# J. Roderick MacArthur Foundation and Lance E. Lindblom v. Federal Bureau of Investigation

> Court of Appeals for the D.C. Circuit · April 11, 1997 · 102 F.3d 600

URL: https://www.frixlaw.com/law-library/cases/9489840

## Case

- **Full name:** J. RODERICK MacARTHUR FOUNDATION and Lance E. Lindblom, Appellants, v. FEDERAL BUREAU OF INVESTIGATION, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 11, 1997
- **Citations:** 102 F.3d 600; 322 U.S. App. D.C. 202
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tatel
- **Judges:** Ginsburg, Randolph, Tatel
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489840

## How later opinions describe it (automated extraction)

- holding that valid law enforcement activities require neither an active investigation nor a 9 (...continued
- holding that Foundation did not have standing to challenge FBI’s maintenance of records because the Foundation itself disclosed the existence of the records and the injury “appears to have been self-inflicted”
- concluding that the plaintiff failed to establish standing because it could not identify a potential grantee whose behavior was actually affected by defendant FBI’s maintenance of files on the plaintiff
- holding that valid law enforcement activities require neither an active investigation nor a “current law enforcement necessity”

## Opinion text

TATEL, Circuit Judge,
concurring in part and dissenting in part:
The court's observation that the word "pertinent" modifies only the noun "record" and its assumption that "law enforcement activity" includes activities ended long ago, lead it to conclude that the FBI may, consistent with section (e)(7), inventory information on the First Amendment activities of citizens for which the agency has no present, articu-lable use. Because I believe the court's parsing of section (e)(7)'s language does not result in the best interpretation of that provision as a whole, I respectfully dissent from part II.A of the opinion.
The statute defines "maintain" as including both "maintain" and "collect." 5 U.S.C. § 552a(a)(3) (1994). To collect means "to gather together." To maintain means "to keep in existence or continuance; preserve." Random House Unabridged Dictionary 403, 1160 (2d ed.1993). In order to give each of these verbs its meaning, I would interpret section (e)C7), as a whole, to require that records be pertinent to "an authorized law enforcement activity"-words undefined in the statute-not only at the time of gathering, i.e., collecting, but also at the time of keeping, i.e., maintaining. In other words, if there is no current law enforcement activity to which a record has pertinence, the agency may not maintain it. Not only does this approach avoid effectively reading the word "maintain" out of that term's statutory definition, but it furthers the Act's purpose to protect citizens from the unnecessary collec-tión and retention of personal information by the government.
Congress could have written section (e)(7) in either of two ways that would clearly give it the meaning my colleagues ascribe to it-that information pertinent to an authorized law enforcement activity when collected does not lose that pertinence over time. If the statute said that an agency shall "collect 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," I would agree that material need not be of continued pertinence for an agency to maintain it. Congress could have achieved the same result by requiring agencies to maintain no such record unless "compiled for, and within the scope of, an authorized law enforcement activity." But the statute does not read this way, and Congress knows how to use the words "collect" and "compiled for" without also meaning "maintain." See 5 U.S.C. §§ 552a(e)(2) (concerning collection of information), (j)(2)(A) ("information compiled for the purpose of identifying individual crim *608 inal offenders”), (k)(2) (“investigatory material compiled for law enforcement purposes”), (k)(5) (“investigatory material compiled solely for the purpose of’ determining eligibility for military and federal civilian employment, federal contracts, or access to classified information). Because Congress chose to use the word “maintain” in section (e)(7), and to define that term as both “maintain” and “collect,” we know that Congress must have meant something more than just “collect.” See Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 507 , 133 L.Ed.2d 472 (1995) (assuming that Congress uses multiple terms “because it intend[s] each term to have a particular, nonsuperfluous meaning”).
Although Congress was clearly concerned about illegitimate collection of information regarding First Amendment activities, nothing in the legislative history indicates that Congress was not equally concerned, as the language of section (e)(7) indicates, with the maintenance of documents no longer pertinent to law enforcement activities. Indeed, the legislative history of the Privacy Act reveals congressional concern with both collection and retention of material. In describing the Act’s purposes, the Senate Report recognizes collecting and maintaining files as separate activities, both deserving of careful scrutiny: “[The Act] is designed ... for long-overdue evaluation of the needs of the Federal Government to acquire and retain personal information on Americans, by requiring stricter review within agencies of criteria for collection and retention.” S.Rep. No. 93-1183, at 2 (1974) 1974 U.S.C.C.A.N. 6916, 6917. Other sections of the Act carry out this purpose by requiring that records continue to be “accurate, relevant, timely and complete,” 5 U.S.C. § 552a(d)(2)(B)(i); id. § (e)(5) (requiring agency to maintain records with “such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness”). In debating the law-enforcement amendment to section (e)(7), House members discussed only the “maintenance” of records; they did not even refer to collection. 120 Cong. Rec. 36,957 (1974).
