New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Background investigations of federal NASA employees not barred by any constitutional right to privacy

National Aeronautics and Space Administration v. Nelson
U.S. Supreme Court, 131 S.Ct. 746, 1/11/2011

The following summary is based on an opinion of the U.S. Supreme Court.

NASA is the federal agency charged with planning and conducting "space activities" for the United States. It owns the "Jet Propulsion Laboratory" (JPL) in California, which is operated by contract with the California Institute of Technology (Cal Tech). Employees of Cal Tech work at JPL. When hired, they were not required to undergo a government background investigation. The 9/11 Commission recommended that all contracted employees in federal installations undergo such an investigation, and President Bush directed such investigations to be conducted. The results of these investigations were protected against disclosure to the public by the federal "Privacy Act."

Certain long-term employees objected to the investigations, asserting a "constitutional right to informational privacy." The Ninth Circuit Court of Appeals enjoined portions of the background checks, finding that questions about recent drug use or counseling, as well as open-ended questions directed to other persons named as references by the person being checked, were likely unconstitutional.

On appeal, the Supreme Court reversed and dissolved the injunction against the use of the background check procedure. The majority opinion noted that two of its past cases had used language which appeared to recognize the existence of a constitutionally protected individual interest in avoiding disclosure of personal matters. The Court then assumed, without deciding, that such a right may exist, but determined that the scope of such an interest does not prevent the government from requiring background checks of employees and contractors, so long as the provisions of the federal Privacy Act protect the information from public disclosure. The opinion notes that such questions are asked of, and routinely answered by, millions of employees in the private sector, and background checks are a reasonable tool to properly determine whether or not a prospective employee, or an existing employee, continues to meet the requirements of the employer. Two justices, while concurring in the result, filed a separate opinion suggesting that there is no language in the Constitution that could support the existence of a right to privacy. For them, if such a right exists, it can only be created through legislation enacted by Congress.

This decision could be important in the administration of background checks to current public employees as well as candidates for public employment and volunteer positions in New Hampshire. See RSA 41:9-b. An important safeguard which the Supreme Court noted in the federal system was the Privacy Act, which prevented the disclosure of such information to the public. In the New Hampshire Right to Know Law, similar protection against disclosure is provided by RSA 91-A:5, IV, which exempts from disclosure those governmental records pertaining to an "examination for employment" as well as records "whose disclosure would constitute invasion of privacy." Thus, it appears that the collection and use of background check information for both public employees and public volunteers in New Hampshire would likely survive constitutional scrutiny.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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