[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Rules and Regulations]
[Pages 64122-64125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30384]
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ASSASSINATION RECORDS REVIEW BOARD
36 CFR Part 1415
Rules Implementing the Privacy Act
AGENCY: Assassination Records Review Board.
ACTION: Final rulemaking.
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SUMMARY: This part contains the regulations of the Assassination
Records Review Board (Review Board) implementing the Privacy Act of
1974. The regulations inform the public that the Review Board is
responsible for carrying out the provisions of the Privacy Act and for
issuing internal Review Board orders and directives in connection with
the Privacy Act. These regulations apply to all records that are
contained in systems of records maintained by the Review Board and that
are retrieved by an individual's name or personal identifier. Elsewhere
in today's Federal Register appears a notice describing the Review
Board's systems of records.
EFFECTIVE DATE: This regulation is effective January 16, 1996.
FOR FURTHER INFORMATION CONTACT: T. Jeremy Gunn, General Counsel,
Assassination Records Review Board, 600 E Street NW., 2nd Floor,
Washington, DC 20530.
SUPPLEMENTARY INFORMATION:
Background
Section 3(f) of the Privacy Act of 1974, 5 U.S.C. 552a(f), requires
each Federal agency to promulgate rules that set forth procedures by
which individuals can examine and request correction of agency records
containing personal information. The Review Board, established by the
President John F. Kennedy Assassination Records Collection Act of 1992,
is therefore obligated to publish such regulations.
Because Privacy Act regulations are intended for use by the general
public, the Review Board has tried to keep its rule simple and
straightforward. Some aspects of the Privacy Act dealing solely with
the Review Board's internal procedures and safeguards may be dealt with
by directive to the Review Board's staff rather than by rule.
Notice and Comment Process
The Review Board received no public comments in response to its
Notice of Proposed Rulemaking. The staff, in consultation with the
Office of Management and Budget, proposed some technical amendments to
the regulations. The following changes have been incorporated into the
final rule:
[[Page 64123]]
Privacy Act queries will be processed by a new Privacy Act Officer
rather than by the General Counsel. See Secs. 1415.10, 1415.15,
1415.20, and 1415.25.
The term person has been replaced throughout by the term individual
in order to clarify that corporations and other artificial persons are
not covered by the Privacy Act regulations.
The definition of system of records in Sec. 1415.10 has been
revised to clarify that assassination records coming into the Review
Board's temporary possession during its review are not subject to the
Privacy Act.
The procedures for the handling of Privacy Act requests has been
modified in Sec. 1415.25(b) to extend somewhat the timing of the Review
Board's response. The Privacy Act Officer is now allotted ten (rather
than five) days to respond to a request and is also given some latitude
for an additional extension of time if one proves warranted. Similarly,
the allotted time for the Executive Director's response to an appeal is
thirty (rather than twenty) days in Sec. 1415.30. The final rules also
provide, in Sec. 1415.35, more specific guidance for amending or
correcting errors that may appear in records.
Section 1415.55 has been rewritten to provide more specific
guidance on the exemptions applicable to the Review Board's various
systems of records.
Paperwork Reduction Act Statement
The rule is not subject to the provisions of the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501, et seq. (amended 1995), because
it does not contain any information collection requirements within the
meaning of 44 U.S.C. 3502(4).
Regulatory Flexibility Act Certification
As required by the Regulatory Flexibility Act of 1980 (RFA), 5
U.S.C. 601-12, the Review Board certifies that this rule will not have
a significant economic impact on a substantial number of small entities
and that, therefore, a regulatory flexibility analysis need not be
prepared, 5 U.S.C. 605(b).
Review by OMB
The Office of Management and Budget has reviewed the regulation
under Executive Order 12866.
List of Subjects in 36 CFR Part 1415
Privacy Act.
The Final Regulations
The Review Board amends chapter XIV in title 36 of the Code of
Federal Regulations by adding a new part 1415 to read as follows:
PART 1415--RULES IMPLEMENTING THE PRIVACY ACT
Sec.
