[Title 28 CFR 16]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 16 - PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falsePRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION16PART 16JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of Contents
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
16.1 General provisions.
16.2 Public reading rooms.
16.3 Requirements for making requests.
16.4 Responsibility for responding to requests.
16.5 Timing of responses to requests.
16.6 Responses to requests.
16.7 Classified information.
16.8 Business information.
16.9 Appeals.
16.10 Preservation of records.
16.11 Fees.
16.12 Other rights and services.
Subpart B--Production or Disclosure in Federal and State Proceedings
16.21 Purpose and scope.
16.22 General prohibition of production or disclosure in Federal and
State proceedings in which the United States is not a party.
16.23 General disclosure authority in Federal and State proceedings in
which the United States is a party.
16.24 Procedure in the event of a demand where disclosure is not
otherwise authorized.
16.25 Final action by the Deputy or Associate Attorney General.
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16.26 Considerations in determining whether production or disclosure
should be made pursuant to a demand.
16.27 Procedure in the event a department decision concerning a demand
is not made prior to the time a response to the demand is
required.
16.28 Procedure in the event of an adverse ruling.
16.29 Delegation by Assistant Attorneys General.
Appendix to Subpart B--Redelegation of Authority to the Deputy Assistant
Attorney General for Litigation, Antitrust Division, To
Authorize Production or Disclosure of Material or Information
Subpart C--Production of FBI Identification Records in Response to
Written Requests by Subjects Thereof
16.30 Purpose and scope.
16.31 Definition of identification record.
16.32 Procedure to obtain an identification record.
16.33 Fee for production of identification record.
16.34 Procedure to obtain change, correction or updating of
identification records.
Subpart D--Protection of Privacy and Access to Individual Records Under
the Privacy Act of 1974
16.40 General provisions.
16.41 Requests for access to records.
16.42 Responsibility for responding to requests for access to records.
16.43 Responses to requests for access to records.
16.44 Classified information.
16.45 Appeals from denials of requests for access to records.
16.46 Requests for amendment or correction of records.
16.47 Requests for an accounting of record disclosures.
16.48 Preservation of records.
16.49 Fees.
16.50 Notice of court-ordered and emergency disclosures.
16.51 Security of systems of records.
16.52 Contracts for the operation of record systems.
16.53 Use and collection of social security numbers.
16.54 Employee standards of conduct.
16.55 Other rights and services.
Subpart E--Exemption of Records Systems Under the Privacy Act
16.70 Exemption of the Office of the Attorney General System--limited
access.
16.71 Exemption of the Office of the Deputy Attorney General System--
limited access.
16.72 Exemption of Office of the Associate Attorney General System--
limited access.
16.73 Exemption of Office of Legal Policy System--limited access.
16.74 Exemption of Office of Intelligence Policy and Review Systems--
limited access.
16.75 Exemption of the Office of the Inspector General Systems/Limited
Access.
16.76 Exemption of Justice Management Division.
16.77 Exemption of U.S. Trustee Program System--limited access.
16.78 Exemption of the Special Counsel for Immigration-Related, Unfair
Employment Practices Systems.
16.79 Exemption of Pardon Attorney Systems.
16.80 Exemption of Office of Professional Responsibility System--
limited access.
16.81 Exemption of United States Attorneys Systems--limited access.
16.82 Exemption of the National Drug Intelligence Center Data Base--
limited access.
16.83 Exemption of the Executive Office for Immigration Review System--
limited access.
16.84 Exemption of Immigration Appeals System.
16.85 Exemption of U.S. Parole Commission--limited access.
16.88 Exemption of Antitrust Division Systems--limited access.
16.89 Exemption of Civil Division Systems--limited access.
16.90 Exemption of Civil Rights Division Systems.
16.91 Exemption of Criminal Division Systems--limited access, as
indicated.
16.92 Exemption of Environment and Natural Resources Division Systems--
limited access.
16.93 Exemption of Tax Division Systems--limited access.
16.96 Exemption of Federal Bureau of Investigation Systems--limited
access.
16.97 Exemption of Bureau of Prisons Systems--limited access.
16.98 Exemption of the Drug Enforcement Administration (DEA)--limited
access.
16.99 Exemption of the Immigration and Naturalization Service Systems-
limited access.
16.100 Exemption of Office of Justice Programs--limited access.
16.101 Exemption of U.S. Marshals Service Systems--limited access, as
indicated.
16.102 Exemption of Drug Enforcement Administration and Immigration and
Naturalization Service Joint System of Records.
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16.103 Exemption of the INTERPOL-United States National Central Bureau
(INTERPOL-USNCB) System.
16.104 Exemption of Office of Special Counsel--Waco System.
16.130 Exemption of Department of Justice Systems: Correspondence
Management Systems for the Department of Justice (DOJ-003);
Freedom of Information Act, Privacy Act and Mandatory
Declassification Review Requests and Administrative Appeals
for the Department of Justice (DOJ-004).
16.131 Exemption of Department of Justice (DOJ)/Nationwide Joint
Automated Booking System (JABS), DOJ-005.
Subpart F--Public Observation of Parole Commission Meetings
16.200 Definitions.
16.201 Voting by the Commissioners without joint deliberation.
16.202 Open meetings.
16.203 Closed meetings--Formal procedure.
16.204 Public notice.
16.205 Closed meetings--Informal procedures.
16.206 Transcripts, minutes, and miscellaneous documents concerning
Commission meetings.
16.207 Public access to nonexempt transcripts and minutes of closed
Commission meetings--Documents used at meetings--Record
retention.
16.208 Annual report.
Subpart G--Access to Documents by Former Employees of the Department
16.300 Access to documents for the purpose of responding to an official
inquiry.
16.301 Limitations.
Appendix I to Part 16--Components of the Department of Justice
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 A--Procedures for Disclosure of Records Under the Freedom of
Information Act
Source: Order No. 2156-98, 63 FR 29593, June 1, 1998, unless
otherwise noted.
Sec. 16.1 General provisions.
(a) This subpart contains the rules that the Department of Justice
follows in processing requests for records under the Freedom of
Information Act (FOIA), 5 U.S.C. 552. These rules should be read
together with the FOIA, which provides additional information about
access to records maintained by the Department. Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, which are processed under subpart D of this part, are
processed under this subpart also. Information routinely provided to the
public as part of a regular Department activity (for example, press
releases issued by the Office of Public Affairs) may be provided to the
public without following this subpart. As a matter of policy, the
Department makes discretionary disclosures of records or information
exempt from disclosure under the FOIA whenever disclosure would not
foreseeably harm an interest protected by a FOIA exemption, but this
policy does not create any right enforceable in court.
(b) As used in this subpart, component means each separate bureau,
office, board, division, commission, service, or administration of the
Department of Justice.
Sec. 16.2 Public reading rooms.
(a) The Department maintains public reading rooms that contain the
records that the FOIA requires to be made regularly available for public
inspection and copying. Each Department component is responsible for
determining which of the records it generates are required to be made
available in this way and for making those records available either in
its own reading room or in the Department's central reading room. Each
component shall maintain and make available for public inspection and
copying a current subject-matter index of its reading room records. Each
index shall be updated regularly, at least quarterly, with respect to
newly included records.
(b) The Department maintains public reading rooms or areas at the
locations listed below:
(1) Bureau of Prisons--on the Seventh Floor, 500 First Street, NW.,
Washington, DC;
(2) Civil Rights Division--in Room 930, 320 First Street, NW.,
Washington, DC;
(3) Community Relations Service--in Suite 2000, 600 E Street, NW.,
Washington, DC;
[[Page 265]]
(4) Drug Enforcement Administration--in Room W-7216, 700 Army Navy
Drive, Arlington, Virginia;
(5) Executive Office for Immigration Review (Board of Immigration
Appeals)--in Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia;
(6) Federal Bureau of Investigation--at the J. Edgar Hoover
Building, 935 Pennsylvania Avenue, NW., Washington, DC;
(7) Foreign Claims Settlement Commission--in Room 6002, 600 E
Street, NW., Washington, DC;
(8) Immigration and Naturalization Service--425 I Street, NW.,
Washington, DC;
(9) Office of Justice Programs--in Room 5430, 810 Seventh Street,
NW., Washington, DC;
(10) Pardon Attorney--on the Fourth Floor, 500 First Street, NW.,
Washington, DC;
(11) United States Attorneys and United States Marshals--at the
principal offices of the United States Attorneys and the United States
Marshals, which are listed in most telephone books; and
(12) All other components of the Department of Justice--in Room 6505
at the Main Justice Building, 950 Pennsylvania Avenue, NW., Washington,
DC.
(c) Components shall also make reading room records created by the
Department on or after November 1, 1996, available electronically at the
Department's World Wide Web site (which can be found at http://
www.usdoj.gov), through use of the Department's ``Freedom of Information
Act Home Page.'' This includes each component's index of its reading
room records, which will indicate which records are available
electronically.
[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25,
1998]
Sec. 16.3 Requirements for making requests.
(a) How made and addressed. You may make a request for records of
the Department of Justice by writing directly to the Department
component that maintains those records. You may find the Department's
``Freedom of Information Act Reference Guide''--which is available
electronically at the Department's World Wide Web site, and is available
in paper form as well--helpful in making your request. For additional
information about the FOIA, you may refer directly to the statute. If
you are making a request for records about yourself, see Sec. 16.41(d)
for additional requirements. If you are making a request for records
about another individual, either a written authorization signed by that
individual permitting disclosure of those records to you or proof that
that individual is deceased (for example, a copy of a death certificate
or an obituary) will help the processing of your request. Your request
should be sent to the component's FOIA office at the address listed in
appendix I to part 16. In most cases, your FOIA request should be sent
to a component's central FOIA office. For records held by a field office
of the Federal Bureau of Investigation (FBI) or the Immigration and
Naturalization Service (INS), however, you must write directly to that
FBI or INS field office address, which can be found in most telephone
books or by calling the component's central FOIA office. (The functions
of each component are summarized in part 0 of this title and in the
description of the Department and its components in the ``United States
Government Manual,'' which is issued annually and is available in most
libraries, as well as for sale from the Government Printing Office's
Superintendent of Documents. This manual also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su--docs).) If you
cannot determine where within the Department to send your request, you
may send it to the FOIA/PA Mail Referral Unit, Justice Management
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530-0001. That office will forward your request to the
component(s) it believes most likely to have the records that you want.
Your request will be considered received as of the date it is received
by the proper component's FOIA office. For the quickest possible
handling, you should mark both your request letter and the envelope
``Freedom of Information Act Request.''
[[Page 266]]
(b) Description of records sought. You must describe the records
that you seek in enough detail to enable Department personnel to locate
them with a reasonable amount of effort. Whenever possible, your request
should include specific information about each record sought, such as
the date, title or name, author, recipient, and subject matter of the
record. In addition, if you want records about a court case, you should
provide the title of the case, the court in which the case was filed,
and the nature of the case. If known, you should include any file
designations or descriptions for the records that you want. As a general
rule, the more specific you are about the records or type of records
that you want, the more likely the Department will be able to locate
those records in response to your request. If a component determines
that your request does not reasonably describe records, it shall tell
you either what additional information is needed or why your request is
otherwise insufficient. The component also shall give you an opportunity
to discuss your request so that you may modify it to meet the
requirements of this section. If your request does not reasonably
describe the records you seek, the agency's response to your request may
be delayed.
(c) Agreement to pay fees. If you make a FOIA request, it shall be
considered an agreement by you to pay all applicable fees charged under
Sec. 16.11, up to $25.00, unless you seek a waiver of fees. The
component responsible for responding to your request ordinarily will
confirm this agreement in an acknowledgement letter. When making a
request, you may specify a willingness to pay a greater or lesser
amount.
[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25,
1998]
Sec. 16.4 Responsibility for responding to requests.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for a record
and has possession of that record is the component responsible for
responding to the request. In determining which records are responsive
to a request, a component ordinarily will include only records in its
possession as of the date the component begins its search for them. If
any other date is used, the component shall inform the requester of that
date.
(b) Authority to grant or deny requests. The head of a component, or
the component head's designee, is authorized to grant or deny any
request for a record of that component.
(c) Consultations and referrals. When a component receives a request
for a record in its possession, it shall determine whether another
component, or another agency of the Federal Government, is better able
to determine whether the record is exempt from disclosure under the FOIA
and, if so, whether it should be disclosed as a matter of administrative
discretion. If the receiving component determines that it is best able
to process the record in response to the request, then it shall do so.
If the receiving component determines that it is not best able to
process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether to disclose
it and with any other component or agency that has a substantial
interest in it; or
(2) Refer the responsibility for responding to the request regarding
that record to the component best able to determine whether to disclose
it, or to another agency that originated the record (but only if that
agency is subject to the FOIA). Ordinarily, the component or agency that
originated a record will be presumed to be best able to determine
whether to disclose it.
(d) Law enforcement information. Whenever a request is made for a
record containing information that relates to an investigation of a
possible violation of law and was originated by another component or
agency, the receiving component shall either refer the responsibility
for responding to the request regarding that information to that other
component or agency or consult with that other component or agency.
(e) Classified information. Whenever a request is made for a record
containing information that has been classified, or may be appropriate
for classification,
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by another component or agency under Executive Order 12958 or any other
executive order concerning the classification of records, the receiving
component shall refer the responsibility for responding to the request
regarding that information to the component or agency that classified
the information, should consider the information for classification, or
has the primary interest in it, as appropriate. Whenever a record
contains information that has been derivatively classified by a
component because it contains information classified by another
component or agency, the component shall refer the responsibility for
responding to the request regarding that information to the component or
agency that classified the underlying information.
(f) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(g) Timing of responses to consultations and referrals. All
consultations and referrals will be handled according to the date the
FOIA request initially was received by the first component or agency,
not any later date.
(h) Agreements regarding consultations and referrals. Components may
make agreements with other components or agencies to eliminate the need
for consultations or referrals for particular types of records.
Sec. 16.5 Timing of responses to requests.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) A component may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work and/or time needed to process the
request, including through limits based on the number of pages involved.
If a component does so, it shall advise requesters in its slower
track(s) of the limits of its faster track(s).
(2) A component using multitrack processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the component's faster track(s). A component doing so will
contact the requester either by telephone or by letter, whichever is
more efficient in each case.
(c) Unusual circumstances. (1) Where the statutory time limits for
processing a request cannot be met because of ``unusual circumstances,''
as defined in the FOIA, and the component determines to extend the time
limits on that basis, the component shall as soon as practicable notify
the requester in writing of the unusual circumstances and of the date by
which processing of the request can be expected to be completed. Where
the extension is for more than ten working days, the component shall
provide the requester with an opportunity either to modify the request
so that it may be processed within the time limits or to arrange an
alternative time period with the component for processing the request or
a modified request.
(2) Where a component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated. Multiple requests involving unrelated matters will
not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there
[[Page 268]]
exist possible questions about the government's integrity which affect
public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be received by
the proper component. Requests based on the categories in paragraphs
(d)(1)(i), (ii), and (iii) of this section must be submitted to the
component that maintains the records requested. Requests based on the
category in paragraph (d)(1)(iv) of this section must be submitted to
the Director of Public Affairs, whose address is: Office of Public
Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania Avenue,
NW., Washington DC 20530-0001. A component that receives a request that
must be handled by the Office of Public Affairs shall forward it
immediately to that office by hand-delivery or fax.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requester within the category in
paragraph (d)(1)(ii) of this section, if not a full-time member of the
news media, must establish that he or she is a person whose main
professional activity or occupation is information dissemination, though
it need not be his or her sole occupation. A requester within the
category in paragraph (d)(1)(ii) of this section also must establish a
particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about
government activity generally. The formality of certification may be
waived as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the proper component shall decide whether to grant
it and shall notify the requester of the decision. If a request for
expedited treatment is granted, the request shall be given priority and
shall be processed as soon as practicable. If a request for expedited
processing is denied, any appeal of that decision shall be acted on
expeditiously.
Sec. 16.6 Responses to requests.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 16.3(c) and provide an assigned request number for further
reference.
(b) Grants of requests. Ordinarily, a component shall have twenty
business days from when a request is received to determine whether to
grant or deny the request. Once a component makes a determination to
grant a request in whole or in part, it shall notify the requester in
writing. The component shall inform the requester in the notice of any
fee charged under Sec. 16.11 and shall disclose records to the requester
promptly on payment of any applicable fee. Records disclosed in part
shall be marked or annotated to show the amount of information deleted
unless doing so would harm an interest protected by an applicable
exemption. The location of the information deleted also shall be
indicated on the record, if technically feasible.
(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, consist of: a determination to withhold any
requested record in whole or in part; a determination that a requested
record does not exist or cannot be located; a determination that a
record is not readily reproducible in the form or format sought by the
requester; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; and a denial of a
request for expedited treatment. The denial letter shall be signed by
the head of the component, or the component head's designee, and shall
include:
(1) The name and title or position of the person responsible for the
denial;
[[Page 269]]
(2) A brief statement of the reason(s) for the denial, including any
FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of records or information withheld, in
number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
(4) A statement that the denial may be appealed under Sec. 16.9(a)
and a description of the requirements of Sec. 16.9(a).
Sec. 16.7 Classified information.
In processing a request for information that is classified under
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other executive
order, the originating component shall review the information to
determine whether it should remain classified. Information determined to
no longer require classification shall not be withheld on the basis of
Exemption 1 of the FOIA. On receipt of any appeal involving classified
information, the Office of Information and Privacy shall take
appropriate action to ensure compliance with part 17 of this title.
Sec. 16.8 Business information.
(a) In general. Business information obtained by the Department from
a submitter will be disclosed under the FOIA only under this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Department from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Department
obtains business information, directly or indirectly. The term includes
corporations; state, local, and tribal governments; and foreign
governments.
(c) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period.
(d) Notice to submitters. A component shall provide a submitter with
prompt written notice of a FOIA request or administrative appeal that
seeks its business information wherever required under paragraph (e) of
this section, except as provided in paragraph (h) of this section, in
order to give the submitter an opportunity to object to disclosure of
any specified portion of that information under paragraph (f) of this
section. The notice shall either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish it.
(e) Where notice is required. Notice shall be given to a submitter
wherever:
(1) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(2) The component has reason to believe that the information may be
protected from disclosure under Exemption 4.
(f) Opportunity to object to disclosure. A component will allow a
submitter a reasonable time to respond to the notice described in
paragraph (d) of this section and will specify that time period within
the notice. If a submitter has any objection to disclosure, it is
required to submit a detailed written statement. The statement must
specify all grounds for withholding any portion of the information under
any exemption of the FOIA and, in the case of Exemption 4, it must show
why the information is a trade secret or commercial or financial
information that is privileged or confidential. In the event that a
submitter fails to respond to the notice within the time specified in
it, the submitter will be considered to have no
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objection to disclosure of the information. Information provided by the
submitter that is not received by the component until after its
disclosure decision has been made shall not be considered by the
component. Information provided by a submitter under this paragraph may
itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. A component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose business information. Whenever a component
decides to disclose business information over the objection of a
submitter, the component shall give the submitter written notice, which
shall include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (g) of this section shall not apply if:
(1) The component determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other than
the FOIA) or by a regulation issued in accordance with the requirements
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous--except that, in such a case,
the component shall, within a reasonable time prior to a specified
disclosure date, give the submitter written notice of any final decision
to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the component
shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever a component
provides a submitter with notice and an opportunity to object to
disclosure under paragraph (d) of this section, the component shall also
notify the requester(s). Whenever a component notifies a submitter of
its intent to disclose requested information under paragraph (g) of this
section, the component shall also notify the requester(s). Whenever a
submitter files a lawsuit seeking to prevent the disclosure of business
information, the component shall notify the requester(s).
[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25,
1998]
Sec. 16.9 Appeals.
(a) Appeals of adverse determinations. If you are dissatisfied with
a component's response to your request, you may appeal an adverse
determination denying your request, in any respect, to the Office of
Information and Privacy, U.S. Department of Justice, Flag Building,
Suite 570, Washington, DC 20530-0001. You must make your appeal in
writing and it must be received by the Office of Information and Privacy
within 60 days of the date of the letter denying your request. Your
appeal letter may include as much or as little related information as
you wish, as long as it clearly identifies the component determination
(including the assigned request number, if known) that you are
appealing. For the quickest possible handling, you should mark your
appeal letter and the envelope ``Freedom of Information Act Appeal.''
Unless the Attorney General directs otherwise, a Director of the Office
of Information and Privacy will act on behalf of the Attorney General on
all appeals under this section, except that:
(1) In the case of an adverse determination by the Deputy Attorney
General or the Associate Attorney General, the Attorney General or the
Attorney General's designee will act on the appeal;
(2) An adverse determination by the Attorney General will be the
final action of the Department; and
(3) An appeal ordinarily will not be acted on if the request becomes
a matter of FOIA litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing.
[[Page 271]]
A decision affirming an adverse determination in whole or in part shall
contain a statement of the reason(s) for the affirmance, including any
FOIA exemption(s) applied, and will inform you of the FOIA provisions
for court review of the decision. If the adverse determination is
reversed or modified on appeal, in whole or in part, you will be
notified in a written decision and your request will be reprocessed in
accordance with that appeal decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination, you must first appeal it under this
section.
Sec. 16.10 Preservation of records.
Each component shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
Sec. 16.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or where a
waiver or reduction of fees is granted under paragraph (k) of this
section. A component ordinarily shall collect all applicable fees before
sending copies of requested records to a requester. Requesters must pay
fees by check or money order made payable to the Treasury of the United
States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include furthering
those interests through litigation. Components shall determine, whenever
reasonably possible, the use to which a requester will put the requested
records. When it appears that the requester will put the records to a
commercial use, either because of the nature of the request itself or
because a component has reasonable cause to doubt a requester's stated
use, the component shall provide the requester a reasonable opportunity
to submit further clarification.
(2) Direct costs means those expenses that an agency actually incurs
in searching for and duplicating (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. Direct costs
include, for example, the salary of the employee performing the work
(the basic rate of pay for the employee, plus 16 percent of that rate to
cover benefits) and the cost of operating duplication machinery. Not
included in direct costs are overhead expenses such as the costs of
space and heating or lighting of the facility in which the records are
kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape or disk), among others.
Components shall honor a requester's specified preference of form or
format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format by the office
responding to the request.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category, a
requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not
sought for a commercial use but are sought to further scholarly
research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the
[[Page 272]]
request is authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for a commercial use but
are sought to further scientific research.
(6) Representative of the news media, or news media requester, means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast 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
publishers of periodicals (but only in those instances where they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they must
demonstrate a solid basis for expecting publication through that
organization. A publication contract would be the clearest proof, but
components shall also look to the past publication record of a requester
in making this determination. To be in this category, a requester must
not be seeking the requested records for a commercial use. However, a
request for records supporting the news-dissemination function of the
requester shall not be considered to be for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt from
disclosure. It also includes processing any record for disclosure--for
example, doing all that is necessary to redact it and prepare it for
disclosure. Review costs are recoverable even if a record ultimately is
not disclosed. Review time includes time spent considering any formal
objection to disclosure made by a business submitter under Sec. 16.8,
but does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Components shall ensure
that searches are done in the most efficient and least expensive manner
reasonably possible. For example, components shall not search line-by-
line where duplicating an entire document would be quicker and less
expensive.
(c) Fees. In responding to FOIA requests, components shall charge
the following fees unless a waiver or reduction of fees has been granted
under paragraph (k) of this section:
(1) Search. (i) Search fees shall be charged for all requests--other
than requests made by educational institutions, noncommercial scientific
institutions, or representatives of the news media--subject to the
limitations of paragraph (d) of this section. Components may charge for
time spent searching even if they do not locate any responsive record or
if they withhold the record(s) located as entirely exempt from
disclosure.
(ii) For each quarter hour spent by clerical personnel in searching
for and retrieving a requested record, the fee will be $4.00. Where a
search and retrieval cannot be performed entirely by clerical personnel-
-for example, where the identification of records within the scope of a
request requires the use of professional personnel--the fee will be
$7.00 for each quarter hour of search time spent by professional
personnel. Where the time of managerial personnel is required, the fee
will be $10.25 for each quarter hour of time spent by those personnel.
(iii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in paragraph (d)(1) of this section) will be charged no
search fee and certain other requesters (as provided in paragraph (d)(3)
of this section) will be entitled to the cost equivalent of two hours of
manual search time without charge. These direct costs will include the
cost of operating a central processing unit for that portion of
operating time that is directly attributable to searching for responsive
records, as well as the costs of operator/programmer salary
apportionable to the search.
[[Page 273]]
(2) Duplication. Duplication fees will be charged to all requesters,
subject to the limitations of paragraph (d) of this section. For a paper
photocopy of a record (no more than one copy of which need be supplied),
the fee will be ten cents per page. For copies produced by computer,
such as tapes or printouts, components will charge the direct costs,
including operator time, of producing the copy. For other forms of
duplication, components will charge the direct costs of that
duplication.
(3) Review. Review fees will be charged to requesters who make a
commercial use request. Review fees will be charged only for the initial
record review--in other words, the review done when a component
determines whether an exemption applies to a particular record or record
portion at the initial request level. No charge will be made for review
at the administrative appeal level for an exemption already applied.
However, records or record portions withheld under an exemption that is
subsequently determined not to apply may be reviewed again to determine
whether any other exemption not previously considered applies; the costs
of that review are chargeable where it is made necessary by such a
change of circumstances. Review fees will be charged at the same rates
as those charged for a search under paragraph (c)(1)(ii) of this
section.
(d) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d) (3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When a component
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, the component shall notify the
requester of the actual or estimated amount of the fees, unless the
requester has indicated a willingness to pay fees as high as those
anticipated. If only a portion of the fee can be estimated readily, the
component shall advise the requester that the estimated fee may be only
a portion of the total fee. In cases in which a requester has been
notified that actual or estimated fees amount to more than $25.00, the
request shall not be considered received and further work shall not be
done on it until the requester agrees to pay the anticipated total fee.
Any such agreement should be memorialized in writing. A notice under
this paragraph will offer the requester an opportunity to discuss the
matter with Department personnel in order to reformulate the request to
meet the requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when a component chooses as a matter of administrative
discretion to provide a special service--such as certifying that records
are true copies or sending them by other than ordinary mail--the direct
costs of providing the service ordinarily will be charged.
(g) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the component. Components will follow the provisions of
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
[[Page 274]]
(h) Aggregating requests. Where a component reasonably believes that
a requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the component may aggregate those requests and charge accordingly.
Components may presume that multiple requests of this type made within a
30-day period have been made in order to avoid fees. Where requests are
separated by a longer period, components will aggregate them only where
there exists a solid basis for determining that aggregation is warranted
under all the circumstances involved. Multiple requests involving
unrelated matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) and (3) of this section, a component shall not require
the requester to make an advance payment--in other words, a payment made
before work is begun or continued on a request. Payment owed for work
already completed (i.e., a prepayment before copies are sent to a
requester) is not an advance payment.
(2) Where a component determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require the
requester to make an advance payment of an amount up to the amount of
the entire anticipated fee before beginning to process the request,
except where it receives a satisfactory assurance of full payment from a
requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 days of the date
of billing, a component may require the requester to pay the full amount
due, plus any applicable interest, and to make an advance payment of the
full amount of any anticipated fee, before the component begins to
process a new request or continues to process a pending request from
that requester.
(4) In cases in which a component requires advance payment or
payment due under paragraph (i)(2) or (3) of this section, the request
shall not be considered received and further work will not be done on it
until the required payment is received.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. Where records responsive to requests are maintained
for distribution by agencies operating such statutorily based fee
schedule programs, components will inform requesters of the steps for
obtaining records from those sources so that they may do so most
economically.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge or at a charge
reduced below that established under paragraph (c) of this section where
a component determines, based on all available information, that the
requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
components will consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government.'' The
subject of the requested records must concern identifiable operations or
activities of the federal government, with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not
[[Page 275]]
be as likely to contribute to such understanding where nothing new would
be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed that
a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. Components shall not
make value judgments about whether information that would contribute
significantly to public understanding of the operations or activities of
the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
components will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. Components shall consider any commercial interest
of the requester (with reference to the definition of ``commercial use''
in paragraph (b)(1) of this section), or of any person on whose behalf
the requester may be acting, that would be furthered by the requested
disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. Components ordinarily
shall presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily
served by disclosure to that requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return shall not be presumed to primarily serve the public
interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (k)(2) and (3) of this section, insofar as
they apply to each request. Components will exercise their discretion to
consider the cost-effectiveness of their investment of administrative
resources in this decisionmaking process, however, in deciding to grant
waivers or reductions of fees.
[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 34965, June 26,
1998; 63 FR 36295, July 2, 1998; 63 FR 51401, Sept. 25, 1998]
Sec. 16.12 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Subpart B--Production or Disclosure in Federal and State Proceedings
Source: Order No. 919-80, 45 FR 83210, Dec. 18, 1980, unless
otherwise noted.
Sec. 16.21 Purpose and scope.
(a) This subpart sets forth procedures to be followed with respect
to the production or disclosure of any material contained in the files
of the Department, any information relating to material contained in the
files of the Department, or any information acquired
[[Page 276]]
by any person while such person was an employee of the Department as a
part of the performance of that person's official duties or because of
that person's official status:
(1) In all federal and state proceedings in which the United States
is a party; and
(2) In all federal and state proceedings in which the United States
is not a party, including any proceedings in which the Department is
representing a government employee solely in that employee's individual
capacity, when a subpoena, order, or other demand (hereinafter
collectively referred to as a ``demand'') of a court or other authority
is issued for such material or information.
(b) For purposes of this subpart, the term employee of the
Department includes all officers and employees of the United States
appointed by, or subject to the supervision, jurisdiction, or control of
the Attorney General of the United States, including U.S. Attorneys,
U.S. Marshals, U.S. Trustees and members of the staffs of those
officials.
(c) Nothing in this subpart is intended to impede the appropriate
disclosure, in the absence of a demand, of information by Department law
enforcement agencies to federal, state, local and foreign law
enforcement, prosecutive, or regulatory agencies.
(d) This subpart is intended only to provide guidance for the
internal operations of the Department of Justice, and is not intended
to, and does not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by a party
against the United States.
Sec. 16.22 General prohibition of production or disclosure in Federal and State proceedings in which the United States is not a party.
(a) In any federal or state case or matter in which the United
States is not a party, no employee or former employee of the Department
of Justice shall, in response to a demand, produce any material
contained in the files of the Department, or disclose any information
relating to or based upon material contained in the files of the
Department, or disclose any information or produce any material acquired
as part of the performance of that person's official duties or because
of that person's official status without prior approval of the proper
Department official in accordance with Secs. 16.24 and 16.25 of this
part.
(b) Whenever a demand is made upon an employee or former employee as
described in paragraph (a) of this section, the employee shall
immediately notify the U.S. Attorney for the district where the issuing
authority is located. The responsible United States Attorney shall
follow procedures set forth in Sec. 16.24 of this part.
(c) If oral testimony is sought by a demand in any case or matter in
which the United States is not a party, an affidavit, or, if that is not
feasible, a statement by the party seeking the testimony or by his
attorney, setting forth a summary of the testimony sought and its
relevance to the proceeding, must be furnished to the responsible U.S.
Attorney. Any authorization for testimony by a present or former
employee of the Department shall be limited to the scope of the demand
as summarized in such statement.
(d) When information other than oral testimony is sought by a
demand, the responsible U.S. Attorney shall request a summary of the
information sought and its relevance to the proceeding.
Sec. 16.23 General disclosure authority in Federal and State proceedings in which the United States is a party.
(a) Every attorney in the Department of Justice in charge of any
case or matter in which the United States is a party is authorized,
after consultation with the ``originating component'' as defined in
Sec. 16.24(a) of this part, to reveal and furnish to any person,
including an actual or prospective witness, a grand jury, counsel, or a
court, either during or preparatory to a proceeding, such testimony, and
relevant unclassified material, documents, or information secured by any
attorney, or investigator of the Department of Justice, as such attorney
shall deem necessary or desirable to the discharge of the attorney's
offical duties: Provided, Such an attorney shall consider, with respect
to any disclosure, the factors set
[[Page 277]]
forth in Sec. 16.26(a) of this part: And further provided, An attorney
shall not reveal or furnish any material, documents, testimony or
information when, in the attorney's judgment, any of the factors
specified in Sec. 16.26(b) exists, without the express prior approval by
the Assistant Attorney General in charge of the division responsible for
the case or proceeding, the Director of the Executive Office for United
States Trustees (hereinafter referred to as ``the EOUST''), or such
persons' designees.
(b) An attorney may seek higher level review at any stage of a
proceeding, including prior to the issuance of a court order, when the
attorney determines that a factor specified in Sec. 16.26(b) exists or
foresees that higher level approval will be required before disclosure
of the information or testimony in question. Upon referral of a matter
under this subsection, the responsible Assistant Attorney General, the
Director of EOUST, or their designees shall follow procedures set forth
in Sec. 16.24 of this part.
(c) If oral testimony is sought by a demand in a case or matter in
which the United States is a party, an affidavit, or, if that is not
feasible, a statement by the party seeking the testimony or by the
party's attorney setting forth a summary of the testimony sought must be
furnished to the Department attorney handling the case or matter.
Sec. 16.24 Procedure in the event of a demand where disclosure is not otherwise authorized.
(a) Whenever a matter is referred under Sec. 16.22 of this part to a
U.S. Attorney or, under Sec. 16.23 of this part, to an Assistant
Attorney General, the Director of the EOUST, or their designees
(hereinafter collectively referred to as the ``responsible official''),
the responsible official shall immediately advise the official in charge
of the bureau, division, office, or agency of the Department that was
responsible for the collection, assembly, or other preparation of the
material demanded or that, at the time the person whose testimony was
demanded acquired the information in question, employed such person
(hereinafter collectively referred to as the ``originating component''),
or that official's designee. In any instance in which the responsible
official is also the official in charge of the originating component,
the responsible official may perform all functions and make all
determinations that this regulation vests in the originating component.
(b) The responsible official, subject to the terms of paragraph (c)
of this section, may authorize the appearance and testimony of a present
or former Department employee, or the production of material from
Department files if:
(1) There is no objection after inquiry of the originating
component;
(2) The demanded disclosure, in the judgment of the responsible
official, is appropriate under the factors specified in Sec. 16.26(a) of
this part; and
(3) None of the factors specified in Sec. 16.26(b) of this part
exists with respect to the demanded disclosure.
(c) It is Department policy that the responsible official shall,
following any necessary consultation with the originating component,
authorize testimony by a present or former employee of the Department or
the production of material from Department files without further
authorization from Department officials whenever possible: Provided,
That, when information is collected, assembled, or prepared in
connection with litigation or an investigation supervised by a division
of the Department or by the EOUST, the Assistant Attorney General in
charge of such a division or the Director of the EOUST may require that
the originating component obtain the division's or the EOUST's approval
before authorizing a responsible official to disclose such information.
Prior to authorizing such testimony or production, however, the
responsible official shall, through negotiation and, if necessary,
appropriate motions, seek to limit the demand to information, the
disclosure of which would not be inconsistent with the considerations
specified in Sec. 16.26 of this part.
