[Federal Register Volume 59, Number 110 (Thursday, June 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14012]
[[Page Unknown]]
[Federal Register: June 9, 1994]
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PART 0--[AMENDED]
28 CFR Part 16
[AAG/A Order No. 88-94]
Exemption of System of Records Under the Privacy Act
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice, Drug Enforcement Administration
(DEA) amends its Privacy Act Regulations. First, DEA removes the
exemptions from subsections (e)(4), (G), (H), (f), and (h) of the
Privacy Act (5 U.S.C. 552a). Second, DEA is providing a greater degree
of specificity with respect to the reasons given for those exemptions
which have been retained, and with respect to subsections (j) and (k)
of the Act upon which such exemptions are based.
The exemptions from subsections (e)(4)(G), (H), and (f), and (h)
are removed because they are unnecessary in that DEA complies with the
provisions thereof. The additional specificity is provided regarding
the remaining exemptions (and the subsections upon which they are
based) to provide clarity and add to public understanding.
Information in this system relates to official Federal
investigations and matters of law enforcement of the DEA and the
exemptions are necessary to avoid interference with DEA's law
enforcement responsibilities. Reasons for the exemptions are set forth
in the text below.
EFFECTIVE DATE: June 9, 1994.
FOR FURTHER INFORMATION CONTACT:
Patricia E. Neely on (202) 616-0178.
SUPPLEMENTARY INFORMATION: The revisions to 28 CFR 16.98 affect twelve
DEA Privacy Act systems of records, including the Investigative
Reporting and Filing System, Justice/DEA-008. A revised description of
that system is published in today's Federal Register. 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.''
In addition, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), it has been
determined that it is impracticable and unnecessary to provide for
public comment and that it is not in the public interest to delay the
effective date of this rule.
List of Subjects in Part 16
Administrative practices and procedure, Courts, Freedom of
Information Act, Government in the Sunshine Act, 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 16.98 is revised as set forth below.
Dated: June 3, 1994.
Stephen R. Colgate,
Assistant Attorney General for Administration.
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 16.98 is revised as set forth below.
Sec. 16.98 Exemption of the Drug Enforcement Administration (DEA)--
limited access.
(a) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (d):
(1) Automated Records and Consummated Orders System/Diversion
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
(2) Controlled Substances Act Registration Records (Justice/DEA-
005)
(3) Registration Status/Investigatory Records (Justice/DEA-012)
(b) These exemptions apply only to the extent that information in
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because release of the disclosure
accounting would enable the subject of an investigation to gain
valuable information concerning the nature and scope of the
investigation and seriously hamper the regulatory functions of the DEA.
(2) From subsection (d) because access to records contained in
these systems may provide the subject of an investigation information
that could enable him to avoid compliance with the Drug Abuse
Prevention and Control Act of 1970 (Pub. L. 91-513).
(c) Systems of records identified in paragraphs (c)(1) through
(c)(6) below are exempted 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), (e)(8) and (g) of 5 U.S.C. 552a. In addition, systems of
records identified in paragraphs (c)(1), (c)(3), (c)(4), and (c)(5)
below are also exempted pursuant to the provisions of 5 U.S.C.
552a(k)(2) from subsections (c)(3), (d) and (e)(1). Finally, systems of
records identified in paragraphs (c)(1), (c)(2), (c) (3) and (c)(5)
below are also exempted pursuant to the provisions of 5 U.S.C.
552a(k)(1) from subsections (c)(3), (d) and (e)(1):
(1) Air Intelligence Program (Justice/DEA-001)
(2) Investigative Reporting and Filing System (Justice/DEA-008)
(3) Planning and Inspection Division Records (Justice/DEA-010)
(4) Operations Files (Justice/DEA-011)
(5) Security Files (Justice/DEA-013)
(6) System to Retrieve Information from Drug Evidence (Stride/
Ballistics) (Justice/DEA-014)
(d) Exemptions apply to the following systems of records only to
the extent that information in the systems is subject to exemption
pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence
Program (Justice/DEA-001); Planning and Inspection Division Records
(Justice/DEA-010); and Security Files (Justice/DEA-013). Exemptions
apply to the Investigative Reporting and Filing System (Justice/DEA-
008) only to the extent that information in the system is subject to
exemption pursuant to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply
to the Operations Files (Justice/DEA-011) only to the extent that
information in the system is subject to exemption pursuant to 5 U.S.C.
