[Federal Register Volume 71, Number 239 (Wednesday, December 13, 2006)]
[Proposed Rules]
[Pages 74881-74886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9682]



[[Page 74881]]

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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Privacy Act of 1974; Implementation

AGENCY: National Labor Relations Board.

ACTION: Proposed rule exempting three systems of records and portions 
of four other systems of records from certain provisions of the Privacy 
Act, and amending Agency's existing Privacy Act regulations.

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SUMMARY: The National Labor Relations Board (NLRB) proposes to exempt 
three systems of records and portions of four other systems of records 
from certain provisions of the Privacy Act of 1974, 5 U.S.C. 552a, 
pursuant to Section (k)(2) of that Act, 5 U.S.C. 552a(k)(2), and to 
amend existing Privacy Act regulations for clarity.

DATES: Comments on the proposed rule must be received on or before 
January 22, 2007.

ADDRESSES: All persons who desire to submit written comments for 
consideration by the Agency regarding the proposed rule shall mail them 
to the Agency's Privacy Officer, National Labor Relations Board, Room 
7608, 1099 14th Street, NW., Washington, DC 20570-0001, or submit them 
electronically to <a href="/cdn-cgi/l/email-protection#5f0f2d36293e3c261e3c2b1c3032323a312b2c1f31332d3d71383029"><span class="__cf_email__" data-cfemail="cb9bb9a2bdaaa8b28aa8bf88a4a6a6aea5bfb88ba5a7b9a9e5aca4bd">[email protected]</span></a>. Comments may also be 
submitted electronically through http://www.regulations.gov, which 
contains a copy of this proposed rule.
    Copies of all such communications will be available for examination 
during normal business hours (8:30 a.m. to 5 p.m. Monday through 
Friday, excluding Federal holidays) in the Agency's Reading Room, 
located in the Case Records Unit, National Labor Relations Board, Room 
9201, 1099 14th Street, NW., Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT: Tommie Gregg, Sr., Privacy Act 
Officer, National Labor Relations Board, Room 7608, 1099 14th Street, 
NW., Washington, DC 20570-0001, (202) 273-2833, <a href="/cdn-cgi/l/email-protection#43172c2e2e2a266d0431262424032d2f31216d242c35"><span class="__cf_email__" data-cfemail="72261d1f1f1b175c3500171515321c1e00105c151d04">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Elsewhere in today's issue of the Federal 
Register, the Agency is proposing twelve systems of records under the 
Privacy Act of 1974, nine of which consist of an electronic case 
tracking system and associated paper or electronic files, and the 
remaining three systems consist of electronic case tracking systems 
only.
    The Agency intends to change the section number of its Privacy Act 
regulations, currently designated as Section 102.117(f)-(q) of Part 
102, 29 CFR Subpart K, immediately following the Agency's Freedom of 
Information Act regulations, by creating a new section for the Privacy 
Act regulations, in order to more clearly separate them from the 
Freedom of Information Act regulations. Under this change, the Agency's 
Privacy Act regulations will continue to immediately follow the Freedom 
of Information Act regulations at Section 102.117(a)-(e), but will be 
newly designated as Section 102.117a, paragraphs (a) through (n), of 
Part 102, 29 CFR Subpart K.
    The Agency also intends to amend its Privacy Act regulations 
providing for notice, access, and amendment of Privacy Act records, 
Section 102.117a(a), (b), and (d) (as newly designated), 29 CFR 
102.117a(a), (b), and (d), in order to clarify that these provisions 
apply only to the extent that requested information from the Privacy 
Act system of records at issue has not been exempted from such Privacy 
Act provisions.
    Pursuant to subsection (k)(2) of the Privacy Act (5 U.S.C. 
