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09-530 NASA v. Nelson

Federal employees; privacy

The Government may ask 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.

In addition to being reasonable in light of the Government interests at stake, SF-85 and Form 42 are also subject to substantial protections against disclosure to the public. Whalen and Nixon recognized that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays privacy concerns created by government “accumulation” of “personal information” for “public purposes.” Whalen , supra, at 605. Respondents attack only the Government’s collection of information, and here, as in Whalen and Nixon , the information collected is shielded by statute from unwarranted disclosure. The Privacy Act-which allows the Government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law, 5 U. S. C. §552a(e)(1); requires written consent before the Government may disclose an individual’s records, §552a(b); and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1)-“evidence[s] a proper concern” for individual privacy. Whalen , supra , at 605; Nixon , supra , at 458-459. Respondents’ claim that the statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)-(12), leave its protections too porous to supply a meaningful check against unwarranted disclosures. But that argument rests on an incorrect reading of Whalen, Nixon, and the Privacy Act.

530 F. 3d 865, reversed and remanded.

09-530 NASA v. Nelson

Alito, J.; Scalia, J., concurring; Thomas, J., concurring.

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