Title 28—Judicial Administration--Volume 1
PART 16—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
§ 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. The rules in this subpart should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Additionally, the Department's “FOIA Reference Guide” and its attachments contain information about the specific procedures particular to the Department with respect to making FOIA requests and descriptions of the types of records maintained by different Department components. This resource is available at http://www.justice.gov/oip/04_3.html. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart D of part 16 as well as under this subpart.
(b) As referenced in this subpart, component means each separate bureau, office, division, commission, service, center, or administration that is designated by the Department as a primary organizational entity.
(c) The Department has a decentralized system for processing requests, with each component handling requests for its records.
§ 16.2   Proactive disclosure of Department records.
Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the Department's Web site at http://justice.gov/oip/04_2.html. Each component is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component shall ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. Each component has a FOIA Public Liaison who can assist individuals in locating records particular to a component. A list of the Department's FOIA Public Liaisons is available at http://www.justice.gov/oip/foiacontact/index-list.html.
§ 16.3   Requirements for making requests.
(a) General information. (1) The Department has a decentralized system for responding to FOIA requests, with each component designating a FOIA office to process records from that component. All components have the capability to receive requests electronically either through email or a web portal. To make a request for records of the Department, a requester should write directly to the FOIA office of the component that maintains the records being sought. A request will receive the quickest possible response if it is addressed to the FOIA office of the component that maintains the records sought. The Department's FOIA Reference Guide, which may be accessed as described in § 16.1(a), contains descriptions of the functions of each component and provides other information that is helpful in determining where to make a request. Each component's FOIA office and any additional requirements for submitting a request to a given component are listed in Appendix I to this part. Part 0 of this chapter also summarizes the functions of each component. These references can all be used by requesters to determine where to send their requests within the Department.
(2) A requester may also send requests to the FOIA/PA Mail Referral Unit, Justice Management Division, Department of Justice, 950 Pennsylvania Avenue NW., Washington, DC 20530-0001, or via email to MRUFOIA.Requests@usdoj.gov, or via fax to (202) 616-6695. The Mail Referral Unit will forward the request to the component(s) that it determines to be most likely to maintain the records that are sought.
(3) A requester who is making a request for records about himself or herself must comply with the verification of identity provision set forth in subpart D of this part.
(4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased ( e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, each component can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist a component in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Requesters should refer to Appendix I to this part for additional, component-specific requirements. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the component's FOIA contact or FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records. If after receiving a request a component determines that it does not reasonably describe the records sought, the component shall inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the component's designated FOIA contact, its FOIA Public Liaison, or a representative of the Office of Information Policy (“OIP”), each of whom is available to assist the requester in reasonably describing the records sought. If a request does not reasonably describe the records sought, the agency's response to the request may be delayed.
§ 16.4   Responsibility for responding to requests.
(a) In general. Except in the instances described in paragraphs (c) and (d) of this section, the component that first receives a request for a record and maintains 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 that it begins its search. If any other date is used, the component shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request.
(b) Authority to grant or deny requests. The head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.
(c) Re-routing of misdirected requests. Where a component's FOIA office determines that a request was misdirected within the Department, the receiving component's FOIA office shall route the request to the FOIA office of the proper component(s).
(d) Consultation, referral, and coordination. When reviewing records located by a component in response to a request, the component 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. As to any such record, the component shall proceed in one of the following ways:
(1) Consultation. When records originated with the component processing the request, but contain within them information of interest to another component, agency, or other Federal Government office, the component processing the request should typically consult with that other component or agency prior to making a release determination.
(2) Referral. (i) When the component processing the request believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA. Ordinarily, the component or agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the component processing the request and the originating component or agency jointly agree that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever a component refers any part of the responsibility for responding to a request to another component or agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the component or agency to which the record was referred, including that component's or agency's FOIA contact information,
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement component responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a component locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component that received the request should coordinate with the originating component or agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the component that originally received the request.
(e) Classified information. On receipt of any request involving classified information, the component shall determine whether the information is currently and properly classified and take appropriate action to ensure compliance with part 17 of this title. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another component or agency under any applicable 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, or that should consider the information for classification. Whenever a component's record contains information that has been derivatively classified (for example, when it contains information classified by another component or agency), the component shall refer the responsibility for responding to that portion of the request to the component or agency that classified the underlying information.
(f) Timing of responses to consultations and referrals. All consultations and referrals received by the Department will be handled according to the date that the FOIA request initially was received by the first component or agency.
(g) Agreements regarding consultations and referrals. Components may establish agreements with other components or agencies to eliminate the need for consultations or referrals with respect to particular types of records.
§ 16.5   Timing of responses to requests.
(a) In general. Components ordinarily will respond to requests according to their order of receipt. Appendix I to this part contains the list of the Department components that are designated to accept requests. In instances involving misdirected requests that are re-routed pursuant to § 16.4(c), the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests.
(b) Multitrack processing. All components must designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. A component may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors a component may consider are the number of pages involved in processing the request and the need for consultations or referrals. Components shall advise requesters of the track into which their request falls and, when appropriate, shall offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.
(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component extends the time limit on that basis, the component shall, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds 10 working days, the component shall, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. The component shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose. The component must also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services.
(d) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, components may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. Components shall not aggregate multiple requests that involve unrelated matters.
(e) Expedited processing. (1) Requests and appeals shall be processed on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing 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 who is 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 exist possible questions about the government's integrity that affect public confidence.
(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to OIP. Requests for expedited processing that are based on paragraph (e)(1)(iv) of this section must be submitted to the Director of Public Affairs at the Office of Public Affairs, Department of Justice, 950 Pennsylvania Avenue NW., Washington, DC 20530-0001. A component that receives a misdirected request for expedited processing under the standard set forth in paragraph (e)(1)(iv) of this section shall forward it immediately to the Office of Public Affairs for its determination. The time period for making the determination on the request for expedited processing under paragraph (e)(1)(iv) of this section shall commence on the date that the Office of Public Affairs receives the request, provided that it is routed within 10 working days.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, a component may waive the formal certification requirement.
(4) A component shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, 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.
§ 16.6   Responses to requests.
(a) In general. Components should, to the extent practicable, communicate with requesters having access to the Internet using electronic means, such as email or web portal.
(b) Acknowledgments of requests. A component shall acknowledge the request and assign it an individualized tracking number if it will take longer than 10 working days to process. Components shall include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.