552a(k)(2)), and for the reasons set forth below, the Board proposes to 
include within the new Section 102.117a, two additional paragraphs (m) 
and (n) exempting three systems of records (the Case Activity Tracking 
System (CATS) and Associated Regional Office Files (NLRB-25), the 
Regional Advice and Injunction Litigation System (RAILS) and Associated 
Headquarters Files (NLRB-28), and the Appeals Case Tracking System 
(ACTS) and Associated Headquarters Files (NLRB-30)), and portions of 
four other systems of records (the Judicial Case Management System--
Pending Case List (JCMS-PCL) and Associated Headquarters Files (NLRB-
21), the Solicitor's System (SOL) and Associated Headquarters Files 
(NLRB-23), the Special Litigation Branch Case Tracking System (SPLIT) 
and Associated Headquarters Files (NLRB-27), and the Freedom of 
Information Act Tracking System (FTS) and Associated Agency Files 
(NLRB-32)) from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), and (f) of the Privacy Act.
    Subsection (k)(2) of the Privacy Act authorizes the head of an 
agency to exempt a system of records from subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act (5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), (f)) 
if the system of records is investigatory material compiled for law 
enforcement purposes other than material within the scope of subsection 
(j)(2) of the Privacy Act (5 U.S.C. 552a(j)(2)). As indicated in the 
Agency's notice proposing the systems of records, all or portions of 
seven of the proposed systems contain information compiled by the 
Agency in the course of carrying out its law enforcement 
responsibilities in conducting unfair labor practice and representation 
investigations. (All references in this proposed rule to the Agency's 
``unfair labor practice cases'' include the portion of such cases known 
as ``compliance,'' which is the effectuation of remedial provisions of 
a settlement agreement, Board order, or court judgment enforcing a 
Board order (see NLRB Casehandling Manual, Part Three--Compliance 
Proceedings, Sec.  10500.1).) This information meets the criteria of 
subsection (k)(2).
    The requirements of subsections (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), and (f) of the Privacy Act, if applied to the 
seven proposed systems of records, would seriously impair the ability 
of the Agency to conduct investigations of alleged unfair labor 
practice violations and representation issues. The disclosure 
requirements as set forth in the provisions for notice, access, 
amendment, review, and accountings, could enable subject individuals to 
take action to avoid detection of improper activities, including but 
not limited to concealing or destroying evidence, and intimidating 
sources and witnesses, or otherwise to interfere with the 
investigation. In addition, the requirement that information maintained 
in the system be limited to that which is relevant and necessary could 
foreclose investigators from acquiring or receiving information the 
relevance and necessity of which is not readily apparent and could only 
be ascertained after a complete review and evaluation of all the 
evidence.
    The requirements of these subsections are largely unnecessary given 
the notice and procedural protections afforded by the Agency's 
administrative proceedings. These protections (i.e., notice and, in 
appropriate cases, opportunity for hearing), assure that subject 
individuals will have the opportunity to learn of the existence of, and 
to challenge, those records that the Agency uses in administrative 
proceedings, and in any subsequent judicial proceeding.
    This proposed rule relates to individuals rather than small 
business entities. Accordingly, pursuant to the requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601-612, this rule will not have a 
significant impact on a substantial number of small business entities.

