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Bassiouni v. Federal Bureau of Investigation

January 30, 2006

MAHMOUD C. BASSIOUNI, ALSO KNOWN AS CHERIF BASSIOUNI, PLAINTIFF-APPELLANT,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 8918- Joan Humphrey Lefkow, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED JUNE 9, 2005

Before RIPPLE, MANION and KANNE, Circuit Judges.

Pursuant to the Privacy Act, 5 U.S.C. § 552a, Mahmoud Cherif Bassiouni sought to amend records maintained by the Federal Bureau of Investigation ("FBI" or the "Bureau") that pertained to his contacts with, and activities concerning, the Middle East. After exhausting his administrative remedies, Mr. Bassiouni filed this action under the Privacy Act's enforcement provisions, id. § 552a(g). The district court granted summary judgment to the FBI; it held that the records were exempt from the Privacy Act's amendment requirements. Mr. Bassiouni now appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. BACKGROUND

A. The Privacy Act-An Overview

Because this case requires an understanding of the Privacy Act, we shall depart from our usual format and set forth an analysis of its pertinent provisions before turning to the background of this case.

1.

a. General Provisions

Under the Privacy Act, agencies, such as the FBI, that maintain "a system of records"*fn1 concerning individuals are required to do so "with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual." Id. § 552a(e)(5). In addition to the accuracy requirement, agencies are prohibited from maintaining certain types of information in those records, including information "describing how any individual exercises rights guaranteed by the First Amendment." Id. § 552a(e)(7). The prohibition on maintaining First Amendment-related records, however, does not apply when those records are "pertinent to and within the scope of an authorized law enforcement activity." Id.*fn2 The Act does not define a "law enforcement activity," and the phrase does not appear elsewhere in the statute.

In addition to setting forth limitations on agency record keeping, the Act also contains remedial measures. The Act first provides an individual with the right to access his records upon request, id. § 552a(d)(1), and allows him to request amendment or correction of his records, id. § 552a(d)(2). In response to such a request, the agency either must amend the records or inform the individual of its reason for refusing to amend. Id. § 552a(d)(2)(B). An individual unsatisfied with the agency's response may pursue an administrative appeal. Id. § 552a(d)(3). If the internal mechanism fails to resolve the individual's request, he may seek review of the agency's decision in federal court. See id. § 552a(g)(1)(A)-(B).

b. Exemptions

In some cases, agencies may exempt certain record systems from Privacy Act requirements and, specifically for our purposes, the § 552a(d) amendment process. Section 552a(j), entitled "General exemptions," allows the head of an agency "to exempt any system of records within the agency from any part of" the Act if the system is maintained by a law enforcement agency and if the information concerns certain criminal investigation functions. Id. § 552a(j)(2). Under this section, however, an agency may not exempt a system of records from § 552a(e)(7), which prohibits an agency from maintaining records describing an individual's exercise of his First Amendment rights. See id. § 552a(j).

In addition to the general exemption provision, agencies may exempt record systems from specific sections of the Act if the records are maintained "for law enforcement purposes." Id. § 552a(k)(2). The amendment process of § 552a(d) is among those that may be exempted. Id. § 552a(k).*fn3 Yet, although an agency may exempt its record system from the amendment process, the agency still may not keep records of activity that is protected by the First Amendment.

c. Remedial Provisions

The Privacy Act provides limited civil remedies for individuals seeking redress for an agency's noncompliance. The Act allows an individual to seek redress in federal court if an agency does not allow the individual to review his record as required by § 552a(d)(1), see id. § 552a(g)(1)(B), or if an agency has refused to amend a record, see id. § 552a(g)(1)(A).*fn4 An individual also may challenge an agency's failure to maintain records with the accuracy, relevance, timeliness and completeness required by § 552a(e)(5), but only if the plaintiff demonstrates that the agency action had an "adverse" effect on him. Id. § 552a(g)(1)(C). Similarly, § 552a(g)(1)(D) provides a catch-all cause of action for circumstances in which an agency "fails to comply with any other provision" of the Act; however, like the relief provided in § 552a(g)(1)(C), "an adverse effect on an individual" is also a prerequisite to a § 552a(g)(1)(D) action.

2.

At the heart of this dispute is the interplay between § 552a(e)(7)'s protection against maintenance of records concerning First Amendment activities and that same subsection's built-in exemption for records "pertinent to and within the scope of an authorized law enforcement activity." However, the Act nowhere defines "law enforcement activity" as used in subsection (e)(7). We turn, therefore, to the Privacy Act's legislative history for further guidance in discerning the meaning of this term.