(c) Grants of requests. Once a component makes a determination to grant a request in full or in part, it shall notify the requester in writing. The component also shall inform the requester of any fees charged under § 16.10 and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The component must inform the requester of the availability of the FOIA Public Liaison to offer assistance.
(d) 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, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
(e) Content of denial. The denial shall be signed by the head of the component, or designee, and shall include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are 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 § 16.8(a), and a description of the requirements set forth therein.
(5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services.
(f) Markings on released documents. Markings on released documents must be clearly visible to the requester. Records disclosed in part shall be marked to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the record, if technically feasible.
(g) Use of record exclusions. (1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component must confer with OIP to obtain approval to apply the exclusion.
(2) Any component invoking an exclusion shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
§ 16.7   Confidential commercial information.
(a) Definitions. (1) Confidential commercial 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, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) A component shall promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the component determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if:
(1) The component determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) A component shall specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the component a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision shall not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. A component shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever a component decides to disclose information over the objection of a submitter, the component shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component shall promptly notify the submitter.
(i) Requester notification. The component shall notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
§ 16.8   Administrative appeals.
(a) Requirements for making an appeal. A requester may appeal any adverse determinations to OIP. The contact information for OIP is contained in the FOIA Reference Guide, which is available at http://www.justice.gov/oip/04_3.html. Appeals can be submitted through the web portal accessible on OIP's Web site. Examples of adverse determinations are provided in § 16.6(d). The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the response. The appeal should clearly identify the component's determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”
(b) Adjudication of appeals. (1) The Director of OIP or designee will act on behalf of the Attorney General on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, OIP shall take appropriate action to ensure compliance with part 17 of this title.
(c) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds a component's determination will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If a component's decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The component will thereafter further process the request in accordance with that appeal determination and respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If a component agrees to participate in the mediation services provided by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of a component's adverse determination, a requester generally must first submit a timely administrative appeal.
§ 16.9   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 pursuant to title 44 of the United States Code or the General Records Schedule 14 of the National Archives and Records Administration. Records shall not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
§ 16.10   Fees.
(a) In general. Components shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. Components shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. A component ordinarily will collect all applicable fees before sending copies of 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 is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. A component's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information.
(2) Direct costs are those expenses that an agency incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work ( i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing 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, audiovisual materials, or electronic records, among others.
(4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution. Components may seek assurance from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.
(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as 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. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.
(6) Representative of the news media is any person or entity that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. 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 that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the Internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, components shall also consider a requester's past publication record in making this determination.
(7) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 16.7, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
(c) Charging 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. Because the fee amounts provided below already account for the direct costs associated with a given fee type, components should not add any additional costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (d) of this section. Components may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees shall be as follows: professional—$10.00; and clerical/administrative—$4.75.
(iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an agency at a Federal records center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. Duplication fees shall be charged to all requesters, subject to the restrictions of paragraph (d) of this section. A component shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested. Where photocopies are supplied, the component shall provide one copy per request at a cost of five cents per page. For copies of records produced on tapes, disks, or other media, components shall charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, components shall charge the direct costs.
(3) Review. Review fees shall be charged to requesters who make commercial use requests. Review fees shall be assessed in connection with the initial review of the record, i.e., the review conducted by a component to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with a component's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions (unless the records are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.
(2) If a component fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section.
(i) If a component has determined that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(ii) If a component has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken. The component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.
(iii) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, components shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, 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 accordingly. If the requester is a noncommercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. Components are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) Components shall make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(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 shall be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the component. Components shall 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.
(h) Aggregating requests. When a component reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single 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. For requests separated by a longer period, components will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters shall not be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, a component shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed ( i.e., payment before copies are sent to a requester) is not an advance payment.
(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with 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 calendar days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the component may require that the requester 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 or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination, the request will be closed.
(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. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the component shall inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how 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 is not primarily in the commercial interest of the requester.
(2) A component must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that 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 is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the component must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section:
(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(B) 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 as well as the requester's ability and intention to effectively convey information to the public must be considered. Components will presume that a representative of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following criteria:
(A) Components must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the component must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. Components ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(3) 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.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received.
§ 16.11   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.
§ 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 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.
§ 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 §§ 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 § 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.
§ 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 § 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 official duties: Provided, Such an attorney shall consider, with respect to any disclosure, the factors set forth in § 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 § 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 § 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 § 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.
§ 16.24   Procedure in the event of a demand where disclosure is not otherwise authorized.
(a) Whenever a matter is referred under § 16.22 of this part to a U.S. Attorney or, under § 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 § 16.26(a) of this part; and
(3) None of the factors specified in § 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 § 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 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 § 16.26(a) of this part, and none of the factors specified in § 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 § 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 § 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 § 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 § 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 § 16.25 of this part.
(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.
§ 16.25   Final action by the Deputy or Associate Attorney General.
(a) Unless otherwise indicated, all matters to be referred under § 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 § 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.
§ 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,
(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.
§ 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.
§ 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 § 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 §§ 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).
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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 § 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.
§ 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.
§ 16.40   General provisions.
(a) Purpose and scope. (1) This subpart contains the rules that the Department of Justice (“DOJ” or “the Department”) follows when handling records maintained by the Department in a system of records, in accordance with the Privacy Act of 1974, as amended, 5 U.S.C. 552a (“Privacy Act” or “PA”). This subpart describes the procedures by which individuals can be notified if a Department system of records contains records about themselves, may request access to records about themselves maintained in a Department system of records, may request amendment or correction of records about themselves maintained in a Department system of records, and may request an accounting of disclosures of records about themselves maintained in a Department system of records. This subpart also establishes other procedures on the appropriate maintenance of records by the Department and when Privacy Act exemptions may apply. This subpart should be read together with the Privacy Act, which provides additional information about records maintained in agency systems of records, including those of the Department.
(2) This subpart contains the procedures that the Department follows when handling covered records maintained by the Department in a system of records, in accordance with the Judicial Redress Act of 2015, 5 U.S.C. 552a note (“Judicial Redress Act”). This subpart should be read together with the Privacy Act and the Judicial Redress Act, which provide additional information about covered records maintained in agency systems of records, including those of the Department.
