John Brent Tarlton, Jr. v. William B. Saxbe, Attorney General of the United States

1116 of, example, five sentence corrected years special parole

years plus three impermissibly more severe an would be thereby unlawful.” [Em- sentence and original.] phasis in advanced-by argument appel- rejected considered and lants has been by appeals. circuit courts of Gar- three (10th States, F.2d cia v. United 492 395 States, 1974); v. Cir. Caille United 1973); (5th United States F.2d 614 Cir. Thomas, (E.D.N.Y. F.Supp. 173 v. 1972) aff’d, (2d , Cir. 474 F.2d 1336 1973) are . These decisions based 160, States, Bozza v. 330 U.S. United (1946), 645, and we 91 L.Ed. 818 S.Ct. they are own cir- think sound. our argument rejection cuit the of Brock’s Hayes States, supported by v. United 1, U.S.App.D.C. 249 F.2d 516 States, King (1957), v. United App.D.C. 98 F.2d 291 District We remand case with directions to correct sen- Court parole imposing special tence term years. of at The district least three judge may original reconsider sen- years imprisonment in tence five light years parole. of the three It is so ordered. TARLTON, Jr., Appellant, John Brent

v. Attorney SAXBE, William B. General States, of the United et al. No. 72-1209. Appeals, United States Court of District Columbia Circuit. Argued June Oct. Decided

Judge:

BAZELON, Chief pro Tarlton, se,

John seeks expunge certain informa this action to tion from his FBI “criminal” file.1 en This information consists several for which no ultimate tries of arrests disposition indicated and of arrests alleges he were and convictions which perpetrated in violation of his constitu alleges rights. tional Tarlton further incomplete in this and inaccurate2 past formation has in the influenced imposing upon him court sentence Board influenced United States May denying parole Parole him Washington, Jr., Carpenter, Russell H. alleges future dis 1970. He that the Court) ap- (appointed by D. C. this semination information will pellant. injury. cause him similar The District Bennett, T. Asst. U. S. Lawrence complaint Court dismissed Tarlton’s Titus, Jr., Atty., H. with whom Harold failure For Terry to state a cause of action.3 Atty., F. U. John A. James S. Attys., Rutherford, ruling on purposes Asst. U. were S. on this motion brief, appellees. allega dismiss, we take as admitted complaint.4 and tions of the reverse We Judge, BAZELON, and Before Chief proceedings remand for consistent with WILKEY, and Circuit ROBINSON Judges. opinion. this complete description injury. McMillan, 306, 1. the FBI For a v. 412 Doe U.S. Cf. system, (1973). 2018, “criminal” file see Menard v. Saxbe 36 L.Ed.2d 93 S.Ct. 912 1017, 284, pleadings (II), U.S.App.D.C. original F.2d included a 162 498 Tarlton his 718, (1974), rev’g, F.Supp. by damages 328 dissemi- 1020-1022 claim for reason of the (D.D.C.1971). allegedly 720-723 inaccurate nation of his by pressed However, the issue has not been raised this While has not record. he jurisdiction parties, upon appeal. 28 U. seems founded on claim Murphy, (1970). v. 1331 See Sullivan S.C. constitu 2. The information is claimed to be 34, U.S.App.D.C. 28, F.2d 156 50 & n. 478 conveys tionally in an ar that inaccurate 880, 938, denied, 34, 414 960 & n. cert. U.S. perpetrated in violation rest or conviction 162, (1973). 94 Tarl S.Ct. 38 L.Ed.2d 125 rights. v. United States constitutional Tucker, Cf. standing, question in ton’s also not raised 589, 443, L. 30 404 92 S.Ct. U.S. Court, this Refugee is Anti-Fascist assured Joint (1972). Ed.2d 592 123, McGrath, v. 341 U.S. Comm. (1951). 140-141, 624, 95 L.Ed. 817 71 S.Ct. (D. Mitchell, 1862-71 3. v. Civil No. Tarlton (I), See also Menard v. Mitchell 139 U.S. 1971). 1, Dec. D.C. (1970) ; Albert, App.D.C. 113, F.2d 486 430 Standing Challenge Equip., Action: Inc. v. Food Mach. Administrative Process Walker Surrogate 172, 174-175, Inadequate Corp., An Re 86 for Claims for 382 & Chem. U.S. (1974). (1965). lief, 425, 347, Tarl Tarlton 247 83 Yale L.J. 449-73 15 L.Ed.2d S.Ct. presents complaint pleadings pro pro the sort of se set ton’s se did not in his initial dispute traditionally theory complete consid with has been forth the of his action ripe justiciable; precision. However, reading deci his claim is of his ered careful given Saxbe, complaint supports supra, at in Menard 498 F.2d sion. v. the summation litigants 1023-1024; Murphy, de- v. 156 U.S. Pro se should not be Sullivan the text. inexpertly 54, 58, 964, prived rights App.D.C. F.2d at their due to 478 Tatum, 1, 13-16, Burke, pleadings. 92 v. 337 Laird v. 408 U.S. S.Ct. drawn See Gibbs distinguisha 1247, 2318, 779-781, (1972) 773, L.Ed. 93 33 L.Ed.2d 154 69 S.Ct. U.S. allegations past (1949). ble virtue of Tarlton’s 1686

1121 course, question wholly Of I. this dis- question tinct from the of whether the complaint Tarlton’s leads us guarantee accuracy FBI must of in- law, particularly into sensitive area of files, similarly in formation its dis- concerning developing relationship question tinct from the of whether privacy and between values of individual conflicting allegations FBI must resolve record-keeping functions of the exec as to the of its reсords. As Recently, utive in Menard v. branch.5 developed will be in more detail Part (II),6 we held that the FBI must Saxbe (pp. 1127-1129) below, present III under expunge information from its criminal questions these circumstances latter two agency file when the local which first would not be resolved Tarlton’s favor. reported information to the Furthermore, carefully we note what reports disputing later information not issue in this case at all. Tarlton’s accuracy of the relevant FBI records. pro complaint challenge se does poses question complete Tarlton’s claim not de dissemination of and constitu- tionally ;7 accurate arrests or convictions (II): extent, cided Menard what allege information, nor does it any, does the FBI have a to take not, complete whether accurate and safeguard reasonable measures has been disseminated to ««authorized accuracy of information in its criminal persons.8 subject files which is to dissemination. records of arrests if the accused is later ac

5. Two notable recent oases have concerned Compare quitted charges dropped. or the relationship. are Bankers Ass’n California Examiners, hware v. Board of Bar Schultz, 1494, v. 94 Sc 416 U.S. S.Ct. 39 232, 241, 752, 1 (1974) ; 353 U.S. 77 L.Ed.2d Tatum, S.Ct. L.Ed.2d 812 Laird v. 408 (1957) Systems, Gregory v. Litton 1, 92 33 L.Ed.2d U.S. S.Ct. F.Supp. 401, (C.D.Cal.1970) with Hearings Bee on Criminal Justice Rosen, F.Supp. 804, United States v. Data Banks Before the Subcomm. Consti- (S.D.N.Y.1972) Comm, 808-809 Rights United States tutional of the Senate on the Dooley, F.Supp. 75, (E.D.Pa. v. Judiciary, 78-79 Cong., (1974) ; 93d 2d Sess. 1973). Cong., See also 2d Hearings S. 93d Sess. H.R. 13315 Before the House Comm, 202, (1974) ; 2696, Cong., 206 S. 93d 2d Judiciary, Cong., Sess., §§ on the 92d 2d (1973) ; 1 (1972). § Sess. President’s Comm’n on ser. 27 Law Enforcement and the Administration U.S.App.D.C. 284, 162 498 F.2d 1017 Justice, Report: Task Force and Science (1974). (I) Menard is an earlier version of Technology (1967) (retention 74-77 litigation. U.S.App.D.C. 113, 139 430 records of arrest or conviction for unreason (1970). F.2d 486 lengths may able of time conflict with reha goals) July by implication ; Time, 23, 1973, 7. He 14 does raise an issue bilitation decid- may (Massachusetts participate (II) in in ed Menard : FBI refuses to the whether police system system retain FBI that records of “detentions” records because probable which it that no records arrests even conviction has knows cause when no (II) entered). existed. decided that been Menard police such interaction between citizen and F.Supp. (II), activity In Menard v. Mitchell 328 was not the kind of criminal which 718, (D.D.C.1971), corollary rev’d on other 725-728 be included in FBI files. The U.S.App.D.C. (II) grounds, 284, F.2d 162 498 of Menard is that arrests or convictions (1974), statutory grounds by the court on 1017 known the FBI be unconstitutional are and con- properly limited the dissemination of arrest in not enshrined files. Cf. 443, Tucker, records state law enforcement viction 92 404 United States v. U.S. government. agencies 589, ; This (1972) pp. and the federal 1125- 30 L.Ed.2d S.Ct. 592 Congress by part was in reversed limitation 1126 infra. 92-184, 642, 902, Department recently to au- in Pub.L. 85 Stat. § The of Justice has banking in- promulgated proposed regulations to certain thorize dissemination which lim- by agencies activity reported and to be named stitutions other it dissemination of criminal Attorney-General. violations”, significant Bee C.F.R. 0.- § 28 to “serious and/or However, 85(b) (1974). is, constitutionally issue of Con- 39 that Fed.Reg. 5636, valid arrests. yet (Feb. 14, 20.2(c), restraints dissemination is stitutional on 20.32 §§ definitively adjudicated we, 1974). and there- be in this case to fore, express We do not decide opinion may properly no issue. We whether retain 1122 disseminating

