A. Fifth Amendment Claim
Both SF85P Question 22 and Supplemental Questionnaire Question 3 state that neither the employee's truthful responses nor information derived from his or her responses will be used as evidence against the employee in any subsequent criminal proceeding. The law provides that answers may be compelled regardless of the privilege against self incrimination if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person. Gardner v. Broderick, 392 U.S. 273, 276, 20 L. Ed. 2d 1082, 88 S. Ct. 1913 (1968). The statements in the forms are the equivalent of immunity, and there is thus no violation of plaintiffs' Fifth Amendment rights.
B. Constitutional Right to Privacy
Plaintiffs next claim that the questions regarding drug use and other drug activities violate their constitutional right to privacy.
The Constitution protects a citizen's privacy interest, inter alia, with respect to personal information with which the government does not have a legitimate concern. Whalen v. Roe, 429 U.S. 589, 598-99, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Ramie v. City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985), cert. denied, 474 U.S. 1062, 88 L. Ed. 2d 784, 106 S. Ct. 809 (1986).
The constitutional right to avoid disclosure of personal information is not absolute. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987) Thus, to determine whether the SF85P questions relating to drug use and drug activities violate plaintiffs' rights, the Court must balance the individuals' interests in nondisclosure against the government's interest in obtaining the information. United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3rd Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) cert. denied, 439 U.S. 1129, 59 L. Ed. 2d 90, 99 S. Ct. 1047 (1979); National Treasury Employees Union v. United States Dep't of Treasury, 838 F. Supp. 631, 636 (D.D.C. 1993).
Initially, the Court considers whether the employee has a legitimate expectation that he or she will be able to keep the information confidential. Fraternal Order of Police. Lodge No. 5 v. City of Philadelphia, 812 F.2d at 112-113. It may well be that with the drug menace widespread in this society, government employees may have a lessened expectation of being able to keep their connection with drugs secret from their employer. But that does not mean that a government employee loses all expectation of privacy. This is so particularly because the plaintiffs here are government employees, not job applicants. Willner v. Thornburgh, 289 U.S. App. D.C. 93, 928 F.2d 1185, 1190-92 (D.C. Cir.), cert. denied, 502 U.S. 1020, 116 L. Ed. 2d 760, 112 S. Ct. 669 (1991); National Treasury Employees Union v. United States Dep't of Treasury, 838 F. Supp. at 637-38.
The government contends that eliciting a response to the questions about drug use and drug activities is necessary to its efforts to maintain the integrity of the Department of Housing and Urban Development, suggesting that employees actively involved in substance abuse or other illegal drug activities may be subject to substantial financial pressures, heightened susceptibility to coercion or undue influence, or general unreliability. While this is a valid governmental interest, in the context of a housing agency it is far removed from a direct interest. The Court will therefore balance this government interest against the employees' interests, considering whether a nexus exists between the information sought and the employees' work responsibilities.
Drug testing jurisprudence is instructive as to what type of a nexus must be shown. Courts have upheld random drug testing when employees have access to narcotics at part of their work duties, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), when employees have access to information bearing on national security, Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 491-92 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990), and when employees hold positions in which drug use would pose an immediate threat to public safety. American Fed'n of Gov't Employees, AFL-CIO v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884, 892 (D.C. Cir. 1989), cert. denied, 495 U.S. 923, 109 L. Ed. 2d 321, 110 S. Ct. 1960 (1990). But this nexus must be more than speculative. National Treasury Employees Union v. Yeutter, 287 U.S. App. D.C. 28, 918 F.2d 968, 974 (D.C. Cir. 1990).
There is no allegation here that the HUD employees' duties involve access to controlled dangerous substances, or to information which could jeopardize national security. Nor is there any allegation that the HUD employees hold positions in which their drug use would pose a threat of immediate harm to the public.
Moreover, there are less intrusive means by which the government could achieve its limited purposes. Plaintiffs are current employees of HUD, working in a traditional office environment. The government obviously has the opportunity to observe the employees daily at work and watch for signs of drug problems. Cf. Harmon v. Thornburgh, 878 F.2d at 489. Moreover, the government can relatively accurately predict employee trustworthiness based on answers to the many questions on the SF85P which plaintiffs are not challenging.
