[Federal Register Volume 59, Number 133 (Wednesday, July 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16875]
[[Page Unknown]]
[Federal Register: July 13, 1994]
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POSTAL SERVICE
39 CFR Part 266
Revision of Regulations To Exempt Privacy Act Systems of Records
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: Postal Service regulations exempt certain systems of records
that it maintains from certain provisions of the Privacy Act. This rule
does not alter past application of exemptions but merely provides an
explanation of the reasons for applying specific exemptions to certain
systems of records.
EFFECTIVE DATE: July 13, 1994.
FOR FURTHER INFORMATION CONTACT: Betty Sheriff, Records Officer, (202)
268-2924.
SUPPLEMENTARY INFORMATION: Postal Service regulations (39 CFR 266.9)
exempt certain systems of records from specific provisions of the
Privacy Act. This rule amends those regulations to include the reasons
for applying the exemptions. Those reasons were stated in the preamble
of the notice of proposed rulemaking at the time the Postal Service
adopted the exemptions. 40 FR 37227 (August 26, 1975).
The proposed rule with invitation to comment was published in the
Federal Register. 59 FR 17749 (April 14, 1994). No comments were
received.
List of Subjects in 39 CFR Part 266
Privacy.
For the reasons set out in this document, the Postal Service amends
part 266 of 39 CFR as follows:
PART 266--PRIVACY OF INFORMATION
1. The authority citation for part 266 continues to read as
follows:
Authority: 39 U.S.C. 401; 5 U.S.C. 552a.
2. Section 266.9 is revised to read as follows:
Sec. 266.9 Exemptions.
(a) Subsections 552a(j) and (k) of title 5, U.S.C., empower the
Postmaster General to exempt systems of records meeting certain
criteria from various other subsections of section 552a. With respect
to systems of records so exempted, nothing in this part shall require
compliance with provisions hereof implementing any subsections of
section 552a from which those systems have been exempted.
(b) At paragraph (b)(1) of this section is a summary of the Act's
provisions for which exemption is claimed pursuant to, and to the
extent permitted by, subsections 552a(j) and (k) of title 5, U.S.C.,
for some systems of records. Paragraphs (b)(2) through (6) of this
section identify the exempted systems of records, the exemptions
applied to each, and the reasons for the exemptions:
(1) Explanation of the Act's provisions for which an exemption is
claimed in the systems discussed below. (i) Subsection (c)(3) requires
an agency to make available to the individual named in the records an
accounting of each disclosure of records.
(ii) Subsection (c)(4) requires an agency to inform any person or
other agency to which a record has been disclosed of any correction or
notation of dispute the agency has made to the record in accordance
with subsection (d) of the Act.
(iii) Subsection (d)(1)-(4) requires an agency to permit an
individual to gain access to records about the individual, to request
amendment of such records, to request a review of an agency decision
not to amend such records, and to provide a statement of disagreement
about a disputed record to be filed and disclosed with the disputed
record.
(iv) Subsection (e)(1) requires an agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose required by statute or executive
order of the President.
(v) Subsection (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.
(vi) Subsection (e)(3) requires an agency to inform each person
whom it asks to supply information of the authority under which the
information is sought, the purposes for which the information will be
used, the routine uses that may be made of the information, whether
disclosure is mandatory or voluntary, and the effects of not providing
the information.
(vii) Subsection (e)(4) (G) and (H) requires an agency to publish a
Federal Register notice of its procedures whereby an individual can be
notified upon request whether the system of records contains
information about the individual, how to gain access to any record
about the individual contained in the system, and how to contest its
content.
(viii) Subsection (e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to ensure fairness to the individual in making any
determination about the individual.
(ix) Subsection (e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record.
(x) Subsection (f) requires an agency to establish procedures
whereby an individual can be notified upon request if any system of
records named by the individual contains a record pertaining to the
individual, obtain access to the record, and request amendment.
(xi) Subsection (g) provides for civil remedies if an agency fails
to comply with the access and amendment provisions of subsections
(d)(1) and (d)(3), and with other provisions of the Act, or any rule
promulgated thereunder, in such a way as to have an adverse effect on
an individual.
(xii) Subsection (m) requires an agency to cause the requirements
of the Act to be applied to a contractor operating a system of records
to accomplish an agency function.
(2) Inspection Requirements--Investigative File System, USPS
080.010; Inspection Requirements--Mail Cover Program, USPS 080.020.
