AMERICAN FED. OF GOV. EMP., ETC. v. Schlesinger, 443 F. Supp. 431 (D.D.C. 1978)

*432 *433 L. M. Pellerzi, Mark D. Roth, James R. Rosa, Washington, D. C., for plaintiffs.

Karen I. Ward, Asst. U. S. Atty., Washington, D. C., for defendant.

GESELL, District Judge.

Plaintiffs seek to enjoin the Department of Energy from requiring its employees to answer portions of a detailed questionnaire that plaintiffs claim intrudes unnecessarily into the rights of Energy employees to free association and privacy protected by the First Amendment of the Constitution. The Department, at the Court's suggestion, postponed the required date for response to the questionnaire pending a hearing. The matter was expedited. Cross-motions for summary judgment have now been filed, briefed, and argued. No material facts are in dispute.

A full copy of the questionnaire (Form DOE-459) is attached. Part A is not challenged.^[1] It focuses on the employees' direct or indirect interest in energy-related concerns associations, stock holdings, financial interests, debts, and the like and is amply supported by section 603(b) of the Department of Energy Organization Act ("Energy Act"), Pub.L.No. 95-91, 91 Stat. 593 (1977). Part B seeks the identical information with regard to interests considered by the employee not to be energy concerns.

Part B, section I(a) now requires:

List the names of all corporations, companies, firms or other business enterprises, partnerships, nonprofit organizations and educational, or other institutions (a) with which you, your spouse, minor child, or dependent(s) are connected as an employee, officer, owner, director, trustee, partner, adviser, or consultant or with which you are negotiating or have any arrangement concerning prospective employment . . . .^[2]

This sweeping and somewhat undefined demand will produce a wealth of personal information to be submitted to the employee's supervisor and filed eventually in the General Counsel's office. As originally written it sought even memberships, but this was stricken after the suit was filed. This slight adjustment and the fact the data will not be made public does not extricate defendant from the inherent overreach and unreasonableness of the demand. Reporting is required whenever an employee's spouse, minor child, dependent, or the employee himself is an official or adviser of his church, his fraternity, his school, any charity, or almost any cause, whether it be concerned with some aspect of the environment, alcohol, abortion, or union activity. There is no end to the ramifications of this inquiry. The Department offers no justification the Court finds persuasive.

The Department apparently has two interests it seeks to protect by Part B of the questionnaire. First, it asks for disclosure to enable it to determine whether the employee has any interest in an energy concern which should have been reported under Part A. Many energy interests are unknown or so remote that they would be overlooked by a conscientious employee. Second, the Department wants data that will enable it to counsel employees on potential or actual conflicts of interest that may exist or arise as work assignments and duties progress.

But Congress provided at § 601(c) of the Act that the Agency would identify those entities it considers to be energy concerns. It did not contemplate that every employee would be required to disgorge data which the Department would then investigate in its search for energy concerns. The Department has put the cart before the horse.

*434 In this immediately post-Water-gate period, the view exists that conflicts of interest can be expunged by forcing intimate disclosures from those dealing with or acting for the government. Within limits this may be sound, but we must beware lest excessive zeal in this direction destroy more precious fundamental values. People, even people working for the government, have within reason the right to be left alone. Consider what has happened here. The Department of Energy embodies an obvious potential for conflicts of interest. Congress properly required disclosure of interests in energy concerns. But what does the ultimate questionnaire ask? It prys into religious, social, political, educational, and fraternal associations both of the employee, the employee's spouse, his minor children and dependents. This is too much.

As technology for storing, correlating, and regurgitating information improves and government inquisitiveness grows in geometric progression, the courts charged with protecting free association and expression must be alert to possibilities of abuse. "The right to be left alone," Justice Douglas has written, "is indeed the beginning of all freedom." Public Utilities Commission v. Pollak, 343 U.S. 451, 467, 72 S. Ct. 813, 823, 96 L. Ed. 1068 (1952) (dissenting opinion). Assemblies of personal information should not automatically occur at the whim of every bureaucrat. The Supreme Court has spoken authoritatively. An individual's association with groups concerned with political, economic, religious or cultural matters is normally his own business and no one else's. Before data can be gathered in these privacy areas, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest." Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S. Ct. 889, 894, 9 L. Ed. 2d 929 (1963); accord, e. g., Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 464, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). There is no statutory authority for this intrusion. It finds no support in Executive Order 11222, 3 C.F.R. 306 (1965), which permits inquiry only into "financial interests." Id. § 402. It is not authorized by the Energy Act, which is addressed only to "energy concerns." It exceeds proper bounds and is unreasonable and repressive. Government employees do not waive all their constitutional rights when they enter public service. The First Amendment requires that section (I) (a) of Part B be eliminated from the questionnaire, and all who have already responded shall be granted the right to have the information submitted returned to them and expunged from the Department's files upon written request made within twenty days of notice, as provided in the attached judgment.

