[Federal Register Volume 59, Number 133 (Wednesday, July 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16875]


[[Page Unknown]]

[Federal Register: July 13, 1994]


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POSTAL SERVICE

39 CFR Part 266

 

Revision of Regulations To Exempt Privacy Act Systems of Records

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: Postal Service regulations exempt certain systems of records 
that it maintains from certain provisions of the Privacy Act. This rule 
does not alter past application of exemptions but merely provides an 
explanation of the reasons for applying specific exemptions to certain 
systems of records.

EFFECTIVE DATE: July 13, 1994.

FOR FURTHER INFORMATION CONTACT: Betty Sheriff, Records Officer, (202) 
268-2924.

SUPPLEMENTARY INFORMATION: Postal Service regulations (39 CFR 266.9) 
exempt certain systems of records from specific provisions of the 
Privacy Act. This rule amends those regulations to include the reasons 
for applying the exemptions. Those reasons were stated in the preamble 
of the notice of proposed rulemaking at the time the Postal Service 
adopted the exemptions. 40 FR 37227 (August 26, 1975).
    The proposed rule with invitation to comment was published in the 
Federal Register. 59 FR 17749 (April 14, 1994). No comments were 
received.

List of Subjects in 39 CFR Part 266

    Privacy.

    For the reasons set out in this document, the Postal Service amends 
part 266 of 39 CFR as follows:

PART 266--PRIVACY OF INFORMATION

    1. The authority citation for part 266 continues to read as 
follows:

    Authority: 39 U.S.C. 401; 5 U.S.C. 552a.

    2. Section 266.9 is revised to read as follows:


Sec. 266.9  Exemptions.

