[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38218-38224]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15429]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 /
Proposed Rules
[[Page 38218]]
SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
5 CFR Part 9301
RIN 3460-AA03
Office of Privacy, Records, and Disclosure; Privacy Act of 1974;
Proposed Implementation
AGENCY: Special Inspector General for Afghanistan Reconstruction.
ACTION: Proposed rule.
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SUMMARY: In accordance with the requirements of the Privacy Act of
1974, 5 U.S.C. 552a, the Special Inspector General for Afghanistan
Reconstruction (SIGAR) gives notice of a proposed amendment to this
part to exempt several systems of records maintained within the agency
from certain provisions of the Privacy Act.
DATES: Comments must be received no later than July 27, 2012.
ADDRESSES: Comments should be sent to Hugo Teufel, Acting General
Counsel, Special Inspector General for Afghanistan Reconstruction, 2530
Crystal Drive, Arlington, VA 22202-3934. Comments will be made
available for inspection upon written request. SIGAR will make such
comments available for public inspection in the Office of Privacy,
Records, and Disclosure, 9th Floor, 1550 Crystal Drive, Arlington, VA
22202, on official business days between the hours of 9 a.m. and 5 p.m.
Eastern time. You can make an appointment to inspect comments by
telephoning (703) 545-6000. All comments, including attachments and
other supporting materials, received are part of the public record and
subject to public disclosure. You should submit only information that
you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT: Kate Gastner, Public Information
Manager, Special Inspector General for Afghanistan Reconstruction, 2530
Crystal Drive, Arlington, VA 22202-3934, (703) 545-5993.
SUPPLEMENTARY INFORMATION: On January 28, 2008, the President signed
into law the National Defense Authorization Act for Fiscal Year 2008
(Pub. L. 110-181), which created the Special Inspector General for
Afghanistan Reconstruction (SIGAR). SIGAR is responsible for
coordinating and conducting audits and investigations to promote
efficiency and effectiveness of reconstruction programs, and to detect
and prevent waste, fraud, and abuse of taxpayers' dollars. Under 5
U.S.C. 301, heads of Executive or military departments may prescribe
regulations governing the conduct of its employees and the custody,
use, and preservation of the agency's records, papers, and property.
SIGAR is publishing separately the notices of the new systems of
records to be maintained by SIGAR.
The provisions of the Privacy Act upon which SIGAR is relying for
the exemptions are 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). Under 5
U.S.C. 552a(j)(2), the head of a Federal agency may promulgate rules to
exempt a system of records from certain provisions of 5 U.S.C. 552a if
the system of records is ``maintained by an agency or component thereof
which performs as its principal function any activity pertaining to the
enforcement of criminal laws'', and includes information compiled for
the purpose of a criminal investigation, including reports of
informants and investigators, and associated with an identifiable
individual; and reports identifiable to an individual compiled at any
stage of the process of enforcement of the criminal laws.
To the extent that these systems of records contain investigative
material within the provisions of 5 U.S.C. 552a(j)(2), SIGAR proposes
to exempt the following systems of records from various provisions of
the Privacy Act pursuant to 5 U.S.C. 552a(j)(2):
SIGAR-04 Freedom of Information Act and Privacy Act Records;
SIGAR-05 Audit Records;
SIGAR-06 Correspondence Records;
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records;
SIGAR-10 Legislative Inquiries and Correspondence.
The proposed exemption under 5 U.S.C. 552a(j)(2) for the above-
referenced systems of records is from provisions 5 U.S.C. 552a(c)(3),
(c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
5 U.S.C. 552a(e)(4)(G) and (f)(l) enable individuals to inquire
whether a system of records contains records pertaining to themselves.
5 U.S.C. 552a(d)(1), (e)(4)(H), and (f)(2), (3), and (5) grant
individuals access, or concern procedures by which an individual may
gain access, to records pertaining to themselves. 5 U.S.C. 552a(d)(2),
(3), and (4), (e)(4)(H), and (f)(4) permit an individual to request
amendment of a record pertaining to the individual or concern related
procedures, and require the agency either to amend the record or to
note the disputed portion of the record, and to provide a copy of the
individual's statement of disagreement with the agency's refusal to
amend a record to persons or other agencies to whom the record is
thereafter disclosed.
