[Federal Register Volume 63, Number 175 (Thursday, September 10, 1998)]
[Proposed Rules]
[Pages 48455-48464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22858]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 1 and 2
RIN 2900-AH98
Release of Information From Department of Veterans Affairs
Records
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend Department of Veterans Affairs
(VA) regulations governing the confidentiality and release of VA
records subject to the Privacy Act, the Freedom of Information Act
(FOIA) (including the Electronic Freedom of Information Act Amendments
of 1996, and the veterans' records confidentiality statute. The
proposed rule sets forth a mechanism for the public to obtain
information from the VA. The proposed rule is intended to maximize
public availability of VA records to the extent permitted by law and
considerations such as personal privacy or law enforcement. Essentially
these provisions consist of restatements of statute, interpretations of
statute, interpretations of case law, interpretations of Executive
Orders, and clarification. The proposed amendments also would implement
the Electronic Freedom of Information Act Amendments of 1996, court
decisions and Executive Branch guidance issued since the regulations
were originally published.
Further, this document proposes to delegate authority to the
Assistant General Counsel for Professional Staff Group IV for making
final Departmental decisions on appeals under the Freedom of
Information Act, the Privacy Act, and 38 U.S.C. 5701 and 5705. This
would simplify decision making by allowing the highest level individual
with direct responsibility for decision making to issue decisions.
DATES: Comments must be received on or before November 9, 1998.
ADDRESSES: Mail or hand deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Avenue, NW, Room 1154, Washington, D.C. 20420. Comments should
indicate that they are submitted in response to ``RIN 2900-AH98.'' All
written comments received will be available for public inspection at
the above address in the Office of Regulations Management, Room 1158,
between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday
(except holidays).
FOR FURTHER INFORMATION CONTACT: Lorrie Johnson, Deputy Assistant
General Counsel (024A), Office of General Counsel, Department of
Veterans Affairs, 810 Vermont Avenue, NW, Washington, D.C. 20420,
telephone number (202) 273-6358, fax number (202) 273-6388.
SUPPLEMENTARY INFORMATION: Current regulations promulgated pursuant to
section 5701 appear in 38 CFR 1.500 through 1.527; current regulations
promulgated pursuant to FOIA appear in Secs. 1.550 through 1.558; and
current regulations promulgated pursuant to the Privacy Act appear in
Secs. 1.575 through 1.584. These amendments consolidate regulations
governing the release of information pursuant to all three statutes
(Sec. 5701, FOIA and the Privacy Act) into one set of regulations, new
Secs. 1.500 through 1.512. The following current sections have been
rewritten to simplify and clarify: Secs. 1.500(b)-(d); Sec. 1.502;
Sec. 1.507; Secs. 1.511(a)-(f); Sec. 1.512; Sec. 1.513(a) and (b)(3);
Sec. 1.514 (in part); Sec. 1.519; Sec. 1.522; Sec. 1.524; Sec. 1.525;
Sec. 1.526; Sec. 1.527; Sec. 1.550; Sec. 1.552(a); Sec. 1.553;
Sec. 1.553a(a), (e) and (f); Sec. 1.554(b); Sec. 1.554a; Sec. 1.555;
Sec. 1.556 (in part); Sec. 1.557; Sec. 1.577(b)-(d), (f) and (g);
Sec. 1.579(a)-(c); and Sec. 1.580.
Provisions that essentially restate statutory language have been
deleted: Secs. 1.500(a); Sec. 1.501; Sec. 1.503; Sec. 1.506(a);
Sec. 1.509; Sec. 1.510; Sec. 1.512(c)(2) and (e); Sec. 1.513 (in part);
Sec. 1.551(b) and (c); Sec. 1.552(c) and (d); Sec. 1.553a(b) and (c);
Sec. 1.554(a) and (c); Sec. 1.575(a) and (b); Sec. 1.576(a)-(g);
Sec. 1.577(a) and (e); and Sec. 1.579(d).
These amendments implement new statutes (or amendments to
statutes), court decisions, and Executive Branch guidance, which have
been enacted or issued since the regulations were originally published.
The following were implicitly repealed or superseded: Sec. 1.504;
Sec. 1.505; Sec. 1.506(a) and (b) (in part); Sec. 1.508; Sec. 1.510 (in
part); Sec. 1.513(b)(1)(i)-(vii) and (ix),(x); Sec. 1.513(b)(2);
Sec. 1.514 (in part); Sec. 1.514a; Sec. 1.515; Sec. 1.516; Sec. 1.518;
Sec. 1.521; and Sec. 1.553a (in part).
Regulations governing internal policy matters have been deleted:
Sec. 1.513(b)(1)(viii); Sec. 1.517; Sec. 1.520; Sec. 1.551(a); and
Sec. 1.552(b).
The provisions of Sec. 1.511(g) and Sec. 1.513a have been repealed,
since they were superseded by 38 CFR 1.460 et seq.
The text of current Sec. 1.582 remains substantially the same, and
is redesignated as Sec. 1.512.
The provisions of Sec. 1.527, Sec. 1.557, Sec. 1.580, and
Sec. 2.6(e)(11) have been amended to delegate to the Assistant General
Counsel for Professional Staff Group IV, the same authority and
responsibility to act for the Secretary as was previously granted to
the General Counsel and Deputy General Counsel to make final
Departmental decisions on appeals under FOIA, the Privacy Act, 38
U.S.C. 5701 and 5705.
The Regulatory Flexibility Act
The Secretary of Veterans Affairs hereby certifies that the
adoption of the proposed rule would not have a significant economic
impact on a substantial number of small entities as they are defined in
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Almost all requests
for information are submitted by individuals. Further, it would be
extremely rare, if ever, that a request for information by a small
entity would have a significant impact on the business of the small
entity. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is
exempt from the initial and final regulatory flexibility analyses
requirements of Secs. 603 and 604.
List of Subjects
38 CFR Part 1
Administrative procedures, Privacy Act, Freedom of Information,
Recordkeeping.
38 CFR Part 2
Authority delegations (Government agencies).
Approved: March 9, 1998.
Togo D. West, Jr.,
Acting Secretary.
For the reasons set out in the preamble, 38 CFR parts 1 and 2 are
proposed to be amended as follows:
PART 1--GENERAL
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. The undesignated center heading preceding Sec. 1.500 and
Secs. 1.500 through 1.512 are revised to read as follows:
[[Page 48456]]
Requesting Records From the Department of Veterans Affairs
Sec. 1.500 General.
The Department of Veterans Affairs (VA) ordinarily will process a
request for records under these rules (Secs. 1.500 through 1.512),
which incorporate the requirements of FOIA (the Freedom of Information
Act), the Privacy Act, and section 5701 (the VA statute protecting the
confidentiality of claims records, 38 U.S.C. 5701). VA policy is to
maximize public availability of department records to the extent
permitted by law and considerations such as personal privacy or law
enforcement.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)
Sec. 1.501 Definitions.