    (a) Subsections 552a(j) and (k) of title 5, U.S.C., empower the 
Postmaster General to exempt systems of records meeting certain 
criteria from various other subsections of section 552a. With respect 
to systems of records so exempted, nothing in this part shall require 
compliance with provisions hereof implementing any subsections of 
section 552a from which those systems have been exempted.
    (b) At paragraph (b)(1) of this section is a summary of the Act's 
provisions for which exemption is claimed pursuant to, and to the 
extent permitted by, subsections 552a(j) and (k) of title 5, U.S.C., 
for some systems of records. Paragraphs (b)(2) through (6) of this 
section identify the exempted systems of records, the exemptions 
applied to each, and the reasons for the exemptions:
    (1) Explanation of the Act's provisions for which an exemption is 
claimed in the systems discussed below. (i) Subsection (c)(3) requires 
an agency to make available to the individual named in the records an 
accounting of each disclosure of records.
    (ii) Subsection (c)(4) requires an agency to inform any person or 
other agency to which a record has been disclosed of any correction or 
notation of dispute the agency has made to the record in accordance 
with subsection (d) of the Act.
    (iii) Subsection (d)(1)-(4) requires an agency to permit an 
individual to gain access to records about the individual, to request 
amendment of such records, to request a review of an agency decision 
not to amend such records, and to provide a statement of disagreement 
about a disputed record to be filed and disclosed with the disputed 
record.
    (iv) Subsection (e)(1) requires an agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose required by statute or executive 
order of the President.
    (v) Subsection (e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under federal programs.
    (vi) Subsection (e)(3) requires an agency to inform each person 
whom it asks to supply information of the authority under which the 
information is sought, the purposes for which the information will be 
used, the routine uses that may be made of the information, whether 
disclosure is mandatory or voluntary, and the effects of not providing 
the information.
    (vii) Subsection (e)(4) (G) and (H) requires an agency to publish a 
Federal Register notice of its procedures whereby an individual can be 
notified upon request whether the system of records contains 
information about the individual, how to gain access to any record 
about the individual contained in the system, and how to contest its 
content.
    (viii) Subsection (e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to ensure fairness to the individual in making any 
determination about the individual.
    (ix) Subsection (e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record.
    (x) Subsection (f) requires an agency to establish procedures 
whereby an individual can be notified upon request if any system of 
records named by the individual contains a record pertaining to the 
individual, obtain access to the record, and request amendment.
    (xi) Subsection (g) provides for civil remedies if an agency fails 
to comply with the access and amendment provisions of subsections 
(d)(1) and (d)(3), and with other provisions of the Act, or any rule 
promulgated thereunder, in such a way as to have an adverse effect on 
an individual.
    (xii) Subsection (m) requires an agency to cause the requirements 
of the Act to be applied to a contractor operating a system of records 
to accomplish an agency function.
    (2) Inspection Requirements--Investigative File System, USPS 
080.010; Inspection Requirements--Mail Cover Program, USPS 080.020. 
These systems of records are exempt from 5 U.S.C. 552a (c) (3) and (4), 
(d)(1)-(4), (e)(1)-(3), (e)(4) (G) and (H), (e) (5) and (8), (f), (g), 
and (m). The reasons for exemption follow:
    (i) Disclosure to the record subject pursuant to subsections 
(c)(3), (c)(4), or (d)(1)-(4) could (A) Alert subjects that they are 
targets of an investigation or mail cover; (B) alert subjects of the 
nature and scope of the investigation, and of evidence obtained; (C) 
enable the subject of an investigation to avoid detection or 
apprehension; (D) subject confidential sources, witnesses, and law 
enforcement personnel to harassment or intimidation if their identities 
were released to the target of an investigation; (E) constitute 
unwarranted invasions of the personal privacy of third parties who are 
involved in a certain investigation; (F) intimidate potential witnesses 
and cause them to be reluctant to offer information; (G) lead to the 
improper influencing of witnesses, the destruction or alteration of 
evidence yet to be discovered, the fabrication of testimony, or the 
compromising of classified material; and (H) seriously impede or 
compromise law enforcement, mail cover, or background investigations 
that might involve law enforcement aspects as a result of the above.
    (ii) Application of subsections (e)(1) and (e)(5) is impractical 
because the relevance, necessity, or correctness of specific 
information might be established only after considerable analysis and 
as the investigation progresses. As to relevance (subsection (e)(1)), 
effective law enforcement requires the keeping of information not 
relevant to a specific Postal Service investigation. Such information 
may be kept to provide leads for appropriate law enforcement and to 
establish patterns of activity that might relate to the jurisdiction of 
the Postal Inspection Service and/or other agencies. As to accuracy 
(subsection (e)(5)), the correctness of records sometimes can be 
established only in a court of law.
    (iii) Application of subsections (e)(2) and (e)(3) would require 
collection of information directly from the subject of a potential or 
ongoing investigation. The subject would be put on alert that he or she 
is a target of an investigation or mail cover, enabling avoidance of 
detection or apprehension, thereby seriously compromising law 
enforcement, mail cover, or background investigations involving law 
enforcement aspects. Moreover, in certain circumstances the subject of 
an investigation is not required to provide information to 
investigators, and information must be collected from other sources.
    (iv) The requirements of subsections (e)(4)(G) and (H), and (f) do 
not apply because this system is exempt from the individual access and 
amendment provisions of subsection (d). Nevertheless, the Postal 
Service has published notice of its notification, access, and contest 
procedures because access is appropriate in some cases.
    (v) Application of subsection (e)(8) could prematurely reveal an 
ongoing criminal investigation to the subject of the investigation.
    (vi) The provisions of subsection (g) do not apply because 
exemption from the provisions of subsection (d) renders the provisions 
on suits to enforce subsection (d) inapplicable.
    (vii) If one of these systems of records is operated in whole or in 
part by a contractor, the exemptions claimed herein shall remain 
applicable to it (subsection (m)).