[[Page 74882]]

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the Agency has determined that this proposed rule would 
not impose new recordkeeping, application, reporting, or other types of 
information collection requirements on the public.
    The proposed rule will not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among 
levels of government. Therefore, it is determined that this proposed 
rule does not have federalism implications under Executive Order 13132.
    In accordance with Executive Order 12866, it has been determined 
that this proposed rule is not a ``significant regulatory action,'' and 
therefore does not require a Regulatory Impact Analysis.

List of Subjects in 29 CFR Part 102

    Privacy, Reporting and Recordkeeping Requirements.

    For the reasons stated in the Supplementary Information section, 
Part 102 of title 29, ch. I of the Code of Federal Regulations, is 
proposed to be amended as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

Subpart K--Records and Information

    1. The authority citation for part 102 is revised to read as 
follows:

    Authority: Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a (j) and 
(k)). Sections 102.143 through 102.155 also issued under section 
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 
504(c)(1)).

    2. Section 102.117 of subpart K is amended by:
    a. Removing paragraphs (f) through (q);
    b. In part 102, revise all references to paragraphs 102.117(f) 
through (q) to read paragraphs 102.117a (a) through (l).
    c. The heading of Sec.  102.117 is revised to read as follows:


Sec.  102.117  Freedom of Information Act Regulations: Board materials 
and formal documents available for public inspection and copying; 
requests for described records; time limit for response; appeal from 
denial of request; fees for document search and duplication; files and 
records not subject to inspection.

    3. Section 102.117a is added to read as follows:


Sec.  102.117a  Privacy Act Regulations: notification as to whether a 
system of records contains records pertaining to requesting 
individuals; requests for access to records, amendment of such records, 
or accounting of disclosures; time limits for response; appeal from 
denial of requests; fees for document duplication; files and records 
exempted from certain Privacy Act requirements.

    (a) An individual will be informed whether a system of records 
maintained by this Agency contains a record pertaining to such 
individual. An inquiry should be made in writing or in person during 
normal business hours to the official of this Agency designated for 
that purpose and at the address set forth in a notice of a system of 
records published by this Agency, in a Notice of Systems of 
Governmentwide Personnel Records published by the Office of Personnel 
Management, or in a Notice of Governmentwide Systems of Records 
published by the Department of Labor. Copies of such notices, and 
assistance in preparing an inquiry, may be obtained from any Regional 
Office of the Board or at the Board offices at 1099 14th Street, NW., 
Washington, DC 20570. The inquiry should contain sufficient 
information, as defined in the notice, to identify the record. 
Reasonable verification of the identity of the inquirer, as described 
in paragraph (e) of this section, will be required to assure that 
information is disclosed to the proper person. The Agency shall 
acknowledge the inquiry in writing within 10 days (excluding Saturdays, 
Sundays, and legal public holidays) and, wherever practicable, the 
acknowledgment shall supply the information requested. If, for good 
cause shown, the Agency cannot supply the information within 10 days, 
the inquirer shall within that time period be notified in writing of 
the reasons therefor and when it is anticipated the information will be 
supplied. An acknowledgment will not be provided when the information 
is supplied within the 10-day period. If the Agency refuses to inform 
an individual whether a system of records contains a record pertaining 
to an individual, the inquirer shall be notified in writing of that 
determination and the reasons therefor, and of the right to obtain 
review of that determination under the provisions of paragraph (f) of 
this section. The provisions of this paragraph do not apply to the 
extent that requested information from the relevant system of records 
has been exempted from this Privacy Act requirement.
    (b) An individual will be permitted access to records pertaining to 
such individual contained in any system of records described in the 
notice of system of records published by this Agency, or access to the 
accounting of disclosures from such records. The request for access 
must be made in writing or in person during normal business hours to 
the person designated for that purpose and at the address set forth in 
the published notice of system of records. The request for access must 
be made in writing or in person during normal business hours to the 
person designated for that purpose and at the address set forth in the 
published notice of system of records. Copies of such notices, and 
assistance in preparing a request for access, may be obtained from any 
Regional Office of the Board or at the Board offices at 1099 14th 
Street, NW., Washington, DC 20570. Reasonable verification of the 
identity of the requester, as described in paragraph (e) of this 
section, shall be required to assure that records are disclosed to the 
proper person. A request for access to records or the accounting of 
disclosures from such records shall be acknowledged in writing by the 
Agency within 10 days of receipt (excluding Saturdays, Sundays, and 
legal public holidays) and, wherever practicable, the acknowledgment 
shall inform the requester whether access will be granted and, if so, 
the time and location at which the records or accounting will be made 
available. If access to the record or accounting is to be granted, the 
record or accounting will normally be provided within 30 days 
(excluding Saturdays, Sundays, and legal public holidays) of the 
request, unless for good cause shown the Agency is unable to do so, in 
which case the individual will be informed in writing within that 30-
day period of the reasons therefor and when it is anticipated that 
access will be granted. An acknowledgment of a request will not be 
provided if the record is made available within the 10-day period. If 
an individual's request for access to a record or an accounting of 
disclosure from such a record under the provisions of this paragraph is 
denied, the notice informing the individual of the denial shall set 
forth the reasons therefor and advise the individual of the right to 
obtain a review of that determination under the provisions of paragraph 
(f) of this section. The provisions of this paragraph do not apply to 
the extent that requested information from the relevant system of 
records has been exempted from this Privacy Act requirement.
    (c) An individual granted access to records pertaining to such 
individual contained in a system of records may review all such 
records. For that