(d)(1) In a case in which the United States is not a party, if the
responsible U.S. attorney and the originating component disagree with
respect to the appropriateness of demanded testimony or of a particular
disclosure, or if they
[[Page 278]]
agree that such testimony or such a disclosure should not be made, they
shall determine if the demand involves information that was collected,
assembled, or prepared in connection with litigation or an investigation
supervised by a division of this Department or the EOUST. If so, the
U.S. attorney shall notify the Director of the EOUST or the Assistant
Attorney General in charge of the division responsible for such
litigation or investigation, who may:
(i) Authorize personally or through a Deputy Assistant Attorney
General, the demanded testimony or other disclosure of the information
if such testimony or other disclosure, in the Assistant or Deputy
Assistant Attorney General's judgment or in the judgment of the Director
of the EOUST, is consistent with the factors specified in Sec. 16.26(a)
of this part, and none of the factors specified in Sec. 16.26(b) of this
part exists with respect to the demanded disclosure;
(ii) Authorize, personally or by a designee, the responsible
official, through negotiations and, if necessary, appropriate motions,
to seek to limit the demand to matters, the disclosure of which, through
testimony or documents, considerations specified in Sec. 16.26 of this
part, and otherwise to take all appropriate steps to limit the scope or
obtain the withdrawal of a demand; or
(iii) If, after all appropriate steps have been taken to limit the
scope or obtain the withdrawal of a demand, the Director of the EOUST or
the Assistant or Deputy Assistant Attorney General does not authorize
the demanded testimony or other disclosure, refer the matter, personally
or through a Deputy Assistant Attorney General, for final resolution to
the Deputy or Associate Attorney General, as indicated in Sec. 16.25 of
this part.
(2) If the demand for testimony or other disclosure in such a case
does not involve information that was collected, assembled, or prepared
in connection with litigation or an investigation supervised by a
division of this Department, the originating component shall decide
whether disclosure is appropriate, except that, when especially
significant issues are raised, the responsible official may refer the
matter to the Deputy or Associate Attorney General, as indicated in
Sec. 16.25 of this part. If the originating component determines that
disclosure would not be appropriate and the responsible official does
not refer the matter for higher level review, the responsible official
shall take all appropriate steps to limit the scope or obtain the
withdrawal of a demand.
(e) In a case in which the United States is a party, the Assistant
General or the Director of the EOUST responsible for the case or matter,
or such persons' designees, are authorized, after consultation with the
originating component, to exercise the authorities specified in
paragraph (d)(1) (i) through (iii) of this section: Provided, That if a
demand involves information that was collected, assembled, or prepared
originally in connection with litigation or an investigation supervised
by another unit of the Department, the responsible official shall notify
the other division or the EOUST concerning the demand and the
anticipated response. If two litigating units of the Department are
unable to resolve a disagreement concerning disclosure, the Assistant
Attorneys General in charge of the two divisions in disagreement, or the
Director of the EOUST and the appropriate Assistant Attorney General,
may refer the matter to the Deputy or Associate Attorney General, as
indicated in Sec. 16.25(b) of this part.
(f) In any case or matter in which the responsible official and the
originating component agree that it would not be appropriate to
authorize testimony or otherwise to disclose the information demanded,
even if a court were so to require, no Department attorney responding to
the demand should make any representation that implies that the
Department would, in fact, comply with the demand if directed to do so
by a court. After taking all appropriate steps in such cases to limit
the scope or obtain the withdrawal of a demand, the responsible official
shall refer the matter to the Deputy or Associate Attorney General, as
indicated in Sec. 16.25 of this part.
[[Page 279]]
(g) In any case or matter in which the Attorney General is
personally involved in the claim of privilege, the responsible official
may consult with the Attorney General and proceed in accord with the
Attorney General's instructions without subsequent review by the Deputy
or Associate Attorney General.
Sec. 16.25 Final action by the Deputy or Associate Attorney General.
(a) Unless otherwise indicated, all matters to be referred under
Sec. 16.24 by an Assistant Attorney General, the Director of the EOUST,
or such person's designees to the Deputy or Associate Attorney General
shall be referred (1) to the Deputy Attorney General, if the matter is
referred personally by or through the designee of an Assistant Attorney
General who is within the general supervision of the Deputy Attorney
General, or (2) to the Associate Attorney General, in all other cases.
(b) All other matters to be referred under Sec. 16.24 to the Deputy
or Associate Attorney General shall be referred (1) to the Deputy
Attorney General, if the originating component is within the supervision
of the Deputy Attorney General or is an independent agency that, for
administrative purposes, is within the Department of Justice, or (2) to
the Associate Attorney General, if the originating component is within
the supervision of the Associate Attorney General.
(c) Upon referral, the Deputy or Associate Attorney General shall
make the final decision and give notice thereof to the responsible
official and such other persons as circumstances may warrant.
Sec. 16.26 Considerations in determining whether production or disclosure should be made pursuant to a demand.
(a) In deciding whether to make disclosures pursuant to a demand,
Department officials and attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of
procedure governing the case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive
law concerning privilege.
(b) Among the demands in response to which disclosure will not be
made by any Department official are those demands with respect to which
any of the following factors exist:
(1) Disclosure would violate a statute, such as the income tax laws,
26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury
secrecy rule, F.R.Cr.P., Rule 6(e),
(2) Disclosure would violate a specific regulation;
(3) Disclosure would reveal classified information, unless
appropriately declassified by the originating agency,
(4) Disclosure would reveal a confidential source or informant,
unless the investigative agency and the source or informant have no
objection,
(5) Disclosure would reveal investigatory records compiled for law
enforcement purposes, and would interfere with enforcement proceedings
or disclose investigative techniques and procedures the effectiveness of
which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets without the
owner's consent.
(c) In all cases not involving considerations specified in
paragraphs (b)(1) through (b)(6) of this section, the Deputy or
Associate Attorney General will authorize disclosure unless, in that
person's judgment, after considering paragraph (a) of this section,
disclosure is unwarranted. The Deputy or Associate Attorney General will
not approve disclosure if the circumstances specified in paragraphs
(b)(1) through (b)(3) of this section exist. The Deputy or Associate
Attorney General will not approve disclosure if any of the conditions in
paragraphs (b)(4) through (b)(6) of this section exist, unless the
Deputy or Associate Attorney General determines that the administration
of justice requires disclosure. In this regard, if disclosure is
necessary to pursue a civil or criminal prosecution or affirmative
relief, such as an injunction, consideration shall be given to:
(1) The seriousness of the violation or crime involved,
(2) The past history or criminal record of the violator or accused,
[[Page 280]]
(3) The importance of the relief sought,
(4) The importance of the legal issues presented,
(5) Other matters brought to the attention of the Deputy or
Associate Attorney General.
(d) Assistant Attorneys General, U.S. Attorneys, the Director of the
EOUST, U.S. Trustees, and their designees, are authorized to issue
instructions to attorneys and to adopt supervisory practices, consistent
with this subpart, in order to help foster consistent application of the
foregoing standards and the requirements of this subpart.
Sec. 16.27 Procedure in the event a department decision concerning a demand is not made prior to the time a response to the demand is required.
If response to a demand is required before the instructions from the
appropriate Department official are received, the responsible official
or other Department attorney designated for the purpose shall appear and
furnish the court or other authority with a copy of the regulations
contained in this subpart and inform the court or other authority that
the demand has been or is being, as the case may be, referred for the
prompt consideration of the appropriate Department official and shall
respectfully request the court or authority to stay the demand pending
receipt of the requested instructions.
Sec. 16.28 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 16.27 of
this chapter pending receipt of instructions, or if the court or other
authority rules that the demand must be complied with irrespective of
instructions rendered in accordance with Secs. 16.24 and 16.25 of this
part not to produce the material or disclose the information sought, the
employee or former employee upon whom the demand has been made shall, if
so directed by the responsible Department official, respectfully decline
to comply with the demand. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
Sec. 16.29 Delegation by Assistant Attorneys General.
With respect to any function that this subpart permits the designee
of an Assistant Attorney General to perform, the Assistant Attorneys
General are authorized to delegate their authority, in any case or
matter or any category of cases or matters, to subordinate division
officials or U.S. attorneys, as appropriate.
Appendix to Subpart B of Part 16--Redelegation of Authority to the
Deputy Assistant Attorney General for Litigation, Antitrust Division, To
Authorize Production or Disclosure of Material or Information
1. By virtue of the authority vested in me by 28 CFR 16.23(b)(1) the
authority delegated to me by that section to authorize the production of
material and disclosure of information described in 28 CFR 16.21(a) is
hereby redelegated to the Deputy Assistant Attorney General for
Litigation, Antitrust Division.
2. This directive shall become effective on the date of its
publication in the Federal Register.
[Order No. 960-81, 46 FR 52356, Oct. 27, 1981]
Subpart C--Production of FBI Identification Records in Response to
Written Requests by Subjects Thereof
Source: Order No. 556-73, 38 FR 32806, Nov. 28, 1973, unless
otherwise noted.
Sec. 16.30 Purpose and scope.
This subpart contains the regulations of the Federal Bureau of
Investigation (FBI) concerning procedures to be followed when the
subject of an identification record requests production of that record
to review it or to obtain a change, correction, or updating of that
record.
[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]
Sec. 16.31 Definition of identification record.
An FBI identification record, often referred to as a ``rap sheet,''
is a listing of certain information taken from fingerprint submissions
retained by the FBI in connection with arrests and, in
[[Page 281]]
some instances, includes information taken from fingerprints submitted
in connection with federal employment, naturalization, or military
service. The identification record includes the name of the agency or
institution that submitted the fingerprints to the FBI. If the
fingerprints concern a criminal offense, the identification record
includes the date of arrest or the date the individual was received by
the agency submitting the fingerprints, the arrest charge, and the
disposition of the arrest if known to the FBI. All arrest data included
in an identification record are obtained from fingerprint submissions,
disposition reports, and other reports submitted by agencies having
criminal justice responsibilities. Therefore, the FBI Criminal Justice
Information Services Division is not the source of the arrest data
reflected on an identification record.
[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]
Sec. 16.32 Procedure to obtain an identification record.
The subject of an identification record may obtain a copy thereof by
submitting a written request via the U.S. mails directly to the FBI,
Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod.
D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306. Such request must be
accompanied by satisfactory proof of identity, which shall consist of
name, date and place of birth and a set of rolled-inked fingerprint
impressions placed upon fingerprint cards or forms commonly utilized for
applicant or law enforcement purposes by law enforcement agencies.
[Order No. 1134-86, 51 FR 16677, May 6, 1986, as amended by Order No.
2258-99, 64 FR 52226, Sept. 28, 1999]
Sec. 16.33 Fee for production of identification record.
Each written request for production of an identification record must
be accompanied by a fee of $18 in the form of a certified check or money
order, payable to the Treasury of the United States. This fee is
established pursuant to the provisions of 31 U.S.C. 9701 and is based
upon the clerical time beyond the first quarter hour to be spent in
searching for, identifying, and reproducing each identification record
requested as specified in Sec. 16.10. Any request for waiver of the fee
shall accompany the original request for the identification record and
shall include a claim and proof of indigency. Subject to applicable
laws, regulations, and directions of the Attorney General of the United
States, the Director of the FBI may from time to time determine and
establish a revised fee amount to be assessed under this authority.
Notice relating to revised fee amounts shall be published in the Federal
Register.
[Order No. 1943-94, 60 FR 38, Jan. 3, 1995, as amended by Order No.
2258-99, 64 FR 52226, Sept. 28, 1999]
Sec. 16.34 Procedure to obtain change, correction or updating of identification records.
If, after reviewing his/her identification record, the subject
thereof believes that it is incorrect or incomplete in any respect and
wishes changes, corrections or updating of the alleged deficiency, he/
she should make application directly to the agency which contributed the
questioned information. The subject of a record may also direct his/her
challenge as to the accuracy or completeness of any entry on his/her
record to the FBI, Criminal Justice Information Services (CJIS)
Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV
26306. The FBI will then forward the challenge to the agency which
submitted the data requesting that agency to verify or correct the
challenged entry. Upon the receipt of an official communication directly
from the agency which contributed the original information, the FBI CJIS
Division will make any changes necessary in accordance with the
information supplied by that agency.
[Order No. 1134-86, 51 FR 16677, May 6, 1986, as amended by Order No.
2258-99, 64 FR 52226, Sept. 28, 1999]
Subpart D--Protection of Privacy and Access to Individual Records Under
the Privacy Act of 1974
Source: Order No. 2156-98, 63 FR 29600, June 1, 1998, unless
otherwise noted.
[[Page 282]]
Sec. 16.40 General provisions.
(a) Purpose and scope. This subpart contains the rules that the
Department of Justice follows under the Privacy Act of 1974, 5 U.S.C.
552a. These rules should be read together with the Privacy Act, which
provides additional information about records maintained on individuals.
The rules in this subpart apply to all records in systems of records
maintained by the Department that are retrieved by an individual's name
or personal identifier. They describe the procedures by which
individuals may request access to records about themselves, request
amendment or correction of those records, and request an accounting of
disclosures of those by the Department. In addition, the Department
processes all Privacy Act requests for access to records under the
Freedom of Information Act (FOIA), 5 U.S.C. 552, following the rules
contained in subpart A of this part, which gives requests the benefit of
both statutes.
(b) Definitions. As used in this subpart:
(1) Component means each separate bureau, office, board, division,
commission, service, or administration of the Department of Justice.
(2) Request for access to a record means a request made under
Privacy Act subsection (d)(1).
(3) Request for amendment or correction of a record means a request
made under Privacy Act subsection (d)(2).
(4) Request for an accounting means a request made under Privacy Act
subsection (c)(3).
(5) Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act.
(c) Authority to request records for a law enforcement purpose. The
head of a component or a United States Attorney, or either's designee,
is authorized to make written requests under subsection (b)(7) of the
Privacy Act for records maintained by other agencies that are necessary
to carry out an authorized law enforcement activity.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 51401, Sept. 25,
1998]
Sec. 16.41 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
Department of Justice record about yourself by appearing in person or by
writing directly to the Department component that maintains the record.
Your request should be sent or delivered to the component's Privacy Act
office at the address listed in appendix I to this part. In most cases,
a component's central Privacy Act office is the place to send a Privacy
Act request. For records held by a field office of the Federal Bureau of
Investigation (FBI) or the Immigration and Naturalization Service (INS),
however, you must write directly to that FBI or INS field office
address, which can be found in most telephone books or by calling the
component's central Privacy Act office. (The functions of each component
are summarized in Part 0 of this title and in the description of the
Department and its components in the ``United States Government
Manual,'' which is issued annually and is available in most libraries,
as well as for sale from the Government Printing Office's Superintendent
of Documents. This manual also can be accessed electronically at the
Government Printing Office's World Wide Web site (which can be found at
http://www.access.gpo.gov/su--docs). If you cannot determine where
within the Department to send your request, you may send it to the FOIA/
PA Mail Referral Unit, Justice Management Division, U.S. Department of
Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530-0001, and
that office will forward it to the component(s) it believes most likely
to have the records that you seek. For the quickest possible handling,
you should mark both your request letter and the envelope ``Privacy Act
Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable Department personnel to locate
the system of records containing them with a reasonable amount of
effort. Whenever possible, your request should describe the records
sought, the time periods in which you believe they were compiled, and
the name or identifying number of each system of records in which you
believe they are kept. The Department
[[Page 283]]
publishes notices in the Federal Register that describe its components'
systems of records. A description of the Department's systems of records
also may be found as part of the ``Privacy Act Compilation'' published
by the National Archives and Records Administration's Office of the
Federal Register. This compilation is available in most large reference
and university libraries. This compilation also can be accessed
electronically at the Government Printing Office's World Wide Web site
(which can be found at http://www.access.gpo.gov/su--docs).
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it shall be considered an agreement by you to pay all
applicable fees charged under Sec. 16.49, up to $25.00. The component
responsible for responding to your request ordinarily shall confirm this
agreement in an acknowledgement letter. When making a request, you may
specify a willingness to pay a greater or lesser amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization. While
no specific form is required, you may obtain forms for this purpose from
the FOIA/PA Mail Referral Unit, Justice Management Division, U.S.
Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC
20530-0001. In order to help the identification and location of
requested records, you may also, at your option, include your social
security number.
(e) Verification of guardianship. When making a request as the
parent or guardian of a minor or as the guardian of someone determined
by a court to be incompetent, for access to records about that
individual, you must establish:
(1) The identity of the individual who is the subject of the record,
by stating the name, current address, date and place of birth, and, at
your option, the social security number of the individual;
(2) Your own identity, as required in paragraph (d) of this section;
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
guardianship; and
(4) That you are acting on behalf of that individual in making the
request.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26,
1998; 63 FR 51401, Sept. 25, 1998]
Sec. 16.42 Responsibility for responding to requests for access to records.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for access to
a record, and has possession of that record, is the component
responsible for responding to the request. In determining which records
are responsive to a request, a component ordinarily shall include only
those records in its possession as of the date the component begins its
search for them. If any other date is used, the component shall inform
the requester of that date.
(b) Authority to grant or deny requests. The head of a component, or
the component head's designee, is authorized to grant or deny any
request for access to a record of that component.
(c) Consultations and referrals. When a component receives a request
for access to a record in its possession, it shall determine whether
another component, or another agency of the Federal Government, is
better able to determine whether the record is exempt from access under
the Privacy Act. If the receiving component determines that it is best
able to process the record in response to the request, then it shall do
so. If the receiving component determines that it is not best able to
process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether the record
is exempt from access and with any other component or agency that has a
substantial interest in it; or
[[Page 284]]
(2) Refer the responsibility for responding to the request regarding
that record to the component best able to determine whether it is exempt
from access, or to another agency that originated the record (but only
if that agency is subject to the Privacy Act). Ordinarily, the component
or agency that originated a record will be presumed to be best able to
determine whether it is exempt from access.
(d) Law enforcement information. Whenever a request is made for
access to a record containing information that relates to an
investigation of a possible violation of law and that was originated by
another component or agency, the receiving component shall either refer
the responsibility for responding to the request regarding that
information to that other component or agency or shall consult with that
other component or agency.
(e) Classified information. Whenever a request is made for access to
a record containing information that has been classified by or may be
appropriate for classification by another component or agency under
Executive Order 12958 or any other executive order concerning the
classification of records, the receiving component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the information, should
consider the information for classification, or has the primary interest
in it, as appropriate. Whenever a record contains information that has
been derivatively classified by a component because it contains
information classified by another component or agency, the component
shall refer the responsibility for responding to the request regarding
that information to the component or agency that classified the
underlying information.
(f) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(g) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
Privacy Act access request was initially received by the first component
or agency, not any later date.
(h) Agreements regarding consultations and referrals. Components may
make agreements with other components or agencies to eliminate the need
for consultations or referrals for particular types of records.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26,
1998; 63 FR 51401, Sept. 25, 1998]
Sec. 16.43 Responses to requests for access to records.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 16.41(c) and provide an assigned request number for further
reference.
(b) Grants of requests for access. Once a component makes a
determination to grant a request for access in whole or in part, it
shall notify the requester in writing. The component shall inform the
requester in the notice of any fee charged under Sec. 16.49 and shall
disclose records to the requester promptly on payment of any applicable
fee. If a request is made in person, the component may disclose records
to the requester directly, in a manner not unreasonably disruptive of
its operations, on payment of any applicable fee and with a written
record made of the grant of the request. If a requester is accompanied
by another person, the requester shall be required to authorize in
writing any discussion of the records in the presence of the other
person.
(c) Adverse determinations of requests for access. A component
making an adverse determination denying a request for access in any
respect shall notify the requester of that determination in writing.
Adverse determinations, or denials of requests, consist of: A
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the Privacy
[[Page 285]]
Act; a determination on any disputed fee matter; and a denial of a
request for expedited treatment. The notification letter shall be signed
by the head of the component, or the component head's designee, and
shall include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including any
Privacy Act exemption(s) applied by the component in denying the
request; and
(3) A statement that the denial may be appealed under Sec. 16.45(a)
and a description of the requirements of Sec. 16.45(a).
Sec. 16.44 Classified information.
In processing a request for access to a record containing
information that is classified under Executive Order 12958 or any other
executive order, the originating component shall review the information
to determine whether it should remain classified. Information determined
to no longer require classification shall not be withheld from a
requester on the basis of Exemption (k)(1) of the Privacy Act. On
receipt of any appeal involving classified information, the Office of
Information and Privacy shall take appropriate action to ensure
compliance with part 17 of this title.
Sec. 16.45 Appeals from denials of requests for access to records.
(a) Appeals. If you are dissatisfied with a component's response to
your request for access to records, you may appeal an adverse
determination denying your request in any respect to the Office of
Information and Privacy, U.S. Department of Justice, Flag Building,
Suite 570, Washington, DC 20530-0001. You must make your appeal in
writing and it must be received by the Office of Information and Privacy
within 60 days of the date of the letter denying your request. Your
appeal letter may include as much or as little related information as
you wish, as long as it clearly identifies the component determination
(including the assigned request number, if known) that you are
appealing. For the quickest possible handling, you should mark both your
appeal letter and the envelope ``Privacy Act Appeal.'' Unless the
Attorney General directs otherwise, a Director of the Office of
Information and Privacy will act on behalf of the Attorney General on
all appeals under this section, except that:
(1) In the case of an adverse determination by the Deputy Attorney
General or the Associate Attorney General, the Attorney General or the
Attorney General's designee will act on the appeal;
(2) An adverse determination by the Attorney General will be the
final action of the Department; and
(3) An appeal ordinarily will not be acted on if the request becomes
a matter of litigation.
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or in
part will include a brief statement of the reason(s) for the affirmance,
including any Privacy Act exemption applied, and will inform you of the
Privacy Act provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal in whole or in part, you
will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section.
Sec. 16.46 Requests for amendment or correction of records.
(a) How made and addressed. Unless the record is not subject to
amendment or correction as stated in paragraph (f) of this section, you
may make a request for amendment or correction of a Department of
Justice record about yourself by writing directly to the Department
component that maintains the record, following the procedures in
Sec. 16.41. Your request should identify each particular record in
question, state the amendment or correction that you want, and state why
you believe that the record is not accurate, relevant, timely, or
complete. You may submit any documentation that you think would be
helpful. If you believe that the same record is in more than one system
of records, you should state that and address your request to each
[[Page 286]]
component that maintains a system of records containing the record.
(b) Component responses. Within ten working days of receiving your
request for amendment or correction of records, a component shall send
you a written acknowledgment of its receipt of your request, and it
shall promptly notify you whether your request is granted or denied. If
the component grants your request in whole or in part, it shall describe
the amendment or correction made and shall advise you of your right to
obtain a copy of the corrected or amended record, in disclosable form.
If the component denies your request in whole or in part, it shall send
you a letter signed by the head of the component, or the component
head's designee, that shall state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction to the Office of Information and Privacy in the same manner
as a denial of a request for access to records (see Sec. 16.45) and the
same procedures shall be followed. If your appeal is denied, you shall
be advised of your right to file a Statement of Disagreement as
described in paragraph (d) of this section and of your right under the
Privacy Act for court review of the decision.
(d) Statements of Disagreement. If your appeal under this section is
denied in whole or in part, you have the right to file a Statement of
Disagreement that states your reason(s) for disagreeing with the
Department's denial of your request for amendment or correction.
Statements of Disagreement must be concise, must clearly identify each
part of any record that is disputed, and should be no longer than one
typed page for each fact disputed. Your Statement of Disagreement must
be sent to the component involved, which shall place it in the system of
records in which the disputed record is maintained and shall mark the
disputed record to indicate that a Statement of Disagreement has been
filed and where in the system of records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
working days of the amendment or correction of a record, the component
that maintains the record shall notify all persons, organizations, or
agencies to which it previously disclosed the record, if an accounting
of that disclosure was made, that the record has been amended or
corrected. If an individual has filed a Statement of Disagreement, the
component shall append a copy of it to the disputed record whenever the
record is disclosed and may also append a concise statement of its
reason(s) for denying the request to amend or correct the record.
(f) Records not subject to amendment or correction. The following
records are not subject to amendment or correction:
(1) Transcripts of testimony given under oath or written statements
made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings, which are the official record of those
proceedings;
(3) Presentence records that originated with the courts; and
(4) Records in systems of records that have been exempted from
amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or (k) by
notice published in the Federal Register.
Sec. 16.47 Requests for an accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the Department to another person, organization, or
agency of any record about you. This accounting contains the date,
nature, and purpose of each disclosure, as well as the name and address
of the person, organization, or agency to which the disclosure was made.
Your request for an accounting should identify each particular record in
question and should be made by writing directly to the Department
component that maintains the record, following the procedures in
Sec. 16.41.
[[Page 287]]
(b) Where accountings are not required. Components are not required
to provide accountings to you where they relate to:
(1) Disclosures for which accountings are not required to be kept--
in other words, disclosures that are made to employees within the agency
and disclosures that are made under the FOIA;
(2) Disclosures made to law enforcement agencies for authorized law
enforcement activities in response to written requests from those law
enforcement agencies specifying the law enforcement activities for which
the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that
have been exempted from accounting requirements.
(c) Appeals. You may appeal a denial of a request for an accounting
to the Office of Information and Privacy in the same manner as a denial
of a request for access to records (see Sec. 16.45) and the same
procedures will be followed.
Sec. 16.48 Preservation of records.
Each component will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the Act.
Sec. 16.49 Fees.
Components shall charge fees for duplication of records under the
Privacy Act in the same way in which they charge duplication fees under
Sec. 16.11. No search or review fee may be charged for any record unless
the record has been exempted from access under Exemptions (j)(2) or
(k)(2) of the Privacy Act.
Sec. 16.50 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the component
shall make reasonable efforts to provide notice of this to the
individual. Notice shall be given within a reasonable time after the
component's receipt of the order--except that in a case in which the
order is not a matter of public record, the notice shall be given only
after the order becomes public. This notice shall be mailed to the
individual's last known address and shall contain a copy of the order
and a description of the information disclosed. Notice shall not be
given if disclosure is made from a criminal law enforcement system of
records that has been exempted from the notice requirement.
(b) Emergency disclosures. Upon disclosing a record pertaining to an
individual made under compelling circumstances affecting health or
safety, the component shall notify that individual of the disclosure.
This notice shall be mailed to the individual's last known address and
shall state the nature of the information disclosed; the person,
organization, or agency to which it was disclosed; the date of
disclosure; and the compelling circumstances justifying the disclosure.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 51401, Sept. 25,
1998]
Sec. 16.51 Security of systems of records.
(a) Each component shall establish administrative and physical
controls to prevent unauthorized access to its systems of records, to
prevent unauthorized disclosure of records, and to prevent physical
damage to or destruction of records. The stringency of these controls
shall correspond to the sensitivity of the records that the controls
protect. At a minimum, each component's administrative and physical
controls shall ensure that:
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during business
hours to prevent unauthorized persons from having access to them;
(3) Records are inaccessible to unauthorized persons outside of
business hours; and
(4) Records are not disclosed to unauthorized persons or under
unauthorized circumstances in either oral or written form.
(b) Each component shall have procedures that restrict access to
records to
[[Page 288]]
only those individuals within the Department who must have access to
those records in order to perform their duties and that prevent
inadvertent disclosure of records.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26,
1998]
Sec. 16.52 Contracts for the operation of record systems.
Any approved contract for the operation of a record system will
contain the standard contract requirements issued by the General
Services Administration to ensure compliance with the requirements of
the Privacy Act for that record system. The contracting component will
be responsible for ensuring that the contractor complies with these
contract requirements.
Sec. 16.53 Use and collection of social security numbers.
Each component shall ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their social security
numbers, unless the collection is authorized either by a statute or by a
regulation issued prior to 1975; and
(b) That individuals requested to provide their social security
numbers must be informed of:
(1) Whether providing social security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of social security numbers; and
(3) The uses that will be made of the numbers.
Sec. 16.54 Employee standards of conduct.
Each component will inform its employees of the provisions of the
Privacy Act, including the Act's civil liability and criminal penalty
provisions. Unless otherwise permitted by law, an employee of the
Department of Justice shall:
(a) Collect from individuals only the information that is relevant
and necessary to discharge the responsibilities of the Department;
(b) Collect information about an individual directly from that
individual whenever practicable;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether
providing it is mandatory or voluntary;
(2) The principal purpose for which the Department intends to use
the information;
(3) The routine uses the Department may make of the information; and
(4) The effects on the individual, if any, of not providing the
information;
(d) Ensure that the component maintains no system of records without
public notice and that it notifies appropriate Department officials of
the existence or development of any system of records that is not the
subject of a current or planned public notice;
(e) Maintain all records that are used by the Department in making
any determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to ensure
fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the
FOIA, make reasonable efforts, prior to disseminating any record about
an individual, to ensure that the record is accurate, relevant, timely,
and complete;
(g) Maintain no record describing how an individual exercises his or
her First Amendment rights, unless it is expressly authorized by statute
or by the individual about whom the record is maintained, or is
pertinent to and within the scope of an authorized law enforcement
activity;
(h) When required by the Act, maintain an accounting in the
specified form of all disclosures of records by the Department to
persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized
or inadvertent disclosure of a record to anyone; and
(j) Notify the appropriate Department official of any record that
contains information that the Privacy Act does not permit the Department
to maintain.
[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26,
1998; 63 FR 51401, Sept. 25, 1998]
[[Page 289]]
Sec. 16.55 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the Privacy Act.
Subpart E--Exemption of Records Systems Under the Privacy Act
Source: Order No. 645-76, 41 FR 12640, Mar. 26, 1976, unless
otherwise noted.
Sec. 16.70 Exemption of the Office of the Attorney General System--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e)(5); and
(g):
(1) General Files System of the Office of the Attorney General
(JUSTICE/OAG-001).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1),
(k)(2), and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Department of
Justice as well as the recipient agency. This would permit record
subjects to impede the investigation, e.g., destroy evidence, intimidate
potential witnesses, or flee the area to avoid inquiries or apprehension
by law enforcement personnel.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) because the records contained in this system
relate to official Federal investigations. Individual access to these
records might compromise ongoing investigations, reveal confidential
informants or constitute unwarranted invasions of the personal privacy
of third parties who are involved in a certain investigation. Amendment
of the records would interfere with ongoing criminal law enforcement
proceedings and impose an impossible administrative burden by requiring
criminal investigations to be continuously reinvestigated.
(4) From subsections (e) (1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of criminal activity. Moreover, it
would impede the specific investigative process if it were necessary to
assure the relevance, accuracy, timeliness and completeness of all
information obtained.
(5) From subsection (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations of duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4) (G) and (H) because this system is
exempt from the access provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
(8) From subsection (g) because this system is exempt from the
access and amendment provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
[Order No. 31-85, 51 FR 751, Jan. 8, 1986]
Sec. 16.71 Exemption of the Office of the Deputy Attorney General System--limited access.
(a) The following systems of records and exempt from 5 U.S.C.
552a(d)(1) and (e)(1):
(1) Presidential Appointee Candidate Records System (JUSTICE/DAG-
006).
[[Page 290]]
(2) Presidential Appointee Records System (JUSTICE/DAG-007).
(3) Special Candidates for Presidential Appointments Records System
(JUSTICE/DAG-008).
(4) Miscellaneous Attorney Personnel Records System (JUSTICE/DAG-
011).
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d)(1) because many persons are contacted who,
without an assurance of anonymity, refuse to provide information
concerning a candidate for a Presidential appointee or Department
attorney position. Access could reveal the identity of the source of the
information and constitute a breach of the promise of confidentiality on
the part of the Department of Justice. Such breaches ultimately would
restrict the free flow of information vital to a determination of a
candidate's qualifications and suitability.
(2) From subsection (e)(1) because in the collection of information
for investigative and evaluative purposes, it is impossible to determine
in advance what exact information may be of assistance in determining
the qualifications and suitability of a candidate. Information which may
appear irrelevant, when combined with other seemingly irrelevant
information, can on occasion provide a composite picture of a candidate
for a position which assists in determining whether that candidate
should be nominated for appointment.
(c) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):
(1) Drug Enforcement Task Force Evaluation and Reporting System
(JUSTICE/DAG-003).
(2) General Files System of the Office of the Deputy Attorney
General (JUSTICE/DAG-013).
(d) In addition, the Drug Enforcement Task Force Evaluation and
Reporting System is exempt from 5 U.S.C. 552a(e)(4)(G) and (H). The
exemptions for the Drug Enforcement Task Force Evaluation and Reporting
System apply only to the extent that information is subject to exemption
pursuant to 5 U.S.C. 552a(j)(2) and (K)(2). The exemptions for the
General Files System apply only to the extent that information is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and
(k)(5).
(e) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
could reveal investigative interest on the part of the Department of
Justice, as well as the recipient agency. This would permit record
subjects to impede the investigation, e.g., destroy evidence, intimidate
potential witnesses, or flee the area to avoid inquiries or apprehension
by law enforcement personnel. Further, making available to a record
subject the accounting of disclosures could reveal the identity of a
confidential source. In addition, release of an accounting of
disclosures from the General Files System may reveal information that is
properly classified pursuant to Executive Order 12356, and thereby cause
damage to the national security.
(2) From subsection (c)(4) because these systems are exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) because the records contained in these
systems relate to official Federal investigations. Individual access to
these records could compromise ongoing investigations, reveal
confidential informants and/or sensitive investigative techniques used
in particular investigations, or constitute unwarranted invasions of the
personal privacy of third parties who are involved in a certain
investigation. In addition, release of records from the General Files
System may reveal information that is properly classified pursuant to
Executive Order 12356, and thereby cause damage to the national
security. Amendment of the records in either of these systems would
interfere with ongoing law enforcement proceedings and impose an
impossible administrative burden by requiring law
[[Page 291]]
enforcement investigations to be continuously reinvestigated.
(4) From subsections (e)(1) and (e)(5) because in the course of law
enforcement investigations information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of criminal activity. Moreover, it
would impede any investigative process, whether civil or criminal, if it
were necessary to assure the relevance, accuracy, timeliness and
completeness of all information obtained.
(5) From subsection (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and may therefore be able to avoid detection, apprehension, or legal
obligations or duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4) (G) and (H) because no access to these
records is available under subsection (d) of the Privacy Act. (This
exemption applies only to the Drug Enforcement Task Force Evaluation and
Reporting System.)
(8) From subsection (g) because these systems of records are exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]
Sec. 16.72 Exemption of Office of the Associate Attorney General System--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):
(1) General Files System of the Office of the Associate Attorney
General (JUSTICE/AAG-001).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2)
and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
could reveal investigative interest on the part of the Department of
Justice, as well as the recipient agency. This would permit record
subjects to impede the investigation, e.g., destroy evidence, intimidate
potential witnesses, or flee the area to avoid inquiries or apprehension
by law enforcement personnel. Further, making available to a record
subject the accounting of disclosures could reveal the identity of a
confidential source. In addition, release of an accounting of
disclosures may reveal information that is properly classified pursuant
to Executive Order 12356, and thereby cause damage to the national
security.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j)(2),
(k)(1), (k)(2) and (k)(5) of the Privacy Act.
(3) From subsection (d) because the records contained in this system
relate to official Federal investigations. Individual access to these
records could compromise ongoing investigations, reveal confidential
informants and/or sensitive investigative techniques used in particular
investigations, or constitute unwarranted invasions of the personal
privacy of third parties who are involved in a certain investigation. In
addition, release of these records may reveal information that is
properly classified pursuant to Executive Order 12356, and thereby cause
damage to the national security. Amendment of the records in this system
would interfere with ongoing law enforcement proceedings and impose an
impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(4) From subsections (e)(1) and (e)(5) because in the course of law
enforcement investigations information may occasionally be obtained or
introduced
[[Page 292]]
the accuracy of which is unclear or which is not strictly relevant or
necessary to a specific investigation. In the interests of effective law
enforcement, it is appropriate to retain all information that may aid in
establishing patterns of criminal activity. Moreover, it would impede
any investigative process, whether civil or criminal, if it were
necessary to assure the relevance, accuracy, timeliness and completeness
of all information obtained.
