required when the government attempts to infringe on an individual's right to privacy. See Doe v. Hampton, 184 U.S. App. D.C. 373, 566 F.2d 265, 272 n.20 (D.C. Cir. 1977).
Given the type of commercial work that is performed by the plaintiffs named in the amended complaint, the government has been hard pressed to demonstrate that it has a compelling interest in collecting the type of information demanded in the questionnaire. As this Court's February 12 Memorandum suggests, it is "not sufficient for the agency to simply rely on Customs' law enforcement mission and the fact that Customs employees have 'access' to confidential information and narcotics." Memorandum at 12 (referring to Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 491-92 (D.C. Cir. 1989)).
The government has attempted to provide more detail through numerous sworn declarations which note that across the eight employee positions at issue and within those positions, some variations exist as to the employees' involvement in, and capacity to impact on, what are said to be sensitive matters. Opposition at 17. But this "divide-and-conquer" approach is weak and unpersuasive.
For example, the government notes that a few employees within the groups sought to be represented by NTEU have been issued firearms.
As another example, the government focuses on the fact that some employees in each of the eight employee groups sought to be represented by NTEU have access to sensitive computer systems.
Such examples, the government argues, are enough for a judicial finding that the government's interest is sufficiently weighty to outbalance most, if not all, the privacy interests involved in the case, particularly because the government asserts that the information collected is kept confidential.
In other words, the government is attempting to justify its intrusions into very personal matters of literally thousands of non-sensitive employees based on the fact that four carry guns and some have access to computer information.
The government has also provided declarations by the named plaintiffs' supervisors, who speculate about the kinds of misconduct each of the employees could commit, assuming they were so inclined, and the damage that might result, assuming they were not caught.
This analysis reduces these employees to unknown entities, which they are not. These employees are not job applicants; they are current, long-term employees of the Custom's Service who have been subject to supervision for at least five years, and many of them for fifteen years or more. With this seniority, comes both a heightened expectation of privacy, cf. Willner v. Thornburgh, 289 U.S. App. D.C. 93, 928 F.2d 1185, 1190-92 (D.C. Cir.), cert. denied, 112 S. Ct. 669 (1991) (distinguishing drug testing of job applicants, who are "strangers" to the agency, from testing of current employees), and a reduced risk of damage to the government.
On the other hand, the forced disclosure of personal information prima facie violates the constitutional right to privacy. See Greenberg, supra, 983 F.2d at 294. The defendants simply cannot circumvent and render ineffective constitutional protections against government overreaching by insisting that the Court include in a particular category of citizens a minute proportion to which, conceivably, government regulation may not be directly unlawful.
To be sure, the Court of Appeals in Greenberg expressed some doubts about the plaintiffs' ability there to prevail on the privacy claims, given that the questionnaire itself "informs employees that their compliance is 'voluntary,'" Greenberg, supra, 983 F.2d at 294, stating that the consequences of an employee's refusal to respond was unclear and unknowable based on the record then before it. Id.
That aspect of Greenberg has now been clarified and amplified. While just as in Greenberg both the SF-85P and CF 257 forms state that disclosure of the information is "voluntary," the record now shows that this is simply not true. The memorandum accompanying both forms advise the employees that they are "required" to undergo a periodic reinvestigation and are "required" to answer all questions on the SF-85P, under threat of administrative or disciplinary action. A refusal to furnish the requested information is stated to constitute a violation of Customs' Standards of Conduct and is subject to a range of penalties, from suspension to removal. Motion for Preliminary Injunction at 28-29.
Further, Customs has not been able to cite any instance in which an intentional refusal to furnish information demanded by the forms was not penalized. Id. at 29.
At a minimum, because completion of an investigation is a predicate for retention of a "sensitive" position, if the withheld information cannot be obtained from other sources, the employee who withholds that information would have to be removed.
Id. at 29-30. The Court concludes as a matter of fact that the questionnaire information is compelled.
The plaintiffs' Fifth Amendment claim is even stronger. In Garrity v. State of New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), the Supreme Court ruled that the Fifth Amendment right of an individual not to be compelled to be a witness against himself applied to public employment situations. As the Court explained, "the option to lose [one's] means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent . . . We think [such] statements are infected by the coercion inherent in this scheme [of forced questioning] and cannot be sustained as voluntary under our prior decisions." 385 U.S. at 497-98. The Supreme Court has also ruled that a state cannot discharge an employee who refuses to sign a waiver of immunity. See Gardner v. Broderick, 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913 (1968); Uniformed Sanitation Men Association v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 20 L. Ed. 2d 1089, 88 S. Ct. 1917 (1968). These principles have been applied to prohibit the government from compelling its employees, under threat of disciplinary action, to provide incriminating information or to waive their privilege against self-incrimination. See, e.g., Devine v. Goodstein, 220 U.S. App. D.C. 207, 680 F.2d 243, 246 (D.C. Cir. 1982).
There is no doubt that answers to the "drug use" question, if compelled, would elicit incriminating statements from the plaintiffs NTEU represents. See National Treasury Employees Union, et al. v. U.S. Department of Treasury, et al., Civ. No. A-89-CA-924 (W.D. Tex. August 31, 1992).
The issue, then, is whether the "drug use" answers are here compelled. The Court first notes it is the perception of the respondent that determines whether the Fifth Amendment privilege properly applies. The privilege protects against "any disclosures that the [respondent or] witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972) (some emphasis added). Second, the Court notes that its findings of compulsion with regard to the answering of the SF-85P outlined supra apply here as well, for Question 19 is one of several questions on that form. Third, the Note to Question 19a warns as follows:
The information you provide in response to this question will not be provided for use in any criminal proceedings against you, unless requested by the Department of Justice in connection with an independent investigation.
In addition, the cover sheet to the form states that information may be disclosed
To the Federal, State, or local agency responsible for investigation, prosecuting, enforcing, or implementing a statue, rule, regulation, or order where there is an indication of a violation or potential violation of civil or criminal law or regulation.