(a) A beneficiary is a veteran or any other individual who has
received benefits (including medical benefits) or, for the purposes of
this series of rules (Secs. 1,500 through 1.512), has applied for
benefits, pursuant to title 38, United States Code.
(b) Benefits records are an individual's records--regardless of
whether the veteran or other individual is living or dead or is a U.S.
citizen--which pertain to programs under any of the benefits laws
administered by the VA Secretary, including medical care, compensation,
pension, education, loan guaranty, insurance, and cemetery records.
(c) Component means any VA entity, including Administrations and
staff offices in VA Central Office, and medical centers, satellite
clinics, Regional Offices, and National Cemetery Offices, and other
facilities in the field.
(d) Confidential commercial information means records containing
trade secrets or confidential business information, provided to the
government by a submitter, that are arguably exempt from release under
subsection (b)(4) of FOIA because disclosure could reasonably be
expected to cause substantial competitive harm.
(e) A consent is an authorization for VA to release an individual's
records to a third party.
(1) The consent must:
(i) Be an original writing by the individual,
(ii) Specify that VA is authorized to make the disclosure, and
(iii) Contain the signature of the individual, the date signed, a
reasonable description of the records to be released, and
identification of the third party, such as the party's name and
address.
(2) Revocation of a consent must be done by an original writing and
is effective when delivered to the FOIA/Privacy Act Officer of the
component which maintains the records.
(f) Court order is a document which has been signed or otherwise
specifically approved by a judge in the judicial (not executive or
legislative) branch of government. An order signed by an administrative
law judge or state board would not qualify as a court order.
(g) Denial of a records request includes withholding a record in
whole or in part; determining that a record responsive to the request
does not exist or cannot be located after a reasonable search;
determining that a record is not subject to the Privacy Act, FOIA, or
section 5701; disputing a fee determination; refusing to amend records
under the Privacy Act; refusing to supply a list of names and
addresses; releasing confidential commercial information; refusing a
request for expedited treatment; and refusing a request for an
accounting under the Privacy Act.
(h) A dependent is an individual who is (or at the time the record
in question was created, was) a dependent of a beneficiary. A veteran's
spouse and children are presumed to be dependents for purposes of this
series of regulations (Secs. 1.500 through 1.512).
(i) FOIA is the abbreviation for the Freedom of Information Act, 5
U.S.C. 552.
(j) The FOIA Guide, required by subsection (g) of FOIA, explains
how to request records from the VA; it may be found in VA's public
reading rooms.
(k) The FOIA/Privacy Act Officer is the official at VA Central
Office or within a component holding that title, or other official
within a component generally responsible for processing a request for
records under these rules (Secs. 1.500 through 1.512).
(l) An individual's own records or an individual's records means
information about a living individual--veterans and other individuals--
which is retrieved from a system of records by the individual's name or
other personal identifier, such as social security number or claims
file number. The term does not include other VA records concerning
individuals which are not stored in a system of records.
(m) An original writing means the actual, signed written
communication, and does not include photocopies, e-mail, or
telefacsimiles (faxes).
(n) The Privacy Act refers to the Privacy Act of 1974, as amended,
5 U.S.C. 552a.
(o) Proof of identity is a credential, establishing the identity of
an individual, such as a driver's license containing a picture, name,
current address, date of birth, and signature.
(p) Public reading rooms are spaces made available (as needed) in
most VA components and VA computer telecommunications sites, which make
records available pursuant to FOIA. The VA component providing a public
reading room space will often (but not always) be the component which
maintains the record.
(q) The term record(s) includes portions of a record, and
information contained within a record, and can include information
derived from a record. Records may be maintained in paper, electronic,
and other forms, but records do not include objects, such as tissue
slides, blood samples, or computer hardware.
(r) Regular duty hours generally means 8 a.m. to 4:30 p.m., Monday
through Friday, except Federal holidays, in most VA components.
(s) The Secretary means the Secretary of Veterans Affairs.
(t) Section 5701 refers to the veterans records confidentiality
statute, 38 U.S.C. 5701. Records covered by section 5701 include all
records of an identifiable individual, pertaining to VA benefits,
including medical care.
(u) Section 7332 records means records covered by 38 U.S.C. 7332,
as implemented in 38 CFR 1.460 through 1.499, which protects the
confidentiality of VA medical treatment records relating to drug and
alcohol abuse, infection with the human immunodeficiency virus (HIV),
or sickle cell anemia.
(v) Sensitive records refers to medical records containing
information that, with a reasonable degree of medical certainty, are
likely to have a serious adverse effect on an individual's mental or
physical health if revealed to him or her.
(w) Submitter means any person or entity (including corporations,
State and foreign governments) who provides confidential commercial
information to the government.
(x) VA means the federal Department of Veterans Affairs.
(y) VA Central Office refers to the headquarters of the Department
of Veterans Affairs. The mailing address is 810 Vermont Avenue NW.,
Washington, DC 20420.
(z) Written request or in writing means a written communication,
including letters, photocopies of letters, and telefacsimiles (faxes)
of letters. The term does not include electronic mail.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332.)
[[Page 48457]]
Sec. 1.502 Public access to records.
(a) How to apply these rules (Secs. 1.500 through 1.512). Many VA
records are considered for disclosure under these rules. Some, however,
are processed under other rules; for example:
(1) Some records are made available by means of publication in the
Federal Register. These may be obtained in public libraries and other
sources outside VA.
(2) Some records are available by visiting a public reading room;
these include VA directives and handbooks.
(3) Some requests for certain types of records require application
of other rules as well as these rules in Secs. 1.500 through 1.512. For
example, medical treatment records involving drug/alcohol abuse, sickle
cell anemia or infection with HIV (section 7332 records), see 38 CFR
1.460 through 1.499; medical quality assurance records, see 38 CFR
17.500 through 17.511.
(4) Some records are made routinely available to the public without
further reference to these rules (Secs. 1.500 through 1.512).
(b) Making a request. Anyone may request that VA disclose any
record. (An individual who seeks his or her own records should first
follow the rules in paragraph (c) of this section.) Except as otherwise
provided, a requester:
(1) Must submit a signed, written request, describing the record so
it may be located with a reasonable amount of effort, and should
address it to the FOIA/Privacy Act Officer of the component which
maintains the record or, if not known, as follows:
(i) For medical records, to the Director of the VA medical facility
where the individual was last treated or to the FOIA/Privacy Act
Officer, Veterans Health Administration, VA Central Office.
(ii) For National Cemetery System records, to the Director,
National Cemetery Area Office, or to the FOIA/Privacy Act Officer,
National Cemetery System, VA Central Office.
(iii) For other benefits records (including compensation and
pension examination records), to the FOIA/Privacy Act Officer at the VA
Regional Office serving the individual's jurisdiction or to the FOIA/
Privacy Act Officer, Veterans Benefits Administration, VA Central
Office.
(iv) For all Inspector General records, to the FOIA/Privacy Act
Officer, Office of the Inspector General, VA Central Office.
