Bassiouni, Mahmoud v. FBI ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3888
MAHMOUD C. BASSIOUNI, also known
as CHERIF BASSIOUNI,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 8918—Joan Humphrey Lefkow, Judge.
____________
ARGUED JUNE 9, 2005—DECIDED JANUARY 30, 2006
____________
Before RIPPLE, MANION and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Pursuant to the Privacy Act, 5 U.S.C.
§ 552a, Mahmoud Cherif Bassiouni sought to amend records
maintained by the Federal Bureau of Investigation (“FBI” or
the “Bureau”) that pertained to his contacts with, and
activities concerning, the Middle East. After exhausting his
administrative remedies, Mr. Bassiouni filed this action
under the Privacy Act’s enforcement provisions, id.
§ 552a(g). The district court granted summary judgment to
2 No. 04-3888
the FBI; it held that the records were exempt from the
Privacy Act’s amendment requirements. Mr. Bassiouni now
appeals. For the reasons set forth in the following opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A. The Privacy Act—An Overview
Because this case requires an understanding of the Privacy
Act, we shall depart from our usual format and set forth an
analysis of its pertinent provisions before turning to the
background of this case.
1.
a. general provisions
Under the Privacy Act, agencies, such as the FBI, that
1
maintain “a system of records” concerning individuals are
required to do so “with such accuracy, relevance, timeliness,
and completeness as is reasonably necessary to assure
fairness to the individual.” Id. § 552a(e)(5). In addition to the
accuracy requirement, agencies are prohibited from main-
taining certain types of information in those records,
including information “describing how any individual
exercises rights guaranteed by the First Amendment.” Id.
1
A system of records is defined as “a group of any records
under the control of any agency from which information is
retrieved by the name of the individual or by some” other
identifying characteristics. 5 U.S.C. § 552a(a)(5). The parties agree
that the FBI’s Central Records System is such a “system of
records.”
No. 04-3888 3
§ 552a(e)(7). The prohibition on maintaining First
Amendment-related records, however, does not apply when
those records are “pertinent to and within the scope of an
2
authorized law enforcement activity.” Id. The Act does not
define a “law enforcement activity,” and the phrase does
not appear elsewhere in the statute.
In addition to setting forth limitations on agency record
keeping, the Act also contains remedial measures. The Act
first provides an individual with the right to access his
records upon request, id. § 552a(d)(1), and allows him to
request amendment or correction of his records, id.
§ 552a(d)(2). In response to such a request, the agency either
must amend the records or inform the individual of its
reason for refusing to amend. Id. § 552a(d)(2)(B). An indi-
vidual unsatisfied with the agency’s response may pursue
an administrative appeal. Id. § 552a(d)(3). If the internal
mechanism fails to resolve the individual’s request, he may
seek review of the agency’s decision in federal court. See id.
§ 552a(g)(1)(A)-(B).
b. exemptions
In some cases, agencies may exempt certain record
systems from Privacy Act requirements and, specifically for
our purposes, the § 552a(d) amendment process. Section
552a(j), entitled “General exemptions,” allows the head of
an agency “to exempt any system of records within the
2
Specifically, 5 U.S.C. § 552a(e)(7) provides that an agency shall:
maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless expressly
authorized 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.
4 No. 04-3888
agency from any part of” the Act if the system is maintained
by a law enforcement agency and if the information con-
cerns certain criminal investigation functions. Id.
§ 552a(j)(2). Under this section, however, an agency may not
exempt a system of records from § 552a(e)(7), which
prohibits an agency from maintaining records describing an
individual’s exercise of his First Amendment rights. See id.
§ 552a(j).
In addition to the general exemption provision, agencies
may exempt record systems from specific sections of the Act
if the records are maintained “for law enforcement pur-
poses.” Id. § 552a(k)(2). The amendment process of § 552a(d)
3
is among those that may be exempted. Id. § 552a(k). Yet,
although an agency may exempt its record system from the
amendment process, the agency still may not keep records
of activity that is protected by the First Amendment.
c. remedial provisions
The Privacy Act provides limited civil remedies for
individuals seeking redress for an agency’s noncompliance.
The Act allows an individual to seek redress in federal court
if an agency does not allow the individual to review his
record as required by § 552a(d)(1), see id. § 552a(g)(1)(B), or
if an agency has refused to amend a record, see id.
4
§ 552a(g)(1)(A). An individual also may challenge an
3
The FBI properly has exempted its Central Records System
from § 552a(d)’s amendment process pursuant to § 552a(k). See 28
C.F.R. § 16.96.
4
Both § 552a(g)(1)(A) and § 552a(g)(1)(B) refer specifically to the
provisions of § 552a(d) to which they apply. Neither civil suit
(continued...)
No. 04-3888 5
agency’s failure to maintain records with the accuracy,
relevance, timeliness and completeness required by
§ 552a(e)(5), but only if the plaintiff demonstrates that the
agency action had an “adverse” effect on him. Id.
