[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Rules and Regulations]
[Pages 4642-4644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2299]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Privacy Act Regulations; Implementation
AGENCY: Tennessee Valley Authority.
ACTION: Final rule.
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SUMMARY: The Tennessee Valley Authority (TVA) amends its regulations
implementing the Privacy Act of 1974 (the Act), 5 U.S.C. 552a. These
amendments are needed to modify existing TVA regulations to exempt a
system of records known as TVA Police Records (TVA-37) from certain
provisions of the Act and corresponding agency regulations.
EFFECTIVE DATE: January 31, 1997.
FOR FURTHER INFORMATION: Wilma H. McCauley, (423) 751-2523.
SUPPLEMENTARY INFORMATION: These amendments allow exemptions authorized
by the Act, 5 U.S.C. 552a(j)(2) and (k)(2), for the TVA Police
Records--TVA system of records under 5 U.S.C. 552a(k)(2). Under
subsections (j)(2) and (k)(2) of the Act, TVA, through rulemaking, may
exempt those systems of records maintained by a component of TVA that
performs as its principal function any activity pertaining to the
enforcement of criminal laws from certain provisions of the Act, if the
system of records is used for certain law enforcement purposes.
The TVA Police is a component of TVA that performs as one of its
principal functions investigations into violations of criminal law in
connection with TVA's programs and operations, pursuant to the Violent
Crime Control and Law Enforcement Act of 1994, as amended, the TVA
Police Records system of records falls within the scope of subsections
(j)(2); i.e., information compiled for the purpose of criminal
investigation, reports relating to any stage of the enforcement
process, and information compiled for the identification of individual
criminals, and (k)(2); i.e., investigatory material compiled for law
enforcement purposes, other than material within the scope of (k)(2)
above.
The (j)(2) and (k)(2) exemptions for criminal law enforcement
records remove restrictions on the manner in which information may be
collected and the type of information that may be collected by the TVA
Police in the course of a criminal investigation, limit certain notice
requirements, and exempt the system of records from civil remedies for
violations of the Act. These additional exemptions are necessary
primarily to avoid premature disclosure of sensitive information,
including, but not limited to, the existence of a criminal
investigation, that may compromise or impede the investigation.
A more complete explanation of each exemption follows, as required
by the Act.
TVA adds the following to the current exemptions contained in 18
CFR 1301.24.
Exemptions Pursuant to (j)(2) and (k)(2)
TVA has determined that the TVA Police Records should be exempt
from the following provisions of the Privacy Act and corresponding
agency regulations. These exemptions are necessary and appropriate to
maintain the integrity and confidentiality of criminal investigations.
TVA will use the (j)(2) and (k)(2) exemptions for the following
reasons: (a) 5 U.S.C. 552a(c)(3) requires an agency to make the
accounting of each disclosure of records available to the individual
named in the record at his/her request. This accounting must state the
date, nature and purpose of each disclosure of a record and the name
and address of the recipient. Accounting for each disclosure could
alert the subject of an investigation to the existence and nature of
the investigation and reveal investigative or prosecutive interest by
other agencies, particularly in a joint-investigation situation. This
could seriously impede or compromise the investigation and case
preparation by prematurely revealing its existence and nature;
compromise or interfere with witnesses or make witnesses reluctant to
cooperate with the investigators; lead to suppression, alteration,
fabrication, or destruction of evidence; and endanger the physical
safety of confidential sources, witnesses, law enforcement personnel
and their families.
(b) 5 U.S.C. 552a(c)(4) requires an agency to inform outside
parties of correction of and notation of disputes about information in
a system in accordance with subsection (d) of the Privacy Act. Since
this system of records is already exempted from the access provisions
of subsection (d) of the Privacy Act, this section is not properly
applicable.