[[Page 74883]]

purpose the individual may be accompanied by a person of the 
individual's choosing, or the record may be released to the 
individual's representative who has written consent of the individual, 
as described in paragraph (e) of this section. A first copy of any such 
record or information will ordinarily be provided without charge to the 
individual or representative in a form comprehensible to the 
individual. Fees for any other copies of requested records shall be 
assessed at the rate of 10 cents for each sheet of duplication.
    (d) An individual may request amendment of a record pertaining to 
such individual in a system of records maintained by this Agency. A 
request for amendment of a record must be in writing and submitted 
during normal business hours to the person designated for that purpose 
and at the address set forth in the published notice for the system of 
records containing the record of which amendment is sought. Copies of 
such notices, and assistance in preparing a request for amendment, may 
be obtained from any Regional Office of the Board or at the Board 
offices at 1099 14th Street, NW., Washington, DC 20570. The requester 
must provide verification of identity as described in paragraph (e) of 
this section, and the request should set forth the specific amendment 
requested and the reason for the requested amendment. The Agency shall 
acknowledge in writing receipt of the request within 10 days of receipt 
(excluding Saturdays, Sundays, and legal public holidays) and, wherever 
practicable, the acknowledgment shall advise the individual of the 
determination of the request. If the review of the request for 
amendment cannot be completed and a determination made within 10 days, 
the review shall be completed as soon as possible, normally within 30 
days (Saturdays, Sundays, and legal public holidays excluded) of 
receipt of the request unless unusual circumstances preclude completing 
the review within that time, in which event the requester will be 
notified in writing within that 30-day period of the reasons for the 
delay and when the determination of the request may be expected. If the 
determination is to amend the record, the requester shall be so 
notified in writing and the record shall be amended in accordance with 
that determination. If any disclosures accountable under the provisions 
of 5 U.S.C. 552a(c) have been made, all previous recipients of the 
record which was amended shall be advised of the amendment and its 
substance. If it is determined that the request should not be granted, 
the requester shall be notified in writing of that determination and of 
the reasons therefor, and advised of the right to obtain review of the 
adverse determination under the provisions of paragraph (f) of this 
section. The provisions of this paragraph do not apply to the extent 
that requested information from the relevant system of records has been 
exempted from this Privacy Act requirement.
    (e) Verification of the identification of individuals required 
under paragraphs (a), (b), (c), and (d) of this section to assure that 
records are disclosed to the proper person shall be required by the 
Agency to an extent consistent with the nature, location, and 
sensitivity of the records being disclosed. Disclosure of a record to 
an individual in person will normally be made upon the presentation of 
acceptable identification. Disclosure of records by mail may be made on 
the basis of the identifying information set forth in the request. 
Depending on the nature, location, and sensitivity of the requested 
record, a signed notarized statement verifying identity may be required 
by the Agency. Proof of authorization as representative to have access 
to a record of an individual shall be in writing, and a signed 
notarized statement of such authorization may be required by the Agency 