§ 552a(g)(1)(C). Similarly, § 552a(g)(1)(D) provides a catch-
all cause of action for circumstances in which an agency
“fails to comply with any other provision” of the Act;
however, like the relief provided in § 552a(g)(1)(C), “an
adverse effect on an individual” is also a prerequisite to a
§ 552a(g)(1)(D) action.
2.
At the heart of this dispute is the interplay between
§ 552a(e)(7)’s protection against maintenance of records
concerning First Amendment activities and that same
subsection’s built-in exemption for records “pertinent to and
within the scope of an authorized law enforcement activity.”
However, the Act nowhere defines “law enforcement
activity” as used in subsection (e)(7). We turn, therefore, to
the Privacy Act’s legislative history for further guidance in
discerning the meaning of this term.
The Privacy Act’s lack of precision in defining law
enforcement activity may be attributed to the circumstances
of its drafting and passage. The Act passed quickly in the
late months of the 93rd Congress. As one commentator
noted:
Passage of the . . . Act was both aided and hindered by
the Congress’ focus on Watergate and the impeachment
4
(...continued)
provision requires the plaintiff to show that he suffered harm as
a result of the challenged agency action.
6 No. 04-3888
hearings involving former President Nixon: aided,
because the Watergate scandals had involved allega-
tions of illegal wiretapping and surveillance of private
citizens by federal agencies; and hindered, because the
impeachment process left little time for other legislation
until the closing months of the session.
Cornish F. Hitchcock, Overview of the Privacy Act, in Guide-
book to the Freedom of Information and Privacy Acts 2-28
(Justin D. Franklin & Robert F. Bouchard eds., 2d ed. 2005)
(hereinafter “Guidebook”).
“Congress felt it was important to pass some kind of
privacy protection before adjourning,” id. at 2-27, and two
bills concerning the limits of governmental intrusion into
personal privacy were proposed in the Senate and in the
House of Representatives, see S. 3418, 93d Cong. (1974),
reprinted in Legislative History of the Privacy Act of 1974:
Source Book on Privacy 9 (GPO 1976) (hereinafter “Source
Book”); H.R. 16373, 93d Cong. (1974), reprinted in Source
Book 239. Neither bill represents the final version of the
Privacy Act. Indeed, due to time constraints, the bills were
not reconciled through a formal conference. See Guidebook
2-27. Rather, members from the respective House and
Senate committees “met informally and agreed on a com-
promise.” Steven W. Becker, Maintaining Secret Government
Dossiers on the First Amendment Activities of American Citi-
zens: The Law Enforcement Activity Exception to the Privacy
Act, 50 DePaul L. Rev. 675, 695 (2001) (citing 120 Cong. Rec.
40,400 (1974) (statement of Sen. Ervin), reprinted in Source
Book 846).
During the compromise process, certain provisions were
incorporated from both the House and Senate versions and,
in some circumstances, entirely new material was added. At
the close of the process, House and Senate staff members
No. 04-3888 7
prepared an “Analysis of House and Senate Compromise
Amendments to the Federal Privacy Act.” See Source Book
at 858 (Senate); id. at 987 (House) (collectively hereinafter,
“Staff Analysis”). This document took the place of the
Conference Report, which usually represents “the most
definitive record of the legislative history and intent of the
law as enacted.” Guidebook 2-32.
However, despite the limited legislative history, it is
evident that Congress expressed particular concern with the
Government’s action in collecting information about citi-
zens’ exercise of their First Amendment rights. Both the
Senate and the House versions of the bill contained
protections to address these concerns. In the Senate bill,
section 201(b)(7) provided that an agency shall “establish no
program for the purpose of collecting or maintaining
information describing how individuals exercise rights
guaranteed by the first amendment unless the head of the
agency specifically determines that such program is re-
quired . . . .” S. 3418 § 201(b)(7), reprinted in Source Book 130.
The Senate committee report explained that section 201(b)(7)
reflect[ed] the preferred status . . . accord[ed] to infor-
mation touching areas protected by the First Amend-
ment . . . . It [wa]s aimed at protecting Americans in the
enjoyment of the privacy of their thoughts, habits,
attitudes and beliefs in matters having nothing to do
with the requirements of their dealings with an agency
seeking information.
S. Rep. No. 93-1183, at 56 (1974), reprinted in Source Book
209. Moreover, the committee noted, section 201(b)(7) was
“directed to the planning stage of any . . . programs being
designed for the principle purpose of identifying Americans
who exercise their rights under the First Amendment,” and
was “aimed particularly at preventing collection of pro-
tected information not immediately needed, about law-
8 No. 04-3888
abiding Americans, on the off-chance that Government or
the particular agency might possibly have to deal with them
in the future.” S. Rep. No. 93-1183, at 57, reprinted in Source
Book 210. Section (e)(4) of H.R. 16373, the House equivalent
5
to § 201(b)(7), was both broader and narrower than the
Senate version; it stated simply that an agency shall
“maintain no record concerning the political or religious
belief or activity of any individual, unless expressly autho-
rized by statute or by the individual about whom the record
is maintained.” H.R. 16373 § 552a(e)(4), reprinted in Source
Book 285; see H.R. Rep. No. 93-1416, at 16, reprinted in
Source Book 309.