In support of its interpretation of section (e)(7), the court cites a passage from the Conference Report which, other than ambiguously stating that the “Compromise ... directs the prohibition against the maintenance of records,” merely reproduces the language of section (e)(7). Maj. Op. at 603-04. I am equally unpersuaded by the court’s suggestion that because the Privacy Act limits the use of Lindblom’s files, its interpretation of section (e)(7) presents no threat to personal privacy. Maj. Op. at 604. That Congress imposed limitations on dissemination of the information is not at all inconsistent with section (e)(7)’s command: the FBI may not “maintain [records] describing how any individual exercises rights guaranteed by the First. Amendment ... unless pertinent to and within the scope of an authorized law enforcement activity.” Congress passed the Privacy Act to give individuals some defenses against governmental tendencies towards secrecy and “Big Brother” surveillance. See S. Rep. No. 93-1183, at 1 (Privacy Act “is designed to prevent the kind of illegal, unwise, overbroad, investigation and record surveillance of law-abiding citizens produced in recent years from actions of some over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies.”). The fewer unnecessary files describing First Amendment activities the government keeps on law-abiding citizens, the lesser the chance of any future abuse of those files.
Turning to the MacArthur Foundation’s First Ameiidment claim, I agree that the Foundation lacks standing, but for a narrower reason than the one set forth in section II.B.l of the court’s opinion. In my view, the Foundation lacks standing not because its claim of injury is too speculative, but because the Foundation has faded to establish the link by which the Bureau’s actions would cause the alleged injury.
As the court notes, although asserting that potential grant-seekers might be reluctant to apply to the Foundation if they knew of the FBI records, the Foundation’s affidavits suggest no mechanism by which such knowledge would be available. In fact, the mechanism is not very difficult to imagine: the existence of the Foundation’s file should be readily ascertainable upon a proper FOIA request. *609 Yet the affidavits do not state that grant-seekers regularly submit FOIA requests for FBI files of grant-making institutions before applying to them. Had.they done so, I believe the injury alleged here would not be unduly speculative. Otherwise, , the Foundation would be unable to challenge the Bureau’s retention of its files, because grant-seekers who would ferret out information on FBI files and therefore not apply to the MacArthur Foundation are hardly likely to come forward and state the reason they did not apply.
The MacArthur Foundation’s alleged injuries are quite similar to the injuries the Supreme Court found adequate for standing in Meese v. Keene, 481 U.S. 465 , 107 S.Ct. 1862 , 95 L.Ed.2d 415 (1987). There, the Justice Department required the National Film Board of Canada to include a statement at the beginning of certain films indicating that they were political propaganda. Id. at 467-68 , 107 S.Ct. at 1864-65 . A member of a state legislature wishing to exhibit the films claimed: that the required labeling would injure his reputation and his chances of reeleetion. Id. at 473 , 107 S.Ct. at 1867-68 . In support of these assertions he submitted several affidavits, including one describing the results of an opinion poll and another presenting the opinion of an “experienced political analyst” that the designation of material as political propaganda, “stigmatizes those conveying it.” Id. at 478-74 & n. 8, 107 S.Ct. at 1868 & n. 8. Like the affidavits in this case, they were uneontradicted. Id. at 474 , 107 S.Ct. at 1868 . Although the alleged injuries were clearly speculative and not necessarily fully provable even after the election, the Court held that they nevertheless sufficed to establish standing because they were “ ‘fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Id. at 476 , 107 S.Ct. at 1869 (quoting Allen v. Wright, 468 U.S. 737, 751 , 104 S.Ct. 3315, 3324-25 , 82 L.Ed.2d 556 (1984)). Had the MacArthur Foundation alleged that grant-seekers customarily check the existence of FBI files, the same would be true here. The injury— grant-seekers choosing not to apply to the Foundation because of its FBI file — would be no more speculative than the injury alleged by Keene — that he would lose votes because he sponsored screenings of movies labeled political propaganda.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489840. Public record. Not legal advice.