FBI Can Keep Files on Law Professor

A law professor cannot force the Federal Bureau of Investigation under the Privacy Act to correct and to update files on him dating back to 1970 that include excerpts from his speeches that he alleges infringe on his First Amendment rights.

The Seventh Circuit ruled that his files are within the FBI’s “law enforcement activity” and thus are exempt from the Privacy Act, 5 U.S.C. Sec. 552a. Under the Act, the FBI is required to keep its records on individuals “with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual.” In addition, the agency is prohibited from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment.” An exception is records maintained “pertinent to and within the scope of an authorized law enforcement activity.”

Mahmoud Bassiouni, a law professor at DePaul University, is a former president of the Association of Arab-American University Graduates and of the Mid-America Arab Chamber of Commerce. His academic work focuses on international law and human rights. In 1973, he gave a speech to the Arab Chamber of Commerce. Excerpts of his speech were included in an FBI file on him. The FBI memorandum referenced several terrorists groups of which Bassiouni is not a member of any and the FBI conceded it did not suspect him of ties to terrorist groups. Bassiouni in 2001 asked the FBI to correct the records it kept on him but the FBI refused. He sued.

The FBI filed a declaration stating that the records were relevant to current investigative interests because “(1) investigation of terrorism is the FBI’s top priority; (2) due to his contacts, the FBI will continue to receive information about Mr. Bassiouni and will need the records to provide context with which to evaluate that new information; and (3) the records are important for evaluating the credibility and veracity of the FBI’s sources. Moreover, the Declaration pointed out that, if there were a terrorist event related to one of the groups within which Mr. Bassiouni had contact, ‘there will be an intense interest in what the FBI knew and when it knew it.'”

The Seventh Circuit observed that there is no definition of what constitutes a “law enforcement activity” under the statute. Nonetheless, the court said it believed “that the purposes identified by the Bureau fall within ‘authorized law enforcement activity’ conducted by the FBI.”

Mahmound Bassiouni v. Federal Bureau of Investigation, Seventh Cir. No. 04-3888, January 30, 2006.