After the bills were proposed in both Houses of Congress,
members expressed concern that the analogues to
§ 552a(e)(7) were overly broad and would hamper legiti-
mate law enforcement efforts. For example, a sponsor of
H.R. 16373 assured the House that section 552a(e)(4) would
not prevent the FBI from “maintaining records as to political
beliefs” if the records concerned the Communist Party or
other groups dedicated to the violent overthrow of the
Government. See 120 Cong. Rec. 36,444-45, reprinted in
Source Book 885-86.
This concern prompted Representative Ichord to propose
a proviso to section 552a(e)(4), which was adopted in the
final version of H.R. 16373: “Provided, however, That the
provisions of [section 552a(e)(4)] shall not be deemed to
prohibit the maintenance of any record of activity which is
pertinent to and within the scope of a duly authorized law
enforcement activity.” See H.R. 16373 § 552a(e)(4), reprinted
in Source Book 447. In introducing his amendment, Repre-
sentative Ichord articulated his concerns that the broadly
5
With an amendment discussed below, H.R. 16373 is the direct
precursor to 5 U.S.C. § 552a(e)(7).
No. 04-3888 9
worded section 552a(e)(4) might allow subversive groups to
use the First Amendment as a cover for illegal activities:
[I]n its present form it is clear that [section 552a(e)(4)]
can be construed to cover activities which are properly
within the scope of legitimate law enforcement. I am
assured that the authors of this measure have not
intended the provisions to foreclose this proper pur-
pose.
The terms of the broad prohibitions on maintenance
of records relating to “political” and “religious” activi-
ties would, for example, embrace the activities of the
Communist Party and similar groups, which, although
generally recognized as conspiratorial or clandestine,
are nevertheless commonly described as “political.”
Similarly, certain sects within the Black Muslim move-
ment, which have been described by the Director of the
FBI as endangering the internal security, may claim
protection under this clause as a “religious” activity.
Although those records of political or religious
activity which are “expressly authorized by statute,” are
excepted from the prohibitions of this paragraph, this is
not adequate to exempt the activities of such subversive
groups as I have indicated. I know of no existing or
enforceable statute which expressly and generally
authorizes any particular agency to maintain the
records of political or religious activities of subversive
groups. . . .
I believe this clarifying amendment would obviate
any ambiguities as to the reach of the prohibition, and
would serve to eliminate any adverse litigation on the
subject.
120 Cong. Rec. 36,650 (1974) (statement of Rep. Ichord),
reprinted in Source Book 900-01; see also Guidelines for
Implementing Section 552a of Title 5 of the United States
10 No. 04-3888
Code, 40 Fed. Reg. 28965 (1975), reprinted in Source Book
1074.
Representative Ichord then clarified that, “[i]n referring to
a ‘law enforcement activity’ [as used in 5 U.S.C. § 552a(e)(7)]
and ‘law enforcement purposes’ [as used in 5 U.S.C.
§ 552a(k)(2)], I am of course, using the expression ‘law
enforcement’ in its general meaning and in the broadest
reach of the term.” 120 Cong. Rec. 36,651, reprinted in Source
Book 902. He continued:
I want to emphasize—so that there is no misunder-
standing—these changes are designed to protect only
legitimate national or internal security intelligence and
investigations, and no records or files shall be kept on
persons which are not within constitutional limitations.
Let the legislative history be explicit. None of these
changes are intended to abridge the exercise of first
amendment rights. The rights of Americans to dissent
in a lawful manner and for lawful purposes must be
preserved.
Id., reprinted in Source Book 902-03.
The provision that had been section 552a(e)(4) in H.R.
16373 emerged from the informal compromise process in its
current form, 5 U.S.C. § 552a(e)(7). The final provision
somewhat broadened H.R. 16373’s protections, by adopting
S. 3418’s protection of “rights guaranteed by the First
Amendment” as opposed to H.R. 16373’s protection of “the
political or religious belief or activity of any individual.”
Source Book 385. However, the compromise bill also
adopted Representative Ichord’s exception for “law enforce-
ment activity.” The only statement concerning the compro-
mise section came from the congressional staff analysis, and
added little toward interpreting the scope of the term “law
enforcement activity”:
No. 04-3888 11
The compromise broadens the House provisions [sic]
application to all First Amendment rights and directs
the prohibition against the maintenance of records.
However, as in the House bill, it does permit the main-
tenance, use, collection or dissemination of these
records which are expressly authorized by statute or the
individual subject or are pertinent to a duly authorized
law enforcement activity.
See Staff Analysis, reprinted in Source Book 860.
3.
After reviewing the text of 5 U.S.C. § 552a and the legisla-
tive history, we believe that certain principles are clear.