(v) For all other records, to the FOIA/Privacy Act Officer of the
nearest field facility or VA Central Office.
(2) Should write ``Attention, FOIA/Privacy Act Officer'' on the
envelope and on the request.
(3) May provide (if a request involves records about another
individual) an original writing which authorizes disclosure of that
individual's records to the requester or proof that the individual is
deceased (for example, a copy of a death certificate or an obituary).
Providing such documentation may enable VA to disclose more records
than might otherwise be lawful.
(4) Make any personal contacts during the regular duty hours of the
component concerned.
(c) Access to an individual's own records. (1) Individuals may ask
for their own records orally, in writing, and by e-mail. The request
should:
(i) Describe the record so it may be located with a reasonable
amount of effort, and
(ii) Be submitted to the FOIA/Privacy Act Officer of the component
which maintains the record or, if not known, as described in paragraph
(b)(1) (i) through (iv) of this section.
(2) VA will provide an individual access to an individual's own
records except for portions that:
(i) Have been exempted pursuant to Sec. 1.512,
(ii) Have been compiled in reasonable anticipation of a civil
action, or
(iii) Constitute sensitive records subject to the special
procedures contained in paragraph (e) of this section. When one of
these exceptions applies, VA will process the request under paragraph
(b) as well.
(3) When a veteran and a dependent of a veteran receive VA
benefits, VA may maintain records on both in a single benefits file,
retrieved by the veteran's personal identifier. Only the records that
pertain to the issuance of the veteran's benefits constitute that
individual's own records. The records that pertain to the issuance of
the dependent's benefits constitute that individual's own records.
(4) An individual may believe that VA maintains records that are
not the individual's own records, as defined, but involve the
individual nonetheless. If the individual wants these records, he or
she must clearly say so, describe the nature of the records, and follow
the procedures contained in paragraph (b).
(d) Processing a request. A request (which otherwise complies with
these rules, Secs. 1.500 through 1.512) is effective when it is
received by the FOIA/Privacy Act Officer of the component which
maintains the record. In processing a request, the following may apply:
(1) Proof of identity. VA may require proof of identity in
processing a request, if a personal privacy concern is involved.
(2) Original writing. VA may require an original writing for any
records request.
(3) Discretionary release. If VA is authorized by FOIA to withhold
a record in order to protect a governmental interest, VA will release
it anyway on a discretionary basis to the extent law permits, unless VA
can foresee that significant harm would occur to that governmental
interest by releasing it.
(4) Order of receipt. VA will ordinarily process records requests
and appeals according to their order of receipt by the FOIA/Privacy Act
Officer of the component which maintains the record, or, for appeals,
by the Office of General Counsel.
(5) Expedited processing.
(i) Requests and appeals may be taken out of order and expedited
when the requester certifies to the best of the requester's knowledge
or belief that:
(A) Failure to release the records would pose an imminent threat to
an individual's life or safety, or
(B) With respect to a request made by a person primarily engaged in
disseminating information, there is a compelling need to inform the
public about urgent questions concerning VA's activities.
(ii) The FOIA/Privacy Act Officer will decide requests for
expedited processing within 10 days of receiving the request; the
Office of General Counsel will decide appeals within 10 days of
receiving a letter of appeal from an adverse determination for
expedited treatment.
(6) Referrals. A VA FOIA/Privacy Act Officer may determine that
another component or Federal agency would be better able to process a
request. Whenever all or part of a request is referred, the FOIA/
Privacy Act Officer will ordinarily notify the requester to whom the
request has been referred.
(7) Records responsive to a request. In determining whether certain
records are responsive to a request, VA will ordinarily include only
those records in its possession and control as of the date of the
receipt of the request by the FOIA/Privacy Act Officer of the component
which maintains the records.
(8) Electronic records. A request for records includes a request
for electronic records.
(9) Multitrack processing. If a component places a notice to the
public in the FOIA Guide, a FOIA/Privacy Act Officer may process
requests for records
[[Page 48458]]
in two or more tracks based upon the amount of work or time (or both)
involved in processing the requests. The notice shall inform requesters
of the limits of each track, and advise requesters how to qualify for a
faster track by limiting the scope of the request.
(e) Access to sensitive records. Access to sensitive records is
subject to the following special procedures:
(1) When an individual requests that individual's own records, the
FOIA/Privacy Act Officer of the component which maintains the records
will identify the presence of any potentially sensitive records.
(2) If sensitive records may be involved, the FOIA/Privacy Act
Officer will refer the records to a VA physician (other than a rating
board physician) for further review.
(3) The VA physician will advise the FOIA/Privacy Act Officer
whether all or part of the records in question are sensitive records.
(4) The FOIA/Privacy Act Officer will notify the individual that VA
will disclose the sensitive records to a VA physician who will explain
the sensitive materials to the individual. Following such a discussion,
access to the sensitive records will be provided to the individual. The
only exception is when, notwithstanding the discussion, providing
access would create a medical emergency. In that exceptional event, VA
will provide access to the records once providing access would no
longer constitute a medical emergency.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)
Sec. 1.503 Amendment of an individual's own records.
(a) An individual may ask VA to amend that individual's own
records.
(b) If an individual knows where that individual's records are
located, the individual should submit an original writing requesting
amendment to the FOIA/Privacy Act Officer at the component which
maintains the records. If an individual does not know where VA
maintains the records, see Sec. 1.502(b)(1) for the FOIA/Privacy Act
Officer to contact.
(c) A request for VA to amend an individual's own record must:
(1) Identify each of the specific portions of the record which the
individual wishes VA to amend.
(2) Describe how the individual wishes VA to amend each portion of
the record, whether by deletion, substitution, or addition. The
individual should provide VA with language he or she wishes to
substitute or add to the record.
(3) State concisely the reasons why each amendment should be made,
and provide any supporting documentation.
(Authority: 5 U.S.C. 552a; 38 U.S.C. 501)
Sec. 1.504 Administrative review.
(a) The FOIA/Privacy Act Officer will make the initial decision
whether to grant a request for records under FOIA (including a request
for expedited treatment), whether to assess fees, and whether to grant
access to, or amendment of, an individual's own records.
(b) Upon denial of a records request, VA will: inform the requester
in writing, cite the specific reasons for the denial at the place where
the information has been redacted, indicate the number of pages
withheld in their entirety, set forth the name and title of the
responsible official, and advise that the denial may be appealed to the
General Counsel (024) at VA Central Office within the time prescribed
in paragraph (c) of this section.
(c) The General Counsel, the Deputy General Counsel, or the
Assistant General Counsel (024) will make the final VA decision on an
appeal from a denial of a records request. An appeal must be an
original writing, and it must be received by the Office of General
Counsel (024) within 60 work days from the date of the denial; however,
an appeal by a submitter of confidential commercial information must be
received by the Office of General Counsel within 10 work days of the
date of receipt of the initial Department decision to release the
records.
