Legality and Propriety of FBI Acquisition of Private Papers ( 1978 )

November IS, 1978
78-60 MEMORANDUM OPINION FOR THE COUNSEL,
OFFICE OF PROFESSIONAL RESPONSIBILITY
Federal Bureau of Investigation—Constitutional
Law—Fourth Amendment—Privacy Act (5 U.S.C.
§ 5522)—Acquisition of Private Papers
This responds to your request for our opinion on the legality of the way in
which the Federal Bureau of Investigation (FBI) obtained personal papers on
the late John Forichette of Hastings, Minnesota, from his cousin, Mrs.
Marcella Faltersek, after his death in an automobile accident. Mr. Forichette
had openly been a member, of the Communist Party of Minnesota, and the
papers in question concerned that organization. The Minnesota Civil Liberties
Union (MCLU) has complained to Representative Bruce Vento that the FBI’s
action was unlawful because Mrs. Faltersek lacked authority to dispose of the
papers and because it infringed on the First Amendment rights of persons
named in them. Representative Edwards, chairman of the House Subcommittee
on Civil and Constitutional Rights, forwarded the MCLU’s letter to the Office
of Professional Responsibility together with a response from the Director of
the FBI. He has requested your views on the legality and propriety of the FBI’s
actions.
This matter raises the following legal issues: First, did the Fourth
Amendment permit the FBI to obtain the papers from Mrs. Faltersek? Second,
did the Privacy Act, 5 U.S.C. § 552a, or the Attorney General’s guidelines
implementing that Act, permit the FBI to obtain and copy the papers? After
careful consideration of these issues, we have concluded that the FBI’s action
was authorized by law.
We understand the facts to be as follows: Mr. Forichette was killed in an
automobile accident in Hastings, Minnesota, on June 14, 1978. Since Mr.
Forichette lived alone, Officer Ritter of the Hastings police entered his house
on June 15 to search for the names of next to kin. In the course of the search, he
found papers relating to the Communist Party and notified Special Agent
Nelson of the FBI. The officer also found the name of Mrs. Faltersek, a cousin
of Mr. Forichette, and informed her of his death.
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When Mrs. Faltersek arrived at the house on June 15, she told Officer Ritter
that she had been designated by Mr. Forichette’s closest relatives, an elderly
couple, to handle funeral arrangements and take charge of the personal
property. She then went through the house and found pamphlets, address
books, and other papers connected with Mr. Forichette’s Communist Party
activities. When she told Officer Ritter that she intended to destroy the
material, he suggested that the FBI might be interested and asked if she would
be willing to talk to them. Mrs. Faltersek agreed, and Ritter called the FBI to
arrange a meeting.
Accordingly, on June 19, 1978, two FBI agents and officers of the Hastings
Police Department met with Mrs. Faltersek and her husband outside Mr.
Forichette’s house. Mrs. Faltersek was told that the FBI was conducting an
investigation of the Communist Party and might have an interest in the
material maintained within the house. She stated that the FBI was free to take
whatever Communist material was maintained in Forichette’s residence because
she intended to discard it.
Mrs. Faltersek, using a key to the house, admitted the FBI agents, a police
officer, and her husband. After entering the house, one of the FBI agents
presented a written release to Mrs. Faltersek, which she signed. This release
authorized special agents of the FBI to examine all personal effects of John
Forichette and to take with them any items they desired. Mrs. Faltersek’s
signature was witnessed by a police officer and the two FBI agents.
All of the persons present, including Mr. and Mrs. Faltersek, spent
approximately 30 to 45 minutes collecting and examining Mr. Forichette’s
papers. The FBI agents departed with one suitcase and one cardboard box full
of miscellaneous documents relating to the Communist Party.
Mr. Forichette died intestate. Mrs. Faltersek was appointed administrator of
his estate on September 11, 1978, by the local probate court. The FBI has
stated that it will return the original papers to the estate on her written request.
The Communist Party of the United States is the subject of a foreign
counterintelligence investigation authorized and conducted under guidelines
promulgated by the Attorney General.
In substance, the FBI has borrowed the personal papers of a deceased person
from his estate for inspection and copying. The individual who loaned the
papers is now the administratrix of the estate; at the time of the loan she was
merely the agent of the deceased’s next of kin. The first question is whether this
transaction is a reasonable seizure under the Fourth Amendment.
Assuming for the moment that the FBI has “ seized” the papers,1 the general
issue is whether that seizure is authorized by Mrs. Faltersek’s consent. As a
'The Eighth Circuit has defined a “ seizure” as an involuntary dispossession and retention of
property under color o f authority. See, United States v. Lacey, 530 F. (2d) 821, 823 (8th Cir.