(3) This subpart contains the procedures that the Department follows when collecting, using, maintaining, or disclosing Social Security account numbers, in accordance with the Privacy Act and the Social Security Number Fraud Prevention Act of 2017, 42 U.S.C. 405 note (“Social Security Number Fraud Prevention Act”). This subpart should be read together with the Privacy Act and the Social Security Number Fraud Prevention Act, which provide additional information about agencies' maintenance of Social Security account numbers, including that of the Department.
(b) Relationship to the Freedom of Information Act. The Department also processes 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 requesters the benefits of both statutes.
(c) Definitions. In addition to the definitions found under 5 U.S.C. 552a(a), and section (2)(h) of the Judicial Redress Act, as used in this subpart:
Component means each separate bureau, office, board, division, commission, service, or administration of the Department.
Privacy Act request for access means a request made in accordance with 5 U.S.C. 552a(d)(1), and includes requests for a Privacy Act access appeal, in accordance with this subpart.
Privacy Act request for amendment or correction means a request made in accordance with 5 U.S.C. 552a(d)(2)-(4), and includes requests for a Privacy Act amendment or correction appeal, in accordance with this subpart.
Privacy Act request for an accounting means a request made in accordance with 5 U.S.C. 552a(c)(3).
Requester means an individual who makes a Privacy Act request for access, a Privacy Act request for amendment or correction, a Privacy Act request for an accounting, or, as provided by the Judicial Redress Act, a covered person who makes either a Privacy Act request for access or a Privacy Act request for amendment or correction to covered records.
System of Records Notice means the notice(s) published by the Department in the Federal Register upon the establishment or modification of a system of records describing the existence and character of the system of records. A System of Records Notice (“SORN”) may be composed of a single Federal Register notice addressing all of the required elements that describe the current system of records, or it may be composed of multiple Federal Register notices that together address all of the required elements.
(d) 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 5 U.S.C. 552a(b)(7), for records maintained by other agencies that are necessary to carry out an authorized law enforcement activity. The request must specify the particular portion desired and the law enforcement activity for which the record is sought.
(e) Judicial Redress Act application. (1) With respect to covered records, the Judicial Redress Act authorizes a covered person to bring a civil action against the Department and obtain civil remedies, in the same manner, to the same extent, and subject to the same limitations, including exemptions and exceptions, as an individual may bring a civil action and obtain civil remedies with respect to records under 5 U.S.C. 552a(g)(1)(A), (B).
(2) To the extent consistent with the Judicial Redress Act, when making a request for access, amendment, or correction to a covered record, a covered person must follow the procedures outlined in this subpart for making a Privacy Act request for access to a covered record, or a Privacy Act request for amendment or correction of a covered record. A covered person must exhaust the administrative remedies, as outlined in this subpart, before the covered person may bring a cause of action described in paragraph (e)(1) of this section.
(f) Providing written consent to disclose records protected under the Privacy Act. The Department may disclose any record contained in a system of records by any means of communication to any person, or to another agency, pursuant to a written request by, or with the prior written consent of, the individual about whom the record pertains. An individual must verify the individual's identity in the same manner as required by § 16.41(d) when providing written consent to disclose a record protected under the Privacy Act and pertaining to the individual.
§ 16.41   Privacy Act requests for access to records.
(a) General information. (1) The Department has a decentralized system for responding to Privacy Act requests for access to records, with each component designating an office to process Privacy Act requests for access to records maintained by that component. A requester may make a Privacy Act request for access to records about the requester by writing directly to the component that maintains the records. All components have the capability to receive requests electronically either through email or a web portal. The request should be sent or delivered to the component's office at the address listed in appendix I to this part, or in accordance with the access procedures outlined in the corresponding SORN. 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 updated on a year-round basis and is available free of charge at https://www.usgovernmentmanual.gov/.
(2) If a requester cannot determine where within the Department to send the Privacy Act request for access to records, the requester may send it by mail to the FOIA/PA Mail Referral Unit, Justice Management Division, Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001; by email to MRUFOIA.Requests@usdoj.gov; or by fax to (202) 616-6695. The Mail Referral Unit will forward the request to the component(s) it believes most likely to have the requested records. For the quickest possible handling, the requester should mark both the request letter and the envelope “Privacy Act Access Request.”
(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable Department personnel to locate the applicable system of records containing them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist a component in identifying the requested records, such as the name or identifying number of each system of records in which the requester believes the records are maintained, or the date, title, name, author, recipient, case number, file designation, reference number, or subject matter of the record. The Department publishes SORNs in the Federal Register that describe the type and categories of records maintained in Department-wide and component-specific systems of records. Department SORNs may be found in published issues of the Federal Register and a list is available at https://www.justice.gov/opcl/doj-systems-records. Requesters may also request the record in a particular form or format.
(c) Agreement to pay fees. A Privacy Act request for access may specify the amount of fees that the requester is willing to pay in accordance with § 16.49. The component responsible for responding to the request shall confirm this agreement in an acknowledgement letter, in accordance with § 16.43.
(d) Verification of identity. (1) A requester must verify the requester's identity when making a Privacy Act request for access. The requester must state the requester's full name, current address, and date and place of birth. The requester must:
(i) Sign the request, and the signature must either be notarized or submitted by the requester under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization; or
(ii) When available, use one of the Department's approved digital services, as indicated on the Department's Privacy Act Request web page, to verify the identity of the requester through identity proofing and authentication processes.
(2) While no specific form is required, the requester may obtain forms for this purpose from the FOIA/PA Mail Referral Unit, Justice Management Division, Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, or obtain the form at https://www.justice.gov/oip/doj-reference-guide-attachment-d-copies-forms.
(3) To help identify and locate requested records, a requester may also include, at the requester's option, any additional identifying information which may be helpful in identifying and locating the requested records. Components shall establish appropriate administrative, technical, and physical safeguards to ensure the security and confidentiality of information provided by the requester, and to protect against any anticipated threats, in accordance with § 16.51.
(e) Verification of guardianship. (1) The parent of a minor, or the legal guardian of an individual who has been declared incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, is permitted to act on behalf of the individual. In order for a parent of a minor or the legal guardian of an individual to make a Privacy Act request for access on behalf of the individual, the parent or legal guardian must establish:
(i) The identity of the individual who is the subject of the request, by stating the name, current address, date and place of birth, and, at the parent or legal guardian's option, any additional identifying information that may be helpful in identifying and locating the requested records;
(ii) The parent or legal guardian's own identity, as required in paragraph (d) of this section;
(iii) Proof of parentage or legal guardianship, which may be proven by providing a copy of the individual's birth certificate or by providing a court order establishing legal guardianship; and
(iv) That the parent or legal guardian is acting on behalf of that individual in making the request.