II. criminal identifica- tion records it and files carries with as Congressional authorization The corollary responsibility to dis- criminal records is for maintenance of charge reliably respon- this function (1970) directs9 which 534 28 U.S.C. § sibly unnecessary and without harm to among Attorney General, other rights individuals whose have been classify, things, collect, “acquire, corollary invaded.” This is a neces- identification, preserve criminal identifi sary implication grant pow- from the cation, crime, and other records.” We er to maintain and disseminate criminal (II) im thаt the statute held in Menard Surely information. a reliable and re- FBI, plies duty part sponsible performance of the record- delegat Attorney General has which the keeping requires function such reason- record-keeping, ed the task of criminal able care the FBI is able to afford to responsible informa to “take account of injury through avoid to innocent citizens tion . the ‘arrest’ record . . dissemination of inaccurate informa- ‍​​‌​‌​​​​‌​​‌‌​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​‍previously did not communi- submitted tion.12 properly cate an information retained Second, if the FBI has the file as an ar- Bureau its criminal authority to collect and disseminate in rest record.” pri accurate criminal information about holding reaffirm the We making vate individuals without reason (II) length Menard and set forth at safeguard able efforts only require various reasons which information, have would effect implication above discussed authority to libel those individuals.13 open 534, go from the texture of but § However, cannot, we absent the clearest further, legal providing the basis for a Congressional statement policy, im comprehensive more view of the FBI’s pute Congress an intent to authorize regard responsibilities in to its criminal damage reputation the FBI to in First, files. as we stated Menard nocent individuals in contravention of maintaining (II), Thus, principles.14 “the FBI’s function settled common law express opinion Ass’n, 371, also no cour v. on whether the FBI Herald & Globe 111 Vt. supervising (1941) ; must take more active role in 17 A.2d Krehbiel, Hanson v. they (1904) ; the use made Kan. of FBI records once are 75 P. 1041 Brewer v. Chase, agencies, (1899). sent to authorized an area in 121 Mich. 80 N.W. 575 potential course, complete there has been a authori- Of abuse of truth is defense to a Harper ty. (II), James, libel action. Menard at 1026 n. 28. See also S. F. & F. The (1974). Cong., sure, Law of 93d 2d Torts 5.20 §§ Sess. 201-02 To might the FBI well assert such an action Rosen, F.Supp. 804, 9. United States v. justified by the libel is law enforcement (S.D.N.Y.1972). Attorney-General needs or considerations federalism. pursuant 534(c) delegated to § this re- justifications pp. Both of these are discussed sponsibility 0.85(b) to the FBI. 28 C.F.R. § However, 1126-1129 after Doe v. infra. (1974). McMillan, 324, 306, 2018, 412 U.S. 93 S.Ct. (1973), 36 L.Ed.2d 912 the FBI can assert 10. 498 F.2d at 1029. privilege. no absolute 11. Id. at 1026. McMillan, 306, 324, 14. Doe v. 412 U.S. 93 Cf. 2018, (1973) ; S.Ct. 36 L.Ed.2d 912 Board of Act, 12. Federal Tort Claims 28 § U.S.C. Cf. Regents Roth, 564, 573, v. 408 U.S. 92 S.Ct. seq. (1970) ; Rogers et 2671 v. United 2701, (1972) (dictum) ; 33 L.Ed.2d 548 Wis States, (4th 1968) Ing ; 12 397 F.2d Cir. Constantineau, 433, 437, consin v. 400 U.S. Lines, Inc., ham v. Eastern Air 373 F.2d 507, (1971) ; 91 S.Ct. 27 L.Ed.2d 515 Wat 227, (2d Cir.), denied, 233-236 cert. 389 U. States, 178, 197-199, kins v. United 354 U.S. 931, 295, (1967) ; S. 88 S.Ct. 19 L.Ed.2d 292 205-206, 1173, 77 1 S.Ct. L.Ed.2d 1273 States, (3d McGill v. United 200 F.2d 873 (1957) ; Refugee Joint Anti-Fascist Comm. 1953). Cir. McGrath, 123, 139-141, 143, 180, v. 341 U.S. law, 13. At 624, (1951). common the written accusation 71 95 L.Ed. also S.Ct. 817 See Baer, 75, 86, 92, that an individual has been arrested or con- Rosenblatt v. 383 U.S. 86 per 669, (1966). victed of a crime is actionable se. Lan- S.Ct. 15 L.Ed.2d 597

1123 Congress presume Indeed, not in- viction did records.16 we the whole through panoply requirements, the FBI to authorize of constitutional tend 534 § right trial, particularly speedy infor- to to disseminate inaccurate criminal pre- taking upon activated are without reasonable arrest or indictment mation designed prevent inaccuracy. mitigate to to cautions obvious restric liberty public tions on due to accusation promise Third, expedi of a crime an had if the FBI complete hearing authority tious and individu determine to defame innocent to gravest per the merits of the als, accusation.17 To would be faced with the we mit to the FBI disseminate issues. Dissemination inaccurate constitutional without criminal FBI criminal information information without inaccurate making prevent precaution reasonable in efforts efforts to of reasonable inaccuracy per would be tantamount forestall restricts sub ject’s liberty procedural mission to accuse individuals of without criminal designed safeguards prevent providing in conduct such without ever in such opportunity disprove of inac dividuals an That dissemination accuracies. Exactly accusation.18 records these curate arrest conviction consid supported Supreme liberty erations fact restricts is established Court’s 15 (I) Refugee decision con in Joint Menard and other decisions Anti-Fascist cerning expungement Committee v. or con McGrath.19 of arrest Body, general rule, interpret 590, (1961) Harv.L.Rev. 74 594-96 As federal courts existing cited. authorities federal statutes as consistent with law, principles of which common are a law sure, 18. To to the extent these accusa part, contrary legislative ap- unless a intent parole tions are directed toward or sentenc pears. See, Johnson, g., e. v. Isbrandtsen Co. ing authorities, the individual an have 1011, 779, 783, 96 72 L.Ed. 343 U.S. S.Ct. opportunity charges. to rebut the Mor See (1952) ; 1294 cases cited note 24 infra. rissey Brewer, 471, v. 408 U.S. 92 S.Ct. 2593, (1972); 33 L.Ed.2d v. Townsend U.S.App.D.C. 484 117-118, F.2d at 15. 139 at 430 Burke, 736, 741, 1252, 334 U.S. 68 92 S.Ct. 490-491. (1948). However, L.Ed. 1690 on 13, (II), n. 16. Menard at 1023 498 F.2d produce to take reasonable measures to Columbia, 1024; Morrow v. District 135 accurate supports information for those authorities U.S.App.D.C. 160, 174, 177-178, 417 F.2d procedural rights guaranteed 742, (1969). 728, v. 745-746 See Wisconsin parole sentencing hearings, those since 507, Constantineau, 433, S.Ct. 400 U.S. 91 required themselves sen authorities are ; (1971) 515 27 L.Ed.2d Joint Anti-Fascist tence an accurate and constitutional crim 123, Refugee McGrath, Comm. v. 341 U.S. Tucker, inal United v. 404 record. States 624, ; Mey (1951) 95 L.Ed. 71 S.Ct. 817 cf. 443, 589, 592 U.S. 92 S.Ct. 30 L.Ed.2d Nebraska, 390, 399, v. 262 43 er U.S. S.Ct. (1972). pp. See 1126-1127 Further infra. Project (1923) 625, ; 67 L.Ed. 1042 ABA more, information disseminated Justice, Minimum Standards for Criminal agencies parole great many other than Relating 2.3, Standards to Probation at 37 sentencing authorities. cited See sources (Tent.Draft 1970). supra. proce note 8 The individual has no rights agencies. dural before those generally Wingo, Barker See v. 407 U.S. 532, 514, 2182, 123, 624, 92 L.Ed.2d 101 817 S.Ct. 33 341 71 S.Ct. 95 L.Ed. U.S. ; (1972) Marion, (1951). United v. States U.S. also Wisconsin v. See Constan- 320, 307, 455, tineau, 433, 507, 30 L.Ed.2d 468 L. S.Ct. U.S. S.Ct. ; Dickey (1971) Florida, McGrath, 41- v. Jus- 398 U.S. Ed.2d 515 four (1970) tices, eight participating, 90 S.Ct. 26 L.Ed.2d held out of (Brennan, J., concurring). plaintiff organizations were entitled hearing exception adversary At- one is ex- an on the truth of the The traditional the published they traordinary process grand jury present- torney-General’s a claim that protect communist, Attorney-Gen- ment, strictly which is controlled to were because the privacy damaged reputation and the text. their the See, interests enumerated in eral’s claim ability g., Report Justice, Bur- In function. The fifth e. re & Recommendation to Court, 5, F.Supp. opinion Jury, ton, the 1972 Grand who for of June 370 wrote People, plaintiffs (D.D.C.1974) ; 101 held that were entitled 1219 Jones v. Dep’t 55, 1905) ; (2d District on whether A.D. 92 N.Y.S. 275 trial Court Investigatory Jury Attorney-General’s claim The Grand as an was reasonable. Note

1124 largest sense, aspects both fleeted certain First government this constitutional and the common issue Amendment: collection and forbidding principle dissemination law defamation of inaccurate criminal in- precau- refer to the value formation innocent individuals without reasonable value, privacy. accuracy con tions to ensure induce of individual This could years,20 levelling conformity sistently in recent reaffirmed inconsistent with diversity from un insulate individuals serves to ideas and manners government justifiable traditionally with which interference has characterized legal protec- private finds our national life lives.21 value and found their This expression Scrupu- tion in in the Fourth direct First Amendment.23 its most 22 lously avoiding Amendments; issues,24 re- it also is constitutional and Fifth 113, Wade, Sills, g., 210, See, Anderson v. Roe v. 410 U.S. 56 265 20. e. N.J. A.2d 678 ; (1970) Note, 705, Chilling 152-153, 147 L.Ed.2d Effect 93 S.Ct. 35 Constitu- 438, Law, Baird, (1969). (1973) ; tional 69 Eisenstadt 405 U.S. Colum.L.Rev. 808 v. following (1972). by Judge 1029, The 31 L.Ed .2d 349 statement Gesell is 92 S.Ct. particularly instructive: 178, States, 354 U.S. 21. v. United Watkins “Systematic recordation and dissemination 1173, 205-206, 1273 1 L.Ed.2d 77 S.Ct. of information citizens about individual (1957). a form of surveillance control which may easily v. speak, Katz United Amendment: 22. Fourth inhibit freedom to 507, 347, 350-351, States, ‍​​‌​‌​​​​‌​​‌‌​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​‍work, [freely] S.Ct. 88 389 U.S. and to . . .. move If Boyd (1967) ; v. United 576 L.Ed.2d 19 information available to Government 524, 616, 630, States, 29 publicize past 6 S.Ct. 116 U.S. misused to incidents in the protecting against (1886), pressures search citizens, L.Ed. 746 its life of formity con- government private areas es of unless will be Initiative and irresistible. “probable individuality has been cause” that a crime and a can be suffocated re- sulting Fifth area. or hidden in that committed dullness mind and conduct will Amendment) (Fourteenth : Wis Amendment become the norm.” 433, Constantineau, F.Supp. 91 (II), 718, S. 400 U.S. v. consin Menard v. Mitchell 328 (1971) ; 507, v. L.Ed .2d Snaidach (D.D.C.1971). 27 515 Ct. 726 337, Family Corp., reality danger 89 S. Finance 395 U.S. illustrated Goldberg ; (1969) 1820, Murphy, L.Ed .2d 23 349 156 Ct. facts in v. U.S. Sullivan 1011, 254, denied, L. 28, 938, 25 Kelly, App.D.C. 90 S.Ct. v. 397 U.S. 414 478 F.2d cert. depri against (1970), protecting 880, 162, Ed.2d 287 L.Ed.2d 125 94 38 S.Ct. U.S. privacy liberty McLeod, (1973) ; invasion of vations of 385 v. F.2d United States proc process Webster, (5th 1967) ; “Due law.” “due without v. Cir. Wilson 467 734 procedural generally (9th 1972) ; Dudley, safe refers ess” v. F.2d 1282 Cir. Bilick govern designed guards F.Supp. (S.D.N.Y.1973) ; to insure 945 Kowall v. 356 pursuant invading private (W.D.Mich. States, area ment is 53 F.R.D. 211 United occasions, it, objective, F.Supp. legitimate 1971) ; Goodman, but v. 298 Wheeler governmental legitimate Hughes Rizzo, (W.D.N.C.1969) ; that no meant v. 282 has objective 935 justify (E.D.Pa.1968). F.Supp. Roe invasion. See can also 881 See 705, 113, Wash.Post, 1974, Wade, 20, L. 35 S.Ct. col. 410 U.S. 93 June at Cl. v. (1973) ; As 23 note Ed.2d 147 infra. of. 17, Smith, U.S. 88 v. 390 See Schneider above, supra, de do not

