[Federal Register Volume 78, Number 33 (Tuesday, February 19, 2013)]
[Rules and Regulations]
[Pages 11575-11577]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03693]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 001-2013]


Privacy Act of 1974; Implementation

AGENCY: Federal Bureau of Prisons, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice (DOJ or Department), Federal Bureau 
of Prisons (BOP), is issuing a final rule for the modified system of 
records notice entitled ``Inmate Central Records System'' (ICRS) 
(JUSTICE/BOP-005). This system is being exempted from certain 
subsections of the Privacy Act of 1974 listed below for the reasons set 
forth in the following text.

DATES: Effective: February 19, 2013.

FOR FURTHER INFORMATION CONTACT: Wanda M. Hunt, FOIA/Privacy Act Chief, 
Federal Bureau of Prisons, 202-514-6655.

SUPPLEMENTARY INFORMATION: On April 26, 2012, at 77 FR 24982, the 
Department published an updated Privacy Act system of records notice 
(SORN) for the ICRS, a BOP SORN originally published on August 27, 1975 
(40 FR 38704). The proposed SORN amendments reflected overall 
modernization and technological changes of BOP's information system, 
and included updates to system routine uses. On April 26, 2012, at 77 
FR 24878, the Department also published a proposed rule to amend 28 CFR 
16.97, which had previously established exemptions of the ICRS from 
various Privacy Act provisions, as expressly authorized by Privacy Act 
subsection (j). The proposed rule did not significantly change the 
previously established ICRS exemptions from Privacy Act subsections 
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(H), 
(5), and (8); (f); and (g). In addition to such exemptions, the 
proposed rule sought to exempt ICRS from Privacy Act subsections 
(e)(4)(G) and (I), add exemptions pursuant to Privacy Act subsection 
(k)(2), and made general editorial revisions to the reasons for the 
already existing ICRS exemptions. Public comments were invited. 
Comments on the proposed SORN changes were to be submitted by May 29, 
2012 (77 FR 24982); comments on the proposed rule were to be received 
by the Department's designated recipient by May 29, 2012 (77 FR 24878).
    The Department received comments from one member of the public. 
Although some of the comments received pertain to the applicability of 
exemptions to this SORN, the comments reference only the Federal 
Register citation for the proposed SORN modifications and not the 
proposed rule. Moreover, the comments were not received timely with 
regard to the proposed rule. Accordingly, the Department has carefully 
reviewed and analyzed these comments in the context of the SORN, but 
declines to adopt them and hereby implements the proposed rule without 
substantive change.
    The comments received to the SORN address four main issues: (1) The 
routine use disclosures to the news media and public; (2) the routine 
use disclosures to health care agencies/professionals; (3) the 
inapplicability of 5 U.S.C. 552a(j); and (4) the inapplicability of 5 
U.S.C. 552a(k). Responses to the comments are set forth below.
    First, the commenter objected to the scope and lack of specificity 
of two new routine uses, namely routine use (r) for disclosures to the 
news media and the public, and new routine use (t) for disclosures to 
health care agencies/professionals. The Department, however, maintains 
that these routine uses provide appropriate specificity, as each 
routine use indicates the purpose for permissible disclosures and 
incorporates a defined standard that further limits disclosures to data 
relevant to each routine use's particular purpose.
    Second, the commenter objected to disclosure of medical information 
without an individual's consent. The Department understands the 
sensitivity of medical information of former/current inmates, and thus, 
has instituted safeguards appropriate for this kind of information. The 
Department considers the health care disclosures encompassed in routine 
use (t) to be lawful, appropriate, and necessary to meet BOP's 
responsibilities for the safekeeping, care, and custody of incarcerated 
(and formerly incarcerated) persons and for the continued safety and 
security of federal prisons and the public.
    The commenter also objected to the applicability of 5 U.S.C. 552a 
(j) and (k). Subsection (j)(2) of the Privacy Act covers records 
created and maintained by the BOP. This subsection includes records 
maintained by any component that performs as its principal function any 
activity pertaining to the enforcement of criminal laws, including 
activities of correctional authorities (e.g. BOP). Further specified in 
subsection (j)(2) are the types of records that may be exempted, which 
include, for example: information compiled for the purpose of 
identifying individual criminal offenders and alleged offenders, 
including the nature and disposition of criminal charges, sentencing, 
confinement, release, and parole and probation status; and reports 
identifiable to an individual compiled at any stage of the process of 
enforcement of the criminal laws from arrest or indictment through 
release from supervision. Such records comprise the vast majority of 
records in the ICRS. Any ICRS records that would not be within the 
scope of subsection (j)(2) might nonetheless come within the scope of 
subsection (k)(2), and thus, are appropriately subject to the (k)(2)-
based exemptions that have now being established by this final rule. 
Moreover, the sections of the SORN that reflect the exemptions 
established by the underlying rule must necessarily conform to the 
exemption provisions finalized by this final rule.
    Additionally, as suggested by the commenter, the Department 
proposed, and hereby includes in paragraph 16.97(k) of the final rule, 
that the exemptions apply only to the extent that information in this 
system is subject to exemption under these subsections.
    Finally, the commenter alleged that the Department failed to 
provide a statement of reasons for the exemptions as required by the 
Privacy Act. However, the Department detailed the reasons for each 
exemption in paragraphs 16.97(k)(1)-(12) of both the proposed rule and 
final rule below. The SORN incorporates this underlying information via 
the section for ``Exemptions Claimed for the System,''

[[Page 11576]]

which expressly references the rule. Accordingly, the Department hereby 
declines to adopt changes to the ICRS SORN, and implements this 
corresponding exemption regulation without substantive change as set 
forth below.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
information, Privacy, Sunshine Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 28 
CFR part 16 is amended as follows:

PART 16--[AMENDED]

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Amend Sec.  16.97 by revising paragraphs (a)(4) through (7) and (j) 
and (k) to read as follows:


Sec.  16.97  Exemption of Bureau of Prisons Systems--limited access.

