2013-03693. Privacy Act of 1974; Implementation

AGENCY:

Federal Bureau of Prisons, Department of Justice.

ACTION:

Final rule.

SUMMARY:

The Department of Justice (DOJ or Department), Federal Bureau of Prisons (BOP), is issuing a final rule for the modified system of records notice entitled “Inmate Central Records System” (ICRS) (JUSTICE/BOP-005). This system is being exempted from certain subsections of the Privacy Act of 1974 listed below for the reasons set forth in the following text.

DATES:

Effective: February 19, 2013.

FOR FURTHER INFORMATION CONTACT:

Wanda M. Hunt, FOIA/Privacy Act Chief, Federal Bureau of Prisons, 202-514-6655.

SUPPLEMENTARY INFORMATION:

On April 26, 2012, at 77 FR 24982, the Department published an updated Privacy Act system of records notice (SORN) for the ICRS, a BOP SORN originally published on August 27, 1975 (40 FR 38704). The proposed SORN amendments reflected overall modernization and technological changes of BOP's information system, and included updates to system routine uses. On April 26, 2012, at 77 FR 24878, the Department also published a proposed rule to amend 28 CFR 16.97, which had previously established exemptions of the ICRS from various Privacy Act provisions, as expressly authorized by Privacy Act subsection (j). The proposed rule did not significantly change the previously established ICRS exemptions from Privacy Act subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(H), (5), and (8); (f); and (g). In addition to such exemptions, the proposed rule sought to exempt ICRS from Privacy Act subsections (e)(4)(G) and (I), add exemptions pursuant to Privacy Act subsection (k)(2), and made general editorial revisions to the reasons for the already existing ICRS exemptions. Public comments were invited. Comments on the proposed SORN changes were to be submitted by May 29, 2012 (77 FR 24982); comments on the proposed rule were to be received by the Department's designated recipient by May 29, 2012 (77 FR 24878).

The Department received comments from one member of the public. Although some of the comments received pertain to the applicability of exemptions to this SORN, the comments reference only the Federal Register citation for the proposed SORN modifications and not the proposed rule. Moreover, the comments were not received timely with regard to the proposed rule. Accordingly, the Department has carefully reviewed and analyzed these comments in the context of the SORN, but declines to adopt them and hereby implements the proposed rule without substantive change.

The comments received to the SORN address four main issues: (1) The routine use disclosures to the news media and public; (2) the routine use disclosures to health care agencies/professionals; (3) the inapplicability of 5 U.S.C. 552a(j); and (4) the inapplicability of 5 U.S.C. 552a(k). Responses to the comments are set forth below.

First, the commenter objected to the scope and lack of specificity of two new routine uses, namely routine use (r) for disclosures to the news media and the public, and new routine use (t) for disclosures to health care agencies/professionals. The Department, however, maintains that these routine uses provide appropriate specificity, as each routine use indicates the purpose for permissible disclosures and incorporates a defined standard that further limits disclosures to data relevant to each routine use's particular purpose.

Second, the commenter objected to disclosure of medical information without an individual's consent. The Department understands the sensitivity of medical information of former/current inmates, and thus, has instituted safeguards appropriate for this kind of information. The Department considers the health care disclosures encompassed in routine use (t) to be lawful, appropriate, and necessary to meet BOP's responsibilities for the safekeeping, care, and custody of incarcerated (and formerly incarcerated) persons and for the continued safety and security of federal prisons and the public.

The commenter also objected to the applicability of 5 U.S.C. 552a (j) and (k). Subsection (j)(2) of the Privacy Act covers records created and maintained by the BOP. This subsection includes records maintained by any component that performs as its principal function any activity pertaining to the enforcement of criminal laws, including activities of correctional authorities (e.g. BOP). Further specified in subsection (j)(2) are the types of records that may be exempted, which include, for example: information compiled for the purpose of identifying individual criminal offenders and alleged offenders, including the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; and reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. Such records comprise the vast majority of records in the ICRS. Any ICRS records that would not be within the scope of subsection (j)(2) might nonetheless come within the scope of subsection (k)(2), and thus, are appropriately subject to the (k)(2)-based exemptions that have now being established by this final rule. Moreover, the sections of the SORN that reflect the exemptions established by the underlying rule must necessarily conform to the exemption provisions finalized by this final rule.

Additionally, as suggested by the commenter, the Department proposed, and hereby includes in paragraph 16.97(k) of the final rule, that the exemptions apply only to the extent that information in this system is subject to exemption under these subsections.

Finally, the commenter alleged that the Department failed to provide a statement of reasons for the exemptions as required by the Privacy Act. However, the Department detailed the reasons for each exemption in paragraphs 16.97(k)(1)-(12) of both the proposed rule and final rule below. The SORN incorporates this underlying information via the section for “Exemptions Claimed for the System,” which expressly references the rule. Accordingly, the Department hereby declines to adopt changes to the ICRS SORN, and implements this corresponding exemption regulation without substantive change as set forth below.

