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

507 F.2d 1116, 165 U.S. App. D.C. 293, 1974 U.S. App. LEXIS 6414

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 22, 1974
• Docket: 72-1209
• Status: Published

Opinions

BAZELON, Chief Judge:

John Tarlton, pro se, seeks in this action to expunge certain information from his FBI “criminal” file.¹ This information consists of several entries of arrests for which no ultimate disposition is indicated and of arrests and convictions which he alleges were perpetrated in violation of his constitutional rights. Tarlton further alleges that this incomplete and inaccurate² information has in the past influenced a court in imposing sentence upon him and influenced the United States Board of Parole in denying him parole on May 9, 1970. He alleges that the future dissemination of this information will cause him similar injury. The District Court dismissed Tarlton’s complaint for failure to state a cause of action.³ For the purposes of ruling on this motion to dismiss, we take as admitted the allegations of the complaint.⁴ We reverse and remand for proceedings consistent with this opinion.

I.

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

II.

The Congressional authorization for maintenance of criminal records is 28 U.S.C. § 534 (1970) which directs⁹ the Attorney General, among other things, to “acquire, collect, classify, and preserve identification, criminal identification, crime, and other records.” We held in Menard (II) that the statute implies a duty on the part of the FBI, to which the Attorney General has delegated the task of criminal record-keeping, to “take account of responsible information . . . that the ‘arrest’ record previously submitted did not communicate an information properly retained by the Bureau in its criminal file as an arrest record.” ¹⁰

We reaffirm the holding of Menard (II) and set forth at length the various reasons which not only require implication of the duty discussed above from the open texture of § 534, but go further, providing the legal basis for a more comprehensive view of the FBI’s responsibilities in regard to its criminal files. First, as we stated in Menard (II), “the FBI’s function of maintaining and disseminating criminal identification records and files carries with it as a corollary the responsibility to discharge this function reliably and responsibly and without unnecessary harm to individuals whose rights have been invaded.” ¹¹ This corollary is a necessary implication from the grant of power to maintain and disseminate criminal information. Surely a reliable and responsible performance of the record-keeping function requires such reasonable care as the FBI is able to afford to avoid injury to innocent citizens through dissemination of inaccurate information.¹²

Second, if the FBI has the authority to collect and disseminate inaccurate criminal information about private individuals without making reasonable efforts to safeguard the accuracy of the information, it would in effect have the authority to libel those individuals.¹³ However, we cannot, absent the clearest statement of Congressional policy, impute to Congress an intent to authorize the FBI to damage the reputation of innocent individuals in contravention of settled common law principles.¹⁴ Thus, we presume that Congress did not intend through § 534 to authorize the FBI to disseminate inaccurate criminal information without taking reasonable precautions to prevent inaccuracy.

Third, if the FBI had the authority to defame innocent individuals, we would be faced with the gravest constitutional issues. Dissemination of inaccurate criminal information without the precaution of reasonable efforts to forestall inaccuracy restricts the subject’s liberty without any procedural safeguards designed to prevent such inaccuracies. That dissemination of inaccurate arrest or conviction records in fact restricts liberty is established by Menard (I) ¹⁵ and other decisions concerning expungement of arrest or conviction records.¹⁶ Indeed, the whole panoply of constitutional requirements, particularly the right to a speedy trial, activated upon arrest or indictment are designed to mitigate the obvious restrictions on liberty due to public accusation of a crime by the promise of an expeditious and complete hearing to determine the merits of the accusation.¹⁷ To permit the FBI to disseminate inaccurate criminal information without the FBI making reasonable efforts to prevent inaccuracy would be tantamount to permission to accuse individuals of criminal conduct without ever providing such individuals an opportunity to disprove that accusation.¹⁸ Exactly these considerations supported the Supreme Court’s decision in Joint Anti-Fascist Refugee Committee v. McGrath.¹⁹

In the largest sense, both this constitutional issue and the common law principle forbidding defamation of innocent individuals refer to the value of individual privacy. This value, consistently reaffirmed in recent years,²⁰ serves to insulate individuals from unjustifiable government interference with their private lives.²¹ This value finds its most direct expression in the Fourth and Fifth Amendments; ²² it also is re-fleeted in certain aspects of the First Amendment: government collection and dissemination of inaccurate criminal information without reasonable precautions to ensure accuracy could induce a levelling conformity inconsistent with the diversity of ideas and manners which has traditionally characterized our national life and found legal protection in the First Amendment.²³ Scrupulously avoiding constitutional issues,²⁴ we interpret § 534 in a manner designed to prevent government dissemination of inaccurate criminal information without reasonable precautions to ensure accuracy.

