05-22640. Privacy Act of 1974; Implementation

AGENCY:

Department of Justice.

ACTION:

Proposed rule.

SUMMARY:

The Department of Justice, Tax Division, proposes to amend 28 CFR part 16 to exempt a newly revised Privacy Act system of records entitled “Files of Applicants For Attorney and Non-Attorney Positions with the Tax Division, Justice/TAX-003,” as described in today's notice section of the Federal Register, from 5 U.S.C. 552a(c)(3), (d)(1), and (e)(1). The exemptions will be applied only to the extent that information in a record is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) and (k)(5). The exemptions are necessary to protect the confidentiality of employment records. The Department also proposes to delete as obsolete provisions exempting two former Tax Division systems of records: “Freedom of Information/Privacy Act Request Files, Justice/TAX-004;” and “Tax Division Special Project Files, Justice/TAX-005.” The records in Tax-004 are now covered by a Departmentwide system notice, “Freedom of Information Act, Privacy Act, and Mandatory Declassification Review Requests and Administrative Appeals, DOJ-004”. The relevant records in TAX-005 are now part of the revised system entitled “Criminal Tax Case Files, Special Project Files, Docket Cards, and Associated Records, Justice/TAX-001.”

DATES:

Submit any comments by December 27, 2005.

ADDRESSES:

Address all comments to Mary Cahill, Management and Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530 (1400 National Place Building), Facsimile Number [phone]. To ensure proper handling, please reference the AAG/A Order No. on your correspondence. You may view an electronic version of this proposed rule at http://www.regulations.gov. You may also comment via the Internet to the DOJ/Justice Management Division at the following e-mail address: [e-mail]; or by using the http://www.regulations.gov comment form for this regulation. When submitting comments electronically, you must include the AAG/A Order No. in the subject box.

FOR FURTHER INFORMATION CONTACT:

Mary Cahill, [phone].

SUPPLEMENTARY INFORMATION:

This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this order will not have a significant economic impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 16

• Administrative Practices and Procedures
• Courts
• Freedom of Information
• Sunshine Act and Privacy

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, it is proposed to amend 28 CFR part 16 as follows:

PART 16—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

1. The authority for part 16 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b(g), and 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, and 9701.

2. Section 16.93 is amended by:

a. Removing the first sentence of paragraph (a)(2);

b. Revising paragraph (b) introductory text;

c. Revising paragraphs (e) and (f).

Therefore, amend the section to read as follows:

§ 16.93

Exemption of Tax Division Systems—limited access.

* * * * *

(b) The system of records listed under paragraph (a)(1) of this section is exempted for the reasons set forth below, from the following provisions of 5 U.S.C. 552a:

* * * * *

(e) The following system of records is exempt from subsections (c)(3), (d)(1), and (e)(1) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2) and (k)(5): Files of Applicants for Attorney and Non-Attorney Positions with the Tax Division, Justice/TAX-003. These exemptions apply only to the extent that information in a record is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) and (k)(5).

(f) Exemption from the particular subsections is justified for the following reasons:

(1) From subsection (c)(3) because an accounting could reveal the identity of confidential sources and result in an unwarranted invasion of the privacy of others. Many persons are contacted who, without an assurance of anonymity, refuse to provide information concerning an applicant for a position with the Tax Division. Disclosure of an accounting could reveal the identity of a source of information and constitutes a breach of the promise of confidentiality by the Tax Division. This would result in the reduction in the free flow of information vital to a determination of an applicant's qualifications and suitability for federal employment.

(2) From subsection (d)(1) because disclosure of records in the system could reveal the identity of confidential sources and result in an unwarranted invasion of the privacy of others. Many persons are contacted who, without an assurance of anonymity, refuse to provide information concerning an applicant for a Tax Division position. Access could reveal the identity of the source of the information and constitute a breach of the promise of confidentiality on the part of the Tax Division. Such breaches ultimately would restrict the free flow of information vital to a determination of an applicant's qualifications and suitability.

(3) From subsection (e)(1) because in the collection of information for investigation and evaluative purposes, it is impossible to determine in advance what exact information may be of assistance in determining the qualification and suitability of an applicant. Information which may appear irrelevant, when combined with other seemingly irrelevant information, can on occasion provide a composite picture of an applicant for a position which assists in determining whether the applicant should be hired.

Dated: November 7, 2005.

Paul R. Corts,

Assistant Attorney General for Administration.