Jan 192011
 January 19, 2011  Posted by  Court, Featured News, Workplace

The Supreme Court has issued its opinion in National Aeronautics and Space Administration v. Nelson, a workplace privacy case involving background checks (previous coverage).

Employees had argued that forms used by NASA violated their constitutional right to informational privacy.  The court found for the government, holding that the background  check questions at issue were reasonable and that there were adequate privacy protections in place under the Privacy Act of 1974.  Reversing the appellate court decision and remanding the case, Justice Alito delivered the majority opinion, in which Justices Roberts, Kennedy, Ginsburg, Breyer, and Sotomayor joined.  Justice Scalia filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Kagan took no  part in the consideration or decision of the case.

Here are some snippets from the majority opinion, footnotes omitted:

As was our approach in  Whalen, we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance.  429 U. S.,  at 599, 605.  We hold, however, that, whatever the scope of this interest, it 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.


We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden  to  demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests.  So exacting a standard  runs directly contrary  to Whalen.  The patients in Whalen, much like respondents here, argued that New York’s statute was unconstitutional because the State could not “demonstrate the necessity” of its program.  429 U. S., at 596.  The Court quickly rejected that argument, concluding that New York’s collection of patients’ prescription information could “not  be held unconstitutional simply because” a court viewed it as “unnecessary, in whole or in part.”  Id., at 596–597.


Notwithstanding these safeguards, respondents argue that 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,” Whalen,  supra, at 605.   Respondents point  in particular to what they describe  as a “broad” exception for “routine use[s],” defined as uses that are “compatible with the purpose for which  the record was collected.” §§552a(b)(3), (a)(7).

Respondents’ reliance on these exceptions rests on an incorrect reading of both our precedents and the terms of the Privacy Act.  As to our cases, the Court in Whalen and Nixon referred approvingly to  statutory or regulatory protections against “unwarranted disclosures” and “undue dissemination” of personal information collected by the Government.  Whalen, supra, at 605; Nixon, supra, at 458.  Neither case suggested that an ironclad disclosure bar is needed to satisfy privacy interests that may be “root[ed] in the Constitution.”  Whalen, supra, at 605.


In light of  the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check,  we conclude that the Government’s inquiries do not  violate a constitutional right to informational privacy. Whalen, supra, at 605.

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For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

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