Fourth, in regard to Tarlton’s allegations of unconstitutional arrests or convictions, recognition of a duty on the part of the FBI to make reasonable efforts to maintain constitutionally accurate criminal files is but an exercise of judicial authority to use “remedial mechanisms to redress or obviate constitutional injuries.”²⁵ Generally, courts order expungement of arrest or conviction records to remedy constitutional injuries sustained by reason of such arrests or convictions.²⁶ We followed such a course of action in Sullivan v. Murphy, supra 27 Furthermore, the FBI as an organ of the national government has a commensurate responsibility to vigilantly support and defend the Constitution and we would not interpret § 534 in a manner inconsistent with this responsibility.²⁸

The four considerations discussed above establish that the FBI is under some duty to prevent dissemination of inaccurate arrest and conviction records. None of these considerations, as framed above, prevent the FBI from disseminating accurate criminal records or, indeed, from disseminating inaccurate records after taking reasonable measures to safeguard accuracy, and thus these considerations do not interfere with legitimate law enforcement objectives. There is, however, as these four considerations establish no legitimate law enforcement objective in disseminating inaccurate criminal records without reasonable precautions to safeguard the records’ accuracy. Indeed, the FBI does not here press such a contention. Rather it argues that considerations of federalism and administrative efficiency require that local law enforcement agencies assume the entire burden of safeguarding the accuracy of criminal records. We now turn to a discussion of that issue.

III.

As stated, the four considerations establish the existence of a legally protectable interest for subjects of FBI criminal files. The specific nature of the duty arising from that legally protectable interest cannot, however, be determined by a mechanistic application of the discussion in Part II above. Rather that duty must be accommodated to the particular role the FBI plays in the collection and dissemination of criminal information in the Federal system, the FBI’s capacity to take reasonable measures to ensure accuracy and the practicalities of judicial administration and executive efficiency. Since this case reaches us on a motion to dismiss for failure to state a cause of action, we need not resolve the difficult and sensitive questions involved in reconciling policies of federalism and administrative efficiency with the duty suggested by the discussion in Part II. It is enough at this stage of the litigation to state that this duty is sufficiently developed to convince us that more judicial inquiry is needed. Therefore, we remand the case for such further inquiry.

The record in this case and the experience gained in the Menard litigation are, however, sufficient for us to suggest the following avenues of investigation in the remand hearing. The discussion that follows seeks only to define the kind of facts which may bear upon the issues open at that hearing. The FBI will, of course, have an opportunity to suggest countervailing considerations. Our purpose here is to frame issues, not dictate conclusions.

The first issue is the precise nature of the FBI’s responsibility. The FBI here, as in Menard (II), presses the contention that it is a mere repository for information collected and recorded by state and local agencies and thus is not responsible for any inaccuracies in that information. Passing the issue of whether the FBI may disclaim responsibility for injuring innocent individuals merely because of its status as an agent, Menard (II) quite clearly holds that the FBI is more than “a mere passive recipient of records received from others.” ²⁹ Rather the FBI “energizes those records by maintaining a system of criminal files and disseminating the criminal records widely, acting in effect as a step-up transformer that puts into the system a capacity for both good and harm.” ³⁰

It is also suggested that the following disclaimer on each FBI record disseminated to persons outside the FBI establishes that the FBI is merely a repository for information collected by others: “Information shown on this Identification Record represents data furnished FBI by fingerprint contributors. WHERE FINAL DISPOSITION IS NOT SHOWN OR FURTHER EXPLANATION OF CHARGE IS DESIRED, COMMUNICATE WITH AGENCY CONTRIBUTING THOSE FINGERPRINTS.” While we commend the FBI for inserting this warning, we cannot find that it absolves the Bureau of its responsibilities, whatever they may be, toward information it disseminates. We would think this argument had been rejected by Menard (II). Even if that entirely reasonable conclusion may for purposes of argument be set aside, we think that the realities of the dissemination network nullify any impact the above-quoted disclaimer might have in detering reliance on information disseminated by the FBI. First, a sentencing judge or parole agency is not in a position to check the accuracy of every FBI file it receives. Those authorities have no direct contact with local law enforcement agencies or a permanent staff to handle questions concerning the accuracy of arrest and conviction records. And other agencies or individuals who have access to FBI criminal records would have even less ability to check on the accuracy of those records. Second, sentencing and parole authorities are in a position where they must rely on some source for information about an accused or convicted individual. The easy availability of FBI records and the extreme difficulty of obtaining the information on their own make virtually blind reliance on the FBI records a practical necessity. Third, the subject of the files, often imprisoned and more often without the intellectual or financial capacity to conduct a personal investigation into the facts of distant arrests or convictions, will seldom be able to effectively challenge the accuracy of information distributed by the FBI before a parole board or sentencing judge. In sum, the FBI may not disclaim responsibility for the system it has created through insertion of a printed warning on the records it disseminates.

