefore denies both parties' motions for summary judgment on plaintiffs' claim that questions 28 and 29 are unconstitutional.
V. Authority For Release of Information
Plaintiffs have raised several challenges to the Authority for Release of Information,
which they are required to sign in connection with SF86.
Plaintiffs maintain in Count 8 of their complaint that the Board's requirement that they sign the Authority for Release of Information exceeds the Board's authority under the Privacy Act, specifically, 5 U.S.C. § 552a(b). That section prohibits an agency from disclosing "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, [except under certain limited circumstances]."
First, the Release Form authorizes the collection of information which this court has now held cannot constitutionally be gathered, such as mental health records. Furthermore, the Release Form specifies neither the purpose for redisclosure of that information, nor the persons to whom disclosure may be made. Yet OMB guidelines, and the statute itself, clearly intend that the agency specify those matters.
This court will not sanction the Board's release of highly personal information with nothing more than the admonition that it will be released only "as authorized by law", particularly in light of the fact that the Board further requires the signator of the form to release from liability anyone who, "on account of . . . attempts to comply with [the] authorization" causes damage to the signator. The authorization is so unclear that it is safe to predict that damages will arise from attempts to comply with it. This court therefore finds that, pursuant to 5 U.S.C. § 552a(b), the Board is simply not authorized to require applicants to sign the Release Form as a condition of employment.
Since this court has decided that the Board cannot require applicants to sign the Release Form pursuant to § 552a(b), it need not consider Counts 9-11 of plaintiffs' complaint, which allege that the Release Form violates other provisions of the Privacy Act, as well as their constitutional right to privacy.
VI. Sensitive Positions
Plaintiffs challenge, in the 13th and last count of their complaint, that the Board's designation of their positions as "sensitive" (in order to lawfully authorize investigations of persons selected to fill those positions) as arbitrary and capricious. That argument may be disposed of quickly.
The Board is authorized by OMB (Office of Management and Budget) circular No. A-130 to impose personnel security requirements for employees "associated with the design, programming, operation, maintenance or use of Federal automated information systems." The circular, issued pursuant to the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., also states that "requirements for personnel checks imposed by these policies should vary commensurate with the risk and magnitude of loss or harm that could be caused by the individual." 50 Fed.Regs. 52738, 52744.
Thus, the Board is correct in its argument that "it is properly within the [Board's] authority to establish personnel security procedures to safeguard [its computer system]." Defendant's Memorandum in Reply to Plaintiffs' Cross Motion for Summary Judgment at 4. As discussed above, it is undisputed that the Board's computer operators have the potential to damage a system responsible for providing benefits to over 900,000 people. To be wrong is not necessarily to be either arbitrary or capricious, and would not be so in this case. While the specific measures implemented by the Board may be challenged, as here, the Board is authorized to establish lawful procedures to protect its own integrity.
This court grants summary judgment to the plaintiffs on counts 1, 3, 4, 5 and 8. Counts 2, 7, 9, 10, 11, and 12 are dismissed as moot. Defendant is granted summary judgment on count 13. Count 6 remains pending.