(2) Components shall establish appropriate administrative, technical, and physical safeguards to ensure the security and confidentiality of information provided by the parent or legal guardian, and to protect against any anticipated threats, in accordance with § 16.51.
§ 16.42   Responsibility for responding to Privacy Act requests for access to records.
(a) In general. Except as stated in paragraphs (c) through (f) of this section, the component that first receives a Privacy Act request for access is the component responsible for responding to the request. In determining which records are responsive to a request, a component ordinarily will include only those records it maintained as of the date the component begins its search. 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 Privacy Act request for access to records maintained by that component.
(c) Re-routing of misdirected requests. When a component's FOIA/Privacy Act office determines that a request was misdirected within the Department, the receiving component's FOIA/Privacy Act office shall route the request to the FOIA/Privacy Act office of the proper component(s).
(d) Consultations, referrals, and coordination. When a component receives a Privacy Act 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 follow the consultation, referral, and coordination procedures under § 16.4, subject to the requirements in this section. Components may make agreements with other components or agencies to eliminate the need for consultations or referrals for particular types of records.
(e) Consultations, referrals, and coordination concerning law enforcement information. When a component receives a Privacy Act request for access to a record in its possession containing information that relates to an investigation of a possible violation of law and that originated with another component or agency of the Federal Government, 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.
(f) Consultations, referrals, and coordination concerning classified information. (1) When a component receives a Privacy Act request for access to a record containing information that has been classified or may be appropriate for classification by another component or agency under any applicable Executive order concerning the classification of records, the receiving component shall consult with or refer the responsibility for responding to the request regarding that information to the component or agency that classified the information, or that should consider the information for classification.
(2) When a component receives a Privacy Act request for access to a record containing information that has been derivatively classified, the receiving component shall consult with or refer the responsibility for responding to that portion of the request to the component or agency that classified the underlying information.
§ 16.43   Responses to a Privacy Act requests for access to records.
(a) In general. Components should, to the extent practicable, communicate with requesters who have access to the internet using electronic means, such as through email or a web portal. A component shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested.
(b) Acknowledgement of requests. The component responsible for responding to the request must acknowledge, in writing, receipt of a Privacy Act request for access. A component shall initially respond to the requester by acknowledging the Privacy Act request for access, assigning the request an individualized tracking number, and, if applicable, confirming, in writing, the requester's agreement to pay fees in accordance with § 16.49.
(c) Timing of responses to a Privacy Act request for access. (1) Components ordinarily will respond to Privacy Act requests for access according to their order of receipt. The response time will commence on the date that the request is received by the proper component's office designated to receive requests, but in any event not later than ten (10) working days after the request is first received by any component's office designated by this subpart to receive requests.
(2) A component may designate multiple processing tracks that distinguish between simple and more complex Privacy Act requests for access, based on the estimated amount of work or time needed to process the request. Among the factors a component may consider are the number of pages involved in processing the request and the need for consultations or referrals. Components may advise requesters of the track into which their request falls and, when appropriate, may offer requesters an opportunity to narrow their request so that it can be placed in a different processing track.
(d) Granting a Privacy Act request for access. Once a component makes a determination to grant a Privacy Act 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 § 16.49 and shall disclose records to the requester promptly on payment of any applicable fee.
(e) Adverse determination to a Privacy Act request for access. A component that makes an adverse determination to a Privacy Act request for access, in whole or in part, shall notify the requester of the adverse determination in writing. An adverse determination to a Privacy Act request for access includes a determination by the component that: the request did not reasonably describe the record sought; the information requested is not a record subject to the Privacy Act; the requested record is not maintained in a system of records; the requested record is exempt, in whole or in part, from a Privacy Act request for access under applicable exemption(s); the requested record does not exist, cannot be located, or has been destroyed; the record is not readily reproducible in a comprehensible form; or there is a matter regarding disputed fees.
(f) Content of adverse determination response. An adverse determination to a Privacy Act request for access, in whole or in part, 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 adverse determination to the Privacy Act request for access;
(2) A brief statement of the reason(s) for the adverse determination to the Privacy Act request for access, including any Privacy Act exemption(s) applied by the component;
(3) An estimate of the volume of any records or information withheld, if applicable, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the adverse determination to the Privacy Act request for access may be appealed under § 16.45, and a description of the requirements set forth in § 16.45.
§ 16.44   Classified information.
In processing a Privacy Act request for access, a Privacy Act request for amendment or correction, or a Privacy Act request for accounting, in which information is classified under any applicable Executive order concerning the classification of records, to the extent the requester lacks the appropriate security clearance and fails otherwise to meet all requirements to access the classified record or information, the originating component shall review the information in the record to determine whether it should remain classified. Information determined to no longer require classification shall be de-classified and the record evaluated for an appropriate release to the requester, subject to any applicable exemptions or exceptions. On receipt of any appeal involving classified information, the official responsible for adjudicating the appeal shall take appropriate action to ensure compliance with part 17 of this title.
§ 16.45   Privacy Act access appeals.
(a) Requirement for making a Privacy Act access appeal. A requester may appeal an adverse determination to a Privacy Act request for access to the Office of Information Policy (“OIP”). The contact information for OIP is contained in the FOIA Reference Guide, which is available at https://www.justice.gov/oip/04_3.html. Appeals may also be submitted through the web portal accessible on OIP's website. Examples of an adverse determination to a Privacy Act request for access are provided in § 16.43. The requester must make the appeal in writing. To be considered timely, the requester must postmark, or in the case of electronic submissions, submit the request, within 90 calendar days after the date of the adverse determination. The appeal should indicate the assigned request number and clearly identify the component's determination that is being appealed. To facilitate handling, the requester should mark both the appeal letter and envelope, or include in the subject line of any electronic communication, “Privacy Act Access Appeal.”
(b) Adjudication of Privacy Act access appeals. (1) The Director of OIP, or a designee of the Director of OIP, shall act on behalf of the Attorney General on all Privacy Act access appeals under this section, unless the Attorney General directs otherwise.
