                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3980
                                  ___________

Abdel Elnashar,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
United States Department of Justice;   *
Federal Bureau of Investigation,       *
Minneapolis Office; Myron Umbel,       *
and Other Unknown FBI Agents,          *
                                       *
            Appellees.                 *
                                  ___________

                            Submitted: October 12, 2005
                               Filed: May 3, 2006
                                ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Abdel Elnashar filed suit against the Department of Justice (DOJ) and the
Federal Bureau of Investigation (FBI), seeking expungement of his record, access to
his record, and damages relating to the release of his record. He advanced claims
under the Privacy Act, 5 U.S.C. § 552a, the Freedom of Information Act, 5 U.S.C. §
552, and Amendments I, IV, and V of the United States Constitution. The district
court1 granted judgment on the pleadings in favor of the DOJ and FBI. Elnashar
appeals. Finding no error, we affirm.

I.    BACKGROUND

       The district court granted judgment on the pleadings in favor of the FBI and
DOJ; therefore we accept all facts pled by Elnashar as true and draw all reasonable
inferences from the facts in his favor. Waldron v. Boeing Co., 388 F.3d 591, 593 (8th
Cir. 2004). On September 14, 2001, the FBI and DOJ announced an investigation into
the September 11, 2001, terrorist highjackings, which was named PENTBOMB. In
November 2001, an unnamed individual contacted the Minneapolis Office of the FBI
regarding Elnashar. In April 2002, two FBI agents interviewed Elnashar at his home.

      Shortly thereafter, Elnashar filed an employment discrimination complaint with
the Saint Paul Human Rights Department (HR Department), against his former
employer. As part of the investigation, the HR Department sought the identity of the
unnamed individual who had contacted the FBI. Elnashar believed that a former
coworker or supervisor had made the contact. Elnashar signed a release, authorizing
the HR Department to obtain and examine copies of all documents and records
contained by the FBI pertaining to Elnashar. The HR Department requested those
documents from the FBI. The FBI responded with a letter stating that there were
records that were responsive to the request, but that the records were part of the
ongoing PENTBOMB investigation and could not be released. The HR Department
subsequently dismissed Elnashar's employment discrimination claim. Elnashar
requested the name of the reporting individual from the FBI on February 26, 2003,
and his request was denied.




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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      After the denial, Elnashar brought this action. The FBI provided records to
Elnashar, with the name of the individual who contacted the FBI, and any identifying
information, redacted. The records include the dates on which the individual
contacted the FBI, as well as information from Elnashar's interview with the two FBI
agents, describing his immigration to the United States, his foreign travel, and his
work history.

II.   DISCUSSION

      A.     Standard of Review

      We review de novo the district court's entry of judgment on the pleadings,
which should only be granted if the moving party has clearly established that no
material issue of fact remains and the moving party is entitled to judgment as a matter
of law. Waldron, 388 F.3d at 593.

      B.     The Privacy Act Claim

       The Privacy Act prevents federal agencies from releasing records "except
pursuant to a written request by, or with the prior written consent of, the individual to
whom the record pertains" or unless other specified conditions are met. 5 U.S.C. §
552a(b). It also requires that agencies ensure that records "are accurate, complete,
timely, and relevant for agency purposes" prior to dissemination. Id. § 552a(e)(6).
The Privacy Act further provides that governmental agencies shall "maintain no
record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom
the record is maintained or unless pertinent to and within the scope of an authorized
law enforcement activity." Id. § 552a(e)(7).




                                          -3-
       Elnashar argues that the district court made three errors with respect to his
Privacy Act claims concerning the maintenance of records and the release of
information about these records to the HR Department. First, he claims that the FBI
maintained records outside the scope of any law enforcement prosecution or
investigation, about how he exercised his First Amendment rights. To claim a
violation of section 552a(e)(7) of the Privacy Act, Elnashar must allege that the FBI
maintained records of how he exercised his First Amendment rights and that these
records were not within the scope of a law enforcement activity. As the district court
correctly noted, the FBI contacted Elnashar to determine whether he had expertise
with chemical weapons. Elnashar has failed to identify how his First Amendment
rights were implicated.