These systems of records are exempt from 5 U.S.C. 552a (c) (3) and (4),
(d)(1)-(4), (e)(1)-(3), (e)(4) (G) and (H), (e) (5) and (8), (f), (g),
and (m). The reasons for exemption follow:
(i) Disclosure to the record subject pursuant to subsections
(c)(3), (c)(4), or (d)(1)-(4) could (A) Alert subjects that they are
targets of an investigation or mail cover; (B) alert subjects of the
nature and scope of the investigation, and of evidence obtained; (C)
enable the subject of an investigation to avoid detection or
apprehension; (D) subject confidential sources, witnesses, and law
enforcement personnel to harassment or intimidation if their identities
were released to the target of an investigation; (E) constitute
unwarranted invasions of the personal privacy of third parties who are
involved in a certain investigation; (F) intimidate potential witnesses
and cause them to be reluctant to offer information; (G) lead to the
improper influencing of witnesses, the destruction or alteration of
evidence yet to be discovered, the fabrication of testimony, or the
compromising of classified material; and (H) seriously impede or
compromise law enforcement, mail cover, or background investigations
that might involve law enforcement aspects as a result of the above.
(ii) Application of subsections (e)(1) and (e)(5) is impractical
because the relevance, necessity, or correctness of specific
information might be established only after considerable analysis and
as the investigation progresses. As to relevance (subsection (e)(1)),
effective law enforcement requires the keeping of information not
relevant to a specific Postal Service investigation. Such information
may be kept to provide leads for appropriate law enforcement and to
establish patterns of activity that might relate to the jurisdiction of
the Postal Inspection Service and/or other agencies. As to accuracy
(subsection (e)(5)), the correctness of records sometimes can be
established only in a court of law.
(iii) Application of subsections (e)(2) and (e)(3) would require
collection of information directly from the subject of a potential or
ongoing investigation. The subject would be put on alert that he or she
is a target of an investigation or mail cover, enabling avoidance of
detection or apprehension, thereby seriously compromising law
enforcement, mail cover, or background investigations involving law
enforcement aspects. Moreover, in certain circumstances the subject of
an investigation is not required to provide information to
investigators, and information must be collected from other sources.
(iv) The requirements of subsections (e)(4)(G) and (H), and (f) do
not apply because this system is exempt from the individual access and
amendment provisions of subsection (d). Nevertheless, the Postal
Service has published notice of its notification, access, and contest
procedures because access is appropriate in some cases.
(v) Application of subsection (e)(8) could prematurely reveal an
ongoing criminal investigation to the subject of the investigation.
(vi) The provisions of subsection (g) do not apply because
exemption from the provisions of subsection (d) renders the provisions
on suits to enforce subsection (d) inapplicable.
(vii) If one of these systems of records is operated in whole or in
part by a contractor, the exemptions claimed herein shall remain
applicable to it (subsection (m)).
(3) Personnel Records--Preemployment Investigation Records, USPS
120.110; Personnel Records--Postmaster Selection Program Records, USPS
120.130. These systems of records are exempt from 5 U.S.C. 552a(d)(1)-
(4) and (e)(1) to the extent that information in the system is subject
to exemption under 5 U.S.C. 552a(k)(5) as relating to the identity of a
source who furnished information to the government in confidence as a
part of an investigation conducted solely for the purpose of
determining suitability, eligibility, or qualifications of an
individual for employment. The reasons for exemption follow:
(i) During its investigation and evaluation of an applicant for a
position, the Postal Service contacts individuals who, without an
assurance of anonymity, would refuse to provide information concerning
the subject of the investigation. If a record subject were given access
pursuant to subsection (d)(1)-(4), the promised confidentiality would
be breached and the confidential source would be identified. The result
would be restriction of the free flow of information vital to a
determination of an individual's qualifications and suitability for
appointment to or continued occupancy of his position.
(ii) In collecting information for investigative and evaluative
purposes, it is impossible to determine in advance what information
might be of assistance in determining the qualifications and
suitability of an individual for appointment. Information that seems
irrelevant, when linked with other information, can sometimes provide a
composite picture of an individual that assists in determining whether
that individual should be appointed to or retained in a position. For
this reason, exemption from subsection (e)(1) is claimed.
