[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Rules and Regulations]
[Pages 4642-4644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2299]


=======================================================================
-----------------------------------------------------------------------

TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301


Privacy Act Regulations; Implementation

AGENCY: Tennessee Valley Authority.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Tennessee Valley Authority (TVA) amends its regulations 
implementing the Privacy Act of 1974 (the Act), 5 U.S.C. 552a. These 
amendments are needed to modify existing TVA regulations to exempt a 
system of records known as TVA Police Records (TVA-37) from certain 
provisions of the Act and corresponding agency regulations.

EFFECTIVE DATE: January 31, 1997.

FOR FURTHER INFORMATION: Wilma H. McCauley, (423) 751-2523.

SUPPLEMENTARY INFORMATION: These amendments allow exemptions authorized 
by the Act, 5 U.S.C. 552a(j)(2) and (k)(2), for the TVA Police 
Records--TVA system of records under 5 U.S.C. 552a(k)(2). Under 
subsections (j)(2) and (k)(2) of the Act, TVA, through rulemaking, may 
exempt those systems of records maintained by a component of TVA that 
performs as its principal function any activity pertaining to the 
enforcement of criminal laws from certain provisions of the Act, if the 
system of records is used for certain law enforcement purposes.
    The TVA Police is a component of TVA that performs as one of its 
principal functions investigations into violations of criminal law in 
connection with TVA's programs and operations, pursuant to the Violent 
Crime Control and Law Enforcement Act of 1994, as amended, the TVA 
Police Records system of records falls within the scope of subsections 
(j)(2); i.e., information compiled for the purpose of criminal 
investigation, reports relating to any stage of the enforcement 
process, and information compiled for the identification of individual 
criminals, and (k)(2); i.e., investigatory material compiled for law 
enforcement purposes, other than material within the scope of (k)(2) 
above.
    The (j)(2) and (k)(2) exemptions for criminal law enforcement 
records remove restrictions on the manner in which information may be 
collected and the type of information that may be collected by the TVA 
Police in the course of a criminal investigation, limit certain notice 
requirements, and exempt the system of records from civil remedies for 
violations of the Act. These additional exemptions are necessary 
primarily to avoid premature disclosure of sensitive information, 
including, but not limited to, the existence of a criminal 
investigation, that may compromise or impede the investigation.
    A more complete explanation of each exemption follows, as required 
by the Act.
    TVA adds the following to the current exemptions contained in 18 
CFR 1301.24.

Exemptions Pursuant to (j)(2) and (k)(2)

    TVA has determined that the TVA Police Records should be exempt 
from the following provisions of the Privacy Act and corresponding 
agency regulations. These exemptions are necessary and appropriate to 
maintain the integrity and confidentiality of criminal investigations.
    TVA will use the (j)(2) and (k)(2) exemptions for the following 
reasons: (a) 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. This accounting 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 could 
alert the subject of an investigation to the existence and nature of 
the investigation and reveal investigative or prosecutive interest by 
other agencies, particularly in a joint-investigation situation. This 
could seriously impede or compromise the investigation and case 
preparation by prematurely revealing its existence and nature; 
compromise or interfere with witnesses or make witnesses reluctant to 
cooperate with the investigators; lead to suppression, alteration, 
fabrication, or destruction of evidence; and endanger the physical 
safety of confidential sources, witnesses, law enforcement personnel 
and their families.
    (b) 5 U.S.C. 552a(c)(4) requires an agency to inform outside 
parties of correction of and notation of disputes about information in 
a system in accordance with subsection (d) of the Privacy Act. Since 
this system of records is already exempted from the access provisions 
of subsection (d) of the Privacy Act, this section is not properly 
applicable.
    (c) 5 U.S.C. 552a (d) and (f) require an agency to provide access 
to records, make corrections and amendments to

[[Page 4643]]