(5) From subsection (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and may therefore be able to avoid detection, apprehension, or legal
obligations or duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsection (g) because this system of records is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act.
[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]
Sec. 16.73 Exemption of Office of Legal Policy System--limited access.
(a) The following system of records is exempt from 5 U.S.C 552a
(d)(1), (2), (3) and (4); (e)(1) and (2), (e)(4)(G) and (H), (e)(5); and
(g):
(1) Freedom of Information and Privacy Appeals Index (JUSTICE/OLP-
001).
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), (k)(2)
and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsections (d)(1), (2), (3), and (4) to the extent that
information in this record system relates to official Federal
investigations and matters of law enforcement. Individual access to
these records might compromise ongoing investigations, reveal
confidential informants or constitute unwarranted invasions of the
personal privacy of third parties who are involved in a certain
investigation. Amendment of the records would interfere with ongoing
criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(2) From subsections (e)(1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of criminal activity. Moreover, it
would impede the specific investigative process if it were necessary to
assure the relevance, accuracy, timeliness, and completeness of all
information obtained.
(3) From subsection (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations or duties.
(4) From subsections (e)(4)(G) and (H) because this system is exempt
from the access provisions of subsection (d) pursuant to subsections (j)
and (k) of the Privacy Act.
(5) From subsection (g) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(c) The following system of records is exempt from 5 U.S.C.
552a(d)(1) and (e)(1):
(1) U.S. Judges Records System (JUSTICE/OLP-002).
[[Page 293]]
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(d) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d)(1) because many persons are contracted who,
without an assurance of anonymity, refuse to provide information
concerning a candidate for a judgeship. Access could reveal the identity
of the source of the information and constitute a breach of the promised
confidentiality on the part of the Department. Such breaches ultimately
would restrict the free flow of information vital to the determination
of a candidate's qualifications and suitability.
(2) From subsection (e)(1) because in the collection of information
for investigative and evaluative purposes, it is impossible to determine
advance what exact information may be of assistance in determining the
qualifications and suitability of a candidate. Information which may
seem irrelevant, when combined with other seemingly irrelevant
information, can on occasion provide a composite picture of a candidate
which assists in determining whether that candidate should be nominated
for appointment.
(e) The following system of records is exempt from U.S.C. 552a(c)
(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H) (e)(5); and
(g):
(1) General Files System of the Office of Legal Policy (JUSTICE/OLP-
003).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2),
and (k)(5).
(f) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Department as
well as the recipient agency. This would permit record subjects to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid inquiries or apprehension by law
enforcement personnel.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) because the records contained in this system
relate to official Federal investigations. Individual access to these
records might compromise ongoing investigations, reveal confidential
informants, or constitute unwarranted invasions of the personal privacy
of third parties who are involved in a certain investigation. Amendment
of records would interfere with ongoing criminal law enforcement
proceedings and impose an impossible administrative burden by requiring
criminal investigations to be continuously reinvestigated.
(4) From subsections (e) (1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
since it may aid in establishing patterns of criminal activity.
Moreover, it would impede the specific investigation process if it were
necessary to assure the relevance, accuracy, timeliness and completeness
of all information obtained.
(5) From subsections (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations and duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4) (G) and (H) because this system is
exempt from the access provisions of subsection (d)
[[Page 294]]
pursuant to subsections (j) and (k) of the Privacy Act.
(8) From subsection (g) because this system is exempt from the
access and amendment provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
(g) The following system of records is exempt from 5 U.S.C. 552a
(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5); and
(g):
(1) Declassification Review System (JUSTICE/OLP-004).
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552(j)(2), (k)(1),
(k)(2), and (k)(5).
(h) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Department of
Justice as well as the recipient agency. This would permit record
subjects to impede the investigation e.g., destroy evidence, intimidate
potential witnesses, or flee the area to avoid inquiries or apprehension
by law enforcement personnel.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) to the extent that information in this
record system relates to official Federal investigations and matters of
law enforcement and/or is properly classified pursuant to E.O. 12356.
Individual access to these records might compromise ongoing
investigations, reveal confidential sources or constitute unwarranted
invasions of the personal privacy of third parties who are involved in a
certain investigation, or jepoardize national security or foreign policy
interests. Amendment of the records would interfere with ongoing
criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(4) From subsections (e) (1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
which may aid in establishing patterns of criminal activity. Moreover,
it would impede the specific investigative process if it were necessary
to assure the relevance, accuracy, timeliness, and completeness of all
information obtained.
(5) From subsection (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations or duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4) (G) and (H), and (g) because this system
is exempt from the access provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
[Order No. 34-85, 51 FR 754, Jan. 8, 1986. Redesignated by Order No. 6-
86, 51 FR 15476, Apr. 24, 1986 and further redesignated and amended by
Order No. 19-86, 51 FR 39373, Oct. 28, 1986]
Sec. 16.74 Exemption of Office of Intelligence Policy and Review Systems--limited access.
(a) The following systems of records is exempt from 5 U.S.C. 552a
(c)(3), (c)(4), (d), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(8), (f)
and (g);
(1) Policy and Operational Records System (JUSTICE/OIPR-001);
(2) Foreign Intelligence Surveillance Act Records System (JUSTICE/
OIPR-002);
(3) Litigation Records System (JUSTICE/OIPR-003); and
(4) Domestic Security/Terrorism Investigations Records System
(JUSTICE/OIPR-004).
[[Page 295]]
These exemptions apply only to the extent that information in those
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1)
and (k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because release of the disclosure
accounting would put the target of a surveillance or investigation on
notice of the investigation or surveillance and would thereby seriously
hinder authorized United States intelligence activities.
(2) From subsections (c)(4), (d), (e)(4)(G), (e)(4)(H), (f) and (g)
because these provisions contemplate individual access to records and
such access would compromise ongoing surveillances or investigations and
reveal the sources and methods of an investigation.
(3) From subsection (e)(2) because, although this office does not
conduct investigations, the collection efforts of agencies that supply
information to this office would be thwarted if the agency were required
to collect information with the subject's knowledge.
(4) From subsections (e)(3) and (e)(8) because disclosure and notice
would provide the subject with substantial information which could
impede of compromise an investigation. For example, an investigatory
subject could, once made aware that an investigation was ongoing, alter
his manner of engaging in intelligence or terrorist activities in order
to avoid detection.
[Order No. 19-86, 51 FR 39374, Oct. 28, 1986]
Sec. 16.75 Exemption of the Office of the Inspector General Systems/Limited Access.
(a) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e)(1), (2), (3), (5), and (8), and (g) of 5 U.S.C. 552a. In addition,
the following system of records is exempted pursuant to the provisions
of 5 U.S.C. 552a(k)(1) and (k)(2) from subsections (c)(3), (d), and
(e)(1) of 5 U.S.C. 552a:
(1) Office of the Inspector General Investigative Records (JUSTICE/
OIG-001).
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), (k)(1)
and (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, e.g., public source materials, the applicable
exemption may be waived, either partially or totally, by the Office of
the Inspector General (OIG).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because release of disclosure accounting
could alert the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to the existence of the
investigation and the fact that they are subjects of the investigation,
and reveal investigative interest by not only the OIG, but also by the
recipient agency. Since release of such information to the subjects of
an investigation would provide them with significant information
concerning the nature of the investigation, release could result in the
destruction of documentary evidence, improper influencing of witnesses,
endangerment of the physical safety of confidential sources, witnesses,
and law enforcement personnel, the fabrication of testimony, flight of
the subject from the area, and other activities that could impede or
compromise the investigation. In addition, accounting for each
disclosure could result in the release of properly classified
information which would compromise the national defense or disrupt
foreign policy.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation, of the existence of that
investigation; of the nature and scope of the information and evidence
obtained
[[Page 296]]
as to his activities; of the identity of confidential sources,
witnesses, and law enforcement personnel, and of information that may
enable the subject to avoid detection or apprehension. These factors
would present a serious impediment to effective law enforcement where
they prevent the successful completion of the investigation, endanger
the physical safety of confidential sources, witnesses, and law
enforcement personnel, and/or lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
In addition, granting access to such information could disclose
security-sensitive or confidential business information or information
that would constitute an unwarranted invasion of the personal privacy of
third parties. Finally, access to the records could result in the
release of properly classified information which would compromise the
national defense or disrupt foreign policy. Amendment of the records
would interfere with ongoing investigations and law enforcement
activities and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated.
(4) From subsection (e)(1) because the application of this provision
could impair investigations and interfere with the law enforcement
responsibilities of the OIG for the following reasons:
(i) It is not possible to detect relevance or necessity of specific
information in the early stages of a civil, criminal or other law
enforcement investigation, case, or matter, including investigations in
which use is made of properly classified information. Relevance and
necessity are questions of judgment and timing, and it is only after the
information is evaluated that the relevance and necessity of such
information can be established.
(ii) During the course of any investigation, the OIG may obtain
information concerning actual or potential violations of laws other than
those within the scope of its jurisdiction. In the interest of effective
law enforcement, the OIG should retain this information, as it may aid
in establishing patterns of criminal activity, and can provide valuable
leads for Federal and other law enforcement agencies.
(iii) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may relate also to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(5) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to destroy
evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation cannot
be required to provide information to investigators, and information
relating to a subject's illegal acts, violations of rules of conduct, or
any other misconduct must be obtained from other sources.
(iii) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6) From subsection (e)(3) because the application of this provision
would provide the subject of an investigation with substantial
information which could impede or compromise the investigation.
Providing such notice to a subject of an investigation could interfere
with an undercover investigation by revealing its existence, and could
endanger the physical safety of confidential sources, witnesses, and
investigators by revealing their identities.
(7) From subsection (e)(5) because the application of this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment it is collected. In the
collection of information for law enforcement purposes, it is impossible
to determine in advance what information is accurate, relevant, timely,
and complete. Material which
[[Page 297]]
may seem unrelated, irrelevant, or incomplete when collected may take on
added meaning or significance as an investigation progresses. The
restrictions of this provision could interfere with the preparation of a
complete investigative report, and thereby impede effective law
enforcement.
(8) From subsection (e)(8) because the application of this provision
could prematurely reveal an ongoing criminal investigation to the
subject of the investigation, and could reveal investigative techniques,
procedures, or evidence.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2) and (k)(1) and (k)(2) of the Privacy Act.
(c) The following system of records is exempted from 5 U.S.C.
552a(d).
(1) Office of the Inspector General, Freedom of Information/Privacy
Acts (FOI/PA) Records (JUSTICE/OIG-003).
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1),
and (k)(2). To the extent that information in a record pertaining to an
individual does not relate to official Federal investigations and law
enforcement matters, the exemption does not apply. In addition, where
compliance would not appear to interfere with or adversely affect the
overall law enforcement process, the applicable exemption may be waived
by the Office of the Inspector General (OIG).
(d) Exemption from subsection (d) is justified for the following
reasons:
(1) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation of the existence of that
investigation; of the nature and scope of the information and evidence
obtained as to his activities; of the identity of confidential sources,
witnesses, and law enforcement personnel; and of information that may
enable the subject to avoid detection or apprehension. These factors
would present a serious impediment to effective law enforcement where
they prevent the successful completion of the investigation, endanger
the physical safety of confidential sources, witnesses, and law
enforcement personnel, and/or lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
In addition, granting access to such information could disclose
security-sensitive or confidential business information or information
that would constitute an unwarranted invasion of the personal privacy of
third parties. Finally, access to the records could result in the
release of properly classified information which would compromise the
national defense or disrupt foreign policy. Amendment of the records
would interfere with ongoing investigations and law enforcement
activities and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated.
(2) [Reserved]
[Order No. 63-92, 57 FR 8263, Mar. 9, 1992, as amended by Order No. 64-
92, 57 FR 8263, Mar. 9, 1992]
Sec. 16.76 Exemption of Justice Management Division.
(a) The following system of records is exempt from 5 U.S.C. 552a(d):
(1) Controlled Substances Act Nonpublic Records (JUSTICE/JMD-002).
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(b) Exemption from subsection (d) is justified for the following
reasons:
(1) Access to and use of the nonpublic records maintained in this
system are restricted by law. Section 3607(b) of Title 18 U.S.C.
(enacted as part of the Sentencing Reform Act of 1984, Pub. L. 98-473,
Chapter II) provides that the sole purpose of these records shall be for
use by the courts in determining whether a person found guilty of
violating section 404 of the Controlled Substances Act qualifies:
(i) For the disposition available under 18 U.S.C. 3607(a) to persons
with no prior conviction under a Federal or State law relating to
controlled substances, or
(ii) For an order, under 18 U.S.C. 3607(c), expunging all official
records
[[Page 298]]
(except the nonpublic records to be retained by the Department of
Justice) of the arrest and any subsequent criminal proceedings relating
to the offense.
(2) Information in this system consists of arrest records, including
those of co-defendants. The records include reports of informants and
investigations. Therefore, access could disclose investigative
techniques, reveal the identity of confidential sources, and invade the
privacy of third parties.
(c) The following system of records is exempt from 5 U.S.C. 552a(d):
(1) Security Clearance Information System (SCIS) (JUSTICE/JMD-008)--
Limited access.
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and
(k)(5).
(d) Exemption from subsection (d) is justified for the following
reason:
(1) Access to records in the system would reveal the identity(ies)
of the source(s) of information collected in the course of a background
investigation. Such knowledge might be harmful to the source who
provided the information as well as violate the explicit or implicit
promise of confidentiality made to the source during the investigation.
Access may also reveal information relating to actual or potential
criminal investigations.
(2) [Reserved]
(e) Consistent with the legislative purpose of the Privacy Act of
1974, the Justice Management Division will grant access to nonexempt
material in SCIS records which are maintained by the Security Programs
Staff. Disclosure will be governed by the Department's Privacy
regulations, but will be limited to the extent that the identity of
confidential sources will not be compromised; subjects of an
investigation of an actual or potential criminal violation will not be
alerted to the investigation; the physical safety of witnesses,
informants and law enforcement personnel will not be endangered; the
privacy of third parties will not be violated; and that the disclosure
would not otherwise impede effective law enforcement. Whenever possible,
information of the above nature will be deleted from the requested
documents and the balance made available. The controlling principle
behind this limited access is to allow disclosures except those
indicated above. The decisions to release information from this system
will be made on a case-by-case basis.
(f) The following system of records is exempt from 5 U.S.C. 552a(d);
(1) Freedom of Information/Privacy Act Records System (JUSTICE/JMD-
019).
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(g) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d) because of the need to safeguard the
identity of confidential informants and avoid interference with ongoing
investigations or law enforcement activities by preventing premature
disclosure of information relating to those efforts.
(2) [Reserved]
(h) Consistent with the legislative purpose of the Privacy Act of
1974, the Justice Management Division will grant access to non-exempt
material in FOIA/PA records. Exemptions will apply only to the extent
that other correspondence or internal memoranda retained with the
request file contain investigatory material for law enforcement
purposes.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
688-77, 42 FR 9999, Feb. 18, 1977; Order No. 899-80, 45 FR 43703, June
30, 1980; Order No. 6-86, 51 FR 15476, Apr. 24, 1986; Order No. 246-
2001, 66 FR 54663, Oct. 30, 2001]
Sec. 16.77 Exemption of U.S. Trustee Program System--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a (c)
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and
(8); (f) and (g):
(1) U.S. Trustee Program Case Referral System, JUSTICE/UST-004.
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting
[[Page 299]]
would permit the subject of an investigation to obtain valuable
information concerning the nature of that investigation. This would
permit record subjects to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses, or flee the area to avoid
inquiries or apprehension by law enforcement personnel.
(2) From subsection (c)(4) since an exemption being claimed for
subsection (d) makes this subsection inapplicable.
(3) From subsection (d) because access to the records contained in
this system might compromise ongoing investigations, reveal confidential
informants, or constitute unwarranted invasions of the personal privacy
of third parties who are involved in a certain investigation. Amendment
of the records would interfere with ongoing criminal law enforcement
proceedings and impose an impossible administrative burden by requiring
criminal investigations to be continuously reinvestigated.
(4) From subsections (e)(1) and (e)(5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interest of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of criminal activity. Moreover, it
would impede the specific investigative process if it were necessary to
assure the relevance, accuracy, timeliness, and completeness of all
information obtained.
(5) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement because the subject of the investigation would be
placed on notice as to the existence of the investigation and would
therefore be able to avoid detection or apprehension, to influence
witnesses improperly, to destroy evidence, or to fabricate testimony.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it would compromise the existence of a confidential
investigation or reveal the identity of witnesses or confidential
informants.
(7) From subsections (e)(4) (G) and (H) because this system of
records is exempt from the access provisions of subsection (d) pursuant
to subsections (j) and (k).
(8) From subsection (e)(8) because the individual notice requirement
of this subsection could present a serious impediment to law enforcement
in that this could interfere with the U.S. Attorney's ability to issue
subpoenas.
(9) From subsections (f) and (g) because this system has been
exempted from the access provisions of subsection (d).
[Order No. 1-87, 52 FR 3631, Feb. 5, 1987]
Sec. 16.78 Exemption of the Special Counsel for Immigration-Related, Unfair Employment Practices Systems.
(a) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (d).
(1) Central Index File and Associated Records, JUSTICE/OSC-001.
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting would permit the subject of an investigation to obtain
valuable information concerning the nature of that investigation. This
would permit record subjects to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses, or flee the area to avoid
inquiries.
(2) From subsection (d) because access to the records might
compromise ongoing investigations, reveal confidential informants, or
constitute unwarranted invasions of the personal privacy of third
parties who are involved in a certain investigation.
[Order No. 10-88, 53 FR 7735, Mar. 10, 1988]
[[Page 300]]
Sec. 16.79 Exemption of Pardon Attorney Systems.
(a) The following systems of records are exempt from 5 U.S.C.
552a(d):
(1) Executive Clemency Files (JUSTICE /OPA-001).
(2) Freedom of Information/Privacy Acts (FOI/PA) Request File
(JUSTICE/OPA-003).
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(b) Exemption from subsection (d) is justified for the following
reasons:
(1) Executive Clemency Files contain investigatory and evaluative
reports relating to applicants for Executive clemency. The FOI/PA
Request File contains copies of documents from the Executive Clemency
Files which have not been released either in whole or in part pursuant
to certain provisions of the FOI/PA. Release of such information to the
subject would jeopardize the integrity of the investigative process,
invade the right of candid and confidential communciations among
officials concerned with recommending clemency decisions to the
President, and disclose the identity of persons who furnished
information to the Government under an express or implied promise that
their identities would be held in confidence.
(2) The purpose of the creation and maintenance of the Executive
Clemency Files is to enable the Pardon Attorney to prepare for the
President's ultimate decisions on matters which are within the
President's exclusive jurisdiction by reason of Article II, Section 2,
Clause 1 of the Constitution, which commits pardons to the exclusive
discretion of the President.
[Order No. 26-88, 53 FR 51542, Dec. 22, 1988]
Sec. 16.80 Exemption of Office of Professional Responsibility System--limited access.
(a) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5)
and (8), (f) and (g):
(1) Office of Professional Responsibility Record Index (JUSTICE/OPR-
001).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2),
and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because release of the disclosure
accounting would enable the subject of an investigation to gain
information concerning the existence, nature and scope of the
investigation and seriously hamper law enforcement efforts.
(2) From subsections (c)(4), (d), (e)(4)(G) and (H), (f) and (g)
because these provisions concern individual access to records and such
access might compromise ongoing investigations, reveal confidential
informants and constitute unwarranted invasions of the personal privacy
of third persons who provide information in connection with a particular
investigation.
(3) From subsections (e)(1) and (5) because the collection of
information during an investigation necessarily involves material
pertaining to other persons or events which is appropriate in a thorough
investigation, even though portions thereof are not ultimately connected
to the person or event subject to the final action or recommendation of
the Office of Professional Responsibility.
(4) From subsection (e)(2) because collecting the information from
the subject would thwart the investigation by placing the subject on
notice of the investigation.
(5) From subsections (e)(3) and (e)(8) because disclosure and notice
would provide the subject with substantial information which could
impede or compromise the investigation. For example, an investigatory
subject occupying a supervisory position could, once made aware that a
misconduct investigation was ongoing, put undue pressure on subordinates
so as to preclude their cooperation with investigators.
(c) The following system of records is exempted from 5 U.S.C.
552a(d).
(1) Freedom of Information/Privacy Act (FOI/PA) Records (JUSTICE/
OPR-002).
This exemption applies only to the extent that information in this
system
[[Page 301]]
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and
(k)(2). To the extent that information in a record pertaining to an
individual does not relate to national defense or foreign policy,
official Federal investigations and/or law enforcement matters, the
exemption does not apply. In addition, where compliance would not appear
to interfere with or adversely affect the overall law enforcement
process, the applicable exemption may be waived by OPR.
(d) Exemption from subsection (d) is justified for the following
reasons:
(1) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation of the existence of that
investigation; of the nature and scope of the information and evidence
obtained as to his activities; of the identity of confidential sources,
witnesses, and law enforcement personnel; and of information that may
enable the subject to avoid detection or apprehension. These factors
would present a serious impediment to effective law enforcement where
they prevent the successful completion of the investigation, endanger
the physical safety of confidential sources, witnesses, and law
enforcement personnel, and/or lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
In addition, granting access to such information could disclose
security-sensitive or confidential business information or information
that would constitute an unwarranted invasion of the personal privacy of
third parties. Finally, access to the records could result in the
release of properly classified information which would compromise the
national defense or disrupt foreign policy. Amendment of the records
would interfere with ongoing investigations and law enforcement
activities and impose an enormous administrative burden by requiring
investigations to be continuously reinvestigated.
[Order No. 58-81, 46 FR 3509, Jan. 15, 1981, as amended by Order No.
159-99, 64 FR 17977, Apr. 13, 1999]
Sec. 16.81 Exemption of United States Attorneys Systems--limited access.
(a) The following systems of records are exempt from 5 U.S.C.
552a(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e)
(5) and (8), (f), and (g):
(1) Citizen Complaint Files (JUSTICE/USA-003).
(2) Civil Case Files (JUSTICE/USA-005).
(3) Consumer Complaints (JUSTICE/USA-006).
(4) Criminal Case Files (JUSTICE/USA-007).
(5) Kline-District of Columbia and Maryland-Stock and Land Fraud
Interrelationship Filing System (JUSTICE/USA-009).
(6) Major Crimes Division Investigative Files (JUSTICE/USA-010).
(7) Prosecutor's Management Information System (PROMIS) (JUSTICE/
USA-011).
(8) United States Attorney, District of Columbia Superior Court
Division, Criminal Files (JUSTICE/USA-013).
(9) Pre-trial Diversion Program Files (JUSTICE/USA-014).
These exemptions apply to the extent that information in these systems
is subject to exemption pursuant to U.S.C. 552a(j)(2), (k)(1) and
(k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting, for disclosures pursuant to the routine uses published for
these systems, would permit the subject of a criminal investigation and/
or civil case or matter under investigation, litigation, regulatory or
administrative review or action, to obtain valuable information
concerning the nature of that investigation, case or matter and present
a serious impediment to law enforcement or civil legal activities.
(2) From subsection (c)(4) since an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(3) From subsection (d) because access to the records contained in
these systems would inform the subject of criminal investigation and/or
civil investigation, matter or case of the existence of that
investigation, provide the subject of the investigation with
[[Page 302]]
information that might enable him to avoid detection, apprehension or
legal obligations, and present a serious impediment to law enforcement
and other civil remedies.
(4) From subsection (e)(1) because in the course of criminal
investigations and/or civil investigations, cases or matters, the U.S.
Attorneys often obtain information concerning the violation of laws or
civil obligations other than those relating to an active case or matter.
In the interests of effective law enforcement and civil litigation, it
is necessary that the U.S. Attorneys retain this information since it
can aid in establishing patterns of activity and provide valuable leads
for other agencies and future cases that may be brought within the U.S.
Attorneys' offices.
(5) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection, apprehension or legal obligations
and duties.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(7) From subsections (e)(4) (G) and (H) because these systems of
records are exempt from individual access pursuant to subsections (j)
and (k) of the Privacy Act of 1974.
(8) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(9) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the United States
Attorneys' ability to issue subpoenas and could reveal investigative
techniques and procedures.
(10) From subsection (f) because these systems of records have been
exempted from the access provisions of subsection (d).
(11) From subsection (g) because these systems of records are
compiled for law enforcement purposes and have been exempted from the
access provisions of subsections (d) and (f).
(c) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and
(8), (f), and (g):
(1) Freedom of Information Act/Privacy Act Files (JUSTICE/USA-008)
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
(d) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting would permit the subject of a criminal investigation and/or
civil case or matter under investigation, in litigation, or under
regulatory or administrative review or action to obtain valuable
information concerning the nature of that investigation, case or matter,
and present a serious impediment to law enforcement or civil legal
activities.
(2) From subsection (c)(4) because an exemption is being claimed for
subsection (d) of the Act (Access to
[[Page 303]]
Records), rendering this subsection inapplicable to the extent that this
system of records is exempted from subsection (d).
(3) From subsection (d) because access to the records contained in
these systems would inform the subject of a criminal or civil
investigation, matter or case of the existence of such, and provide the
subject with information that might enable him to avoid detection,
apprehension or legal obligations, and present a serious impediment to
law enforcement and other civil remedies. Amendment of the records would
interfere with ongoing criminal law enforcement proceedings and impose
an impossible administrative burden by requiring criminal investigations
to be continuously reinvestigated.
(4) From subsection (e)(1) because in the course of criminal
investigations and/or civil investigations, cases or matters, the U.S.
Attorneys often obtain information concerning the violation of laws or
civil obligations other than those relating to an active case or matter.
In the interests of effective law enforcement and civil litigation, it
is necessary that the U.S. Attorneys retain this information since it
can aid in establishing patterns of activity and provide valuable leads
for other agencies and future cases that may be brought within the U.S.
Attorneys' offices.
(5) From subsection (e)(2) because to collect information to the
greatest extent possible from the subject individual of a criminal
investigation or prosecution would present a serious impediment to law
enforcement in that the subject of the investigation would be placed on
notice of the existence of the investigation and would therefore be able
to avoid detection, apprehension, or legal obligations and duties.
(6) From subsection (e)(3) because to provide individuals supplying
information with a form stating the requirements of subsection (e)(3)
would constitute a serious impediment to law enforcement in that it
could compromise the existence of a confidential investigation, reveal
the identity of confidential sources of information, and endanger the
life and physical safety of confidential informants.
(7) From subsections (e)(4) (G) and (H) because this system of
records is exempt from the individual access provisions of subsection
(d) and the rules provisions of subsection (f).
(8) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would inhibit the
ability of trained investigator and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(9) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the U.S. Attorneys' ability
to issue subpoenas and could reveal investigative techniques and
procedures.
(10) From subsection (f) because this system has been exempted from
the individual access provisions of subsection (d).
(11) From subsection (g) because the records in this system are
generally compiled for law enforcement purposes and are exempt from the
access provisions of subsections (d) and (f), rendering subsection (g)
inapplicable.
(e) The following systems of records are exempt from 5 U.S.C.
552a(d)(1) and (e)(1):
(1) Assistant U.S. Attorneys Applicant Records System (JUSTICE/USA-
016).
(2) Appointed Assistant U.S. Attorneys Personnel System (JUSTICE/
USA-017).
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(f) Exemptions from the particular subsections are justified for the
following reasons:
[[Page 304]]
(1) From subsection (d)(1) because many persons are contacted who,
without an assurance of anonymity, refuse to provide information
concerning a candidate for an Assistant U.S. Attorney position. Access
could reveal the identity of the source of the information and
constitute a breach of the promise of confidentiality on the part of the
Department of Justice. Such breaches ultimately would restrict the free
flow of information vital to a determination of a candidate's
qualifications and suitability.
(2) From subsection (e)(1) because in the collection of information
for investigative and evaluative purposes, it is impossible to determine
in advance what exact information may be of assistance in determining
the qualifications and suitability of a candidate. Information which may
appear irrelevant, when combined with other seemingly irrelevant
information, can on occasion provide a composite picture of a candidate
for a position which assists in determining whether that candidate
should be nominated for appointment.
(g) The Giglio Impeachment Files (JUSTICE/USA-018) system of records
is exempt from 5 U.S.C. 552a subsections (c)(4), (e)(2), (e)(5), and (g)
of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), and exempt from
subsections (c)(3), (d), (e)(1), (e)(4)(G) and (H), and (f), pursuant to
5 U.S.C. 552a(j)(2) and (k)(2). These exemptions apply to the extent
that information in this system is subject to exemption pursuant to 5
U.S.C. 552a(j)(2) and (k)(2).
(h) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3); because an exemption is being claimed
for subsection (d), this subsection will not be applicable.
(2) From subsection (c)(4); because an exemption is being claimed
for subsection (d), this subsection will not be applicable.
(3) From subsection (d); because access to the records contained in
these systems is not necessary or may impede an ongoing investigation.
Most information in the records is derivative from the subject's
employing agency files, and individual access will be through the
employing agency's files. Additionally, other information in the records
may be related to allegations against an agent or witness that are
currently being investigated. Providing access to this information would
impede the ongoing investigation.
(4) From subsection (e)(1); because in the interest of effective law
enforcement and criminal prosecution, Giglio records will be retained
because they could later be relevant in a different case; however, this
relevance cannot be determined in advance.
(5) From subsection (e)(2); because the nature of the records in
this system, which are used to impeach or demonstrate bias of a witness,
requires that the information be collected from others.
(6) From subsections (e)(4)(G) and (H); because this system of
records is exempt from individual access pursuant to subsections (j) and
(k) of the Privacy Act of 1974.
(7) From subsection (e)(5); because the information in these records
is not being used to make a determination about the subject of the
records. According to constitutional principles of fairness articulated
by the Supreme Court in United States v. Giglio, the records are
required to be disclosed to criminal defendants to ensure fairness of
criminal proceedings.
(8) From subsection (f); because records in this system have been
exempted from the access provisions of subsection (d).
(9) From subsection (g); because records in this system are compiled
for law enforcement purposes and have been exempted from the access
provisions of subsections (d) and (f).
(i) Consistent with the legislative purpose of the Privacy Act of
1974, the Executive Office for United States Attorneys will grant access
to nonexempt material in records which are maintained by the U.S.
Attorneys. Disclosure will be governed by the Department's Privacy
regulations, but will be limited to the extent that the identity of
confidential sources will not be compromised; subjects of an
investigation of an actual or potential criminal, civil or regulatory
violation will not be alerted to the investigation; the physical safety
of witnesses, informants and law enforcement personnel will not be
[[Page 305]]
endangered, the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of the above nature will be deleted from
the requested documents and the balance made available. The controlling
principle behind this limited access is to allow disclosures except
those indicated above. The decisions to release information from these
systems will be made on a case-by-case basis.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
716-77, 42 FR 23506, May 9, 1977; Order No. 738-77, 42 FR 38177, July
27, 1977; Order No. 6-86, 51 FR 15476, Apr. 24, 1986; Order No. 57-91,
56 FR 58306, Nov. 19, 1991; Order No. 224-2001, 66 FR 17809, Apr. 4,
2001]
Sec. 16.82 Exemption of the National Drug Intelligence Center Data Base--limited access.
(a) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4); (d);
(e) (1), (2), and (3); (e)(4)(I); (e) (5) and (8); and (g) of 5 U.S.C.
552a. In addition, the following system of records is exempted pursuant
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections
(c)(3), (d), and (e)(1) and (e)(4)(I) of 5 U.S.C. 552a:
(1) National Drug Intelligence Center Data Base (JUSTICE/NDIC-001).
(2) [Reserved]
(b) 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),
(k)(1), and (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, e.g., public source materials, the applicable
exemption may be waived, either partially or totally, by the National
Drug Intelligence Center (NDIC). Exemptions from the particular
subsections are justified for the following reasons:
(1) From subsection (c)(3) for the same reasons that the system is
exempted from the provisions of subsection (d).
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsection (j)(2) of the
Privacy Act.
(3) From subsection (d) because disclosure to the subject could
alert the subject of an investigation pertaining to narcotic trafficking
or related activity of the fact and nature of the investigation, and/or
of the investigative interest of NDIC and other intelligence or law
enforcement agencies (including those responsible for civil proceedings
related to laws against drug trafficking); lead to the destruction of
evidence, improper influencing of witnesses, fabrication of testimony,
and/or flight of the subject; reveal the details of a sensitive
investigative or intelligence technique, or the identity of a
confidential source; or otherwise impede, compromise, or interfere with
investigative efforts and other related law enforcement and/or
intelligence activities. In addition, disclosure could invade the
privacy of third parties and/or endanger the life and safety of law
enforcement personnel, confidential informants, witnesses, and potential
crime victims. Finally, access to records could result in the release of
properly classified information that could compromise the national
defense or foreign policy. Amendment of the records would interfere with
ongoing investigations and 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, in the course of its
acquisition, collation, and analysis of information, NDIC will need to
retain information not immediately shown to be relevant to counterdrug
law enforcement to establish patterns of activity and to assist other
agencies charged with the enforcement of laws and regulations regarding
drug trafficking and charged with the acquisition of intelligence
related to international aspects of drug trafficking. This consideration
applies equally to information acquired from, or collated or analyzed
for, both law enforcement agencies and agencies of the U.S. foreign
intelligence community.
(5) From subsection (e)(2) because application of this provision
could
[[Page 306]]
present a serious impediment to law enforcement in that it would put the
subject of an investigation, study or analysis on notice of the fact of
such investigation, study, or analysis, thereby permitting the subject
to engage in conduct intended to frustrate the activity; because, in
some circumstances, the subject of an investigation may not be required
to provide to investigators certain information; and because thorough
analysis and investigation may require seeking information from a number
of different sources.
(6) From subsection (e)(3) (to the extent applicable) because the
requirement that individuals supplying information be provided a form
stating the requirements of subsection (e)(3) would constitute a serious
impediment to law enforcement in that it could compromise the existence
of a confidential investigation and reveal the identity of confidential
informants and endanger their lives and safety.
(7) From subsection (e)(4)(I), to the extent that this subsection is
interpreted to require more detail regarding the record sources in this
system than have been published in the Federal Register. Should the
subsection be so interpreted, exemption from this provision is necessary
to protect the confidentiality of the sources of criminal and other law
enforcement information and to protect the privacy and physical safety
of witnesses and informants. Furthermore, greater specificity concerning
the sources of properly classified records could compromise national
defense or foreign policy.
(8) From subsection (e)(5) because the acquisition, collation, and
analysis of information for law enforcement purposes does not permit
advance determination whether such information is accurate or relevant,
nor can such information be limited to that which is complete or
apparently timely. Information of this type often requires further
analysis and investigation to develop into a comprehensive whole that
which is otherwise incomplete or even fragmentary. Moreover, its
accuracy is continually subject to analysis and review, and, upon
careful examination, seemingly irrelevant or untimely information may
acquire added significance as additional information brings new details
to light. The restrictions imposed by subsection (e)(5) would restrict
the ability of trained investigators and intelligence analysts to
exercise their judgment in collating and analyzing information and would
impede the development of criminal intelligence necessary for effective
law enforcement.
(9) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement by revealing investigative techniques, procedures, or
evidence.
(10) From subsection (g) to the extent that the system is exempt
from subsection (d).
[Order No. 78-93, 58 FR 41038, Aug. 2, 1993]
Sec. 16.83 Exemption of the Executive Office for Immigration Review System--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a(d):
(1) The Executive Office for Immigration Review's Records and
Management Information System (JUSTICE/EOIR-001).