(2) Should the Attorney General exercise the right to respond to a Privacy Act request for access, the Attorney General's decision shall serve as the final action of the Department and will not be subject to a Privacy Act access appeal.
(3) A Privacy Act access appeal ordinarily will not be adjudicated if the request becomes a matter of litigation.
(c) Responses to Privacy Act access appeals. (1) OIP shall make its decision on an appeal in writing.
(2) A decision that upholds a component's adverse determination to the Privacy Act request for access, in whole or in part, shall include a brief statement of the reason(s) for the affirmance, including any Privacy Act exemption applied, and shall provide the requester with notification of the statutory right to file a lawsuit.
(3) A decision that reverses or modifies, in whole or in part, a component's adverse determination to the Privacy Act request for access shall include notice to the requester of the specific reversal or modification. The component(s) shall thereafter further process the request, in accordance with the appeal decision, and respond directly to the requester, as appropriate.
(d) When a Privacy Act access appeal is required. Before seeking review by a court of a component's refusal to grant a Privacy Act request for access, a requester generally must first submit a timely appeal in accordance with this section.
§ 16.46   Privacy Act requests for amendment or correction.
(a) Requirements for making a Privacy Act request for amendment or correction. Unless the record is not subject to amendment or correction, as stated in paragraph (i) of this section, individuals may make a Privacy Act request for amendment or correction of a Department record about themselves. Requesters must write directly to the Department component that maintains the record. A Privacy Act request for amendment or correction shall identify each particular record in question, state the amendment or correction that the requester would like to make, and state why the requester believes the record is not accurate, relevant, timely, or complete. Requesters may submit any documentation that would be helpful in determining the accuracy, relevance, timeliness, or completeness of the record. If the requester believes that the same record is in more than one Department system of records, the requester should address the request to each component that the requester believes maintains the record. For the quickest possible handling, requesters should mark both their request letter and envelope “Privacy Act Amendment Request.” Components and requesters must otherwise follow the procedures and responsibilities set forth in §§ 16.41 and 16.42.
(b) Timing of responses to a Privacy Act request for amendment or correction. (1) Components responsible for responding to a Privacy Act request for amendment or correction must acknowledge, in writing, receipt of the request no later than ten (10) working days after receipt.
(2) Components must promptly respond to a Privacy Act request for amendment or correction. Components ordinarily will respond to Privacy Act requests for amendment or correction according to their order of receipt. The response time will commence on the date that the request is received by the proper component's office designated to receive requests, but in any event no later than ten (10) working days after the request is first received by any component's office designated by this subpart to receive requests.
(3) A component may designate multiple processing tracks that distinguish between simple and more complex Privacy Act requests for amendment or correction, based on the estimated amount of work or time needed to process the request. Among the factors a component may consider are the number of pages involved in processing the request and the need for consultations or referrals. Components may advise requesters of the track into which their request falls and, when appropriate, may offer requesters an opportunity to narrow their request so that it can be placed in a different processing track.
(c) Granting a Privacy Act request for amendment or correction. If a component grants a Privacy Act request for amendment or correction, in whole or in part, it shall notify the requester in writing. The component shall describe the amendment or correction made and shall advise the requester of the requester's right to obtain a copy of the corrected or amended record, in accordance with the Privacy Act right of access procedures described in §§ 16.41 through 16.45.
(d) Adverse determination to a Privacy Act request for amendment or correction. A component that makes an adverse determination to a Privacy Act request for amendment or correction, in whole or in part, shall notify the requester of the determination in writing. An adverse determination to a Privacy Act request for amendment or correction includes a decision by the component that: the information at issue is not a record as defined by the Privacy Act; the requested record is not subject to amendment or correction as stated in paragraph (i) of this section; the request does not reasonably describe the records sought or the amendment or correction to that record; the record at issue does not exist, cannot be located, has been destroyed, or otherwise cannot be amended or corrected; or the record is maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness in any determination about the individual about whom the record pertains.
(e) Content of adverse determination response. An adverse determination to a Privacy Act request for amendment or correction, in whole or in part, 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 adverse determination to the Privacy Act request for amendment or correction;
(2) A brief statement of the reason(s) for the adverse determination to the Privacy Act request for amendment or correction, including any Privacy Act exemption(s) applied by the component; and
(3) A statement that the adverse determination to the Privacy Act request for amendment or correction may be appealed under paragraph (f) of this section and a description of the requirements set forth in paragraph (f).
(f) Privacy Act amendment appeals. (1) A requester may appeal an adverse determination to a Privacy Act request for amendment or correction, in whole or in part, to the Office of Privacy and Civil Liberties (“OPCL”). The contact information for OPCL is available at https://www.justice.gov/privacy. The requester must make the appeal in writing. To be considered timely, the requester must postmark the appeal request, or in the case of electronic submissions, submit the appeal request, within 90 calendar days after the date of the component's refusal to grant a Privacy Act request for amendment or correction. The appeal should indicate the assigned request number and clearly identify the component's determination that is being appealed. To facilitate handling, the requester should mark both the appeal letter and envelope, or include in the subject line of the electronic transmission, “Privacy Act Amendment Appeal.”
(2) The Chief Privacy and Civil Liberties Officer (“CPCLO”), or a designee of the CPCLO, will act on behalf of the Attorney General on all Privacy Act amendment appeals under this section, unless otherwise directed by the Attorney General.
(3) A Privacy Act amendment appeal ordinarily will not be adjudicated if the request becomes a matter of litigation.
(4) A decision on a Privacy Act amendment appeal must be made in writing. A decision that upholds a component's adverse determination to a Privacy Act request for amendment or correction, in whole or in part, shall include a brief statement of the reason(s) for the affirmance, including any Privacy Act exemption applied, whether the requester has a right to file a Statement of Disagreement, as described in paragraph (g) of this section, and the requester's statutory right to file a lawsuit. A decision that reverses or modifies a component's adverse determination to a Privacy Act request for amendment or correction, in whole or in part, shall notify the requester of the specific reversal or modification. The component shall thereafter further process the request, in accordance with the appeal decision, and respond directly to the requester, as appropriate.
(g) Statement of Disagreement. If a request is subject to a Privacy Act request for amendment or correction, but the component's adverse determination to a Privacy Act request for amendment or correction is upheld, in whole or in part, the requester has the right to file a Statement of Disagreement that states the requester's reason(s) for disagreeing with the Department's refusal to grant the requester's Privacy Act 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. A 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 so that the Statement of Disagreement supplements the disputed record. The component 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.