First, in enacting § 552a, Congress was motivated by a
general concern with the potential for abuse if the Govern-
ment is allowed to collect political dossiers about American
citizens. Second, Congress was concerned that overly
restrictive limitations on the Government’s ability to collect
criminal intelligence would hamper legitimate law enforce-
ment efforts. Third, Congress’ concern about restricting law
enforcement was highest in areas of agency activity affect-
ing the security of our Nation. In our decision, we must
acknowledge these legislative concerns in order to give
effect to the intent of Congress.
B. Facts
Mr. Bassiouni, a law professor at DePaul University, is a
former president of the Association for Arab-American
University Graduates (“AAAUG”) and of the Mid-America
Arab Chamber of Commerce (“AACP”). His academic work
12 No. 04-3888
focuses on the fields of international law and human rights,
and he has extensive experience in these areas.
In a letter dated November 22, 1999, Mr. Bassiouni
requested access to any records concerning himself or his
activities that were in the possession of the FBI’s Central
Records System. On March 23, 2001, the FBI released forty-
nine pages of redacted records accompanied by a transmit-
tal sheet dated 1983. The materials consisted of several
Bureau memoranda carrying dates from 1970 to 1975. One
of the memoranda contained excerpts from a speech that
Mr. Bassiouni had given to the AACP in 1973; it, however,
did not report the full text of the speech. The records
referenced a number of groups described as “terrorist,” and
one group, the Popular Front for the Liberation of Palestine
(“PFLP”), currently is listed among the designated Foreign
Terrorist Organizations by the United States Department of
State. None of the record memoranda concluded that Mr.
Bassiouni was a member of a terrorist organization. Mr.
Bassiouni denies any such membership, and the FBI con-
cedes that it does not suspect him of ties to terrorist groups.
On April 23, 2001, Mr. Bassiouni requested that the FBI
amend his records pursuant to the Privacy Act, 5 U.S.C.
§ 552a. He claimed that the amendment was required
because, among other things, (1) the records were inaccurate
and incomplete; (2) the records described activities pro-
tected by the First Amendment; and (3) the records were
outdated. On February 6, 2002, the FBI denied his request
on the ground that the records were exempt from amend-
ment under the Act because the “information is a reason-
ably accurate, relevant, and timely account of the results of
our investigation and is completely relevant to the investi-
gative purpose for which it was collected.” R.1, Ex.C. On
March 4, 2002, Mr. Bassiouni then filed an internal appeal.
The FBI denied his appeal but suggested that he could
No. 04-3888 13
forward a “Statement of Disagreement,” which would be
included in the file. Id., Ex.E. Mr. Bassiouni did not send a
statement but instead brought this action for declaratory
and injunctive relief pursuant to 5 U.S.C. § 552a(g)(1).
C. District Court Proceedings
Mr. Bassiouni’s suit alleged that the FBI maintained
records on him that were untimely, were inaccurate and
contained information with respect to his First Amendment
activities, all in violation of the Act. See 5 U.S.C. § 552a(e)(5),
(e)(7). In addition to costs and fees, he sought (1)
expungement of the records from the Central Records
System; (2) an injunction prohibiting the maintenance of
such records; and (3) “such further relief as th[e District]
Court deems just and proper.” R.1-1 at 3.
The FBI moved to dismiss the action for failure to state a
claim upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6). It maintained that Mr. Bassiouni’s suit was barred
by the statute of limitations, that the Bureau’s records were
exempt from Mr. Bassiouni’s Privacy Act claim and that Mr.
Bassiouni failed to allege any adverse effect from the
Bureau’s maintenance of his records. The district court
rejected the FBI’s arguments and held that Mr. Bassiouni’s
complaint stated a claim for relief.
The parties later filed cross-motions for summary judg-
ment. Mr. Bassiouni argued that he was entitled to sum-
mary judgment on both his § 552a(e)(5) and § 552a(e)(7)
claims. According to Mr. Bassiouni, the file maintained by
the FBI violated § 552a(e)(5) because it included references
to a number of organizations, with the exception of the
AAAUG, with which Mr. Bassiouni never had been associ-
ated. Not only was the inclusion of this “highly prejudicial
and inflammatory” material irrelevant, continued Mr.
14 No. 04-3888
Bassiouni, it also was untimely because the file indicated
that the FBI’s investigation of him “was terminated in 1975.”
R.19, Memorandum of Law at 4-5. Finally, Mr. Bassiouni
alleged that the file was not complete because it contained
a summary, as opposed to the full text, of a speech that he
had given.
Mr. Bassiouni also claimed that he was entitled to sum-
mary judgment on his § 552a(e)(7) claim because it was
undisputed that his file contained information regarding his
First Amendment activities. According to Mr. Bassiouni,
these records did not fall within the exception for law
enforcement activities set forth in § 552a(e)(7). Also, relying
on this court’s decision in Becker v. Internal Revenue Service,
34 F.3d 398 (7th Cir. 1994), Mr. Bassiouni argued that, even
if the initial collection of the information contained in the
file was justified, “the agency must demonstrate that its
continued maintenance of records . . . is ‘pertinent to and
within the scope of an authorized law enforcement activ-
ity.’” Id., Memorandum of Law at 10 (citing Becker, 34 F.3d
at 409) (emphasis in original). Because the FBI had failed to
establish a legitimate law enforcement reason for maintain-
ing his records, Mr. Becker concluded, he was entitled to
summary judgment.
