[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Rules and Regulations]
[Pages 6317-6318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3680]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 114-96]
Exemption of Records System Under the Privacy Act
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is exempting a Privacy Act system of
records from subsections (c) (3) and (4), (d), (e) (1), (2), and (3),
(e)(5) and (e)(8), and (g) of the Privacy Act, 5 U.S.C. 552a. This
system of records is the ``Bureau of Prisons, Office of Internal
Affairs Investigative Records, Justice/BOP-012.'' Information in this
system relates to official Federal investigations and law enforcement
matters of the Office of Internal Affairs (OIA) of the Federal Bureau
of Prisons (BOP), pursuant to the Inspector General Act of 1978, 5
U.S.C. App., as amended by the Inspector General Act amendments of
1988. The exemptions are necessary to avoid interference with the law
enforcement functions of the BOP. Specifically, the exemptions are
necessary to prevent subjects of investigations from frustrating the
investigatory process; to preclude the disclosure of investigative
techniques; to protect the identities and physical safety of
confidential informants and of law enforcement personnel; to ensure
OIA's ability to obtain information from information sources; to
protect the privacy of third parties; and to safeguard classified
information as required by Executive Order 12356.
EFFECTIVE DATE: February 20, 1996.
FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, 202-616-0178.
SUPPLEMENTARY INFORMATION: On August 29, 1995 (60 FR 44901), a proposed
rule with invitation to comment was published in the Federal Register.
One late comment was received in which the individual was under the
erroneous impression that the exemption of a Privacy Act system of
records is promulgated to protect the record from disclosure to third
parties. Subsection (b) of the Privacy Act already prohibits disclosure
to third parties, except as otherwise expressly authorized by that
subsection. As permitted by subsections (j) and (k) of the Privacy Act,
the proposed rule was promulgated to permit BOP, where necessary and
appropriate, to exempt itself from certain of the Act's provisions as
they apply to the record subject. The exemptions are essential for the
reasons stated in this final rule.
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, it is hereby stated that the 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 Act, Government in the Sunshine Act, and the Privacy Act.
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,
28 CFR part 16 is amended as set forth below.
Dated: February 7, 1996.
Stephen R. Colgate,
Assistant Attorney General for Administration.
PART 16--[AMENDED]
1. The authority 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.
2. 28 CFR 16.97 is amended by adding paragraphs (g) and (h) to read
as follows:
Sec. 16.97 Exemption of the Federal Bureau of Prisons (BOP) Systems-
limited access.
* * * * *
(g) The following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4),
(d), (e) (1), (2), and (3), (e)(5) and (e)(8), and (g) of 5 U.S.C.
552a. In addition, the following system of records is exempt pursuant
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections
(c)(3), (d), and (e)(1) of 5 U.S.C. 552a:
Bureau of Prisons, Office of Internal Affairs Investigative Records,
JUSTICE/BOP-012
(h) 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),
(k)(1), and (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, e.g., public source materials, the applicable
exemption may be waived, either partially or totally, by the Office of
Internal Affairs (OIA). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) because release of disclosure accounting
could alert the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to the existence of the
investigation and the fact that they are subjects of the investigation,
and reveal investigative interest by not only the OIA but also by the
recipient agency. Since release of such information to the subjects of
an investigation would provide them with significant information
concerning the nature of the investigation, release could result in
activities that would impede or compromise law enforcement such as: the
destruction of documentary evidence; improper influencing of witnesses;
endangerment of the physical safety of confidential sources, witnesses,
and law enforcement personnel; fabrication of testimony; and flight of
the subject from the area. In addition, release of disclosure
accounting could result in the release of properly classified
information which could compromise the national defense or disrupt
foreign policy.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
provide the subject of an investigation with information concerning law
enforcement activities such as that relating to an actual or potential
criminal, civil or regulatory violation; the existence of an
investigation; the
[[Page 6318]]
nature and scope of the information and evidence obtained as to his
activities; the identity of confidential sources, witnesses, and law
enforcement personnel; and information that may enable the subject to
avoid detection or apprehension. Such disclosure would present a
serious impediment to effective law enforcement where they prevent the
successful completion of the investigation; endanger the physical
safety of confidential sources, witnesses, and law enforcement
personnel; and/or lead to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony. In addition,
granting access to such information could disclose security-sensitive
or confidential business information or information that would
constitute an unwarranted invasion of the personal privacy of third
parties. Finally, access to the records could result in the release of
properly classified information which could compromise the national
defense or disrupt foreign policy. Amendment of the records would
interfere with ongoing investigations and law enforcement activities
and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated.
(4) From subsection (e)(1) because the application of this
provision could impair investigations and interfere with the law
enforcement responsibilities of the OIA for the following reasons:
(i) It is not possible to detect relevance or necessity of specific
information in the early stages of a civil, criminal or other law
enforcement investigation, case, or matter, including investigations in
which use is made of properly classified information. Relevance and
necessity are questions of judgment and timing, and it is only after
the information is evaluated that the relevance and necessity of such
information can be established.
(ii) During the course of any investigation, the OIA may obtain
information concerning actual or potential violations of laws other
than those within the scope of its jurisdiction. In the interest of
effective law enforcement, the OIA should retain this information as it
may aid in establishing patterns of criminal activity, and can provide
valuable leads for Federal and other law enforcement agencies.
(iii) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may relate also to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(5) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to
destroy evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation
cannot be required to provide information to investigators, and
information relating to a subject's illegal acts, violations of rules
of conduct, or any other misconduct must be obtained from other
sources.
(iii) In any investigation it is necessary to obtain evidence from
a variety of sources other than the subject of the investigation in
order to verify the evidence necessary for successful litigation.
(6) From subsection (e)(3) because the application of this
provision would provide the subject of an investigation with
substantial information which could impede or compromise the
investigation. Providing such notice to a subject of an investigation
could interfere with an undercover investigation by revealing its
existence, and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) From subsection (e)(5) because the application of this
provision would prevent the collection of any data not shown to be
accurate, relevant, timely, and complete at the moment it is collected.
In the collection of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Material which may seem unrelated,
irrelevant, or incomplete when collected may take on added meaning or
significance as an investigation progresses. The restrictions of this
provision could interfere with the preparation of a complete
investigation report, and thereby impede effective law enforcement.
(8) From subsection (e)(8) because the application of this
provision could prematurely reveal an ongoing criminal investigation to
the subject of the investigation, and could reveal investigation
techniques, procedures, and/or evidence.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
[FR Doc. 96-3680 Filed 2-16-96; 8:45 am]
BILLING CODE 4410-05-M