(h) Notification of amendment, correction, or Statement of Disagreement. Within thirty (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. The component may also append a concise statement of its reason(s) for denying the Privacy Act request for amendment or correction of the record.
(i) Records not subject to amendment or correction. The following records are not subject to amendment or correction:
(1) Copies of court records;
(2) Transcripts of testimony given under oath or written statements made under oath;
(3) Transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings, which are the official record of those proceedings;
(4) Presentence reports, and other records pertaining directly to such reports originating with the courts;
(5) Records in a system of records that have been exempted from amendment and correction, pursuant to 5 U.S.C. 552a(j) or (k), through the applicable regulations in this subpart; and
(6) Records not maintained in a system of records.
§ 16.47   Privacy Act requests for an accounting of record disclosures.
(a) Requirements for making a Privacy Act request for accounting of record disclosures. Except where accountings of disclosures are not required to be kept as stated in paragraph (c) of this section, individuals may make a Privacy Act request for an accounting of record disclosures about themselves that have been made by the Department to another person, organization, or agency. 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. If the requester believes that the same record is in more than one system of records, the requester should address their request to each component that the requester believes maintains the record. For the quickest possible handling, requesters should mark both their request letters and envelopes “Privacy Act Accounting Request.” Requests must otherwise follow the procedures in § 16.41.
(b) Processing Privacy Act requests for an accounting of record disclosures. Unless otherwise specified in this section, components shall process Privacy Act requests for accountings of record disclosures following the procedures in §§ 16.42 and 16.43.
(c) Where accountings of record disclosures are not required. Components are not required to provide Privacy Act accountings of record disclosures to a requester in cases in which they relate to:
(1) Disclosures of information not subject to the Privacy Act;
(2) Disclosures of records not maintained in a system of records;
(3) Disclosures of records maintained in a system of records for which accountings are not required to be kept, including disclosures to those officers and employees of the Department who have a need for the record in the performance of their duties, 5 U.S.C. 552a(b)(1), or disclosures that are required under the FOIA, 5 U.S.C. 552a(b)(2);
(4) 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
(5) Disclosures made from systems of records that have been exempted from the accounting of record disclosure requirements pursuant to the Privacy Act, 5 U.S.C. 552a(j) or (k), through the applicable regulations in this subpart.
(d) Appeals. A requester may appeal a component's refusal to grant a Privacy Act request for an accounting of record disclosures in the same manner, and under the same procedures, as a Privacy Act access appeal, as set forth in § 16.45.
§ 16.48   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 by the National Archives and Records Administration's General Records Schedule 4.2. Records shall not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the Privacy Act.
§ 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 for responding to FOIA requests under § 16.10. No search or review fee may be charged for any record unless the record has been exempted from access pursuant to exemptions enumerated in the Privacy Act, 5 U.S.C. 552a(j)(2) or (k)(2).
§ 16.50   Notice of compulsory legal process and emergency disclosures.
(a) Legal process disclosures. Components shall make reasonable efforts to provide notice to an individual whose record is disclosed under compulsory legal process, such as an order by a court of competent jurisdiction, and such process becomes a matter of public record. Notice shall be given within a reasonable time after the component's receipt of process, except that in a case in which such process is not a matter of public record, the notice shall be given within a reasonable time only after such process becomes public. Where an individual, or the individual's legal counsel, has not otherwise received notice of the disclosure in the litigation process, notice shall be mailed to the individual's last known address and shall contain a copy of such process and a description of the information disclosed. Notice shall not be required if disclosure is made from a 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.
§ 16.51   Security of systems of records.
(a) Each component shall establish and maintain administrative, technical, and physical controls consistent with applicable Department and Government-wide laws, regulations, policies, and standards, to ensure the security and confidentiality of records, and to protect against reasonably anticipated threats or hazards to their security or integrity, including against any reasonably anticipated unauthorized access, use, or disclosure, which could result in substantial harm, embarrassment, inconvenience, or unfairness to individuals about whom information is maintained. The stringency of these controls shall correspond to the sensitivity of the records that the controls protect. At a minimum, each component shall maintain administrative, technical, or physical controls to ensure that:
(1) Records are protected from unauthorized access, including unauthorized public access;
(2) The physical area in which records are maintained is supervised or appropriately secured to prevent unauthorized persons from having access to them;
(3) Records are protected from damage, loss, or unauthorized alteration or destruction; and
(4) Records are not disclosed to unauthorized persons or to authorized persons for unauthorized purposes in either oral or written form.
(b) Each component shall establish procedures that restrict access to records to 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.
(c) The CPCLO, or a designee of the CPCLO, may impose additional administrative, technical, or physical controls to protect records in consultation with the Chief Information Officer and the Director of the Office of Records Management Policy.
§ 16.52   Contracts for the operation of record systems.
(a) Any approved contract for the operation of a system of records shall contain the standard contract terms and conditions in accordance with the Federal Acquisition Regulations in 48 CFR chapter 28 and may also contain additional privacy-related terms and conditions to ensure compliance with the requirements of the Privacy Act for that system of records. The contracting component will be responsible for ensuring that the contractor complies with these contract requirements.
(b) The CPCLO, a designee of the CPCLO, or contracting components may impose additional contract requirements to further protect records.
§ 16.53   Use and collection of Social Security account numbers.
(a) Purpose and scope. This section contains the rules that the Department of Justice follows in handling Social Security account numbers in accordance with section 7 of the Privacy Act, and with the Social Security Fraud Prevention Act.
(b) Definitions. For the purposes of this section:
Mail means any physical package sent to entities or individuals outside the Department through the United States Postal Service or any other express mail carrier; and
Necessary includes only those circumstances in which a component would be unable to comply, in whole or in part, with a legal, regulatory, or policy requirement if prohibited from mailing the full Social Security account number. Including the full Social Security account number of an individual on a document sent by mail is not “necessary” if a legal, regulatory, or policy requirement could be satisfied by either partially redacting the Social Security account number in accordance with paragraph (d)(3) of this section, or entirely removing the Social Security account number.