if the record requested is of a sensitive nature.
    (f)(1) Review may be obtained with respect to:
    (i) A refusal, under paragraph (a) or (g) of this section, to 
inform an individual if a system of records contains a record 
concerning that individual,
    (ii) A refusal, under paragraph (b) or (g) of this section, to 
grant access to a record or an accounting of disclosure from such a 
record, or
    (iii) A refusal, under paragraph (d) of this section, to amend a 
record.
    (iv) The request for review should be made to the Chairman of the 
Board if the system of records is maintained in the office of a Member 
of the Board, the office of the Executive Secretary, the office of the 
Solicitor, the Division of Information, or the Division of 
Administrative Law Judges. Consonant with the provisions of section 
3(d) of the National Labor Relations Act, and the delegation of 
authority from the Board to the General Counsel, the request should be 
made to the General Counsel if the system of records is maintained by 
an office of the Agency other than those enumerated above. Either the 
Chairman of the Board or the General Counsel may designate in writing 
another officer of the Agency to review the refusal of the request. 
Such review shall be completed within 30 days (excluding Saturdays, 
Sundays, and legal public holidays) from the receipt of the request for 
review unless the Chairman of the Board or the General Counsel, as the 
case may be, for good cause shown, shall extend such 30-day period.
    (2) If, upon review of a refusal under paragraph (a) or (g) of this 
section, the reviewing officer determines that the individual should be 
informed of whether a system of records contains a record pertaining to 
that individual, such information shall be promptly provided. If the 
reviewing officer determines that the information was properly denied, 
the individual shall be so informed in writing with a brief statement 
of the reasons therefor.
    (3) If, upon review of a refusal under paragraph (b) or (g) of this 
section, the reviewing officer determines that access to a record or to 
an accounting of disclosures should be granted, the requester shall be 
so notified and the record or accounting shall be promptly made 
available to the requester. If the reviewing officer determines that 
the request for access was properly denied, the individual shall be so 
informed in writing with a brief statement of the reasons therefor, and 
of the right to judicial review of that determination under the 
provisions of 5 U.S.C. 552a(g)(1)(B).
    (4) If, upon review of a refusal under paragraph (i) of this 
section, the reviewing official grants a request to amend, the 
requester shall be so notified, the record shall be amended in 
accordance with the determination, and, if any disclosures accountable 
under the provisions of 5 U.S.C. 552a(c) have been made, all previous 
recipients of the record which was amended shall be advised of the 
amendment and its substance. If the reviewing officer determines that 
the denial of a request for amendment should be sustained, the Agency 
shall advise the requester of the determination and the reasons 
therefor, and that the individual may file with the Agency a concise 
statement of the reason for disagreeing with the determination, and may 
seek judicial review of the Agency's denial of the request to amend the 
record. In the event a statement of disagreement is filed, that 
statement--
    (i) will be made available to anyone to whom the record is 
subsequently disclosed together with, at the discretion of the Agency, 
a brief statement summarizing the Agency's reasons for declining to 
amend the record, and
    (ii) will be supplied, together with any Agency statements, to any 
prior recipients of the disputed record to the