(d) The letter of appeal should identify the records at issue, the
component that denied the request, and the date of the denial. It is
helpful to include related information or materials, such as a copy of
the original request, the denial letter, and an explanation concerning
why the denial was erroneous.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701.)
Sec. 1.505 Amount of monetary benefits.
VA shall release, to any person who requests such information, the
amount of the most recent recurring monthly VA benefit payment made to
a beneficiary (who has been identified by the requester) for pension,
compensation, dependency and indemnity compensation, retirement pay,
subsistence allowance, or educational assistance allowance. However, if
releasing the amount of such payment would in effect disclose other
information about the beneficiary, this section will not apply and the
request will be processed under Sec. 1.502.
(Authority: 38 U.S.C. 501, 5701(c)(1)
Sec. 1.506 Request for benefits records in judicial proceedings.
(a) General. For an individual's records that are not benefits
records, see Sec. 1.509(d).
(1) When VA is not a party to a judicial proceeding, release must
also be authorized pursuant to 38 CFR 14.800 through 14.801.
(2) Generally, the FOIA/Privacy Act Officer of the component which
maintains the records will decide whether to disclose records requested
for use in a judicial proceeding (except in cases before the Court of
Veterans Appeals). If the FOIA/Privacy Act Officer determines that the
records will be used against the beneficiary or dependent, the process
will be referred to the Regional Counsel for disposition.
(3) Federal Tort Claims Act cases. If a claim under the Federal
Tort Claims Act has been filed or is anticipated, the appropriate
Regional Counsel will determine whether records will be disclosed. The
Regional Counsel will limit disclosure of records to that which would
be available pursuant to discovery if the matter were in litigation.
The General Counsel must provide concurrence for disclosure of any
other records.
(b) Federal court proceeding. (1) Court order. Upon receipt of a
Federal court order, VA will disclose benefits records, except for
section 7332 records, to whomever is designated in the court order or
to the court. Disclosure of section 7332 records will also be subject
to 38 CFR 1.490 through 1.499.
(2) Subpoena. VA will not disclose benefits records pursuant to a
Federal court or grand jury subpoena unless the beneficiary or
dependent is deceased, is not a citizen of the United States, is an
alien not lawfully admitted for permanent residence, or provides
consent. If one of these exceptions applies, VA may, after due
consideration, disclose such records (except for section 7332 records)
to whomever is designated in the subpoena or to the court. If a
subpoena is signed or is otherwise specifically approved by a judge, it
will qualify as a court order. Disclosure of section 7332 records will
also be subject to 38 CFR 1.490 through 1.499.
(3) Original records, fees. If original records are offered and
received into evidence, VA will seek permission to substitute copies.
Where a party other than the United States issues a Federal court
process, such party must prepay the appropriate fees.
(c) State or local court proceeding. (1) Court order. Upon receipt
of a State or
[[Page 48459]]
local court order, VA will disclose benefits records (except for
section 7332 records) in accordance with paragraphs (c) (3) and (4) of
this section. Disclosure of section 7332 records will also be subject
to 38 CFR 1.490 through 1.499.
(2) Subpoena. VA will not disclose benefits records pursuant to a
State or local court or grand jury subpoena unless the beneficiary or
dependent is deceased, is not a citizen of the United States, is an
alien not lawfully admitted for permanent residence, or provides
consent. If one of these exceptions applies, VA may disclose such
records (except for section 7332 records) in accordance with paragraphs
(c) (3) and (4) of this section. If a subpoena is signed or is
otherwise specifically approved by a judge, it will qualify as a court
order. Disclosure of section 7332 records will also be subject to 38
CFR 1.490 through 1.499.
(3) Additional requirements. VA will disclose benefits records
pursuant to a State or local court process as follows:
(i) When the requester provides the beneficiary's or dependent's
consent; or,
(ii) In the absence of consent, if the Regional Counsel determines
that disclosure is necessary to prevent the perpetration of fraud or
other injustice in the matter in question. The Regional Counsel may
require additional documentation detailing the need for such
disclosure, setting forth the character of the pending suit, and the
purpose for which the benefits records will be used. If the Regional
Counsel determines that disclosure is not warranted, the Regional
Counsel or designee will advise the court that benefits records are
confidential and privileged and may be disclosed only in accordance
with applicable Federal regulations, and explain why the records cannot
be disclosed. The Regional Counsel will take action to have the matter
removed to Federal court if appropriate.
(4) Disclosure to whom, original records, fees. VA will disclose
benefits records to whomever is designated in the State or local court
process or to the court. The requester must first pay the appropriate
fees to VA. If original records are offered and received into evidence,
VA will seek permission to substitute copies.
(d) Notice requirements. When a court order becomes a matter of
public record, the FOIA/Privacy Act Officer of the component which
maintains the records will make reasonable efforts to notify the
beneficiary or dependent that the benefits records were disclosed. A
notice sent to the beneficiary's or dependent's last known address
satisfies this requirement.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332)
Sec. 1.507. Disclosure of loan guaranty information.
(a) Any person is entitled to obtain, from loan guaranty records,
copies of certificates of reasonable value, appraisal reports, property
inspection reports, or reports of inspection on individual water supply
and sewage disposal systems, if names and home addresses of
beneficiaries or dependents are deleted. VA will disclose names and
home addresses contained in loan guaranty records only in accordance
with paragraphs (c) and (d) of this section.
(b) The address of the property involved shall be disclosed
regardless of whether it also happens to be the home address of a
beneficiary or dependent.
(c) In order to assist any applicant for (or recipient of) loan
guaranty benefits, VA may disclose relevant information from loan
guaranty records, including names and home addresses of beneficiaries
or dependents to: the purchaser of a property; the current owner of a
property; an entity that is considering making a loan to an individual
with respect to a property; or an agent--such as an attorney or real
estate broker--representing any of the above. VA must document any such
disclosure in the loan guaranty record.
(d) In order to assess the credit capacity of an applicant for (or
recipient of) loan guaranty benefits or a proposed purchaser of VA
property, or in order to sell a loan or installment sale contract held
by the Secretary, VA may release relevant information, including names
and home addresses of beneficiaries or dependents, from loan guaranty
records to: credit-reporting agencies, companies or individuals
extending credit, depository institutions, insurance companies,
investors, lenders, employers, landlords, utility companies and
governmental agencies.
(Authority: 38 U.S.C. 501, 5701(h))
Sec. 1.508 Disclosure of lists of names and addresses.
(a) Any nonprofit organization wanting a list of names and
addresses of VA beneficiaries must write to the Office of Management,
Information Management Service (045A4), VA Central Office (except
requests for lists of educationally disadvantaged veterans must be sent
to the Director of the nearest VA Regional Office). The request must
contain all of the following:
(1) The category of names and addresses sought.
(2) Proof of nonprofit status. Satisfactory proof includes evidence
of tax-exempt status pursuant to 26 U.S.C. 501, or that the
organization is a governmental body.