1415.5 Scope.
1415.10 Definitions.
1415.15 Systems of records notification.
1415.20 Requests by individuals for access to their own records.
1415.25 Processing of requests.
1415.30 Appeals from access denials.
1415.35 Requests for amendment of records.
1415.40 Appeals from amendment of denials.
1415.45 Disclosure of records to third parties.
1415.50 Fees.
1415.55 Exemptions.
Authority: 5 U.S.C. 552a; 44 U.S.C. 2107.
Sec. 1415.5 Scope.
This part contains the Review Board's regulations implementing the
Privacy Act of 1974, 5 U.S.C. 552a.
Sec. 1415.10 Definitions.
In addition to the definitions provided in the Privacy Act, the
following terms are defined as follows:
Assassination records, for the purpose of this regulation only, are
records created by Government offices (other than the Review Board),
entities, and individuals that relate to the assassination of President
John F. Kennedy that may, from time to time, come into the temporary
custody of the Review Board but that are not the legal property of the
Review Board.
Executive Director means the principal staff official appointed by
the Review Board pursuant to 44 U.S.C. 2107.8(a).
JFK Act means the President John F. Kennedy Records Collection Act
of 1992.
Privacy Act Officer means the person designated by the Executive
Director to administer the Review Board's activities pursuant to the
regulations in this part.
Review Board means the Assassination Records Review Board created
pursuant to 44 U.S.C. 2107.7.
System of records means a group of records that is within the
possession and control of the Review Board and from which information
is retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual. Assassination records, as defined above, are not included
in the Review Board's systems of records.
Sec. 1415.15 Systems of records notification.
Any individual who wishes to know whether a system of records
contains a record pertaining to him or her may file a request in person
or in writing. Written requests should be directed to the Privacy Act
Officer, Assassination Records Review Board, 600 E Street, NW,
Washington, DC 20530, and should be clearly marked ``Privacy Act
Request.''
Sec. 1415.20 Requests by an individual for access to their own
records.
(a) Requests in writing. An individual may request access to his or
her own records in writing by addressing a letter to the Privacy Act
Officer, Assassination Records Review Board, 600 E Street, NW, 2nd
Floor, Washington, DC 20530. The request should contain the following
information:
(1) Full name, address, and telephone number of requester;
(2) Proof of identification, which should be a copy of one of the
following: Valid driver's license, valid passport, or other current
identification which contains both an address and picture of the
requester;
(3) The system of records in which the desired information is
contained; and
(4) At the requester's option, authorization for expenses (see
Sec. 1415.50 below).
(b) Requests in person. Any individual may examine his or her own
record on the Review Board's premises. To do so, the individual should
call the Review Board's offices at (202) 724-0088 and ask to speak to
the Privacy Act Officer. This call should be made at least two weeks
prior to the time the requester would like to see the records. During
this call, the requester should be prepared to provide the same
information as that listed in paragraph (a) of this section except for
proof of identification.
Sec. 1415.25 Processing of requests.
(a) The Privacy Act Officer will process all requests under both
the Freedom of Information Act and the Privacy Act.
(b) The Privacy Act Officer will respond to the request within ten
working days of its receipt by the Privacy Act Officer. If the Review
Board needs additional time to respond, the Privacy Act Officer will
provide the requester an explanation as to why the Review Board
requires an extension.
(c) Following the initial call from the requester, the Privacy Act
Officer will determine: whether the records identified by the requester
exist, and whether they are subject to any exemption under Sec. 1415.55
below. If the records exist and are not subject to exemption, the
Privacy Act Officer will call the requester and arrange an appointment
at a mutually agreeable time when the records can be examined. At the
appointment, the requester will
[[Page 64124]]
be asked to present identification as stated in Sec. 1415.20(a)(2). The
requester may be accompanied by one individual of his or her own
choosing, and should state during this call whether or not a second
individual will be present at the appointment. In the event that a
second individual accompanies the requester, the requester will be
asked to provide the Review Board with written consent to disclose his
or her records to the second individual.
(d) If a request is received for information compiled in reasonable
anticipation of a civil action or proceeding, the Privacy Act Officer
will determine whether to disclose the information and will inform the
requester whether this information is subject to release under the
Privacy Act (see 5 U.S.C. 552a(d)(5)).