There are, however, practical limits to the FBI’s responsibility. “Realistically, the FBI cannot be expected to investigate the facts underlying every arrest or detention reported to it. . ” ³¹ Such a duty would place a potentially huge administrative burden on the FBI. Furthermore, in the case of alleged unconstitutional arrests or convictions, the FBI is not authorized or equipped to make judgments concerning what might be difficult questions of constitutional interpretation. Finally, considerations of administrative efficiency and federalism suggests that the “primary duty of executive inquiry into the facts of distant arrests is a burden assigned more appropriately to the local agency whose officials made the arrest [or conviction] than to the FBI.” ³²

Similar reasons limit the relief United States courts in this district may legally and practically grant to litigants in Tarlton’s position. The District Court cannot review the constitutionality and relitigate the merits of all the arrests and convictions in the United States.³³ Furthermore, considerations of federal-state comity³⁴ would seem to require that local courts which supervised the arrest or entered the conviction under attack should make the initial determination as to the validity of that arrest or conviction. Finally, of course, in the ordinary case the District Court cannot order expungement of information from the files of local governmental agencies since it would have no jurisdiction over those records.³⁵

These limiting considerations unequivocally establish that the FBI is not and cannot be the guarantor of the accuracy of the information in its criminal files. However, as established in Part II óf this opinion, neither can it avoid all responsibility for inaccuracies which injure innocent individuals. The task of the District Court is to consider by the standard of reasonable care within the FBI’s capacity where between these extremes a proper definition of FBI responsibility may be found. We held in Menard (II) that the FBI has a duty to take notice of responsible information furnished by local law enforcement agencies. The District Court may inquire whether persuasive reasons exist for not extending this duty to a more general duty to request of local law enforcement agencies the factual bases, if any, of allegations submitted to the FBI challenging the accuracy of prior information submitted by that local agency. Such a duty could not include, for the reasons discussed above, a requirement that the FBI resolve factual or legal issues that might arise if the allegations of the individual subject of the record and the statements of the local law enforcement agency conflict. Neither could the exercise of such a duty give rise to a legal obligation on the part of the FBI to guarantee the accuracy of records which are the subject of an FBI request to a local law enforcement agency.

We are not at this stage of the proceeding informed as to what arguments or administrative justifications the FBI might bring forward to explain its present failure to undertake this general duty. For example, one might plausibly argue that the sheer expense of the exercise of such a general duty might indicate that the duty should not be imposed. We are, to be sure, very hesitant to limit a duty absent the most compelling administrative justification. We withhold any final judgment, however, until the FBI has been given a full opportunity to express its views and the District Court has evaluated the evidence adduced at the remand hearing.

Because of the general nature of our mandate in this opinion, we feel compelled to make some tentative suggestions to the District Court concerning the specifics of this general duty of inquiry. We emphatically state that these are only suggestions which the District Court may, in its discretion, consider. First, the District Court may well wish to inquire whether persuasive reasons exist which might justify the failure of the FBI to keep its files reasonably current, i. e. the failure to indicate a disposition within a reasonable time after the entry of an arrest.³⁶ Second, the District Court may wish to consider whether the FBI should upon request of an individual detailing allegations of inaccurate entries in his FBI criminal file forward those allegations to the relevant local law enforcement agency with a request for comment or contradiction. Third, the District Court may wish to review the present FBI forms for use by local law enforcement officials in submitting criminal data to determine whether it is reasonable to revise those forms to require the reporting of additional information about the crime which is the subject of the submission.

A further specific duty which the District Court, in its discretion, may wish to consider is a duty to grant a right of access for individuals who are the subject of FBI criminal files for the purpose of examining their FBI files for errors. In inquiring as to the practicality and efficiency of such a duty, the District Court might review whether this right of access should be absolute or granted only upon threat of injury from dissemination of the criminal record.³⁷ Finally, in this inquiry, the District Court may consider whether the injured individual should have a limited opportunity to explain or clarify information contained in his file either by placing a short statement in the file or by indicating on the file itself that certain information is challenged.³⁸

The learned arguments of the dissent invite a brief rebuttal. Our remand, it is argued, requires the District Court to perform the awesome task of administering the FBI through “judicial amendment” to § 534. Such projects, according to the dissent, are not the business of courts. Even if we were to concede, which we most certainly do not, that our remand may ultimately result in a mandate as extensive as that conjured by the dissent, we would still consider our holding a proper exercise of the judicial function, consistent in every respect with the traditional roots of judicial power. One might cite as random examples the control of work-related injury and the costs of technological advance through personal injury litigation; the administration of the system of free enterprise through enforcement of business promises and the protection of tangible and intangible property interests; and, most relevant to the dispute sub ju-dice, the reconciliation of individual interests in reputation with other important social interests such as political debate and free economic competition through the law of libel and slander. This tradition of judicial temerity has maintained its vitality in recent years as the examples of school desegregation and reapportionment litigation amply attest. We certainly cannot foresee anything similar to such administratively awesome tasks as these resulting from the ultimate disposition of this case. But these examples do demonstrate that the distinction of the judicial function lies not in the administrative difficulty of the task it is urged to perform but rather in the existence vel non of a legally protectable interest, a “right”, a “cause of action.”