1977); Caldwell v. United States, 338 F. (2d) 385, 388 (8th Cir. 1964); United Stales v. Nicholas,
448 F. (2d) 622, 624 (8th Cir. 1971); Wilhelm v. Turner, 431 F. (2d) 177, 179-80 (8th Cir. 1970).
Since the FBI has obtained the papers with the consent of Mrs. Faltersek and will return them at her
request, we doubt whether the transaction can even be characterized as a “ seizure” under the
Fourth Amendment.
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rule, consent to search premises or seize property may be voluntarily given by
one “ generally having . . . access or control .for most purposes, so that it is
reasonable to recognize that [he] has the right to permit the inspection in his
own right. . . .” UnitedStates v. Matlock, 417 U.S. 164, 171, n. 7 (1974); see,
Coolidge v. New Hampshire, 405 U.S. 443, 488-89 (1971); Frazier v. Cupp,
394 U.S. 731, 740 (1969). As owner of the papers,2 there is no question that
Mr. Forichette could have voluntarily disclosed them to the FBI. Mrs. Faltersek
did so.3 The specific question is thus whether she had sufficient authority under
the Minnesota law of decedent’s estates to act as Mr. Forichette could have.
In Minnesota, the property of an intestate devolves to his heirs at death,
subject to administration.4 The administrator is entitled to possession of all
personal property and takes title in trust for the benefit of the estate.5 The
administrator has broad power to dispose of the estate’s property, including the
power to abandon property he believes to be of no value.6 In the exercise of his
powers, the administrator is a fiduciary for the estate, and any heirs or creditors,
may sue for breach of fiduciary duty.7 The administrator’s powers are to be
exercised “ for the best interests of successors to the estate.” 8
One cannot act as administrator without a court appointment.9 However,
actions taken before an administrator is appointed are not necessarily invalid,
for the Minnesota statute provides:
The duties and powers of a personal representative commence upon
his appointment. The powers of a personal representative relate back
in time to give acts by the person appointed which are beneficial to
the estate occurring prior to the appointment the same effect as those
occurring thereafter. . . . A personal representative may ratify and
accept acts by others which would have been proper for a personal
representative.10
The purpose of this provision is to give the administrator authority nunc pro
tunc from the time of death." The administrator succeeds to the decedent’s
standing to assert any legal rights which survive death.12
2None of the persons interested in this matter has claimed that Mr. Forichette did not own the
papers in question. We note that whether Mr. Forichette was the owner of the papers or merely held
them for others, the Fourth Amendment gave the Communist Party and any third persons named in
the papers no protected expectation that he would not voluntarily turn them over to the FBI. See,
United Slates v. Miller, 425 U.S. 435, 440-43 (1976).
3No person connected with this case has claimed that Mrs. Faltersek's consent was not free and
voluntary.
. “Minn. Stat. § 524.3-101.
3Minn. Stat. § 524.3-709.
6Minn. Stat. § 524.3-7l5(ii)..
7Minn. Stat. §§ 524.3-703, 524.3-712; see Minn. Stat. § 524.1-201(20).
"Minn. Stat. § 524.3-703(a).
9Minn. Stat. § 524.3-103.
l0Minn. Stat. § 524.3-701.
"See Uniform Probate Code § 3-701, comment. The Minnesota statute is identical to the
Uniform Act.
l2Minn. Stat. § 524.3-70(b).
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Thus, Mrs. Faltersek essentially had the same relation to the estate’s property
as Mr. Forichette had when alive, including the power to transfer or abandon it.
She was permitted to exercise her power in any way not harmful to the estate,
and she was amenable only to its creditors or the heirs for any financial loss her
handling of the property incurred. In particular, she could relinquish possession
or control of property which she believed to be of no value, subject to the heirs’
claim for any loss caused by her misjudgment. That power was deemed by
State law to have existed from the time of Mr. Forichette’s death.13 As the
person legally authorized to possess and dispose of the estate’s property, Mrs.
Faltersek had full authority to abandon the Communist Party records. This
necessarily included the lesser authority to consent to their permanent, or in this
case temporary, removal by the FBI. We therefore conclude that the Fourth
Amendment did not prohibit the FBI from accepting the records from Mrs.
Faltersek.