The FBI filed a cross-motion for summary judgment. With
respect to Mr. Bassiouni’s § 552a(e)(5) claim, the FBI ex-
plained:
The balance of Plaintiff’s complaint is that he is
entitled to amendment of the records pursuant to
section (d)(2) because they violate the standards for
accuracy established by section (e)(5). Although the
Privacy Act provides a method for individuals to seek
amendment of inaccurate records, 5 U.S.C. § 552a(d)(2)-
(3), it also permits agencies to exempt certain systems of
records from the record amendment provisions. See 5
No. 04-3888 15
U.S.C. § 552a(j) and (k). Relying on these provisions, the
FBI has promulgated regulations that specifically
exempt records maintained in its Central Records
System . . . from section (d)(2) to the extent that infor-
mation in this system is subject to exemption pursuant
to sections (j) and (k). . . . Thus the FBI is entitled to
summary judgment on Plaintiff’s (d)(2) claim if the
records in question are (1) maintained in the [Central
Records System] and (2) subject to the Privacy Act’s
exemption provisions.
Both of these criteria are met here. . . .
R.22, Memorandum at 7-8.
Turning to the § 552a(e)(7) claim, the FBI argued that it
was entitled to summary judgment because it had a legiti-
mate law enforcement purpose for maintaining the file on
Mr. Bassiouni. These law enforcement purposes were set
forth in the Declaration of Supervisory Special Agent James
Krupkowski (the “Krupkowski Declaration” or “Declara-
tion”) that was submitted with the Bureau’s motion for
summary judgment. The Declaration acknowledged that the
agency had determined that Mr. Bassiouni was not a
member of a terrorist organization. It further claimed that
the exact relevance of Mr. Bassiouni’s records was classified.
However, the Krupkowski Declaration submitted that Mr.
Bassiouni’s records were relevant to current “investigative
interests” because: (1) investigation of terrorism is the FBI’s
top priority; (2) due to his contacts, the FBI will continue to
receive information about Mr. Bassiouni and will need the
records to provide context with which to evaluate that new
information; and (3) the records are important for evaluat-
ing the credibility and veracity of the FBI’s sources. More-
over, the Declaration pointed out that, if there were a
terrorist event related to one of the groups with which Mr.
Bassiouni had contact, “there will be an intense interest in
what the FBI knew and when it knew it. Destruction or
16 No. 04-3888
amendment of the records would impede such an inquiry.”
R.22, Ex.1 ¶ 12.
The Bureau also offered a classified version of the
Krupkowski Declaration (“Classified Declaration”) for the
district court’s in camera inspection. See id., ¶ 2. The Classi-
fied Declaration purported to detail the FBI’s investigative
purposes. The district court, however, resolved the cross-
motions for summary judgment on the information con-
tained in the public Krupkowski Declaration alone.
In addressing the parties’ arguments, the district court
noted that § 552a(e)(5) and (e)(7) “do not, in themselves,
give rise to a cause of action.” R.36 at 7. “[I]t is the FBI’s
refusal to amend records under subsection (d)(3), rather
than its alleged violations of (e)(5) and (e)(7), that give rise
to this cause of action” pursuant to § 552a(g). Id. at 7-8.
The court further noted that § 552a(k)(2) allows the FBI to
exempt any system of records from the subsection (d)
administrative amendment process if the system of records
“contains investigatory material compiled for law enforce-
ment purposes.” Id. at 8 (quoting 5 U.S.C. § 552a(k)(2)).
Without extended discussion, the court also observed that
“the same analysis applies to the FBI’s alleged violations of
subsection (e)(7).” Id. at 9, n.1. Thus, the court determined
that Mr. Bassiouni could not maintain an action to amend
the records if they were compiled for a law enforcement
purpose, a fact established by the public Krupkowski
Declaration. Consequently, Mr. Bassiouni’s action for
declaratory and injunctive relief failed.
In this appeal, Mr. Bassiouni challenges only the district
court’s grant of summary judgment on his § 552a(e)(7) claim
that the FBI is illegally maintaining records concerning his
First Amendment activities; he does not challenge the
district court’s determination with respect to his claim
pursuant to § 552a(e)(5).
No. 04-3888 17
II
DISCUSSION
A. Standard of Review
We review the district court’s grant of a motion or
cross-motion for summary judgment de novo. Gazarkiewicz
v. Town of Kingsford Heights, Indiana, 359 F.3d 933, 939 (7th
Cir. 2004). “In considering cross-motions for summary
judgment, we are obliged to view all facts and draw all
reasonable inferences in a light most favorable to the party
against whom the motion under consideration is made,”
here Mr. Bassiouni. Id.B. Summary Judgment
As we have noted above, the central question on appeal is
whether the FBI’s maintenance of Mr. Bassiouni’s file
violates § 552a(e)(7). In addressing this issue, the parties
agree that the records contained in Mr. Bassiouni’s file
pertain to his First Amendment activities. We shall now
examine the matters on which there is disagreement.