On that score, the dissent has precious little criticism of our result. To be sure, there is the general assertion that we may presume from Congressional silence an intent in § 534 to alter established common law and constitutional interests. Not only is this argument singularly unpersuasive to us, it does not even seem to fully persuade the dissentor who, a close reading of his opinion will establish, apparently sees a sufficiently significant legal interest to suggest disclosure of FBI criminal files and a right to reply for injured subjects of those files.

Reduced to essentials, our colleague’s concern in this case seems to be that the cost and administrative difficulty of implementing the duty of inquiry tentatively suggested in our opinion conclusively demonstrates the impracticality of establishing such a duty as a remedy for injury to a legal interest. We might at a later time concur in this judgment. Certainly such a result is not foreclosed in the least by our holding or the reasoning offered in support of it. On the contrary, we expressly hold that cost and administrative efficiency must be weighed in ascertaining what if any legally protectable federal interest accrues to the subjects of FBI criminal files. For the present, however, we are not confident the dissent’s judgment can find sufficient support in the bare record presented to us here. For expressly and specifically that reason we have decided upon the remand explicated herein.

Perhaps we should add, lest our view be misunderstood, that we would welcome legislative action designed to meet the issues discussed in our opinion. The Congress has at its disposal the resources and fact-finding apparatus sufficient to accomplish the objectives of this remand and has a more flexible range of enforcement techniques to realize the conclusions of such an inquiry. Furthermore, the Congress is the appropriate institution to determine whether established common law and constitutional interests should be limited in service of other important social interests. A Congressional judgment on such matters will, of course, be conclusive upon us, if consistent with our constitutional responsibilities. However, we cannot refuse to adjudicate cognizable legal claims involving substantial personal interests on the possibility, no matter how devoutly we might wish it, of future legislative action.

IV.

In conclusion, we wish to again emphasize that we hold only that Tarlton has, at this stage of the proceedings, stated a cause of action. This cause of action relates to a possible duty of inquiry to be placed upon the FBI, the existence of which is a question for the District Court after conducting a hearing in which the FBI may fully present factual material and legal arguments bearing on the issues raised in Part III above. We, therefore, reverse and remand to the District Court for proceedings consistent with this opinion.

So ordered.

1 . For a complete description of the FBI “criminal” file system, see Menard v. Saxbe (II), 162 U.S.App.D.C. 284, 498 F.2d 1017, 1020-1022 (1974), rev’g, 328 F.Supp. 718, 720-723 (D.D.C.1971).

While the issue has not been raised by the parties, jurisdiction seems founded on 28 U. S.C. § 1331 (1970). See Sullivan v. Murphy, 156 U.S.App.D.C. 28, 50 & n. 34, 478 F.2d 938, 960 & n. 34, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973). Tarlton’s standing, a question also not raised in this Court, is assured by Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 140-141, 71 S.Ct. 624, 95 L.Ed. 817 (1951). See also Menard v. Mitchell (I), 139 U.S. App.D.C. 113, 430 F.2d 486 (1970) ; Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claims for Relief, 83 Yale L.J. 425, 449-73 (1974). Tarlton’s pro se complaint presents the sort of dispute that has been traditionally considered justiciable; his claim is ripe for decision. Menard v. Saxbe, supra, 498 F.2d at 1023-1024; Sullivan v. Murphy, 156 U.S. App.D.C. at 54, 58, 478 F.2d at 964, 968. Laird v. Tatum, 408 U.S. 1, 13-16, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) is distinguishable by virtue of Tarlton’s allegations of past injury. Cf. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973).

In his original pleadings Tarlton included a claim for damages by reason of the dissemination of his allegedly inaccurate arrest record. However, he has not pressed this claim upon appeal.

2 . The information is claimed to be constitutionally inaccurate in that it conveys an arrest or conviction perpetrated in violation of constitutional rights. Cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L. Ed.2d 592 (1972).

3 . Tarlton v. Mitchell, Civil No. 1862-71 (D. D.C. Dec. 1, 1971).

4 . Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174-175, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). Tarlton did not in his initial pro se pleadings set forth the theory of his action with complete precision. However, a careful reading of his complaint supports the summation given in the text. Pro se litigants should not be deprived of their rights due to inexpertly drawn pleadings. See Gibbs v. Burke, 337 U.S. 773, 779-781, 69 S.Ct. 1247, 93 L.Ed. 1686 (1949).