The Privacy Act's lack of precision in defining law enforcement activity may be attributed to the circumstances of its drafting and passage. The Act passed quickly in the late months of the 93rd Congress. As one commentator noted:

Passage of the . . . Act was both aided and hindered by the Congress' focus on Watergate and the impeachment hearings involving former President Nixon: aided, because the Watergate scandals had involved allegations of illegal wiretapping and surveillance of private citizens by federal agencies; and hindered, because the impeachment process left little time for other legislation until the closing months of the session.

Cornish F. Hitchcock, Overview of the Privacy Act, in Guidebook to the Freedom of Information and Privacy Acts 2-28 (Justin D. Franklin & Robert F. Bouchard eds., 2d ed. 2005) (hereinafter "Guidebook").

"Congress felt it was important to pass some kind of privacy protection before adjourning," id. at 2-27, and two bills concerning the limits of governmental intrusion into personal privacy were proposed in the Senate and in the House of Representatives, see S. 3418, 93d Cong. (1974), reprinted in Legislative History of the Privacy Act of 1974: Source Book on Privacy 9 (GPO 1976) (hereinafter "Source Book"); H.R. 16373, 93d Cong. (1974), reprinted in Source Book 239. Neither bill represents the final version of the Privacy Act. Indeed, due to time constraints, the bills were not reconciled through a formal conference. See Guidebook 2-27. Rather, members from the respective House and Senate committees "met informally and agreed on a compromise." Steven W. Becker, Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: The Law Enforcement Activity Exception to the Privacy Act, 50 DePaul L. Rev. 675, 695 (2001) (citing 120 Cong. Rec. 40,400 (1974) (statement of Sen. Ervin), reprinted in Source Book 846).

During the compromise process, certain provisions were incorporated from both the House and Senate versions and, in some circumstances, entirely new material was added. At the close of the process, House and Senate staff members prepared an "Analysis of House and Senate Compromise Amendments to the Federal Privacy Act." See Source Book at 858 (Senate); id. at 987 (House) (collectively hereinafter, "Staff Analysis"). This document took the place of the Conference Report, which usually represents "the most definitive record of the legislative history and intent of the law as enacted." Guidebook 2-32.

However, despite the limited legislative history, it is evident that Congress expressed particular concern with the Government's action in collecting information about citizens' exercise of their First Amendment rights. Both the Senate and the House versions of the bill contained protections to address these concerns. In the Senate bill, section 201(b)(7) provided that an agency shall "establish no program for the purpose of collecting or maintaining information describing how individuals exercise rights guaranteed by the first amendment unless the head of the agency specifically determines that such program is required . . . ." S. 3418 § 201(b)(7), reprinted in Source Book 130. The Senate committee report explained that section 201(b)(7) reflect[ed] the preferred status . . . accord[ed] to information touching areas protected by the First Amendment . . . . It [wa]s aimed at protecting Americans in the enjoyment of the privacy of their thoughts, habits, attitudes and beliefs in matters having nothing to do with the requirements of their dealings with an agency seeking information.

S. Rep. No. 93-1183, at 56 (1974), reprinted in Source Book 209. Moreover, the committee noted, section 201(b)(7) was "directed to the planning stage of any . . . programs being designed for the principle purpose of identifying Americans who exercise their rights under the First Amendment," and was "aimed particularly at preventing collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future." S. Rep. No. 93-1183, at 57, reprinted in Source Book 210. Section (e)(4) of H.R. 16373, the House equivalent to § 201(b)(7),*fn5 was both broader and narrower than the Senate version; it stated simply that an agency shall "maintain no record concerning the political or religious belief or activity of any individual, unless expressly authorized by statute or by the individual about whom the record is maintained." H.R. 16373 § 552a(e)(4), reprinted in Source Book 285; see H.R. Rep. No. 93-1416, at 16, reprinted in Source Book 309.

After the bills were proposed in both Houses of Congress, members expressed concern that the analogues to ยง 552a(e)(7) were overly broad and would hamper legitimate law enforcement efforts. For example, a sponsor of H.R. 16373 assured the House that section 552a(e)(4) would not prevent the FBI from "maintaining records as to political beliefs" if the records concerned the Communist Party or other groups dedicated ...


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