6
Mr. Bassiouni presents several arguments on appeal. Mr.
Bassiouni submits that there is no support for the district
court’s holding that challenges based on § 552a(e)(7) only
may be brought under § 552a(g)(1)(C) or (D), and thus
require a showing of adverse effect. He also maintains that
6
Mr. Bassiouni first asserts that an agency may not exclude a
system of records from the requirements of § 552a(e)(7) by using
its discretion under § 552a(k)(2) to exempt the records from the
administrative amendment process. We agree with Mr. Bassiouni
on this point. The language of § 552a(k)(2) clearly precludes an
exemption for § 552a(e)(7), and further discussion on this point
is not warranted.
18 No. 04-3888
the district court erred by not considering his request for the
expungement of his records. Mr. Bassiouni finally claims
that he was entitled to judgment as a matter of law because
the FBI plainly is maintaining his records in violation of
§ 552a(e)(7).
The FBI makes one primary argument: It is entitled to
summary judgment on Mr. Bassiouni’s claims because its
maintenance of Mr. Bassiouni’s records is “pertinent to and
within the scope of an authorized law enforcement activity,”
and therefore complies with § 552a(e)(7).
7
We turn now to an analysis of these submissions.
7
At the outset, we must resolve one issue. At oral argument, the
FBI offered members of the panel access to the Classified
Declaration that purported to give greater detail concerning how
the matters contained in Mr. Bassiouni’s file are related to a law
enforcement activity. The FBI had offered to make this same
declaration available to the district court; however, as set forth
previously, the district court did not accept the FBI’s offer,
apparently in the belief that the public Krupkowski Declaration
was sufficient to establish the statutory requirements. We
accepted the FBI’s offer, and the members of this panel viewed
the Classified Declaration in camera.
After we had viewed the classified document, Mr. Bassiouni
moved to bar its consideration. In his motion, Mr. Bassiouni
maintains that we cannot consider the Confidential Declaration
because “he did not have the opportunity to object to it at the
district court level.” See Mot. Reconsid. Ct.’s Order Dated June 10,
2005, To Review Classified Declaration at 2-3.
We ordinarily hold fast to the principle that Federal Rule of
Appellate Procedure 10 was designed to ensure a complete
record, not to “facilitate collateral attacks on the verdict” with
documents that the district court did not consider. See Shasteen v.
Saver, 252 F.3d 929, 935 n.2 (7th Cir. 2001). However, we do not
(continued...)
No. 04-3888 19
7
(...continued)
believe that the evidentiary submission can be considered
“ordinary” for several reasons.
Although the Classified Declaration was not made a part of the
record below, both the district court and Mr. Bassiouni were
made aware of its existence, and its availability as evidence,
during briefing on the Bureau’s motion for summary judgment.
See R.22, Memorandum at 7 n.4. The Bureau renewed this offer in
its reply brief in support of summary judgment. See R.35 at 9
(“Should the [district court] find that the public record is not
sufficiently detailed, [it] should order an ex parte, in camera review
of the classified Krupkowski Declaration. . . .”). The district court
did not avail itself of the offer, choosing instead to rely on the
public declaration. The FBI made a similar offer to this court in its
appellate brief. See Appellee’s Br. at 11, 21. Mr. Bassiouni never
voiced any objection to this offer in any of his submissions to the
district court, nor did he join this issue in the briefing prior to oral
argument. Consequently, we do not believe that Mr. Bassiouni
was deprived of the opportunity to voice his objections to the
court’s consideration of that document.
Mr. Bassiouni also intimates, but does not argue directly, that
this court is precluded from considering the Classified Declara-
tion because Congress has not explicitly allowed for such
consideration in the language of the Privacy Act. Again, we are
not persuaded by this argument. Mr. Bassiouni has not pointed
to any statutory prohibition with respect to this type of submis-
sion. Additionally, implying such a prohibition would be at odds
with congressional concern that the Act not impede legitimate
law enforcement activities. We do not believe that Congress
meant to place law enforcement agencies in the catch-22 of either
divulging current investigatory activities or not asserting the law
enforcement exception specifically provided in the Act.
We agree with Mr. Bassiouni that, ideally, (1) the FBI (or other
law enforcement agencies) should proffer the evidence for in
(continued...)
20 No. 04-3888
7
(...continued)
camera review to the district court, (2) the classified document
should be made part of the (sealed) record, and (3) the district
court should then inform the parties whether or not it relied on
the classified information in rendering its decision. Such a
procedure would eliminate any confusion regarding the propri-
ety of the submission. However, we also cannot conclude that
Mr. Bassiouni was prejudiced because this procedure was not
followed in his case. As noted above, Mr. Bassiouni had the
opportunity in the district court to raise arguments against the
FBI’s submission. Mr. Bassiouni does not claim that he would
have had a greater right of access to the Confidential Declaration
should the district court have considered it at an earlier stage in
the proceedings. Indeed, in the present case, the same result
would have obtained if the FBI formally had proffered the
Classified Declaration for in camera review, but the court had
chosen not to inspect or to rely upon the information contained
therein. Consequently, Mr. Bassiouni has not suffered any injury
as a result of our consideration, as opposed to the district court’s
consideration, of the confidential declaration.
