CONSTITUTIONAL LAW--NARROWLY READING LAW ENFORCEMENT ACTIVITY EXCEPTION TO PRIVACY ACT IN FAVOR OF PRIVACY RIGHTS--GARRIS V. FBI, 937 F.3D 1284 (9TH CIR. 2019).

AuthorRyan, Megan

One of the core civil rights granted by the Constitution is the First Amendment's protection of free speech and expression. (1) To further safeguard First Amendment rights and protect citizens' right to privacy, Congress passed the Privacy Act in 1974, which states in part: "[e]ach agency that maintains a system of records shall ... maintain no record describing how any individual exercises rights guaranteed by the First Amendment... unless pertinent to and within the scope of an authorized law enforcement activity." (2) In Garris v. FBI, (3) the Ninth Circuit considered whether a government agency can maintain such a record, if its creation is permissible under the Privacy Act's law enforcement activity exception. (4) The court held that "unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain [this type of record]" under the law enforcement activity exception of the Privacy Act. (5)

Eric Anthony Garris is the founder, managing editor, and webmaster of Antiwar.com, a news platform serving as an alternative outlet to mainstream media. (6) In 2011, Garris learned of a memo, created in 2004 ("2004 Memo") by the Federal Bureau of Investigation's ("FBI") Newark, New Jersey office, which detailed an investigation into Antiwar.com. (7) The FBI created the 2004 Memo after the agency discovered a twenty-two-page Excel spreadsheet from October 2001, which had been posted on Antiwar.com and appeared to be a potential FBI watchlist. (8) Although FBI analysts recommended in the 2004 Memo that the FBI's San Francisco Field Office further monitor Antiwar.com and open a preliminary investigation to determine if the website was a threat to national security, the San Francisco Field Office declined this recommendation and ultimately determined that Antiwar.com was not a threat. (9) The 2004 Memo included Antiwar.com's mission and information on Garris--specifically, his political views and his "articles, opinions, statements, or speeches[.]" (10)

In May 2013, Garris's request that the FBI expunge all records that detailed his First Amendment activities was denied; he subsequently filed a complaint and alleged that the creation and maintenance of the 2004 Memo violated the law enforcement activity exception of the Privacy Act. (11) Additionally, Garris sought disclosure of the FBI's documents about him under the Freedom of Information Act. (12) The United States District Court for the Northern District of California granted summary judgment to the FBI for Garris's Privacy Act claim; however, because of Garris's continued Freedom of Information Act claims, he later learned of the Halliburton Memo ("Halliburton Memo"). (13) The Halliburton Memo, created in 2006 by the FBI's Oklahoma City Field Office, contained information about an annual Halliburton shareholders' meeting that Antiwar.com had previously posted information about. (14) Garris consequently moved for reconsideration of his Privacy Act claims, given the new information cited in the Halliburton Memo; however, the district court denied his motion for reconsideration and granted summary judgment for the FBI. (15) Garris appealed his Privacy Act claims, and the Ninth Circuit held that a record must be pertinent to be maintained as an ongoing law enforcement activity. (16) Accordingly, the Ninth Circuit concluded that the 2004 Memo must be expunged, but ruled that the Halliburton Memo was pertinent to an ongoing law enforcement activity and therefore could be maintained. (17)

In 1974, Congress enacted the Privacy Act, with the primary goal to protect privacy rights in response to both computer technology advancements and concerns of governmental abuse in the "computerization, collection, management, use, and disclosure of personal information about individuals." (18) The Privacy Act sets out to accomplish this goal in several major ways; first, the Act requires agencies to give detailed information about their personal data banks, information systems, and computer resources. (19) Second, agencies must abide by standards formed to: protect individuals' privacy and due process rights; uphold the handling and processing of information in data banks; and preserve information security and information systems. (20) Third, to truthfully restrain agencies' handling of personal data, the Act provides for a citizen's right "to be told upon request whether or not there is a government record on him or her, to have access to it, and to challenge it with a hearing upon request." (21) Lastly, Congress required the Privacy Protection Commission, established under the Privacy Act, to complete a study of the major information systems of governmental agencies and recommend changes to protect individuals' privacy. (22) While the Privacy Act aims to protect the privacy of individuals if a record is "pertinent to and within the scope of an authorized law enforcement activity," the protections preventing agencies from maintaining records "describing how any individual exercises rights guaranteed by the First Amendment" are inapplicable. (23)

While the Privacy Act clearly states an exception to maintaining records related to First Amendment activities, the appellate courts have varied in their interpretation of the law enforcement activity exception. (24) In Clarkson v. IRS, the Eleventh Circuit held that the IRS violated the Privacy Act "to the extent that the IRS has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce." (25) Conversely, the Sixth Circuit in Jabara v. Webster allowed the FBI's maintenance of records on Jabara--despite finding that the records were not related to any specific criminal act--and held that the law enforcement activity exception will be too narrowly interpreted if it only requires records to relate to an investigation of criminal activity. (26) Similar to the Sixth Circuit, the Third Circuit, in Patterson v. FBI, also interpreted the law enforcement activity exception as "requiring] agencies 'to demonstrate that any and all records maintained on an individual's exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency, and that there exists a sufficient basis for the maintenance of such records.'" (27) The D.C. Circuit held in J. Roderick MacArthur Foundation v. FBI that "if the information was pertinent to an authorized law enforcement activity when the agency collected the information," the agency was not prohibited from maintaining records about an individual's First Amendment activities, and did not need to expunge the records when they were no longer pertinent to law enforcement activity. (28) While both the Seventh and Eighth Circuits have had this issue before them, neither have adopted a specific standard for interpreting the law enforcement activity exception. (29)

In 1986, the Ninth Circuit interpreted the law enforcement activity exception of the Privacy Act in MacPherson v. IRS--the only decision in the Ninth Circuit prior to Garris. (30) As part of its surveillance of the tax protester movement, the IRS attended several events at which MacPherson spoke. (31) In an effort to identify leaders of the tax protest movement and determine protester strategies, the IRS maintained notes and recordings of MacPherson's speeches in a file titled "Tax Protest Project File" in two IRS offices, and later distributed the files to three more IRS offices, the Department of Justice, and additional third parties. (32) Notably, IRS surveillance of MacPherson did not uncover any illegal activity on his part, nor was he suspected or accused of any past, present, or anticipated illegal conduct. (33) Despite this, the Ninth Circuit affirmed the district court's finding in favor of the IRS, and noted that there was no indication that the IRS planned to use the records for any purpose other than to give a complete picture of the conference where MacPherson spoke. (34) Distinct from the circuits that have adopted a rule interpreting the law enforcement activity exception, the Ninth Circuit "decline[d] to fashion a hard and fast standard[,]" and instead "elect[ed] to consider the factors for and against the maintenance of such records of First Amendment activities on an individual, case-by-case basis." (35)

In 2019, the Ninth Circuit in Garris v. FBI considered whether the Privacy Act required the FBI's 2004 Memo and Halliburton Memo to be "pertinent to an ongoing law enforcement activity to be maintained." (36) The court looked to the text of the Privacy Act, and the definitions of its specific words used, and determined that because the statute defined "maintain" as "maintain, collect, use, or disseminate," the word "maintain" in the Privacy Act can be read "as it is, or replaced with 'collect' (or 'use,' or 'disseminate')."37 This analysis of statute's language led to the court's conclusion that "the most reasonable reading of the statute as a whole is that the record must be pertinent to an authorized law enforcement activity both 'at the time of gathering, i.e., collecting, [and] at the time of keeping, i.e., maintaining.'" (38) To support its conclusion, the court...

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