This exemption applies only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(k) (1) and (2).
(b) Exemption from the particular subsections are justified for the
following reasons:
(1) From subsection (d) because access to information which has been
properly classified pursuant to an Executive Order could have an adverse
effect on the national security. In addition, from subsection (d)
because unauthorized access to certain investigatory material could
compromise ongoing or potential investigations; reveal the identity of
confidential informants; or constitute unwarranted invasions of the
personal privacy of third parties.
(2) From subsection (d) (2), (3), and (4) because the record of
proceeding constitutes an official record which includes transcripts of
quasi-judicial administrative proceedings, investigatory materials,
evidentiary materials such as exhibits, decisional memoranda, and other
case-related papers. Administrative due process could not
[[Page 307]]
be achieved by the ex parte ``correction'' of such materials by the
individual who is the subject thereof.
(c) The following system of records is exempted form 5 U.S.C.
552a(d).
(1) Practitioner Compliant/Disciplinary Files (JUSTICE/EOIR 003).
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1),
and (k)(2). To the extent that information in a record pertaining to an
individual does not relate to national defense or foreign policy,
official Federal investigations and/or law enforcement matters, the
exemption does not apply. In addition, where compliance would not appear
to interfere with or adversely affect the overall law or regulatory
enforcement process, the applicable exemption may be waived by the
Executive Office for Immigration Review.
(d) Exemption from subsection (d) is justified for the following
reasons:
(1) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of the investigation of an actual or potential
criminal, civil, or regulatory violation or the existence of that
investigation; of the nature and scope of the information and evidence
obtained as to the subject's activities; of the identity of confidential
sources, witnesses, and law enforcement personnel; and of information
that may enable the subject to avoid detection or apprehension. These
factors would present a serious impediment to effective law and
regulatory enforcement where they prevent the successful completion of
the investigation, endanger the physical safety of confidential sources,
witnesses, and law enforcement personnel, and/or lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony. In addition, granting access to such
information could disclose security-sensitive or confidential business
information or information that would constitute an unwarranted invasion
of the personal privacy of third parties. Finally, access to the records
could result in the release of properly classified information which
would compromise the national defense or disrupt foreign policy.
Amendment of the records would interfere with ongoing investigations and
law enforcement activities and impose an enormous administrative burden
by requiring investigations to be continuously reinvestigated.
[Order No. 18-86, 51 FR 32305, Sept. 11, 1986, as amended by Order No.
180-99, 64 FR 61787, Nov. 15, 1999]
Sec. 16.84 Exemption of Immigration Appeals System.
(a) The following system of records is exempt from 5 U.S.C. 552a(d)
(2), (3) and (4):
(1) Decisions of the Board of Immigration Appeals (JUSTICE/BIA-001).
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsections (d) (2), (3) and (4) because the decisions
reflected constitute official records of opinions rendered in quasi-
judicial proceedings. Administrative due process could not be achieved
by the ex parte ``correction'' of such opinions by the subject of the
opinion.
Sec. 16.85 Exemption of U.S. Parole Commission--limited access.
(a) The following systems of records are exempt from 5 U.S.C. 552a
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f)
and (g):
(1) Docket Scheduling and Control System (JUSTICE/PRC-001).
(2) Inmate and Supervision Files System (JUSTICE/PRC-003).
(3) Labor and Pension Case, Legal File, and General Correspondence
System (JUSTICE/PRC-004).
(4) Statistical, Educational and Developmental System (JUSTICE/PRC-
006).
(5) Workload Record, Decision Result, and Annual Report System
(JUSTICE/PRC-007).
These exemptions apply only to the extent that information in these
systems is subject to exemptions pursuant to 5 U.S.C. 552a(j)(2).
[[Page 308]]
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because revealing disclosure of
accountings to inmates and persons on supervision could compromise
legitimate law enforcement activities and U.S. Parole Commission
responsibilities.
(2) From subsection (c)(4) because the exemption from subsection (d)
will make notification of disputes inapplicable.
(3) From subsection (d) because this is essential to protect
internal processes by which Commission personnel are able to formulate
decisions and policies with regard to federal prisoners and persons
under supervision, to prevent disclosures of information to federal
inmates or persons on supervision that would jeopardize legitimate
correctional interests of security, custody, supervision, or
rehabilitation, to permit receipt of relevant information from other
federal agencies, state and local law enforcement agencies, and federal
and state probation and judicial offices, to allow private citizens to
express freely their opinions for or against parole, to allow relevant
criminal history type information of co-defendants to be kept in files,
to allow medical, psychiatric and sociological material to be available
to professional staff, and to allow a candid process of fact selection,
opinion formulation, evaluation and recommendation to be continued by
professional staff. The legal files contain case development material
and, in addition to other reasons, should be exempt under the attorney-
client privilege. Each labor or pension applicant has had served upon
him the material in his file which he did not prepare and may see his
own file at any time.
(4) From subsection (e)(2) because primary collection of information
directly from federal inmates or persons on supervision about criminal
sentence, criminal records, institutional performance, readiness for
release from custody, or need to be returned to custody is highly
impractical and inappropriate.
(5) From subsection (e)(3) because application of this provision to
the operations and collection of information by the Commission which is
primarily from sources other than the individual, is inappropriate.
(6) From subsections (e)(4) (G) and (H) because exemption from the
access provisions of (d) makes publication of agency procedures under
(d) inapplicable.
(7) From subsection (e)(8) because the nature of the Commission's
activities renders notice of compliance with compulsory legal process
impractical.
(8) From subsection (f) because exemption from the provisions of
subsection (d) will render compliance with provisions of this subsection
inapplicable.
(9) From subsection (g) because exemption from the provisions of
subsection (d) will render the provisions on suits to enforce (d)
inapplicable.
(c) Consistent with the legislative purpose of the Privacy Act of
1974 the U.S. Parole Commission will initiate a procedure whereby
present and former prisoners and parolees may obtain copies of material
in files relating to them that are maintained by the U.S. Parole
Commission. Disclosure of the contents will be affected by providing
copies of documents to requesters through the mails. Disclosure will be
made to the same extent as would be made under the substantive
exemptions of the Parole Commission and Reorganization Act of 1976 (18
U.S.C. 4208) and Rule 32 of the Federal Rules of Criminal Procedure. The
procedure relating to disclosure of documents may be changed generally
in the interest of improving the Commission's system of disclosure or
when required by pending or future decisions and directions of the
Department of Justice.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
14-78, 43 FR 45993, Oct. 5, 1978; Order No. 899-80, 45 FR 43703, June
30, 1980; Order No. 6-86, 51 FR 15477, Apr. 24, 1986]
Sec. 16.88 Exemption of Antitrust Division Systems--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (d), (e)(4) (G) and (H), and (f):
(1) Antitrust Caseload Evaluation System (ACES)--Monthly Report
(JUSTICE/ATR-006).
[[Page 309]]
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
(b) Exemption from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because information in this system is
maintained in aid of ongoing antitrust enforcement investigations and
proceedings. The release of the accounting of disclosures made under
subsection (b) of the Act would permit the subject of an investigation
of an actual or potential criminal or civil violation to determine
whether he is the subject of an investigation. Disclosure of the
accounting would therefore present a serious impediment to antitrust law
enforcement efforts.
(2) From subsection (d) because access to the information
retrievable from this system and compiled for law enforcement purposes
could result in the premature disclosure of the identity of the subject
of an investigation of an actual or potential criminal or civil
violation and information concerning the nature of that investigation.
This information could enable the subject to avoid detection or
apprehension. This would present a serious impediment to effective law
enforcement since the subject could hinder or prevent the successful
completion of the investigation. Further, confidential business and
financial information, the identities of confidential sources of
information, third party privacy information, and statutorily
confidential information such as grand jury information must be
protected from disclosure.
(3) From subsections (e)(4)(G) and (H), and (f) because this system
is exempt from the individual access provisions of subsection (d).
(c) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (d), (e)(4)(G) and (H), and (f):
(1) Freedom of Information/Privacy--Requester/Subject Index File
(JUSTICE/ATR-008).
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
(d) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the accounting of
disclosures made under subsection (b) of the Act would permit the
subject of an investigation of an actual or potential criminal or civil
violation to determine whether he is the subject of an investigation.
Disclosure of accounting would therefore present a serious impediment to
antitrust law enforcement efforts.
(2) From subsection (d) because access to information in this system
could result in the premature disclosure of the identity of the subject
of an investigation of an actual or potential criminal or civil
violation and information concerning the nature of the investigation.
This information could enable the subject to avoid detection or
apprehension. This would present a serious impendiment to effective law
enforcement since the subject could hinder or prevent the successful
completion of the investigation. Further, confidential business and
financial information, the identities of confidential sources of
information, third party privacy information, and statutorily
confidential information such as grand jury information must be
protected from disclosure.
(3) From subsections (e)(4)(G) and (H), and (f) because this system
is exempt from the individual access provisions of subsection (d).
[Order No. 2-86, 51 FR 884, Jan. 9, 1986]
Sec. 16.89 Exemption of Civil Division Systems--limited access.
(a) The following systems of records are exempted pursuant to 5
U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1), (e)(2),
(e)(3), (e)(4) (G) and (H), (e)(5), (e)(8), and (g); in addition, the
following systems of records are exempted pursuant to 5 U.S.C. 552a
(k)(1) and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G) and
(H):
(1) Civil Division Case File System, JUSTICE/CIV-001.
(2) Freedom of Information/Privacy Acts File System, JUSTICE/CIV-
005.
[[Page 310]]
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1)
and (k)(2).
(b) Only that information which relates to the investigation,
prosecution, or defense of actual or potential criminal or civil
litigation, or which has been properly classified in the interest of
national defense and foreign policy is exempted for the reasons set
forth from the following subsections:
(1) Subsection (c)(3). To provide the subject of a criminal or civil
matter or case under investigation with an accounting of disclosures of
records concerning him or her would inform that individual (and others
to whom the subject might disclose the records) of the existence,
nature, or scope of that investigation and thereby seriously impede law
enforcement efforts by permitting the record subject and others to avoid
criminal penalties and civil remedies.
(2) Subsections (c)(4), (e)(4) (G) and (H), and (g). These
provisions are inapplicable to the extent that these systems of records
are exempted from subsection (d).
(3) Subsection (d). To the extent that information contained in
these systems has been properly classified, relates to the investigation
and/or prosecution of grand jury, civil fraud, and other law enforcement
matters, disclosure could compromise matters which should be kept secret
in the interest of national security or foreign policy; compromise
confidential investigations or proceedings; hamper sensitive civil or
criminal investigations; impede affirmative enforcement actions based
upon alleged violations of regulations or of civil or criminal laws;
reveal the identity of confidential sources; and result in unwarranted
invasions of the privacy of others. Amendment of the records would
interfere with ongoing criminal law enforcement proceedings and impose
an impossible administrative burden by requiring criminal investigations
to be continuously reinvestigated.
(4) Subsection (e)(1). In the course of criminal or civil
investigations, cases, or matters, the Civil Division may obtain
information concerning the actual or potential violation of laws which
are not strictly within its statutory authority. In the interest of
effective law enforcement, it is necessary to retain such information
since it may establish patterns of criminal activity or avoidance of
other civil obligations and provide leads for Federal and other law
enforcement agencies.
(5) Subsection (e)(2). To collect information from the subject of a
criminal investigation or prosecution would present a serious impediment
to law enforcement in that the subject (and others to whom the subject
might be in contact) would be informed of the existence of the
investigation and would therefore be able to avoid detection or
apprehension, to influence witnesses improperly, to destroy evidence, or
to fabricate testimony.
(6) Subsection (e)(3). To comply with this requirement during the
course of a criminal investigation or prosecution could jeopardize the
investigation by disclosing the existence of a confidential
investigation, revealing the identity of witnesses or confidential
informants, or impeding the information gathering process.
(7) Subsection (e)(5). In compiling information for criminal law
enforcement purposes, the accuracy, completeness, timeliness and
relevancy of the information obtained cannot always be immediately
determined. As new details of an investigation come to light, seemingly
irrelevant or untimely information may acquire new significance and the
accuracy of such information can often only be determined in a court of
law. Compliance with this requirement would therefore restrict the
ability of government attorneys in exercising their judgment in
developing information necessary for effective law enforcement.
(8) Subsection (e)(8). To serve notice would give persons sufficient
warning to evade law enforcement efforts.
(c) The following system of records is exempted pursuant to 5 U.S.C.
552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1) and (e)(5); in
addition, this system is also exempted pursuant to 5 U.S.C. 552a(k)(2)
from subsections (c)(3), (d), and (e)(1).
Consumer Inquiry/Investigatory System, JUSTICE/CIV-006.
[[Page 311]]
These exemptions apply only to the extent that information in this
system of records is subject to exemption pursuant to 5 U.S.C. 552a
(j)(2) and (k)(2).
(d) Only that information compiled for criminal or civil law
enforcement purposes is exempted for the reasons set forth from the
following subsections:
(1) Subsections (c)(3). This system occasionally contains
investigatory material based on complaints of actual or alleged criminal
or civil violations. To provide the subject of a criminal or civil
matter or case under investigation with an accounting of disclosures of
records concerning him/her would inform that individual of the
existence, nature, or scope of that investigation, and thereby seriously
impede law enforcement efforts by permitting the record subject and
other persons to whom he might disclose the records to avoid criminal
penalties and civil remedies.
(2) Subsections (c)(4). This subsection is inapplicable to the
extent that an exemption is being claimed for subsection (d).
(3) Subsection (d). Disclosure of information relating to the
investigation of complaints of alleged violation of criminal or civil
law could interfere with the investigation, reveal the identity of
confidential sources, and result in an unwarranted invasion of the
privacy of others. Amendment of the records would interfere with ongoing
criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(4) Subsection (e)(1). In the course of criminal or civil
investigations, cases, or matters, the Civil Division may obtain
information concerning the actual or potential violation of laws which
are not strictly within its statutory authority. In the interest of
effective law enforcement, it is necessary to retain such information
since it may establish patterns of criminal activity or avoidance of
other civil obligations and provide leads for Federal and other law
enforcement agencies.
(5) Subsection (e)(5). In compiling information for criminal law
enforcement purposes, the accuracy, completeness, timeliness and
relevancy of the information obtained cannot always be immediately
determined. As new details of an investigation come to light, seemingly
irrelevant or untimely information may acquire new significance and the
accuracy of such information can often only be determined in a court of
law. Compliance with this requirement would therefore restrict the
ability of government attorneys in exercising their judgment in
developing information necessary for effective law enforcement.
(e) The following system of records is exempt pursuant to 5 U.S.C.
552a (j)(2) and (k)(2) from subsection (d):
Congressional and Citizen Correspondence File, JUSTICE/CIV-007.
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C 552a (j)(2) and
(k)(2).
(f) Only that portion of the Congressional and Citizen
Correspondence File maintained by the Communications Office which
consists of criminal or civil investigatory information is exempted for
the reasons set forth from the following subsection:
(1) Subsection (d). Disclosure of investigatory information would
jeopardize the integrity of the investigative process, disclose the
identity of individuals who furnished information to the government
under an express or implied promise that their identities would be held
in confidence, and result in an unwarranted invasion of the privacy of
others. Amendment of the records would interfere with ongoing criminal
law enforcement proceedings and impose an impossible administrative
burden by requiring criminal investigations to be continuously
reinvestigated.
[Order No. 27-88, 54 FR 113, Jan. 4, 1989]
Sec. 16.90 Exemption of Civil Rights Division Systems.
(a) The following system of records is exempt from 5 U.S.C. 552a(d):
(1) Files on Employment Civil Rights Matters Referred by the Equal
Employment Opportunity Commission (JUSTICE/CRT-007).
[[Page 312]]
This exemption applies to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d) because this system contains investigatory
material compiled by the Equal Opportunity Commission pursuant to its
authority under 42 U.S.C. 2000e-8. 42 U.S.C. 2000e-5(b), 42 U.S.C.
2000e-8(e), and 44 U.S.C. 3508 make it unlawful to make public in any
manner whatsoever any information obtained by the Commission pursuant to
the authority.
(c) The following system of records is exempt from 5 U.S.C.
552a(c)(3), (d) and (g):
(1) Central Civil Rights Division Index File and Associated Records
(JUSTICE/CRT-001).
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
(k)(2).
(d) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting for disclosure pursuant to the routine uses published for
this system may enable the subject of an investigation to gain valuable
information concerning the nature and scope of the investigation and
seriously hamper law enforcement efforts.
(2) From subsection (d) because freely permitting access to records
in this system would compromise ongoing investigations and reveal
investigatory techniques. In addition, these records may be subject to
protective orders entered by federal courts to protect their
confidentiality. Many of the records contained in this system are copies
of documents which are the property of state agencies and were obtained
under express or implied promises to strictly protect their
confidentiality.
(3) From subsection (g) because exemption from the provision of
subsection (d) will render the provisions on suits to enforce (d)
inapplicable.
(e) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (d), and (g):
(1) Freedom of Information/Privacy Act Records (JUSTICE/CRT-010).
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
(f) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting may enable the subject of an investigation to gain valuable
information concerning the nature and scope of the investigation and
seriously hamper law enforcement efforts.
(2) From subsection (d) because access to records in this system
would compromise ongoing investigations and reveal investigative
techniques. In addition, certain of these records may be subject to
protective orders entered by Federal courts to protect their
confidentiality, and many are copies of documents which are the property
of State agencies and were obtained under express or implied promises to
strictly protect their confidentiality. This system also contains
investigatory material compiled by the Equal Opportunity Commission
pursuant to its authority under 42 U.S.C. 2000e-8. Provisions of 42
U.S.C. 2000e-5(b), 42 U.S.C. 2000e-8(e), and 44 U.S.C. 3508 make it
unlawful to make public in any manner whatsoever any information
obtained by the Commission pursuant to the authority. Amendment of the
records would interfere with ongoing criminal law enforcement
proceedings and impose an impossible administrative burden by requiring
criminal investigations to be continuously reinvestigated.
(3) From subsection (g) because exemption from subsection (d) will
render the provisions on suits to enforce subsection (d) inapplicable.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
688-77, 42 FR 10000, Feb. 18, 1977; Order No. 8-82, 47 FR 44256, Oct. 7,
1982; Order No. 6-86, 51 FR 15477, Apr. 24, 1986]
[[Page 313]]
Sec. 16.91 Exemption of Criminal Division Systems--limited access, as indicated.
(a) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and
(g) of 5 U.S.C. 552a; in addition, the following systems of records are
exempted pursuant to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2)
from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f)
of 5 U.S.C. 552a:
(1) Central Criminal Division, Index File and Associated Records
System of Records (JUSTICE/CRM-001)--Limited Access.
(2) General Crimes Section, Criminal Division, Central Index File
and Associated Records System of Rec-ords (JUSTICE/CRM-004)--Limited
Access.
These exemptions apply to the extent that information in those systems
are subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and
(k)(2).
(b) The systems of records listed under paragraphs (b)(1) and (b)(2)
of this section are exempted, for the reasons set forth, from the
following provisions of 5 U.S.C. 552a:
(1). (c)(3). The release of the disclosure accounting for
disclosures made pursuant to subsection (b) of the Act, including those
permitted under the routine uses published for these systems of records,
would permit the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to determine whether he is the
subject of investigation, or to obtain valuable information concerning
the nature of that investigation, and the information obtained, or the
identity of witnesses and informants and would therefore present a
serious impediment to law enforcement. In addition, disclosure of the
accounting would amount to notice to the individual of the existence of
a record; such notice requirement under subsection (f)(1) is
specifically exempted for these systems of records.
(2). (c)(4). Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this subsection is inapplicable to the
extent that these systems of records are exempted from subsection (d).
(3). (d). Access to the records contained in these systems would
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation of the existence of that
investigation, or the nature and scope of the information and evidence
obtained as to his activities, of the identity of witnesses and
informants, or would provide information that could enable the subject
to avoid detection or apprehension. These factors would present a
serious impediment to effective law enforcement because they could
prevent the successful completion of the investigation, endanger the
physical safety of witnesses or informants, and lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony.
(4). (e)(1). The notices of these systems of records published in
the Federal Register set forth the basic statutory or related authority
for maintenance of this system. However, in the course of criminal or
other law enforcement investigations, cases, and matters, the Criminal
Division or its components will occasionally obtain information
concerning actual or potential violations of law that are not strictly
within its statutory or other authority or may compile information in
the course of an investigation which may not be relevant to a specific
prosecution. In the interests of effective law enforcement, it is
necessary to retain such information in these systems of records since
it can aid in establishing patterns of criminal activity and can provide
valuable leads for federal and other law enforcement agencies.
(5). (e)(2). In a criminal investigation or prosecution, the
requirement that information be collected to the greatest extent
practicable from the subject individual would present a serious
impediment to law enforcement because the subject of the investigation
or prosecution would be placed on notice as to the existence of the
investigation and would therefore be able to avoid detection or
apprehension, to influence witnesses improperly, to destroy evidence, or
to fabricate testimony.
[[Page 314]]
(6). (e)(3). The requirement that individuals supplying information
be provided with a form stating the requirements of subsection (e)(3)
would constitute a serious impediment to law enforcement in that it
could compromise the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(7). (e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable to the extent that these systems of
records are exempted from subsections (f) and (d).
(8). (e)(4)(I). The categories of sources of the records in these
systems have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in these systems, exemption from this provision is necessary in
order to protect the confidentiality of the sources of criminal and
other law enforcement information. Such exemption is further necessary
to protect the privacy and physical safety of witnesses and informants.
(9). (e)(5). In the collection of information for criminal law
enforcement purposes it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can often only be determined
in a court of law. The restrictions of subsection (e)(5) would restrict
the ability of trained investigators, intelligence analysts, and
government attorneys in exercising their judgment in reporting on
information and investigations and impede the development of criminal or
other intelligence necessary for effective law enforcement.
(10). (e)(8). The individual notice requirements of subsection
(e)(8) could present a serious impediment to law enforcement as this
could interfere with the ability to issue warrants or subpoenas and
could reveal investigative techniques, procedures, or evidence.
(11). (f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to the existence of records pertaining to him
dealing with an actual or potential criminal, civil, or regulatory
investigation or prosecution must be exempted because such notice to an
individual would be detrimental to the successful conduct and/or
completion of an investigation or prosecution pending or future. In
addition, mere notice of the fact of an investigation could inform the
subject or others that their activities are under or may become the
subject of an investigation and could enable the subjects to avoid
detection or apprehension, to influence witnesses improperly, to destroy
evidence, or to fabricate testimony.
Since an exemption is being claimed 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).
(12). (g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that these systems of records are exempted from subsections (d)
and (f).
(13). In addition, exemption is claimed for these systems of records
from compliance with the following provisions of the Privacy Act of 1974
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1):
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the
extent that the records contained in these systems are specifically
authorized to be kept secret in the interests of national defense and
foreign policy.
(c) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j) (2) from subsection (c) (3) and (4), (d),
(e) (1), (2) and (3), (e) (4) (G), (H) and (I), (e) (5) and (8), (f) and
(g) of 5 U.S.C. 552a:
Criminal Division Witness Security File System of Records (JUSTICE/
CRM-002).
[[Page 315]]
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(d) The system of records listed under paragraph (c) of this section
is exempted, for the reasons set forth, from the following provisions of
5 U.S.C. 552a:
(1). (c)(3) The release of the disclosure accounting for disclosures
made pursuant to subsection (b) of the Act, including those permitted
under the routine uses published for these systems of records, would
permit the subject of an investigation of an actual or potential
criminal violation, which may include those protected under the Witness
Security Program, to determine whether he is the subject of a criminal
investigation, to obtain valuable information concerning the nature of
that investigation and the information obtained, or the identity of
witnesses and informants and the nature of their reports, and would
therefore present a serious impediment to law enforcement. In addition,
disclosure of the accounting would amount to notice to the individual of
the existence of a record; such notice requirement under subsection
(f)(1) is specifically exempted for these systems of records. Moreover,
disclosure of the disclosure accounting to an individual protected under
the Witness Security Program could jeopardize the effectiveness and
security of the Program by revealing the methods and techniques utilized
in relocating witnesses and could therefore jeopardize the ability to
obtain, and to protect the confidentiality of, information compiled for
purposes of a criminal investigation.
(2). (c)(4) Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this section is inapplicable.
(3). (d) Access to the records contained in these systems would
inform the subject of an investigation of an actual or potential
criminal violation, which may include those protected under the Witness
Security Program, of the existence of that investigation, of the nature
and scope of the information and evidence obtained as to his activities,
of the identity of witnesses and informants, or would provide
information that could enable the subject to avoid detection or
apprehension. These factors would present a serious impediment to
effective law enforcement because they could prevent the successful
completion of the investigation, endanger the physical safety of
witnesses or informants, and lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
In addition, access to the records in these systems to an individual
protected under the Witness Security Program could jeopardize the
effectiveness and security of the Program by revealing the methods and
techniques utilized in relocating witnesses and could therefore
jeopardize the ability to obtain, and to protect the confidentiality of,
information compiled for purposes of a criminal investigation.
(4). Exemption is claimed from subsection (e)(1) for the reasons
stated in subsection (b)(4) of this section.
(5). (e)(2) In the course of preparing a Witness Security Program
for an individual, much of the information is collected from the
subject. However, the requirement that the information be collected to
the greatest extent practicable from the subject individual would
present a serious impediment to criminal law enforcement because the
individual himself may be the subject of a criminal investigation or
have been a participant in, or observer of, criminal activity. As a
result, it is necessary to seek information from other sources. In
addition, the failure to verify the information provided from the
individual when necessary and to seek other information could jeopardize
the confidentiality of the Witness Security Program and lead to the
obtaining and maintenance of incorrect and uninvestigated information on
criminal matters.
(6). (e)(3) The requirement that individuals supplying information
be provided with a form stating the requirements of subsection (e)(3)
would constitute a serious impediment to law enforcement in that it
could compromise or reveal the identity of witnesses and informants
protected under the Witness Security Program.
[[Page 316]]
(7). (e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable.
(8). (e)(4)(I). The categories of sources of the records in these
systems have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in the system, exemption from this provision is necessary in
order to protect the confidentiality of the sources of criminal law,
enforcement information and of witnesses and informants protected under
the Witness Security Program.
(9). Exemption is claimed from subsections (e)(5) and (e)(8) for the
reasons stated in subsection (b)(9) and (b)(10) of this section.
(10). Procedures for notice to an individual pursuant to subsection
(f)(1) as to the existence of records contained in these systems
pertaining to him would inform the subject of an investigation of an
actual or potential criminal violation, which may include those
protected under the Witness Security Program, of the existence of that
investigation, of the nature and scope of the information and evidence
obtained as to his activities, of the identity of witnesses and
informants, or would provide information that could enable the subject
to avoid detection or apprehension. These factors would present a
serious impediment to effective law enforcement because they could
prevent the successful conduct and/or completion of an investigation
pending or future, endanger the physical safety of witnesses or
informants, and lead to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony. In addition,
notices as to the existence of records contained in these systems to an
individual protected under the Witness Security Program could jeopardize
the effectiveness and security of the Program by revealing the methods
and techniques utilized in relocating witnesses and could therefore
jeopardize the ability to obtain, and to protect the confidentiality of,
information compiled for purposes of a criminal investigation.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsection (f) (2)
through (5) are inapplicable.
(11). (g) Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable
and is exempted for the reasons set forth for those subsections.
(e) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (4) (G), (H) and (I), (f), and (g) of 5 U.S.C. 552a:
Organized Crime and Racketeering Section, Intelligence and Special
Services Unit, Information Request System of Records (JUSTICE/CRM-014).
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(f) The system of records listed under paragraph (e) of this section
is exempted for the reasons set forth, from the following provisions of
5 U.S.C. 552a:
(1). (c)(3). The release of the disclosure accounting for
disclosures made pursuant to subsection (b) of the Act, including those
permitted under the routine uses published for these systems of records,
would permit the subject of an investigation of an actual or potential
criminal violation to determine whether he is the subject of a criminal
investigation and would therefore present a serious impediment to law
enforcement. The records in these systems contain the names of the
subjects of the files in question and the system is accessible by name
of the person checking out the file and by name of the subject of the
file. In addition, disclosure of the accounting would amount to notice
to the individual of the existence of a record; such notice requirement
under subsection (f)(1) is specifically exempted for these systems of
records.
(2). (c)(4). Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this section is inapplicable.
[[Page 317]]
(3). (d). Access to the records contained in these systems would
inform the subject of an investigation of an actual or potential
criminal violation of the existence of that investigation. This would
present a serious impediment to effective law enforcement because it
could prevent the successful completion of the investigation, endanger
the physical safety of witnesses or informants, and lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony.
(4). Exemption is claimed from subsections (e)(4) (G), (H) and (I)
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
(5). (f). These systems may be accessed by the name of the person
who is the subject of the file and who may also be the subject of a
criminal investigation. Procedures for notice to an individual pursuant
to subsection (f)(1) as to the existence of records pertaining to him,
which may deal with an actual or potential criminal investigation or
prosecution, must be exempted because such notice to an individual would
be detrimental to the successful conduct and/or completion of the
investigation or prosecution pending or future. In addition mere notice
of the fact of an investigation could inform the subject or others that
their activities are under or may become the subject of an investigation
and could enable the subjects to avoid detection or apprehension, to
influence witnesses improperly, to destroy evidence, or to fabricate
testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsection (f) (2)
through (5) are inapplicable.
(6). (g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) of the Act this section is
inapplicable and is exempted for the reasons set forth for those
subsections.
(g) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(4), (d), (e)(4)
(G), (H) and (I), (f) and (g) of 5 U.S.C. 552a.
File of Names Checked to Determine If Those Individuals Have Been the
Subject of an Electronic Surveillance System of Records (JUSTICE/CRM-
003).
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(h) The system of records listed under paragraph (g) of this section
is exempted, for the reasons set forth, from the following provisions of
5 U.S.C. 552a:
(1). (c)(4). Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this section is inapplicable to the
extent that this system of records is exempted from subsection (d).
(2). (d). The records contained in this system of records generally
consist of information filed with the court in response to the request
and made available to the requestor. To the extent that these records
have been so filed, no exemption is sought from the provisions of this
subsection. Occasionally, the records contain pertinent logs of
intercepted communications and other investigative reports not filed
with the court. These records must be exempted because access to such
records could inform the subject of an investigation of an actual or
potential criminal violation of the existence of that investigation and
of the nature of the information and evidence obtained by the
government. This would present a serious impediment to effective law
enforcement because it could prevent the successful completion of the
investigation, endanger the physical safety of witnesses or informants,
and lead to the improper influencing of witnesses, the destruction of
evidence, or the fabrication of testimony.
(3). Exemption is claimed from subsections (e)(4) (G), (H) and (I)
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
(4). (f). The records contained in this system of records generally
consist of information filed with the court and made available to the
requestor. To the extent that these records have been so filed, no
exemption is sought from the provisions of this subsection.
Occasionally, the records contain pertinent logs of intercepted
communications and
[[Page 318]]
other investigative reports not filed with the court. These records must
be exempted from a requirement of notification as to their existence
because such notice to an individual would be detrimental to the
successful conduct and/or completion of a criminal investigation or
prosecution pending or future. In addition, mere notice of the existence
of such logs or investigative reports could inform the subject or others
that their activities are under or may become the subject of an
investigation and could enable the subjects to avoid detection or
apprehension, to influence witnesses improperly, to destroy evidence, or
to fabricate testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsection (f) (2)
through (5) are inapplicable to the extent that this system of records
is exempted for subsection (d).
(6). (g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that this system of records is exempted from subsections (d) and
(f).
(i) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2), and (3), (e)(4) (G), (H), and (I), (e) (5) and (8), (f)
and (g) of 5 U.S.C. 552a:
(1) Information File on Individuals and Commercial Entities Known or
Suspected of Being Involved in Fraudulent Activities System of Records
(JUSTICE/CRM-006).
(2) The Stocks and Bonds Intelligence Control Card File System of
Records (JUSTICE/CRM-021).
(3) Tax Disclosure Index File and Associated Records (JUSTICE/CRM-
025).
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(j) The systems of records listed in paragraphs (i)(1), (i)(2), and
(i)(3) of this section are exempted, for the reasons set forth, from the
following provisions of 5 U.S.C. 552a:
(1)(c)(3) The release of the disclosure accounting for disclosures
made pursuant to subsection (b) of the act, including those permitted
under the routine uses published for these systems of records, would
permit the subject of an investigation of an actual or potential
criminal violation to determine whether he is the subject of a criminal
investigation, to obtain valuable information concerning the nature of
that investigation, and the information obtained, or the identity of
witnesses and informants, and would therefore present a serious
impediment to law enforcement. In addition, disclosure of the accounting
would amount to notice to the individual of the existence of a record;
such notice requirement under subsection (f)(1) is specifically exempted
for this system of records.
(2)(c)(4) Since an exemption is being claimed for subsection (d) of
the act (access to records), this section is inapplicable to the extent
that these systems of records are exempted from subsection (d).
(3)(d) Access to the records contained in these systems would inform
the subject of an investigation of an actual or potential criminal
violation of the existence of that investigation, of the nature and
scope of the information and evidence obtained as to his activities, of
the identity of witnesses and informants, or would provide information
that could enable the subject to avoid detection or apprehension. These
factors would present a serious impediment to effective law enforcement
because they could prevent the successful completion of the
investigation, endanger the physical safety of witnesses or informants,
and lead to the improper influencing of witnesses, the destruction of
evidence, or the fabrication of testimony.
(4) Exemption is claimed from subsections (e) (1), (2), and (3),
(e)(4) (G), (H), and (I), (e)(5) and (e)(8) for the reasons stated in
subsections (b)(4), (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), and (b)(10)
of this section.
(5)(f) Procedures for notice to an individual pursuant to subsection
(f)(1) as to the existence of records pertaining to him dealing with an
actual or potential criminal investigation or prosecution must be
exempted because such
[[Page 319]]
notice to an individual would be detrimental to the successful conduct
and/or completion of an investigation or prosecution pending or future.
In addition, mere notice of the fact of an investigation could inform
the subject or others that their activities are under or may become the
subject of an investigation and could enable the subjects to avoid
detection or apprehension, to influence witnesses improperly, to destroy
evidence, or to fabricate testimony. Since an exemption is being claimed
for subsection (d) of the act (access to records), the rules required
pursuant to subsection (f) (2) through (5) are inapplicable to these
systems of records.
(6)(g) Since an exemption is being claimed for subsections (d)
(access to records) and (f) (Agency rules), this section is inapplicable
and is exempted for the reasons set forth for those subsections.
(k) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and
(g) of 5 U.S.C. 552a; in addition, the following systems of records are
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(1) from
subsections (c) (3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) of 5
U.S.C. 552a:
Organized Crime and Racketeering Section, Criminal Division, General
Index File and Associated Records System of Records (JUSTICE/CRM-012).
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(1).
(l) The system of records listed under paragraph (m)\1\ of this
section is exempted, for the reasons set forth, from the following
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------
\1\ Paragraph (m) was redesignated as paragraph (k) at 44 FR 54046,
Sept. 18, 1979.
---------------------------------------------------------------------------
(1). Exemption is claimed from subsections (c) (3) and (4) and (d)
for the reasons stated in subsections (j)(1), (j)(2) and (j)(3) of this
section.