1125 interpret designed we in a 534 manner injuries.”25 § constitutional prevent government Generally, dissemination of expungement courts order inaccurate criminal information without arrest or remedy conviction records to precautions reasonable injuries to ensure accura- by constitutional sustained rea cy. son of such arrests or convictions.26 We followed such a course action in Sulli Fourth, regard in to Tarl 27 Murphy, supra van Furthermore, v. allegations ton’s of unconstitutional ar organ gov the FBI as an of the national recognition convictions, rests or of a responsi ernment commensurate duty part on the of the FBI to make bility vigilantly support and defend reasonable efforts to maintain constitu the Constitution and we would not inter tionally accurate criminal is but files an pret 534 in a manner judicial § inconsistent with authority exercise of to use “re responsibility.28 medial mechanisms to or redress obviate 116, 1113, (1957) ; private parties may is not clear 2 whether 78 S.Ct. L.Ed.2d 1204 en- provisions States, 178, force Watkins United its or v. 354 U.S. whether 77 enforcement ; 1173, (1957) government 1 L.Ed.2a committed tо S.Ct. 1273 Girouard the discretion of prosecutors. States, 68-69, 61, 524(c), v. United 328 66 See § U.S. S. 42 U.S.C. § ; (e) 826, 1973). (1946) (Supp. Compare 2963, L.Ed. 1084 Banzhaf Ct. 90 v. 3771 Ill S. U.S.App.D.C. FCC, 14, 1082, Cong., 301, 207(b)(6), 405 F.2d 93d 2d §§ 132 Sess. 308- (D.C.Cir.1968), denied, (1974). 09 396 1093-1096 cert. This confusion is reflected 842, 50, (1969) uncertainty parties U.S. 24 93 90 S.Ct. L.Ed.2d to what would have .T.). (Bazelon, standing, any, jurisdic- and C. as to federal Furthermore, tion. the statute not does de- Murphy, U.S.App.D.C. 28, 25. v. Sullivan 156 although feasible”, fine “maximum extent denied, 938, 55, 965, 414 478 F.24 cert. U.S. feasibility administrative determinations of 880, 162, (1973), 94 38 L.Ed.2d 125 S.Ct. would, properly if the issue were otherwise citing v. Bivens Six Unknown Named subject Court, judicial before the be re- Agents, 1999, 388, U.S. 91 29 403 S.Ct. L. view. Citizens to Preserve Park v. Overton (1971). Ed .2d 619 Volpe, 402, 814, 401 91 U.S. S.Ct. 28 L.Ed. Webster, 26. v. (1971). See Wilson 467 F.2d 1282 2d 136 The statute defines “crimi- 1972) (9th supra,. ; history Cir. cases cited note 23 nal information” in terms infor- Doe, 28, See also v. Orim.No. record-keep- United States mation contained “automated” (D.O.Super. Aug. 1974). 19, ing systems, may may which or not embrace systems. record-keeping the mass of local U.S.App.D.C. 54-63, 27. 156 478 F.2d at Finally, suggests in- statute that some Tucker, 964-973. United v. Cf. States “challenged formation could be corrected” or 443, 589, 92 S.Ct. U.S. 30 L.Ed.2d 592 but does not on what indicate bases. (1972). ruling issue, AVithout on the we assume reasoning purposes support- 28. Our in Part II also of this decision that the statute 93-83, 524(b), apply However, ed Public Law does § not to the FBI. U.S.C. 3771(b) (Supp. 1973), perti- § Ill statute does inform our view of § requires part history though nent that all Even Public Law 93-83 was enacted “criminal information” maintained and after '28 under established au “State local U.S.C. § governments” thority may guide judicial with LEAA construc funds shall “to still the maximum extent tion States, See v. United § feasible” include ulti- Girouard disposition arrests; 61, 67-70, mate for all all recorded 328 U.S. 66 S.Ct. (1945) ; history v. individuals who have criminal L.Ed. 1084 Hutcheson United infor- govern- States, 219, 231-36, mation in files of local state and 312 U.S. S.Ct. surely receiving Congress (1941). LEAA can ments funds obtain ac- 85 L.Ed. 788 purpose presumed cess to that information to undercut action § “for the its intending 534(b) by challenge fairly the FBI be autho correction.” statute This interpretative is, problems, rea rized to and disseminate without bristles receive with incomplete, according Report, precautions the sort of to the an sonable Conference unchallengeable or lo not be information from state “interim measure” “should dispositive cal those officials themselves unsettled and officials which viewed as of the Furthermore, right privacy are forbidden disseminate. sensitive issues of the 534(b) rights affecting -which source of law § the mainte- relevant other individual gener justice supports implication into 534 of the nance and dissemination of criminal principle 93-401, Cong., Conf.Rep. to take al the FBI has 93d information.” maintain accurate reasonable measures name but few 2d Sess. at To records, interpretative problems: concerns criminal since the same The statute

1126 efficiency. dis executive four considerations this case

The Since the FBI is reaches us on a motion that to dismiss for cussed above establish duty prevent action, failure dissemina to state a cause of we under some and conviction need not resolve the difficult and sensi- tion inaccurate reconciling considerations, questions tive policies these involved in records. None of prevent above, the FBI from and administrative as framed disseminating federalism efficiency duty suggested by criminal records with the accurate disseminating enough or, indeed, inaccu the discussion in Part from It is II. taking stage litigation reasonable after this rate records state safeguard accuracy, duty sufficiently developed that measures judicial inquiry inter do not convince us that these considerations more thus Therefore, legitimate enforcement law needed. we remand the fere with is, objectives. however, inquiry. as these case for such There further legiti establish no four considerations expe- record in The this case and the objective in dis mate law enforcement gained litigation rience Menard seminating criminal records inaccurate are, however, sug- sufficient for tous precautions to safe without reasonable gest following investiga- avenues of guard accuracy. Indeed, the the records’ hearing. tion in the remand The discus- press conten FBI not here such a does sion that follows seeks to define the argues that considera tion. Rather it may upon kind of facts which bear federalism and administrative tions open hearing. issues at that The FBI efficiency require enforce that local law will, course, opportunity have an agencies the entire burden ment assume suggest countervailing considerations. safeguarding accuracy criminal purpose issues, Our here to frame not records. now turn to discussion We dictate conclusions. that issue. precise The first is the issue responsibility. nature of the FBI’s The III. here, (II), presses inas Menard stated, As the four considera repository contention that is a mere legally tions establish the existence of a for information collected and recorded protectable subjects agencies interest for of FBI state and local and thus is specific criminal The responsible files. nature inaccuracies duty arising legally pro from that Passing that information. the issue of cannot, however, de tectable interest responsi whether the FBI disclaim application bility termined a mechanistic injuring innocent individuals merely the discussion in Part II above. Rather agent, because of its status as an duty be accommodated to (II) quite clearly must Menard holds that the particular plays role the FBI in the passive recip than “a is more mere 29 collection and dissemination of criminal ient of records received from others.” system, information in “energizes the Federal Rather the FBI those records capacity by maintaining FBI’s to take meas system reasonable of criminal practi disseminating ures to ensure and the files and the criminаl judicial widely, acting calities of administration and records in effect as a impose Congress Moragne Lines, Inc., which led see v. States Marine 375, 390-392, state and local law enforcement officials 398 U.S. 90 S.Ct. 26 L. regard apply equally (1970) ; States, to tlieir criminal files Ed.2d 339 Welsh v. United 333, 345-361, to the FBI and its criminal files. See Conf. 398 U.S. 26 L. S.Ct. Rep., supra, (1970) (Harlan, concurring). at 32. See also 93d S. Ed.2d 308 J. Cong., (1974) ; Hearings, scholarly authority, su- 2d Sess. For a collection of see pra Note, Legitimacy note 5. Another statute serves of Civil Law Reason ing a relevant source of law is the Consumer in the Law: Harlan’s Common Justice 1681g- Act, Contribution, (1972). Protection §§ Credit U.S.C. 82 Yale L.J. 258 1681j examples For recent law, use of statutes as relevant sources of F.2d at puts difficulty step-up into the records and the extreme transformer of ob- good taining system capacity on their for both the information own virtually make blind reliance on the FBI harm.” practical necessity. Third, a records suggested It also files, imprisoned subject of the often following disclaimer on each FBI record and more the intellectual often without persons FBI disseminated outside the capacity per- or financial to conduct a merely the FBI a re establishes that pository investigation sonal dis- into the facts of by for information collected tant convictions, or will seldom arrests “Information others: shown this challenge effectively be able to accu- represents Identification Record data racy of information distributed by fingerprint furnished FBI contribu- parole sentencing FBI before a or board tors. WHERE FINAL DISPOSITION judge. may sum, the FBI not dis- IS NOT FURTHER EX- SHOWN OR responsibility system claim DE- PLANATION OF CHARGE IS through print- has created insertion of a SIRED, COMMUNICATE WITH warning ed on the records it dissemi- AGENCY CONTRIBUTING THOSE nates. we commend FINGERPRINTS.” While inserting warning, the FBI for we this are, however, practical There cannot that it find absolves the Bureau responsibility. limits to the FBI’s responsibilities, they of its whatever “Realistically, expect the FBI cannot be may be, toward informаtion it dissemi- investigate underlying ed to the facts argument nates. We would think this every reported arrest or detention to it. ” rejected by (II). had been Menard place . Such a would entirely Even if that reasonable conclu- potentially huge administrative burden may purposes argument sion be on Furthermore, the FBI. in the case aside, set we think that the realities of alleged unconstitutional arrests or con- nullify any the dissemination network victions, the FBI is not authorized or impact above-quoted disclaimer equipped judgments concerning to make might detering have in in- reliance on might questions what be difficult formation disseminated the FBI. interpretation. Finally, constitutional First, sentencing judge agen- parole or considerations of administrative effi- cy is in position to check the accu- ciency suggests and federalism that the racy every file it receives. “primary duty inquiry of executive into Those have authorities no direct contact facts distant is a burden arrests agencies with local law enforcement or a assigned appropriately more to the local permanent questions staff handle con- agency whose officials made the arrest cerning accuracy of arrest and con- [or than to the FBI.” conviction] agencies viction records. And other or individuals who Similar reasons limit the re have access to FBI lief criminal United records would States courts this district have even less ability legally practically grant accuracy to check on liti of those gants position. Second, sentencing parole records. in Tarlton’s The Dis position they trict authorities are in Court cannot review constitu where tionality relitigate rely must some the merits all source for informa- tion about an arrests and accused or convictions the United convicted indi- easy Furthermore, availability vidual. The States.33 considerations of FBI Id. 33. The District Court here would be an in- 1404(a) convenient forum. See 28 U.S.C. (I), U.S.App.D.C. 31. Menard v. Mitchell (1970) ; Corp. Gilbert, Gulf Oil v. 330 U.S. (Baze- at 122 n. 430 F.2d at 495 n. 51. 501, 508-509, 839, 91 L.Ed. 1055 67 S.Ct. lon, J.).C. (1946). (II), 32. Menard v. Saxbe 498 F.2d at 1025. Bass, 336, 349, United States v. 404 U.S. Cf. 92 S.Ct. 30 L.Ed.2d 488 agencies comity34 jurisdic- seem to since it have no would would of federal-state super-

require tion over those local records.35 courts convic- vised the arrest entered limiting

