Appeal from the United States District Court for the District of Columbia (No. 90cv02906)
Before: Ginsburg, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Opinion concurring in part and dissenting in part by Circuit Judge Tatel
The J. Roderick MacArthur Foundation and its former president Lance E. Lindblom seek to compel the Federal Bureau of Investigation to expunge its records relating to their associational activities and to refrain from maintaining such records in the future. Lindblom invokes both the Privacy Act, 5 U.S.C. Section(s) 552a, and the First Amendment to the Constitution of the United States; the Foundation relies solely upon the first amendment.
Lindblom challenges only the FBI's retention of information about him, not its initial collection of that information. We hold that the Act does not forbid the Government from keeping information that it has lawfully collected and therefore we reject Lindblom's statutory claim. We decline to reach the appellants' first amendment claims because neither Lindblom nor the Foundation has standing to raise them. Accordingly, we affirm the order of the district court.
As president of the Foundation, which provides grants to organizations involved with various political, social, and economic issues, Lindblom occasionally met with foreign leaders and political dissidents. At some point Lindblom's associations caught the attention of the FBI. When Lindblom and the Foundation later got wind of the FBI's interest they asked the Bureau, pursuant to the Freedom of Information Act, 5 U.S.C. 552(a), for copies of all documents it had relating to them. The FBI informed them that it had a file on Lindblom consisting of 23 pages of materials and that, although the FBI did not have a file on the Foundation, it had located in other files five pages on which the Foundation's name appears. (For the purposes of this case, the distinction between a "file" and the statutory term "record" is immaterial and we use the terms interchangeably.) The FBI released redacted copies of several of the documents relating to Lindblom and the Foundation but refused to release others, invoking exemptions 1, 2, 7(C), and 7(D) to the FOIA. At least some of the documents that the FBI released from the Lindblom file refer to Lindblom's associational activities.
Displeased by the nature of the material released and dissatisfied because other material was withheld, Lindblom and the Foundation sued the FBI in District Court claiming that the Bureau's conduct violates their rights under the FOIA and under the First, Fifth, and Ninth Amendments to the Constitution of the United States. Lindblom also claimed that the FBI violated Section(s) (e)(7) of the Privacy Act, which forbids a government agency from maintaining records on an individual's first amendment activities unless the records are pertinent to and within the scope of an authorized law enforcement activity. In addition to monetary damages and an injunction, the parties asked the court to order the FBI to expunge its records concerning them and to refrain from maintaining any such records in the future.
After reviewing the documents in camera, the district court granted the FBI's motion for summary judgment. The court held that the documents were exempt from release under the FOIA and that the court's review of the documents had shown "that the investigation(s) referred to therein were not of the plaintiffs, but of others with whom the plaintiffs came into incidental (and, to appearances, innocent) contact." (Emphasis in original.)
On appeal, Lindblom and the Foundation have abandoned their claims under the FOIA and under the fifth and ninth amendments in favor of pursuing only their Privacy Act and first amendment claims. We begin by analyzing Lindblom's claim under the Privacy Act. We then turn to the appellants' ...