[[Page 74884]]

extent that an accounting of disclosure was made.
    (g) To the extent that portions of system of records described in 
notices of Governmentwide systems of records published by the Office of 
Personnel Management are identified by those notices as being subject 
to the management of an officer of this Agency, or an officer of this 
Agency is designated as the official to contact for information, 
access, or contents of those records, individual requests for access to 
those records, requests for their amendment, and review of denials of 
requests for amendment shall be in accordance with the provisions of 5 
CFR part 297, subpart A, Sec.  297.101, et seq., as promulgated by the 
Office of Personnel Management. To the extent that portions of system 
of records described in notices of Governmentwide system of records 
published by the Department of Labor are identified by those notices as 
being subject to the management of an officer of this Agency, or an 
officer of this Agency is designated as the official to contact for 
information, access, or contents of those records, individual requests 
for access to those records, requests for their amendment, and review 
of denials of requests for amendment shall be in accordance with the 
provisions of this rule. Review of a refusal to inform an individual 
whether such a system of records contains a record pertaining to that 
individual and review of a refusal to grant an individual's request for 
access to a record in such a system may be obtained in accordance with 
the provisions of paragraph (f) of this section.
    (h) Pursuant to 5 U.S.C. 552a(j)(2), the system of records 
maintained by the Office of the Inspector General of the National Labor 
Relations Board that contains Investigative Files shall be exempted 
from the provisions of 5 U.S.C. 552a, except subsections (b), (c)(1) 
and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and 
(i), from 29 CFR 102.117(c) and (d), and from 29 CFR 102.117a(a), (b), 
(c), (d), (e), and (f), insofar as the system contains investigatory 
material compiled for criminal law enforcement purposes.
    (i) Pursuant to 5 U.S.C. 552a(k)(2), the system of records 
maintained by the Office of the Inspector General of the National Labor 
Relations Board that contains the Investigative Files shall be exempted 
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and 
(f), from 29 CFR 102.117 (c) and (d), and from 29 CFR 102.117a(a), (b), 
(c), (d), (e), and (f), insofar as the system contains investigatory 
material compiled for law enforcement purposes not within the scope of 
the exemption at 29 CFR 102.117a(h).
    (j) Privacy Act exemptions contained in paragraphs (h) and (i) of 
this section are justified for the following reasons:
    (1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting 
of each disclosure of records available to the individual named in the 
record at his/her request. These accountings must state the date, 
nature, and purpose of each disclosure of a record and the name and 
address of the recipient. Accounting for each disclosure would alert 
the subjects of an investigation to the existence of the investigation 
and the fact that they are subjects of the investigation. The release 
of such information to the subjects of an investigation would provide 
them with significant information concerning the nature of the 
investigation and could seriously impede or compromise the 
investigation, endanger the physical safety of confidential sources, 
witnesses, law enforcement personnel, and their families and lead to 
the improper influencing of witnesses, the destruction of evidence, or 
the fabrication of testimony.
    (2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since this system 
of records is being exempted from subsection (d) of the Act, concerning 
access to records, this section is inapplicable to the extent that this 
system of records will be exempted from subsection (d) of the Act.
    (3) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him/her, to request amendment to 
such records, to request a review of an agency decision not to amend 
such records, and to contest the information contained in such records. 
Granting access to records in this system of records could inform the 
subject of an investigation of an actual or potential criminal 
violation, of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his/her 
activities, or of the identity of confidential sources, witnesses, and 
law enforcement personnel and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, 
endanger the physical safety of confidential sources, witnesses, law 
enforcement personnel, and their families, lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony, and disclose investigative techniques and 
procedures. In addition, granting access to such information could 
disclose classified, security-sensitive, or confidential business 
information and could constitute an unwarranted invasion of the 
personal privacy of others.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations and law enforcement because it is not 
always possible to detect the relevance or necessity of specific 
information in the early stages of an investigation. Relevance and 
necessity are often 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 addition, during the course of 
the investigation, the investigator may obtain information which is 
incidental to the main purpose of the investigative jurisdiction of 
another agency. Such information cannot readily be segregated. 
Furthermore, during the course of the investigation, the investigator 
may obtain information concerning the violation of laws other than 
those which are within the scope of his/her jurisdiction. In the 
interest of effective law enforcement, OIG investigators should retain 
this information, since it can aid in establishing patterns of criminal 
activity and can provide valuable leads for other law enforcement 
agencies.
    (5) 5 U.S.C. 552a(e)(2) requires an agency to collect information 
to the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation, thereby 
enabling the subject to avoid detection or apprehension, to influence 
witnesses improperly, to destroy evidence, or to fabricate testimony. 
Moreover, in certain circumstances the subject of an investigation 
cannot be required to provide information to investigators and 
information must be collected from other sources. Furthermore, it is 
often necessary to collect information from sources other than the 
subject of the investigation to

[[Page 74885]]