(3) The purpose for which the list is sought, programs and
resources the organization proposes to devote to this purpose, and how
such purpose is directly connected with the conduct of programs and the
utilization of benefits under Title 38, United States Code.
(4) A certification that the organization, and all members having
access to the list, are aware of the penalty provisions of section
5701(f) and will not use the list for any purpose other than that
stated in the application.
(b) The Assistant Secretary for Management, with the concurrence of
the General Counsel, is authorized to release lists of names and
addresses to organizations that have complied with all of the
requirements in paragraph (a) of this section. Lists of names and
addresses shall not duplicate lists released to other components of the
same organization.
(c) For lists of educationally disadvantaged veterans, if the
Director of the VA Regional Office finds that the requester is a
nonprofit organization and operates an approved educational program as
provided under 38 U.S.C., chapter 34, subchapter V, then the Director
may release the list of names and addresses.
(d) If VA has previously compiled the requested list for its own
use, and VA determines that the list can be released, the list may be
furnished without charge for compilation. Otherwise, VA will charge a
fee as set out in Sec. 1.510.
(e) Forwarding mail. (1) Procedures. When VA does not furnish an
address, VA may agree to forward a letter or judicial process. The
sender must enclose the letter or process in an unsealed envelope
showing no return address, bearing the name of the beneficiary or
dependent and sufficient postage to cover full mailing costs, including
the cost of certified or registered mail where applicable. (In addition
to postage, VA may charge its costs in accordance with Sec. 1.510.) The
component will place its own return address on the envelope. When
receipts (for certified or registered mail) or undelivered envelopes
are returned to the component, VA will notify the original sender; VA
will retain the receipt or the envelope.
(2) Limitations. This provision applies only if it does not
interfere unduly with the functions of the component concerned. VA will
not forward letters or judicial processes if the contents could be
harmful to the physical or mental health of the recipient, or if they
are for the purposes of canvassing,
[[Page 48460]]
harassment, propaganda, or debt collection.
(Authority: 38 U.S.C. 501, 5701(f)(1))
Sec. 1.509 Miscellaneous special rules.
(a) Powers of attorney and legal guardians. Persons authorized to
exercise the rights of individuals requesting records, amending
records, or appealing denial of a records request include persons
holding a power of attorney meeting the requirements of 38 CFR 14.631
and legal guardians.
(b) Genealogy. VA will release records of a genealogical nature
(except for names and addresses of VA beneficiaries and dependents)
when disclosure would not invade the privacy of any living person or is
not otherwise prohibited by law.
(c) Requests for non-benefits records in judicial proceedings. (1)
This paragraph applies to a request for an individual's records (which
are not benefits records) in judicial proceedings. For a request for
benefits records in judicial proceedings, see Sec. 1.506.
(2) When VA is not a party to a judicial proceeding, release must
also be authorized pursuant to 38 CFR 14.800 through 14.811.
(3) Upon receipt of a Federal or state court order for non-benefits
records, VA may, after due consideration, disclose an individual's
records (except for section 7332 records) to whomever is designated in
the court order or to the court. Disclosure of section 7332 records
will also be subject to 38 CFR 1.490 through 1.499.
(4) VA will not disclose an individual's records (which are not
benefits records) pursuant to a Federal or state court or grand jury
subpoena unless the individual is deceased, is not a citizen of the
United States, is an alien not lawfully admitted for permanent
residence, or provides consent. If one of these exceptions applies, VA
may, after due consideration, disclose such records (except for section
7332 records) to whomever is designated in the grand jury subpoena, or,
in the Federal or state court subpoena or to the court. If a subpoena
is signed or is otherwise specifically approved by a judge, it will
qualify as a court order.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701, 7332)
Sec. 1.510 Fees.
(a) Definitions. For the purpose of this section, the following
definitions apply:
(1) Commercial use request means a request for a purpose that
furthers the requester's commercial, trade or profit interests. VA must
consider the use to which a requester will put the records, and where
the use is not clear, VA may seek additional information from the
requester.
(2) Direct costs means all of those expenditures which VA incurs to
search for and duplicate (and in the case of Commercial Use Requests,
review) records, or to provide other services not required by FOIA.
Direct costs include the salary of the employee performing work, i.e.,
the basic rate of pay, plus 16 percent to cover benefits, and the cost
of operating duplicating equipment. Overhead expenses (such as costs of
space, heat, or light) are not included in direct costs.
(3) Duplication means making a copy of a record; copies may take
the form of paper, microform, audiovisual materials or machine
readable-documentation (e.g., magnetic tape or disk), among others.
(4) Educational Institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research. Requests qualify for this category when
they serve a scholarly research goal of the institution, rather than an
individual goal of the requester or a commercial goal of the
institution.
(5) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
(6) Representative of the news media means any person actively
gathering news for an entity that publishes or broadcasts news to the
public. The term ``news'' means information that is about current
events or that would be of current interest to the public. Examples of
news media entities include television or radio stations broadcasting
to the public at large, and periodicals when they disseminate ``news''
for the general public. As traditional methods of news delivery evolve
(e.g., dissemination of newspapers through the internet), such media
will be included in this category. ``Freelance'' journalists may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication; a publication contract would be
clear proof, but VA may also consider the requester's past publication
history. Freelancers who do not qualify under this category may seek a
reduction or waiver of fees under paragraph (f) of this section.
(7) Review means, in response to a Commercial Use Request,
examining records, determining that records may be withheld, and
processing records for disclosure by redacting them and otherwise
preparing them for release.
(8) Search means all the time spent looking for records that are
responsive to a request, including line-by-line identification of
material within records. Searches may be done manually and by computer.
The most efficient and least expensive manner will be used to minimize
costs to VA and the requester. For example, line-by-line searches will
not be conducted when duplicating an entire document is less expensive
and quicker. The term search does not cover the time spent to review
records.
(b) Fees to be charged. (1) Except as otherwise provided in
paragraphs (c), (d), (f), (g), and (h) of this section, VA will charge
fees that recoup the direct costs for responding to each request, in
accordance with the schedule in Paragraph (e) and other requirements in
these rules (Secs. 1.500 through 1.512). VA will use the most efficient
and least costly method.
(2) If VA estimates that charges are likely to exceed $25, VA will
notify the requester of the estimate, unless the requester has
indicated in advance a willingness to pay fees as high as those
anticipated. Such notice will offer the requester the opportunity to
confer with VA personnel with the object of reformulating the request
to meet his or her needs at a lower cost.
(3) Each component is authorized to contract with private-sector
services to locate, reproduce, and disseminate records in response to
FOIA requests only if it would be at least as efficient and no more
costly than for the component to perform these functions. A component
shall not contract out responsibilities which FOIA provides that it
alone may discharge, such as determining the applicability of an
exemption, or determining whether to waive or reduce fees.
(4) When VA records are maintained for distribution by agencies
operating statutory-based fee schedule programs, in which the agency is
required to set the level of fees for particular types of records, such
as the National Technical Information Service, VA will advise the
requester how to obtain records from those sources.