(2). (e)(1). The notice for this system of records published in the
Federal Register sets forth the basic statutory or related authority for
maintenance of this system. However, in the course of criminal
investigations, cases, and matters, the Organized Crime and Racketeering
Section will occasionally obtain information concerning actual or
potential violations of law that are not strictly within its statutory
or other authority, or may compile information in the course of an
investigation which may not be relevant to a specific prosecution. In
the interests of effective law enforcement, it is necessary to retain
such information in this system of records since it can aid in
establishing patterns of criminal activity and can provide valuable
leads for federal and other law enforcement agencies.
(3). Exemption is claimed from subsections (e) (2) and (3), (e)(4)
(G), (H) and (I), (e) (5) and (8), (f) and (g) for the reasons stated in
subsections (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), (b)(10), (b)(11) and
(b)(12) of this section.
(4). In addition, exemption is claimed for this system of records
from compliance with the following provisions of the Privacy Act of 1974
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1):
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the
extent that the records contained in this system are specifically
authorized to be kept secret in the interests of national defense and
foreign policy.
(m) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (2) and (3), (e) (4) (G), (H) and (I), (e) (8), (f) and (g) of 5
U.S.C. 552a:
Requests to the Attorney General For Approval of Applications to Federal
Judges For Electronic Interceptions System of Records (JUSTICE/CRM-019).
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).
(n) The system of records listed in paragraph (m) of this section is
exempted for the reasons set forth, from the following provisions of 5
U.S.C. 552a:
(1). (c)(3). The release of the disclosure accounting for
disclosures made pursuant to subsection (b) of the Act, including those
permitted under the
[[Page 320]]
routine uses published for these systems of records, would permit the
subject of an electronic interception to obtain valuable information
concerning the interception, including information as to whether he is
the subject of a criminal investigation, by means other than those
provided for by statute. Such information could interfere with the
successful conduct and/or completion of a criminal investigation, and
would therefore present a serious impediment to law enforcement. In
addition, disclosure of the accounting would amount to notice to the
individual of the existence of a record; such notice requirement under
subsection (f)(1) is specifically exempted for these systems of records.
(2). (c)(4). Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this section is inapplicable.
(3). (d). Access to the records contained in these systems would
inform the subject of an electronic interception of the existence of
such surveillance including information as to whether he is the subject
of a criminal investigation by means other than those provided for by
statute. This could interfere with the successful conduct and/or
completion of a criminal investigation and therefore present a serious
impediment to law enforcement.
(4). (e)(2). In the context of an electronic interception, the
requirement that information be collected to the greatest extent
practicable from the subject individual would present a serious
impediment to law enforcement because the subject of the investigation
or prosecution would be placed on notice as to the existence of the
investigation and this would therefore destroy the efficacy of the
interception.
(5). (e)(3). The requirement that individuals supplying information
be provided with a form stating the requirements of subsection (e)(3)
would constitute a serious impediment to law enforcement in that it
could compromise the existence of a confidential electronic interception
or reveal the identity of witnesses or confidential informants.
(6). (e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable.
(7). Exemption is claimed from subsections (e)(4)(I) and (e)(8) for
the reasons stated in subsections (b)(8) and (b)(10) of this section.
(8). (f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to the existence of records pertaining to him
dealing with an electronic interception other than pursuant to statute
must be exempted because such notice to an individual would be
detrimental to the successful conduct and/or completion of an
investigation pending or future. In addition, mere notice of the fact of
an electronic interception could inform the subject or others that their
activities are under or may become the subject of an investigation and
could enable the subjects to avoid detection or apprehension, to
influence witnesses improperly, to destroy evidence, or to fabricate
testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required 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).
(9). (g). Since an exemption is being claimed for subsection (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that these systems of records are exempted from subsection (d)
and (f).
(o) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (2) and (3), (e) (4) (G), (H), and (I), (e)(8), (f) and (g) of 5
U.S.C. 552a; in addition the following system of records is exempted
pursuant to the provisions of 5 U.S.C. 552a(k)(1) and (k)(2) from
subsections (c)(3), (d), (e)(4) (G), (H) and (I), and (f) of 5 U.S.C.
552a:
Witness Immunity Records System of Records (JUSTICE/CRM-022).
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
(k)(1) and (k)(2).
[[Page 321]]
(p) The system of records listed under paragraph (q)\2\ of this
section is exempted, for the reasons set forth, from the following
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------
\2\ Paragraph (q) was redesignated as paragraph (o) at 44 FR 54046,
Sept. 18, 1979.
---------------------------------------------------------------------------
(1). (c)(3). Release of the accounting of disclosures made pursuant
to subsection (b) of the Act, including those permitted under the
routine uses published for this system of records, (a) as to a witness
for whom immunity has been proposed, would inform the individual of the
existence of the proposed immunity prematurely, thus creating a serious
impediment to effective law enforcement in that the witness could flee,
destroy evidence, or fabricate testimony; and (b) as to a witness to
whom immunity has been granted, or for whom it has been denied, would
reveal the nature and scope of the activities, if any, of the witness
known to the government, which would also create a serious impediment to
effective law enforcement.
(2). (c)(4). Since an exemption is being claimed for subsection (d)
of the Act (Access to Records) this section is inapplicable to the
extent that this system of records is exempted from subsection (d).
(3). (d). Access to the records contained in this system (a) as to a
witness for whom immunity has been proposed, would inform the individual
of the existence of the proposed immunity prematurely, thus presenting a
serious impediment to effective law enforcement in that the witness
could flee, destroy evidence, or fabricate testimony; and (b) as to a
witness to whom immunity has been granted, or for whom it has been
denied, would reveal the nature and scope of the activities, if any, of
the witness known to the government, which would also create a serious
impediment to effective law enforcement.
(4). (e)(2). In a witness immunity request matter, the requirement
that information be collected to the greatest extent practicable from
the subject individual would present a serious impediment to law
enforcement because the subject of the immunity request and often the
subject of the underlying investigation or prosecution would be placed
on notice as to the existence of the investigation and would therefore
be able to avoid detection or apprehension, to influence witnesses
improperly, to destroy evidence, or to fabricate testimony.
(5). Exemption is claimed from subsections (e)(3), (e)(4)(G), (H)
and (I), and (e)(8) for the reasons stated in subsections (b)(6),
(b)(7), (b)(8) and (b)(10) of this section.
(6). (f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to the existence of records pertaining to him (a)
as to a witness for whom immunity has been proposed, would inform the
individual of the existence of the proposed immunity prematurely, thus
presenting a serious impediment to effective law enforcement in that the
witness could flee, destroy evidence, or fabricate testimony; and (b) as
to a witness to whom immunity has been granted, or for whom it has been
denied, would reveal the nature and scope of the activity, if any, of
the witness known to the government, which would also create a serious
impediment to effective law enforcement.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsection (f)(2)
through (5) are inapplicable to this system of records to the extent
that this system of records is exempted from subsection (d).
(7). (g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that this system of records is exempted for subsections (d) and
(f).
(8). In addition, exemption is claimed for this system of records
from compliance with the following provisions of the Privacy Act of 1974
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1):
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the
extent that the records contained in this system are specifically
authorized to be kept secret in the interests of national defense and
foreign policy.
(q) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4),
[[Page 322]]
(d), (e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8),
(f), and (g):
(1) Freedom of Information/Privacy Act Records (JUSTICE/CRM-024)
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
(r) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, it is exempted for the
reasons set forth from the following provisions of 5 U.S.C. 552a:
(1)(c)(3). The release of the disclosure accounting would present a
serious impediment to law enforcement by permitting the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation to determine whether he is the subject of investigation, or to
obtain valuable information concerning the nature of that investigation
and the information obtained, or to identify witnesses and informants.
(2)(c)(4). Since an exemption is being claimed for subsection (d) of
the Act (Access to Records), this subsection is inapplicable to the
extent that this system of records is exempted from subsection (d).
(3)(d). Access to records contained in this system would enable the
subject of an investigation of an actual or potential criminal or civil
case or regulatory violation to determine whether he or she is the
subject of investigation, to obtain valuable information concerning the
nature and scope of the investigation, and information or evidence
obtained as to his/her activities, to identify witnesses and informants,
or to avoid detection or apprehension. Such results could prevent the
successful completion of the investigation, endanger the physical safety
of witnesses or informants, lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony,
and thereby present a serious impediment to effective law enforcement.
Amendment of the records would interfere with ongoing criminal law
enforcement proceedings and impose an impossible administrative burden
by requiring criminal investigations to be continuously reinvestigated.
(4)(e)(1). In the course of criminal or other law enforcement
investigations, cases, and matters, the Criminal Division will
occasionally obtain information concerning actual or potential
violations of law that are not strictly within its statutory or other
authority, or it may compile information in the course of an
investigation which may not be relevant to a specific prosecution. In
the interests of effective law enforcement, it is necessary to retain
such information since it can aid in establishing patterns of criminal
activity and can provide valuable leads for Federal and other law
enforcement agencies.
(5)(e)(2). To collect information to the greatest extent practicable
from the subject individual of a criminal investigation or prosecution
would present a serious impediment to law enforcement. The nature of
criminal and other investigative activities is such that vital
information about an individual can only be obtained from other persons
who are familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(6) (e)(3). To provide individuals supplying information with a form
stating the requirements of subsection (e)(3) would constitute a serious
impediment to law enforcement in that it could compromise the existence
of a confidential investigation or reveal the identity of witnesses or
confidential informants.
(7)(e)(4) (G) and (H). These subsections are inapplicable to the
extent that this system is exempt from the access provisions of
subsection (d) and the rules provisions of subsection (f).
(8)(e)(4)(I). The categories of sources of the records in this
system have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in this system, exemption from this provision is necessary to
protect the confidentiality of the sources of criminal
[[Page 323]]
and other law enforcement information. Such exemption is further
necessary to protect the privacy and physical safety of witnesses and
informants.
(9) (e)(5). In the collection of information for criminal law
enforcement purposes it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can often only be determined
in a court of law. The restrictions of subsection (e)(5) would inhibit
the ability of trained investigators, intelligence analysts, and
government attorneys in exercising their judgment in reporting on
information and investigations and impede the development of criminal or
other intelligence necessary for effective law enforcement.
(10)(e)(8). The individual notice requirements of subsection (e)(8)
could present a serious impediment to law enforcement as this could
interfere with the ability to issue warrants or subpoenas and could
reveal investigative techniques, procedures, or evidence.
(11)(f). This subsection is inapplicable to the extent that this
system is exempt from the access provisions of subsection (d).
(12)(g). Because some of the records in this system contain
information which was compiled for law enforcement purposes and have
been exempted from the access provisions of subsection (d), subsection
(g) is inapplicable.
(s) The following system of records is exempted from 5 U.S.C.
552a(d).
Office of Special Investigations Displaced Persons Listings (JUSTICE/
CRM-027).
This exemption applies to the extent that the records in this system are
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(t) Exemption from subsection (d) is justified for the following
reasons:
(1) Access to records contained in this system could inform the
subject of the identity of witnesses or informants. The release of such
information could present a serious impediment to effective law
enforcement by endangering the physical safety of witnesses or
informants; by leading to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony; or by
otherwise preventing the successful completion of an investigation.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
659-76, 41 FR 32423, Aug. 3, 1976; Order No. 11-78, 43 FR 38386, Aug.
28, 1978; Order No. 30-79, 44 FR 54046, Sept. 18, 1979; Order Nos. 6-86,
7-86, 51 FR 15475, 15477, Apr. 24, 1986]
Sec. 16.92 Exemption of Environment and Natural Resources Division Systems--limited access.
(a)(1) The following system of records is exempted pursuant to 5
U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (e)(2),
(e)(3), (e)(5), (e)(8), (f) and (g); in addition, the following systems
of records are exempted pursuant to 5 U.S.C. 552a(k)(1) and (k)(2) from
subsections (c)(3), (d), and (e)(1):
(i) Environment and Natural Resources Division Case and Related
Files System, JUSTICE/ENRD-003.
(ii) [Reserved]
(2) These exemptions apply only to the extent that information in
this system relates to the investigation, prosecution or defense of
actual or potential criminal or civil litigation, or which has been
properly classified in the interest of national defense and foreign
policy, and therefore is subject to exemption pursuant to 5 U.S.C.
552a(j)(2), (k)(1) and (k)(2). To the extent that information in a
record pertaining to an individual does not relate to national defense
or foreign policy, official Federal investigations, and/or law
enforcement matters, the exemption does not apply. In addition, where
compliance would not appear to interfere with or adversely affect the
overall law or regulatory enforcement process, the applicable exemption
may be waived by the Environment and Natural Resources Division.
(b) Only that information that relates to the investigation,
prosecution or defense of actual or potential criminal or civil
litigation, or which has been properly classified in the interest of
national defense and foreign policy
[[Page 324]]
is exempted for the reasons set forth from the following subsections:
(1) Subsection (c)(3). Subsection (c)(3) requires an agency to
provide an accounting of disclosures of records concerning an
individual. To provide the subject of a criminal or civil matter or case
under investigation with an accounting of disclosures of records would
inform that individual (and others to whom the subject might disclose
the records) of the existence, nature, or scope of that investigation
and thereby seriously impede law enforcement efforts by permitting the
record subject and others to avoid criminal penalties and civil
remedies.
(2) Subsections (c)(4) (requiring an agency to inform individuals
about any corrections made to a record that has been disclosed) and (g)
(providing for civil remedies when an agency fails to comply with these
provisions). These provisions are inapplicable to the extent that this
system of records is exempted from subsection (d).
(3) Subsection (d). Subsection (d) requires an agency to allow
individuals to gain access to a record about him or herself; to dispute
the accuracy, relevance, timeliness or completeness of such records; and
to have an opportunity to amend his or her record or seek judicial
review. To the extent that information contained in this system has been
properly classified, relates to the investigation and/or prosecution of
grand jury, civil fraud, and other law enforcement matters, disclosure
could compromise matters which should be kept secret in the interest of
national security or foreign policy; compromise confidential
investigations or proceedings; impede affirmative enforcement actions
based upon alleged violations of regulations or of civil or criminal
laws; reveal the identity of confidential sources; and result in
unwarranted invasions of the privacy of others. Amendment of the records
would interfere with ongoing criminal law enforcement proceedings and
impose an impossible administrative burden by requiring criminal
investigations to be continuously reinvestigated.
(4) Subsection (e)(1). Subsection (e)(1) requires an agency to
maintain in its records only such information about an individual that
is relevant and necessary to accomplish the agency's purpose. In the
course of criminal or civil investigations, cases, or other matters, the
Environment and Natural Resources Division may obtain information
concerning the actual or potential violation of laws which are not
strictly within its statutory authority. In the interest of effective
law enforcement, it is necessary to retain such information since it may
establish patterns of criminal activity or avoidance of other civil
obligations and provide leads for Federal and other law enforcement
agencies.
(5) Subsection (e)(2). Subsection (e)(2) requires an agency to
collect information to the greatest extent practicable from the subject
individual when the information may result in adverse determinations
about an individual's rights, benefits and privileges under Federal
programs. To collect information from the subject of a criminal
investigation or prosecution would present a serious impediment to law
enforcement in that the subject (and others with whom the subject might
be in contact) would be informed of the existence of the investigation
and would therefore be able to avoid detection or apprehension, to
influence witnesses improperly, to destroy evidence, or to fabricate
testimony.
(6) Subsection (e)(3). Subsection (e)(3) requires an agency to
inform each individual whom it asks to supply information, on a form
that can be retained by the individual, the authority which authorizes
the solicitation, the principal purpose for the information, the routine
uses of the information, and the effects on the individual of not
providing the requested information. To comply with this requirement
during the course of a criminal investigation or prosecution could
jeopardize the investigation by disclosing the existence of a
confidential investigation, revealing the identity of witnesses or
confidential informants, or impeding the information gathering process.
(7) Subsection (e)(5). Subsection (e)(5) requires an agency to
maintain records with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual. In compiling information for criminal law enforcement
purposes, the
[[Page 325]]
accuracy, completeness, timeliness and relevancy of the information
obtained cannot always be immediately determined. As new details of an
investigation come to light, seemingly irrelevant or untimely
information may acquire new significance and the accuracy of such
information can often only be determined in a court of law. Compliance
with this requirement would therefore restrict the ability of government
attorneys in exercising their judgment in developing information
necessary for effective law enforcement.
(8) Subsection (e)(8). Subsection (e)(8) requires agencies to make
reasonable efforts to serve notice on an individual when any record on
the individual is made available to any person under compulsory legal
process. To serve notice would give persons sufficient warning to evade
law enforcement efforts.
(9) Subsections (f) and (g). Subsection (f) requires an agency to
establish procedures to allow an individual to have access to
information about him or herself and to contest information kept by an
agency about him or herself. Subsection (g) provides for civil remedies
against agencies who fail to comply with the Privacy Act requirements.
These provisions are inapplicable to the extent that this system is
exempt from the access and amendment provisions of subsection (d).
(c) The following system of records is exempt from 5 U.S.C. 552a
(c)(3) and (d):
(1) Freedom of Information/Privacy Act Records System. (Justice/LDN-
005).
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(d) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c) (3) because that portion of the Freedom of
Information/Privacy Act Records System that consists of investigatory
materials compiled for law enforcement purposes is being exempted from
access and contest; the provision for disclosure of accounting is not
applicable.
(2) From subsection (d) because of the need to safeguard the
identity of confidential informants and avoid interference with ongoing
investigations or law enforcement activities by preventing premature
disclosure of information relating to those efforts.
[Order No. 688-77, 42 FR 10000, Feb. 18, 1977, as amended by Order No.
207-2000, 65 FR 75158, Dec. 1, 2000]
Sec. 16.93 Exemption of Tax Division Systems--limited access.
(a) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a (j)(2) from subsections (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) of 5 U.S.C. 552a:
(1) Tax Division Central Classification Cards, Index Docket Cards,
and Associated Records--Criminal Tax Cases (JUSTICE/TAX-001)--Limited
Access.
(2) Tax Division Special Projects Files (JUSTICE/TAX-005)--Limited
Access.
These exemptions apply to the extent that information in these systems
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
(b) The systems of records listed under paragraphs (a)(1) and (a)(2)
of this section are exempted for the reasons set forth below, from the
following provisions of 5 U.S.C. 552a:
(1)(c)(3). The release of the disclosure accounting, for disclosures
made pursuant to subsection (b) of the Act, including those permitted
under the routine uses published for those systems of records, would
enable the subject of an investigation of an actual or potential
criminal tax case to determine whether he or she is the subject of
investigation, to obtain valuable information concerning the nature of
that investigation and the information obtained, and to determine the
identity of witnesses or informants. Such access to investigative
information would, accordingly, present a serious impediment to law
enforcement. In addition, disclosure of the accounting would constitute
notice to the individual of the existence of a record even though such
notice requirement under subsection (f)(1) is specifically exempted for
these systems of records.
(2)(c)(4). Since an exemption is being claimed for subsection (d) of
the Act
[[Page 326]]
(Access to Records) this subsection is inapplicable to the extent that
these systems of records are exempted from subsection (d).
(3) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained
in these systems would inform the subject of an actual or potential
criminal tax investigation of the existence of that investigation, of
the nature and scope of the information and evidence obtained as to his
or her activities, and of the identity of witnesses or informants. Such
access would, accordingly, provide information that could enable the
subject to avoid detection, apprehension and prosecution. This result,
therefore, would constitute a serious impediment to effective law
enforcement not only because it would prevent the successful completion
of the investigation but also because it could endanger the physical
safety of witnesses or informants, lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
(4)(e)(1). The notices for these systems of records published in the
Federal Register, set forth the basic statutory or related authority for
maintenance of these systems. However, in the course of criminal tax and
related law enforcement investigations, cases, and matters, the Tax
Division will occasionally obtain information concerning actual or
potential violations of law that may not be technically within its
statutory or other authority or may compile information in the course of
an investigation which may not be relevant to a specific prosecution. In
the interests of effective law enforcement, it is necessary to retain
some or all of such information in these systems of records since it can
aid in establishing patterns of criminal activity and can provide
valuable leads for Federal and other law enforcement agencies.
(5)(e)(2). In a criminal tax investigation or prosecution, the
requirement that information be collected to the greatest extent
practicable from the subject individual would present a serious
impediment to law enforcement because the subject of the investigation
or prosecution would be placed on notice as to the existence of the
investigation and would therefore be able to avoid detection or
apprehension, influence witnesses improperly, destroy evidence, or
fabricate testimony.
(6)(e)(3). The requirement that individuals supplying information be
provided with a form stating the requirements of subsection (e)(3) would
constitute a serious impediment to law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(7)(e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable to the extent that these systems of
records are exempted from subsection (f) and (d).
(8)(e)(4)(I). The categories of sources of the records in the
systems have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in these systems, exemption from this provision is necessary in
order to protect the confidentiality of the sources of criminal tax and
related law enforcement information. Such exemption is further necessary
to protect the privacy and physical safety of witnesses and informants.
(9)(e)(5). In the collection of information for criminal tax
enforcement purposes it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light. Furthermore, the accuracy of such information can often only be
determined in a court of law. The restrictions of subsection (e)(5)
would restrict the ability of government attorneys in exercising their
judgment in reporting on information and investigations and impede the
development of criminal tax information and related data necessary for
effective law enforcement.
(10)(e)(8). The individual notice requirements of subsection (e)(8)
could present a serious impediment to law enforcement as this could
interfere
[[Page 327]]
with the ability to issue warrants or subpoenas and could reveal
investigative techniques, procedures, or evidence.
(11)(f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to the existence of records pertaining to him
dealing with an actual or potential criminal tax, civil tax, or
regulatory investigation or prosecution must be exempted because such
notice to an individual would be detrimental to the successful conduct
and/or completion or an investigation or prosecution pending or future.
In addition, mere notice of the fact of an investigation could inform
the subject or others that their activities are under or may become the
subject of an investigation and could enable the subjects to avoid
detection or apprehension, to influence witnesses improperly, to destroy
evidence, or to fabricate testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required 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).
(12)(g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that these systems of records are exempted from subsections (d)
and (f).
(c) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d)(1),
(d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G, (e)(4)(H, (e)(4)(I) and (f) of
5 U.S.C. 552a:
(1) Tax Division Central Classification Cards, Index Docket Cards,
and Associated Records--Civil Tax Cases (JUSTICE/TAX-002)--Limited
Access.
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(d) The system of records listed under paragraph (c)(1) is exempted
for the reasons set forth below, from the following provisions of 5
U.S.C. 552a:
(1)(c)(3). The release of the disclosure accounting, for disclosures
made pursuant to subsection (b) of the Act, including those permitted
under the routine uses published for this system of records, would
enable the subject of an investigation of an actual or potential civil
tax case to determine whether he or she is the subject of investigation,
to obtain valuable information concerning the nature of that
investigation and the information obtained, and to determine the
identity of witnesses or informants. Such access to investigative
information would, accordingly, present a serious impediment to law
enforcement. In addition, disclosure of the accounting would constitute
notice to the individual of the existence of a record even though such
notice requirement under subsection (f)(1) is specifically exempted for
this system of records.
(2) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained
in this system would inform the subject of an actual or potential civil
tax investigation of the existence of that investigation, of the nature
and scope of the information and evidence obtained as to his or her
activities and of the identity of witnesses or informants. Such access
would, accordingly, provide information that could enable the subject to
avoid detection. This result, therefore, would constitute a serious
impediment to effective law enforcement not only because it would
prevent the successful completion of the investigation but also because
it could endanger the physical safety of witnesses or informants, lead
to the improper influencing of witnesses, the destruction of evidence,
or the fabrication of testimony.
(3)(e)(1). The notices for this system of records published in the
Federal Register set forth the basic statutory or related authority for
maintenance of this system. However, in the course of civil tax and
related law enforcement investigations, cases and matters, the Tax
Division will occasionally obtain information concerning actual or
potential violations of law that are not strictly or technically within
its statutory or other authority or may compile information in the
course of an investigation which may not be relevant to a specific case.
In the interests of effective law enforcement, it is necessary to retain
some or all of such information
[[Page 328]]
in this system of records since it can aid in establishing patterns of
tax compliance and can provide valuable leads for Federal and other law
enforcement agencies.
(4)(e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable to the extent that this system of
records is exempted from subsection (f) and (d).
(5)(e)(4)(I). The categories of sources of the records in this
system have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in this system, exemption from this provision is necessary in
order to protect the confidentiality of the sources of civil tax and
related law enforcement information. Such exemption is further necessary
to protect the privacy and physical safety of witnesses and informants.
(6)(f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to existence of records pertaining to the
individual dealing with an actual or potential criminal tax, civil tax,
or regulatory investigation or prosecution must be exempted because such
notice to an individual would be detrimental to the successful conduct
and/or completion of an investigation or case, pending or future. In
addition, mere notice of the fact of an investigation could inform the
subject or others that their activities are under or may become the
subject of an investigation and could enable the subjects to avoid
detection, to influence witnesses improperly, to destroy evidence, or to
fabricate testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsection (f) (2)
through (5) are inapplicable to this system of records to the extent
that this system of records is exempted from subsection (d).
(e) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4), (G), (e)(4)(H),
(e)(4)(I), (e) (5) and (8), (f), and (g).
(1) Freedom of Information--Privacy Act Request Files (JUSTICE/TAX-
004)
These exemptions apply to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
(f) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, it is exempted for the
reasons set forth from the following provisions of 5 U.S.C. 552a:
(1)(c)(3). The release of the disclosure accounting would present a
serious impediment to law enforcement by permitting the subject of a
investigation of an actual or potential criminal, civil, or regulatory
violation to determine whether he is the subject of investigation, or to
obtain valuable information concerning the nature of that investigation
and the information obtained, or to identify witnesses and informants.
(2)(c)(4). Since an exemption is being claimed for subsection (d) of
the Act (Access to Records), this subsection is inapplicable to the
extent that this system of records is exempted from subsection (d).
(3)(d). Access to records contained in this system would inform the
subject of an actual or potential criminal tax investigation of the
existence of that investigation, of the nature and scope of the
investigation, of the information and evidence obtained as to his or her
activities, and of the identity of witnesses or informants. Such access
would, accordingly, provide information that could enable the subject to
avoid detection, apprehension, and prosecution. This result, therefore,
would constitute a serious impediment to effective law enforcement not
only because it would prevent the successful completion of the
investigation but also because it could endanger the physical safety of
witnesses or informants, lead to the improper influencing of witnesses,
the destruction of evidence, of the fabrication of testimony.
[[Page 329]]
Amendment of the records would interfere with ongoing criminal law
enforcement proceedings and imposes an impossible administrative burden
by requiring criminal investigations to be continuously reinvestigated.
(4)(e)(1). In the course of criminal tax and related law enforcement
investigations, cases, and matters, the Tax Division will occasionally
obtain information concerning actual or potential violations of law that
may not be technically within its statutory or other authority, or it
may compile information in the course of an investigation which may not
be relevant to a specific prosecution. In the interests of effective law
enforcement, it is necessary to retain some or all of such information
since it can aid in establishing patterns of criminal activity and can
provide valuable leads for Federal and other law enforcement agencies.
(5)(e)(2). To collect information to the greatest extent practicable
from the subject individual of a criminal investigation or prosecution
would present a serious impediment to law enforcement because the
subject of the investigation or prosecution would be placed on notice as
to the existence of the investigation and would therefore be able to
avoid detection or apprehension, improperly influence witnesses, destroy
evidence, or fabricate testimony.
(6)(e)(3). To provide individuals supplying information with a form
which includes the information required by subsection (e)(3) would
constitute a serious impediment to law enforcement, i.e., it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(7)(e)(4) (G) and (H). These subsections are inapplicable to the
extent that this system is exempt from the access provisions of
subsection (d) and the rules provisions of subsection (f).
(8)(e)(4)(I). The categories of sources of the records in this
system have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e) (4) (I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in this system, exemption from this provision is necessary to
protect the confidentiality of the sources of criminal tax and related
law enforcement information. Such exemption is further necessary to
protect the privacy and physical safety of witnesses and informants.
(9)(e)(5). In the collection of information for criminal tax
enforcement purposes it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light. Furthermore, the accuracy of such information can often only be
determined in a court of law. The restrictions of subsection (e)(5)
would inhibit the ability of government attorneys in exercising their
judgement in reporting on information and investigations and impede the
development of criminal tax information and related data necessary for
effective law enforcement.
(10)(e)(8). The individual notice requirements of subsection (e)(8)
could present a serious impediment to law enforcement as this could
interfere with the ability to issue warrants or subpoenas and could
reveal investigative techniques, procedures, or evidence.
(11)(f). This subsection is inapplicable to the extent that this
system is exempt from the access provisions of subsection (d).
(12)(g). Because the records in this system are generally compiled
for law enforcement purposes and are exempt from the access provisions
of subsection (d), subsection (g) is inapplicable.
[Order No. 742-77, 42 FR 40906, Aug. 12, 1977, as amended by Order No.
6-86, 51 FR 15478, Apr. 24, 1986]
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--limited access.
(a) The following system of records is exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(8), (f)
and (g).
(1) Central Records System (CRS) (JUSTICE/FBI-002).
These exemptions apply only to the extent that information in this
system is
[[Page 330]]
subject to exemption pursuant to 5 U.S.C. 552(j) and (k). Where
compliance would not appear to interfere with or adversely affect the
overall law enforcement process, the applicable exemption may be waived
by the FBI.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest by not only the FBI, but also by the
recipient agency. This would permit the record subject to take
appropriate measures to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses or flee the area to avoid the
thrust of the investigation.
(2)(i) From subsections (d), (e)(4) (G) and (H), (f) and (g) because
these provisions concern individual access to investigative records,
compliance with which could compromise sensitive information classified
in the interest of national security, interfere with the overall law
enforcement process by revealing a pending sensitive investigation,
possibly identify a confidential source or disclose information which
would constitute an unwarranted invasion of another individual's
personal privacy, reveal a sensitive investigative technique, or
constitute a potential danger to the health or safety to law enforcement
personnel.
(ii) Also, individual access to non-criminal investigative records,
e.g., civil investigations and administrative inquiries, as described in
subsection (k) of the Privacy Act, could also compromise classified
information related to national security, interfere with a pending
investigation or internal inquiry, constitute an unwarranted invasion of
privacy, reveal a confidential source or sensitive investigative
technique, or pose a potential threat to law enforcement personnel. In
addition, disclosure of information collected pursuant to an employment
suitability or similar inquiry could reveal the identity of a source who
provided information under an express promise of confidentiality, or
could compromise the objectivity or fairness of a testing or examination
process.
(iii) In addition, from paragraph (d)(2) of this section, because to
require the FBI to amend information thought to be incorrect, irrelevant
or untimely, because of the nature of the information collected and the
essential length of time it is maintained, would create an impossible
administrative and investigative burden by forcing the agency to
continuously retrograde its investigations attempting to resolve
questions of accuracy, etc.
(3) From subsection (e)(1) because:
(i) It is not possible in all instances to determine relevancy or
necessity of specific information in the early stages of a criminal or
other investigation.
(ii) Relevance and necessity are questions of judgment and timing;
what appears relevant and necessary when collected ultimately may be
deemed unnecessary. It is only after the information is assessed that
its relevancy and necessity in a specific investigative activity can be
established.
(iii) In any investigation the FBI might obtain information
concerning violations of law not under its jurisdiction, but in the
interest of effective law enforcement, dissemination will be made to the
agency charged with enforcing such law.
(iv) In interviewing individuals or obtaining other forms of
evidence during an investigation, information could be obtained, the
nature of which would leave in doubt its relevancy and necessity. Such
information, however, could be relevant to another investigation or to
an investigative activity under the jurisdiction of another agency.
(4) From subsection (e)(2) because the nature of criminal and other
investigative activities is such that vital information about an
individual can only be obtained from other persons who are familiar with
such individual and his/her activities. In such investigations it is not
feasible to rely upon information furnished by the individual concerning
his own activities.
(5) From subsection (e)(3) because disclosure would provide the
subject with substantial information which could impede or compromise
the investigation. The individual could seriously interfere with
undercover investigative activities and could take appropriate
[[Page 331]]
steps to evade the investigation or flee a specific area.
(6) From subsection (e)(8) because the notice requirements of this
provision could seriously interfere with a law enforcement activity by
alerting the subject of a criminal or other investigation of existing
investigative interest.
(c) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and
(8), (f), (g) and (m):
(1) Electronic Surveillance (Elsur) Indices (JUSTICE/FBI-006).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j).
(d) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of accounting
disclosures would place the subject of an investigation on notice that
he is under investigation and provide him with significant information
concerning the nature of the investigation, resulting in a serious
impediment to law enforcement.
(2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g)
because these provisions concern an individual's access to records which
concern him and such access to records in this system would compromise
ongoing investigations, reveal investigatory techniques and confidential
informants, and invade the privacy of private citizens who provide
information in connection with a particular investigation.
(3) From subsection (e)(1) because these indices must be maintained
in order to provide the information as described in the ``routine uses''
of this particular system.
(4) From subsections (e) (2) and (3) because compliance is not
feasible given the subject matter of the indices.
(5) From subsection (e)(5) because this provision is not applicable
to the indices in view of the ``routine uses'' of the indices. For
example, it is impossible to predict when it will be necessary to
utilize information in the system and, accordingly it is not possible to
determine when the records are timely.
(6) From subsection (e)(8) because the notice requirement could
present a serious impediment to law enforcement by revealing
investigative techniques, procedures and the existence of confidential
investigations.
(7) From subsection (m) for the reasons stated in subsection (b)(7)
of this section.
(e) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and
(8), (f), and (g):
(1) Identification Division Records System (JUSTICE/FBI-009).
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(j).
(f) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) for the reasons stated in subsection
(d)(1) of this section.
(2) From subsections (c)(4), (d), (e)(4) (G) and (H), (f) and (g)
because these provisions concern an individual's access to records which
concern him. Such access is directed at allowing the subject of a record
to correct inaccuracies in it. Although an alternate system of access
has been provided in 28 CFR 16.30 to 34 and 28 CFR 20.34, the vast
majority of records in this system concern local arrests which it would
be inappropriate for the FBI to undertake to correct.
(3) From subsection (e)(1) because it is impossible to state with
any degree of certainty that all information on these records is
relevant to accomplish a purpose of the FBI, even though acquisition of
the records from state and local law enforcement agencies is based on a
statutory requirement. In view of the number of records in the system it
is impossible to review them for relevancy.
(4) From subsection (e)(2) because the records in the system are
necessarily furnished by criminal justice agencies due to their very
nature.
(5) From subsection (e)(3) because compliance is not feasible due to
the nature of the records.
(6) From subsection (e)(5) because the vast majority of these
records come from local criminal justice agencies and it is
administratively impossible to ensure that the records comply with
[[Page 332]]
this provision. Submitting agencies are, however, urged on a continuing
basis to ensure that their records are accurate and include all
dispositions.
(7) From subsection (e)(8) because the FBI has no logical manner to
ascertain whether process has been made public and compliance with this
provision would in any case, provide an impediment to law enforcement by
interfering with the ability to issue warrants or subpoenas and by
revealing investigative techniques, procedures or evidence.
(g) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(8), (f),
and (g):
This exemption applies only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(3).
(h) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) for the reasons stated in subsection
(d)(1) of this section.
(2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) for
the reasons stated in subsection (d)(2) of this section. When records
are properly subject to access by the individual, an alternate means of
access is provided in subsection (i) of this section.
(3) From subsection (e)(1) because information contained in this
system is primarily from state and local records, and it is for the
official use of agencies outside the Federal Government in accordance
with 28 U.S.C. 534.
(4) From subsections (e) (2) and (3) because it is not feasible to
comply with these provisions given the nature of this system.
(5) From subsection (e)(8) for the reasons stated in subsection
(d)(6) of this section.
