Labor & Employment Law Daily Citigroup can’t be forced to produce unredacted FBI background check of rejected job applicant
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Friday, April 19, 2019

Citigroup can’t be forced to produce unredacted FBI background check of rejected job applicant

By Lisa Milam, J.D.

The disqualified job applicant sought the unredacted version of the FBI document, but Citigroup was not in full control of that document, as it was bound by the privilege invoked by the FBI.

A Citigroup job applicant who was disqualified from the hiring process after an FBI background check revealed she was a “person of interest” could not compel Citigroup to produce an unredacted version of the FBI document, a federal magistrate held. Citigroup was constrained by a third party from producing an unredacted version of the document—namely, the U.S. government—and the applicant did not need the document in order to prosecute her Title VII discrimination claim. Also at issue was the government’s motion to intervene for the limited purpose of protecting its interest in the document, which the magistrate judge granted (Aljarah v. Citigroup Global Market, April 16, 2019, Scott, H.).

Temp data clerk position. The applicant received a conditional job offer for a temporary data entry clerk position at Citigroup through an employment agency. She reported, though, that when she had entered the agency’s office wearing a hijab she was viewed with suspicion. Then she was told, for the first time, that before she could begin work she would have to provide her fingerprint for an FBI background check. (Her fingerprints were on file with the government already; the State Department had conducted a background check when she applied for a job at the World Bank.) The employment agency submitted her fingerprints, and then submitted them a second time a few weeks later (which she contends was unnecessary).

Direct application to Citigroup. While awaiting word from the agency on when she could start work, the applicant submitted an application directly to Citigroup for a different position. She was called in for an interview, during which recruiters expressed surprise that she hadn’t already begun working in the temporary position. She received an email stating Citigroup was interested in hiring her. The next day, however, she got a follow-up email advising her that she did not pass Citigroup’s background requirements. In reaching this decision, Citigroup apparently had relied upon an FBI Identity History Summary (or “IdHS,” as the federal government calls it) which reported she was a person of interest.

Religion, national origin bias claims. Told that she was ineligible for either the temporary or permanent position, and with no further explanation forthcoming from her would-be employer, she filed a Title VII discrimination suit alleging that Citigroup refused to hire her due to her religion (Muslim) and national origin (Iraqi), and that the background check was unnecessary and was conducted for discriminatory reasons.

Motion to compel. Both sides were “in the dark” as to why the applicant had been identified as a person of interest, the court observed, and the government subsequently removed this classification from her record. When performing its background check, Citigroup received an unredacted IdHS from the FBI, with no explanation of its contents.

Provided IdHR with redactions. Nonetheless, when moving to dismiss the claims, it presented the applicant’s IdHS with redactions made by the FBI. The redactions, according to the magistrate, appeared to eliminate the names of individuals who identified the applicant as a person of interest, among other information, and included a disclaimer that “the use of this record is regulated by law.”

Unredacted document sought for Title VII claims. The applicant, proceeding pro se, had previously moved to compel production of the IdHS, and then filed a motion for in camera inspection of the unredacted document, which was filed under seal. Here, she moved to compel production of the unredacted version of the document to show that Citigroup’s refusal to hire her was based upon illicit grounds. But Citigroup contended that it was not authorized to produce the unredacted document, and said it had already produced the only version of the document that it was allowed to produce absent a court order.

Motion to intervene granted. Meanwhile, the Justice Department moved to intervene for the limited purpose of opposing the motion to compel, citing the law enforcement privilege, which aims “to protect law enforcement techniques and procedures, preserve confidentiality of sources, and safeguard the privacy of those involved in the investigations.” The party asserting the privilege must establish that the privilege applies to the document; and, if the non-moving party rebuts the strong presumption against lifting the privilege, the court weighs the public interest in nondisclosure against the litigant’s need for access.

No disclosure. After in camera inspection, the magistrate held that the unredacted IdHS discloses government investigative techniques and procedures, and that the techniques and procedures are not relevant to the claims and defenses at stake in the applicant’s discrimination case. Moreover, the applicant failed to overcome the strong presumption against disclosure. She doesn’t need the unredacted document to prove her case, the court concluded, and the government’s interest in protecting its investigative methods from disclosure through discovery outweighed the applicant’s need for disclosure. Therefore, the government’s motion to intervene was granted. Its ex parte version of its statement of interest and supporting declaration was to be filed under seal; moreover, the applicant was not to have access to the sealed records.

Motion to compel denied. Rule 34(a)(1) requires parties to produce only what is in their “possession, custody, or control,” the court observed. With third-party redaction (in this case, the FBI), where a non-party dictates the terms of disclosure, a litigant lacks full control of the document for production under Rule 34(a)(1), despite that it is in possession of the document. Although Citigroup produced the redacted version of the IdHS, the document had not been redacted by the company but by the FBI, and the unredacted version was not in Citigroup’s full control, as it was bound by the privilege invoked by the FBI.

Moreover, the full unredacted IdHS was not necessary to prosecute her Title VII case, the court said. What matters is how Citigroup “construed the IdHS in reaching their hiring decision,” and what knowledge it had about “person of interest” status that would convince them not to hire someone with that status. Later disclosures in the course of motion practice revealed that the applicant had not been arrested or charged with a crime, that the “person of interest” designation is a third IdHS category in IdHS (along with “suspect” or “witness”)—that is, someone associated in some other way with an investigation. Finally, the applicant was removed as a “person of interest” after Citigroup made the adverse hiring decision.

Therefore, the applicant’s motion to compel production of the unredacted version of the IdHS was denied.

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