       Second, Elnashar argues that the district court erroneously read an intent
standard into the Privacy Act and thus erred by evaluating whether the FBI's response
to the HR Department portrayed him as a suspected terrorist, since this is the province
of the jury. Third, he argues that the district court wrongly held that his release,
authorizing the HR Department to obtain and examine copies of all FBI documents
and records pertaining to Elnashar, barred his claim because he had consented to
disclosure. Because we agree that the release bars Elnashar's claim, we need not reach
his intent argument.

       Specifically, Elnashar claims the FBI violated the Privacy Act by unreasonably
and unnecessarily informing the HR Department that the records were part of the
PENTBOMB investigation. We disagree. Elnashar signed a release "authoriz[ing]
representatives of the SAINT PAUL HUMAN RIGHTS DEPARTMENT to obtain
and examine copies of all documents and records contained by the Federal Bureau of
Investigation (FBI) pertaining to Abdel Elnashar." In the FBI's response to the HR
Department, the FBI disclosed that it had records which were responsive to the request
for records and that the records were contained in the "PENTBOMB" investigation,
"relating to the terrorist attacks on September 11, 2001, which is considered a pending

                                         -4-
investigation and which involves an ongoing prosecution." This disclosure was made
in accordance with Elnashar's release. The FBI did not disclose whether Elnashar was
an informant, victim, witness, or suspect. It simply stated the location of the
documents that contained mention of Elnashar, revealed by an automated search, and
why the records could not be released. In a response to a request accompanied by
written consent, the FBI complied with its duties under the Privacy Act. 5 U.S.C. §§
552a(b) and (e)(6).

      C.     The Request for Judicial Expungement

       Elnashar has also asked that the district court order expungement of any FBI
records about him. He argues that the district court erred in determining that Elnashar
must exhaust his administrative remedies before seeking judicial amendment of those
records. Elnashar has not requested that the FBI amend his records; therefore the
district court correctly determined that it did not have jurisdiction under 5 U.S.C. §
552a(g)(1)(A). Whittle v. Moschella, 756 F. Supp. 589, 596 (D.D.C.1991) (holding
that administrative request for amendment and subsequent denial "is a necessary
prerequisite to the Court's jurisdiction [which] is explicit in the Privacy Act").
Elnashar, however, asserts that since expungement is not a specific remedy available
under the Privacy Act, the exhaustion requirement should be waived because
exhaustion of administrative remedies would be futile in this instance. This argument
has no merit, because Elnashar can still request amendment, including expungement,
under the Privacy Act. 5 U.S.C. § 552a(d)(2). If his request is denied, then he can
pursue his claim in the district court.

      D.     Review of the Unredacted Record

      Finally, Elnashar sought access to a full, unredacted record, based on the
Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), and the Privacy Act, 5 U.S.C.



                                         -5-
§§ 552a(d)(1) and (g)(1)(B). Elnashar requested the name of the reporting individual
from the FBI, and his request was denied. This denial was not appealed.

       Elnashar argues that the district court erred by failing to make a de novo review
of an agency decision. The district court granted judgment on the pleadings in favor
of the FBI and DOJ for the access claim, because Elnashar had failed to exhaust his
administrative remedies.2 Elnashar argues that since he was entitled to a judicial
review of the unredacted FBI record, the district court necessarily could not grant
judgment on the pleadings, because the unredacted records were not part of the
pleadings. The district court relied on a magistrate judge's order to determine that
Elnashar did not exhaust his administrative remedies because he did not
administratively appeal his request for records. Because the district court may look
to public records not contradictory to the complaint, in a motion for judgment on the
pleadings, Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999), the
district court used a correct methodology to determine that Elnashar did not exhaust
his administrative remedies in seeking access to his records, which is a prerequisite
to bringing suit. 5 U.S.C. § 552(a)(6)(A); 5 U.S.C. § 552a(f)(4); Brumley v. United
States Dep't of Labor, 767 F.2d 444, 445 (8th Cir. 1985) (per curiam); 28 C.F.R. §
16.45(c).

III.   CONCLUSION

      We have carefully reviewed all of Elnashar's allegations of error, and find they
are without merit. Accordingly, we affirm.




       2
      Because the issue was not squarely presented or briefed, we do not decide
whether Elnashar actually failed to exhaust his administrative remedies, nor whether
exhaustion would have been futile for his access claim.

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