verify the accuracy of the evidence collected.
    (6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation that could interfere with the investigation. Moreover, 
providing such a notice to the subject of an investigation could 
seriously impede or compromise an undercover investigation by revealing 
its existence and could endanger the physical safety of confidential 
sources, witnesses, and investigators by revealing their identities.
    (7) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual, at his/her request, if the system of records contains a 
record pertaining to him/her, how to gain access to such a record and 
how to contest its content. Since this system of records is being 
exempted from subsection (f) of the Act, concerning agency rules, and 
subsection (d) of the Act, concerning access to records, these 
requirements are inapplicable to the extent that this system of records 
will be exempt from subsections (f) and (d) of the Act. Although the 
system would be exempt from these requirements, OIG has published 
information concerning its notification, access, and contest procedures 
because, under certain circumstances, OIG could decide it is 
appropriate for an individual to have access to all or a portion of 
his/her records in this system of records.
    (8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to 
protect the confidentiality of the sources of information, to protect 
the privacy and physical safety of confidential sources and witnesses, 
and to avoid the disclosure of investigative techniques and procedures. 
Although the system will be exempt from this requirement, OIG has 
published such a notice in broad generic terms.
    (9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines ``maintain'' 
to include the collection of information, complying with this provision 
could prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, 
relevant, timely, and complete. Facts are first gathered and then 
placed into a logical order to prove or disprove objectively the 
criminal behavior of an individual. Material which seems unrelated, 
irrelevant, or incomplete when collected can take on added meaning or 
significance as the investigation progresses. The restrictions of this 
provision could interfere with the preparation of a complete 
investigative report, thereby impeding effective law enforcement.
    (10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his/her request if any system of records named by the 
individual contains a record pertaining to him/her. The application of 
this provision could impede or compromise an investigation or 
prosecution if the subject of an investigation were able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject and others that their activities are under or 
may become the subject of an investigation and could enable the 
subjects to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony. Since this 
system would be exempt from subsection (d) of the Act, concerning 
access to records, the requirements of subsection (f)(2) through (5) of 
the Act, concerning agency rules for obtaining access to such records, 
are inapplicable to the extent that this system of records will be 
exempted from subsection (d) of the Act. Although this system would be 
exempt from the requirements of subsection (f) of the Act, OIG has 
promulgated rules which establish agency procedures because, under 
certain circumstances, it could be appropriate for an individual to 
have access to all or a portion of his/her records in this system of 
records.
    (12) 5 U.S.C. 552a(g) provides for civil remedies if an agency 
fails to comply with the requirements concerning access to records 
under subsections (d)(1) and (3) of the Act; maintenance of records 
under subsection (e)(5) of the Act; and any other provision of the Act, 
or any rule promulgated thereunder, in such a way as to have an adverse 
effect on an individual. Since this system of records would be exempt 
from subsections (c)(3) and (4), (d), (e)(1), (2), and (3) and (4)(G) 
through (I), (e)(5), and (8), and (f) of the Act, the provisions of 
subsection (g) of the Act would be inapplicable to the extent that this 
system of records will be exempted from those subsections of the Act.
    (k) Pursuant to 5 U.S.C. 552a(k)(2), the system of records 
maintained by the NLRB containing Agency Disciplinary Case Files 
(Nonemployees) shall be exempted from the provisions of 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) insofar as the 
system contains investigatory material compiled for law enforcement 
purposes other than material within the scope of 5 U.S.C. 552a(j)(2).
    (l) The Privacy Act exemption set forth in paragraph (k) of this 
section is claimed on the ground that the requirements of subsections 
(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of the Privacy 
Act, if applied to Agency Disciplinary Case Files, would seriously 
impair the ability of the NLRB to conduct investigations of alleged or 
suspected violations of the NLRB's misconduct rules, as set forth in 
paragraphs (j) (1), (3), (4), (7), (8), and (11) of this section.
    (m) Pursuant to 5 U.S.C. 552a(k)(2), the following three proposed 
systems of records shall be exempted in their entirety from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), and (f), because the systems contain investigatory material 
compiled for law enforcement purposes, other than material within the 
scope of nl;5 U.S.C. 552a(j)(2): Case Activity Tracking System (CATS) 
and Associated Regional Office Files (NLRB-25), Regional Advice and 
Injunction Litigation System (RAILS) and Associated Headquarters Files 
(NLRB-28), and Appeals Case Tracking System (ACTS) and Associated

[[Page 74886]]