tion should make the initial These considera under attack validity unequivocally to the of that determination as tions establish course, guarantor Finally, not and arrest or conviction. cannot be the ordinary in the case the Court of the information in its District However, expungement informa- criminal cannot order files. established governmental opinion, in Part II óf tion files of local neither can it from the Spock Younger Harris, 37, g., local records. E. v. See v. U.S. 43- District of 401 (1971) Columbia, 44, 746, ; (D.C.App.1971). L.Ed.2d 669 283 A.2d 14 91 S.Ct. 27 Comment, Fay Noia, 391, 417-420, See Retention v. 372 U.S. 83 S.Ct. and Dissemination ; 822, (1963) Response, of Arrest Records: Morrow v. Dis- Judicial 9 L.Ed.2d 837 38 (1971). Columbia, U.S.App.D.C. 160, U.Chi.L.Rev. 135 850 Under trict of habeas cor- pus futility (1969) ; Develop- doctrine, grounds 173, 728, this F.2d is for im- 417 741 Corpus, mediate federal review. ments in the Law-Federal Habeas See Sullivan v. Murphy, U.S.App.D.C. 1038, (1970). 52-54, 156 83 Ilarv.L.Rev. 1093-94 Since at 478 F. Developments 962-964; Law, expungement 2d at conviction in of arrest supra attack, at 1099. Even if a form collateral state court would records is of .a grant expungement, corpus of it is case law exhaustion unclear whether it habeas on persuasive, request remedies, particularly would order local a officials to return state is Finally, controlling, analogy. FBI of records. we would be most if not comity policy hesitant remit while to Tarlton to suits in state The of federal-state when, here, twenty requests expungement applicable courts as of over different to for prevent expunge- arrest entries in are issue and there is no records does not prior showing against permit FBI that' the states involved ex- ment actions directed pungement. expungement in action to a successful jurisdiction forеgoing considerations, first addition to the which local court of the provided disputed we note Menard that courts this district' have tra- record. See sure, ditionally policies (II), To be reviewed the national of 498 F.2d at 1025-1028. agencies officials federal in order to for all from state establish Menard did seek redress guide bringing a District courts consistent set of standards to his action in the before agency. Hershey, district, that U.S.App.D.C. v. did not obtain See Nestor 138 this but he Court of 90-91, 504, 73, expungement F.2d 521- To the extent 425 in state court. (1969) remedies, (Robb, J.). Tarl- 522 This state traditional Menard exhausted his applicable the same concern is to the FBI. We also his remedies to ton will exhaust duty inquiry begins comply note once the FBI if the FBI exercises extent any duty required by pp. suggested as inter- § 1129-1130 with preted by 534 such as is infra. remand, seeking Furthermore, action, it after the District Court Tarlton’s injured imposed, FBI’s if all of the such duties are does a determination federal statute, parties duty by involves must exhaust their .administrative federal created undeniably as the issues such the FBI. certain federal remedies within duty inquiry. suggested this of a It is also that we transfer existence and extent persuasive analogy Notably habeas case to the federal district in which Tarlton presently presently imprisoned corpus supports Ex- this result. or is doctrine only required parole. might be the merits of local remedies Whatever haustion of provide suggestion, full relief. has merit in this can such a no where state courts 434-435, Noia, already Fay supra 83 his at has exhausted 372 U.S. case since Tarlton v. ap 837; parole 822, 28 U.S.C. board and on 9 L.Ed.2d remedies before the peal S.Ct. Law, ; Developments parole 2254(b) (1970) in the board decision. See from the Cir.), (5th Clark, supra can- state courts 441 F.2d 384 at 1097-1103. Here Tarlton v. 2263, denied, expunge relief FBI records and thus 91 S.Ct. not they cert. 403 U.S. Although inadequate. grant L.Ed.2d could presumably order the could court the state this, request applied agency records of the sort return limits of 35. This local Court present challenges issue, requests analogous rou- are at which area of venue in tinely McGuire, honored, (II), parole. F.2d at v. Menard Starnes to denial of See remedy - places plaintiff’s -, at U.S.App.D.C. 512 F.2d this (en banc). 1974) not con- (D.C.Cir., FBI. We do the discretion Nov. at 931 many Furthermore, adequate. this sider may grant expungement of state courts general Because of the nature responsibility inaccuracies all avoid opinion, in this we feel of our mandate injure individuals. innocent sug compelled tentative to make some to consider Court is task of the District gestions to the Court concern District with- reasonable care the standard of duty ing general specifics this capacity ‍​​‌​‌​​​​‌​​‌‌​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​‍where between FBI’s emphatically inquiry. state that proper We definition extremes these suggestions which the may these are responsibility found. We may, discretion, District Court its (II) FBI has that the held in Menard duty may First, the consider. District Court infor- responsible take notice inquire persuasive well wish whether local law enforce- mation furnished might justify agencies. may reasons exist which The District Court ment keep of the FBI to its files rea failure exist inquire persuasive reasons whether current, sonably i. e. the failure to indi extending a more for not disposition cate a a reasonable general duty within request law en- local entry time after the ond, an arrest.36 agencies bases, Sec the factual forcement the District wish to con Court allegations any, to the submitted upon the FBI re sider whether should challenging prior infor- allega detailing quest agency. of an individual by that local mation submitted in his FBI tions of inaccurate entries duty the include, for could Such a allegations forward those criminal file requirement above, a discussed reasons legal the local law enforcement to agency relevant or is- that the FBI resolve factual request or allеgations with a for comment might the sues that arise if Third, contradiction. the District Court subject of the record of the individual may present FBI wish to review the en- of local law and the the statements by use local law enforcement forms for agency Neither could forcement conflict. submitting to officials in criminal data duty give a a rise to the of such exercise re determine whether is reasonable to it legal obligation part the FBI on the of reporting require the vise those forms to guarantee accuracy of records to the the additional information about of subject request of an FBI which the are subject of the sub crime which is the agency. a local enforcement law to mission. stage pro- the We are not at this duty specific the Dis- further A ceeding arguments to informed as what may Court, discretion, wish in its trict justifications or administrative grant right duty a is a to consider might bring explain its forward to who are sub- access for individuals general present this failure to undertake pur- ject of FBI criminal for files might duty. example, plausibly For one examining pose their files argue expense of ex- that the sheer practical- inquiring to the as errors. general duty might indi- ercise of such a duty, efficiency ity a of such duty im- not be cate that should might review whether District Court sure, very posed. are, hesitant to be We right or should be absolute of access this granted only upon compel- duty to limit a the most absent injury from threat ling justification. We administrative record.37 of the criminal dissemination however, judgment, withhold final Finally, inquiry, the District in this given op- a full until the FBI has been injured may whether consider Court portunity express and the its views opportu- have a limited should individual evi- clarify has evaluated the explain District Court nity information by hearing. placing a file contained in his either dence adduced at the remand A2, 25, 1974, pending appeal, Post, also col. 4. See at this June We note Al, 1973, id., col. 3. expunge June all will FBI has indicated that it year Tatum, old for S.Ct. than one records more v. 408 U.S. Laird Cf. reported. disposition L.Ed.2d Wash. is which no urged perform it short statement the file or indicat- the task but ing infor- rather in on the file itself that certain the existence vel non of le- a challenged.38 gally protectable interest, mation is a “right”, “cause of action.” arguments The learned the dissent score, precious On dissent has remand, invite a brief rebuttal. Our little criticism of our result. To be argued, requires Court to District sure, general there is the assertion perform the awesome task of adminis- Congressional presume we from si- tering through “judicial the FBI amend- lence an intent in 534 to alter estab- § projects, ment” to ing 534. Such accord- lished in- common law and constitutional dissent, to the are not the business argument terests. Not this sin- concede, of courts. Even if we were gularly unpersuasive us, it does not certainly not, which we most do that our fully persuade even seem to the dissen- may ultimately remand in a man- result reading who, opinion tor close of his conjured date extensive as that establish, apparently will sees a suffi- dissent, we would still our hold- consider legal ciently sug- significant interest to ing proper judicial exercise of the gest of FBI disclosure criminal files and function, every respect consistent right reply injured subjects judicial with the traditional roots of those files. power. might One cite as random exam- ples injury the control of work-related essentials, Reduced to our col technological and the costs of advance league’s concern seems to case through personal injury litigation; that the cost administrative difficul system administration of the of free en- ty duty implementing inquiry through terprise enforcement of busi- suggested tentatively opinion in our con promises protection ness and the of tan- clusively impracticality demonstrates gible intangible interests; property establishing remedy such a as a and, ju- most relevant dispute to the sub legal might injury a interest. to We dice, the reconciliation in- of individual judgment. concur in this at a later time Certainly reputation impor- in terests with other a result not foreclosed such is political social tant interests such as de- by holding or rea in the least our the competition bate and free economic soning support in of it. the offered On through the law of libel and slander. contrary, expressly hold that cost and we temerity judicial This tradition of has efficiency be must administrative weighed vitality years maintained its in recent ascertaining le what in examples desegregation the of school protectable gally federal interest accrues reapportionment litigation amply at- subjects to the of FBI criminal files. certainly any- test. We thing cannot foresee however, present, For the we are administratively similar to such judgment can the dissent’s confident resulting awesome tasks as these from support in the find sufficient bare disposition the ultimate of this case. presented to us here. For ex record examples these But do demonstrate that pressly specifically we that reason judicial the distinction the explicated of function upon decided the remand have difficulty lies not in the administrative herein. supported Augenblick, 348, statutory Such is 89 the v. 393 U.S. S.Ct. States analogies (1969) ; supra. 528, discussed note United States 28 It is 21 L.Ed.2d 537 supported (9th analogy Mendez-Rodriquez, also 1 the 450 F.2d Cir. to rule of v. Brady Maryland, 1971) Peoples Hocker, ; F.2d 960 83, v. 423 v. 373 U.S. S.Ct. 1970). (1963), (9th In 10 L.Ed.2d 215 See also Freedom of in effect which Cir. grants 552(b) (1970) Act, (7) excusatory access for defendants formation U.S.C. to apxdy government’s possession. (exemption materials material the does not to through Bryant, U.S.App. normal crim See United v. States which be obtained Cong., ; H.R.Rep.No.1497, (1971) discovery. D.C. 439 F.2d 89th Levin v. inal Clark, U.S.App.D.C. (1966)). 408 F.2d 1209 2d Sess. at (1908) ; 16(a) ; Fed.R.Crim.P. United cf.