5 U.S.C. 552a(c)(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. 5 U.S.C. 552a(c)(4) requires an agency to
inform any person or other agency about any correction or notation of
dispute that the agency made in accordance with 5 U.S.C. 552a(d) to any
record that the agency disclosed to the person or agency if an
accounting of the disclosure was made. 5 U.S.C. 552a(e)(4)(I) requires
an agency to publish a general notice listing the categories of sources
for information contained in a system of records.
5 U.S.C. 552a(e)(1) requires an agency to maintain in its records
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order. 5 U.S.C. 552a(e)(2) requires an agency to
collect information to the greatest extent practicable directly from
the subject individual when the information may result in adverse
determinations about an individual's rights, benefits, and privileges
under Federal programs. 5 U.S.C. 552a(e)(3) requires an agency to
inform each individual, whom it asks to supply information, of the
agency's authority for soliciting the information, whether disclosure
of information is voluntary or mandatory, the principal purpose(s) for
which the agency will use the information, the routine uses that may
[[Page 38219]]
be made of the information, and the effects on the individual of not
providing all or part of the information.
5 U.S.C. 552a(e)(5) requires an agency to maintain all records it
uses in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination. 5
U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to
serve notice on an individual when the agency makes any record on the
individual available to any person under compulsory legal process, when
such process becomes a matter of public record. 5 U.S.C. 552a(g)
provides for civil remedies to an individual when an agency wrongfully
refuses to amend a record or to review a request for amendment, when an
agency wrongfully refuses to grant access to a record, when an agency
fails to maintain accurate, relevant, timely, and complete records
which are used to make a determination adverse to the individual, and
when an agency fails to comply with any other provision of 5 U.S.C.
552a so as to adversely affect the individual.
Under 5 U.S.C. 552a(k)(1), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act to the extent that the system contains
information subject to the provisions of 5 U.S.C. 552(b)(1), to protect
material authorized to be kept secret in the interest of national
defense or foreign policy pursuant to Executive Order.
To the extent that these systems of records contain national
defense or foreign policy information within the provisions of 5 U.S.C.
55a(k)(1), SIGAR proposes to exempt the following systems of records
from various provisions of the Privacy Act pursuant to 5 U.S.C.
552a(k)(1):
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records.
The proposed exemption under 5 U.S.C. 552a(k)(1) for the above-
referenced systems of records is from provisions of 5 U.S.C.
552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C.
552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
5 U.S.C. 552a(c)(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. 5 U.S.C. 552a(d)(1), (e)(4)(H), and (f)(2),
(3), and (5) grant individuals access, or concern procedures by which
an individual may gain access, to records pertaining to them. 5 U.S.C.
552a(d)(2), (3), and (4), (e)(4)(H), and (f)(4) permit an individual to
request amendment of a record pertaining to the individual or concern
related procedures, and require the agency either to amend the record
or to note the disputed portion of the record, and to provide a copy of
the individual's statement of disagreement with the agency's refusal to
amend a record to persons or other agencies to whom the record is
thereafter disclosed.
5 U.S.C. 552a(e)(1) requires an agency to maintain in its records
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order. 5 U.S.C. 552a(e)(4)(G) and (f)(1) enable
individuals to inquire whether a system of records contains records
pertaining to them. Application of these provisions to the above-
referenced systems of records could allow individuals to learn whether
they have been identified as subjects of investigation. 5 U.S.C.
552a(e)(4)(I) requires an agency to publish a general notice listing
the categories of sources for information contained in a system of
records.
Under 5 U.S.C. 552a(k)(2), the head of a Federal agency may
promulgate rules to exempt a system of records from certain provisions
of 5 U.S.C. 552a if the system of records is ``investigatory material
compiled for law enforcement purposes, other than material within the
scope of subsection (j)(2).'' To the extent that these systems of
records contain investigative material within the provisions of 5
U.S.C. 552a(k)(2), SIGAR proposes to exempt the following systems of
records from various provisions of the Privacy Act pursuant to 5 U.S.C.
552a(k)(2):
SIGAR-04 Freedom of Information Act and Privacy Act Records;
SIGAR-05 Audit Records;
SIGAR-06 Correspondence Records;
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records;
SIGAR-10 Legislative Inquiries and Correspondence.