(4) Personnel Records--Personnel Research and Test Validation
Records, USPS 120.120; Personnel Records--Career Development and
Training Records, USPS 120.152. These systems of records are exempt
from 5 U.S.C. 552a(d)(1)-(4), (e)(4)(G) and (H), and (f) to the extent
that information in the system is subject to exemption pursuant to 5
U.S.C. 552a(k)(6) as relating to the compromise of the objectivity or
fairness of the testing or examination process. The reasons for
exemption follow:
(i) These systems contain questions and answers to standard testing
materials, the disclosure of which would compromise the fairness of the
future use of these materials. It is not feasible to develop entirely
new examinations after each administration as would be necessary if
questions or answers were available for inspection and copying.
Consequently, exemption from subsection (d) is claimed.
(ii) The requirements of subsections (e)(4)(G) and (H), and (f) do
not apply to these systems for which exemption from subsection (d) of
the Act has been claimed. Nevertheless, the Postal Service has
published notice of its notification, access, and contest procedures
because access to system records that do not compromise the objectivity
or fairness of the testing examination process is appropriate in some
cases.
(5) Personnel Records--Recruiting, Examining, and Appointment
Records, USPS 120.151. This system is exempt from 5 U.S.C. 552a(d)(1)-
(4), (e)(1), (e)(4)(G) and (H), and (f) to the extent that information
in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5)
as relating to the identity of a source who has furnished information
to the government in confidence as part of an investigation conducted
solely for the purpose of determining suitability, eligibility, or
qualifications of an individual for employment; and to exemption
pursuant to subsection 5 U.S.C. 552a(k)(6) as relating to the
compromise of the objectivity or fairness of the testing or examination
process. The reasons for exemption follow:
(i) To the extent that information in this system is subject to
exemption pursuant to 5 U.S.C. 552a(k)(5), application of the
provisions at subsection (d)(1)-(4) would reveal to the applicant whose
suitability is being investigated the identity of individuals who
supplied information under a promise of anonymity. As a result, the
Postal Service's promise of confidentiality would be breached, its
ability to obtain information in the future would be diminished, and
the information source could be subjected to harassment by the
applicant. To the extent that information in this system is subject to
exemption pursuant to 5 U.S.C. 552a(k)(6), the requirements of the
exemption at subsection (d)(1)-(4) and the reasons for exempting
information relating to the compromise of the objectivity or fairness
of the testing or examination process are the same as those given in
paragraph (b)(5)(i) of this section.
(ii) The reasons for exempting this system of records from
subsection (e)(1) are the same as those given in paragraph (b)(4)(ii)
of this section.
(iii) The requirements of subsections (e) (4) (G) and (H), and (f)
do not apply to this system for which exemption from subsection (d) of
the Act has been claimed. Nevertheless, the Postal Service has
published notice of its notification, access, and contest procedures
because access to system records that do not compromise the objectivity
or fairness of the testing or examination process or reveal the
identity of a confidential is appropriate in some cases.
(6) Equal Employment Opportunity--EEO Discrimination Complaint
Investigations, USPS 030.010. This system is exempt from 5 U.S.C.
552a(d) (1)-(4), (e) (4) (G) and (H), and (f) to the extent that
information in the system is subject to exemption pursuant to 5 U.S.C.
552a(k)(2) as material compiled for law enforcement purposes and
subsection (k)(5) as relating to the identity of a source who has
furnished information to the government in confidence as a part of an
investigation conducted solely for the purpose of determining
suitability, eligibility, or qualifications of an individual for
employment. The reasons for exemption follow.
(i) To the extent that information in this system is subject to
exemption pursuant to 5 U.S.C. 552a(k)(2), application of the
requirements of the exemption at subsection (d)(1)-(4) would cause
disruption of enforcement of the laws relating to equal employment
opportunity (EEO). To the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(k)(5), application of
the provisions at subsection (d)(1)-(4) would reveal to the EEO
complainant the identity of individuals who supplied information under
a promise of anonymity. It is essential to the integrity of the EEO
complaint system that information collected in the investigative
process not be prematurely disclosed and that witnesses be free from
restraint, interference, coercion, or reprisal.
(ii) The requirements of subsections (e) (4) (G) and (H), and (f)
do not apply to this system for which exemption from subsection (d) of
the Act has been claimed. Nevertheless, the Postal Service has
published notice of its notification, access, and contest procedures
because access to system records that do not compromise the
investigative process or reveal the identity of confidential sources is
appropriate in some cases.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 94-16875 Filed 7-12-94; 8:45 am]
BILLING CODE 7710-12-P