5 . Two notable recent oases have concerned this relationship. California Bankers Ass’n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) ; Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Bee Hearings on Criminal Justice Data Banks Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 93d Cong., 2d Sess. (1974) ; Hearings on H.R. 13315 Before the House Comm, on the Judiciary, 92d Cong., 2d Sess., ser. 27 (1972).

6 . 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974). Menard (I) is an earlier version of this litigation. 139 U.S.App.D.C. 113, 430 F.2d 486 (1970).

7 . He does by implication raise an issue decided in Menard (II) : whether the FBI may retain records of police “detentions” for which it knows that no probable cause for arrest existed. Menard (II) decided that such interaction between citizen and police was not the kind of criminal activity which may be included in FBI files. The corollary of Menard (II) is that arrests or convictions known by the FBI to be unconstitutional are not properly enshrined in FBI files. Cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ; pp. 1125-1126 infra.

The Department of Justice has recently promulgated proposed regulations which limit dissemination of reported criminal activity to “serious and/or significant violations”, that is, constitutionally valid arrests. 39 Fed.Reg. 5636, §§ 20.2(c), 20.32 (Feb. 14, 1974). We do not decide in this case whether the FBI may properly retain records of arrests if the accused is later acquitted or the charges are dropped. Compare Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) and Gregory v. Litton Systems, 316 F.Supp. 401, 403 (C.D.Cal.1970) with United States v. Rosen, 343 F.Supp. 804, 808-809 (S.D.N.Y.1972) and United States v. Dooley, 364 F.Supp. 75, 78-79 (E.D.Pa. 1973). See also S. 2963, 93d Cong., 2d Sess. §§ 202, 206 (1974) ; S. 2696, 93d Cong., 2d Sess. § 1 (1973) ; President’s Comm’n on Law Enforcement and the Administration of Justice, Task Force Report: Science and Technology 74-77 (1967) (retention of records of arrest or conviction for unreasonable lengths of time may conflict with rehabilitation goals) ; Time, July 23, 1973, at 14 (Massachusetts refuses to participate in the FBI records system because that system records arrests even when no conviction has been entered).

8 . In Menard v. Mitchell (II), 328 F.Supp. 718, 725-728 (D.D.C.1971), rev’d on other grounds, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974), the court on statutory grounds limited the dissemination of arrest and conviction records to state law enforcement agencies and the federal government. This limitation was in part reversed by Congress in Pub.L. 92-184, 85 Stat. 642, § 902, to authorize dissemination to certain banking institutions and other agencies to be named by the Attorney-General. Bee 28 C.F.R. § 0.-85(b) (1974). However, the issue of Constitutional restraints on dissemination is yet to be definitively adjudicated and we, therefore, express no opinion on that issue. We also express no opinion on whether the FBI must take a more active role in supervising the use made of FBI records once they are sent to authorized agencies, an area in which there has been a potential abuse of authority. Menard (II), at 1026 n. 28. See also S. 2963, 93d Cong., 2d Sess. §§ 201-02 (1974).

9 . United States v. Rosen, 343 F.Supp. 804, 806 (S.D.N.Y.1972). The Attorney-General pursuant to § 534(c) has delegated this responsibility to the FBI. 28 C.F.R. § 0.85(b) (1974).

10 . 498 F.2d at 1029.

11 . Id. at 1026.

12 . Cf. Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970) ; Rogers v. United States, 397 F.2d 12 (4th Cir. 1968) ; Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 233-236 (2d Cir.), cert. denied, 389 U. S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967) ; McGill v. United States, 200 F.2d 873 (3d Cir. 1953).

13 . At common law, the written accusation that an individual has been arrested or convicted of a crime is actionable per se. Lan-cour v. Herald & Globe Ass’n, 111 Vt. 371, 17 A.2d 253 (1941) ; Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041 (1904) ; Brewer v. Chase, 121 Mich. 526, 80 N.W. 575 (1899). Of course, truth is a complete defense to a libel action. F. Harper & F. James, The Law of Torts § 5.20 (1956). To be sure, the FBI might well assert in such an action that the libel is justified by law enforcement needs or by considerations of federalism. Both of these justifications are discussed pp. 1126-1129 infra. However, after Doe v. McMillan, 412 U.S. 306, 324, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), the FBI can assert no absolute privilege.

14 . Cf. Doe v. McMillan, 412 U.S. 306, 324, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) ; Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (dictum) ; Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ; Watkins v. United States, 354 U.S. 178, 197-199, 205-206, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) ; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 139-141, 143, 180, 71 S.Ct. 624, 95 L.Ed. 817 (1951). See also Rosenblatt v. Baer, 383 U.S. 75, 86, 92, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

As a general rule, federal courts interpret federal statutes as consistent with existing law, of which common law principles are a part, unless a contrary legislative intent appears. See, e. g., Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952) ; cases cited note 24 infra.