The proposed exemption under 5 U.S.C. 552a(k)(2) for the above-
referenced systems of records is from provisions 5 U.S.C. 552a(c)(3),
(d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I), and (f).
5 U.S.C. 552a(c)(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. 5 U.S.C. 552a(d)(1), (e)(4)(H), and (f)(2),
(3), and (5) grant individuals access, or concern procedures by which
an individual may gain access, to records pertaining to them. 5 U.S.C.
552a(d)(2), (3), and (4), (e)(4)(H), and (f)(4) permit an individual to
request amendment of a record pertaining to the individual or concern-
related procedures, and require the agency either to amend the record
or to note the disputed portion of the record, and to provide a copy of
the individual's statement of disagreement with the agency's refusal to
amend a record to persons or other agencies to whom the record is
thereafter disclosed.
5 U.S.C. 552a(e)(1) requires an agency to maintain in its records
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order. 5 U.S.C. 552a(e)(4)(G) and (f)(1) enable
individuals to inquire whether a system of records contains records
pertaining to them. Application of these provisions to the above-
referenced systems of records could allow individuals to learn whether
they have been identified as subjects of investigation. 5 U.S.C.
552a(e)(4)(I) requires an agency to publish a general notice listing
the categories of sources for information contained in a system of
records.
Any information from a system of records for which an exemption is
claimed under 5 U.S.C. 552a(j) or (k) which is also included in another
system of records retains the same exempt status such information has
in the system for which such exemption is claimed.
This proposed rule is not a ``significant regulatory action'' under
Executive Order 12866.
Pursuant to the requirements of the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601-612, it is hereby certified that this rule will not
have significant economic impact on a substantial number of small
entities. The term ``small entity'' is defined to have the same meaning
as the terms ``small business,'' ``small organization'' and ``small
governmental jurisdiction'' as defined in the RFA.
The proposed regulation, issued under section 522a(j)(2) and (k) of
the Privacy Act, is to exempt certain information maintained by SIGAR
in the above systems of records from notification, access and amendment
of a record by individuals who are citizens of the United States or
aliens lawfully admitted for permanent residence. In as much as the
Privacy Act rights are personal and apply only to U.S. citizens or an
alien lawfully admitted for permanent residence, small entities, as
defined in the RFA, are not provided
[[Page 38220]]
rights under the Privacy Act and are outside the scope of this
regulation.
Dated: June 19, 2012.
Steven J. Trent,
Acting Inspector General.
List of Subjects in 5 CFR Part 9301
Administrative practice and procedure, Freedom of information,
Privacy.
For the reasons set forth above, SIGAR proposes to amend 5 CFR part
9301 as follows:
PART 9301--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for part 9301 continues to read as
follows:
Authority: Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat.
1896, codified at 5 U.S.C. 552a(f) (agency rules).
2. Add Sec. 9301.20 to subpart B to read as follows:
Sec. 9301.20 Systems exempt in whole or in part from provisions of 5
U.S.C. 552a and this part.
(a) In General. In accordance with 5 U.S.C. 552a(j) and (k), SIGAR
hereby exempts the systems of records identified below from the
following provisions of the Privacy Act for the reasons indicated.
(b) Authority. These rules are promulgated pursuant to the
authority vested in the Special Inspector General by 5 U.S.C. 552a (j)
and (k).
(c) General exemptions under 5 U.S.C. 552a(j)(2). (1) Under 5
U.S.C. 552a(j)(2), the head of any agency may promulgate rules to
exempt any system of records within the agency from certain provisions
of the Privacy Act of 1974 if the agency or component thereof that
maintains the system performs as its principal function any activities
pertaining to the enforcement of criminal laws. Certain components of
SIGAR have as their principal function activities pertaining to the
enforcement of criminal laws and protective service activities which
are necessary to assure the safety of individuals protected by SIGAR
pursuant to the provisions of 18 U.S.C. 3056. This paragraph applies to
the following systems of records maintained by SIGAR:
SIGAR-04 Freedom of Information Act and Privacy Act Records;
SIGAR-05 Audit Records;
SIGAR-06 Correspondence Records;
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records;
SIGAR-10 Legislative Inquiries and Correspondence.