Sec. 1415.30 Appeals from access denials.
When access to records has been denied in whole or in part by the
Privacy Act Officer, the requester may file an appeal in writing. This
appeal should be directed to the Executive Director, Assassination
Records Review Board, 600 E Street, NW., 2nd Floor, Washington, DC
20530. The appeal letter must specify those denied records that are
still sought and state why the denial by the Privacy Act Officer is
erroneous. The Executive Director or his representative will respond to
such appeals within thirty working days after the appeal letter is
received in the Review Board's offices, unless, for good cause shown,
the Executive Director extends such thirty day period. The appeal
determination will explain the basis for continuing to deny access to
any requested records and will notify the requester of his or her right
to judicial review of the Executive Director's determination.
Sec. 1415.35 Requests for amendment of records.
(a) Amendment requests. Any person is entitled to request amendment
of a record pertaining to him or her. This request must be made in
writing and should be addressed to the Privacy Act Officer,
Assassination Records Review Board, 600 E Street, NW., 2nd Floor,
Washington, DC 20530. The letter should clearly identify the amendments
desired. An edited copy will usually be acceptable for this purpose.
(b) Initial response. The Privacy Act Officer will acknowledge the
request for amendment within ten working days of receipt of the
request. The Privacy Act Officer will provide a letter to the requester
within thirty working days stating whether or not the request for
amendment has been granted or denied. The Privacy Act Officer will
amend information that is not accurate, relevant, timely, or complete,
unless the record is excluded or exempt. If the Privacy Act Officer
decides to deny any portion of the amendment request, the reasons for
the denial will be provided to the requester. In addition, the Privacy
Act Officer will inform the requester of his or her right to appeal the
Privacy Act Officer's determination to the Executive Director.
Sec. 1415.40 Appeals from amendment of denials.
(a) When amendment of records has been denied by the Privacy Act
Officer, the requester may file an appeal in writing. This appeal
should be directed to the Executive Director, Assassination Records
Review Board, 600 E Street, NW., 2nd Floor, Washington, DC 20530. The
appeal letter must specify the record subject to the appeal, and state
why the denial of amendment by the Privacy Act Officer is erroneous.
The Executive Director or his representative will respond to such
appeals within thirty working days (subject to extension by the
Executive Director for good cause) after the appeal letter has been
received in the Review Board's offices.
(b) The appeal determination, if adverse to the requester in any
respect, will:
(1) Explain the basis for denying amendment of the specified
records;
(2) Inform the requester that he or she may file a concise
statement setting forth reasons for disagreeing with the Executive
Director's determination; and
(3) Inform the requester of his or her right to pursue a judicial
remedy under 5 U.S.C. 552a(g)(1)(A).
Sec. 1415.45 Disclosure of records to third parties.
Records subject to the Privacy Act that are requested by a person
other than the individual to whom they pertain will not be made
available except in the following circumstances:
(a) Release is required under the Freedom of Information Act in
accordance with the Review Board's FOIA regulations, 36 CFR part 1410;
(b) Pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains; or
(c) Release is authorized by 5 U.S.C. 552a(b)(1) or (3) through
(11).
Sec. 1415.50 Fees.
A fee will not be charged for search or review of requested
records, or for amendment of records. When a request is made for copies
of records, a copying fee will be charged at the same rate established
for FOIA requests. See 36 CFR 1410.35. However, the first 100 pages
will be free of charge.
Sec. 1415.55 Exemptions.
(a) The systems of records entitled ``Personal Security Files'' and
``Subject File'' contain some information specifically authorized under
criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and which is properly
classified pursuant to such Executive Order. Therefore, to the extent
that information in these systems falls within the coverage of
exemption (k)(1) of the Privacy Act, 5 U.S.C. 552a(k)(1), these systems
of records are eligible for exemption from the requirements of the
following subsections of the Privacy Act: subsections (c)(3), (d),
(e)(1), (e)(4)(G), (H) and (I) and (f). Disclosure of information
properly classified pursuant to an Executive Order would jeopardize the
national defense or foreign policy of the United States.
