When newsworthy events occur, the responsible organization normally writes a press release and posts it on its website to inform the public about what happened. One man who pled guilty to several acts of mortgage fraud and completed his sentence sued the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) to make them remove press releases about him that were at least ten years old. The District Court dismissed his claim, and the Ninth Circuit has now affirmed the dismissal.

Plaintiff-appellant John Doe got out of prison in 2017 and completed his restitution in 2019. Claiming cruel and unusual punishment from the continued public availability of information about him and his crimes, Doe filed a civil suit against the DOJ and the FBI in 2020 that claimed personal facts about him which remain on government websites violate several statutory acts as well as his constitutional right to privacy.

The District Court for the Central District of California dismissed his suit for failure to state a cause of action. The United States Court of Appeals for the Ninth Circuit affirmed the District Court’s dismissal on November 9.

A unanimous opinion written for a three-judge panel by Senior U.S. District Judge David A. Ezra explained that press releases about federal convictions are archived and forever remain publicly available. In his first paragraph, Ezra quickly agreed that Doe’s filing had failed to state a claim for valid relief on any of the five grounds he cited.

Ezra then gave a history of Doe’s cases. In 2017, Doe filed a motion to compel DOJ to remove the releases. It was denied on “jurisdictional grounds” that were not explained in the opinion. In 2020, he filed the civil action that the Ninth Circuit has now dismissed. In it, Doe did not object to the initial press releases and postings about his crime, which had included information about his name, age, employment history, and mortgage fraud schemes. His new suit, solely concerning the continued availability of information about him, alleged violations of the Privacy Act and the Administrative Procedures Act, as well as separation of powers, and his constitutional right to privacy.

Doe’s appeal first addressed his right to privacy. He compared his right to that of women who have a right to privacy for their medical records regarding abortions, and to the release of social security numbers. Ezra wrote, “While individuals may have a constitutional privacy interest in certain, highly sensitive information, Appellant simply does not have such an interest in the information at issue in this case.“

He also pointed out that Doe never challenged the constitutionality of his information at the time it was initially published. Nor was the comparison of his privacy rights to those afforded by the Freedom of Information Act (FOIA) valid because his claim of a constitutional right of privacy was not the same as the one given under the statutory FOIA.

Ezra next turned to Doe’s claim of cruel and unusual punishment. Ezra explained that Doe would have needed to prove that the continued presence of press releases “amount(ed) to criminal punishment.”

Appellant Doe says the District Court applied the “wrong test in deciding the punitive effect.” Again, the Ninth Circuit opinion found no error because the posting of press releases was not intended to punish, but to “advance a nonpunitive objective.” The Justice cited precedent that detailed the factors required to find an intent to punish. He said the press release must have a historical tradition of punishing that imposes an “affirmative disability or restraint,” promotes traditional punishment goals, has a connection to a nonpunitive purpose, or is excessive.

Ezra concluded that none of these factors were present. He wrote that “continued availability is not punishment at all,” and therefore cannot be considered cruel and unusual as defined by case law and the Eighth Amendment. He also said the district court had applied the correct test regarding his punishment claims. He said that since the denial did not impose physical restraint it does not “resemble the punishment of imprisonment,” as required for a complaint amendment.

He also dismissed Doe’s separation of powers claim that asserted that the DOJ, as part of the executive branch of government, was punishing him by keeping the releases on the web.

The opinion then turned to Doe’s Administrative Procedures Act (APA) claim. Ezra said that this claim was also based on appellant’s purported allegations of his constitutional right to privacy. But Doe never filed an appropriate claim to support this argument; instead, he raised it on appeal for the first time and thus “forfeited his argument that his APA claim is based on anything other than his alleged constitutional right to privacy violations.”

Doe’s final argument regarding the district court’s failure to allow him leave to amend was also dismissed. Doe believed his amendment should have been allowed due to “further fact development,” including a declaration from a law professor. But even that “would not have saved his claim from dismissal,” Ezra concluded.

This opinion stands for the assurance that anyone wishing to remove web postings about actions taken by the DOJ and FBI will face a heavy burden. The public definitely has a right to know what the law enforcement agencies of its government are doing and have done.