List of Subjects in 28 CFR Part 16

• Administrative practice and procedure
• Courts
• Freedom of information
• Privacy
• Sunshine Act

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 28 CFR part 16 is amended as follows:

PART 16—[AMENDED]

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

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

Subpart E—Exemption of Records Systems Under the Privacy Act

2. Amend § 16.97 by revising paragraphs (a)(4) through (7) and (j) and (k) to read as follows:

§ 16.97

Exemption of Bureau of Prisons Systems—limited access.

(a) * * *

(4) Inmate Commissary Accounts Record System (JUSTICE/BOP-006).

(5) Inmate Physical and Mental Health Record System (JUSTICE/BOP-007).

(6) Inmate Safety and Accident Compensation Record System (JUSTICE/BOP-008).

(7) Federal Tort Claims Act Record System (JUSTICE/BOP-009).

* * * * *

(j) The following system of records is exempt pursuant to 5 U.S.C. 552a(j) and (k) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H), and (I), (5), (8); (f); and (g): Inmate Central Records System (JUSTICE/BOP-005).

(k) These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and/or (k)(2). Where compliance would not appear to interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, the applicable exemption may be waived, either partially or totally, by the BOP. Exemptions from the particular subsections are justified for the following reasons:

(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because this system is exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures from records concerning the subject individual would specifically reveal any investigative interest in the individual. Revealing this information may thus compromise ongoing law enforcement efforts, as well as efforts to identify and defuse any potential acts of terrorism. Revealing this information may also permit the subject individual to take measures to impede the investigation, such as destroying evidence, intimidating potential witnesses, or fleeing the area to avoid the investigation.

(2) From subsection (c)(4) notification requirements because this system is exempt from the access and amendment provisions of subsection (d).

(3) From subsections (d)(1), (2), (3), and (4), because these provisions concern individual access to and amendment of records, compliance with which could jeopardize the legitimate correctional interests of safety, security, and good order of prison facilities; alert the subject of a suspicious activity report of the fact and nature of the report and any underlying investigation and/or the investigative interest of the BOP and other law enforcement agencies; interfere with the overall law enforcement process by leading to the destruction of evidence, improper influencing of witnesses, and/or flight of the subject; possibly identify a confidential source or disclose information which would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigative or intelligence technique; or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Although the BOP has rules in place emphasizing that records should be kept up to date, the requirement for amendment of these records would interfere with ongoing law enforcement activities and impose an impossible administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.

(4) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for the proper safekeeping, care, and custody of incarcerated persons, and for the proper security and safety of federal prisons and the public. In addition, to the extent that the BOP may collect information that may also be relevant to the law enforcement operations of other agencies, in the interests of overall, effective law enforcement, such information should be retained and made available to those agencies with such relevant responsibilities.

(5) From subsections (e)(2) because the nature of criminal investigative and correctional activities is such that vital information about an individual can be obtained from other persons who are familiar with such individual and his/her activities. In such investigations and activities, it is not feasible to rely solely upon information furnished by the individual concerning his/her own activities since it may result in inaccurate information and compromise ongoing criminal investigations or correctional management decisions.

(6) From subsections (e)(3) because in view of BOP's operational responsibilities, the application of this provision would provide the subject of an investigation or correctional matter with significant information which may in fact impede the information gathering process or compromise ongoing criminal investigations or correctional management decisions.

(7) From subsections (e)(4)(G) and (H) because this system is exempt from the access provisions of subsection (d).

(8) From subsection (e)(4)(I) because publishing further details regarding categories of sources of records in the system may compromise ongoing investigations, reveal investigatory techniques and descriptions of confidential informants, or constitute a potential danger to the health or safety of law enforcement personnel.

(9) From subsection (e)(5) because in the collection and maintenance of information for law enforcement purposes, it is difficult to determine in advance what information is accurate, relevant, timely, and complete. Data which may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance during the course of an investigation or with the passage of time, and could be relevant to future law enforcement decisions. In addition, because many of these records come from courts and other state and local criminal justice agencies, it is administratively impossible for them and the BOP to ensure compliance with this provision. The restrictions of subsection (e)(5) would restrict and delay trained correctional managers from timely exercising their judgment in managing the inmate population and providing for the safety and security of the prisons and the public.

(10) From subsection (e)(8), because to require individual notice of disclosure of information due to a compulsory legal process would pose an impossible administrative burden on BOP and may alert subjects of investigations, who might otherwise be unaware, to the fact of those investigations.

(11) From subsection (f) to the extent that this system is exempt from the provisions of subsection (d).

(12) From subsection (g) to the extent that this system is exempted from other provisions of the Act.

* * * * *

Dated: February 12, 2013.

Joo Y. Chung,

Acting Chief Privacy and Civil Liberties Officer, United States Department of Justice.