Headquarters Files (NLRB-30). Pursuant to 5 U.S.C. 552a(k)(2), limited 
categories of information from the following four proposed systems of 
records shall be exempted from the provisions of nl;5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f), 
insofar as the systems contain investigatory material compiled for law 
enforcement purposes, other than material within the scope of 5 U.S.C. 
552a(j)(2):
    (1) the Judicial Case Management Systems--Pending Case List (JCMS-
PCL) and Associated Headquarters Files (NLRB-21)--information relating 
to requests to file injunctions under 29 U.S.C. 160(j), requests to 
initiate federal court contempt proceedings, certain requests that the 
Board initiate litigation or intervene in non-Agency litigation, and 
any other investigatory material compiled for law enforcement purposes;
    (2) the Solicitor's System (SOL) and Associated Headquarters Files 
(NLRB-23)--information relating to requests to file injunctions under 
29 U.S.C. 160(j), requests to initiate federal court contempt 
proceedings, certain requests that the Board initiate litigation or 
intervene in non-Agency litigation, and any other investigatory 
material compiled for law enforcement purposes;
    (3) The Special Litigation Case Tracking System (SPLIT) and 
Associated Headquarters Files (NLRB-27)--information relating to 
investigative subpoena enforcement cases, injunction and mandamus 
actions regarding Agency cases under investigation, bankruptcy case 
information in matters under investigation, Freedom of Information Act 
cases involving investigatory records, certain requests that the Board 
initiate litigation or intervene in non-Agency litigation, and any 
other investigatory material compiled for law enforcement purposes; and
    (4) The Freedom of Information Act Tracking System (FTS) and 
Associated Agency Files (NLRB-32)--information requested under the 
Freedom of Information Act, 5 U.S.C. 552, that relates to the Agency's 
investigation of unfair labor practice and representation cases or 
other proceedings described in paragraphs (m)(1) through (3) of this 
section.
    (n) The reasons for exemption under 5 U.S.C. 552a(k)(2) are as 
follows:
    (1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting 
of each disclosure of records available to the individual named in the 
record at such individual's request. These accountings must state the 
date, nature, and purpose of each disclosure of a record, and the name 
and address of the recipient. Providing such an accounting of 
investigatory information to a party in an unfair labor practice or 
representation matter under investigation could inform that individual 
of the precise scope of an Agency investigation, or the existence or 
scope of another law enforcement investigation. Accordingly, this 
Privacy Act requirement could seriously impede or compromise either the 
Agency's investigation, or another law enforcement investigation, by 
causing the improper influencing of witnesses, retaliation against 
witnesses, destruction of evidence, or fabrication of testimony.
    (2) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to such individual, to request 
amendment to such records, to request review of an agency decision not 
to amend such records, and, where the Agency refuses to amend records, 
to submit a statement of disagreement to be included with the records. 
Such disclosure of investigatory information could seriously impede or 
compromise the Agency's investigation by revealing the identity of 
confidential sources or confidential business information, or causing 
the improper influencing of witnesses, retaliation against witnesses, 
destruction of evidence, fabrication of testimony, or unwarranted 
invasion of the privacy of others. Amendment of the records could 
interfere with ongoing law enforcement proceedings and impose an undue 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (3) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. This requirement could foreclose 
investigators from acquiring or receiving information the relevance and 
necessity of which is not readily apparent and could only be 
ascertained after a complete review and evaluation of all the evidence.
    (4) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual, at the individual's request, if the system of records 
contains a record pertaining to the individual, for gaining access to 
such a record, and for contesting its content. Because certain 
information from these systems of records is exempt from subsection (d) 
of the Act concerning access to records, and consequently, from 
subsection (f) of the Act concerning Agency rules governing access, 
these requirements are inapplicable to that information.
    (5) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to 
protect the confidentiality of sources of information, to protect 
against the disclosure of investigative techniques and procedures, to 
avoid threats or reprisals against informers by subjects of 
investigations, and to protect against informers refusing to give full 
information to investigators for fear of having their identities as 
sources revealed.
    (6) 5 U.S.C. 552a(f) requires an agency to promulgate rules for 
notifying individuals of Privacy Act rights granted by subsection (d) 
of the Act concerning access and amendment of records. Because certain 
information from these systems is exempt from subsection (d) of the 
Act, the requirements of subsection (f) of the Act are inapplicable to 
that information.

    Dated: Washington, DC, November 15, 2006.

    By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 06-9682 Filed 12-12-06; 8:45 am]
BILLING CODE 7545-01-P


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