(i) Access to computerized criminal history records in the National
Crime Information Center is available to the individual who is the
subject of the record pursuant to procedures and requirements specified
in the Notice of Systems of Records compiled by the National Archives
and Records Service and published under the designation:
(j) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4) (G) and (H), (f) and (g):
(1) National Center for the Analysis of Violent Crime (NCAVC)
(JUSTICE/FBI-015).
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
(k)(2).
(k) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because providing the accounting of
disclosures to the subject could prematurely reveal investigative
interest by the FBI and other law enforcement agencies, thereby
providing the individual an opportunity to impede an active
investigation, destroy or alter evidence, and possibly render harm to
violent crime victims and/or witnesses.
(2) From subsections (d), (e)(4) (G) and (H), and (f) because
disclosure to the subject could interfere with enforcement proceedings
of a criminal justice agency, reveal the identity of a confidential
source, result in an unwarranted invasion of another's privacy, reveal
the details of a sensitive investigative technique, or endanger the life
and safety of law enforcement personnel, potential violent crime
victims, and witnesses. Disclosure also could prevent the future
apprehension of a violent or exceptionally dangerous criminal fugitive
should he or she modify his or her method of operation in order to evade
law enforcement. Also, specifically from subsection (d)(2), which
permits an individual to request amendment of a record, because the
nature of the information in the system is such that an individual
criminal offender would frequently demand amendment of derogatory
information, forcing the FBI to continuously retrograde its criminal
investigations in an attempt to resolve questions of accuracy, etc.
(3) From subsection (g) because the system is exempt from the access
and amendment provisions of subsection (d).
[[Page 333]]
(4) From subsection (e)(1) because it is not always possible to
establish relevance and necessity of the information at the time it is
obtained or developed. Information, the relevance and necessity of which
may not be readily apparent, frequently can prove to be of investigative
value at a later date and time.
National Crime Information Center (NOIC) (JUSTICE/FBI-001).
(l) The following system of records is exempt from 5 U.S.C. 552a
(c)(3), (c)(4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5),
(e)(8), (f) and (g).
(1) FBI Counterdrug Information Indices System (CIIS) (JUSTICE/FBI--
016)
(2) [Reserved]
(m) 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).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest by not only the FBI, but also by the
recipient agency. This would permit the record subject to take
appropriate measures to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses or flee the area to avoid the
thrust of the investigation.
(2) From subsection (c)(4) to the extent it is not applicable
because an exemption is being claimed from subsection (d).
(3)(i) From subsections (d), (e)(4) (G) and (H) because these
provisions concern individual access to records, compliance with which
could compromise sensitive information, interfere with the overall law
enforcement process by revealing a pending sensitive investigation,
possibly identify a confidential source or disclose information which
would constitute an unwarranted invasion of another individual's
personal privacy, reveal a sensitive investigative technique, or
constitute a potential danger to the health or safety of law enforcement
personnel.
(ii) In addition, from paragraph (d), because to require the FBI to
amend information thought to be incorrect, irrelevant or untimely,
because of the nature of the information collected and the essential
length of time it is maintained, would create an impossible
administrative and investigative burden by forcing the agency to
continuously retrograde its investigations attempting to resolve
questions of accuracy, etc.
(4)(i) From subsection (e)(1) because it is not possible in all
instances to determine relevancy or necessity of specific information in
the early stages of a criminal or other investigation.
(ii) Relevance and necessity are questions of judgment and timing;
what appears relevant and necessary when collected ultimately may be
deemed otherwise. It is only after the information is assessed that its
relevancy and necessity in a specified investigative activity can be
established.
(iii) In any investigation the FBI might obtain information
concerning violations of law not under its jurisdiction, but in the
interest of effective law enforcement, dissemination will be made to the
agency charged with enforcing such law.
(iv) In interviewing individuals or obtaining other forms of
evidence during an investigation, information could be obtained, the
nature of which would leave in doubt its relevancy and necessity. Such
information, however, could be relevant to another investigations or to
an investigative activity under the jurisdiction of another agency.
(5) From subsection (e)(2) because the nature of criminal and other
investigative activities is such that vital information about an
individual often can only be obtained from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to principally rely upon information
furnished by the individual concerning his own activities.
(6) From subsection (e)(3) because disclosure would provide the
subject with information which could impede or compromise the
investigation. The individual could seriously interfere with undercover
investigative activities and could take appropriate steps to evade the
investigation or flee a specific area.
[[Page 334]]
(7) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light. The restrictions imposed by subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of criminal intelligence necessary for effective law enforcement.
(8) From subsection (e)(8) because the notice requirements of this
provision could seriously interfere with a law enforcement activity by
alerting the subject of a criminal or other investigation of existing
investigative interest.
(9) From subsection (f) to the extent that this system is exempt
from the provisions of subsection (d).
(10) From subsection (g) to the extent that this system of records
is exempt from the provisions of subsection (d).
(n) The following system of records is exempt from 5 U.S.C. 552a (c)
(3) and (4); (d); (e) (1), (2), and 3; (e)(4) (G) and (H); (e) (5) and
(8); and (g):
(1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
(2) [Reserved]
(o) These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available the accounting
of disclosures of records to the subject of the record would prematurely
place the subject on notice of the investigative interest of law
enforcement agencies, provide the subject with significant information
concerning the nature of the investigation, or permit the subject to
take measures to impede the investigation (e.g., destroy or alter
evidence, intimidate potential witnesses, or flee the area to avoid
investigation and prosecution), and result in a serious impediment to
law enforcement.
(2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g)
because these provisions concern an individual's access to records which
concern him/her and access to records in this system would compromise
ongoing investigations. Such access is directed at allowing the subject
of the record to correct inaccuracies in it. The vast majority of
records in this system are from the DNA records of local and State NDIS
agencies which would be inappropriate and not feasible for the FBI to
undertake to correct. Nevertheless, an alternate method to access and/or
amend records in this system is available to an individual who is the
subject of a record pursuant to procedures and requirements specified in
the Notice of Systems of Records compiled by the National Archives and
Records Administration and published in the Federal Register under the
designation: National DNA Index System (NDIS) (JUSTICE/FBI-017)
(ii) In addition, from paragraph (d)(2) of this section, because to
require the FBI to amend information thought to be incorrect,
irrelevant, or untimely, because of the nature of the information
collected and the essential length of time it is maintained, would
create an impossible administrative and investigative burden by forcing
the agency to continuously retrograde investigations attempting to
resolve questions of accuracy, etc.
(iii) In addition, from subsection (g) to the extent that the system
is exempt from the access and amendment provisions of subsection (d).
(3) From subsection (e)(1) because:
(i) Information in this system is primarily from State and local
records and it is for the official use of agencies outside the Federal
Government.
(ii) It is not possible in all instances to determine the relevancy
or necessity of specific information in the early stages of the criminal
investigative process.
(iii) Relevance and necessity are questions of judgment and timing;
what appears relevant and necessary when collected ultimately may be
deemed unnecessary, and vice versa. It is only after the information is
assessed that its relevancy in a specific investigative activity can be
established.
[[Page 335]]
(iv) Although the investigative process could leave in doubt the
relevancy and necessity of evidence which had been properly obtained,
the same information could be relevant to another investigation or
investigative activity under the jurisdiction of the FBI or another law
enforcement agency.
(4) From subsections (e)(2) and (3) because it is not feasible to
comply with these provisions given the nature of this system. Most of
the records in this system are necessarily furnished by State and local
criminal justice agencies and not by individuals due to the very nature
of the records and the system.
(5) From subsection (e)(5) because the vast majority of these
records come from State and local criminal justice agencies and because
it is administratively impossible for them and the FBI to insure that
the records comply with this provision. Submitting agencies are urged
and make every effort to insure records are accurate and complete;
however, since it is not possible to predict when information in the
indexes of the system (whether submitted by State and local criminal
justice agencies or generated by the FBI) will be matched with other
information, it is not possible to determine when most of them are
relevant or timely.
(6) From subsection (e)(8) because the FBI has no logical manner to
determine whenever process has been made public and compliance with this
provision would provide an impediment to law enforcement by interfering
with ongoing investigations.
(p) The National Instant Criminal Background Check System (NICS),
(JUSTICE/FBI-018), a Privacy Act system of records, is exempt:
(1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and
(4); (d); (e) (1), (2) and (3); (e)(4) (G) and (H); (e) (5) and (8); and
(g); and
(2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections
(c)(3), (d), (e)(1), and (e)(4) (G) and (H).
(q) These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2),
(k)(2), and (k)(3). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) because the release of the accounting of
disclosures would place the subject on notice that the subject is or has
been the subject of investigation and result in a serious impediment to
law enforcement.
(2) From subsection (c)(4) to the extent that it is not applicable
since an exemption is claimed from subsection (d).
(3)(i) From subsections (d) and (e)(4) (G) and (H) because these
provisions concern an individual's access to records which concern the
individual and such access to records in the system would compromise
ongoing investigations, reveal investigatory techniques and confidential
informants, invade the privacy of persons who provide information in
connection with a particular investigation, or constitute a potential
danger to the health or safety of law enforcement personnel.
(ii) In addition, from subsection (d)(2) because, to require the FBI
to amend information thought to be not accurate, timely, relevant, and
complete, because of the nature of the information collected and the
essential length of time it is maintained, would create an impossible
administrative burden by forcing the agency to continuously update its
investigations attempting to resolve these issues.
(iii) Although the Attorney General is exempting this system from
subsections (d) and (e)(4) (G) and (H), an alternate method of access
and correction has been provided in 28 CFR, part 25, subpart A.
(4) From subsection (e)(1) because it is impossible to state with
any degree of certainty that all information in these records is
relevant to accomplish a purpose of the FBI, even though acquisition of
the records from state and local law enforcement agencies is based on a
statutory requirement. In view of the number of records in the system,
it is impossible to review them for relevancy.
(5) From subsections (e) (2) and (3) because the purpose of the
system is to verify information about an individual. It would not be
realistic to rely on information provided by the individual. In
addition, much of the information contained in or checked by this system
[[Page 336]]
is from Federal, State, and local criminal history records.
(6) From subsection (e)(5) because it is impossible to predict when
it will be necessary to use the information in the system, and,
accordingly, it is not possible to determine in advance when the records
will be timely. Since most of the records are from State and local or
other Federal agency records, it would be impossible to review all of
them to verify that they are accurate. In addition, an alternate
procedure is being established in 28 CFR, part 25, subpart A, so the
records can be amended if found to be incorrect.
(7) From subsection (e)(8) because the notice requirement could
present a serious impediment to law enforcement by revealing
investigative techniques and confidential investigations.
(8) From subsection (g) to the extent that, pursuant to subsections
(j)(2), (k)(2), and (k)(3), the system is exempted from the other
subsections listed in paragraph (p) of this section.
[Order No. 40-80, 45 FR 5301, Jan. 23, 1980, as amended by Order No. 64-
81, 46 FR 20540, Apr. 6, 1981; Order No. 63-81, 46 FR 22362, Apr. 17,
1981; Order No. 67-81, 46 FR 30495, June 9, 1981; Order No. 15-85, 50 FR
31361, Aug. 2, 1985; Order No. 6-86, 51 FR 15479, Apr. 24, 1986; Order
No. 94-94, 59 FR 47081, Sept. 14, 1994; Order No. 124-96, 61 FR 65180,
Dec. 11, 1996; Order No. 155-98, 63 FR 65062, Nov. 25, 1998]
Sec. 16.97 Exemption of Bureau of Prisons Systems--limited access.
(a) The following systems of records are exempt from 5 U.S.C. 552a
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (H), (e)(8), (f) and (g):
(1) Custodial and Security Record System (JUSTICE/BOP-001).
(2) Industrial Inmate Employment Record System (JUSTICE/BOP-003).
(3) Inmate Administrative Remedy Record System (JUSTICE/BOP-004).
(4) Inmate Central Record System (JUSTICE/BOP-005).
(5) Inmate Commissary Accounts Record System (JUSTICE/BOP-006).
(6) Inmate Physical and Mental Health Record System (JUSTICE/BOP-
007).
(7) Inmate Safety and Accident Compensation Record System (JUSTICE/
BOP-008).
(8) Federal Tort Claims Act Record System (JUSTICE/BOP-009).
These exemptions apply only to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(j).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because inmates will not be permitted to
gain access or to contest contents of these record systems under the
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure
accountings can compromise legitimate law enforcement activities and
Bureau of Prisons responsibilities.
(2) From subsection (c)(4) because exemption from provisions of
subsection (d) will make notification of formal disputes inapplicable.
(3) From subsection (d) because exemption from this subsection is
essential to protect internal processes by which Bureau personnel are
able to formulate decisions and policies with regard to federal
prisoners, to prevent disclosure of information to federal inmates that
would jeopardize legitimate correctional interests of security, custody,
or rehabilitation, and to permit receipt of relevant information from
other federal agencies, state and local law enforcement agencies, and
federal and state probation and judicial offices.
(4) From subsection (e)(2) because primary collection of information
directly from federal inmates about criminal sentences or criminal
records is highly impractical and inappropriate.
(5) From subsection (e)(3) because in view of the Bureau of Prisons'
responsibilities, application of this provision to its operations and
collection of information is inappropriate.
(6) From subsection (e)(4)(H) because exemption from provisions of
subsection (d) will make publication of agency procedures under this
subsection inapplicable.
(7) From subsection (e)(8) because the nature of Bureau of Prisons
law enforcement activities renders notice of compliance with compulsory
legal process impractical.
(8) From subsection (f) because exemption from provisions of
subsection
[[Page 337]]
(d) will render compliance with provisions of this subsection
inapplicable.
(9) From subsection (g) because exemption from provisions of
subsection (d) will render provisions of this subsection inapplicable.
(c) The following system of records is exempted pursuant to 5 U.S.C.
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3),
(e)(5) and (e)(8), and (g). In addition, the following system of records
is exempted pursuant to 5 U.S.C. 552a(k)(2) from subsections (c)(3),
(d), and (e)(1):
Bureau of Prisons Access Control Entry/Exit, (JUSTICE/BOP-010).
(d) These exemptions apply only to the extent that information in
these systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) 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, e.g. public source materials, or those supplied by third
parties, 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) for similar reasons as those enumerated
in paragraph (3).
(2) From subsection (c)(4) to the extent that exemption from
subsection (d) will make notification of corrections or notations of
disputes inapplicable.
(3) From the access provisions of subsection (d) to the extent that
exemption from this subsection may appear to be necessary to prevent
access by record subjects to information that may jeopardize the
legitimate correctional interests of safety, security, and good order of
Bureau of Prisons facilities; to protect the privacy of third parties;
and to protect access to relevant information received from third
parties, such as other Federal State, local and foreign law enforcement
agencies, Federal and State probation and judicial offices, the
disclosure of which may permit a record subject to evade apprehension,
prosecution, etc.; and/or to otherwise protect investigatory or law
enforcement information, whether received from other third parties, or
whether developed internally by the BOP.
(4) From the amendment provisions of subsection (d) because
amendment of the records would interfere with law enforcement operations
and impose an impossible administrative burden. In addition to efforts
to ensure accuracy so as to withstand possible judicial scrutiny, it
would require that law enforcement and investigatory information be
continuously reexamined, even where the information may have been
collected from the record subject. Also, where records are provided by
other Federal criminal justice agencies or other State, local and
foreign jurisdictions, it may be administratively impossible to ensure
compliance with this provision.
(5) From subsection (e)(1) to the extent that the BOP may collect
information that may 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 relevant responsibilities.
(6) From subsection (e)(2) because primary collection of information
directly from the record subject is often highly impractical,
inappropriate and could result in inaccurate information.
(7) From subsection (e)(3) because compliance with this subsection
may impede the collection of information that may be valuable to law
enforcement interests.
(8) From subsection (e)(5) because in the collection and maintenance
of information for law enforcement purposes, it is impossible 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 as an investigation
progresses or with the passage of time, and could be relevant to future
law enforcement decisions.
(9) From subsection (e)(8) because the nature of BOP law enforcement
activities renders notice of compliance with compulsory legal process
impractical and could seriously jeopardize institution security and
personal safety and/
[[Page 338]]
or impede overall law enforcement efforts.
(10) From subsection (g) to the extent that the system is exempted
from subsection (d).
(e) The following system of records is exempt from 5 U.S.C. 552a (c)
(3) and (4), (d), (e) (2) and (3), (e)(5) and (e)(8), (f) and (g):
Telephone Activity Record System (JUSTICE/BOP-011).
(f) 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) to the extent that this system of records
is exempt from subsection (d), and for such reasons as those cited for
subsection (d) in paragraph (f)(3) below.
(2) From subsection (c)(4) to the extent that exemption from
subsection (d) makes this exemption inapplicable.
(3) From the access provisions of subsection (d) because exemption
from this subsection is essential to prevent access of information by
record subjects that may invade third party privacy; frustrate the
investigative process; jeopardize the legitimate correctional interests
of safety, security, and good order to prison facilities; or otherwise
compromise, impede, or interfere with BOP or other law enforcement
agency activities.
(4) From the amendment provisions from subsection (d) because
amendment of the records may interfere with law enforcement operations
and would impose an impossible administrative burden by requiring that,
in addition to efforts to ensure accuracy so as to withstand possible
judicial scrutiny, it would require that law enforcement information be
continuously reexamined, even where the information may have been
collected from the record subject. Also, some of these records come from
other Federal criminal justice agencies or State, local and foreign
jurisdictions, or from Federal and State probation and judicial offices,
and it is administratively impossible to ensure that the records comply
with this provision.
(5) From subsection (e)(2) because the nature of criminal and other
investigative 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 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.
(6) From subsection (e)(3) because in view of BOP's operational
responsibilities, application of this provision to the collection of
information is inappropriate. Application of this provision could
provide the subject with substantial information which may in fact
impede the information gathering process or compromise an investigation.
(7) From subsection (e)(5) because in the collection and maintenance
of information for law enforcement purposes, it is impossible to
determine in advance what information is accurate, relevant, timely and
complete. Material which may seem unrelated, irrelevant or incomplete
when collected may take on added meaning or significance at a later date
or as an investigation progresses. Also, some of these records may come
from other Federal, State, local and foreign law enforcement agencies,
and from Federal and State probation and judicial offices and it is
administratively impossible to ensure that the records comply with this
provision. It would also require that law enforcement information be
continuously reexamined even where the information may have been
collected from the record subject.
(8) From subsection (e)(8) because the nature of BOP law enforcement
activities renders impractical the notice of compliance with compulsory
legal process. This requirement could present a serious impediment to
law enforcement such as revealing investigative techniques or the
existence of confidential investigations, jeopardize
[[Page 339]]
the security of third parties, or otherwise compromise law enforcement
efforts.
(9)-(10) [Reserved]
(11) From subsections (f) and (g) to the extent that this system is
exempt from the access and amendment provisions of subsection (d).
(g) The following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2), and (3), (e)(5) and (e)(8), and (g) of 5 U.S.C. 552a. In
addition, the following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3),
(d), and (e)(1) of 5 U.S.C. 552a:
Bureau of Prisons, Office of Internal Affairs Investigative Records,
JUSTICE/BOP-012
(h) 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),
(k)(1), and (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, e.g., public source materials, the applicable
exemption may be waived, either partially or totally, by the Office of
Internal Affairs (OIA). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) because release of disclosure accounting
could alert the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to the existence of the
investigation and the fact that they are subjects of the investigation,
and reveal investigative interest by not only the OIA but also by the
recipient agency. Since release of such information to the subjects of
an investigation would provide them with significant information
concerning the nature of the investigation, release could result in
activities that would impede or compromise law enforcement such as: the
destruction of documentary evidence; improper influencing of witnesses;
endangerment of the physical safety of confidential sources, witnesses,
and law enforcement personnel; fabrication of testimony; and flight of
the subject from the area. In addition, release of disclosure accounting
could result in the release of properly classified information which
could compromise the national defense or disrupt foreign policy.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
provide the subject of an investigation with information concerning law
enforcement activities such as that relating to an actual or potential
criminal, civil or regulatory violation; the existence of an
investigation; the nature and scope of the information and evidence
obtained as to his activities; the identity of confidential sources,
witnesses, and law enforcement personnel; and information that may
enable the subject to avoid detection or apprehension. Such disclosure
would present a serious impediment to effective law enforcement where
they prevent the successful completion of the investigation; endanger
the physical safety of confidential sources, witnesses, and law
enforcement personnel; and/or lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
In addition, granting access to such information could disclose
security-sensitive or confidential business information or information
that would constitute an unwarranted invasion of the personal privacy of
third parties. Finally, access to the records could result in the
release of properly classified information which could compromise the
national defense or disrupt foreign policy. Amendment of the records
would interfere with ongoing investigations and law enforcement
activities and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated.
(4) From subsection (e)(1) because the application of this provision
could impair investigations and interfere with the law enforcement
responsibilities of the OIA for the following reasons:
[[Page 340]]
(i) It is not possible to detect relevance or necessity of specific
information in the early stages of a civil, criminal or other law
enforcement investigation, case, or matter, including investigations in
which use is made of properly classified information. Relevance and
necessity are questions of judgment and timing, and it is only after the
information is evaluated that the relevance and necessity of such
information can be established.
(ii) During the course of any investigation, the OIA may obtain
information concerning actual or potential violations of laws other than
those within the scope of its jurisdiction. In the interest of effective
law enforcement, the OIA should retain this information as it may aid in
establishing patterns of criminal activity, and can provide valuable
leads for Federal and other law enforcement agencies.
(iii) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may relate also to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(5) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to destroy
evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation cannot
be required to provide information to investigators, and information
relating to a subject's illegal acts, violations of rules of conduct, or
any other misconduct must be obtained from other sources.
(iii) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6) From subsection (e)(3) because the application of this provision
would provide the subject of an investigation with substantial
information which could impede or compromise the investigation.
Providing such notice to a subject of an investigation could interfere
with an undercover investigation by revealing its existence, and could
endanger the physical safety of confidential sources, witnesses, and
investigators by revealing their identities.
(7) From subsection (e)(5) because the application of this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment it is collected. In the
collection of information for law enforcement purposes, it is impossible
to determine in advance what information is accurate, relevant, timely,
and complete. Material which may seem unrelated, irrelevant, or
incomplete when collected may take on added meaning or significance as
an investigation progresses. The restrictions of this provision could
interfere with the preparation of a complete investigation report, and
thereby impede effective law enforcement.
(8) From subsection (e)(8) because the application of this provision
could prematurely reveal an ongoing criminal investigation to the
subject of the investigation, and could reveal investigation techniques,
procedures, and/or evidence.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
(i) Consistent with the legislative purpose of the Privacy Act of
1974 (Pub. L. 93-579) the BOP has initiated a procedure whereby federal
inmates in custody may gain access and review their individual prison
files maintained at the institution of incarceration. Access to these
files will be limited only to the extent that the disclosure of records
to the inmate would jeopardize internal decision-making or policy
determinations essential to the effective operation of the Bureau of
Prisons; to the extent that disclosure of the records to the inmate
would jeopardize
[[Page 341]]
privacy rights of others, or a legitimate correctional interest of
security, custody, or rehabilitation; and to the extent information is
furnished with a legitimate expectation of confidentiality. The Bureau
of Prisons will continue to provide access to former inmates under
existing regulations as is consistent with the interests listed above.
Under present Bureau of Prisons regulations, inmates in federal
institutions may file administrative complaints on any subject under the
control of the Bureau. This would include complaints pertaining to
information contained in these systems of records.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
6-86, 51 FR 15479, Apr. 24, 1986; Order No. 113-96, 61 FR 6316, Feb. 20,
1996; Order No. 114-96, 61 FR 6317, Feb. 20, 1996; Order No. 115-96, 61
FR 6319, Feb. 20, 1996]
Sec. 16.98 Exemption of the Drug Enforcement Administration (DEA)--limited access.
(a) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (d):
(1) Automated Records and Consummated Orders System/Diversion
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
(2) Controlled Substances Act Registration Records (Justice/DEA-005)
(3) Registration Status/Investigatory Records (Justice/DEA-012)
(b) These exemptions apply only to the extent that information in
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because release of the disclosure
accounting would enable the subject of an investigation to gain valuable
information concerning the nature and scope of the investigation and
seriously hamper the regulatory functions of the DEA.
(2) From subsection (d) because access to records contained in these
systems may provide the subject of an investigation information that
could enable him to avoid compliance with the Drug Abuse Prevention and
Control Act of 1970 (Pub. L. 91-513).
(c) Systems of records identified in paragraphs (c)(1) through
(c)(6) below are exempted pursuant to the provisions of 5 U.S.C.
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3),
(e)(5), (e)(8) and (g) of 5 U.S.C. 552a. In addition, systems of records
identified in paragraphs (c)(1), (c)(3), (c)(4), and (c)(5) below are
also exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from
subsections (c)(3), (d) and (e)(1). Finally, systems of records
identified in paragraphs (c)(1), (c)(2), (c) (3) and (c)(5) below are
also exempted pursuant to the provisions of 5 U.S.C. 552a(k)(1) from
subsections (c)(3), (d) and (e)(1):
(1) Air Intelligence Program (Justice/DEA-001)
(2) Investigative Reporting and Filing System (Justice/DEA-008)
(3) Planning and Inspection Division Records (Justice/DEA-010)
(4) Operations Files (Justice/DEA-011)
(5) Security Files (Justice/DEA-013)
(6) System to Retrieve Information from Drug Evidence (Stride/
Ballistics) (Justice/DEA-014)
(d) Exemptions apply to the following systems of records only to the
extent that information in the systems is subject to exemption pursuant
to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence Program
(Justice/DEA-001); Planning and Inspection Division Records (Justice/
DEA-010); and Security Files (Justice/DEA-013). Exemptions apply to the
Investigative Reporting and Filing System (Justice/DEA-008) only to the
extent that information in the system is subject to exemption pursuant
to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply to the Operations
Files (Justice/DEA-011) only to the extent that information in the
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and
(k)(2). Exemptions apply to the System to Retrieve Information from Drug
Evidence (STRIDE/Ballistics) (Justice/DEA-014) only to the extent that
information in the system is subject to exemption pursuant to 5 U.S.C.
552a(j)(2). Exemption from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) because release of disclosure accounting
would provide to the subjects of an investigation significant
information concerning the nature of the investigation
[[Page 342]]
and thus would present the same impediments to law enforcement as those
enumerated in paragraph (d)(3) regarding exemption from subsection (d).
(2) From subsection (c)(4) to the extent that it is not applicable
because an exemption is being claimed from subsection (d).
(3) From the access provisions of subsection (d) because access to
records in this system of records would present a serious impediment to
law enforcement. Specifically, it could inform the record subject of an
actual or potential criminal, civil, or regulatory investigation of the
existence of that investigation; of the nature and scope of the
information and evidence obtained as to his activities; of the identity
of confidential sources, witnesses, and law enforcement personnel; and
of information that may enable the subject to avoid detection or
apprehension. Similarly, it may alert collateral suspects yet
unprosecuted in closed cases. It could prevent the successful completion
of the investigation; endanger the life, health, or physical safety of
confidential sources, witnesses, and law enforcement personnel, and/or
lead to the improper influencing of witnesses, the destruction of
evidence, or the fabrication of testimony; or it may simply reveal a
sensitive investigative technique. In addition, granting access to such
information could result in the disclosure of confidential/security-
sensitive or other information that would constitute an unwarranted
invasion of the personal privacy of third parties. Finally, access to
the records could result in the release of properly classified
information which would compromise the national defense or disrupt
foreign policy. From the amendment provisions of subsection (d) because
amendment of the records would interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated.
(4) From subsection (e)(1) because the application of this provision
could impair investigations and interfere with the law enforcement
responsibilities of the DEA for the following reasons:
(i) It is not possible to detect relevance or necessity of specific
information in the early stages of a civil, criminal or other law
enforcement investigation, case, or matter, including investigations
during which DEA may obtain properly classified information. Relevance
and necessity are questions of judgment and timing, and it is only after
the information is evaluated that the relevance and necessity of such
information can be established.
(ii) During the DEA's investigative activities DEA may detect the
violation of either drug-related or non-drug related laws. In the
interests of effective law enforcement, it is necessary that DEA retain
all information obtained because it can aid in establishing patterns of
activity and provide valuable leads for Federal and other law
enforcement agencies or otherwise assist such agencies in discharging
their law enforcement responsibilities. Such information may include
properly classified information, the retention of which could be in the
interests of national defense and/or foreign policy.
(5) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to destroy
evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation cannot
be required to provide information to investigators, and information
relating to a subject's illegal acts must be obtained from other
sources.
(iii) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful prosecution.
(6) From subsection (e)(3) because the requirements thereof would
constitute a serious impediment to law enforcement in that they could
compromise the existence of an actual or potential confidential
investigation and/or permit the record subject to speculate on the
identity of a potential confidential source, and endanger the life,
health or
[[Page 343]]
physical safety or either actual or potential confidential informants
and witnesses, and of investigators/law enforcement personnel. In
addition, the notification requirement of subsection (e)(3) could impede
collection of that information from the record subject, making it
necessary to collect the information solely from third party sources and
thereby inhibiting law enforcement efforts.
(7) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions imposed by subsection (e)(5) would
restrict the ability of trained investigators and intelligence analysts
to exercise their judgment in reporting on investigations and impede the
development of criminal intelligence necessary for effective law
enforcement.
(8) From subsection (e)(8) because the application of this provision
could prematurely reveal an ongoing criminal investigation to the
subject of the investigation, and could reveal investigative techniques,
procedures, or evidence.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
(e) The following systems of records are exempt from 5 U.S.C. 552a
(d)(1) and (e)(1):
(1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
(2) DEA Applicant Investigations (Justice/DEA-018).
(f) These exemptions apply only to the extent that information in
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (d)(1) because many persons are contacted who,
without an assurance of anonymity, refuse to provide information
concerning an applicant for a grant of confidentiality with DEA. By
permitting access to information which may reveal the identity of the
source of that information--after a promise of confidentiality has been
given--DEA would breach the promised confidentiality. Ultimately, such
breaches would restrict the free flow of information which is vital to a
determination of an applicant's qualifications for a grant.
(2) From subsection (e)(1) because in the collection of information
for investigative and evaluation purposes, it is impossible to determine
in advance what exact information may be of assistance in determining
the qualifications and suitability of a candidate. Information which may
appear irrelevant, when combined with other apparently irrelevant
information, can on occasion provide a composite picture of an applicant
which assists in determining whether a grant of confidentiality is
warranted.
(g) The following system of records is exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2) and (3), (e)(5), (e)(8) and (g) of 5 U.S.C. 552a. In
addition, this system of records is exempted pursuant to the provisions
of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), (d), and
(e)(1):
Freedom of Information/Privacy Act Records (Justice/DEA-006)
(h) 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),
(k)(1), and (k)(2). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) for the reasons given in paragraphs
(b)(1) and (d)(1).
(2) From subsection (c)(4) to the extent that is not applicable
because an exemption is being claimed from subsection (d).
(3) From subsection (d) for the reasons given in paragraphs (b)(2),
(d)(3), and (f)(1).
(4) From subsection (e)(1) for reasons given in paragraphs (d)(4)
and (f)(2).
(5) From subsection (e)(2) for reasons given in paragraph (d)(5).
[[Page 344]]
(6) From subsection (e)(3) for reasons given in paragraph (d)(6).
(7) From subsection (e)(5) for reasons given in paragraph (d)(7).
(8) From subsection (e)(8) for the reasons given in paragraph
(d)(8).
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d) pursuant to
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
[Order No. 88-94, 59 FR 29717, June 9, 1994, as amended by Order No.
127-97, 62 FR 2903, Jan. 21, 1997]
Sec. 16.99 Exemption of the Immigration and Naturalization Service Systems-limited access.
(a) The following systems of records of the Immigration and
Naturalization Service are exempt from 5 U.S.C. 552a (c) (3) and (4),
(d), (e) (1), (2) and (3), (e) (4)(G) and (H), (e) (5) and (8), and (g):
(1) The Immigration and Naturalization Service Alien File (A-File)
and Central Index System (CIS), JUSTICE/INS-001A.
(2) The Immigration and Naturalization Service Index System,
JUSTICE/INS-001 which consists of the following subsystems:
(i) Agency Information Control Record Index.
(ii) Alien Enemy Index.
(iii) Congressional Mail Unit Index.
(iv) Air Detail Office Index.
(v) Anti-smuggling Index (general).
(vi) Anti-smuggling Information Centers Systems for Canadian and
Mexican Borders.
(vii) Border Patrol Sectors General Index System.
(viii) Contact Index.
(ix) Criminal, Narcotic, Racketeer and Subversive Indexes.
(x) Enforcement Correspondence Control Index System.
(xi) Document Vendors and Alterers Index.
(xii) Informant Index.
(xiii) Suspect Third Party Index.
(xiv) Examination Correspondence Control Index.
(xv) Extension Training Enrollee Index.
(xvi) Intelligence Index.
(xvii) Naturalization and Citizenship Indexes.
(xviii) Personnel Investigations Unit Indexes.
(xix) Service Look-Out Subsystem.
(xx) White House and Attorney General Correspondence Control Index.
(xxi) Fraudulent Document Center Index.
(xxii) Emergency Reassignment Index.
(xxiii) Alien Documentation, Identification, and Telecommunication
(ADIT) System.
The exemptions apply to the extent that information in these
subsystems is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and
(k)(2).
(3) The Immigration and Naturalization Service ``National Automated
Immigration Lookout System (NAILS) JUSTICE/INS-032.'' The exemptions
apply only to the extent that records in the system are subject to
exemptions pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting for disclosure pursuant to the routine uses published for
these subsystems would permit the subject of a criminal or civil
investigation to obtain valuable information concerning the nature of
that investigation and present a serious impediment to law enforcement.
(2) From subsection (c)(4) since an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(3) From subsection (d) because access to the records contained in
these subsystems would inform the subject of a criminal or civil
investigation of the existence of that investigation, provide the
subject of the investigation with information that might enable him to
avoid detection or apprehension, and present a serious impediment to law
enforcement.
(4) From subsection (e)(1) because in the course of criminal or
civil investigations, the Immigration and Naturalization Service often
obtains information concerning the violation of laws other than those
relating to violations over which INS has investigative jurisdiction. In
the interests of effective law enforcement, it is necessary
[[Page 345]]
that INS retain this information since it can aid in establishing
patterns of criminal activity and provide valuable leads for those law
enforcement agencies that are charged with enforcing other segments of
the criminal law.
(5) From subsection (e)(2) because in a criminal or civil
investigation, the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be placed on notice of the existence of the
investigation and would therefore be able to avoid detection or
apprehension.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life or physical safety of confidential
informants.
(7) From subsections (e)(4) (G) and (H) because these subsystems of
records are exempt from individual access pursuant to subsection (j) of
the Privacy Act of 1974.
(8) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of criminal intelligence necessary for effective law enforcement.
(9) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the Immigration and
Naturalization Service's ability to issue administrative subpoenas and
could reveal investigative techniques and procedures.
(10) From subsection (g) because these subsystems of records are
compiled for law enforcement purposes and have been exempted from the
access provisions of subsections (d) and (f).
(11) In addition, these systems of records are exempt from
subsections (c)(3), (d), (e)(1), (e)(4) (G) and (H) to the extent they
are subject to exemption pursuant to 5 U.S.C. 552a(k)(1). To permit
access to records classified pursuant to Executive Order would violate
the Executive Order protecting classified information.
(c) The Border Patrol Academy Index Subsystem is exempt from 5
U.S.C. 552a (d) and (f).