The next question is whether the Privacy Act, 5 U.S.C. § 552a, prohibited
the FBI from obtaining, analyzing, and retaining copies of the records. As a
preliminary matter, we note that only an “ individual” has rights and remedies
under the Privacy Act; associations have none apart from the separate rights of
their members.14 Further, the Act applies only to collection, retention, and
dissemination of information about an individual that is retrievable by name or
an equivalent personal identifier.15 Thus, the Act applies only to the FBI’s
collection, retention, and use of information concerning individual Communist
Party members.
The relevant portion of the Privacy Act is 5 U.S.C. § 552a(e)(7), which
provides:
Each agency that maintains a system of records shall—
(7) maintain no record describing how any individual exercises his
rights guaranteed by the First Amendment unless expressly author­
ized by statute or by the individual about whom the record is
maintained or unless pertinent to and within the scope of an
authorized law enforcement activity. [Emphasis added.]16
The underlined language was added to the statute in a floor amendment
sponsored by Representative Ichord. He stated that the purpose of the
amendment was to permit the FBI to investigate illegal activity undertaken by
l3We are aware that only authority for acts “ beneficial” to the estate relates back before the
administrator's appointment. Minn. Stat. § 524.3-701. W hile we cannot authoritatively construe
this question of State law, we believe that it means only that the administrator would be strictly
liable for any loss to the estate from these dealings, rather than liable as a fiduciary under the
“ prudent m an” rule. Cf., Minn. Stat. § 524.3-703(a).
'*See 5 U.S.C. §§ 552a(2), (4), (c)(3), (d), (e)(l)-(3), (5)-(8), (f), (g); Am. Federation of
Government Employees, Local 2047 v. Defense General Supply Center, 423 F. Supp. 481 (E.D.
Va. 1976).
I55 U.S.C. § 552a(a)(4)-(5).
l6The FBI Central Records System (Justice/FBI 002) has been exempted from the provisions of 5
U.S.C. § 552a(e)(l). See 5 U .S.C. 552a(k)(2); 43 F.R. 44694 (Sept. 28, 1978).
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the Communist Party and similar organizations under the guise of political
activity protected by the First Amendment. He further stated that the amend­
ment was not intended “ to hurt in any way the exercise of the first amendment
rights.” 17 Thus, 5 U.S.C. § 552a(e)(7) permits the FBI to maintain a record of
an individual’s activities relating to the First Amendment when, but only when,
those activities are involved in conduct which is the subject of an otherwise
authorized law enforcement investigation by the FBI.
In our view, the FBI has complied with subsection (e)(7) in this case.
Investigation of the Communist Party has been specifically authorized by the
Attorney General as a foreign counterintelligence investigation under 28
U.S.C. § 533(3), Executive Order No. 12036, §§ 1-1401, 2-208(j), 4-202, and
the Attorney General’s procedures for the conduct of such investigations.18 To
date, the FBI has not opened or initiated any new individual files on the basis of
the Forichette papers. The material is being evaluated, and individual investiga­
tions will be undertaken only if authorized under the Attorney General’s
procedures or if other possible violations of law are revealed. These investiga­
tions would be duly authorized, and the maintenance of records on the
association of individuals concerned with the Communist Party would be
permitted if pertinent to the investigation.19
To summarize, the FBI is conducting its investigation of the Communist
Party as a foreign counterintelligence investigation under appropriate authority.
In the course of this investigation, Mrs. Faltersek voluntarily provided the FBI
with temporary use of papers relating to the Communist Party which were
lawfully in her possession and which, under the law of Minnesota, she had the
authority to abandon entirely. The Fourth Amendment permits the FBI to
acquire the papers in this manner. Since the papers concern associational
activity protected by the First Amendment, the Privacy Act permits the FBI to
maintain retrievable records of individuals mentioned in them only when
pertinent to and within the scope of the authorized investigation of the
Communist Party. Insofar as we are aware, the FBI intends to proceed
accordingly.
M ary C . L aw ton
Deputy Assistant Attorney General
Office of Legal Counsel
17120 Cong. Rec. 36957 (1974); see also 120 Cong. Rec. 36644 (Representative Moorhead),
36650 (Representative lchord).
1“Representative lchord stated that he was using the term "law enforcement” in its broadest
sense, to include legitimate "national or internal security investigations” authorized by statute or
Executive order. 120 Cong. Rec. 36651 (1974).
l9The Privacy Act notice for the FBI Central Records System (Justice/FBI 002) states: “ It should
be noted that the FBI does not index all individuals that furnish information or names developed in
an investigation. Only that information that is considered pertinent and relevant and essential for
future retrieval, is indexed.” 43 F.R. 44693 (Sept. 28, 1978).
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