15 . 139 U.S.App.D.C. at 117-118, 430 F.2d at 490-491.

16 . Menard (II), 498 F.2d at 1023 n. 13, 1024; Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 174, 177-178, 417 F.2d 728, 742, 745-746 (1969). See Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951) ; cf. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Probation § 2.3, at 37 (Tent.Draft 1970).

17 . See generally Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ; Dickey v. Florida, 398 U.S. 30, 41-43, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).

The one traditional exception is the extraordinary process of a grand jury presentment, which is strictly controlled to protect the privacy interests enumerated in the text. See, e. g., In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.1974) ; Jones v. People, 101 A.D. 55, 92 N.Y.S. 275 (2d Dep’t 1905) ; Note The Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590, 594-96 (1961) and authorities cited.

18 . To be sure, to the extent these accusations are directed toward parole or sentencing authorities, the individual may have an opportunity to rebut the charges. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). However, a duty on the FBI to take reasonable measures to produce accurate information for those authorities supports the procedural rights guaranteed at sentencing and parole hearings, since those authorities are themselves required to sentence on an accurate and constitutional criminal record. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). See pp. 1126-1127 infra. Furthermore, FBI information is disseminated to a great many agencies other than parole and sentencing authorities. See sources cited note 8 supra. The individual has no procedural rights before those agencies.

19 . 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). See also Wisconsin v. Constan-tineau, 400 U.S. 433, 91 S.Ct. 507, 27 L. Ed.2d 515 (1971). In McGrath, four Justices, out of eight participating, held that the plaintiff organizations were entitled to an adversary hearing on the truth of the Attorney-General’s published claim that they were communist, because the Attorney-General’s claim damaged their reputation and ability to function. The fifth Justice, Burton, who wrote the opinion for the Court, held that the plaintiffs were entitled to a trial in the District Court on whether the Attorney-General’s claim was reasonable.

20 . See, e. g., Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

21 . Watkins v. United States, 354 U.S. 178, 205-206, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957).

22 . Fourth Amendment: Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), protecting against searches of private areas unless the government has “probable cause” that a crime has been committed or hidden in that area. Fifth Amendment (Fourteenth Amendment) : Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed .2d 515 (1971) ; Snaidach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed .2d 349 (1969) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), protecting against deprivations of liberty or invasion of privacy without “due process of law.” “Due process” generally refers to procedural safeguards designed to insure that the government is invading a private area pursuant to a legitimate objective, but it, on occasions, has meant that no legitimate governmental objective can justify the invasion. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ; of. note 23 infra. As stated above, notes 7-8 supra, we do not decide here whether the justification for certain kinds of governmental interference via maintenance of arrest records is sufficient to permit that interference.

23 . See Watkins v. United States, 354 U.S. 178, 196-199, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) ; Note, Privacy in the First Amendment, 82 Yale L..T. 1462 (1973). Cf. Laird v. Tatum, 408 U.S. 1, 25-29, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (Douglas & Marshall, JJ. dissenting) ; Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ; Boorda v. Subversive Activities Control Board, 137 U.S.App.D.C. 207, 421 F.2d 1142 (1969), cert. denied, 397 U.S. 1042, 90 S.Ct. 1365, 25 L.Ed.2d 653 (1970). Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970) ; Note, Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969). The following statement by Judge Gesell is particularly instructive:

“Systematic recordation and dissemination of information about individual citizens is a form of surveillance and control which may easily inhibit freedom to speak, to work, and to move [freely] . . .. If information available to Government is misused to publicize past incidents in the life of its citizens, the pressures for conformity will be irresistible. Initiative and individuality can be suffocated and a resulting dullness of mind and conduct will become the norm.”

Menard v. Mitchell (II), 328 F.Supp. 718, 726 (D.D.C.1971).

The reality of this danger is illustrated by the facts in Sullivan v. Murphy, 156 U.S. App.D.C. 28, 478 F.2d 938, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973) ; United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) ; Wilson v. Webster, 467 F.2d 1282 (9th Cir. 1972) ; Bilick v. Dudley, 356 F.Supp. 945 (S.D.N.Y.1973) ; Kowall v. United States, 53 F.R.D. 211 (W.D.Mich. 1971) ; Wheeler v. Goodman, 298 F.Supp. 935 (W.D.N.C.1969) ; Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968). See also Wash.Post, June 20, 1974, at Cl. col. 1.