This exemption applies only to the extent that information in this
subsystem is subject to exemption pursuant to 5 U.S.C. 552a(k).
(d) Exemptions for the particular subsections are justified for the
following reasons.
(1) From subsection (d) because exemption is claimed only for those
testing and examination materials used to determine an individual's
qualifications for retention and promotion in the Immigration and
Naturalization Service. This is necessary to protect the integrity of
testing materials and to insure fair and uniform examinations.
(2) From subsection (f) because the subsystem of records has been
exempted from the access provisions of subsection (d).
(e) The Orphan Petitioner Index and Files (Justice/INS-007) system
of records is exempt from 5 U.S.C. 552a(d). This exemption applies only
to the extent that information in this system is subject to exemption
pursuant to 5 U.S.C. 552a(k)(1).
(f) Exemption from paragraph (d) of this section is claimed solely
because of the possibility of receipt of classified information during
the course of INS investigation of prospective adoptive parents.
Although it would be rare, prospective adoptive parents may originally
be from foreign countries (for example) and information received on them
from their native countries may require
[[Page 346]]
classification under Executive Order 12356 which safeguards national
security information. If such information is relevant to the INS
determination with respect to adoption, the information would be kept in
the file and would be classified accordingly. Therefore, access could
not be granted to the record subject under the Privacy Act without
violating E.O. 12356.
(g) The Office of Internal Audit Investigations Index and Records
(Justice/INS-002) system of records is exempt under the provisions of 5
U.S.C. 552a(j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2),
(3), (5) and (8); and (g), but only to the extent that this system
contains records within the scope of subsection (j)(2), and to the
extent that records in the system are subject to exemption therefrom. In
addition, this system of records is also exempt under the provisions of
5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only
to the extent that this system contains records within the scope of
subsection (k)(2), and to the extent that records in the system are
subject to exemption therefrom.
(h) The following justification apply to the exemptions from
particular subsections:
(1) From subsection (c)(3) because the release of the disclosure
accounting for disclosure could permit the subject of an actual or
potential criminal or civil investigation to obtain valuable information
concerning the existence and nature of the investigation, the fact that
individuals are subjects of the investigation, and present a serious
impediment to law enforcement.
(2) From subsection (c)(4) to the extent that the exemption from
subsection (d) is applicable. Subsection (c)(4) will not be applicable
to the extent that records in the system are properly withholdable under
subsection (d).
(3) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of a criminal or civil investigation of the existence
of that investigation; of the nature and scope of the information and
evidence obtained as to their activities; of the identity of
confidential sources, witnesses and law enforcement personnel; and of
information that may enable the subject to avoid detection or
apprehension. Such disclosures would present a serious impediment to
effective law enforcement where they prevent the successful completion
of the investigation; endanger the physical safety of confidential
sources, witnesses, and law enforcement personnel; and/or lead to the
improper influencing of witnesses, the destruction of evidence, or the
fabrication of testimony. In addition, granting access to these records
could result in a disclosure that would constitute an unwarranted
invasion of the privacy of third parties. Amendment of the records would
interfere with ongoing investigations and law enforcement activities and
impose an impossible administrative burden by requiring investigations
to be continuously reinvestigated.
(4) From subsection (e)(1) because in the course of criminal or
civil investigations, the Immigration and Naturalization Service often
obtains information concerning the violation of laws other than those
relating to violations over which INS has investigative jurisdiction, in
the interests of effective law enforcement, it is necessary that INS
retain this information since it can aid in establishing patterns of
criminal activity and provide valuable leads for those law enforcement
agencies that are charged with enforcing other segments of the criminal
law.
(5) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection or apprehension.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment of criminal
law enforcement in that it could compromise the existence of a
confidential investigation, reveal the identify of confidential sources
of information and endanger
[[Page 347]]
the life or physical safety of confidential informants.
(7) From subsection (e)(5) because in the collection of information
for criminal law enforcement purposes it is impossible to determine in
advance what information is accurate, relevant, timely, and complete.
With the passage of time, seemingly irrelevant or untimely information
may acquire new significance as further investigation brings new details
to light and the accuracy of such information can only be determined in
a court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of criminal intelligence necessary for effective law enforcement.
(8) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
criminal law enforcement as this could interfere with the Immigration
and Naturalization Service's ability to issue administrative subpoenas
and could reveal investigative techniques and procedures.
(9) From subsection (g) for those portions of this system of records
that were compiled for criminal law enforcement purposes and which are
subject to exemption from the access provisions of subsections (d)
pursuant to subsection (j)(2).
(i) The Law Enforcement Support Center Database (LESC) (Justice/INS-
023) system of records is exempt under the provisions of 5 U.S.C.
552a(j)(2) from subsections (c) (3) and (4); (d); (e) (1), (2), (3),
(5), (8) and (g); but only to the extent that this system contains
records within the scope of subsection (j)(2), and to the extent that
records in the system are subject to exemption therefrom. In addition,
this system of records is also exempt in part under the provisions of 5
U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only to
the extent that this system contains records within the scope of
subsection (k)(2), and to the extent that records in the system are
subject to exemption therefrom.
(j) The following justifications apply to the exemptions from
particular subsections:
(1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of
this section.
(2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of
this section.
(3) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
inform the subject of a criminal or civil investigation of the existence
of that investigation; of the nature and scope of the information and
evidence obtained as to their activities; and of information that may
enable the subject to avoid detection or apprehension. Such disclosures
would present a serious impediment to effective law enforcement where
they prevent the successful completion of the investigation or other law
enforcement operation such as deportation or exclusion. In addition,
granting access to these records could result in a disclosure that would
constitute an unwarranted invasion of the privacy of third parties.
Amendment of the records would interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated.
(4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of
this section.
(5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of
this section.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to criminal
law enforcement in that it could compromise the existence of a
confidential investigation.
(7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of
this section.
(8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of
this section.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d).
(k) The Attorney/Representative Complaint/Petition File (JUSTICE/
INS-022) system of records is exempt
[[Page 348]]
under the provisions of 5 U.S.C. 552a (j)(2) from subsections (c)(3) and
(4); (d); (e)(1), (2), (3), (5), and (8); and (g); but only to the
extent that this system contains records within the scope of subsection
(j)(2), and to the extent that records in this system are subject to
exemption therefrom. In addition, this system of records is also exempt
in part under the provisions of 5 U.S.C. 552a (k)(2) from subsections
(c)(3); (d); and (e)(1), but only to the extent that this system
contains records within the scope of subsection (k)(2), and to the
extent that records in this system are subject to exemption therefrom.
(l) The following justifications apply to the exemptions from
particular subsections:
(1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of
this section.
(2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of
this section.
(3) From the access and amendment provisions of subsection (d) for
reasons stated in paragraph (h)(3) of this section.
(4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of
this section.
(5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of
this section.
(6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of
this section.
(7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of
this section.
(8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of
this section.
(9) From subsection (g) to the extent that the system is exempt from
the access and amendment provisions of subsection (d).
(m) The Worksite Enforcement Activity and Records Index (LYNX)
(JUSTICE/INS-025) system of records is exempt under the provisions of 5
U.S.C. 552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2),
(3), (5), and (8); and (g); but only to the extent that this system
contains records within the scope of subsection (j)(2), and to the
extent that records in this system are subject to exemption therefrom.
In addition, this system of records is also exempt in part under the
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and
(e)(1), but only to the extent that this system contains records within
the scope of subsection (k)(2), and to the extent that records in this
system are subject to exemption therefrom.
(n) The following justifications apply to the exemptions from
particular subsections:
(1) From subsection (c)(3) for reasons started in paragraph (h)(1)
of this section.
(2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of
this section.
(3) From the access and amendment provisions of subsection (d) for
reasons sated in paragraph (h)(3) of this section.
(4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of
this section.
(5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of
this section.
(6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of
this section.
(7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of
this section.
(8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of
this section.
(9) From subsection (g) to the extent that the system is exempt from
the access and amendment provisions of subsection (d).
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
688-77, 42 FR 10001, Feb. 18, 1977; Order No. 6-84, 49 FR 20812, May 17,
1984; Order No. 25-88, 53 FR 41161, Oct. 20, 1988; Order No. 137-97, 62
FR 34169, June 25, 1997; Order No. 142-97, 62 FR 44083, Aug. 19, 1997;
Order No. 196-2000, 65 FR 21139, Apr. 20, 2000; Order No. 197-2000, 65
FR 21140, Apr. 20, 2000]
Sec. 16.100 Exemption of Office of Justice Programs--limited access.
(a) The following system of records is exempt from 5 U.S.C. 552a(d):
(1) The Civil Rights Investigative System (JUSTICE/OJP-008).
This exemption applies only to the extent that information in this
system is
[[Page 349]]
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(b) Exemption from subsection (d) is claimed since access to
information in the Civil Rights Investigative System prior to final
administrative resolution will deter conciliation and compliance
efforts. Consistent with the legislative purpose of the Privacy Act of
1974, decisions to release information from the system will be made on a
case-by-case basis and information will be made available where it does
not compromise the complaint and compliance process. In addition, where
explicit promises of confidentiality must be made to a source during an
investigation, disclosure will be limited to the extent that the
identity of such confidential sources will not be compromised.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
5-78, 43 FR 36439, Aug. 17, 1978; Order No. 43-80, 45 FR 6780, Jan. 30,
1980; Order No. 6-86, 51 FR 15479, Apr. 24, 1986; Order NO. 6-236-2001,
66 FR 35374, July 5, 2001]
Sec. 16.101 Exemption of U.S. Marshals Service Systems--limited access, as indicated.
(a) The following system of records is exempt from 5 U.S.C.
552(a)(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H),
(e)(5), (e)(8), (f) and (g):
(1) Warrant Information System (JUSTICE/USM-007).
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).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of disclosure
accounting for disclosure made pursuant to subsection (b) of the Act,
including those permitted under routine uses published for this system
of records would permit a person to determine whether he is the subject
of a criminal investigation, and to determine whether a warrant has been
issued against him, and therefore present a serious impediment to law
enforcement.
(2) From subsection (c)(4) since an exemption is being claimed for
subsection (d) of the Act, this section is inapplicable.
(3) From subsection (d) because access to records would inform a
person for whom a federal warrant has been issued of the nature and
scope of information obtained as to his activities, of the identity of
informants, and afford the person sufficient information to enable the
subject to avoid apprehension. These factors would present a serious
impediment to law enforcement in that they would thwart the warrant
process and endanger lives of informants etc.
(4) From subsections (e)(1) and (e)(5) because the requirements of
these subsections would present a serious impediment to law enforcement
in that it is impossible to determine in advance what information
collected during an investigation will be important or crucial to the
apprehension of Federal fugitives. In the interest of effective law
enforcement, it is appropriate in a thorough investigation to retain
seemingly irrelevant, untimely, or inaccurate information which, with
the passage of time, would aid in establishing patterns of activity and
provide investigative leads toward fugitive apprehension and assist in
law enforcement activities of other agencies.
(5) From subsection (e)(2) because the requirement that information
be collected to the greatest extent practical from the subject
individual would present a serious impediment to law enforcement because
the subject of the investigation or prosecution would be placed on
notice as to the existence of the warrant and would therefore be able to
avoid detection or apprehension.
(6) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation or reveal identity of confidential informants.
(7) From subsections (e)(4) (G) and (H) since an exemption is being
claimed for subsections (f) and (d) of the Act, these subsections are
inapplicable.
(8) From subsection (e)(8) because the individual notice requirement
of this subsection would present a serious impediment to law enforcement
in that it
[[Page 350]]
would give persons sufficient warning to avoid warrants, subpoena, etc.
(9) From subsection (f) because procedures for notice to an
individual pursuant to subsection (f)(1) as to existence of records
pertaining to him dealing with warrants must be exempted because such
notice to individuals would be detrimental to the successful service of
a warrant. Since an exemption is being claimed for subsection (d) of the
Act the rules required pursuant to subsections (f) (2) through (5) are
inapplicable to this system of records.
(10) From subsection (g) since an exemption is being claimed for
subsection (d) and (f) this section is inapplicable and is exempted for
the reasons set forth for these subsections.
(c) The following system of records is exempt from 5 U.S.C. 552a (c)
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f)(2)
and (g):
(1) Witness Security System (JUSTICE/USM-008).
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).
(d) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting for disclosures made pursuant to subsection (b) of the Act
including those permitted under routine uses published for this system
of records would hamper the effective functioning of the Witness
Security Program which by its very nature requires strict
confidentiality vis-a-vis the records.
(2) From subsection (c)(4) for the reason stated in (b)(2) of this
section.
(3) From subsection (d) because the U.S. Marshals Service Witness
Security Program aids efforts of law enforcement officials to prevent,
control or reduce crime. Access to records would present a serious
impediment to effective law enforcement through revelation of
confidential sources and through disclosure of operating procedures of
the program, and through increased exposure of the program to the
public.
(4) From subsection (e)(2) because in the Witness Security Program
the requirement that information be collected to the greatest extent
possible from the subject individual would constitute an impediment to
the program, which is sometimes dependent on sources other than the
subject witness for verification of information pertaining to the
witness.
(5) From subsection (e)(3) for the reason stated in (b)(6) of this
section.
(6) From subsection (e)(4) (G) and (H) for the reason stated in
(b)(7) of this section.
(7) From subsection (e)(8) for the reason stated in (b)(8) of this
section.
(8) From subsection (f)(2) since an exemption is being claimed for
subsection (d) of the Act the rules required pursuant to subsection (f)
(2) through (5) are inapplicable to this system of records.
(9) From subsection (g) for the reason stated in (b)(10) of this
section.
(e) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5),
(e)(8), (f) and (g).
(1) Internal Affairs System (JUSTICE/USM-002)--Limited access. 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), (k)(2) or (k)(5).
Where compliance would not interfere with or adversely affect the law
enforcement process, the USMS may waive the exemptions, either partially
or totally.
(f) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsections (c)(3) and (d) to the extent that release of
the disclosure accounting may impede or interfere with civil or criminal
law enforcement efforts, reveal a source who furnished information to
the Government in confidence, and/or result in an unwarranted invasion
of the personal privacy of collateral record subjects or other third
party individuals.
(2) From subsection (c)(4) for the reason stated in (b)(2) of this
section.
(3) From subsection (e)(1) to the extent that it is necessary to
retain all information in order not to impede, compromise, or interfere
with civil or criminal law enforcement efforts, e.g., where the
significance of the information may not be readily determined and/or
where such information may
[[Page 351]]
provide leads or assistance to Federal and other law agencies in
discharging their law enforcement responsibilities.
(4) From subsection (e)(2) because the requirement that information
be collected to the greatest extent practicable from the subject
individual would present a serious inpediment to law enforcement because
the subject of the investigation or prosecution would be placed on
notice as to the existence of the investigation and would therefore be
able to compromise the investigation and avoid detection or
apprehension.
(5) From subsection (e)(3) for the reason stated in (b)(6) of this
section.
(6) From subsections (e)(4) (G) and (H) for the reason stated in
(b)(7) of this section.
(7) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance and the accuracy of such information can only
be determined in a court of law. The restrictions imposed by subsection
(e)(5) would restrict the ability to collect information for law
enforcement purposes and interfere with the preparation of a complete
investigative report or otherwise impede effective law enforcement.
(8) From subsection (e)(8) because the individual notice requirement
of this subsection would present a serious impediment to law enforcement
in that the subject of the investigation would be alerted as to the
existence of the investigation and therefore be able to compromise the
investigation and avoid detection, subpoena, etc.
(9) From subsection (f) because procedures for notice to an
individual pursuant to subsection (f)(1) as to the existence of records
dealing with investigations of criminal or civil law violations would
enable the individual to compromise the investigation and evade
detection or apprehension. Since an exemption is being claimed for
subsection (d) of the Act, the rules required pursuant to subsections
(f)(2) through (f)(5) are not applicable to this system.
(10) From subsection (g) for the reason stated in (b)(10) of this
section.
(g) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5),
(e)(8), (f) and (g):
(1) U.S. Marshals Service Threat Analysis Information System
(JUSTICE/USM-009).
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).
(h) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because to release the disclosure
accounting would permit a person to determine whether he or she has been
identified as a specific threat to USMS protectees and to determine the
need for countermeasures to USMS protective activities and thereby
present a serious impediment to law enforcement.
(2) From subsection (c)(4) because it is inapplicable since an
exemption is being claimed for subsection (d).
(3) From subsection (d) because to permit access to records would
inform a person of the nature and scope of information obtained as to
his or her threat-related activities and of the identity of confidential
sources, and afford the person sufficient information to develop
countermeasures to thwart protective arrangements and endanger lives of
USMS protectees, informants, etc. To permit amendment of the records
would interfere with ongoing criminal law enforcement and impose an
impossible administrative burden requiring criminal investigations to be
continuously reinvestigated.
(4) From subsections (e) (1) and (5) because the collection of
investigatory information used to assess the existence, extent and
likelihood of a threat situation necessarily includes material from
which it is impossible to identify and segregate information which may
not be important to the conduct of a thorough assessment. It is often
impossible to determine in advance if all information collected is
accurate, relevent, timely and complete but, in the interests of
developing effective protective measures, it is necessary that the U.S.
Marshals Service retain
[[Page 352]]
this information in order to establish patterns of activity to aid in
accurately assessing threat situations. The restrictions of subsections
(e) (1) and (5) would impede the protective responsibilities of the
Service and could result in death or serious injury to Marshals Service
protectees.
(5) From subsection (e)(2) because to collect information from the
subject individual would serve notice that he or she is identified as a
specific threat to USMS protectees and would enable the subject
individual to develop countermeasures to protective activities and
thereby present a serious impediment to law enforcement.
(6) From subsection (e)(3) because to inform individuals as required
by this subsection would enable the subject individual to develop
countermeasures to USMS protective arrangements or identify confidential
sources and thereby present a serious impediment to law enforcement.
(7) From subsections (e)(4) (G) and (H) because they are
inapplicable since an exemption is being claimed for subsections (d) and
(f) of the Act.
(8) From subsection (e)(8) because to serve notice would give
persons sufficient warning to develop countermeasures to protective
arrangements and thereby present a serious impediment to law enforcement
through compromise of protective procedures, etc.
(9) From subsection (f) because this system of records is exempt
from the provisions of subsection (d).
(10) From subsection (g) because it is inapplicable since an
exemption is being claimed for subsections (d) and (f).
(i) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (d):
(1) Judicial Facility Security Index System (JUSTICE/USM-010)
These exemptions apply only to the extent that information in this
system is exempt pursuant to 5 U.S.C. 552a(k)(5).
(j) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) only to the extent that release of the
disclosure accounting would reveal the identity of a confidential
source.
(2) From subsection (d) only to the extent that access to
information would reveal the identity of a confidential source.
(k) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5),
(e)(8), (f) and (g):
(1) U.S. Marshals Service Freedom of Information/Privacy Act (FOIA/
PA) Files (JUSTICE/USM-012).
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), (k)(2)
and (k)(5).
(l) Because this system contains Department of Justice civil and
criminal law enforcement, investigatory records, exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because to release the disclosure
accounting would permit the subject of an investigation to obtain
valuable information concerning the existence and nature of the
investigation and present a serious impediment to law enforcement.
(2) From subsection (c)(4) because that portion of this system which
consists of investigatory records compiled for law enforcement purposes
is being exempted from the provisions of subsection (d), rendering this
provision not applicable.
(3) From subsection (d) because to permit access to investigatory
records would reveal the identity of confidential sources and impede
ongoing investigative or law enforcement activities by the premature
disclosure of information related to those efforts. To permit amendment
of the records would interfere with ongoing criminal law enforcement and
impose an impossible administrative burden by requiring criminal
investigations to be continuously reinvestigated.
(4) From subsections (e) (1) and (5) because it is often impossible
to determine in advance if investigatory records contained in this
system are accurate, relevant, timely and complete but, in the interests
of effective law enforcement, it is necessary to retain this information
to aid in establishing patterns of activity and provide leads in
criminal investigations.
(5) From subsection (e)(2) because to collect information from the
subject individual would serve notice that he
[[Page 353]]
or she is the subject of criminal investigative or law enforcement
activity and thereby present a serious impediment to law enforcement.
(6) From subsection (e)(3) because to inform individuals as required
by this subsection would enable the subject individual to identify
confidential sources, reveal the existence of an investigation, and
compromise law enforcement efforts.
(7) From subsections (e)(4) (G) and (H) because they are
inapplicable since an exemption is being claimed for subsections (d) and
(f) for investigatory records contained in this system.
(8) From subsection (e)(8) because to serve notice would give
persons sufficient warning to evade law enforcement efforts.
(9) From subsection (f) because investigatory records contained in
this system are exempt from the provisions of subsection (d).
(10) From subsection (g) because it is inapplicable since an
exemption is being claimed for subsections (d) and (f).
(m) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f) and
(g):
(1) U.S. Marshals Service Administrative Proceedings, Claims and
Civil Litigation Files (JUSTICE/USM-013).
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) or
(k)(5).
(n) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because to release the disclosure
accounting for disclosures pursuant to the routine uses published for
this system would permit the subject of a criminal or civil case or
matter under investigation, or a case or matter in litigation, or under
regulatory or administrative review or action, to obtain valuable
information concerning the nature of that investigation, case or matter,
and present a serious impediment to law enforcement or civil legal
activities, or reveal a confidential source.
(2) From subsection (c)(4) because the exemption claimed for
subsection (d) will make this section inapplicable.
(3) From subsection (d) because to permit access to records
contained in this system would provide information concerning litigation
strategy, or case development, and/or reveal the nature of the criminal
or civil case or matter under investigation or administrative review, or
in litigation, and present a serious impediment to law enforcement or
civil legal activities, or reveal a confidential source.
(4) From subsection (e)(2) because effective legal representation,
defense, or claim adjudication necessitates collecting information from
all individuals having knowledge of the criminal or civil case or
matter. To collect information primarily from the subject individual
would present a serious impediment to law enforcement or civil legal
activities.
(5) From subsection (e)(3) because to inform the individuals as
required by this subsection would permit the subject of a criminal or
civil matter under investigation or administrative review to compromise
that investigation or administrative review and thereby impede law
enforcement efforts or civil legal activities.
(6) From subsections (e)(4) (G) and (H) because these provisions are
inapplicable since this system is exempt from subsections (d) and (f) of
the Act.
(7) From subsection (e)(8) because to serve notice would give
persons sufficient warning to compromise a criminal or civil
investigation or administrative review and thereby impede law
enforcement of civil legal activities.
(8) From subsection (f) because this system of records is exempt
from the provisions of subsection (d).
(9) From subsection (g) because it is inapplicable since an
exemption is claimed for subsections (d) and (f).
(o) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2), (5) and (g):
(1) U.S. Marshals Service Prisoner Transportation System (JUSTICE/
USM-003).
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).
(p) Exemptions from the particular subsections are justified for the
following reasons:
[[Page 354]]
(1) From subsection (c)(3) where the release of the disclosure
accounting for disclosures made pursuant to subsection (b) of the Act
would reveal a source who furnished information to the Government in
confidence.
(2) From subsection (c)(4) to the extent that the system is exempt
from subsection (d).
(3) From subsection (d) because access to records would reveal the
names and other information pertaining to prisoners, including sensitive
security information such as the identities and locations of
confidential sources, e.g., informants and protected witnesses; and
disclose access codes, data entry codes and message routing symbols used
in law enforcement communications systems to schedule and effect
prisoner movements. Thus, such a compromise of law enforcement
communications systems would subject law enforcement personnel and other
prisoners to harassment and possible danger, and present a serious
threat to law enforcement activities. To permit amendment of the records
would interfere with ongoing criminal law enforcement and impose an
impossible administrative burden by requiring that information affecting
the prisoner's security classification be continuously reinvestigated
when contested by the prisoner, or by anyone on his behalf.
(4) From subsections (e) (1) and (5) because the security
classification of prisoners is based upon information collected during
official criminal investigations; and, in the interest of ensuring safe
and secure prisoner movements it may be necessary to retain information
the relevance, necessity, accuracy, timeliness, and completeness of
which cannot be readily established, but which may subsequently prove
useful in establishing patterns of criminal activity or avoidance, and
thus be essential to assigning an appropriate security classification to
the prisoner. The restrictions of subsection (e) (1) and (5) would
impede the information collection responsibilities of the USMS, and the
lack of all available information could result in death or serious
injury to USMS and other law enforcement personnel, prisoners in
custody, and members of the public.
(5) From subsection (e)(2) because the requirement to collect
information from the subject individual would impede the information
collection responsibilities of the USMS in that the USMS is often
dependent upon sources other than the subject individual for
verification of information pertaining to security risks posed by the
individual prisoner.
(6) From subsection (g) to the extent that the system is exempt from
subsection (d).
(q) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1), (2), (3), (e)(5) and (e)(8) and (g):
(1) U.S. Marshals Service Prisoner Processing and Population
Management System (JUSTICE/USM-005).
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).
(r) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because to release the disclosure
accounting would permit the subject of a criminal proceeding to
determine the extent or nature of law enforcement authorities' knowledge
regarding his/her alleged misconduct or criminal activities. The
disclosure of such information could alert the subject to devise ways in
which to conceal his/her activities and/or prevent law enforcement from
learning additional information about his/her activities, or otherwise
inhibit law enforcement efforts. In addition, where the individual is
the subject of an ongoing or potential inquiry/investigation, such
release could reveal the nature thereof prematurely, and may also enable
the subject to determine the identity of witnesses and informants. Such
disclosure could compromise the ongoing or potential inquiry/
investigation, endanger the lives of witnesses and informants, or
otherwise impede or thwart law enforcement efforts.
(2) From subsection (c)(4) to the extent that the system is exempt
from subsection (d).
(3) From subsection (d) because to permit unlimited access would
permit the subject of a criminal proceeding to determine the extent or
nature of law
[[Page 355]]
enforcement authorities' knowledge regarding his/her alleged misconduct
or criminal activities. The disclosure of such information could alert
the subject to devise ways in which to conceal his/her activities and/or
prevent law enforcement from learning additional information about his/
her activities, or otherwise inhibit law enforcement efforts. Disclosure
would also allow the subject to obtain sensitive information concerning
the existence and nature of security measures and jeopardize the safe
and secure transfer of the prisoner, the safety and security of other
prisoners, informants and witnesses, law enforcement personnel, and the
public. In addition, disclosure may enable the subject to learn
prematurely of an ongoing or potential inquiry/investigation, and may
also permit him/her to determine the identities of confidential sources,
informants, or protected witnesses. Such disclosure could compromise the
ongoing or potential inquiry/investigation, endanger the lives of
witnesses and informants, or otherwise impede or thwart law enforcement
efforts. Disclosure may also constitute an unwarranted invasion of the
personal privacy of third parties. Further, disclosure would reveal
access codes, data entry codes and message routing symbols used in law
enforcement communications systems. Access to such codes and symbols
would permit the subject to impede the flow of law enforcement
communications and compromise the integrity of law enforcement
information, and thus present a serious threat to law enforcement
activities. To permit amendment of the records would expose security
matters, and would impose an impossible administrative burden by
requiring that security precautions, and information pertaining thereto,
be continuously reevaluated if contested by the prisoner, or by anyone
on his or her behalf. Similarly, to permit amendment could interfere
with ongoing or potential inquiries/investigations by requiring that
such inquiries/investigations be continuously reinvestigated, or that
information collected (the relevance and accuracy of which cannot
readily be determined) be subjected to continuous change.
(4) From subsections (e)(1) and (5) because the system may contain
investigatory information or information which is derived from
information collected during official criminal investigations. In the
interest of effective law enforcement and litigation, of securing the
prisoner and of protecting the public, it may be necessary to retain
information the relevance, necessity, accuracy, timeliness and
completeness of which cannot be readily established. Such information
may nevertheless provide investigative leads to other Federal or law
enforcement agencies, or prove necessary to establish patterns of
criminal activity or behavior, and/or prove essential to the safe and
secure detention (and movement) of prisoners. Further, the provisions of
(e)(1) and (e)(5) would restrict the ability of the USMS in exercising
its judgment in reporting information during investigations or during
the development of appropriate security measures, and thus present a
serious impediment to law enforcement efforts.
(5) From subsection (e)(2) because the requirement to collect
information from the subject individual would impede the information
collection responsibilities of the USMS which is often dependent upon
sources other than the subject individual for verification of
information pertaining to security risks posed by the individual
prisoner, to alleged misconduct or criminal activity of the prisoner, or
to any matter affecting the safekeeping and disposition of the
individual prisoner.
(6) From subsection (e)(3) because to inform individuals as required
by this subsection could impede the information gathering process,
reveal the existence of an ongoing or potential inquiry/investigation or
security procedure, and compromise law enforcement efforts.
(7) From subsection (e)(8) because to serve notice would give
persons sufficient warning to compromise an ongoing or potential
inquiry/investigation and thereby evade and impede law enforcement and
security efforts.
(8) From subsection (g) to the extent that the system is exempt from
subsection (d).
(s) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4),
[[Page 356]]
(d), (e) (1), (2), (3), (e) (5) and (e) (8) and (g):
Joint Automated Booking Stations, Justice/USM-014
(t) These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
Where compliance would not interfere with or adversely affect the law
enforcement process, the USMS may waive the exemptions, either partially
or totally. Exemption from the particular subsections are justified for
the following reasons:
(1) From subsections (c)(3) and (d) to the extent that access to
records in this system of records may impede or interfere with law
enforcement efforts, result in the disclosure of information that would
constitute and unwarranted invasion of the personal privacy of
collateral record subjects or other third parties, and/or jeopardize the
health and/or safety of third parties.
(2) Where access to certain records may be appropriate, exemption
from the amendment provisions of subsection (d)(2) in necessary to the
extent that the necessary and appropriate justification, together with
proof of record inaccuracy, is not provided, and/or to the extent that
numerous, frivolous requests to amend could impose an impossible
administrative burden by requiring agencies to continuously review
booking and arrest data, much of which is collected from the arrestee
during the arrest.
(3) From subsection (e)(1) to the extent that it is necessary to
retain all information in order not to impede, compromise, or interfere
with law enforcement efforts, e.g., where the significance of the
information may not be readily determined and/or where such information
may provide leads or assistance to Federal and other law enforcement
agencies in discharging their law enforcement responsibilities.
(4) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement since it may be necessary to obtain and verify information
from a variety of sources other than the record subject to ensure
safekeeping, security, and effective law enforcement. For example, it
may be necessary that medical and psychiatric personnel provide
information regarding the subject's behavior, physical health, or mental
stability, etc. To ensure proper care while in custody, or it may be
necessary to obtain information from a case agent or the court to ensure
proper disposition of the subject individual.
(5) From subsection (e)(3) because the requirement that agencies
inform each individual whom it asks to supply information of such
information as is required by subsection (e)(3) may, in some cases,
impede the information gathering process or otherwise interfere with or
compromise law enforcement efforts, e.g., the subject may deliberately
withhold information, or give erroneous information.
(6) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance and the accuracy of such information can only
be determined in a court of law. The restrictions imposed by subsection
(e)(5) would restrict the ability to collect information for law
enforcement purposes and may prevent the eventual development of the
necessary criminal intelligence or otherwise impede effective law
enforcement.
(7) From subsection (e)(8) to the extent that such notice may
impede, interfere with, or otherwise compromise law enforcement and
security efforts.
(8) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d).
(u) Consistent with the legislative purpose of the Privacy Act of
1974, the United States Marshals Service will grant access to nonexempt
material in records which are maintained by the Service. Disclosure will
be governed by the Department's Privacy Regulations, but will be limited
to the extent that the identity of confidential sources will not be
compromised; subjects of an investigation of an actual or potential
criminal, civil or regulatory violation will not be alerted to the
investigation;
[[Page 357]]
the physical safety of witnesses, informants and law enforcement
personnel will not be endangered; the privacy of third parties will not
be violated; and that the disclosure would not otherwise impede
effective law enforcement. Whenever possible, information of the above
nature will be deleted from the requested documents and the balance made
available. The controlling principle behind this limited access is to
allow disclosures except those indicated above. The decisions to release
information from these systems will be made on a case-by-case basis.
[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No.
8-83, 48 FR 19024, Apr. 27, 1983; Order No. 10-86, 51 FR 20275, June 4,
1986; Order No. 11-86, 51 FR 20277, June 4, 1986; Order No. 61-92, 57 FR
3284, Jan. 29, 1992; Order No. 66-92, 57 FR 20654, May 14, 1992; Order
No. 105-95, 60 FR 30467, June 9, 1995; Order No. 212-2001, 66 FR 6470,
Jan. 22, 2001]
Sec. 16.102 Exemption of Drug Enforcement Administration and Immigration and Naturalization Service Joint System of Records.
(a) The following system of records is exempted pursuant to
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d),
(e) (1), (2) and (3), (e)(4) (G), (H), and (I), (e)(5) and (8), (f),
(g), and (h) of 5 U.S.C. 552a; in addition the following system of
records is exempted pursuant to the provisions of 5 U.S.C. 552 (k)(1)
and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and
(I), and (f) of 5 U.S.C. 552a.
(1) Automated Intelligence Record System (Pathfinder), JUSTICE/DEA-
INS-111.
These exemptions apply to the extent that information in those systems
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and
(k)(2).
(b) The system of records listed under paragraph (a) of this section
is exempted, for the reasons set forth from the following provisions of
5 U.S.C. 552a:
(1)(c)(3). The release of the disclosure accounting for disclosures
made pursuant to subsection (b) of the Act, including those permitted
under the routine uses published for these systems of records, would
permit the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to determine whether he is the
subject of investigation, or to obtain valuable information concerning
the nature of that investigation, and the information obtained, or the
identity of witnesses and informants and would therefore present a
serious impediment to law enforcement. In addition, disclosure of the
accounting would amount to notice to the individual of the existence of
a record; such notice requirement under subsection (f)(1) is
specifically exempted for these systems of records.
(2)(c)(4). Since an exemption is being claimed for subsection (d) of
the Act (Access to Records) this subsection is inapplicable to the
extent that these systems of records are exempted from subsection (d).
(3)(d). Access to the records contained in these systems would
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation of the existence of that
investigation, or the nature and scope of the information and evidence
obtained as to his activities, of the identity of witnesses and
informants, or would provide information that could enable the subject
to avoid detection or apprehension. These factors would present a
serious impediment to effective law enforcement because they could
prevent the successful completion of the investigation, endanger the
physical safety of witnesses or informants, and lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony.
(4)(e)(1). The notices of these systems of records published in the
Federal Register set forth the basic statutory or related authority for
maintenance of this system. However, in the course of criminal or other
law enforcement investigations, cases, and matters, the Immigration and
Naturalization Service or the Drug Enforcement Administration will
occasionally obtain information concerning actual or potential
violations of law that are not strictly within its statutory or other
authority or may compile information in the course of an investigation
which may not be relevant to a specific prosecution. In the interests of
effective law enforcement, it is necessary to retain such information in
these systems of
[[Page 358]]
records since it can aid in establishing patterns of criminal activity
and can provide valuable leads for federal and other law enforcement
agencies.
(5)(e)(2). In a criminal investigation or prosecution, the
requirement that information be collected to the greatest extent
practicable from the subject individual would present a serious
impediment to law enforcement because the subject of the investigation
or prosecution would be placed on notice as to the existence of the
investigation and would therefore be able to avoid detection or
apprehension, to influence witnesses improperly, to destroy evidence, or
to fabricate testimony.
(6)(e)(3). The requirement that individuals supplying information be
provided with a form stating the requirements of subsection (e)(3) would
constitute a serious impediment to law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(7)(e)(4) (G) and (H). Since an exemption is being claimed for
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act
these subsections are inapplicable to the extent that these systems of
records are exempted from subsections (f) and (d).