Finally, we note that confidential declarations may play an
important role in safeguarding the rights of individuals—such as
Mr. Bassiouni—whose files are being maintained for law enforce-
ment purposes. District courts need not rely on agencies’
unsubstantiated assertions of a law enforcement purpose for
collecting information or maintaining files; in camera review of
confidential declarations provides additional evidence according
to which a district court may judge the assertion of law enforce-
ment necessity. Confidential declarations, therefore, advance the
purpose of the Privacy Act by providing a necessary check on the
activities of law enforcement agencies, while not jeopardizing
their investigative efforts.
No. 04-3888 21
1.
Focusing on the district court’s rationale for denying his
§ 552a(e)(7) claim, Mr. Bassiouni first argues that the Bureau
may be held liable for its alleged violation of § 552a(e)(7)
(and failing to cure that violation through the amendment
process), pursuant to § 552a(g)(1)(A).
Mr. Bassiouni brought this action under the civil remedy
provision of § 552a(g)(1)(A). By its terms, § 552a(g)(1)(A)
provides a remedy only when an agency “makes a determi-
nation under [§ 552a(d)(3)] not to amend an individual’s
record . . . or fails to make such review in conformity with
that subsection.”
The FBI has exempted its Central Records System from the
§ 552a(d) amendment process, and those files are not subject
to the amendment process of subsection (d). Because the
FBI’s Central Records System is not subject to the subsection
(d) amendment process, the FBI cannot be held liable under
(g)(1)(A) for failure to comply with that process. Mr.
Bassiouni therefore has no avenue for relief under
§ 552a(g)(1)(A). See Doe v. FBI, 936 F.2d 1346, 1351-53 (D.C.
Cir. 1991).
Mr. Bassiouni submits, however, that the plain language
of § 552a(j) and (k) establish that Congress did not intend
for an agency to exempt itself from the requirements of
§ 552a(e)(7). According to Mr. Bassiouni, “[t]he district
court’s interpretation, which leaves a plaintiff with no
ability to subject the propriety of the agency’s maintenance
of protected First Amendment information to judicial
scrutiny other than to pursue a rarely viable damage action,
flies in the face of the object of the Act . . . .” Appellant’s Br.
at 20. In other words, according to Mr. Bassiouni, the de
facto result of an agency exempting its records from subsec-
tion (d) is that it also exempts itself from the restrictions of
subsection (e)(7).
22 No. 04-3888
We cannot accept this argument. Avenues of redress
remain open to an individual whose records are maintained
in violation of (e)(7), apart from those provided by the
§ 552a(d) amendment process and § 552a(g)(1)(A) review of
that process. An individual has a cause of action under
§ 552a(g)(1)(D) when an agency “fails to comply with any
other provisions of this section,” provided that the individ-
ual demonstrates that the records’ maintenance has an
adverse effect on him.
Furthermore, we do not believe that requiring a plaintiff
to plead an adverse effect in order to pursue a federal cause
of action is tantamount to depriving the plaintiff of any
remedy or is inconsistent with congressional intent. A
regime in which the FBI is required to comply with (e)(7),
but in which private individuals may have a remedy only
when the FBI’s action has an adverse effect on them,
accounts for Congress’ dual concerns of protecting First
Amendment rights and protecting national security.
2.
Mr. Bassiouni also maintains that, even if he cannot
proceed on the alleged (e)(7) violation by way of subsection
(g), “expungement is a well-recognized remedy for viola-
tions of subsection (e)(7).” Appellant’s Br. at 23. However,
we need not reach the question of whether expungement is
a proper remedy because, as demonstrated below, we
believe that the FBI’s maintenance of Mr. Bassiouni’s
records in this case complies with the requirements of
§ 552a(e)(7).
As we have noted earlier, “law enforcement activity” is
not defined in the statute. Similarly, courts that have
addressed the applicability of the “law enforcement activ-
ity” language of § 552a(e)(7) have not found the need to
No. 04-3888 23
define the term with precision. For instance, in Patterson v.
Federal Bureau of Investigation, 893 F.2d 595, 603 (3d Cir.
1990), the court held that a defendant agency invoking the
protection for law enforcement activity contained in subsec-
tion (e)(7) “must demonstrate that its records on an individ-
ual’s exercise of First Amendment rights are relevant to an
authorized law enforcement activity of the agency.” The
Sixth Circuit in Jabara v. Webster, 691 F.2d 272, 279-80 (6th
Cir. 1982), rejected the formulation for the (e)(7) exception
employed by the district court in that case: “We agree . . .
that the district court’s construction of the exemption in the
statute, limiting it to investigation of past, present or future
criminal activity, is too narrow.” Id. at 280.