24 . See Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682, 19 L.Ed.2d 799 (1967) ; Steele v. Louisville & N. R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) ; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). Even if we were certain that a direct Constitutional attack on FBI dissemination of inaccurate records without reasonable precautions to safeguard accuracy would fail, we would still presume that Congress did not intend through § 534 to change traditional values recognized by existing law, 'absent a clear legislative statement. See United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ; Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) ; Kent v. Dulles, 357 U.S. , 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1957) ; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2a 1273 (1957) ; Girouard v. United States, 328 U.S. 61, 68-69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) ; Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082, 1093-1096 (D.C.Cir.1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969) (Bazelon, C. .T.).

25 . Sullivan v. Murphy, 156 U.S.App.D.C. 28, 55, 478 F.24 938, 965, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L. Ed.2d 619 (1971).

26 . See Wilson v. Webster, 467 F.2d 1282 (9th Cir. 1972) ; cases cited note 23 supra,. See also United States v. Doe, Orim.No. 28, 123 (D.O.Super. Aug. 19, 1974).

27 . 156 U.S.App.D.C. at 54-63, 478 F.2d at 964-973. Cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

28 . Our reasoning in Part II is also supported by Public Law 93-83, § 524(b), 42 U.S.C. § 3771(b) (Supp. Ill 1973), which in pertinent part requires that all “criminal history information” maintained by “State and local governments” with LEAA funds shall “to the maximum extent feasible” include ultimate disposition for all recorded arrests; all individuals who have criminal history information in the files of state and local governments receiving LEAA funds may obtain access to that information “for the purpose of challenge or correction.” This statute fairly bristles with interpretative problems, and is, according to the Conference Report, only an “interim measure” and “should not be viewed as dispositive of the unsettled and sensitive issues of the right to privacy and other individual rights affecting the maintenance and dissemination of criminal justice information.” Conf.Rep. 93-401, 93d Cong., 2d Sess. at 32 (1973). To name but a few of the interpretative problems: The statute is not clear whether private parties may enforce its provisions or whether enforcement is committed to the discretion of government prosecutors. See § 524(c), 42 U.S.C. § 3771 (e) (Supp. Ill 1973). Compare S. 2963, 93d Cong., 2d Sess. §§ 207(b)(6), 301, 308-09 (1974). This confusion is reflected in uncertainty as to what parties would have standing, if any, and as to federal jurisdiction. Furthermore, the statute does not define “maximum extent feasible”, although administrative determinations of feasibility would, if the issue were otherwise properly before the Court, be subject to judicial review. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136 (1971). The statute defines “criminal history information” in terms of information contained in “automated” record-keeping systems, which may or may not embrace the mass of local record-keeping systems. Finally, the statute suggests that some information could be “challenged or corrected” but does not indicate on what bases.

AVithout ruling on the issue, we assume for purposes of this decision that the statute does not apply to the FBI. However, the statute does inform our view of § 534. Even though Public Law 93-83 was enacted after '28 U.S.C. § 534, under established authority it may still guide judicial construction of § 534. See Girouard v. United States, 328 U.S. 61, 67-70, 66 S.Ct. 826, 90 L.Ed. 1084 (1945) ; Hutcheson v. United States, 312 U.S. 219, 231-36, 61 S.Ct. 463, 85 L.Ed. 788 (1941). Congress surely cannot be presumed to undercut its action in § 534(b) by intending that the FBI be authorized to receive and disseminate without reasonable precautions the sort of incomplete, unchallengeable information from state or local officials which those officials themselves are forbidden to disseminate. Furthermore, § 534(b) is a relevant source of law -which supports implication into § 534 of the general principle that the FBI has a duty to take reasonable measures to maintain accurate criminal records, since the same concerns which led Congress to impose a duty on state and local law enforcement officials in regard to tlieir criminal files apply equally to the FBI and its criminal files. See Conf. Rep., supra, at 32. See also S. 2963, 93d Cong., 2d Sess. § 101 (1974) ; Hearings, supra note 5. Another statute that serves as a relevant source of law is the Consumer Credit Protection Act, 15 U.S.C. §§ 1681g-1681j (1970). For recent examples of the use of statutes as relevant sources of law, see Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-392, 90 S.Ct. 1772, 26 L. Ed.2d 339 (1970) ; Welsh v. United States, 398 U.S. 333, 345-361, 90 S.Ct. 1792, 26 L. Ed.2d 308 (1970) (Harlan, J. concurring). For a collection of scholarly authority, see Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan’s Contribution, 82 Yale L.J. 258 (1972).

29 . 498 F.2d at 1026.

30 . Id.

31 . Menard v. Mitchell (I), 139 U.S.App.D.C. at 122 n. 51, 430 F.2d at 495 n. 51. (Baze-lon, C. J.).

32 . Menard v. Saxbe (II), 498 F.2d at 1025. Cf. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

33 . The District Court here would be an inconvenient forum. See 28 U.S.C. § 1404(a) (1970) ; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1946).

