FBI can keep files on foundation’s political activities

WASHINGTON, D.C.–The federal government can retain information on how individuals exercise their First Amendment rights in its files if the information was collected as part of a legitimate law enforcement activity, a panel of the U.S. Court of Appeals in Washington, D.C., ruled in late December. The court said the government could keep these files on individuals even if the rationale for gathering the information in the first place no longer exists.

The Privacy Act prohibits the government from maintaining records on individuals’ exercise of their First Amendment rights unless the records “are pertinent to and within the scope of an authorized law enforcement activity.” The act specifically defines the term “maintain” as meaning both to “collect” and “maintain.”

Writing for a divided panel, Judge Douglas Ginsburg said that the FBI could continue to keep its files on Lance Lindblom, which it created when he was president of the J. Roderick MacArthur Foundation. The foundation gives grants to organizations involved with various political, social and economic issues and, as its president, Lindblom occasionally met with foreign leaders and political dissidents.

In dissent, Judge David Tatel said that in passing the Privacy Act Congress could have forbidden just the collection of the information unless it was justified by law enforcement activity, but instead it also chose to prohibit the maintenance of the information, meaning that the government should only keep the records so long as is necessary for its law enforcement activity.

When they learned that the FBI was keeping records on them, both Lindblom and the MacArthur Foundation sued to have the records expunged. Lindblom specifically objected to the FBI keeping a file under his name. They also claimed that continuing to keep the records after a law enforcement purpose ended violated their First Amendment rights of association. Neither Lindblom nor the foundation challenged the government’s right to collect the information in the first place.

The court rejected the foundation’s claims, saying it could not show direct injury from the FBI’s maintenance of the files. It rejected Lindblom’s constitutional claim, saying that he could show no injury from the maintenance of the files.

The federal District Court in September 1995 had ruled against Lindblom and the foundation, noting that the law enforcement activity that led to the creation of the files had actually involved an investigation of others with whom they came into “incidental (and, to appearances, innocent) contact.” (MacArthur Foundation and Lindblom v. FBI; counsel: Kate Martin, Washington, D.C.)