Court grants injunction on HSPD-12 background checks for NASA plaintiffs

The U.S. Ninth Circuit Court of Appeals in Los Angeles has granted an injunction for 28 NASA scientists at the Jet Propulsion Laboratory so the scientists will not have to provide all information to complete background checks required under Homeland Security Presidential Directive 12.

The appeals court said the questions required by the government raise serious privacy concerns.

“This court has recognized the right to informational privacy,” three circuit court judges wrote in granting the injunction. “To justify actions infringing upon the right, the government must show that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet that interest.”

The NASA plaintiffs say the background checks required for HSPD-12 require information they deem private, such as counseling an employee may have received, and they believe signing a general waiver for release of information is overly broad and not pertinent to their identity.

A federal district court rejected the scientists’ request Oct. 3, but the appeals appeals court overturned the ruling two days later and said it would hear the case.

The scientists say the information is not necessary to establish their identification. Each has more than 20 years’ experience at NASA and none requires a security clearance to handle classified or sensitive data.

The group filed a class action lawsuit against NASA Aug. 30 and the court held a preliminary hearing Sept. 24.

The court will hear the case in early December, according to the NASA scientists’ Web site.

The appeals panel said it granted the injunction partly so the plaintiffs will be able to keep their jobs.

“The balance of hardships tips sharply in favor of appellants because if appellants do not complete the questionnaires for non-sensitive positions and the waivers for release of information, they are scheduled to lose their jobs before the appeal will be heard,” the court wrote. “On the other side of the scale, there is no emergency as to appellees' need for the answers to the questionnaires or for the execution of the waiver forms during the less than two months remaining before the case will be argued; it has been more than three years since the Presidential Directive the government is relying upon was issued.”

The Office of Management and Budget set an Oct. 27 deadline for agencies to complete background checks and issue cards to employees and contractors with 15 years of experience or less. No agency met that deadline, OMB said.

The court added that the need for the information is questionable in general, “given the absence of any apparent relationship between its collection and the production of reliable identification cards for these employees.”

“We are grateful for the court's action,” Dan Stormer of Hadsell and Stormer, which represents the NASA scientists, said in a statement. “This is another egregious example of the Bush administration's assault on the constitution. Our clients are exemplary employees who have spent their work lives bettering this country. This shows the court will not stand by and let this attack on the right to privacy take place. This unlawful requirement allows unknown government officials to ask all manner of questions about people's personal lives, including their personal lives and mental state. It is exceptionally broad and completely unnecessary.”

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