34 . See Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) ; Fay v. Noia, 372 U.S. 391, 417-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ; Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 173, 417 F.2d 728, 741 (1969) ; Developments in the Law-Federal Habeas Corpus, 83 Ilarv.L.Rev. 1038, 1093-94 (1970). Since the expungement of arrest or conviction records is .a form of collateral attack, the habeas corpus case law on exhaustion of state remedies, is a particularly persuasive, if not controlling, analogy.

The policy of federal-state comity while applicable to requests for expungement of arrest records does not prevent expungement actions directed against the FBI prior to a successful expungement action in the local court of the jurisdiction which first provided the disputed record. See Menard (II), 498 F.2d at 1025-1028. To be sure, Menard did seek redress from state officials before bringing his action in the District Court of this district, but he did not obtain expungement in state court. To the extent Menard exhausted his state remedies, Tarl-ton will exhaust his remedies to the same extent if the FBI exercises a duty of inquiry such as is suggested on pp. 1129-1130 infra. Furthermore, Tarlton’s action, seeking as it does a determination of the FBI’s federal duty created by a federal statute, involves certain undeniably federal issues such as the existence and extent of a duty of inquiry.

Notably the persuasive analogy to habeas corpus doctrine supports this result. Exhaustion of local remedies is required only where state courts can provide full relief. Fay v. Noia, supra 372 U.S. at 434-435, 83 S.Ct. 822, 9 L.Ed.2d 837; 28 U.S.C. § 2254(b) (1970) ; Developments in the Law, supra at 1097-1103. Here state courts cannot expunge FBI records and thus the relief they could grant is inadequate. Although the state court presumably could order the local agency to request return of the records in issue, requests which are at present routinely honored, Menard (II), 498 F.2d at 1025, this places the plaintiff’s remedy at the discretion of the FBI. We do not consider this adequate. Furthermore, many state courts may not grant expungement of local records. E. g., Spock v. District of Columbia, 283 A.2d 14 (D.C.App.1971). See Comment, Retention and Dissemination of Arrest Records: Judicial Response, 38 U.Chi.L.Rev. 850 (1971). Under habeas corpus futility doctrine, this is grounds for immediate federal review. See Sullivan v. Murphy, 156 U.S.App.D.C. at 52-54, 478 F. 2d at 962-964; Developments in the Law, supra at 1099. Even if a state court would grant expungement, it is unclear whether it would order local officials to request return of FBI records. Finally, we would be most hesitant to remit Tarlton to suits in state courts when, as here, over twenty different arrest entries are in issue and there is no showing that' the states involved permit ex-pungement.

In addition to the foregoing considerations, we note that courts in this district' have traditionally reviewed the national policies of federal agencies in order to establish for all courts a consistent set of standards to guide that agency. See Nestor v. Hershey, 138 U.S.App.D.C. 73, 90-91, 425 F.2d 504, 521-522 (1969) (Robb, J.). This traditional concern is applicable to the FBI. We also note that once the FBI begins to comply with any duty required by § 534 as interpreted by the District Court after remand, if any such duties are imposed, all injured parties must exhaust their .administrative remedies within the FBI.

It is also suggested that we transfer this case to the federal district in which Tarlton is presently imprisoned or is presently on parole. Whatever might be the merits of such a suggestion, it has no merit in this case since Tarlton has already exhausted his remedies before the parole board and on appeal from the parole board decision. See Tarlton v. Clark, 441 F.2d 384 (5th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971).

35 . This Court has applied limits of this, sort in the analogous area of venue for challenges to denial of parole. See Starnes v. McGuire, 168 U.S.App.D.C. - at -, 512 F.2d 918 at 931 (D.C.Cir., Nov. 8, 1974) (en banc).

36 . We note that pending this appeal, the FBI has indicated that it will expunge all arrest records more than one year old for which no disposition is reported. Wash. Post, June 25, 1974, at A2, col. 4. See also id., June 20, 1973, at Al, col. 3.

37 . Cf. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).

38 . Such a duty is supported by the statutory analogies discussed in note 28 supra. It is also supported by analogy to the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which in effect grants access for defendants to excusatory material in the government’s possession. See United States v. Bryant, 142 U.S.App. D.C. 132, 439 F.2d 642 (1971) ; Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1908) ; cf. Fed.R.Crim.P. 16(a) ; United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) ; United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir. 1971) ; Peoples v. Hocker, 423 F.2d 960 (9th Cir. 1970). See also Freedom of Information Act, 5 U.S.C. § 552(b) (7) (1970) (exemption does not apxdy to materials which may be obtained through normal criminal discovery. H.R.Rep.No.1497, 89th Cong., 2d Sess. at 11 (1966)).