H31 complaint add, to state a view for failure Perhaps our ton’s lest should we misunderstood, wel- cause оf action. we would n designed legislative meet to action come disagreement My rests on three opinion. The in our issues discussed the grounds: disposal re- Congress its does, thin on the 1. What this court fact-finding apparatus suf- sources finding in an of of a cause action basis objectives of accomplish the ficient prisoner’s complaint, is to individual a more flexible and has remand this upon single judge thrust of United techniques real- range of enforcement for the District District States Court inquiry. such an the conclusions ize Congressional over- Columbia task Congress appro- Furthermore, is FBI, sight operations priate determine whether institution appropriate an with directions devise law and constitution- common established judicial amendment of the relevant stat- be limited service al interests should ute, 534, if the District 28 U.S.C. § A important social interests. of other leg- inquiry finds that additional Court’s Congressional judgment matters on such islation needed. upon us, if will, course, be conclusive Surprisingly, its effort to de- re- our constitutional consistent with doing job how termine the FBI is its However, cannot sponsibilities. we legislation and what further sary, is neces- legal cognizable adjudicate refuse largely court seems have personal involving in- substantial claims legali- appellant Tarlton, overlooked how possibility, matter no on the terests practicalities he ties and of the relief leg- it, devoutly might future we wish against sought, impliedly and has ruled action. islative principal points. him on all his legislation, IV. 3. The further which opinion desired, obviously makes clear again conclusion, em- we wish to although its exact nature to be deter- phasize Tarlton hold that we after mined Court makes a District stage proceedings, has, at inquiry, inevitably compel the broad will action. This cause stated cause of undertake the monumental task possible duty in- action to a relates judgment passing on the “constitu- FBI, placed upon ex- quiry to be accuracy” tional of the criminal infor- question is a istence fingerprint mation contained in the FBI conducting hear- after District Court file. ing may fully present in which legal arguments factual material and I. OVERSIGHT CONGRESSIONAL bearing on in Part III the issues raised AND LEGISLATION We, therefore, and re- above. reverse proceed- It is difficult the re- articulate mand to the District Court for ings opinion. metamorphosis markable has this case consistent with this undergone argued to from the case as ordered. So result, majority opinion a us. As ignores virtually Tarlton,1 appellant Judge WILKEY, (dissenting): Circuit situation, the facts of the three his appreciation types standing, sought, a full With of the earnest of relief he his animating my brought purpose legal points and sincere two and the other be- colleagues, respectfully saying appeal. By I must dissent. fore us on Tarlton logical my only To mind has “stated of action” then result a cause remanding Court, this court to reach is to affirm the Dis- to the District obviously using appellant trict here Court’s dismissal of Tarl- court is Tarlton’s “appellant” being pages), 1. Tlie in the name of “Tarlton” or these references first really only III, “he” or “him” is in Part used a total of and used not once (12 opinion operative part opinion. majority times of the the entire complaint legis- exchange a full-scale records, undertake serve criminal inquiry scope. lative of national This information with other authorized conclusion is not vitiated such lan- bodies concerned with such matters. guage opinion “recognition in the phrased by of The issue as the court here duty part a on the of the FBI to make extent, any, is: “To what does the reasonable efforts to maintain constitu- FBI have a to take reasonable mea- tionally safeguard accurate criminal files is an but sures to of infor- judicial authority exercise of use ‘re- mation in its criminal files which is sub- medial ject mechanisms to addrеss or ob- phrasing This dissemination?” ” injuries.’ . . viate . enough, constitutional is innocuous until one realizes doing amending What the court what the real thrust of the court’s direc- require section the FBI to do tion is. The words “accurate” or “con- many things Congress more than the stitutionally re- accurate” occur innumera- quired, most of which turn majority’s out to ble times in the discussion as impractical, and none which can be to what the required FBI should be un- required constitutionally. asserted to be course, der section 534 to do. This, necessarily implies that the FBI must inquiry The breadth of the which the pass judgment on what is “accurate” or Judge make, District II, is directed to Parts “constitutionally accurate” before dis- majority opinion, III and IV of the seminating point information, a clearly legislative shows the nature of length which will be discussed at later. the task entrusted to him. The vehicle legislative oversight of this and amend- If require- there is a constitutional (interpretation) ment affecting section 534 is a operation, ment the FBI’s Judge judi- direction to a District in one right say court a so. If there is inquiry cial district to conduct an requirement no only constitutional but range allegations broadest based statutory one, neither this court nor the inquiry one defendant. The involved right leg- District Court has a to make a type Congressional is the which a com- oversight inquiry islative to determine supposed make, taking mittee is into legislation. need additional Un- account data on a nationwide basis from guise interpreting statute, der the parties, all drafting interested before general inquiry court cannot make into enacting legislation. This court the manner in which the FBI out carries Judge sitting thrusts on one District responsibilities its under section District of Columbia a task na- scope. course, tional ready particular, compel Of this court sits this court cannot to shoulder some his burden FBI to vouch for the “constitutional findings. review of his accuracy” all criminal informаtion “interpre- disseminates because an such My colleagues apparently two have de- foreign completely tation” so to sec- cided amended, that section 534 must be tion dras- 534 that it would constitute a longer that the FBI can no do be left to by judicial Congress amendment the statute empowered do, what tic toit e., acquire, collect, 1. pre- classify, and fiat.2 provides: 2. Government, States, cities, § U.S.C. the Federal Acquisition, preservation, penal § 534. and ex- and and other institutions. change records; appoint- of identification (b) exchange The of records authorized ment of officials. by (a) (2) of this section is subsection General shall' — n (a) Attorney The subject to cancellation dissemination (1) acquire, collect, classify, pre- and receiving departments or made outside the identification, identification, serve criminal agencies. related crime, records; and other and appoint (c) Attorney (2) exchange with, General these records and for of, perform the official use authorized officials of officials the functions autho- to statutorily concluding opposed constitutionally paragraphs light or of the In changes required) opinion, for certain to be majority it is I think of the procedures. made in emphasize exact necessary for me to “Congres- I the term sense in which use large oversight.” Certainly a ele- sional II. TARLTON my in in this asking lies of concern case ment Having forgotten virtually about Tarl- District the fact that we are lengthy period case has ton in the this broad-ranging engage in- in Court to a consideration, under most been serious satisfactory working quiry into the majority “a of action” find cause However, my in- the thrust of the FBI. complaint in order direct the Dis- inquiry. for terest Congress is the rationale this legislative in- trict conduct a Court to general responsibility has a functioning FBI, quiry into the agencies are sat- to it that Exeсutive see negate doing they but in so Tarlton’s isfactorily performing their duties. for An examination of claims relief. Congress responsibility of also has the claims, these the basis for this entire making laws, a which oftimes action, necessary to make cause functioning requires inquiry an into the this clear. agencies operations. The and their Appellant prison- a Tarlton is federal responsibili- courts have neither these ; argument er the time of oral he was ties. parole.3 brought He action this litigation However, incident to before against Attorney and the General gov- them, changes they require will compel Director of the FBI to either a procedures operations ernmental and relating modification of FBI records agency op- an when the manner which restraining appellant injunction or an or statuto- erates violates constitutional appellees presentation from such rights. case, ry refus- the court federal courts correction- records to and say requires es to that the Constitution damages (A al officials. third claim inquiry the FBI to make an as to the le- alleges pressed appeal.) was not He gality each in its records. originally parole that he was be- denied Congress Similarly, I do not believe that long history cause of his of arrests and place in section 534 intended to such supplied Board to the Parole convictions Therefore, in- burden on FBI. by the FBI. quiry have which the District Court will “Appellant deny he does not was legislative in its undertake will be in fact by and arrested convicted as shown sense, pur- most fundamental in that its alleges record,”4 his FBI he but pose legislative will be the one of decid- large con- ing number of arrests and (as preferable whether it would be made for the official such use of rized this section. Added Pub.L. 89- subject official Sept. 6, to the same restriction 4(c), 1966, 616. § 80 Stat. respect pro- with provision to dissemination as that part by This was amended in Pub. vided for under the aforementioned Act. (15 1971), L.No.92-184 Dec. reads as follows: Appellant actually granted parole sub- was provided Sec. The funds in the De- sequent appeal, filing to the his brief on partment Appropriation Act, of Justice subject jurisdiction but remained Expenses, for Salaries Federal finger- the Parole Board. From the Investigation, may used, Bureau of convictions, by print of arrests record addition to those uses authorized thereun- agreement and made of counsel furnished der, exchange identification argument, part we of the record after oral federally records with officials char- February appellant learned that on 12 banking tered insured institutions weap- carrying prohibited was arrested for jaromote security by those or maintain parole on, viola- to be a on 28 March found institutions, and, if authorized State tor, the U.S. returned to and on 6 June 1973 Attorney approved statute and Ap- Georgia. Atlanta, penitentiary See General, officials and local to of State pp. pendix, 1146-1147. governments purposes employment for of Brief, p. Appellant’s licensing, exchange 19. 4. to be and such charge) the time of victions were invalid. At was obtained after a trial appellant’s eligibility parole, represented by counsel, first for which he was escape of 21 and his FBI record contained a total that he did in fact from what years. spanning In five of he entries claimed was unlawful detention. entries, alleges, no these he either sum, appellant In contends that his charges brought or the were after arrest apparently long history of in- criminal grand jury In four refused to indict. is not volvement a true reflection of charges (three for “drunken- other cases Through poor facts. a combination of illegal U-turn) appellant ness” and an injustice, luck allegedly he has been dispute does not the substance of the professional characterized as “a crimi- charges. nal” relatively when in fact he a inno- cent victim of circumstances.6 To some remaining appellant In cases agree appel- extent we would all with charges either asserts were that lant; part of his record is that illegal, or that false, the detentions were ne’er-do-well, losers, one of life’s not by violating were obtained convictions necessarily “professional criminal.” rights. his constitutional Several appellant Never pro- was Tarlton able to vagrancy convictions, these 12 were claim, my fate, “I am the master of I appellant were based on contends captain my am the Tarlton soul.” vague charges unconstitutionally under staggered from blow to blow. Two convictions for theft and statutes. assault, appellant sought one In for three of the most seri- the District Court charges, allegedly ous were have obtained his FBI record altered reflect affording appellant without assistance what he contends is the true nature of past appellant’s purged record,7 of counsel in his contravention of of all its rights.5 present Appellant except constitutional con- contents for the four mi- convictions, subsequently nor validity tends that he was cleared of which he (burgla- of a fourth serious does not conviction contest. The Government argued ry), admits that a for but conviction es- is under no to alter cape prison (assertedly prompted from its records unless it knows them to be burglary false; his detention on the false for example, the FBI delete will If Tarlton was illegally without correctional assistance officials the false and prosecuted counsel when he was and convict- created information in his FBI files is un- ed, resulting probably enjoin pre- convictions would constitutional and to the further However, present be invаlid. Appellant sentation action is of such information. wrong bringing up requested copies complaints channel for this mat- also Rather, against ter. per- indicated in Part him V this and various other records opinion, taining past addition, means should afforded de- to his arrests. he judicial proceedings sought damages compensate fendant and before him his parole boards, imprisonment. being when arrest records are used, misleading opinion length appellant’s to correct inaccurate en- This deals at with requested regard appel- tries. first relief. With request copy lant’s for a FBI his arrest appellant’s 6. Since action below was dis- record, and conviction has Government upon missed for failure to state a claim part case; made that a the record this granted, which relief could be he was never such issue is now moot. It is obvious from given opportunity prove an the facts al- appellant’s detailed and almost exact knowl- leged complaint. in his We therefore as- edge of the offenses fin- shown on his appeal alleges sume the facts he gerprint (cf. Appendix) record that at some regarding his criminal record ultimate- could time he had been informed its contents. ly true, although, be established as as dis- appellant press In this court did not his re- later, fingerprint record, cussed quest monetary damages. part appeal subsequent of the record on argument, appellant oral shows brief, 8. The Government states its “The impor- slightly exaggerated the number responsibility FBI has a to disseminate Appendix. incomplete tance of entries. See information which it knows to be Appellant asked de- the District Court false.” Government’s Brief at 7. See Men presentation Mitchell, U.S.App.D.C. clare that to courts ard v.