(2) SIGAR hereby exempts the systems of records listed in
paragraphs (c)(1)(i) of this section from the following provisions of 5
U.S.C. 552a, pursuant to 5 U.S.C. 552a(j)(2): 5 U.S.C. 552a(c)(3) and
(4), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), (2) and
(3), 5 U.S.C. 552a(e)(4)(G), (H), and (I), 5 U.S.C. 552a(e)(5) and (8),
5 U.S.C. 552a(f), and 5 U.S.C. 552a(g).
(d) Reasons for exemptions under 5 U.S.C. 552a(j)(2). (1) 5 U.S.C.
552a(e)(4)(G) and (f)(l) enable individuals to inquire whether a system
of records contains records pertaining to them. Application of these
provisions to the systems of records would give individuals an
opportunity to learn whether they have been identified as suspects or
subjects of investigation. As further described in (d)(2) of this
section, access to such knowledge would impair SIGAR's ability to carry
out its mission, since individuals could:
(i) Take steps to avoid detection;
(ii) Inform associates that an investigation is in progress;
(iii) Learn the nature of the investigation;
(iv) Learn whether they are only suspects or identified as law
violators;
(v) Begin, continue, or resume illegal conduct upon learning that
they are not identified in the system of records; or
(vi) Destroy evidence needed to prove the violation.
(2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant
individuals access to records pertaining to them. The application of
these provisions to the systems of records would compromise SIGAR's
ability to provide useful tactical and strategic information to law
enforcement agencies.
(i) Permitting access to records contained in the systems of
records would provide individuals with information concerning the
nature of any current investigations and would enable them to avoid
detection or apprehension by:
(A) Discovering the facts that would form the basis for their
arrest;
(B) Enabling them to destroy or alter evidence of criminal conduct
that would form the basis for their arrest; and
(C) Using knowledge that criminal investigators had reason to
believe that a crime was about to be committed, to delay the commission
of the crime or commit it at a location that might not be under
surveillance.
(ii) Permitting access to either on-going or closed investigative
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning crimes to
structure their operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could,
moreover, disclose the identity of confidential sources and informers
and the nature of the information supplied and thereby endanger the
physical safety of those sources by exposing them to possible reprisals
for having provided the information. Confidential sources and informers
might refuse to provide criminal investigators with valuable
information unless they believed that their identities would not be
revealed through disclosure of their names or the nature of the
information they supplied. Loss of access to such sources would
seriously impair SIGAR's ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the
systems of records could reveal the identities of undercover law
enforcement officers who compiled information regarding the
individual's criminal activities and thereby endanger the physical
safety of those undercover officers or their families by exposing them
to possible reprisals.
(v) By compromising the law enforcement value of the systems of
records for the reasons outlined in paragraphs (d)(2)(i) through (iv)
of this section, permitting access in keeping with these provisions
would discourage other law enforcement and regulatory agencies, foreign
and domestic, from freely sharing information with SIGAR and thus would
restrict SIGAR's access to information necessary to accomplish its
mission most effectively.
(vi) Limitation on access to the material contained in the
protective intelligence files is considered necessary to the
preservation of the utility of intelligence files and in safeguarding
those persons SIGAR is authorized to protect. Access to the protective
intelligence files could adversely affect the quality of information
available to SIGAR; compromise confidential sources, hinder the ability
of SIGAR to keep track of persons of protective interest; and interfere
with SIGAR's protective intelligence activities by individuals gaining
access to protective intelligence files.
(vii) Many of the persons on whom records are maintained in the
protective intelligence suffer from mental aberrations. Knowledge of
their condition and progress comes from authorities, family members and
witnesses. Many times this information comes to SIGAR as a result of
two party conversations where it would be impossible to hide the
identity of informants. Sources of information must be developed,
questions asked and
[[Page 38221]]
answers recorded. Trust must be extended and guarantees of
confidentiality and anonymity must be maintained. Allowing access to
information of this kind to individuals who are the subjects of
protective interest may well lead to violence directed against an
informant by a mentally disturbed individual.
(viii) Finally, the dissemination of certain information that SIGAR
may maintain in the systems of records is restricted by law.
