## Facts

- After a post-9/11 directive, the federal government implemented uniform identification standards requiring background checks for certain federal employees and long-term contract workers with facility access.
- NASA amended its contract with the California Institute of Technology (Caltech), which operates the Jet Propulsion Laboratory (JPL), to require covered contract employees to complete a National Agency Check with Inquiries (NACI).
- JPL employees were told that failure to complete the process would result in loss of facility access and termination by Caltech.
- The NACI process used Standard Form 85 (SF-85), which asked (among other items) whether the employee had used illegal drugs in the past year and, if so, requested details including any treatment or counseling.
- The process also used Form 42, sent to references, asking open-ended questions about whether there was any reason to question the employee’s honesty or trustworthiness and seeking adverse information on topics including general conduct and mental or emotional stability.
- Information collected was subject to the Privacy Act of 1974, which generally bars disclosure without consent and regulates dissemination.
- Twenty-eight longtime JPL contract employees challenged the SF-85 drug-treatment question and the Form 42 open-ended reference inquiries as violating a constitutional interest in avoiding disclosure of personal matters.

## Issues

1. Assuming the Constitution protects an interest in avoiding disclosure of personal matters, do the SF-85 question regarding drug treatment or counseling and the Form 42 open-ended reference inquiries violate that interest for contract employees in non-sensitive positions?
2. Do Privacy Act protections against public dissemination sufficiently reduce any constitutional privacy concern arising from collection of this information?

## Decision

- The Supreme Court assumed, without deciding, that the Constitution protects an informational-privacy interest of the type referenced in prior cases.
- The Court held that the challenged portions of the government’s background check did not violate any such assumed constitutional interest.
- The Court reversed the Ninth Circuit’s injunctions and allowed NASA to require the background checks.
- Justice Scalia, joined by Justice Thomas, concurred in the judgment, arguing the Constitution does not protect a freestanding right to informational privacy.
- Justice Thomas separately concurred in the judgment, stating the Court should have rejected the asserted constitutional right outright.

## Legal Principles

- The Court may resolve a claimed constitutional informational-privacy violation by assuming (without deciding) that such an interest exists and holding that the challenged conduct does not violate it.
- When the government acts as employer and proprietor of facilities, it has substantial latitude to require reasonable, employment-related screening to ensure workforce suitability and facility security.
- A question seeking drug-treatment or counseling information may be a reasonable follow-up to an inquiry about recent illegal drug use and may serve legitimate employment-screening interests.
- Open-ended reference questions aimed at assessing honesty, trustworthiness, and reliability may be permissible tools of employment screening and need not be limited to narrowly framed inquiries.
- Statutory nondisclosure safeguards, including the Privacy Act’s limits on dissemination, may substantially mitigate privacy concerns arising from compelled collection of personal information, absent a showing that the safeguards are ineffective in practice.
- “Non-sensitive” or “low-risk” job classification does not categorically bar the government from requiring baseline background checks related to suitability and trustworthiness.

## Conclusion

The Court upheld NASA’s background-check requirements for contract employees with long-term facility access, concluding that the challenged inquiries were reasonable employment-related screening measures and that Privacy Act protections against disclosure sufficiently reduced any assumed constitutional interest in avoiding disclosure of personal information.


Nat'l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134 (2011)