05-5654. General Services Administration Property Management Regulations; Privacy Act of 1974; New System of Records Exemption

AGENCY:

Office of Inspector General, General Services Administration (GSA).

ACTION:

Final rule.

SUMMARY:

The GSA Office of Inspector General (OIG) is publishing a final rule amending the General Services Administration Property Management Regulation (GSPMR) to exempt the new system of records, Internal Evaluation Case Files (GSA/ADM-25), from certain information disclosure provisions. Due to the law enforcement nature of the records, a rule amendment is required in order to invoke the relevant exemptions under the Privacy Act of 1974, as amended (5 U.S.C 552a). The exemption will assist the OIG to efficiently and effectively perform internal investigations and other authorized duties and activities.

DATES:

March 23, 2005.

FOR FURTHER INFORMATION CONTACT:

GSA Privacy Act Officer, General Services Administration, Office of the Chief People Officer, 1800 F Street NW, Washington DC 20405; telephone [phone].

ADDRESSES:

Any correspondence relating to this rule amendment should be submitted to the Office of Counsel to the Inspector General (JC), Office of Inspector General, General Services Administration, 1800 F Street NW, Washington DC 20405.

SUPPLEMENTARY INFORMATION:

A. Background

In the December 29, 2004, issue of the Federal Register, an OIG notice was published proposing the establishment of the new system of records “Internal Evaluation Case Files,” (GSA/ADM-25), under the Privacy Act, as amended, 5 U.S.C. 552a. An amendment to GSPMR 105-64.6 (41 CFR 105-64.6) is necessary to exempt that system of records from the provisions of the Act that require, among other things, that the OIG provide notice when collecting information, account for certain disclosures, permit individuals access to their records, and allow them to request that the records be amended. These provisions would interfere with the conduct of OIG internal investigations if applied to the OIG's maintenance of the proposed system of records.

Accordingly, the OIG exempts the system of records under sections (j)(2) and (k)(2) of the Privacy Act. Section (j)(2), 5 U.S.C. 552a(j)(2), exempts a system of records maintained by “the agency or component thereof which performs as its principal function any activity pertaining to enforcement of criminal laws . . ..” Section (k)(2), 5 U.S.C. § 552a(k)(2), exempts a system of records consisting of “investigatory materials compiled for law enforcement purposes,” where such materials are not within the scope of the (j)(2) exemption pertaining to criminal law enforcement.

Where applicable, section (j)(2) may be invoked to exempt a system of records from any Privacy Act provision except: 5 U.S.C. 552a(b) (conditions of disclosure); (c) (1) and (2) (accounting of disclosures and retention of accounting, respectively); (e)(4) (A) through (F) (system notice requirements); (e) (6), (7), (9), (10), and (11) (certain agency requirements relating to system maintenance); and (i) (criminal penalties). Section (k)(2) may be invoked to exempt a system of records from 5 U.S.C. 552a(c)(3) (making accounting of disclosures available to the subject individual); (d) (access to records); (e)(1) (G), (H) and (I) (notice of certain procedures); and (f) (promulgation of certain Privacy Act rules).

The system of records consists of information covered by the (j)(2) and (k)(2) exemptions. The OIG internal evaluation case files are maintained pursuant to official investigatory and law enforcement functions of the OIG under the authority of the Inspector General Act of 1978, Public Law 95-452, 5 U.S.C. App. 3 (1978). Furthermore, the OIG constitutes a GSA component that performs as one of its principal functions activities pertaining to the enforcement of criminal laws, see 5 U.S.C. 552a(j)(2). Information covered under the (j)(2) exemption includes, but is not limited to, information compiled for the purpose of identifying criminal offenders and alleged offenders and consisting of identifying data and notations of arrests, and the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; information compiled for the purpose of a criminal investigation, including reports of informants and investigators, that is associated with an identifiable individual; or reports of enforcement of the criminal laws from arrest or indictment through release from supervision. Information contained in OIG complaint and investigative files under the (k)(2) exemption relates to non-criminal law enforcement matters, such as information pertaining to the investigation of civil, administrative, or regulatory violations and similar wrongdoing.

Access by subject individuals, among others, to this system of records, including the names of persons or agencies to whom the information has been transmitted, would substantially compromise the effectiveness of OIG investigations. Knowledge of such investigations could enable suspects to take action to prevent detection of unlawful activities, conceal or destroy evidence, or escape prosecution. Disclosure of this information could lead to the intimidation of, or harm to, informants, witnesses, and their families and could jeopardize the safety and well being of investigative and related personnel and their families. The imposition of certain restrictions on the manner in which investigative information is collected, verified, or retained would significantly impede the effectiveness of OIG investigatory activities and, in addition, could preclude the apprehension and successful prosecution or discipline of persons engaged in fraud or other illegal activity.

For the above reasons, the OIG exempts the proposed system of records containing the OIG internal evaluation case files under exemptions (j)(2) and (k)(2) of the Privacy Act by amending GSPMR 105-64.6 (41 CFR 105-64.6), as provided below. Under this rule, the GSA and the OIG specify their systems of records that are exempt from the Privacy Act.

A notice of the proposed rule to amend the GSPMR was published on December 29, 2004, for public comment. No comments were received during the 30-day comment period. Therefore, the amendments are finalized in this final rule.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), GSA certifies that the amendment to its regulations would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. The purpose of the amendment, pursuant to the Privacy Act, is solely to exempt from disclosure certain files of the GSA's OIG that will be kept in a new system of records within the GSA OIG. The amendment imposes no new regulatory requirements either directly or indirectly on anyone, including small entities.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the GSPMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

D. Energy and Environment Considerations

We preliminarily conclude that this action will not significantly affect either the quality of the human environment or the conservation of energy resources.

List of Subjects in 41 CFR Part 105-64

• Privacy

Dated: March 15, 2005.

June V. Huber,

Director, Office of Information Management, Office of the Chief People Officer.

Therefore, GSA is amending 41 CFR part 105—64 as set forth below:

PART 105-64—REGULATIONS IMPLEMENTING THE PRIVACY ACT OF 1974

1. The authority citation for 41 CFR part 105-64 is amended to read as follows:

Authority: The authority provided by Pub. L. 152, Ch. 288, 63 Stat 377 (codified as amended in scattered section of 40 U.S.C. and 41 U.S.C.).

2. Amend section 105-64.601 by adding paragraph (c) before the undesignated paragraph following paragraph (b); and in the undesignated paragraph following new paragraph (c) by removing “and GSA/ADM-24” and adding ”, GSA/ADM-24, and GSA/ADM-25” in its place. The added text reads as follows:

105-64.601

General exemptions.

* * * * *

(c) Internal Evaluation Case Files, GSA/ADM-25.

* * * * *

2. Amend section 105-64.602 by adding paragraph (d) before the undesignated paragraph following paragraph (c); and in the second sentence of the undesignated paragraph following new paragraph (d) by removing the words “identify” and “which” and adding “identity” and “where”, respectively, in their place; and revising the last sentence. The added and revised text reads as follows:

105-64.602

Specific exemptions.

* * * * *

(d) Internal Evaluation Case Files, GSA/ADM-25.

* * * The systems are exempted to maintain the effectiveness and integrity of investigations conducted as part of the Federal Protective Service, Office of Inspector General, and internal security law enforcement duties or responsibilities in the areas of Federal employment, Government contracts, and access to security classified information.