[Federal Register Volume 61, Number 219 (Tuesday, November 12, 1996)]
[Proposed Rules]
[Pages 58018-58020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28905]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Privacy Act Regulations; Implementation
AGENCY: Tennessee Valley Authority.
ACTION: Proposed rule.
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SUMMARY: The Tennessee Valley Authority (TVA) proposes to amend its
regulations implementing the Privacy Act of 1974 (the Act), 5 U.S.C.
552a. These amendments are needed to modify existing TVA regulations
(18 CFR 1301.24) to exempt a system of records known as TVA Police
Records (TVA-37) from certain provisions of the Act and corresponding
agency regulations.
DATES: Comments must be received on or before December 12, 1996.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Wilma H. McCauley, TVA 1101 Market Street, (WR 4Q-C),
Chattanooga, Tennessee 37402-2801. As a convenience to commenters, TVA
will accept public comments transmitted by facsimile (``FAX'') machine.
The telephone number of the FAX receiver is (423) 751-3400. Receipt of
FAX transmittals will not be acknowledged.
FOR FURTHER INFORMATION CONTACT: Wilma H. McCauley, (423) 751-2523.
SUPPLEMENTARY INFORMATION: The proposed amendments would 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 proposed (j)(2) and (k)(2) exemptions for criminal law
enforcement records would 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,
would limit certain notice requirements, and would 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 proposed exemption follows, as
required by the Act.
TVA proposes the following changes 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.
[[Page 58019]]
TVA proposes use of 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 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,
[[Page 58020]]
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 proposed 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 (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 and proposed
regulations, the system would be 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 proposed 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 proposed rule will
not have a significant economic impact on a substantial number of small
entities.
List of Subjects in 18 CFR Part 31
Administrative practice and procedure, Freedom of Information,
Privacy Act, Sunshine Act.
For the reasons set forth in the preamble, it is proposed to amend
18 CFR chapter XIII, part 1301, 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. 96-28905 Filed 11-8-96; 8:45 am]
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