The remaining portions of Part B of the questionnaire may well be authorized by Executive Order 11222. Since the Department has no regulations implementing the Order, however, it must proceed under the general Civil Service implementing regulations, 5 C.F.R. §§ 735.101-.412 (1976), and to do this must obtain Commission approval and publish notice in the Federal Register. Id. § 735.104(f). The Department has not so proceeded. It notes that most of its employees formerly worked for agencies now merged into the Department, where they were subject, with full Commission approval, to reporting requirements very similar to Part B. In addition, section 705, the savings provision of the Energy Act, continues in effect all rules, regulations, and determinations of any merged agency until set aside by authorized officials, a court, or operation of law. Since the reporting requirements of these merged agencies continue in operation, the Department argues, its actions under the Executive Order are exempt from Civil Service approval.

The Court does not agree. In the first place, many Department employees were never members of predecessor agencies and thus perhaps were not subject to disclosure requirements. Furthermore, the catch-all *435 savings provision of the Act seems to the Court insufficient to warrant a wholesale transfer of Civil Service approval to the Department of Energy to proceed as it wishes under the Executive Order without promulgating regulations. Given the Department's authority under Section 603 of the Energy Act to request information under Part A, one may well question whether the remaining sections of Part B, even if comprehended by the broad terms of the Executive Order, are necessary to effectuate the purposes of the Order or are drawn narrowly enough to satisfy the overbreadth doctrine. See Carmel-by-the-Sea v. Young, 2 Cal. 3d 259, 85 Cal. Rptr. 1, 466 P.2d 225 (1970); cf. Keyishian v. Board of Regents, 385 U.S. 589, 602, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 298 (D.D. C.1976).

It has long been recognized that some tolerance is allowable where financial data is gathered in situations like this to assure that information of possible relevance is obtained, and some intrusion into private fact that may prove unnecessary must be tolerated to assure the governmental purpose is achieved. See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); O'Brien v. DiGrazia, 544 F.2d 543 (1st Cir. 1976), cert. denied, 431 U.S. 914, 97 S. Ct. 2173, 53 L. Ed. 2d 223 (1977); Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972), appeal dismissed, 412 U.S. 925, 93 S. Ct. 2750, 37 L. Ed. 2d 152 (1973). In this instance the Department points to the variety of energy concerns that have not been identified and to the consequent need for data to permit a later determination as to the status of concerns in which an employee has an interest. The Department appears to have swept very broadly, although perhaps justifiably, given the special circumstances it confronts in its attempt to identify existing or potential conflicts. It will be for the Civil Service Commission closely to scrutinize this broad effort in the light of the purposes of the Executive Order, and the operation of section 603 of the Energy Act.

The case will be remanded to enable defendant to seek Commission approval for proceeding under the Executive Order. The Commission's approval is a condition precedent to any further use of the remainder of Part B. Obviously, if the Commission disapproves in whole or in part, the information already collected will be subject to return upon the same conditions as that collected under section I(a) of Part B.

Before remanding it is appropriate to make one further point. Plaintiffs argue that even if the remainder of Part B is authorized by the Executive Order and approved by the Civil Service Commission, the Privacy Act of 1974, 5 U.S.C. § 552a(1976), adopted nine years after the Order, prohibits any use of the information collected under Part B. That statute permits the unconsented maintenance of a "record of how any individual exercises rights guaranteed by the First Amendment" only under authority of a statute or within the scope of law enforcement activities. Id. § 552a(e) (7). Even assuming that the remainder of Part B implicates activities protected by the First Amendment, it is not necessary to determine whether in this context the Executive Order has the force of a statute for purposes of the Privacy Act because it is clear the system of records is being developed for law enforcement purposes within the meaning of that Act. Congress anticipated that agencies would take reasonable steps to prevent conflicts of interest and recognized that such efforts would be within the concept of law enforcement. See 120 Cong.Rec. 36651 (1974) (Rep. Ichord).

Summary judgment is granted plaintiffs and denied defendants, and the case is remanded to the Secretary of the Department of Energy for further proceedings not inconsistent with this opinion.

SO ORDERED.

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Part B, section I(a) of Form DOE-459 is not authorized by statute or Executive Order and contravenes the First Amendment to the Constitution and shall be and hereby is stricken. Defendant is directed to notify all employees who have responded to this section of the form that the information thus provided by them will be deleted and returned on written request if made within twenty days from date of notice. The remaining sections of Part B are not authorized by statute but may be authorized by Executive Order 11222. As the appropriate procedures for implementing the Order have not been followed, however, no further submissions shall be required, and no use made of information already submitted under those sections until such time as defendant fully complies with the Civil Service regulations implementing the Executive Order, 5 C.F.R. §§ 735.101-.412 (1976), and receives full Commission approval. If full approval is not forthcoming within six months of the date of this Judgment, employees who have submitted information shall have the same right as do those who submitted information under section I(a) of Part B.

SO ORDERED.

[1] Neither are Parts C and D challenged.

[2] Section 1(a) as originally promulgated and as reprinted in the Attachment also required a listing of all simple memberships. This requirement was abandoned by the Department during the pendency of this suit.