The individual plaintiffs present an even more compelling case for striking the SF85P drug use and activity questions. Mr. Wallace has worked for HUD for approximately twenty-six years; he apparently has had access to sensitive HUD databases for at least four years; and he is currently employed by HUD as a Regional Resident Initiatives Coordinator. Mr. Linstrom has worked for HUD for approximately seventeen years as a financial analyst responsible for overseeing expenditures of monies by HUD grant recipients. In order to perform some of his job duties, Linstrom must access a "sensitive" HUD database. Mr. Davis has been employed by HUD for approximately eight years; he has worked as a Resident Initiatives Coordinator for the last four years; and to perform some of his job duties, he must access "sensitive" HUD databases.
The three individual plaintiffs are all long-term employees of HUD. In each case, HUD has had ample opportunity to observe them at work, to watch for signs of drug use and activities, and to evaluate their job performances. All three have always received job performance ratings of satisfactory or higher and have never been subject to disciplinary action. Moreover, none of the individual plaintiffs has the authority to approve funds for the recipients of HUD monies through the computer system beyond the predefined dollar amounts established in the system edits by HUD.
Considering all relevant factors, this Court concludes that the government has not presented an adequate justification for compelling disclosure of the drug history of the individual plaintiffs or of the HUD employees represented by AFGE simply on the basis of the fact that they have access to databases deemed "sensitive" by HUD.
Financial History Questions
As indicated, plaintiffs also challenge Question 22, which demands information about their financial history, as violating their constitutional right to privacy. Financial matters are very personal and are entitled to constitutional protection. Plante v. Gonzalez, 575 F.2d at 1136. The Court must once again balance plaintiffs' interest in avoiding disclosure of the information against the government's interest in obtaining such disclosure.
The government again asserts as its interest in disclosure that the information to be elicited is crucial to its ability to ensure that employees with access to sensitive computer databases at HUD are not under financial or other pressures that might undermine their trustworthiness or reliability. The Court again notes that the government's interest is greatly diminished by the fact that plaintiffs are current employees working for HUD in an office environment and that the employees provide an extensive amount of information in response to the unchallenged portions of the SF85P. Indeed, none of the individual plaintiffs has the ability to approve any funds for the recipients of HUD monies through the computer system beyond the predefined dollar amount established in the system edits by HUD. Beyond this, if financial information can be coerced on so flimsy and far-fetched a basis, nothing in the employees' life would be immune from government intrusion.
Accordingly, the Court grants plaintiffs' motion as to its claim that Question 22 violates the constitutional right to privacy of the individual HUD employees as well as that of the HUD employees represented by AFGE.
Plaintiffs challenge the SF85P Release Form on various constitutional and statutory grounds. That form authorizes the government to obtain practically any and all information that it wants to know about an individual. It leaves nothing untouched, affording authority to the government to obtain information from practically any source about any aspect of an employee's life, no matter how unrelated it may be to the employee's job performance. The Court cannot imagine any government interest, with the possible exception of direct threats to national security, under which such so vast an intrusion by the government could be justified.
Individuals do not give up every expectation of privacy simply because they are on the government payroll. Our country is founded on notions of individual freedoms and rights. It would be ironic if the employees charged with helping to ensure some of these rights were themselves deprived of them. The Court concludes that the government has failed to present any interests which would justify so intrusive an interference in the private lives of its employees.
Accordingly, plaintiffs' motion for summary judgment will be granted as to the release form. Neither the individual plaintiffs, nor the HUD employees represented by AFGE, may be required to complete the release. The release forms executed by HUD employees represented in this case shall be removed from the government's files and returned to the employees who executed them.
February 8, 1996
HAROLD H. GREENE
United States District Judge
In consideration of the Memorandum issued this date, it is this 8th day of February, 1996
ORDERED that plaintiffs' motion for summary judgment be and it is hereby GRANTED; and it is further
ORDERED that plaintiff's motion for a permanent injunction be and it is hereby granted; and it is further
ORDERED that defendants are permanently enjoined from requiring plaintiffs to complete the provisions of the SF85P demanding information about (1) an employee's drug use and drug activities or (2) an employee's financial history; and it is further
ORDERED that defendants are permanently enjoined from requiring plaintiffs to complete the SF85P release form; and it is further
ORDERED that, with regard to questionnaires already completed by the individual plaintiffs and by HUD employees represented by AFGE, information given in response to the challenged provisions be removed from the government's records and the release forms be returned to the employees who executed them.
HAROLD H. GREENE
United States District Judge