    (a) * * *
    (4) Inmate Commissary Accounts Record System (JUSTICE/BOP-006).
    (5) Inmate Physical and Mental Health Record System (JUSTICE/BOP-
007).
    (6) Inmate Safety and Accident Compensation Record System (JUSTICE/
BOP-008).
    (7) Federal Tort Claims Act Record System (JUSTICE/BOP-009).
* * * * *
    (j) The following system of records is exempt pursuant to 5 U.S.C. 
552a(j) and (k) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), 
(4)(G), (H), and (I), (5), (8); (f); and (g): Inmate Central Records 
System (JUSTICE/BOP-005).
    (k) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) 
and/or (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, because this system is 
exempt from the access provisions of subsection (d). Also, because 
making available to a record subject the accounting of disclosures from 
records concerning the subject individual would specifically reveal any 
investigative interest in the individual. Revealing this information 
may thus compromise ongoing law enforcement efforts, as well as efforts 
to identify and defuse any potential acts of terrorism. Revealing this 
information may also permit the subject individual to take measures to 
impede the investigation, such as destroying evidence, intimidating 
potential witnesses, or fleeing the area to avoid the investigation.
    (2) From subsection (c)(4) notification requirements because this 
system is exempt from the access and amendment provisions of subsection 
(d).
    (3) From subsections (d)(1), (2), (3), and (4), because these 
provisions concern individual access to and amendment of records, 
compliance with which could jeopardize the legitimate correctional 
interests of safety, security, and good order of prison facilities; 
alert the subject of a suspicious activity report of the fact and 
nature of the report and any underlying investigation and/or the 
investigative interest of the BOP and other law enforcement agencies; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, and/or 
flight of the subject; possibly identify a confidential source or 
disclose information which would constitute an unwarranted invasion of 
another's personal privacy; reveal a sensitive investigative or 
intelligence technique; or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses. Although the BOP has rules in place emphasizing that records 
should be kept up to date, the requirement for amendment of these 
records would interfere with ongoing law enforcement activities and 
impose an impossible administrative burden by requiring investigations, 
analyses, and reports to be continuously reinvestigated and revised.
    (4) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary for the 
proper safekeeping, care, and custody of incarcerated persons, and for 
the proper security and safety of federal prisons and the public. In 
addition, to the extent that the BOP may collect information that may 
also be relevant to the law enforcement operations of other agencies, 
in the interests of overall, effective law enforcement, such 
information should be retained and made available to those agencies 
with such relevant responsibilities.
    (5) From subsections (e)(2) because the nature of criminal 
investigative and correctional activities is such that vital 
information about an individual can be obtained from other persons who 
are familiar with such individual and his/her activities. In such 
investigations and activities, it is not feasible to rely solely upon 
information furnished by the individual concerning his/her own 
activities since it may result in inaccurate information and compromise 
ongoing criminal investigations or correctional management decisions.
    (6) From subsections (e)(3) because in view of BOP's operational 
responsibilities, the application of this provision would provide the 
subject of an investigation or correctional matter with significant 
information which may in fact impede the information gathering process 
or compromise ongoing criminal investigations or correctional 
management decisions.
    (7) From subsections (e)(4)(G) and (H) because this system is 
exempt from the access provisions of subsection (d).
    (8) From subsection (e)(4)(I) because publishing further details 
regarding categories of sources of records in the system may compromise 
ongoing investigations, reveal investigatory techniques and 
descriptions of confidential informants, or constitute a potential 
danger to the health or safety of law enforcement personnel.
    (9) From subsection (e)(5) because in the collection and 
maintenance of information for law enforcement purposes, it is 
difficult to determine in advance what information is accurate, 
relevant, timely, and complete. Data which may seem unrelated, 
irrelevant, or incomplete when collected may take on added meaning or 
significance during the course of an investigation or with the passage 
of time, and could be relevant to future law enforcement decisions. In 
addition, because many of these records come from courts and other 
state and local criminal justice agencies, it is administratively 
impossible for them and the BOP to ensure compliance with this 
provision. The restrictions of subsection (e)(5) would restrict and 
delay trained correctional managers from timely exercising their 
judgment in managing the inmate population and providing for the safety 
and security of the prisons and the public.
    (10) From subsection (e)(8), because to require individual notice 
of disclosure of information due to a compulsory

[[Page 11577]]

legal process would pose an impossible administrative burden on BOP and 
may alert subjects of investigations, who might otherwise be unaware, 
to the fact of those investigations.
    (11) From subsection (f) to the extent that this system is exempt 
from the provisions of subsection (d).
    (12) From subsection (g) to the extent that this system is exempted 
from other provisions of the Act.
* * * * *

    Dated: February 12, 2013.
Joo Y. Chung,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2013-03693 Filed 2-15-13; 8:45 am]
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