records, and notify individuals of the existence of records upon their 
request. Providing individuals with access to records of an 
investigation and the right to contest the contents of those records 
and force changes to be made to the information contained therein would 
seriously interfere with and thwart the orderly and unbiased conduct of 
the investigation and impede case preparation. Providing the access 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise 
of witnesses or render witnesses reluctant to cooperate with 
investigators; lead to suppression, alteration, fabrication, or 
destruction of evidence; endanger the physical safety of confidential 
sources, witnesses, law enforcement personnel and their families; and 
result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach to satisfy any Government 
claims growing out of the investigation.
    (d) 5 U.S.C. 552a(e)(1) requires an agency to maintain in agency 
records only ``relevant and necessary'' information about an 
individual. This provision is inappropriate for investigations, because 
it is not always possible to detect the relevance or necessity of each 
piece of information in the early stages of an investigation. In some 
cases, it is only after the information is evaluated in light of other 
evidence that its relevance and necessity will be clear. In other 
cases, what may appear to be a relevant and necessary piece of 
information may become irrelevant in light of further investigation.
    In addition, during the course of an investigation, the 
investigator may obtain information that relates primarily to matters 
under the investigative jurisdiction of another agency (e.g., the 
fraudulent use of Social Security numbers), and that information may 
not be reasonably segregated. In the interest of effective law 
enforcement, TVA Police should retain this information, since it can 
aid in establishing patterns of criminal activity and can provide 
valuable leads for Federal and other law enforcement agencies.
    (e) 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 general rule that information be collected ``to the 
greatest extent practicable'' from the target individual is not 
appropriate in investigations. TVA Police should be authorized to use 
their professional judgment as to the appropriate sources and timing of 
an investigation. Often it is necessary to conduct an investigation so 
that the target does not suspect that he or she is being investigated. 
The requirement to obtain the information from the targeted individual 
may put the suspect on notice of the investigation and thereby thwart 
the investigation by enabling the suspect to destroy evidence and take 
other action that would impede the investigation. This requirement may 
also in some cases preclude TVA Police from gathering information and 
evidence before interviewing an investigative target in order to 
maximize the value of the interview by confronting the target with the 
evidence or information. 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 verify the accuracy of 
the evidence collected.
    In addition, the statutory term ``to the greatest extent 
practicable'' is a subjective standard, and it is impossible adequately 
to define the term so that individual TVA Police investigators can 
consistently apply it to the many fact patterns presented in TVA Police 
investigations.
    (f) 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 purpose 
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.
    (g) 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 these systems of records are 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 these systems of 
records will be exempted from these subsections. Although the system 
would be exempt from these requirements, TVA Police has published 
information concerning its notification, access, and contest procedures 
because, under certain circumstances, TVA Police could decide it is 
appropriate for an individual to have access to all or a portion of 
his/her records in these systems of records.
    (h) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of 
the categories of sources or records in the system of records. To the 
extent that this provision is construed to require more detailed 
disclosure than the broad, generic information currently published in 
the system notice, an exemption from this provision is necessary to 
protect the confidentiality of sources of information, to protect 
privacy and physical safety of witnesses and informants, and to avoid 
the disclosure of investigative techniques and procedures. TVA Police 
will, nevertheless, publish such a notice in broad generic terms.
    (i) 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. Much the same rationale is 
applicable to this exemption as that set out previously in item (d) 
(duty to maintain in agency records only ``relevant and necessary'' 
information about an individual). While the TVA Police make every 
effort to maintain records that are accurate, relevant, timely, and 
complete, it is not always possible in an investigation to determine 
with certainty that all the information collected is accurate, 
relevant, timely, and complete. During a thorough investigation, a 
trained investigator would be expected to collect allegations, 
conflicting information, and information that may not be based upon the 
personal knowledge of the provider. At the point of determination to 
refer the matter to a prosecutive agency, for example, that information 
would be in the system of records, and it may not be possible until 
further investigation is conducted, or indeed in many cases until after 
a trial

[[Page 4644]]

(if at all), to determine the accuracy, relevance, and completeness of 
some information. This requirement would inhibit the ability of trained 
investigators to exercise professional judgment in conducting a 
thorough investigation. Moreover, fairness to affected individuals is 
assured by the due process they are accorded in any trial or other 
proceeding resulting from the TVA Police investigation.
    (j) 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 under compulsory legal process when such 
process becomes a matter of public record. Compliance with this 
provision could prematurely reveal and compromise an ongoing criminal 
investigation to the target of the investigation and reveal techniques, 
procedures, or evidence.
    (k) 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. Allowing civil lawsuits for alleged Privacy 
Act violations by TVA Police would compromise TVA Police investigations 
by subjecting the sensitive and confidential information in the TVA 
Police Records to the possibility of inappropriate disclosure under the 
liberal civil discovery rules. That discovery may reveal confidential 
sources, the identity of informants, and investigative procedures and 
techniques, to the detriment of the particular criminal investigation 
as well as other investigations conducted by the TVA Police.
    The pendency of such a suit would have a chilling effect on 
investigations, given the possibility of discovery of the contents of 
the investigative case file, and a Privacy Act lawsuit could therefore 
become a ready strategic weapon used to impede TVA Police 
investigations. Furthermore, since, under the current regulations, the 
system is exempt from many of the Act's requirements, it is unnecessary 
and contradictory to provide for civil remedies from violations of 
those provisions in particular.
    This final rule has been reviewed under Executive Order No. 12291 
and has been determined not to be a ``major rule'' since it will not 
have an annual effect on the economy of $100 million or more.
    In addition, it has been determined that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

List of Subjects in 18 CFR Part 1301

    Administrative practice and procedure, Freedom of Information, 
Privacy Act, Sunshine Act.

    For the reasons set forth in the preamble, 18 CFR Ch. XIII, part 
1301, is amended as follows:

PART 1301--PROCEDURES

    1. The authority citation for part 1301 continues to read as 
follows:

    Authority:  16 U.S.C. 831-831dd, 5 U.S.C. 552.


Sec. 1301.24  [Amended]

    2. Section 1301.24(e) is added to read as follows:
* * * * *
    (e) The TVA system TVA Police Records is exempt from subsections 
(c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a 
(section 3 of the Privacy Act) and corresponding sections of these 
rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is 
exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
This system is exempt because application of these provisions might 
alert investigation subjects to the existence or scope of 
investigations, lead to suppression, alteration, fabrication, or 
destruction of evidence, disclose investigative techniques or 
procedures, reduce the cooperativeness or safety of witnesses, or 
otherwise impair investigations.
William S. Moore,
Senior Manager, Administrative Services.
[FR Doc. 97-2299 Filed 1-30-97; 8:45 am]
BILLING CODE 8120-08-U