    (3) Personnel Records--Preemployment Investigation Records, USPS 
120.110; Personnel Records--Postmaster Selection Program Records, USPS 
120.130. These systems of records are exempt from 5 U.S.C. 552a(d)(1)-
(4) and (e)(1) to the extent that information in the system is subject 
to exemption under 5 U.S.C. 552a(k)(5) as relating to the identity of a 
source who furnished information to the government in confidence as a 
part of an investigation conducted solely for the purpose of 
determining suitability, eligibility, or qualifications of an 
individual for employment. The reasons for exemption follow:
    (i) During its investigation and evaluation of an applicant for a 
position, the Postal Service contacts individuals who, without an 
assurance of anonymity, would refuse to provide information concerning 
the subject of the investigation. If a record subject were given access 
pursuant to subsection (d)(1)-(4), the promised confidentiality would 
be breached and the confidential source would be identified. The result 
would be restriction of the free flow of information vital to a 
determination of an individual's qualifications and suitability for 
appointment to or continued occupancy of his position.
    (ii) In collecting information for investigative and evaluative 
purposes, it is impossible to determine in advance what information 
might be of assistance in determining the qualifications and 
suitability of an individual for appointment. Information that seems 
irrelevant, when linked with other information, can sometimes provide a 
composite picture of an individual that assists in determining whether 
that individual should be appointed to or retained in a position. For 
this reason, exemption from subsection (e)(1) is claimed.
    (4) Personnel Records--Personnel Research and Test Validation 
Records, USPS 120.120; Personnel Records--Career Development and 
Training Records, USPS 120.152. These systems of records are exempt 
from 5 U.S.C. 552a(d)(1)-(4), (e)(4)(G) and (H), and (f) to the extent 
that information in the system is subject to exemption pursuant to 5 
U.S.C. 552a(k)(6) as relating to the compromise of the objectivity or 
fairness of the testing or examination process. The reasons for 
exemption follow:
    (i) These systems contain questions and answers to standard testing 
materials, the disclosure of which would compromise the fairness of the 
future use of these materials. It is not feasible to develop entirely 
new examinations after each administration as would be necessary if 
questions or answers were available for inspection and copying. 
Consequently, exemption from subsection (d) is claimed.
    (ii) The requirements of subsections (e)(4)(G) and (H), and (f) do 
not apply to these systems for which exemption from subsection (d) of 
the Act has been claimed. Nevertheless, the Postal Service has 
published notice of its notification, access, and contest procedures 
because access to system records that do not compromise the objectivity 
or fairness of the testing examination process is appropriate in some 
cases.
    (5) Personnel Records--Recruiting, Examining, and Appointment 
Records, USPS 120.151. This system is exempt from 5 U.S.C. 552a(d)(1)-
(4), (e)(1), (e)(4)(G) and (H), and (f) to the extent that information 
in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5) 
as relating to the identity of a source who has furnished information 
to the government in confidence as part of an investigation conducted 
solely for the purpose of determining suitability, eligibility, or 
qualifications of an individual for employment; and to exemption 
pursuant to subsection 5 U.S.C. 552a(k)(6) as relating to the 
compromise of the objectivity or fairness of the testing or examination 
process. The reasons for exemption follow:
    (i) To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(5), application of the 
provisions at subsection (d)(1)-(4) would reveal to the applicant whose 
suitability is being investigated the identity of individuals who 
supplied information under a promise of anonymity. As a result, the 
Postal Service's promise of confidentiality would be breached, its 
ability to obtain information in the future would be diminished, and 
the information source could be subjected to harassment by the 
applicant. To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(6), the requirements of the 
exemption at subsection (d)(1)-(4) and the reasons for exempting 
information relating to the compromise of the objectivity or fairness 
of the testing or examination process are the same as those given in 
paragraph (b)(5)(i) of this section.
    (ii) The reasons for exempting this system of records from 
subsection (e)(1) are the same as those given in paragraph (b)(4)(ii) 
of this section.
    (iii) The requirements of subsections (e) (4) (G) and (H), and (f) 
do not apply to this system for which exemption from subsection (d) of 
the Act has been claimed. Nevertheless, the Postal Service has 
published notice of its notification, access, and contest procedures 
because access to system records that do not compromise the objectivity 
or fairness of the testing or examination process or reveal the 
identity of a confidential is appropriate in some cases.
    (6) Equal Employment Opportunity--EEO Discrimination Complaint 
Investigations, USPS 030.010. This system is exempt from 5 U.S.C. 
552a(d) (1)-(4), (e) (4) (G) and (H), and (f) to the extent that 
information in the system is subject to exemption pursuant to 5 U.S.C. 
552a(k)(2) as material compiled for law enforcement purposes and 
subsection (k)(5) as relating to the identity of a source who has 
furnished information to the government in confidence as a part of an 
investigation conducted solely for the purpose of determining 
suitability, eligibility, or qualifications of an individual for 
employment. The reasons for exemption follow.
    (i) To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(2), application of the 
requirements of the exemption at subsection (d)(1)-(4) would cause 
disruption of enforcement of the laws relating to equal employment 
opportunity (EEO). To the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(5), application of 
the provisions at subsection (d)(1)-(4) would reveal to the EEO 
complainant the identity of individuals who supplied information under 
a promise of anonymity. It is essential to the integrity of the EEO 
complaint system that information collected in the investigative 
process not be prematurely disclosed and that witnesses be free from 
restraint, interference, coercion, or reprisal.
    (ii) The requirements of subsections (e) (4) (G) and (H), and (f) 
do not apply to this system for which exemption from subsection (d) of 
the Act has been claimed. Nevertheless, the Postal Service has 
published notice of its notification, access, and contest procedures 
because access to system records that do not compromise the 
investigative process or reveal the identity of confidential sources is 
appropriate in some cases.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 94-16875 Filed 7-12-94; 8:45 am]
BILLING CODE 7710-12-P