(c) Denial of rights, benefits, or privileges. Components are prohibited from denying any right, benefit, or privilege provided by law to an individual because of such individual's refusal to disclose the individual's Social Security account number. This paragraph (c) shall not apply with respect to:
(1) Any disclosure that is required by Federal statute; or
(2) The disclosure of a Social Security account number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(d) Restriction of Social Security account numbers on documents sent by mail. (1) A component shall not include the full Social Security account number of an individual on any document sent by mail, unless the inclusion of the Social Security account number on the document is necessary. Unless the Attorney General directs otherwise, the CPCLO is authorized to assist components in implementing this paragraph (d), including determining whether inclusion of the Social Security account number on a document sent by mail is necessary.
(2) If the use of the full Social Security account number on a document sent by mail is necessary, the component sending the document shall implement appropriate administrative, technical, and physical safeguards to ensure a reasonable level of security against unauthorized access to, and use, disclosure, disruption, modification, or destruction of, the documents sent by mail.
(3) Where feasible, components should partially redact the Social Security account number on any document sent by mail by including no more than the last four digits of the Social Security account number. Components should prioritize technical methods to redact Social Security account numbers.
(4) Components are prohibited from placing a Social Security account number, whether full or partially redacted, on the outside of any mail.
(e) Employee awareness. Each component shall ensure that employees authorized to collect Social Security account numbers are made aware of the following:
(1) The requirements of paragraphs (c) and (d) of this section;
(2) That individuals requested to provide their Social Security account numbers must be informed of:
(i) Whether providing Social Security account numbers is mandatory or voluntary;
(ii) Any statutory or regulatory authority that authorizes the collection of Social Security account numbers; and
(iii) The uses that will be made of the Social Security account numbers; and
(3) That the Department may have other regulations or polices regulating the use, maintenance, or disclosure of Social Security account numbers by which employees must abide.
§ 16.54   Employee standards of conduct.
Each component shall inform its employees and any contractors involved in developing or maintaining a system of records of the provisions of the Privacy Act, including the Privacy Act's civil liability and criminal penalty provisions. Unless otherwise permitted by law, employees and contractors of the Department 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 asked to supply information for a record pertaining to that individual 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 the individual's First Amendment rights, unless maintaining the record 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 Privacy 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 loss or the unauthorized or inadvertent disclosure of a record to anyone;
(j) Notify the appropriate Department official of any record that contains information that the Privacy Act does not permit the Department to maintain; and
(k) Read, acknowledge, and agree to abide by the Department of Justice rules of behavior for accessing, collecting, using, and maintaining Department information.
§ 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, the Social Security Fraud Reduction Act, or the Judicial Redress Act.
§ 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).
(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.
§ 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).
(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).
(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 General Files System of the Office of the Deputy Attorney General (JUSTICE/DAG-013) is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3) and (5); and (g).
(d) 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 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 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.
§ 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).
(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 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.
§ 16.73   Exemption of Office of Legal Policy Systems.
(a) The Judicial Nominations Files (JUSTICE/OLP-002) system of records is exempt from subsections (c)(3); (d); (e)(1), (e)(4)(G), (H), and (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), and (k)(6). The exemptions in this paragraph (a) apply only to the extent that information in this system of records is subject to an exemption, pursuant to 5 U.S.C. 552a(k). Where compliance would not appear to interfere with or adversely affect the Office of Legal Policy's (OLP's) processes, OLP may waive the applicable exemption.
(b) Exemptions from the particular subsections in paragraph (a) of this section are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because release of disclosure accountings could alert the subject of an investigation and/or evaluation to the extent of an investigation and/or evaluation. Such a disclosure could also reveal investigative interests by not only OLP, but also other recipient agencies or components. Since release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation and/or evaluation, 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, and other activities that could impede or compromise the investigation and/or evaluation. In addition, providing the individual an 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 (d), the access and amendment provisions, because many persons are contacted who, without an assurance of anonymity, refuse to provide information concerning the subject of an investigation and/or evaluation. 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, among other determinations. The Department also relies on certain examination materials to assess and evaluate an individual's qualifications for an applicable position. Access and/or amendment to such material could reveal information about the examination and vetting process and could compromise its objectivity and/or fairness. Access and/or amendment to such material could also inappropriately advantage future candidates with knowledge of the examination materials. Finally, providing the individual access or amendment rights could result in the release of properly classified information which would compromise the national defense or disrupt foreign policy.
(3) 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 the subject of an investigation and/or evaluation. 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. 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. In interviewing individuals or obtaining other forms of information during OLP processes, information may be supplied to OLP which relates to matters incidental to the primary purpose of OLP's processes, but also relate to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated.
(4) From subsections (e)(4)(G) and (H), and subsection (f), because this system is exempt from the access and amendment provisions of subsection (d).
(c) The General Files System of the Office of Legal Policy (JUSTICE/OLP-003) system of records is exempt from subsections 552a(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), and (e)(5); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and (k)(5). The exemptions in this paragraph (c) apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552(j), (k). Where compliance would not appear to interfere with or adversely affect OLP's processes, the applicable exemption may be waived by OLP.
(d) Exemptions from the particular subsections in paragraph (c) of this section 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) 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.
§ 16.74   Exemption of National Security Division Systems—limited access.
(a) The following system of records is exempted from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G),(H) and (I), (5) and (8); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2) and (5): Foreign Intelligence and Counterintelligence Records System (JUSTICE/NSD-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), (2), and (5).
(b) Exemptions from the particular subsections are justified for the following reasons:
(1) Subsection (c)(3). To provide the target of a surveillance or collection activity with the disclosure accounting records concerning him or her would hinder authorized United States intelligence activities by informing that individual of the existence, nature, or scope of information that is properly classified pursuant to Executive Order 12958, as amended, and thereby cause damage to the national security.
(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 foreign intelligence and counterintelligence information would interfere with collection activities, reveal the identity of confidential sources, and cause damage to the national security of the United States. To ensure unhampered and effective collection and analysis of foreign intelligence and counterintelligence information, disclosure must be precluded.
(4) Subsection (d)(2). Amendment of the records would interfere with ongoing intelligence activities thereby causing damage to the national security.
(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 intelligence records contained in this system are relevant and necessary, but, in the interests of national security, it is necessary to retain this information to aid in establishing patterns of activity and provide intelligence leads.
(7) Subsection (e)(2). Although this office does not conduct investigations, the collection efforts of agencies that supply information to this office would be thwarted if the agencies were required to collect information with the subject's knowledge.