(c) 5 U.S.C. 552a (d) and (f) require an agency to provide access
to records, make corrections and amendments to
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records, and notify individuals of the existence of records upon their
request. Providing individuals with access to records of an
investigation and the right to contest the contents of those records
and force changes to be made to the information contained therein would
seriously interfere with and thwart the orderly and unbiased conduct of
the investigation and impede case preparation. Providing the access
normally afforded under the Privacy Act would provide the subject with
valuable information that would allow interference with or compromise
of witnesses or render witnesses reluctant to cooperate with
investigators; lead to suppression, alteration, fabrication, or
destruction of evidence; endanger the physical safety of confidential
sources, witnesses, law enforcement personnel and their families; and
result in the secreting of or other disposition of assets that would
make them difficult or impossible to reach to satisfy any Government
claims growing out of the investigation.
(d) 5 U.S.C. 552a(e)(1) requires an agency to maintain in agency
records only ``relevant and necessary'' information about an
individual. This provision is inappropriate for investigations, because
it is not always possible to detect the relevance or necessity of each
piece of information in the early stages of an investigation. In some
cases, it is only after the information is evaluated in light of other
evidence that its relevance and necessity will be clear. In other
cases, what may appear to be a relevant and necessary piece of
information may become irrelevant in light of further investigation.
In addition, during the course of an investigation, the
investigator may obtain information that relates primarily to matters
under the investigative jurisdiction of another agency (e.g., the
fraudulent use of Social Security numbers), and that information may
not be reasonably segregated. In the interest of effective law
enforcement, TVA Police should retain this information, since it can
aid in establishing patterns of criminal activity and can provide
valuable leads for Federal and other law enforcement agencies.
(e) 5 U.S.C. 552a(e)(2) requires an agency to collect information
to the greatest extent practicable directly from the subject
individual, when the information may result in adverse determinations
about an individual's rights, benefits and privileges under Federal
programs. The general rule that information be collected ``to the
greatest extent practicable'' from the target individual is not
appropriate in investigations. TVA Police should be authorized to use
their professional judgment as to the appropriate sources and timing of
an investigation. Often it is necessary to conduct an investigation so
that the target does not suspect that he or she is being investigated.
The requirement to obtain the information from the targeted individual
may put the suspect on notice of the investigation and thereby thwart
the investigation by enabling the suspect to destroy evidence and take
other action that would impede the investigation. This requirement may
also in some cases preclude TVA Police from gathering information and
evidence before interviewing an investigative target in order to
maximize the value of the interview by confronting the target with the
evidence or information. Moreover, in certain circumstances the subject
of an investigation cannot be required to provide information to
investigators and information must be collected from other sources.
Furthermore, it is often necessary to collect information from sources
other than the subject of the investigation to verify the accuracy of
the evidence collected.
In addition, the statutory term ``to the greatest extent
practicable'' is a subjective standard, and it is impossible adequately
to define the term so that individual TVA Police investigators can
consistently apply it to the many fact patterns presented in TVA Police
investigations.
(f) 5 U.S.C. 552a(e)(3) requires an agency to inform each person
whom it asks to supply information, on a form that can be retained by
the person, of the authority under which the information is sought and
whether disclosure is mandatory or voluntary; of the principal purpose
for which the information is intended to be used; of the routine uses
which may be made of the information; and of the effects on the person,
if any, of not providing all or any part of the requested information.
The application of this provision could provide the subject of an
investigation with substantial information about the nature of that
investigation that could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise an undercover investigation by revealing
its existence and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(g) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record and
how to contest its content. Since these systems of records are being
exempted from subsection (f) of the Act, concerning agency rules, and
subsection (d) of the Act, concerning access to records, these
requirements are inapplicable to the extent that these systems of
records will be exempted from these subsections. Although the system
would be exempt from these requirements, TVA Police has published
information concerning its notification, access, and contest procedures
because, under certain circumstances, TVA Police could decide it is
appropriate for an individual to have access to all or a portion of
his/her records in these systems of records.