H35 entry fingerprint only it doubt arrest an an arrest if ascer- on Tarlton’s agency reporting usually tains, the record. from arrest,

the that the arrest did not in on FBI a Tarlton us to thrust the asks any fact occur. The obligation denied Government duty inquiry. retroactive of affirmative satisfy probable inquire into the prob- This alone will Tarlton’s cause for an arrest or the fairness and lem, colleagues deny my and two legal accuracy conviction, or the (even though they find “has Tarlton “ argu- constitutionality of either. Such action”): stated a cause of . constitutionality, validity ments of and question the guarantee the FBI must whether ap- view, the are more Government’s accuracy the of information authorities, propriately local made to who files, similarly . the its and . . are closer to facts and the records question whether FBI re- the must position case and thus in a conflicting allegations better solve as to the ac- make such evaluations. the local au- If curacy [Ujnder . records. . . its thorities determine an arrest or that present these circumstances latter two invalid, they may conviction was ask the questions could not be resolved in Tarl- FBI to return the record event (Majority Opinion, p. ton’s favor.” policy and it is FBI to do so. 1121.) goes posi- majority opinion Consistent with The far- the Government even deny case, any relief, ther tion in Tarlton Tarlton’s the FBI can effective that indeed, “ anything be held he accountable for relief asks for. (II), ‘Realistically, “in v. knows Menard we the FBI cannot be ex- Saxbe pected investigate underly- expunge held the FBI must infor- the facts ing every reported mation from criminal when the arrest or detention its file Furthermore, agency reports . it.’ . local . . in- . . later the case alleged disputing formation unconstitutional or arrests convictions, (Majority Opin- relevant FBI records” the FBI not authorized or 1121).9 equipped judgments concerning ion, p. But to make Tarlton’s case is not might case; questions what Menard’s there be difficult is no evidence and agency interpretation.” (P. any no claim that local constitutional ever re- ported 1127.)10 casting one re- item of “Similar reasons limit the information charges (two (1970), theft, Saxbe, F.2d 486 serious and v. one each on Menard U.S.App.D.C. escape) assault, burglary, were obtained F.2d 1017 in a fair and constitutional manner would opinion 9. The court’s also footnotes “wheth- require inquiry surrounding an into facts may police er FBI retain records ‘de- and convictions. arrests Records proba- tentions’ for which it knows that no witnesses would to de- have to examined (II) ble cause for arrest existed. Menard probable ar- termine if existed for the cause decided that such interaction between citizen rest, represented appellant been if had police was not criminal kind of ac- jury counsel, properly in- had been tivity be included in FBI files. supported structed, if the ver- evidence corollary (II) The of Menard arrests might dict, or if other defect one or convictions known the FBI to be un- expunge Similarly, think of existed. properly constitutional are not enshrined in reflecting only items an arrest without con- files.” Note 7. appellant challenged by viction, which admit- Although agreement I am in full with our ting denying occurred but the fact the arrest (II), opin- decision in I believe our Menard represents probable arrest, cause ion there must be limited to those cases infinite, proportions. a task of astronomical where the FBI later learns that information Inquiry into be made would have to majority in its records is inaccurate. long forgotten, background since of events place here an seeks to affirmative destroyed, or into records sent to archives subsequent the FBI out ferret informa- dead, miss- witnesses into the recollection of entry tion about each their ing forgetful. It records. is this additional burden on the “justifiability” inquiry aof an into the Such unacceptable. which I find indescribably difficult record would be item appellant’s case, upon example, circum- the best of and burdensome deter- nearby locality stances, in a mination of his whether convictions on more when conducted lief in United States Courts this district the arrests and in the convictions United grant may legally (P. practically liti- 1127.)11 and to States.” gants position. in Tarlton’s The Dis- passages colleagues In my these are facing the reality. cannot review constitu- Yet, trict Court demand, the the relitigate cause tionality action, of Tarlton in and the of of this merits all case problem covering action under recent events. The 28 U.S.C. As would compounded attack, with other remedy be in kinds of collateral when as the this this case require inquiries twenty challenged would substantial incidents occurred over years jurisdictions ago into tire facts of a case. in different Unlike these other thousands remedies, away. history however, proposed appellant’s of the action miles The of here prior began result, conviction, would not in reversal a arrests and convictions in of primarily but rather in and in a mere ban on FBI ended occurred dissemination previous of tlie Texas and Mexico. At the arrest or conviction record. New time of the proceeding appellant In a sucli evidence Parole Board action of which plains, com- court -would be required support any finding to of in which this fact or and record was made Board, requested prisoner ex-prisoner by appellant law liad the or available to the Parole initiating inquiry been a the The in incarcerated since 1966 as result a action. court of necessarily would as conviction in the U. S. District for be detailed that of Court the gery the FBI The evidence Ehstern District of Tennessee for for- described above. suf- finding by postal money justify witli ficient to a the of U. S. orders District ensuing years. previous Court that a in the sentencе of six conviction court “unjustified,” present, 3,300 jurisdiction employees i. At doing nothing lias another was the e., void, should null and and but the routine administrative be therefore assembling fingerprints task ail in the data of that mention record necessarily expunged, Mitchell, and Menard v. must be would likewise other records. 328 day searching, (D.D.C.1971). detailed, F.Supp. 718, and need to convinc- Each ing. legal employees process consequential 3,300 these effects such must over What findings 29,000 subsequent fingerprints, 13,000 in this of which are re- fact and law inquiry by ceived in connection with arrests District Court alone. U. S. would 9,027,700 original conviction, in 1973 there were arrests in the have addition reported expunging, require to the FBI United to the FBI. Federal record would States pause Investigation, ponder. a in can we here Bureau of Crime the United Nor deline- required precisely proof Reports 1973, at ate States: Crime the standard of Uniform — 24). petitioner (Table The number in effect a of additional to obtain decla- required employees previous that null and would be to investi- ration conviction is objective. gate verify 13,000 per day void, It is even a limited suf- and these items say year beyond comprehen- purpose 7,000,000 per ficient for proceedings that such or is our here pro forma, could sion. could never be satisfactorily pe- argument appellant During bo for the oral narrowed never concluded justify scope requested relief from the sufficient evidence of his titioner without conviction, by saying overturning merely previously valid enormous infinite to the contemplate require investigate the FBI to then to and on this basis he would authorizing requested prisoner. such actions would to do so burden that sys- place gain court from this We solace concession. on the entire United States little currently prison in are the Federal tem. There system Weekly 23,071 contemplation Re- massive new form inmates. ovеr The of this Department inevitably port, leads one of Justice —Bureau collateral S. attack U. obvious, September litigation It will take all this Week of wonder where brought place. Prisons, in the Federal Prisoners was Confined The instant case admitted, appellant’s Appellant incar- was as remedy urged counsel District of Columbia. Atlanta, prison must also be available in Geor- here cerated a federal prisons. gia, in state and local He was sentenced those incarcerated in the Fifth Circuit. sought parole,' charge, he from which on the remedy proposed here is in truth for the Eastern 11. The the U. District Court S. (1) by way challenge Tennessee, ingenious Circuit. Sixth rather District of valid- District in a federal court the S. Court collateral attack He seeks to have the U. ity (3) (2) previous and ar- alter records convictions Columbia tlie District of States, (5) jurisdiction. (4) each These records rests in all with located every possibly that occurred to be initiated such action reflect and convictions arrests legal Columbia, New Mexico. domicile in state in Texas District of courts Attorney question forum and Director of most convenient General The requested sense, pause. gives relief FBI. In this one corpus petition or for habeas similar to a opinion. opinion or ination of VERIFY The is that FBI either every replete with references each and “constitu- ELIMINATE tionally majori accurate arrests or from his record. convictions” conviction ty (p. 1121), wisely rejects opinion neither “constitutionally this as accurate legally required possible “making (p. 1125), in fact. criminal files” nor certainly nothing Nothing, safeguard would reasonable efforts to the ac- curacy any gratify appellant de Tarlton’s of the of information” before dis- (p. 1122). mands, action.” of semination remains of his “cause The distinction “constitutionally between 12 accurate” and constitutiоnally inaccurate arrests and obviously requires judg- convictions a III. ACCURA- “CONSTITUTIONAL validity by ment constitutional some- of CY” By originating one. whom? local Despite specific the that disclaimer agency? law enforcement The FBI? “guarantee the need not the accura- FBI The U.S. District Court for the District cy 4), (p. the of information in files” its Or, perhaps of Columbia? the user of establishing reiterated insistence on the information before the information accuracy” “accuracy” or “constitutional used, light particularly large is the qua as a non FBI can sine before the type accuracy disclaimer toas the which disseminate inescapably puts criminal information puts FBI fingerprint on each arrest position FBI in the the record. investigator, decider, of an ulti- a say “recogni- can How this court mately guarantor that accuracy of a of the duty part tion of the on the the FBI fingerprint every arrest record is to make reasonable efforts to maintain challenged. submitted it and later constitutionally accurate criminal is obligation Even if de- the the FBI to files authority” judicial (p. but an exercise of accuracy fingerprint termine the of the 1125) “constitutionally ? What does ac- arrest records in file is limited to its curate criminal files” If the mean? challenged, those the burden only constitutionally FBI can maintain an would be one never enormous contem- files, means, interpret accurate it if I plated by Congress.13 Section does opinion correctly, records of arrest require imply or the FBI constitutionally which are invulnerable agency inquiry of the local challenge. puts FBI inev- So this furnishing fingerprint re- arrest checking itably ports, cheeking position accuracy in the re- ports, deciding agency constitutionality every whether the local record challenger right, or Nothing dis- is and then its disseminates. could be seminating Nothing Congress’ or not a on the basis of such farther from intent. practicality. decision. could be farther from my colleagues forget change in- How us not that we have an would sec- Let here, cursory appellant tion is seen even a involved hence exam- dividual Although opinion doing, e., phrased i. is the FBI can and should be in such wliat way amended, as to make clear that 534 should be no cause of ac- to see section legislative If, Tarlton, purely equally tion remains it could this is task. well then put subject-matter hand, have District been terms of remand to the no the other jurisdiction. specific event, com- either is to directed to the it is obvious Court Tarlton, outstanding appellant plaint injustice there does not remain an to the controversy appropriate Geor- between Tarlton forum is either and the named then the gia, juris- confined, defendants and as a Eastern result there is is or no where Tarlton Tennessee, diction in the District Court was sentenced. to undertake where Tarlton hearing required by majority. purpose 9, supra. If the of the remand to the District note See inquiry Court is an initiate as to bly capacity data FBI assembled not until the user of the someone with the (e. sentencing g., Dis- of action would have the United States effective been judge, parole board, prospective Tennessee where trict for Eastern em- Court sentenced, ployer occupation) pre- or the United in a Tarlton was sensitive pared has had occa- States Parole Board which to take action on the it. basis of post-conviction re- sion to his consider The record of arrests convictions I submit that lease. neither fingerprint is submitted on the basis nor District Court States United only, mathematically es- identification position, is in a the District of Columbia tablished to be freest from error they need, determine for their nor do any known method of human identifica- purposes the infor- own finger- tion. If a than sourсe other reposing mation in the FBI files. prints used, specially “as noted princi- investigative being possibly In Menard we held: leads as “[S]ound ples justice judicial subject” (see Appendix). of and administra- identical with general illustrate, appellant’s tion actions To dictate that arrest and con- rights, by Appendix), (see ex- vindicate constitutional pungement viction record here “corrected,” be of arrest records which he demands is [should] be against comprised en- maintained the local law of one- to three-line entries reflecting agency fingerprinting The ar- forcement involved.”14 at the time challenging validity ar- restee arrest or conviction. No other source appellant rest must the arrest oc- start where was used. The first time Nothing sensible, arrested, fingerprinted, curred. more could be Tarlton was and and, policy, inevi- followed as a would prints FBI, transmitted to the being tably result FBI records up fingerprint FBI a set file in its crim- correct, policy because the FBI follows a person bearing inal these records correcting its own or arrest records giving prints distinctive identifiable and expunging them as the local authorities arresting the name to the authorities do. person Tarlton, John Brent Jr. This may have been arrested without before IV. THE POTENTIAL IN- HARM OF being fingerprinted, arrested and fin- or ACCURATE ARREST AND CON- being gerprinted prints for- without the VICTION RECORDS FBI; FBI not warded to the does Appellant’s only request inquire. re- know nor The FBI his arrest original expunged conviction records be and subse- is based ceives and records quent on the fear that he has suffered and arrest and conviction data on unjustly by continue to suffer from or fingerprints, basis of not name prejudice specially descriptive data, toward those with criminal other unless sys- remedy accuracy potential records. for such noted. As to not, however, gener- tem, significant harm impose appellant is Tarl- it is verify al the FBI to ton the accura- does not contest the cy propriety single entry each infor- conviction item of his arrest and fingerprints; entirely mation in its The FBI acts as a record based on files. challenge repository information; “probable mere his is to cause” as such “justification” harm, there abstract, no for convic- in the in the arrests tions, fingerprint clas- FBI’s issues which the accumulation of information.15 No prejudice way subject of resolv- at the FBI has no arises until the sifier ing. damaging released, possi- information Menard, supra, Tatum,