(c) Restrictions on assessing fees. With the exception of
Commercial Use Requests, VA will not assess charges for duplicating the
first 100 one-sided pages, or for the first two hours of
[[Page 48461]]
search time. Moreover, VA will not charge fees to any requester,
including Commercial Use Requesters, if the cost of collecting the fee
is equal to or greater than the fee itself. These provisions work
together so that VA will not assess fees until the free search and
duplication have been provided. For example, if a request takes two
hours and ten minutes of search time and requires duplication of 105
pages, VA is authorized to charge fees for 10 minutes of search time
and for duplicating five pages. If these costs are equal to or less
than VA's costs for billing the requester and processing the fee
collected, VA will not assess any charges.
(1) For purposes of the restriction on assessing fees, the word
``pages'' refers to one-sided paper copies of the standard sizes 8\1/
2\'' x 11'' or 8\1/2\'' x 14'' or 11'' x 14''. Requesters will
not be entitled to 100 free microfiche or 100 free computer disks. One
microfiche containing the equivalent of 100 pages ordinarily would meet
the terms of the restriction.
(2) The term search time is based on manual searches. To calculate
the computer search time for the purpose of applying the two-hour
search restriction, VA will combine the hourly cost of operating the
computer with the operator's hourly salary, plus 16 percent of the
salary. When the cost of the search (including the operator time and
the cost of the computer to process a request) equals the equivalent
dollar amount of two hours of the salary of the person performing the
search, VA will begin to assess charges for a computer search.
(d) Categories of record requests and fees to be charged each
category. There are five categories of record requests from individuals
for the purpose of charging fees. The levels in paragraphs (d) (1)
through (5) are ranked from the lowest to the highest fee category. VA
will process a request in the lowest category possible and will charge
only those fees indicated for that category, subject to the
requirements of paragraphs (c), (f), (g), and (h) of this section.
(1) Requests by a VA beneficiary for his or her own records. A
beneficiary is entitled to receive one free copy of all pages of his or
her own benefits records. (The term ``pages'' means paper records of a
standard size, and does not include items such as x-rays, films, and
EKG tracings.) In addition, any VA beneficiary who has an action on
file with the Court of Veterans Appeals is entitled to another free set
of his or her benefits records.
(2) Other requests for an individual's own records. If an
individual seeks a copy of his or her own records, and the request does
not qualify under paragraph (d)(1), VA will charge a duplication fee
after providing the first 100 one-sided standard size pages free.
(3) Representative of the news media, non-commercial scientific
institution, or educational institution requests. VA will charge for
the cost of reproduction only, and will provide the first 100 one-sided
standard size pages free. Fee waiver or reduction will be considered in
accordance with paragraph (f) of this section.
(4) All other non-commercial use requests. If the record request is
not covered by any of the other categories in this paragraph (d), VA
will charge duplication and search fees, after providing for free the
first 100 one-sided standard size pages and the first two hours of
search.
(5) Commercial use requests. VA will charge duplication, search,
and review fees.
(e) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of standard size (8\1/2\'' x $0.15 per page.
11''; 8\1/2\'' x 14''; 11'' x 14'')
paper records to produce standard sized one-
sided paper copies.
(2) Duplication of non-paper items (e.g., x- Direct cost to VA.
rays), paper records which are not of a
standard size (e.g., EKG tracings), or other
items which do not fall under category (1),
in paragraph (d)(1) of this section.
(3) Record search by manual (non-automated) Basic hourly salary rate
methods. of the employee(s), plus
16 percent.
Note to paragraph (e)(3)--If a component uses a single class of
personnel for a search, e.g., all administrative/clerical or
professional/executive, an average rate for the grades of employees
involved in the search may be used.
(4) Record search using automated methods, Direct cost to perform
such as by computer. search.
(5) Record review (for Commercial Use Basic hourly rate of
Requesters only). employees performing
review to determine
whether to release
records and to prepare
them for release, plus
16 percent.
(6) Other activities, such as: Attesting Direct cost to VA.
under seal or certifying that records are
true copies; sending records by special
methods; forwarding mail; compiling and
providing special reports, drawings,
specifications, statistics, lists, abstracts
or other extracted information; generating
computer output; providing files under court
process where the federal government is not
a party to, and does not have an interest
in, the litigation.
------------------------------------------------------------------------
(f) Waiving or reducing fees. (1) VA will waive or reduce fees for
records provided in response to a FOIA request when VA determines that
furnishing the record is in the public interest and is not primarily in
the commercial interest of the requester.
(2) To determine public interest, VA will consider the following
factors in sequence:
(i) The contents of the records must concern identifiable
``operations of the government.''
(ii) The disclosable portions of the records must be ``likely to
contribute'' to an understanding of government operations. For example,
records containing information already in the public domain would not
satisfy this standard.
(iii) The records must contribute to the understanding of the
``public at large,'' i.e., a reasonably broad audience of persons
interested in the subject.
(iv) The records must contribute ``significantly'' to public
understanding of government operations.
(3) To determine commercial interest, VA will consider the
following factors in sequence:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so
(ii) Whether the magnitude of the commercial interest is
sufficiently large, in comparison with the public interest, that
disclosure is primarily in the commercial interest of the requester.
[[Page 48462]]
(4) VA will process an appeal from an adverse fee determination
pursuant to Sec. 1.504.
(g) Other fee considerations. (1) Interest. The FOIA/Privacy Act
Officer may charge interest (at the rate prescribed in section 3717 of
Title 31 United States Code) to requesters who fail to pay fees in a
timely manner. Interest begins to accrue thirty-one days after the date
on the original bill, and ceases to accrue on the date the payment is
received by VA.
(2) Charges for unsuccessful search. When search charges are
applicable, VA will assess search charges even if records are not
located, or if pertinent records are exempt from disclosure.
(3) Aggregating requests. When the FOIA/Privacy Act Officer
reasonably believes that a requester, or a group of requesters acting
in concert, is breaking down a request into a series of requests in
order to evade fees, the FOIA/Privacy Act Officer may aggregate
(combine) any such requests and charge accordingly.
(4) Advance payments. VA may not generally require a requester to
make an advance payment, except under the following circumstances:
(i) If fees are likely to exceed $250, VA will notify the requester
of the estimated cost, and either obtain satisfactory assurance of full
payment, or require an advance payment of up to the full estimated fee.
(ii) If a requester has previously failed to pay a fee charged
within 30 days, before processing the new request, VA may require
payment of the full amount owed on the previous request and an advance
payment on the new request.
(5) Debt collection. VA may use the procedures authorized by the
Debt Collection Act of 1982 (Pub. L. 97-365, as amended) to collect
unpaid fees. This may include disclosure to consumer reporting agencies
and use of collection agencies.
(h) VA may provide free copies of records or free services:
(1) In response to an official request from other government
agencies and Congressional offices; and
(2) When a component head or designee determines that doing so will
assist in providing medical care to a VA patient or will otherwise
further performance of the VA mission.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 501, 5701)
Sec. 1.511 Notification procedures prior to disclosing confidential
commercial information.