552a(j)(2) and (k)(2). Exemptions apply to the System to Retrieve
Information from Drug Evidence (STRIDE/Ballistics) (Justice/DEA-014)
only to the extent that information in the system is subject to
exemption pursuant to 5 U.S.C. 552a(j)(2). Exemption from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because release of disclosure accounting
would provide to the subjects of an investigation significant
information concerning the nature of the investigation and thus would
present the same impediments to law enforcement as those enumerated in
paragraph (d)(3) regarding exemption from subsection (d).
(2) From subsection (c)(4) to the extent that it is not applicable
because an exemption is being claimed from subsection (d).
(3) From the access provisions of subsection (d) because access to
records in this system of records would present a serious impediment to
law enforcement. Specifically, it could inform the record subject of an
actual or potential criminal, civil, or regulatory investigation of the
existence of that investigation; of the nature and scope of the
information and evidence obtained as to his activities; of the identity
of confidential sources, witnesses, and law enforcement personnel; and
of information that may enable the subject to avoid detection or
apprehension. Similarly, it may alert collateral suspects yet
unprosecuted in closed cases. It could prevent the successful
completion of the investigation; endanger the life, health, or 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; or it may
simply reveal a sensitive investigative technique. In addition,
granting access to such information could result in the disclosure of
confidential/security-sensitive or other 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 would compromise the national
defense or disrupt foreign policy. From the amendment provisions of
subsection (d) because 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 DEA 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
during which DEA may obtain 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 DEA's investigative activities DEA may detect the
violation of either drug-related or non-drug related laws. In the
interests of effective law enforcement, it is necessary that DEA retain
all information obtained because it can aid in establishing patterns of
activity and provide valuable leads for Federal and other law
enforcement agencies or otherwise assist such agencies in discharging
their law enforcement responsibilities. Such information may include
properly classified information, the retention of which could be in the
interests of national defense and/or foreign policy.
(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 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 prosecution.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided a form stating the requirements of
subsection (3)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of an actual or
potential confidential investigation, reveal the identity of
confidential sources of information and endanger the life, health or
physical safety of confidential informants, witnesses, and
investigators/law enforcement personnel.
(7) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions imposed by subsection (e)(5) would
restrict the ability of trained investigators and intelligence analysts
to exercise their judgment in reporting on investigations and impede
the development of criminal intelligence necessary for 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 investigative
techniques, procedures, 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.
(e) The following systems of records are exempt from 5 U.S.C. 552a
(d)(1) and (e)(1):
(1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
(2) DEA Applicant Investigations (Justice/DEA-018).
(f) These exemptio9ns apply only to the extent that information in
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d)(1) because many persons are contacted who,
without an assurance of anonymity, refuse to provide information
concerning an applicant for a grant of confidentiality with DEA. By
permitting access to information which may reveal the identity of the
source of that information--after a promise of confidentiality has been
given--DEA would breach the promised confidentiality. Ultimately, such
breaches would restrict the free flow of information which is vital to
a determination of an applicant's qualifications for a grant.
(2) From subsection (e)(1) because in the collection of information
for investigative and evaluation purposes, it is impossible to
determine in advance what exact information may be of assistance in
determining the qualifications and suitability of a candidate.
Information which may appear irrelevant, when combined with other
apparently irrelevant information, can on occasion provide a composite
picture of an applicant which assists in determining whether a grant of
confidentiality is warranted.
(g) The following system of records is exempted 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), (e)(8) and (g) of 5 U.S.C. 552a. In
addition, this system of records is exempted pursuant to the provisions
of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), (d), and
(e)(1):
Freedom of Information/Privacy Act Records (Justice/DEA-006)
(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). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) for the reasons given in paragraphs
(b)(1) and (d)(1).
(2) From subsection (c)(4) to the extent that is not applicable
because an exemption is being claimed from subsection (d).
(3) From subsection (d) for the reasons given in paragraphs (b)(2),
(d)(3), and (f)(1).
(4) From subsection (e)(1) for reasons given in paragraphs (d)(4)
and (f)(2).
(5) From subsection (e)(2) for reasons given in paragraph (d)(5).
(6) From subsection (e)(3) for reasons given in paragraph (d)(6).
(7) From subsection (e)(5) for reasons given in paragraph (d)(7).
(8) From subsection (e)(8) for the reasons given in paragraph
(d)(8).
(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. 94-14012 Filed 6-8-94; 8:45 am]
BILLING CODE 4410-09-M