(8)(e)(4)(I). The categories of sources of the records in these
systems have been published in the Federal Register in broad generic
terms in the belief that this is all that subsection (e)(4)(I) of the
Act requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in these systems, exemption from this provision is necessary in
order to protect the confidentiality of the sources of criminal and
other law enforcement information. Such exemption is further necessary
to protect the privacy and physical safety of witnesses and informants.
(9)(e)(5). In the collection of information for criminal law
enforcement purposes it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can often only be determined
in a court of law. The restrictions of subsection (e)(5) would restrict
the ability of trained investigators, intelligence analysts, and
government attorneys in exercising their judgment in reporting on
information and investigations and impede the development of criminal or
other intelligence necessary for effective law enforcement.
(10)(e)(8). The individual notice requirements of subsection (e)(8)
could present a serious impediment to law enforcement as this could
interfere with the ability to issue warrants or subpoenas and could
reveal investigative techniques, procedures, or evidence.
(11)(f). Procedures for notice to an individual pursuant to
subsection (f)(1) as to the existence of records pertaining to him
dealing with an actual or potential criminal, civil, or regulatory
investigation or prosecution must be exempted because such notice to an
individual would be detrimental to the successful conduct and/or
completion of an investigation or prosecution pending or future. In
addition, mere notice of the fact of an investigation could inform the
subject or others that their activities are under or may become the
subject of an investigation and could enable the subjects to avoid
detection or apprehension, to influence witnesses improperly, to destroy
evidence, or to fabricate testimony.
Since an exemption is being claimed for subsection (d) of the Act
(Access to Records) the rules required pursuant to subsections (f) (2)
through (5) are inapplicable to these systems of records to the extent
that these systems of records are exempted from subsection (d).
(12)(g). Since an exemption is being claimed for subsections (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted for the reasons set forth for those subsections, to the
extent that these systems of records are exempted from subsections (d)
and (f).
(13)(h). Since an exemption is being claimed for subsection (d)
(Access to Records) and (f) (Agency Rules) this section is inapplicable,
and is exempted
[[Page 359]]
for the reasons set forth for those subsections, to the extent that
these systems of records are exempted from subsections (d) and (f).
(14) In addition, exemption is claimed for these systems of records
from compliance with the following provisions of the Privacy Act of 1974
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1):
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) to
the extent that the records contained in these systems are specifically
authorized to be kept secret in the interests of national defense and
foreign policy.
[Order No. 742-77, 42 FR 40907, Aug. 12, 1977]
Sec. 16.103 Exemption of the INTERPOL-United States National Central Bureau (INTERPOL-USNCB) System.
(a) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5) and
(8), (f) and (g):
(1) The INTERPOL-United States National Central Bureau (INTERPOL-
USNCB) (Department of Justice) INTERPOL-USNCB Records System (JUSTICE/
INTERPOL-001).
This exemption applies only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2),
and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because the release of accounting
disclosures would place the subject of an investigation on notice that
he is under investigation and provide him with significant information
concerning the nature of the investigation, thus resulting in a serious
impediment to law enforcement.
(2) From subsections (c)(4), (d), (e)(4) (G), and (H), (f) and (g)
because these provisions concern individual access to records and such
access might compromise ongoing investigations reveal investigatory
techniques and confidential informants, and invade the privacy of
private citizens who provide information in connection with a particular
investigation.
(3) From subsection (e)(1) because information received in the
course of an international criminal investigation may involve a
violation of state or local law, and it is beneficial to maintain this
information to provide investigative leads to state and local law
enforcement agencies.
(4) From subsection (e)(2) because collecting information from the
subject of criminal investigations would thwart the investigation by
placing the subject on notice.
(5) From subsection (e)(3) because supplying an individual with a
statement of the intended use of the requested information could
compromise the existence of a confidential investigation, and may
inhibit cooperation.
(6) From subsection (e)(5) because the vast majority of these
records come from local criminal justice agencies and it is
administratively impossible to ensure that the records comply with this
provision. Submitting agencies are, however, urged on a continuting
basis to ensure that their records are accurate and include all
dispositions.
(7) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to law enforcement by
revealing investigative techniques, procedures, and the existence of
confidential investigations.
[Order No. 8-82, 47 FR 44255, Oct. 7, 1982, as amended by Order No. 6-
86, 51 FR 15479, Apr. 24, 1986]
Sec. 16.104 Exemption of Office of Special Counsel--Waco System.
(a) The following system of records is exempted from subsections
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5) and
(8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k):
CaseLink Document Database for Office of Special Counsel--Waco, JUSTICE/
OSCW-001. These exemptions apply only to the extent that information in
a record is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k).
(b) Only that portion of this system which consists of criminal or
civil investigatory information is exempted for the reasons set forth
from the following subsections:
(1) Subsection (c)(3). To provide the subject of a criminal or civil
matter or case under investigation with an accounting of disclosures of
records concerning him or her would inform that individual of the
existence, nature, or
[[Page 360]]
scope of that investigation and thereby seriously impede law enforcement
efforts by permitting the record subject and other persons to whom he
might disclose the records to avoid criminal penalties and civil
remedies.
(2) Subsection (c)(4). This subsection is inapplicable to the extent
that an exemption is being claimed for subsection (d).
(3) Subsection (d)(1). Disclosure of investigatory information could
interfere with the investigation, reveal the identity of confidential
sources, and result in an unwarranted invasion of the privacy of others.
(4) Subsection (d)(2). Amendment of the records would interfere with
ongoing criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(5) Subsections (d)(3) and (4). These subsections are inapplicable
to the extent exemption is claimed from (d)(1) and (2).
(6) Subsections (e)(1) and (5). It is often impossible to determine
in advance if investigatory records contained in this system are
accurate, relevant, timely and complete; but, in the interests of
effective law enforcement, it is necessary to retain this information to
aid in establishing patterns of activity and provide leads in criminal
investigations.
(7) Subsection (e)(2). To collect information from the subject
individual would serve notice that he or she is the subject of criminal
investigative or law enforcement activity and thereby present a serious
impediment to law enforcement.
(8) Subsection (e)(3). To inform individuals as required by this
subsection would reveal the existence of an investigation and compromise
law enforcement efforts.
(9) Subsection (e)(8). To serve notice would give persons sufficient
warning to evade law enforcement efforts.
(10) Subsection (g). This subsection is inapplicable to the extent
that the system is exempt from other specific subsections of the Privacy
Act.
[Order No. 208-2000, 65 FR 75160, Dec. 1, 2000]
Sec. 16.130 Exemption of Department of Justice Systems:
Correspondence Management Systems for the Department of Justice (DOJ-003); Freedom of Information Act,
Privacy Act and Mandatory Declassification Review Requests and
Administrative Appeals for the Department of Justice (DOJ-
004).
(a) The following Department of Justice systems of records are
exempted from subsections (c)(3) and (4); (d)(1), (2), (3) and (4);
(e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act pursuant to 5
U.S.C. 552a(j) and (k). These exemptions apply only to the extent that
information in a record is subject to exemption pursuant to 5 U.S.C.
552a(j) and (k).
(1) Correspondence Management Systems (CMS) for the Department of
Justice (DOJ), DOJ/003.
(2) Freedom of Information Act, Privacy Act, and Mandatory
Declassification Review Requests and Administrative Appeals for the
Department of Justice (DOJ), DOJ/004.
(b) These systems are exempted for the reasons set forth from the
following subsections:
(1) Subsection (c)(3). To provide the subject of a criminal, civil,
or counterintelligence matter or case under investigation with an
accounting of disclosures of records concerning him or her could inform
that individual of the existence, nature, or scope of that
investigation, and thereby seriously impede law enforcement or
counterintelligence efforts by permitting the record subject and other
persons to whom he might disclose the records to avoid criminal
penalties, civil remedies, or counterintelligence measures.
(2) Subsection (c)(4). This subsection is inapplicable to the extent
that an exemption is being claimed for subsection (d).
(3) Subsection (d)(1). Disclosure of investigatory information could
interfere with the investigation, reveal the identity of confidential
sources, and result in an unwarranted invasion of the privacy of others.
Disclosure of classified national security information would cause
damage to the national security of the United States.
(4) Subsection (d)(2). Amendment of the records would interfere with
ongoing criminal or civil law enforcement
[[Page 361]]
proceedings and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated.
(5) Subsections (d)(3) and (4). These subsections are inapplicable
to the extent exemption is claimed from (d)(1) and (2).
(6) Subsection (e)(1). It is often impossible to determine in
advance if investigatory records contained in this system are accurate,
relevant, timely and complete, but, in the interests of effective law
enforcement and counterintelligence, it is necessary to retain this
information to aid in establishing patterns of activity and provide
investigative leads.
(7) Subsection (e)(2). To collect information from the subject
individual could serve notice that he or she is the subject of a
criminal investigation and thereby present a serious impediment to such
investigations.
(8) Subsection (e)(3). To inform individuals as required by this
subsection could reveal the existence of a criminal investigation and
compromise investigative efforts.
(9) Subsection (e)(5). It is often impossible to determine in
advance if investigatory records contained in this system are accurate,
relevant, timely and complete, but, in the interests of effective law
enforcement, it is necessary to retain this information to aid in
establishing patterns of activity and provide investigative leads.
(10) Subsection (e)(8). To serve notice could give persons
sufficient warning to evade investigative efforts.
(11) Subsection (g). This subsection is inapplicable to the extent
that the system is exempt from other specific subsections of the Privacy
Act.
[Order No. 241-2001, 66 FR 41445, Aug. 8, 2001; 66 FR 43308, Aug. 17,
2001]
Sec. 16.131 Exemption of Department of Justice (DOJ)/Nationwide Joint Automated Booking System (JABS), DOJ-005.
(a) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G) and (H), (e)(5) and
(8), (f) and (g): Nationwide Joint Automated Booking System, Justice/
DOJ-005. These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and
(k)(2). Where compliance would not interfere with or adversely affect
the law enforcement process, the DOJ may waive the exemptions, either
partially or totally.
(b) Exemption from the particular subsections are justified for the
following reasons:
(1) From subsections (c)(3), (c)(4), and (d) to the extent that
access to records in this system of records may impede or interfere with
law enforcement efforts, result in the disclosure of information that
would constitute an unwarranted invasion of the personal privacy of
collateral record subjects or other third parties, and/or jeopardize the
health and/or safety of third parties.
(2) From subsection (e)(1) to the extent that it is necessary to
retain all information in order not to impede,compromise, or interfere
with law enforcement efforts, e.g., where the significance of the
information may not be readily determined and/or where such information
may provide leads or assistance to Federal and other law enforcement
agencies in discharging their law enforcement responsibilities.
(3) From subsection (e)(2) because, in some instances, the
application of this provision would present a serious impediment to law
enforcement since it may be necessary to obtain and verify information
from a variety to sources other than the record subject to ensure
safekeeping, security, and effective law enforcement. For example, it
maybe necessary that medical and psychiatric personnel provide
information regarding the subject's behavior, physical. health, or
mental stability, etc. to ensure proper care while in custody, or it may
be necessary to obtain information from a case agent or the court to
ensure proper disposition of the subject individual.
(4) From subsection (e)(3) because the requirement that agencies
inform each individual whom it asks to supply information of such
information as is required by subsection (e)(3) may, in some cases,
impede the information
[[Page 362]]
gathering process or otherwise interfere with or compromise law
enforcement efforts, e.g., the subject may deliberately withhold
information, or give erroneous information.
(5) From subsection (4)(G) and(H) because the application of these
provisions would present a serious impediment to law enforcement
efforts.
(6) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance and the accuracy of such information can only
be determined in a court of law. The restrictions imposed by subsection
(e)(5) would restrict the ability to collect information for law
enforcement purposes, may prevent the eventual development of the
necessary criminal intelligence, or otherwise impede law enforcement or
delay trained law enforcement personnel from timely exercising their
judgment in managing the arrestee.
(7) From subsection (e)(8) to the extent that such notice may
impede, interfere with, or otherwise compromise law enforcement and
security efforts.
(8) From subsection 5 U.S.C. 552a(f) to the extent that compliance
with the requirement for procedures providing individual access to
records, compliance could impede, compromise, or interfere with law
enforcement efforts.
(9) From subsection (g) to the extent that this system is exempt
from the access and amendment provisions of subsection (d).
[Order No. 242-2001, 66 FR 41445, Aug. 8, 2001; 66 FR 44308, Aug. 17,
2001]
Subpart F--Public Observation of Parole Commission Meetings
Source: 42 FR 14713, Mar. 16, 1977, unless otherwise noted.
Sec. 16.200 Definitions.
As used in this part:
(a) The term Commission means the U.S. Parole Commision and any
subdivision thereof authorized to act on its behalf.
(b) The term meeting refers to the deliberations of at least the
number of Commissioners required to take action on behalf of the
Commission where such deliberations determine or result in the joint
conduct or disposition of official Commission business.
(c) Specifically included in the term meeting are;
(1) Meetings of the Commission required to be held by 18 U.S.C.
4203(a);
(2) Special meetings of the Commission called pursuant to 18 U.S.C.
4204(a)(1);
(3) Meetings of the National Commissioners in original jurisdiction
cases pursuant to 28 CFR 2.17(a);
(4) Meetings of the entire Commission to determine original
jurisdiction appeal cases pursuant to 28 CFR 2.27; and
(5) Meetings of the National Appeals Board pursuant to 28 CFR 2.26.
(6) Meetings of the Commission to conduct a hearing on the record in
conjunction with applications for certificates of exemption under
section 504(a) of the Labor-Management Reporting and Disclosure Act of
1959, and section 411 of the Employee Retirement Income Security Act of
1974 (28 CFR 4.1-17 and 28 CFR 4a.1-17).\1\
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\1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
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(d) Specifically excluded from the term meeting are:
(1) Determination made through independent voting of the
Commissioners without the joint deliberation of the number of
Commissioners required to take such action, pursuant to Sec. 16.201;
(2) Original jurisdiction cases determined by sequential vote
pursuant to 28 CFR 2.17;
(3) Cases determined by sequential vote pursuant to 28 CFR 2.24 and
2.25;
(4) National Appeals Board cases determined by sequential vote
pursuant to 28 CFR 2.26;
(5) Meetings of special committees of Commissioners not constituting
a quorum of the Commission, which may be established by the Chairman to
report and make recommendations to the
[[Page 363]]
Commission or the Chairman on any matter.
(6) Determinations required or permitted by these regulations to
open or close a meeting, or to withhold or disclose documents or
information pertaining to a meeting.
(e) All other terms used in this part shall be deemed to have the
same meaning as identical terms used in chapter I, part 2 of this title.
[42 FR 14713, Mar. 16, 1977, as amended at 43 FR 4978, Feb. 7, 1978]
Sec. 16.201 Voting by the Commissioners without joint deliberation.
(a) Whenever the Commission's Chairman so directs, any matter which
(1) does not appear to require joint deliberation among the members of
the Commission, or (2) by reason of its urgency, cannot be scheduled for
consideration at a Commission meeting, may be disposed of by
presentation of the matter separately to each of the members of the
Commission. After consideration of the matter each Commission member
shall report his vote to the Chairman.
(b) Whenever any member of the Commission so requests, any matter
presented to the Commissioners for disposition pursuant to paragraph (a)
of this section shall be withdrawn and scheduled instead for
consideration at a Commission meeting.
(c) The provisions of Sec. 16.206(a) of these rules shall apply in
the case of any Commission determination made pursuant to this section.
Sec. 16.202 Open meetings.
(a) Every portion of every meeting of the Commission shall be open
to public observation unless closed to the public pursuant to the
provisions of Sec. 16.203 (Formal Procedure) or Sec. 16.205 (Informal
Procedure).
(b) The attendance of any member of the public is conditioned upon
the orderly demeanor of such person during the conduct of Commission
business. The public shall be permitted to observe and to take notes,
but unless prior permission is granted by the Commission, shall not be
permitted to record or photograph by means of any mechanical or
electronic device any portion of meetings which are open to the public.
(c) The Commission shall be responsible for arranging a suitable
site for each open Commission meeting so that ample seating, visibility,
and acoustics are provided to the public and ample security measures are
employed for the protection of Commissioners and Staff. The Commission
shall be responsible for recording or developing the minutes of
Commission meetings.
(d) Public notice of open meetings shall be given as prescribed in
Sec. 16.204(a), and a record of votes kept pursuant to Sec. 16.206(a).
Sec. 16.203 Closed meetings--Formal procedure.
(a) The Commission, by majority vote, may close to public
observation any meeting or portion thereof, and withhold from the public
announcement concerning such meeting any information, if public
observation or the furnishing of such information is likely to:
(1) Disclose matters:
(i) Specifically authorized under criteria established by an
executive order to be kept secret in the interests of national defense
or foreign policy and
(ii) In fact properly classified pursuant to such executive order;
(2) Relate solely to the internal personnel rules and practices of
the Commission or any agency of the Government of the United States;
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552, or the Federal Rules of Criminal
Procedure): Provided, That such statute or rule (i) requires that the
matters be withheld in such a manner as to leave no discretion on the
issue, or (ii) establishes particular criteria for withholding or refers
to particular types of matters to be withheld, including exempted
material under the Privacy Act of 1974 or the Commission's Alternate
Means of Access under the Privacy Act of 1974, as set forth at 28 CFR
16.85;
(4) Disclose a trade secret or commercial or financial information
obtained from any person, corporation, business, labor or pension
organization, which is privileged or obtained upon a promise
[[Page 364]]
of confidentiality, including information concerning the financial
condition or funding of labor or pension organizations, or the financial
condition of any individual, in conjunction with applications for
exemption under 29 U.S.C. 504 and 1111, and information concerning
income, assets and liabilities of inmates, and persons on supervision;
(5) Involve accusing any person of a crime or formally censuring any
person;
(6) Disclose information of a personal nature, where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose an investigatory record compiled for law enforcement
purposes, or information derived from such a record, which describes the
criminal history or associations of any person under the Commission's
jurisdiction or which describes the involvement of any person in the
commission of a crime, but only to the extent that the production of
such records or information would:
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trail or an impartial
adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source;
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(8) Disclose information, the premature disclosure of which would be
likely to significantly frustrate implementation of proposed Commission
action except where
(i) The Commission has already publicly disclosed the content or
nature of its proposed action or
(ii) The Commission is required by law to make such disclosure on
its own initiative prior to taking final Commission action on such
proposal;
(9) Specifically concern the Commission's issuance of subpoena or
participation in a civil action or proceeding; or
(10) Specifically concern the initiation, conduct, or disposition of
a particular case of formal adjudication pursuant to the procedures in 5
U.S.C. 554, or of any case involving a determination on the record after
opportunity for a hearing. Included under the above terms are:
(i) Record review hearings following opportunity for an in-person
hearing pursuant to the procedures of 28 CFR 4.1 through 4.17 and 28 CFR
4a.1 through 4a.17 \1\ (governing applications for certificates of
exemption under the Labor-Management Reporting and Disclosure Act of
1959 and the Employee Retirement Income Security Act of 1974), and
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\1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
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(ii) The initiation, conduct, or disposition by the Commission of
any matter pursuant to the procedures of 28 CFR 2.1 through 2.58
(parole, release, supervision, and recommitment of prisoners, youth
offenders, and juvenile delinquents).
(b) Public interest provision. Notwithstanding the exemptions at
paragraphs (a)(1) through (a)(10) of this section, the Commission may
conduct a meeting or portion of a meeting in public when the Commission
determines, in its discretion, that the public interest in an open
meeting clearly outweighs the need for confidentiality.
(c) Nonpublic matter in announcements. The Commission may delete
from any announcement or notice required in these regulations
information the disclosure of which would be likely to have any of the
consequences described in paragraphs (a)(1) through (a)(10) of this
section, including the name of any individual considered by the
Commission in any case of formal or informal adjudication.
(d) Voting and certification. (1) A separate recorded vote of the
Commission shall be taken with respect to each meeting or portion
thereof which is proposed to be closed, and with respect to any
information which is proposed to be withheld pursuant to this section.
[[Page 365]]
Voting by proxy shall not be permitted. In the alternative, the
Commission may, by a single majority vote, close to public observation a
series of meetings, or portion(s) thereof or withhold information
concerning such series of meetings, provided that:
(i) Each meeting in such series involves the same particular
matters, and
(ii) Each meeting is scheduled to be held no more than thirty days
after the initial meeting in the series.
(2) Upon the request of any Commissioner, the Commission shall make
a determination as to closure pursuant to this subsection if any person
whose interests may be directly affected by a portion of a meeting
requests the Commission to close such portion or portions to the public
observation for any of the grounds specified in paragraph (a) (5), (6)
or (7) of this section.
(3) The determination to close any meeting to public observation
pursuant to this section shall be made at least one week prior to the
meeting or the first of a series of meetings as the case may be. If a
majority of the Commissioners determines by recorded vote that agency
business requires the meeting to take place at any earlier date, the
closure determination and announcement thereof shall be made at the
earliest practicable time. Within one day of any vote taken on whether
to close a meeting under this section, the Commission shall make
available to the public a written record reflecting the vote of each
Commissioner on the question, including a full written explanation of
its action in closing the meeting, portion(s) thereof, or series of
meetings, together with a list of all persons expected to attend the
meeting(s) or portion(s) thereof and their affiliation, subject to the
provisions of paragraph (c) of this section.
(4) For every meeting or series of meetings closed pursuant to this
section, the General Counsel of the Parole Commission shall publicly
certify that, in Counsel's opinion, the meeting may be closed to the
public and shall state each relevant exemptive provision.
Sec. 16.204 Public notice.
(a) Requirements. Every open meeting and meeting closed pursuant to
Sec. 16.203 shall be preceded by a public announcement posted before the
main entrance to the Chairman's Office at the Commission's headquarters,
5550 Friendship Boulevard, Chevy Chase, Maryland 20815-7286, and, in the
case of a meeting held elsewhere, in a prominent place at the location
in which the meeting will be held. Such announcement shall be
transmitted to the Federal Register for publication and, in addition,
may be issued through the Department of Justice, Office of Public
Affairs, as a press release, or by such other means as the Commission
shall deem reasonable and appropriate. The announcement shall furnish:
(1) A brief description of the subject matter to be discussed;
(2) The date, place, and approximate time of the meeting;
(3) Whether the meeting will be open or closed to public
observation; and
(4) The name and telephone number of the official designated to
respond to requests for information concerning the meeting. See
Sec. 16.205(d) for the notice requirement applicable to meetings closed
pursuant to that section.
(b) Time of notice. The announcement required by this section shall
be released to the public at least one week prior to the meeting
announced therein except where a majority of the members of the
Commission determines by a recorded vote that Commission business
requires earlier consideration. In the event of such a determination,
the announcement shall be made at the earliest practicable time.
(c) Amendments to notice. The time or place of a meeting may be
changed following the announcement only if the Commission publicly
announces such change at the earliest practicable time. The subject
matter of a meeting, or determination of the Commission to open or close
a meeting, or portion of a meeting, to the public may be changed
following the announcement only if:
(1) A majority of the entire membership of the Commission determines
by a recorded vote that Commission business so requires and that no
earlier announcement of the change was possible, and
(2) The Commission publicly announces such change and the vote of
each member upon such change at the
[[Page 366]]
earliest practicable time: Provided, That individual items which have
been announced for Commission consideration at a closed meeting may be
deleted without notice.
[42 FR 14713, Mar. 16, 1977 as amended by Order No. 960-81, 46 FR 52357,
Oct. 27, 1981]
Sec. 16.205 Closed meetings--Informal procedures.
(a) Finding. Based upon a review of the meetings of the U.S. Parole
Commission since the effective date of the Parole Commission and
Reorganization Act (May 14, 1976), the regulations issued pursuant
thereto (28 CFR part 2) the experience of the U.S. Board of Parole, and
the regulations pertaining to the Commission's authority under 29 U.S.C.
504 and 29 U.S.C. 1111 (28 CFR parts 4 and 4a), the Commission finds
that the majority of its meetings may properly be closed to the public
pursuant to 5 U.S.C. 552 (d)(4) and (c)(10). The major part of normal
Commission business lies in the adjudication of individual parole cases,
all of which proceedings commence with an initial parole or revocation
hearing and are determined on the record thereof.
Original jurisdiction cases are decided at bi-monthly meetings of the
National Commissioners (28 CFR 2.17) and by the entire Commission in
conjunction with each business meeting of the Commission (held at least
quarterly) (28 CFR 2.27).
The National Appeals Board normally decides cases by sequential vote on
a daily basis, but may meet from time to time for joint deliberations.
In the period from October, 1975 through September, 1976, the National
Appeals Board made 2,072 Appellate decisions.
Finally, over the last two years the Commission determined eleven cases
under the Labor and Pension Acts, which are proceedings pursuant to 5
U.S.C. 554. The only meetings of the Commission not of an adjudicative
nature involving the most sensitive inquiry into the personal background
and behavior of the individual concerned, or involving sensitive
financial information concerning the parties before the Commission, are
the normal business meetings of the Commission, which are held at least
quarterly.
(b) Meetings to which applicable. The following types of meetings
may be closed in the event that a majority of the Commissioners present
at the meeting, and authorized to act on behalf of the Commission, votes
by recorded vote at the beginning of each meeting or portion thereof, to
close the meeting or portions thereof:
(1) Original jurisdiction initial and appellate case deliberations
conducted pursuant to 28 CFR 2.17 and 2.27;
(2) National Appeals Board deliberations pursuant to 28 CFR 2.26;
(3) Meetings of the Commission to conduct a hearing on the record
regarding applications for certificates of exemption pursuant to the
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 504,
and the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1111
(28 CFR 4.1-17 and 29 CFR 4a.1-17).\1\
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\1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
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(c) Written record of action to close meeting. In the case of a
meeting or portion of a meeting closed pursuant to this section, the
Commission shall make available to the public as soon as practicable:
(1) A written record reflecting the vote of each member of the
Commission to close the meeting; and
(2) A certification by the Commission's General Counsel to the
effect that in Counsel's opinion, the meeting may be closed to the
public, which certification shall state each relevant exemptive
provision.
(d) Public notice. In the case of meetings closed pursuant to this
section the Commission shall make a public announcement of the subject
matter to be considered, and the date, place, and time of the meeting.
The announcement described herein shall be released to the public at the
earliest practicable time.
Sec. 16.206 Transcripts, minutes, and miscellaneous documents concerning Commission meetings.
(a) In the case of any Commission meeting, whether open or closed,
the Commission shall maintain and make available for public inspection a
record of the final vote of each member on
[[Page 367]]
rules, statements of policy, and interpretations adopted by it: 18
U.S.C. 4203(d).
(b) The Commission shall maintain a complete transcript or
electronic recording adequate to record fully the proceedings of each
meeting, or portion of a meeting, closed to the public pursuant to
Sec. 16.203. In the case of a meeting, or portion of a meeting, closed
to the public pursuant to Sec. 16.205 of these regulations, the
Commission may maintain either the transcript or recording described
above, or a set of minutes unless a recording is required by title 18
U.S.C. 4208(f). The minutes required by this section shall fully and
clearly describe all matters discussed and shall provide a full and
accurate summary of any actions taken, and the reasons therefor,
including a description of each of the views expressed on any item and
the record of any rollcall vote (reflecting the vote of each
Commissioner on the question). All documents considered in connection
with any action shall be identified in such minutes.
(c) The Commission shall retain a copy of every certification
executed by the General Counsel's Office pursuant to these regulations,
together with a statement from the presiding officer of the meeting, or
portion of a meeting to which the certification applies, setting forth
the time and place of the meeting, and the persons present.
(d) Nothing herein shall affect any other provision in Commission
procedures or regulations requiring the preparation and maintenance of a
record of all official actions of the Commission.
Sec. 16.207 Public access to nonexempt transcripts and minutes of closed Commission meetings--Documents used at meetings--Record retention.
(a) Public access to records. Within a reasonable time after any
closed meeting, the Commission shall make available to the public, in
the Commission's Public Reading Room located at 5550 Friendship
Boulevard, Chevy Chase, Maryland 20815-7286, the transcript, electronic
recording, or minutes of the discussion of any item on the agenda, or of
any item of the testimony of any witness received at such meeting,
maintained hereunder, except for such item or items of such discussion
or testimony which contain information exempt under any provision of the
Government in the Sunshine Act (Pub. L. 94-409), or of any amendment
thereto. Copies of nonexempt transcripts, or minutes, or a transcription
of such recording disclosing the identity of each speaker, shall be
furnished to any person at the actual cost of duplication or
transcription.
(b) Access to documents identified or discussed in any Commission
meeting, open or closed, shall be governed by Department of Justice
regulations at this part 16, subparts C and D. The Commission reserves
the right to invoke statutory exemptions to disclosure of such documents
under 5 U.S.C. 552 and 552a, and applicable regulations. The exemptions
provided in 5 U.S.C. 552b(c) shall apply to any request made pursuant to
5 U.S.C. 552 or 552a to copy and inspect any transcripts, recordings or
minutes prepared or maintained pursuant hereto.
(c) Retention of records. The Commission shall maintain a complete
verbatim copy of the transcript, or a complete copy of the minutes, or a
complete electronic recording of each meeting, or portion of a meeting,
closed to the public, for a period of at least two years after such
meeting, or until one year after the conclusion of any Commission
proceeding with respect to which the meeting or portion thereof was
held, whichever occurs later.
[42 FR 14713, Mar. 16, 1977, as amended by Order No. 960-81, 46 FR
52357, Oct. 27, 1981]
Sec. 16.208 Annual report.
The Commission shall report annually to Congress regarding its
compliance with Sunshine Act requirements, including a tabulation of the
total number of meetings open to the public, the total number of
meetings closed to the public, the reasons for closing such meetings,
and a description of any litigation brought against the Commission under
this section, including any costs assessed against the Commission in
such litigation and whether or not paid.
[[Page 368]]
Subpart G--Access to Documents by Former Employees of the Department
Source: Order No. 2333-2000, 65 FR 68892, Nov. 15, 2000, unless
otherwise noted.
Sec. 16.300 Access to documents for the purpose of responding to an official inquiry.
(a) To the extent permitted by law, former employees of the
Department shall be given access to documents that they originated,
reviewed, or signed while employees of the Department, for the purpose
of responding to an official inquiry by a federal, state, or local
government entity or professional licensing authority. Documents include
memoranda, drafts, reports, notes, written communications, and documents
stored electronically that are in the possession of the Department.
Access ordinarily will be provided on government premises.
(b) Requests for access to documents under this section must be
submitted in writing to the head of the component where the employee
worked when originating, reviewing, or signing the documents. If the
employee requesting access was the Attorney General, Deputy Attorney
General, or Associate Attorney General, the request may be granted by
the Assistant Attorney General for Administration. This authority may
not be delegated below the level of principal deputy component head.
(c) The written request should describe with specificity the
documents to which access is sought (including time periods wherever
possible), the reason for which access is sought (including the timing
of the official inquiry involved), and any intended disclosure of any of
the information contained in the documents.
(d) The requester must agree in writing to safeguard the information
from unauthorized disclosure and not to further disclose the
information, by any means of communication, or to make copies, without
the permission of the Department. Determinations regarding any further
disclosure of information or removal of copies shall be made in
accordance with applicable standards and procedures.
Sec. 16.301 Limitations.
(a) The Department may deny or limit access under this subpart where
providing the requested access would be unduly burdensome.
(b) Access under this subpart to classified information is governed
by Executive Order 12958 and 28 CFR 17.46. Requests for access to
classified information must be submitted to (or will be referred to) the
Department Security Officer and may be granted by the Department
Security Officer in consultation with the appropriate component head.
(c) Nothing in this subpart shall be construed to supplant the
operation of other applicable prohibitions against disclosure.
(d) This subpart is not intended to, does not, and may not be relied
upon to, create any right or benefit, substantive or procedural,
enforcecable at law by a party against the United States.
Appendix I to Part 16--Components of the Department of Justice
Unless a separate address is listed below, the address for each
component is: [component name], U.S. Department of Justice, 950
Pennsylvania Avenue, NW., Washington, DC 20530-0001. For all components
marked by an asterisk, FOIA and Privacy Act requests should be sent to
the Office of Information and Privacy, U.S. Department of Justice, Flag
Bldg., Suite 570, Washington, DC 20530-0001. The components are:
A
Office of the Attorney General *
Office of the Deputy Attorney General *
Office of the Associate Attorney General *
Office of the Solicitor General
B
Office of Information and Privacy *
Office of the Inspector General
Office of the Intelligence Policy and Review
Office of Intergovernmental Affairs *
Office of Investigative Agency Policies
Office of Legal Counsel
Office of Legislative Affairs *
Office of Policy Development *
Office of Professional Responsibility
Office of Public Affairs *
C
Antitrust Division, U.S. Department of Justice, LPB Bldg., Suite 200,
Washington, DC 20530-0001
[[Page 369]]
Civil Division, U.S. Department of Justice, 901E Bldg., Room 808,
Washington, DC 20530-0001
Civil Rights Division, U.S. Department of Justice, NYAV Bldg., Room
8000B, Washington, DC 20530-0001
Criminal Division, U.S. Department of Justice, WCTR Bldg., Suite 1075,
Washington, DC 20530-0001
Environment and Natural Resources Division, U.S. Department of Justice,
Post Office Box 4390, Washington, DC 20044-4390
Justice Management Division
Tax Division, U.S. Department of Justice, JCB Bldg., Room 6823,
Washington, DC 20530-0001
Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room 738, 320
First Street, NW., Washington, DC 20534-0001
Community Relations Service, U.S. Department of Justice, BICN Bldg.,
Suite 2000, Washington, DC 20530-0001
Drug Enforcement Administration, U.S. Department of Justice, Washington,
DC 20537-0001
Executive Office for Immigration Review, U.S. Department of Justice,
Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041-0001
Executive Office for United States Attorneys, U.S. Department of
Justice, BICN Bldg., Room 7100, Washington, DC 20530-0001
Executive Office for United States Trustees, U.S. Department of Justice,
901E Bldg., Room 780, Washington, DC 20530-0001
Federal Bureau of Investigation, U.S. Department of Justice, 935
Pennsylvania Avenue, NW., Washington, DC 20535-0001 (for field offices,
consult your telephone book)
Foreign Claims Settlement Commission, U.S. Department of Justice, BICN
Bldg., Room 6002, 600 E Street, NW., Washington, DC 20579-0001
Immigration and Naturalization Service, U.S. Department of Justice, CAB
Bldg., 425 Eye Street, NW., Washington, DC 20536-0001 (for field
offices, consult your telephone book)
INTERPOL-U.S. National Central Bureau, U.S. Department of Justice,
Washington, DC 20530-0001
National Drug Intelligence Center, U.S. Department of Justice, Fifth
Floor, 319 Washington Street, Johnstown, PA 15901-1622
Office of Community Oriented Policing Services, U.S. Department of
Justice, VT1 Bldg., Twelfth Floor, Washington, DC 20530-0001
Office of Justice Programs, U.S. Department of Justice, Room 5337, 810
Seventh Street, NW., Washington, DC 20531-0001
Pardon Attorney, U.S. Department of Justice, FRST Bldg., Fourth Floor,
Washington, DC 20530-0001
United States Marshals Service, U.S. Department of Justice, Lincoln
Place, Room 1250, CSQ3, 600 Army Navy Drive, Arlington, VA 22202-4210
[Order No. 2156-98, 63 FR 29604, June 1, 1998; 63 FR 34965, June 26,
1998; 63 FR 51401, Sept. 25, 1998]