(h) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of
the categories of sources or records in the system of records. To the
extent that this provision is construed to require more detailed
disclosure than the broad, generic information currently published in
the system notice, an exemption from this provision is necessary to
protect the confidentiality of sources of information, to protect
privacy and physical safety of witnesses and informants, and to avoid
the disclosure of investigative techniques and procedures. TVA Police
will, nevertheless, publish such a notice in broad generic terms.
(i) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making any
determination about the individual. Much the same rationale is
applicable to this exemption as that set out previously in item (d)
(duty to maintain in agency records only ``relevant and necessary''
information about an individual). While the TVA Police make every
effort to maintain records that are accurate, relevant, timely, and
complete, it is not always possible in an investigation to determine
with certainty that all the information collected is accurate,
relevant, timely, and complete. During a thorough investigation, a
trained investigator would be expected to collect allegations,
conflicting information, and information that may not be based upon the
personal knowledge of the provider. At the point of determination to
refer the matter to a prosecutive agency, for example, that information
would be in the system of records, and it may not be possible until
further investigation is conducted, or indeed in many cases until after
a trial
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(if at all), to determine the accuracy, relevance, and completeness of
some information. This requirement would inhibit the ability of trained
investigators to exercise professional judgment in conducting a
thorough investigation. Moreover, fairness to affected individuals is
assured by the due process they are accorded in any trial or other
proceeding resulting from the TVA Police investigation.
(j) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available under compulsory legal process when such
process becomes a matter of public record. Compliance with this
provision could prematurely reveal and compromise an ongoing criminal
investigation to the target of the investigation and reveal techniques,
procedures, or evidence.
(k) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails
to comply with the requirements concerning access to records under
subsections (d) (1) and (3) of the Act; maintenance of records under
subsection (e)(5) of the Act; and any other provision of the Act, or
any rule promulgated thereunder, in such a way as to have an adverse
effect on an individual. Allowing civil lawsuits for alleged Privacy
Act violations by TVA Police would compromise TVA Police investigations
by subjecting the sensitive and confidential information in the TVA
Police Records to the possibility of inappropriate disclosure under the
liberal civil discovery rules. That discovery may reveal confidential
sources, the identity of informants, and investigative procedures and
techniques, to the detriment of the particular criminal investigation
as well as other investigations conducted by the TVA Police.
The pendency of such a suit would have a chilling effect on
investigations, given the possibility of discovery of the contents of
the investigative case file, and a Privacy Act lawsuit could therefore
become a ready strategic weapon used to impede TVA Police
investigations. Furthermore, since, under the current regulations, the
system is exempt from many of the Act's requirements, it is unnecessary
and contradictory to provide for civil remedies from violations of
those provisions in particular.
This final rule has been reviewed under Executive Order No. 12291
and has been determined not to be a ``major rule'' since it will not
have an annual effect on the economy of $100 million or more.
In addition, it has been determined that this final rule will not
have a significant economic impact on a substantial number of small
entities.
List of Subjects in 18 CFR Part 1301
Administrative practice and procedure, Freedom of Information,
Privacy Act, Sunshine Act.
For the reasons set forth in the preamble, 18 CFR Ch. XIII, part
1301, is amended as follows:
PART 1301--PROCEDURES
1. The authority citation for part 1301 continues to read as
follows:
Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.
Sec. 1301.24 [Amended]
2. Section 1301.24(e) is added to read as follows:
* * * * *
(e) The TVA system TVA Police Records is exempt from subsections
(c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a
(section 3 of the Privacy Act) and corresponding sections of these
rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is
exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G),
(H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2).
This system is exempt because application of these provisions might
alert investigation subjects to the existence or scope of
investigations, lead to suppression, alteration, fabrication, or
destruction of evidence, disclose investigative techniques or
procedures, reduce the cooperativeness or safety of witnesses, or
otherwise impair investigations.
William S. Moore,
Senior Manager, Administrative Services.
[FR Doc. 97-2299 Filed 1-30-97; 8:45 am]
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