A federal appeals court today revived a privacy suit rooted in a "dark chapter" at the U.S. Justice Department in which top officials assessed politics and ideology to screen applicants vying for entry-level slots in the prestigious Honors Program.
In the suit in Washington's federal trial court, several applicants to the program alleged they were not selected for interviews in 2006 based on their political affiliation. An internal DOJ report in 2008 concluded that top officials improperly considered First Amendment-protected speech to eliminate candidates. The lawsuit, filed in 2008, relied on the publication of the internal investigation.
Those senior officials, the U.S. Court of Appeals for the D.C. Circuit said today, had an obligation to preserve Internet records about each candidate "given that Department investigation and future litigation were reasonably foreseeable." The records have since been destroyed.
Writing for the court, Judge Judith Rogers said a jury should be allowed to hear a claim of spoliation—that is, that two remaining plaintiffs, Matthew Faiella and Daniel Herber, were "harmed by creation and use of the destroyed records." The screening committee at the time comprised Michael Elston, chief of staff to the deputy attorney general, and Esther McDonald, counsel to the associate attorney general. The D.C. Circuit opinion is here.