(3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit
an individual to request amendment of a record pertaining to him or her
and require the agency either to amend the record, or to note the
disputed portion of the record and to provide a copy of the
individual's statement of disagreement with the agency's refusal to
amend a record to persons or other agencies to whom the record is
thereafter disclosed. Since these provisions depend on the individual's
having access to his or her records, and since these rules exempt the
systems of records from the provisions of 5 U.S.C. 552a relating to
access to records, for the reasons set out in paragraph (d)(2) of this
section, these provisions should not apply to the systems of records.
(4) 5 U.S.C. 552a(c)(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. The accountings must state the date, nature,
and purpose of each disclosure of the record and the name and address
of the recipient.
(i) The application of this provision would impair the ability of
law enforcement agencies outside SIGAR to make effective use of
information provided by SIGAR. Making accountings of disclosures
available to the subjects of an investigation would alert them to the
fact that another agency is conducting an investigation into their
criminal activities and could reveal the geographic location of the
other agency's investigation, the nature and purpose of that
investigation, and the dates on which that investigation was active.
Violators possessing such knowledge would be able to take measures to
avoid detection or apprehension by altering their operations, by
transferring their criminal activities to other geographical areas, or
by destroying or concealing evidence that would form the basis for
arrest. In the case of a delinquent account, such release might enable
the subject of the investigation to dissipate assets before levy.
(ii) Moreover, providing accountings to the subjects of
investigations would alert them to the fact that SIGAR has information
regarding their criminal activities and could inform them of the
general nature of that information. Access to such information could
reveal the operation of SIGAR's information-gathering and analysis
systems and permit violators to take steps to avoid detection or
apprehension.
(iii) The release of such information to the subject of a
protective intelligence file would provide significant information
concerning the nature of an investigation, and could result in impeding
or compromising the efforts of Department personnel to detect persons
suspected of criminal activities or to collect information necessary
for the proper evaluation of persons considered to be of protective
interest.
(5) 5 U.S.C. 552(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute that the
agency made in accordance with 5 U.S.C. 552a(d) to any record that the
agency disclosed to the person or agency if an accounting of the
disclosure was made. Since this provision depends on an individual's
having access to and an opportunity to request amendment of records
pertaining to him or her, and since these rules exempt the systems of
records from the provisions of 5 U.S.C. 552a relating to access to and
amendment of records, for the reasons set out in paragraph (f)(3) of
this section, this provision should not apply to the systems of
records.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general
notice listing the categories of sources for information contained in a
system of records. The application of this provision to the systems of
records could compromise SIGAR's ability to provide useful information
to law enforcement agencies, since revealing sources for the
information could:
(i) Disclose investigative techniques and procedures;
(ii) Result in threats or reprisals against informers by the
subjects of investigations; and
(iii) Cause informers to refuse to give full information to
criminal investigators for fear of having their identities as sources
disclosed.
(7) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain,'' as
defined in 5 U.S.C. 552a(a)(3), includes ``collect'' and
``disseminate.'' The application of this provision to the systems of
records could impair SIGAR's ability to collect and disseminate
valuable law enforcement information.
(i) At the time that SIGAR collects information, it often lacks
sufficient time to determine whether the information is relevant and
necessary to accomplish a SIGAR purpose.
(ii) In many cases, especially in the early stages of
investigation, it may be impossible to immediately determine whether
information collected is relevant and necessary, and information that
initially appears irrelevant and unnecessary often may, upon further
evaluation or upon collation with information developed subsequently,
prove particularly relevant to a law enforcement program.
(iii) Compliance with the records maintenance criteria listed in
the foregoing provision would require the periodic up-dating of SIGAR's
protective intelligence files to insure that the records maintained in
the system remain timely and complete.
(iv) Not all violations of law discovered by SIGAR fall within the
investigative jurisdiction of SIGAR. To promote effective law
enforcement, SIGAR will have to disclose such violations to other law
enforcement agencies, including State, local and foreign agencies, that
have jurisdiction over the offenses to which the information relates.
Otherwise, SIGAR might be placed in the position of having to ignore
information relating to violations of law not within the jurisdiction
of SIGAR when that information comes to SIGAR's attention during the
collation and analysis of information in its records.
(8) 5 U.S.C. 552a(e)(2) requires an agency to collect information
to the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision to the systems of records would
impair SIGAR's ability to collate, analyze, and disseminate
investigative, intelligence, and enforcement information.