(a) General. During the conduct of its business, VA may acquire
records that contain confidential commercial information. FOIA requests
for such records will be handled under this section.
(b) Notice to submitters. When a FOIA request is received for
record(s) that may contain confidential commercial information, the
FOIA/Privacy Act Officer will notify the submitter in writing when
required by paragraph (c) of this section. The notice will:
(1) Advise the submitter that VA has received a FOIA request for
the submitter's records;
(2) Describe the records requested;
(3) Inform the submitter of the opportunity to object to the
disclosure in writing within 10 working days and of the requirements
for such a written objection, as described in paragraph (e) of this
section; and
(4) Be sent by certified mail, return receipt requested.
(c) The notice requirement. Notice is required whenever the
submitter has in good faith designated that the requested records
contain confidential commercial information in accordance with
paragraph (d) of this section; or, when the FOIA/Privacy Act Officer
believes that disclosing the records could reasonably be expected to
cause substantial competitive harm.
(d) Designation by submitters. (1) A submitter may designate that
disclosure of certain records could reasonably be expected to cause
substantial competitive harm, by marking the records with the words
``confidential commercial information,'' or by describing the specific
kinds of records that contain confidential commercial information.
(2) A designation will remain in effect for a period of not more
than 10 years after receipt by VA, unless the submitter provides
acceptable justification for a longer specific period. The submitters
may designate a shorter period by including an expiration date.
(3) The submitter must certify that the records are in fact
confidential commercial information and have not been made available to
the public.
(4) The designation notifies VA that it should follow the
procedures set forth in this paragraph (d); however, VA makes the final
determination whether or not records contain confidential commercial
information.
(e) Opportunity to object. (1) The submitter may object to the
disclosure of the records in writing, addressed to the FOIA/Privacy Act
Officer who provided notice, specifying the records that should not be
disclosed and all grounds upon which disclosure is opposed, and
explaining why the information is considered a trade secret or
confidential commercial information.
(2) Submitters must present any objection to disclosure within 10
working days after receiving notice. If a submitter fails to respond
within that time, VA will deem that the submitter has no objection to
disclosing the records.
(3) If VA receives a timely objection, VA will consider all
specified grounds for nondisclosure prior to making a decision. If VA
decides to disclose the requested records, the FOIA/Privacy Act Officer
will send the submitter a written decision containing: the reasons why
the objections were overruled, a description or copy of the records to
be disclosed, and a date the records will be disclosed of not less than
10 business days from the time mailed (to allow the submitter time to
take necessary legal action to prevent VA from disclosing the
information).
(f) Notices to requester. When VA receives a request for
confidential commercial information, the FOIA/Privacy Act Officer will
notify the requester that it will be processed under these rules
(Secs. 1.500 through 1.512), the submitter may comment upon the
request, and there may be a delay in receiving a response. The notice
to the requester should not include any specific information contained
in the records being requested. When VA notifies a submitter of a final
decision, the FOIA/Privacy Act Officer will notify the requester by
separate correspondence.
(g) Notices of lawsuit. If a FOIA requester brings suit seeking to
compel disclosure of confidential commercial information, VA will
promptly notify the submitter.
(h) Exceptions to the notice requirements. A notice to the
submitter, described in paragraph (b), is not required if the FOIA/
Privacy Act Officer determines that:
(1) The records should not be disclosed;
(2) The records have been published or have been officially made
available to the public;
(3) Disclosure of the records is required by law (other than FOIA);
(4) The records requested have not been designated by the submitter
as exempt, and the submitter had an opportunity to do so when the
records were submitted or a reasonable time thereafter, and VA does not
have substantial reason to believe that disclosure would result in
competitive harm; or
(5) The designation made by the submitter appears obviously
frivolous. VA must still provide the submitter with advance written
notice of the decision to disclose not less than 10
[[Page 48463]]
working days prior to the specified disclosure date.
(Authority: 5 U.S.C. 552(b)(4); 38 U.S.C. 501; E.O. 12600 (52 FR
23781)
Sec. 1.512 Exemptions.
(a) Certain systems of records maintained by VA are exempted from
provisions of the Privacy Act in accordance with exemptions (j) and
(k).
(b) Exemption of Inspector General Systems of Records. VA provides
limited access to two Inspector General Systems of Records:
Investigation Reports of Persons Allegedly Involved in Irregularities
Concerning VA and Federal Laws, Regulations, Programs, etc.--VA
(11VA51); and Inspector General Complaint Center Records--VA (66VA53).
(1) These systems of records are exempted [pursuant to subsection
(j)(2) of the Privacy Act] from Privacy Act subsections (c)(3) and (4),
(d), (e)(1), (2) and (3), (e)(4)(G), (H) and (I), (e)(5) and (8), (f)
and (g); in addition, they are exempted [pursuant to subsection (k)(2)
of the Privacy Act] from Privacy Act subsections (c)(3), (d), (e)(1),
(e)(4)(G), (H), and (I), and (f).
(2) These systems of records are exempted for the following
reasons:
(i) The application of Privacy Act subsection (c)(3) would alert
subjects to the existence of the investigation and reveal that they are
subjects of that investigation. Providing subjects with information
concerning the nature of the investigation could result in alteration
or destruction of evidence which is obtained from third parties,
improper influencing of witnesses, and other activities that could
impede or compromise the investigation.
(ii) The application of Privacy Act subsections (c)(4), (d),
(e)(4)(G) and (H), (f) and (g) could interfere with investigative and
enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of
personal privacy of others, disclose the identity of confidential
sources, reveal confidential information supplied by these sources, and
disclose investigative techniques and procedures.
(iii) The application of Privacy Act subsection (e)(4)(I) could
disclose investigative techniques and procedures and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This could
compromise the ability to conduct investigations and to identify,
detect and apprehend violators. Even though the agency has claimed an
exemption from this particular requirement, it still plans to generally
identify the categories of records and the sources for these records in
this system. However, for the reasons stated in paragraph (b)(2)(ii) of
this section, this exemption is still being cited in the event an
individual wants to know a specific source of information.
(iv) These systems of records are exempt from Privacy Act
subsection (e)(1) because it is not possible to detect the relevance or
necessity of specific information in the early stages of a criminal or
other investigation. Relevance and necessity are questions of judgment
and timing. What appears relevant and necessary may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established. In any investigation, the Inspector General may obtain
information concerning violations of laws other than those within the
scope of his/her jurisdiction. In the interest of effective law
enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity and provide leads
for those law enforcement agencies charged with enforcing other
segments of civil or criminal law.
(v) The application of Privacy Act subsection (e)(2) would impair
investigations of illegal acts, violations of the rules of conduct,
merit system and any other misconduct for the following reasons:
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's
rights against self-incrimination and because of the inherent
unreliability of the suspect's statements. Similarly, it is not always
feasible to rely upon the complainant as a source of information
regarding his/her involvement in an investigation.
