[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] ======================================================================= ----------------------------------------------------------------------- POSTAL SERVICE 39 CFR Part 266 Revision of Regulations To Exempt Privacy Act Systems of Records AGENCY: Postal Service. ACTION: Final rule. ----------------------------------------------------------------------- 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