(8) Subsection (e)(3). To inform individuals as required by this subsection could reveal the existence of collection activity and compromise national security. For example, a target could, once made aware that collection activity exists, alter his or her manner of engaging in intelligence or terrorist activities in order to avoid detection.
(9) Subsections (e)(4)(G), (H) and (I), and (f). These subsections are inapplicable to the extent that this system is exempt from the access provisions of subsection (d).
(10) Subsection (e)(5). It is often impossible to determine in advance if intelligence records contained in this system are accurate, relevant, timely and complete, but, in the interests of national security, it is necessary to retain this information to aid in establishing patterns of activity and providing intelligence leads.
(11) Subsection (e)(8). Serving notice could give persons sufficient warning to evade intelligence collection and anti-terrorism efforts.
(12) Subsections (g) and (h). These subsections are inapplicable to the extent that this system is exempt from other specific subsections of the Privacy Act.
§ 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).
(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 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 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 Data Analytics Program Records System (JUSTICE/OIG-006) system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act. These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j) and/or (k). 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 OIG.
(d) Exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because 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 an investigation and the fact that the individual is the subject of the investigation. Such a disclosure could also reveal investigative interests by not only OIG, but also by the recipient agency or component. 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, providing the individual an 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) notification requirements, for the same reasons that justify exempting this system from the access and amendment provisions of subsection (d), and similarly, from the accounting of disclosures provision of subsection (c)(3). The DOJ takes seriously its obligation to maintain accurate records despite its assertion of this exemption, and to the extent it, in its sole discretion, agrees to permit amendment or correction of DOJ records, it will share that information in appropriate cases.
(3) From subsection (d), the access and amendment provisions, 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 the 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 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 that 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 determine the 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 in accordance with applicable record retention procedures, 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 also relate 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 that 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 to require individual notice of disclosure of information due to compulsory legal process would pose an impossible administrative burden on OIG and may alert the subjects of law enforcement investigations, who might be otherwise unaware, to the fact of those investigations. Such notice could also 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.
§ 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).
(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 (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 exempted from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and (8); and (g): Federal Bureau of Investigation Whistleblower Case Files (Justice/JMD-023). These exemptions apply only to the extent that information in a record contained within this system is subject to exemptions pursuant to 5 U.S.C. 552a(j)(2) and (k).
(d) Exemption from the particular subsections is justified for the following reasons:
(1) Subsection (c)(3). To provide the subject with an accounting of disclosures of records in this system could inform that individual of the existence, nature, or scope of an actual or potential law enforcement or counterintelligence 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). Information within this record system could relate to official federal investigations and matters of law enforcement. 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. Disclosure may also reveal information relating to actual or potential law enforcement investigations. Disclosure of classified national security information would cause damage to the national security of the United States.
(4) Subsection (d)(2). Amendment of these records could interfere with ongoing criminal or civil law enforcement 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 information contained in this system is 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 to notify the subject individual 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 information contained in this system is 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.
(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.
(e) The following system of records is exempted from 5 U.S.C. 552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (H), and (I); and (f): Department of Justice Security Monitoring and Analytics Service Records (JUSTICE/JMD-026). The exemptions in this paragraph (e) apply only to the extent that information in this system of records is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). Where DOJ determines compliance would not appear to interfere with or adversely affect the purpose of this system of records to ensure that the Department can track information system access and implement information security protections commensurate with the risk and magnitude of harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of DOJ information and information systems, the applicable exemption may be waived by the DOJ in its sole discretion.
(f) Exemptions from the particular subsections listed in paragraph (e) of this section are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because this system of records is exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures of records concerning the subject would specifically reveal investigative interests in the records by the DOJ, external Federal agency subscribers, or other entities that are recipients of the disclosures. Revealing this information could compromise sensitive information or interfere with the overall law enforcement process by revealing a pending sensitive cybersecurity investigation. Revealing this information could also permit the record subject to obtain valuable insight concerning the information obtained during any investigation and to take measures to impede the investigation, e.g., destroy evidence or alter techniques to evade discovery.
(2) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H), and (f) because these provisions concern individual access to and amendment of certain law enforcement and sensitive records, compliance of which could alert the subject of an authorized law enforcement activity about that particular activity and the interest of the DOJ, external Federal agency subscribers, and/or other entities that are recipients of the disclosure. Providing access could compromise sensitive information or reveal sensitive cybersecurity investigative techniques; provide information that would allow a subject to avoid detection; or constitute a potential danger to the health or safety of law enforcement personnel or confidential sources.
(3) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for law enforcement purposes. The relevance and utility of certain information that may have a nexus to cybersecurity threats may not always be fully evident until and unless it is vetted and matched with other information lawfully maintained by the DOJ, external Federal agency subscribers, or other entities.
(4) From subsection (e)(4)(I), to the extent that this subsection is interpreted to require more detail regarding the record sources in this system of records than has been published in the Federal Register. Should the subsection be so interpreted, exemption from this provision is necessary to protect the sources of law enforcement information.
§ 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.
(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 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).
§ 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.
(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.
§ 16.79   Exemption of Pardon Attorney System.
(a) The following system of records is exempt from 5 U.S.C. 552a, subsections (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(5): Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001). 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).
(b) Exemption from the particular subsections is justified for the following reasons:
(1) From subsection (c)(3) because:
(i) The purpose of the creation and maintenance of the Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001) is to enable the Justice Department to prepare reports and recommendations to the President for his ultimate decisions on clemency matters, which are committed to exclusive discretion of the President pursuant to Article II, Section 2, Clause 1 of the Constitution.
(ii) Release of the disclosure accounting, for disclosures pursuant to the routine uses published for this system, would permit the requester to obtain valuable information concerning the nature and scope of a clemency investigation, invade the right of candid and confidential communications among officials concerned with making recommendations to the President in clemency matters, 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) From subsection (c)(4) because the exemption from subsections (d)(1), (d)(2), (d)(3), and (d)(4) will make notification of disputes inapplicable.
(3) From subsections (d)(1), (d)(2), (d)(3), and (d)(4) is justified for the reasons stated in paragraph (b)(1) of this section.
(4) From subsection (e)(5) is justified for the reasons stated in paragraph (b)(1) of this section.
§ 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).
(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 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.
§ 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).
(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 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)
(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 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).
(f) 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 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)-(h) [Reserved]
(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 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.
§ 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 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).