14. United States v. Laird v. 498 F.2d See U.S. 12-13, at 1025. 33 L.Ed.2d S.Ct. proved by long Attorney However, General, tak- FBI has since to of- governments precautions ficials of that users State and local en to assure reports purposes employment and li- know that information by censing, any exchange “rap such not warranted to be sheets” are every made for the detail. official use of accurate in the FBI subject such “rap official and to the same carries the warn- Each such sheet” respect ing restriction with to dissemina- provided tion as that for under the on this Identifica- Information shown aforementioned Act.16 represents furnished data tion Record fingerprint by contributors. represents up-to-date This an statement IS FINAL DISPOSITION WHERE by Congress judgment of its considered EX- OR FURTHER NOT SHOWN proper as to the in the role of the FBI DE- IS OF CHARGE PLANATION collection, collation, and dissemination of SIRED, WITH COMMUNICATE ap- arrest and conviction data. Unless THOSE CONTRIBUTING AGENCY pellant point convincingly can to some FINGERPRINTS. constitutional barrier the exercise do not that users This caveat assures Congress this function the FBI as merely grant weight reports too much recently be, understood it most and he supplied the information Congressional because so, done man- essentially an acknowl- governs. the FBI. This is date reposi- edgement by FBI that it is assaying potential ap- harm to guarantor tory infor- of rather than a pellant from the use of the FBI arrest mation. urgеd data, and conviction we are to reaffirmed FBI was This role of the incompleteness consider the and flimsi- passed, Congress by when it the in 1971 ness of all but four or five items in the in decision District Court after U.S. the criminal record —arrests with no convic- might Mitchell, supra, which Menard v. recorded, tion thereafter and arrests FBI in the deemed to restrict have been vagrancy, convictions for for convictions customary of arrest its dissemination driving. drunken to All is obvious statutory data, redirec- and a conviction appellant’s counsel, us, to and obvious the ar- tion to the FBI to disseminate also, suggest, experi- I obvious to the records, only to not rest and conviction Judge enced U.S. District in Eastern agencies, courts and law enforcement Tennessee, appellant to who sentenced but also years forgery, serve for six and obvious considering exchange to the the of identification Parole Board for for the federally appellant’s eligibility pa- of first time for records with officials banking Penitentiary.17 institu- role from chartered or insured Atlanta theft, promote the secu- five or maintain serious convictions —two for tions to institutions, and, rity burglary, assault, if au- one of those each for and es- ap- cape thorized statute from confinement —were doubtless State ” (15 1971), p. 27.) way (Brief, Pub.D.No.92-184 Dec. 902. . We have no knowing what of evaluation the Parole “ argues Appellant present previous record; my . . . his Board made of his un- imprisonment derstanding is a result of the infor- is that Parole Board cus- direct the tomarily gives challenging.” primary the mation whose he is consideration to p. 26.) suggest imprisonment (Brief, entering prison. I his record of the inmate since being guilty by is a a If direct result of found it is true that the Parole Board charac- jury judge forging “professional a a federal of U. S. terized his record as that of postal money order, criminal,” a conviction whose accu- this was doubtless with reference racy appellant challenged. appellant has to the five serious offenses “ Ap- unchallenged Appellant asserts, challenge plus . further . . wants forgery to the — pellant languishing prison [is] because of conviction. challenge, information he seeks to differently. incomplete how in- Just differ- correction of erroneous or evaluated knowing supplier. way ently on this formation we have of no way knowing, of record. We have no great majority In a of in the U. cases any) example, (if what for much how S. District in the Court District Col- appellant says these convic- now about umbia the defendant or his counsel conveyed probation offi- tions was “rap (finger- access to the FBI sheet” Tennessee, Eastern District cer in the print convictions) record arrests and probation in the much was included how practice right. as a matter of if not of (if any report was presentence officer’s may stages This occur at different Judge, rendered) District to the Depending on the trial tacti- trial. Board had what access the Parole situation, prosecuting attorney cal presentence gave to a consideration “rap show the sheet” to defense sentencing proceedings in report or the prior in- hope to trial in counsel court. ducing guilty plea. rea- For the same son, (appel- party sometimes done at the close defendants this is The named case, attempt Attorney prosecutor’s lees) proceeding of the in an are the in this emphasize hopelessness and the of defend- States General United making position. prior de- Or, extent that ant’s of the FBI. To Director suggest appellant’s pleas put cision on the for relief client whether his stand, may request Dis- to see we should direct the United States defense counsel convictions, prior District in order trict Court the Eastern rеcord of business, judge I its rule in Tennessee how to conduct to ask the advance which authority de- for im- think we have nor convictions will be neither admissible goes peachment purposes. do advance rul- sire to so. The same Such ings given customarily United are this Cir- States Board of Parole. On cuit, although right. hand, can not as a matter of that we extent other trial, At the close there has been procedures in the United States fashion pre- conviction, preparation of Columbia courts the District probation report prejudice sentence officer type to others avoid the him, customarily asks the defendant or his appellant harmed which asserts previous counsel to comment on con- the should do so. we victions, presumably informa- and this incorporated presentence tion is in the PROTECTION V. FEASIBLE report given Judge. Final- the District INACCURATE AGAINST OF USE ly, practice we aware of the of most are ARREST AND CONVICTION although Judges, Rule under District DATA they parts discretion as what have a they Proceedings any) report (if presentence In Judicial A. of the counsel, to or reveal the defendant his open proceedings In in which information in court inform the defendant may used be to an individual’s detri- judge prior convictions the the record ment, give recognition if we both to in sentenc- will take into consideration only fairness and a the to act desire ing, and invite comment thereon. information, most accurate it is most ob- pre- viously necessary ob- From numerous records that he be able the fingerprint appeal jurisdiction tain and examine the in this vious cases data of arrests custom- and convictions. we are that the above is With- aware right right, arily done, out this the individual cannot but not as matter hope suggest to know if I the information is com- to the convicted accused. plete accurate, perhaps process fin- and or even if the FBI as a matter of duе report actually gerprint con- the his own. arrests and Unless record both subject victions, access, an individual has such he record the will the made given attempt ac- litigation, he know should should be obtain counsel, if a or his conviction cused B. the Parole Board Before accuracy. obtained, for comment as to any juris- We are not asked to assert Logically this be done immediate- should power supervisory (even diction or here ly conviction, if it has not been after assuming should), prac- this court but a before, done in order that defense coun- practice, tice similar to the above his client and then sel confer with Judges we believe the District here are probation officer and inform both the majority already the vast of cases any discrep- prosecuting attorney utilizing feasible, may and have found ancies record which commend itself to the Parole If Board. the challenge.18 accused now convicted wishes give every the Parole Board would in- give probation This will mate a chance to comment on the accu- opportunity to his officer cheek, make racy previous record, coupled of his with prosecution and likewise the warning or frivolous false chal- opportunity to rebut claim lenges cause,19 would not aid his probation defendant while the officer fairness the action of the Parole investigation making pre- enhanced; Board would certainly his other and be its would, visible paring fairness and the report judge. com- his for the When plaints appellant of those such as would day sentencing, judge comes for be stilled.20 report presentenee will have the should inform the accused of the crimi- In FBI C. Data Files taking nal record which he is into con- conclusion, I turn to the records of regarding sideration and of the facts agency charged by law re- with the proba- criminal record found sponsibility acquiring, collecting, clas- prosecution tion officer. The can make sifying, preserving, exchanging data its own statement as to the facts on individual arrests convictions. regarding found those and con- arrests input agen- from law enforcement challenged by the defendant. victions cies, they voluntarily supply, that which sentence, judge On this basis the can systematized. is now enormous and well clearly taking and on the record into suggest equal I it is time that effort be consideration that criminal record voluntary devoted to corrections and fully which the court is satisfied is accu- supplementation original law enforce- rate. ment data.21 discourage allegations by suggested 18. To bad faith de- ka Nebraska it would fendants, policy complete and a concomitant waste of man- sound for FBI records to be power chasing phony resources down and disclosed to the individual involved. claims, judge probation Washington A, Post, officer should June con’d, personally, A, p. 9, make it clear to the defendant at col. 1. col. may policy the time the criminal record is turned over It be that it would be sound comment, any pat- permit to the defense for all that citizens to have access to their ently challenges fingerprint record; clearly frivolous or false the ac- is with- curacy duly power Congress of the FBI record will be re- in the to create such a ported by probation judge general right. Courts, however, officer to the must deal sentencing. existing to be considered at the time of in the contest of actual harms to' rights; simply there basis for contend- no supra. ing compilation records, 19. See note 18 that the mere more, sufficiently without constitutes a harm many inquiry cases the directed to the immediate to warrant court intervention. only prisoner Tatum, supra, inmate would be to ask if the Laird v. so holds: any fully had additional information to submit bе- The decisions in cases [certain] yond governmental recognize that furnished the trial court at action be sentencing. challenge subject time of even to constitutional though it has an indirect effect on During hearings rights. exercise First Amendment on confirmation Kelley however, time, Clarence M. as deci- the nominee for At the same these FBI, way Director of the in Senator Roman I-Irus- sions have no eroded crystal there no think it clear every police in coun- force Almost argu space complex for constitutional try on which forms with is furnished “rap an ment on an FBI sheet.” fingerprints with taken connection reported to can be conviction or majority pages of the On 1128-1130 police and forces the FBI. Those same colleagues my opinion several oth- make agencies should enforcement other law suggestions improving the accura- er fingerprint equipped a similar with cy data FBI criminal and fairness of the re- form, individual could an which dissemination, most collection and fingerprints quest his recorded and have worthy appear consid- of serious completion a fin- and a correction or gerprint suggestions ad- are eration. These probably aware has record he is possible to the District as dressed Court g., FBI, failure to the e. been submitted majority subjects “inquiry.” The of its charge arrest, or ac- dismissed after sug- emphasized opinion these that all of charges quitted have been formal after gestions subject primary test are to the brought. agencies themselves The feasibility practicality, this, should there is no feasible do but may determine. District Court way so; compel do a worka- them to disagree- my primary emphasizes This way individual to ble for the affected colleagues. my question The ment with help improve- a vast himself should be practical administratively of what is ment. carrying its out feasible for the FBI primarily for duties under thе statute is right of correction In addition to the oversight any If FBI to determine. completion, limited should be a and right there carrying out its FBI is as to how the clarify explain information needed, exercised should be duties is may, ex file. It that is ample, an FBI Congressional appro- committee or conviction be that an arrest legislative especially hearings; priate subsequently held unconstitu has been colleagues my have eschewed since able to tional. An individual should be decision, ground for their constitutional way point in or this out in some brief called for. intervention is not court’s using der to that an ultimate assure respect- reasons, agency rely I For all of above not on information does although fully unfairly prejudicial, I dissent. which is