(i) Most information collected about an individual under criminal
investigation is obtained from third parties, such as witnesses and
informants. It is usually not feasible to rely upon the subject of the
investigation as a source for information regarding his criminal
activities.
(ii) An attempt to obtain information from the subject of a
criminal investigation will often alert that individual to the
existence of an investigation, thereby affording the
[[Page 38222]]
individual an opportunity to attempt to conceal his criminal activities
so as to avoid apprehension.
(iii) In certain instances, the subject of a criminal investigation
is not required to supply information to criminal investigators as a
matter of legal duty.
(iv) During criminal investigations it is often a matter of sound
investigative procedure to obtain information from a variety of sources
to verify information already obtained.
(9) 5 U.S.C. 552a(e)(3) requires an agency to inform each
individual whom it asks to supply information, on the form that it uses
to collect the information or on a separate form that the individual
can retain, of the agency's authority for soliciting the information;
whether disclosure of information is voluntary or mandatory; the
principal purposes for which the agency will use the information; the
routine uses that may be made of the information; and the effects on
the individual of not providing all or part of the information. The
systems of records should be exempted from this provision to avoid
impairing SIGAR's ability to collect and collate investigative,
intelligence, and enforcement data.
(i) Confidential sources or undercover law enforcement officers
often obtain information under circumstances in which it is necessary
to keep the true purpose of their actions secret so as not to let the
subject of the investigation or his or her associates know that a
criminal investigation is in progress.
(ii) If it became known that the undercover officer was assisting
in a criminal investigation, that officer's physical safety could be
endangered through reprisal, and that officer may not be able to
continue working on the investigation.
(iii) Individuals often feel inhibited in talking to a person
representing a criminal law enforcement agency but are willing to talk
to a confidential source or undercover officer whom they believe not to
be involved in law enforcement activities.
(iv) Providing a confidential source of information with written
evidence that he or she was a source, as required by this provision,
could increase the likelihood that the source of information would be
subject to retaliation by the subject of the investigation.
(v) Individuals may be contacted during preliminary information
gathering, surveys, or compliance projects concerning the
administration of the internal revenue laws before any individual is
identified as the subject of an investigation. Informing the individual
of the matters required by this provision would impede or compromise
subsequent investigations.
(vi) Finally, application of this provision could result in an
unwarranted invasion of the personal privacy of the subject of the
criminal investigation, particularly where further investigation
reveals that the subject was not involved in any criminal activity.
(10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records
it uses in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
(i) Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include
``collect'' and ``disseminate,'' application of this provision to the
systems of records would hinder the initial collection of any
information that could not, at the moment of collection, be determined
to be accurate, relevant, timely, and complete. Similarly, application
of this provision would seriously restrict SIGAR's ability to
disseminate information pertaining to a possible violation of law to
law enforcement and regulatory agencies. In collecting information
during a criminal investigation, it is often impossible or unfeasible
to determine accuracy, relevance, timeliness, or completeness prior to
collection of the information. In disseminating information to law
enforcement and regulatory agencies, it is often impossible to
determine accuracy, relevance, timeliness, or completeness prior to
dissemination, because SIGAR may not have the expertise with which to
make such determinations.
(ii) Information that may initially appear inaccurate, irrelevant,
untimely, or incomplete may, when collated and analyzed with other
available information, become more pertinent as an investigation
progresses. In addition, application of this provision could seriously
impede criminal investigators and intelligence analysts in the exercise
of their judgment in reporting results obtained during criminal
investigations.
(iii) Compliance with the records maintenance criteria listed in
the foregoing provision would require the periodic up-dating of SIGAR's
protective intelligence files to insure that the records maintained in
the system remain timely and complete.
(11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when the agency makes any
record on the individual available to any person under compulsory legal
process, when such process becomes a matter of public record. The
systems of records should be exempted from this provision to avoid
revealing investigative techniques and procedures outlined in those
records and to prevent revelation of the existence of an ongoing
investigation where there is need to keep the existence of the
investigation secret.