(B) The subject of an investigation will be alerted to the
existence of an investigation if an attempt is made to obtain
information from the subject. This would afford the individual the
opportunity to conceal any criminal activities to avoid apprehension.
(vi) The reasons for exempting these systems of records from
Privacy Act subsection (e)(3) are as follows:
(A) The disclosure to the subject of the purposes of the
investigation would provide the subject with substantial information
relating to the nature of the investigation and could impede or
compromise the investigation.
(B) Informing the complainant or the subject of the information
required by this provision could seriously interfere with undercover
activities, jeopardize the identities of undercover agents and impair
their safety, and impair the successful conclusion of the
investigation.
(C) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) Since the Privacy Act defines ``maintain'' to include the
collection of information, complying with subsection (e)(5) would
prevent the collection of any data not shown to be accurate, relevant,
timely, and complete at the moment of its collection. In gathering
information during the course of an investigation, it is not always
possible to make this determination prior to collecting the
information. Facts are first gathered and then placed into a logical
order which objectively proves or disproves criminal behavior on the
part of the suspect. Material that may seem unrelated, irrelevant,
incomplete, untimely, etc., may take on added meaning as an
investigation progresses. The restrictions in this provision could
interfere with the preparation of a complete investigative report.
(viii) The notice requirement of Privacy Act subsection (e)(8)
could prematurely reveal an ongoing criminal investigation to the
subject of the investigation.
(c) Exemption of Loan Guaranty Service. VA provides limited access
to two Loan Guaranty Service systems of records: Loan Guaranty Fee
Personnel and Program Participant Records--VA (17VA26); and Loan
Guaranty Home Condominium and Mobile Home Loan Applicant Records and
Paraplegic Grant Application Records--VA (55VA26).
(1) These systems of records are exempted [pursuant to Privacy Act
subsection (k)(2)] from Privacy Act subsections (c)(3), (d), (e)(1) and
(e)(4)(G), (H) and (I) and (f), for the following reasons:
(i) The application of Privacy Act subsection (c)(3) would alert
subjects of an investigation to the existence of the investigation and
that such persons are subjects of that investigation. Since release of
such information to subjects would provide them with significant
information concerning the nature of the investigation, it could result
in the
[[Page 48464]]
altering or destruction of documentary evidence, improper influencing
of witnesses and other activities that could impede or compromise the
investigation.
(ii) These systems are exempt from Privacy Act subsections (d),
(e)(4)(G) and (H) and (f) for the following reasons: Notifying an
individual at the individual's request of the existence of records in
an investigative file pertaining to such individual or to grant access
to an investigative file could: interfere with investigative and
enforcement proceedings; constitute an unwarranted invasion of the
personal privacy of others; disclose the identity of confidential
sources and reveal confidential information supplied by these sources;
and disclose investigative techniques and procedures.
(iii) The application of Privacy Act subsection (e)(4)(I) could
disclose investigative techniques and procedures and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This would
compromise the ability to conduct investigations. Even though the
agency has claimed an exemption from this particular requirement, it
still plans to generally identify the categories of records and the
sources for these records in this system. However, for the reasons
stated in this paragraph, this exemption is still being cited in the
event an individual wanted to know a specific source of information.
(iv) These systems of records are exempt from Privacy Act
subsection (e)(1) because: It is not possible to detect relevance or
necessity of specific information in the early stages of an
investigation. Relevance and necessity are questions of judgment and
timing. What appears relevant and necessary when collected may
ultimately be determined to be unnecessary. It is only after the
information is evaluated that the relevance and necessity of such
information can be established. In interviewing persons or obtaining
other forms of evidence during an investigation, information may be
supplied to the investigator which relates to matters incidental to the
main purpose of the investigation but which is appropriate in a
thorough investigation. Oftentimes, such information cannot readily be
segregated.
(2) In addition, the system of records, Loan Guaranty Fee Personnel
and Program Participant Records--VA (71VA26), is exempt [pursuant to
Privacy Act subsection (k)(5)] from Privacy Act subsections (c)(3),
(d), (e)(1), (e)(4)(G), (H) and (I) and (f), for the following reasons:
(i) The application of Privacy Act subsection (c)(3) would alert
subjects of background suitability investigations to the existence of
the investigation and reveal that such persons are subjects of that
investigation. Since release of such information to subjects of an
investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in
revealing the identity of a confidential source.
(ii) This system is exempt from Privacy Act subsections (d),
(e)(4)(G) and (H) and (f) for the following reasons: To notify an
individual at the individual's request of the existence of records in
an investigative file pertaining to such an individual or to grant
access to an investigative file would disclose the identity of
confidential sources and reveal confidential information supplied by
these sources.
(iii) The application of Privacy Act subsection (e)(4)(I) could
disclose sufficient information to disclose the identity of a
confidential source and cause sources to refrain from giving such
information because of fear of reprisal, or fear of breach of promises
of anonymity and confidentiality. This would compromise the ability to
conduct background suitability investigations.
(iv) This system of records is exempt from Privacy Act subsection
(e)(1) because: It is not possible to detect relevance and necessity of
specific information from a confidential source in the early stages of
an investigation. Relevance and necessity are questions of judgment and
timing. What appears relevant and necessary when collected may
ultimately be determined to be unnecessary. It is only after the
information is evaluated that the relevance and necessity of such
information can be established regarding suitability for VA approval as
a fee appraiser or compliance inspector. In interviewing persons or
obtaining other forms of evidence during an investigation for
suitability for VA approval, information may be supplied to the
investigator which relates to matters incidental to the main purpose of
the investigation but which is appropriate in a thorough investigation.
Oftentimes, such information cannot readily be segregated and
disclosure might jeopardize the identity of a confidential source.
(Authority: 5 U.S.C. 552a; 38 U.S.C. 501, 5701)
Secs. 1.513 through 1.584 [Removed]
3. Sections 1.513 through 1.584, the undesignated center heading
and the note immediately preceding Sec. 1.550, and the undesignated
center heading and note immediately preceding Sec. 1.575 are removed.
PART 2--DELEGATIONS OF AUTHORITY
4. The authority citation for part 2 continues to read as follows:
(Authority: 5 U.S.C. 302; 38 U.S.C. 501, 512; 44 U.S.C. 3702, unless
otherwise noted.)
5. In Sec. 2.6, paragraph (e)(11) is revised to read as follows:
Sec. 2.6 Secretary's delegations of authority to certain officials (38
U.S.C. 512).
* * * * *
(e) * * *
(11) The General Counsel, the Deputy General Counsel, and the
Assistant General Counsel for Professional Staff Group IV are
authorized to make final Departmental decisions on appeals under the
Freedom of Information Act, the Privacy Act, and 38 U.S.C. 5701 and
5705.
(Authority: 38 U.S.C. 512)
* * * * *
[FR Doc. 98-22858 Filed 9-9-98; 8:45 am]
BILLING CODE 8320-01-P