APPENDIX appellant’s purpose appeal FBI arrest For of this ‍​​‌​‌​​​​‌​​‌‌​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​‍we take alleged sheet”) (“rap it to Note be. record as he

conviction to “a supra. majority appellant entitled Tarlton holds that might requirement legal issues that factual or FBI resolve allegations subject record and arise of the individual agency could conflict. Neither statements of the local law enforcement legal obligation part give on the the exercise of such a rise to a subject guarantee are the the FBI to of records which agency.” (Majority request of an FBI to a local law enforcement 1129.) Opinion, p. 1, 633, 634, principle pri- 82 L.Ed. 493 302 U.S. 58 S.Ct. “established to entitle judicial pow- individual to invoke the

vate 12-13, at 2325. 92 S.Ct. 408 U.S. validity of executive er to determine legislative he he must show that or action Act § Cf. Protection Credit Consumer danger immediately sustained, pro in (1970) has or which U.S.C. 1681i injury challenge sustaining, right the result credit bu a direct a limited vides ” Levitt, parte reau data. Ex . . . . of that action record, appellant’s and An furnished examination actual ap- part appeal argument, made a on oral of the record after shows claiming by pellant grоund even for harm than reason has less entries, only alleged. pages 6 of the record he there On five are “incomplete.” which are two, burglary 1953,

The first ear have theft December 1950 and disposition charges although appel- no shown, these two are serious convictions; challenge appellant’s lant informs us in resulted “justification” for the convictions because asserted absence stands, counsel. incompletions But as the two record these are favor- appellant; able to two convictions are not shown. fourth, third, The assaulting April 1958, drunk and officer and

highway (probably ap- appellant’s U-tum), violation November 1960 pellant (see himself does not and contest treats as minor offenses text, supra, following 4). note fifth, vagrancy disposition shown, The is a March no but type charge resulting whether in or which dismissal conviction would impact sentencing sixth, have judge parole no on a or Of board. driving operator’s possession while intoxicated and no in license August 1962, might said, may the same be and this be one charges the four appellant minor of which himself makes no com- plaint. appellant prejudice I no conclude Tarlton whatso- suffered incompleteness fingerprint ever because of his FBI record. complete If we two first two omissions the convictions for the with charges burglary appellant serious ac- of car theft informs us he and tually received, complete third con- and fourth omissions with charges highway victions for the minor and a drunkenness viola- appellant regard tion which does contest or ask for action in thereto, postulate charges acquittals and two minor last vagrancy DWI, complete appellant’s then record looks considera- bly incomplete. worse than it does (which certainly examining To the uninitiated in does records these authorities) probation parole pоint NOT out trial I judges, include story “disposition” blank does not mean column incomplete. “Disposition” story may already complete, or the by entry. example, page appel- be shown another For one of immediately following, County) (Fisher lant’s “ATM” record disposed March 1954 was of 7 October 1954 a conviction and sen- years (“ATM” tence of five for assault with trans- intent murder “Attempt lates as Murder”), either to Murder” or “Assault to of which appellant years, being discharged served three 25 March 1957. example, carry As five, page final the last three entries on nothing “Disposition” column, complete in These are themselves. appellant three entries relate the sad tale of how Tarlton was arrested carrying prohibited for weapon February brought up parole (instead being charged revocation 28 March with the addi- offense), tional new safely lodged 6 June 1973 was back his quarters old Penitentiary, Atlanta, Georgia, S. old U. on his forging uttering conviction postal money U. S. orders. 1144 OF INVESTIGATION

FEDERAL BUREAU WASHINGTON, 20537 D.C. A, following record, OFFICIAL USE 470 306 furnished FOR NUMBER represents furnished data Identification Record Information shown on this ONLY. SHOWN by fingerprint IS NOT FINAL DISPOSITION contributors. WHERE DESIRED, IS COMMUNICATE EXPLANATION OF CHARGE FURTHER OR THOSE FINGERPRINTS. AGENCY CONTRIBUTING

WITH Arrested or Contributor Fingerprints Charge Disposition Name Number Received February Investigating Released to John Brent Police 7,1950 burglary Juvenile Department Tarlton Jr1" Hobbs, Mexico New July 13, Jailed in John Brent Car Theft Sheriff’s default of Jr Tarlton Office perfecting Vernon,Texas #A-3106 a $750.00 bond Investigation John Tarlton November Released Police 8,1951 Department #726 Snyder, Texas Car John Brent December Theft Sheriff’s 25,1952 Tarlton Office Rankin, Texas #253 Burglary John Brent November Sheriff’s Tarlton Jr Office Roby, Texas (Fisher “ATM” B March John Sheriff’s County) Tarleton Jr Office Lubbock, Texas #7803 years Assault with October Prison John Brent Texas 7,1954 intent to murder March System Jr Tarleton (1) Burglary Huntsville, #130971 (3)4-2 Discharged to 5 Texas “con”) carrying Fined November 16,1957 $321.45 Brent Sheriff’s Office John concealed Tarlton Jr weapon Andrews, Texas January 13, Drunk fine $15.00 B. John Police Department Big Spring, Tarlton #1744 Tеxas April Drunk and John Tarlton Sheriff’s 12,1958 Assaulting

Office #14364 Officer Big Spring, Texas

1145 Contributor Arrested Received' Fingerprints Charge Name and Number Disposition February 17,1959 John Brent days Sheriff’s Theft Under 30 Office Tarlton Jr Monahans, Texas July 13, Police John Brent Drunk J ustice of the Peace n Department Tarleton Jr 1960 Lovington, Court days 90 #A-1923 New Mexico jail with no suspended July 13, John Brent Sheriff’s Drunk/Selling Anothers days 60 Office Tarleton Jr Lovington, Property #9134 Mexico New John Brent Highway Sheriff’s Office November 27, Tarlton Violation Odessa, Texas #6881 January Carrying Sheriff’s Office Snyder, John Tarleton $126.35fine 10,1961 Concealed and cost #168 Weapon Texas 5, Vagrancy Brent Sheriff’s John March 1961 Tarlton Office Odessa, Texas #6881 Vagrancy Brent Police John October Fined $15.00 Department Tarleton Jr Angelo, San Texas #12126 Brent John June Sheriff’s Office Drunk fine $20.50 Tarlton Jr Snyder, Texas #168 August 8,1962 Driving Brent John Police Department While Pled Not Guilty Tarlton Jr Intoxicated Bond Lovington, Operators No set as $500 #A-2728 Mexico License in New Blood Alcohol Possession Test 2.5% John Brent October Drunk cost, Sheriff’s Office Fine $44.50 Tarlton 28.1963 Odessa, Texas #6881 Brent John November Drunk Police Department $25 Fine Tarlton 13.1963 Odessa, Texas P-19592 # Felony June John Brent Theft Sheriff’s No Billed Tarlton Office Perryton, Released #2546 Texas Arrested or Contributor Charge Disposition Number Fingerprints Name and Received August Drunk Pedestrian $15.00 John Brent fine Police 6,1964 Jr Department Tarlton Berger, Texas #7609 February Fined Drunk $25.00 John Brent Police Department 1966 Tarlton Jr Midland, Texas #23065 May 10, 1968 Fugitive from Released to John Brent Police Federal California Jr Department Tarlton Authorities Chattanooga, #23144 Tennessee May 11, Passing stolen Brent John States United postal money 1968 Tarlton Marshall orders Chattanooga, #630 Tennessee Forging years 6 United ohn B. June J United States Penitentiary States Postal Tarlton Jr MoneyOrders Atlanta, #92165 Uttering and Georgia Passing Forged Money Orders Brent October United States John Police 18, 1970 Prisoner Jr Tarlton Department Atlanta, Georgia Writ #278354 Forging years 6 Received B. November John States United Uttering United Penitentiary Atlanta, Tarlton States Postal #92165-131 #92165-131 Money from Order United Georgia States Penitentiary Atlanta (round trip) $34.00 6-19-72 Drunk Profane Language Brent John Texas Post SO chg drk Tarlton Jr. Destroying Public #390 Property public drunk Snyder Brent 10-6-72 bond Texas John forfeited PD Jr Tarlton Carrying Prohibited Snyder Brent 2-12-73 Texas John SO Tarleton Jr Weapon Contributor of Fingerprints Arrested or Charge Name and Disposition Number Received mandatory John USM Brent 3-28-73 rel (Orig. TX Tarlton Jr 01950 Lubbock violator Forging Offense Money US Postal Uttering Order & Passing & US Money Postal Order Forg John B. US Pen 6-6-73 & Utt Tarlton Atlanta Ga P.M.O.’s- fingerprints neither nor an Since identifying number which is indexed your accompanied request, in our files guarantee any FBI cannot manner that this material concerns the individual you whom are interested. *by fingerprints indicated are NOT Notations based FBI files but are listed investigative being possibly leads as subject identical with of this record. DIVISION

IDENTIFICATION JUSTICE DEPARTMENT OF UNITED STATES OF FEDERAL INVESTIGATION BUREAU IDENTIFICATION DIVISION

WASHINGTON, D. C. 20537 G A, following record, information from FBI NUMBER

furnished FOR OFFICIAL ONLY. USE descriptive (if you

All in our any) match those factors furnished quoted. identification file unless herein

Description and Related Data:

Race: W

Sex: M Height: 68"

Weight: 146 lbs.

Hair: brn

Eyes: hazel

Date Place of Birth: 4-22-32 Henderson Texas Scars and Marks: scar on arm left (in Snyder 1973) Address: 1911 Ave E. Texas Occupation: Laborer Since fingerprints neither identifying nor an indexed number which is accompanied our your request, guarantee any files FBI cannot

manner you material concerns the are individual in whom interested.

UNITED STATES America

v. ROBERTSON, Appellant. Thomas L.

No. 72-1781. Appeals, United States Court of District of Columbia Circuit.

Decided Oct. As Amended Oct. notes we 7-8 stated ; (1967) 682, v. Steele 19 L.Ed.2d 799 S.Ct. justification cer whether cide here ‍​​‌​‌​​​​‌​​‌‌​‌​‌​​‌​‌‌‌​​‌​​​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​‍192, R., 65 N. R. U.S. S.Ct. Louisville & 323 governmental via interference tain kinds ; 226, (1944) 173 Anti-Fas 89 L.Ed. Joint sufficient records is of arrest maintenance Refugee McGrath, v. 341 U.S. Comm. cist permit that interference. (1951). 624, 123, L.Ed. 817 71 S.Ct. 95 States, a direct Con were certain that Even we 354 U.S. v. 23. See Watkins United FBI dissemination of 1173, attack 196-199, stitutional 178, 1273 1 L.Ed.2d S.Ct. 77 pre reasonable Note, Privacy records without ; Amend inaccurate (1957) First in the fail, safeguard would (1973). Laird cautions ment, Yale L..T. 82 1462 Cf. Congress presume 2318, did 1, 25-29, still Tatum, we would 92 S.Ct. 408 U.S. v. change through Marshall, tradi (1972) (Douglas intend 534 & L.Ed.2d 154 33 existing law, recognized by Pfister, 'ab dissenting) ; values 380 tional v. Dombrowski JJ. legislative Unit See 1116, statement. 486-487, a clear 479, L.Ed.2d sent 14 85 S.Ct. U.S. 336, 349, Bass, 92 S. 404 U.S. v. ; ed States (1965) Activ Boorda v. Subversive (1971) ; 515, 207, v. Greene Board, U.S.App.D.C. L.Ed.2d 488 Ct. ities Control McElroy, 3 L. S.Ct. 360 U.S. (1969), denied, 397 U.S. 421 1042, cert. F.2d Dulles, (1959) ; 357 U.S. v. Kent Ed.2d 1377 25 L.Ed.2d 90 S.Ct.

Case Details

Case Name: John Brent Tarlton, Jr. v. William B. Saxbe, Attorney General of the United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 22, 1974

Citation: 507 F.2d 1116

Docket Number: 72-1209

Court Abbreviation: D.C. Cir.