(12) 5 U.S.C. 552a(g) provides for civil remedies to an individual
when an agency wrongfully refuses to amend a record or to review a
request for amendment, when an agency wrongfully refuses to grant
access to a record, when an agency fails to maintain accurate,
relevant, timely, and complete records which are used to make a
determination adverse to the individual, and when an agency fails to
comply with any other provision of 5 U.S.C. 552a so as to adversely
affect the individual. The systems of records should be exempted from
this provision to the extent that the civil remedies may relate to
provisions of 5 U.S.C. 552a from which these rules exempt the systems
of records, since there should be no civil remedies for failure to
comply with provisions from which SIGAR is exempted. Exemption from
this provision will also protect SIGAR from baseless civil court
actions that might hamper its ability to collate, analyze, and
disseminate investigative, intelligence, and law enforcement data.
(e) Specific exemptions under 5 U.S.C. 552a(k)(1). (1) Under 5
U.S.C. 552a(k)(1), the head of any agency may promulgate rules to
exempt any system of records within the agency from certain provisions
of the Privacy Act to the extent that the system contains information
subject to the provisions of 5 U.S.C. 552(b)(1). This paragraph applies
to the following systems of records maintained by SIGAR:
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records.
(2) SIGAR hereby exempts the systems of records listed in paragraph
(e)(1) of this section from the following provisions of 5 U.S.C. 552a,
pursuant to 5 U.S.C. 552a(k)(1): 5 U.S.C. 552a(c)(3), 5 U.S.C.
552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C.
552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(f) Reasons for exemptions under 5 U.S.C. 552a(k)(1). The reason
for invoking the exemption is to protect material authorized to be kept
secret in the interest of national defense or foreign policy pursuant
to Executive Orders 12958, 13526, or successor or prior Executive
Orders.
(g) Specific exemptions under 5 U.S.C. 552a(k)(2). (1) Under 5
U.S.C. 552a(k)(2), the head of any agency may
[[Page 38223]]
promulgate rules to exempt any system of records within the agency from
certain provisions of the Privacy Act of 1974 if the system is
investigatory material compiled for law enforcement purposes and for
the purposes of assuring the safety of individuals protected by SIGAR
pursuant to the provisions of 18 U.S.C. 3056. This paragraph applies to
the following systems of records maintained by SIGAR:
SIGAR-04 Freedom of Information Act and Privacy Act Records;
SIGAR-05 Audit Records;
SIGAR-06 Correspondence Records;
SIGAR-07 Hotline Records;
SIGAR-08 Investigation Records;
SIGAR-09 Legal Records;
SIGAR-10 Legislative Inquiries and Correspondence.
(2) SIGAR hereby exempts the systems of records listed in
paragraphs (g)(1)(i) of this section from the following provisions of 5
U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), 5
U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), 5 U.S.C.
552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).
(h) Reasons for exemptions under 5 U.S.C. 552a(k)(2). (1) 5 U.S.C.
552a(c)(3) requires an agency to make accountings of disclosures of a
record available to the individual named in the record upon his or her
request. The accountings must state the date, nature, and purpose of
each disclosure of the record and the name and address of the
recipient.
(i) The application of this provision would impair the ability of
SIGAR and of law enforcement agencies outside SIGAR to make effective
use of information maintained by SIGAR. Making accountings of
disclosures available to the subjects of an investigation would alert
them to the fact that an agency is conducting an investigation into
their illegal activities and could reveal the geographic location of
the investigation, the nature and purpose of that investigation, and
the dates on which that investigation was active. Violators possessing
such knowledge would be able to take measures to avoid detection or
apprehension by altering their operations, by transferring their
illegal activities to other geographical areas, or by destroying or
concealing evidence that would form the basis for detection or
apprehension. In the case of a delinquent account, such release might
enable the subject of the investigation to dissipate assets before
levy.
(ii) Providing accountings to the subjects of investigations would
alert them to the fact that SIGAR has information regarding their
illegal activities and could inform them of the general nature of that
information.
(2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant
individuals access to records pertaining to them. The application of
these provisions to the systems of records would compromise SIGAR's
ability to utilize and provide useful tactical and strategic
information to law enforcement agencies.
(i) Permitting access to records contained in the systems of
records would provide individuals with information concerning the
nature of any current investigations and would enable them to avoid
detection or apprehension by:
(A) Discovering the facts that would form the basis for their
detection or apprehension;
(B) Enabling them to destroy or alter evidence of illegal conduct
that would form the basis for their detection or apprehension, and
(C) Using knowledge that investigators had reason to believe that a
violation of law was about to be committed, to delay the commission of
the violation or commit it at a location that might not be under
surveillance.