Like our sister circuits, we do not believe that the circum-
stances presented to us here require us to determine the
precise limits of the term “law enforcement activity.” In this
case, the Bureau, through Special Agent Krupkowski’s
declaration, identifies the ways in which Mr. Bassiouni’s file
is related to its law enforcement activities. First, the FBI
notes its ongoing investigations into the threats posed by
terrorist groups, specifically those originating in the Middle
East. According to the declaration, “the FBI has amended its
investigative priorities, naming as its number one priority
to ‘protect the United States from terrorist attack.’” R.22,
Ex.1 ¶ 9. Because of the nature of these investigative
activities, and because of the breadth of Mr. Bassiouni’s
contacts with the Middle East, the FBI anticipates that it will
continue to receive information about Mr. Bassiouni. Id., ¶
10. The Bureau’s file on Mr. Bassiouni will provide context
for evaluating that new information.
Perhaps more importantly, the public Krupkowski
Declaration states that the records are important for evaluat-
ing the continued reliability of its intelligence sources. The
Declaration explains that the process of verifying source
24 No. 04-3888
information, and therefore determining whether a source is
reliable, takes place over “years, even decades.” Id., Ex.1
¶11. “[S]ource information, therefore, remains relevant as
long as the same source is used.” Id.
We believe that the purposes identified by the Bureau fall
within “authorized law enforcement activity” conducted by
the FBI. We note at the outset that the realm of national
security belongs to the executive branch, and we owe
considerable deference to that branch’s assessment in
matters of national security. See Center for Nat’l Sec. Studies
v. United States Dep’t of Justice, 331 F.3d 918, 927-28 (D.C. Cir.
2003). Furthermore, although the Privacy Act certainly does
not authorize collection and maintenance of information of
private citizens on the “off-hand” chance that such informa-
tion may someday be useful, it does not require law enforce-
ment agencies to purge, on a continuous basis, properly
collected information with respect to individuals that the
agency has good reason to believe may be relevant on a
continuing basis in the fulfillment of the agency’s statutory
responsibilities. The Privacy Act does not give any indica-
tion that Congress intended law enforcement agencies to
begin from scratch with every investigation. Nor do we
believe that Congress meant to deprive such agencies of the
benefit of historical analysis.
Mr. Bassiouni, however, urges us to reject the proffered
law enforcement justifications as inadequate. He maintains,
first, that, in order to fall within the law enforcement
exception of (e)(7) the FBI must be “currently involved in a
law enforcement investigation of Plaintiff.” Appellant’s Br.
at 31 (emphasis in original). However, as we have noted
already, no court that has considered the meaning of law
enforcement activity in (e)(7) has interpreted the term so
narrowly. Indeed, this court suggested in Becker a broader
conception of “law enforcement activity” than that pro-
posed by Mr. Bassiouni. See 34 F.3d at 408 (acknowledging
No. 04-3888 25
that, “[u]nder some circumstances, [future use] may be a
legitimate justification for maintaining documents in a file
for an extended period of time”). Furthermore, if Congress
had meant law enforcement activity only to mean “current
law enforcement investigation,” we believe Congress would
have chosen more restrictive language. It certainly did so
with respect to other subsections of the Privacy Act. See, e.g.,
5 U.S.C. § 552a(j)(2) (speaking of “information compiled for
the purpose of a criminal investigation”). We believe that
Congress anticipated that, in the fulfillment of its responsi-
bilities, an agency must maintain information that it can
reasonably demonstrate will be pertinent in its efforts to
evaluate the significance of future situations.
Mr. Bassiouni additionally submits that, even if the
materials in his file are relevant to some law enforcement
purpose, they should not be maintained in a file identifying
him by name, but, instead, in a general file. He believes that
our decision in Becker, 34 F.3d at 409, endorses this distinc-
tion. We do not believe that Becker supports Mr. Bassiouni’s
contention. In Becker, this court examined the material
contained in the Beckers’ file, which “consist[ed] of newspa-
per articles dating from the middle to late 1980s, with no
reference to the Beckers.” Id. (emphasis added). Furthermore,
although the IRS asserted that it may maintain the materials
“for possible future uses,” it did not “elaborate on how this
material would be helpful.” Id. Here, by contrast, the
materials contained in Mr. Bassiouni’s file actually refer to
Mr. Bassiouni and recount his activities. Additionally, the
FBI has articulated a law enforcement purpose for maintain-
ing the material in a file that identifies Mr. Bassiouni by
name. Thus, we do not believe that Becker supports the
position urged by Mr. Bassiouni.
As noted above, the Privacy Act was designed to protect
citizens from Government intrusion. However, language
26 No. 04-3888
specifically was added to the Act to ensure that it did not
stifle “activities which are properly within the scope of
legitimate law enforcement.” 120 Cong. Rec. 36,650 (1974)
(statement of Rep. Ichord). The purposes for maintaining
Mr. Bassiouni’s file articulated by the FBI are properly
within the scope of its law enforcement activity. Conse-
quently, we do not believe that the FBI has run afoul of
subsection (e)(7) by maintaining Mr. Bassiouni’s file.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-06