(b) The systems of records entitled ``Agency Contacts,''
``Investigations,'' ``Public Contacts,'' and ``Subject File'' consist,
in part, of investigatory material compiled by the Review Board for law
enforcement purposes other than material within the scope of subsection
(j)(2) of 5 U.S.C. 552a. Provided however, that if any individual is
denied any right, privilege or benefit that he would otherwise be
entitled by Federal law, or for which he would otherwise be eligible,
as a result of the maintenance of such material, such material shall be
provided to such individual, except to the extent that the disclosure
of such material would reveal the identity of a source who furnished
information to the Government under an express promise that the
identity of the source would be held in confidence, or prior to January
1, 1975, under an implied promise that the identity of the source would
be held in confidence. Therefore, to the extent that information in
these systems falls within the coverage of exemption (k)(2) of the
Privacy Act, 5 U.S.C. 552a(k)(2), these systems of records are eligible
for exemption from the requirements of the following subsections of the
Privacy Act, for the reasons stated below.
(1) From subsection (c)(3) because release of the agency's
accounting of certain disclosures to an individual who is the subject
of an investigation could reveal the nature and scope of the
investigation and could result in the altering or destruction of
evidence, improper influencing of witnesses, and
[[Page 64125]]
other evasive actions that could impede or compromise the
investigation.
(2) From subsection (d) because release of investigative records to
an individual who is the subject of an investigation could interfere
with pending or prospective law enforcement proceedings, constitute an
unwarranted invasion of the personal privacy of third parties, reveal
the identity of confidential sources, or reveal sensitive investigative
techniques and procedures.
(3) From subsections (d)(2), (3), and (4) because amendment or
correction of investigative records could interfere with pending or
prospective law enforcement proceedings, or could impose an impossible
administrative and investigative burden by requiring the Review Board
continuously to retrograde its investigations attempting to resolve
questions of accuracy, relevance, timeliness, and completeness.
(4) From subsection (e)(1), because it is often impossible to
determine relevance or necessity of information in the early stages of
an investigation. The value of such information is a question of
judgment and timing; what appears relevant and necessary when collected
may ultimately be evaluated and viewed as irrelevant and unnecessary to
an investigation.
(5) From subsection (e)(4)(G) and (H), because the Review Board is
claiming an exemption for subsections (d) (Access to Records) and (f)
(Agency Rules) of the Act, these subsections are inapplicable to the
extent that these systems of records are exempted from subsections (d)
and (f).
(6) From subsection (f) because procedures for notice to an
individual pursuant to subsection (f)(1) as to the existence of records
pertaining to the person dealing with an actual or potential
investigation must be exempted because such notice to an individual
would be detrimental to the successful conduct of a pending or future
investigation. In addition, mere notice of an investigation could
inform the subject or others that their activities either are, or may
become, the subject of an investigation and might enable the subjects
to avoid detection or to destroy assassination records. Since the
Review Board is claiming an exemption for subsection (d) of the Act
(Access to Records) the rules require pursuant to subsection (f)(2)
through (5) are inapplicable to these systems of records to the extent
that these systems of records are exempted from subsection (d).
(c) The systems of records entitled ``Employment Applications'' and
``Personal Security Files'' consist in part of investigatory material
compiled by the Review Board for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment or Federal contracts, the release of which would reveal the
identity of a source who furnished information to the Government under
an express promise that the identity of the source would be held in
confidence. Therefore, to the extent that information in these systems
falls within the coverage of Exemption (k)(5) of the Privacy Act, 5
U.S.C. 552a(k)(5), these systems of records are eligible for exemption
from the requirements of subsection (d)(1), because release would
reveal the identity of a source who furnished information to the
Government under an express promise of confidentiality. Revealing the
identity of a confidential source could impede future cooperation by
sources, and could result in harassment or harm to such sources.
Dated: December 8, 1995.
David G. Marwell,
Executive Director, Assassination Records Review Board.
[FR Doc. 95-30384 Filed 12-13-95; 8:45 am]
BILLING CODE 6118-01-P