(ii) Permitting access to either on-going or closed investigative
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning non-criminal acts
to structure their operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could,
moreover, disclose the identity of confidential sources and informers
and the nature of the information supplied and thereby endanger the
physical safety of those sources by exposing them to possible reprisals
for having provided the information. Confidential sources and informers
might refuse to provide investigators with valuable information unless
they believed that their identities would not be revealed through
disclosure of their names or the nature of the information they
supplied. Loss of access to such sources would seriously impair SIGAR's
ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the
systems of records could reveal the identities of undercover law
enforcement officers or other persons who compiled information
regarding the individual's illegal activities and thereby endanger the
physical safety of those undercover officers, persons, or their
families by exposing them to possible reprisals.
(v) By compromising the law enforcement value of the systems of
records for the reasons outlined in paragraphs (h)(2)(i) through (iv)
of this section, permitting access in keeping with these provisions
would discourage other law enforcement and regulatory agencies, foreign
and domestic, from freely sharing information with SIGAR and thus would
restrict SIGAR's access to information necessary to accomplish its
mission most effectively.
(vi) Finally, the dissemination of certain information that SIGAR
may maintain in the systems of records is restricted by law.
(3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit
an individual to request amendment of a record pertaining to him or her
and require the agency either to amend the record, or to note the
disputed portion of the record and to provide a copy of the
individual's statement of disagreement with the agency's refusal to
amend a record to persons or other agencies to whom the record is
thereafter disclosed. Since these provisions depend on the individual's
having access to his or her records, and since these rules exempt the
systems of records from the provisions of 5 U.S.C. 552a relating to
access to records, for the reasons set out in paragraph (h)(2) of this
section, these provisions should not apply to the systems of records.
(4) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain,'' as
defined in 5 U.S.C. 552a(a)(3), includes ``collect'' and
``disseminate.'' The application of this provision to the system of
records could impair SIGAR's ability to collect, utilize and
disseminate valuable law enforcement information.
(i) At the time that SIGAR collects information, it often lacks
sufficient time to determine whether the information is relevant and
necessary to accomplish a Department purpose.
(ii) In many cases, especially in the early stages of
investigation, it may be impossible immediately to determine whether
information collected is relevant and necessary, and information that
initially appears irrelevant and unnecessary often may, upon further
evaluation or upon collation with information developed subsequently,
prove particularly relevant to a law enforcement program.
(iii) Not all violations of law discovered by SIGAR analysts fall
within the investigative jurisdiction of
[[Page 38224]]
SIGAR. To promote effective law enforcement, SIGAR will have to
disclose such violations to other law enforcement agencies, including
State, local and foreign agencies that have jurisdiction over the
offenses to which the information relates. Otherwise, SIGAR might be
placed in the position of having to ignore information relating to
violations of law not within the jurisdiction of SIGAR when that
information comes to SIGAR's attention during the collation and
analysis of information in its records.
(5) 5 U.S.C. 552a (e)(4)(G) and (f)(1) enable individuals to
inquire whether a system of records contains records pertaining to
them. Application of these provisions to the systems of records would
allow individuals to learn whether they have been identified as
suspects or subjects of investigation. As further described in the
following paragraph, access to such knowledge would impair SIGAR's
ability to carry out its mission, since individuals could:
(i) Take steps to avoid detection;
(ii) Inform associates that an investigation is in progress;
(iii) Learn the nature of the investigation;
(iv) Learn whether they are only suspects or identified as law
violators;
(v) Begin, continue, or resume illegal conduct upon learning that
they are not identified in the system of records; or (vi) Destroy
evidence needed to prove the violation.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general
notice listing the categories of sources for information contained in a
system of records. The application of this provision to the systems of
records could compromise SIGAR's ability to complete or continue
investigations or to provide useful information to law enforcement
agencies, since revealing sources for the information could:
(i) Disclose investigative techniques and procedures;
(ii) Result in threats or reprisals against informers by the
subjects of investigations; and
(iii) Cause informers to refuse to give full information to
investigators for fear of having their identities as sources disclosed.
[FR Doc. 2012-15429 Filed 6-26-12; 8:45 am]
BILLING CODE 3710-L9-P