62670 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Proposed Rules

DEPARTMENT OF EDUCATION

34 CFR Part 5b

RIN 1880–AA78

Privacy Act Regulations

AGENCY: Office of Inspector General,

Department of Education.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Secretary proposes to

amend the Department’s regulations

implementing the Privacy Act of 1974

(the Act). These amendments are

needed to modify existing departmental

regulations to exempt from certain

provisions of the Act a new system of

records known as the Office of Inspector

General (OIG) Hotline Complaints Files

(System No. 18–10–0004) (ED/OIG

Hotline Complaint Files). These

exemptions are needed to protect

information regarding Hotline

complaints from disclosure to target

individuals and others who could

interfere with the processing and

disposition of the information and with

law enforcement activities relating to

the Hotline complaints.

DATES: Comments must be received by

the Department on or before January 8,

1998.

ADDRESSES: All comments concerning

these proposed regulations should be

addressed to Dianne Van Riper, U.S.

Department of Education, 600

Independence Avenue, SW., Room

4106, Switzer Building, Washington, DC

20202–1530. Comments may also be

sent through the Internet to:

Comments@ed.gov

You must include the term ‘‘Privacy

Act’’ in the subject line of the electronic

message.

To ensure that public comments have

maximum effect in developing the final

regulations, the Department urges

commenters to identify clearly the

specific section or sections of the

proposed regulations that each comment

addresses and to arrange comments in

the same order as the proposed

regulations.

FOR FURTHER INFORMATION CONTACT:

Dianne Van Riper. Telephone: (202)

205–8762. Individuals who use a

telecommunications device for the deaf

(TDD) may call the Federal Information

Relay Service (FIRS) at 1–800–877–8339

between 8 a.m. and 8 p.m., Eastern time,

Monday through Friday.

Individuals with disabilities may

obtain this document in an alternate

format (e.g., Braille, large print,

audiotape, or computer diskette) on

request to the contact person listed in

the preceding paragraph.

SUPPLEMENTARY INFORMATION:

Electronic Access to This Document

Anyone may view this document, as

well as all other Department of

Education documents published in the

Federal Register, in text or portable

document format (pdf) on the World

Wide Web at either of the following

sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the pdf you must have the

Adobe Acrobat Reader Program with

Search, which is available free at either

of the previous sites. If you have

questions about using the pdf, call the

U.S. Government Printing Office toll

free at 1–888–293–6498.

Anyone may also view these

documents in text copy only on an

electronic bulletin board of the

Department. Telephone: (202) 219–1511

or, toll free, 1–800–222–4922. The

documents are located under Option

G—Files/Announcements, Bulletins and

Press Releases.

Note: The official version of this document

is the document published in the Federal

Register.

General

The proposed exemptions are

authorized under the Privacy Act, 5

U.S.C. 552a(j)(2) and (k)(2). Under

subsection (j)(2) of the Act, the Secretary

through rulemaking may exempt from

certain provisions of the Act those

systems of records maintained by a

component of the Department that

performs as its principal function any

activity pertaining to the enforcement of

criminal laws, if the information in the

system is compiled for the purpose of

criminal investigation. Under 5 U.S.C.

552a(k)(2), the Secretary through

rulemaking may exempt from a more

limited number of Privacy Act

requirements a system of records that

contains investigatory materials

compiled for civil and administrative

law enforcement purposes.

The OIG is a component of the

Department that performs as its

principal function investigations into

violations of criminal law in connection

with the Department’s programs and

operations, pursuant to the Inspector

General Act of 1978, as amended, 5

U.S.C. app. 3. The ED/OIG Hotline

Complaint Files system of records falls

within the scope of subsection (j)(2), i.e.,

information compiled for the purpose of

criminal investigation. The proposed

(j)(2) exemptions for criminal law

enforcement records would remove

restrictions on the manner in which

information may be collected and the

type of information that may be

collected by OIG in processing Hotline

information; would limit certain

requirements regarding notice to

individuals; and would exempt the

system of records from civil remedies

for violations of the Act. These

exemptions are necessary primarily to

avoid premature disclosures of sensitive

information, including, but not limited

to, the existence of a criminal

investigation, that may compromise or

impede the disposition of Hotline

complaints and allegations.

The proposal to add (k)(2) exemptions

reflects recognition that certain records

in the Hotline system may fall outside

the (j)(2) exemptions because they relate

primarily to civil and administrative

law enforcement, such as allegations of

misconduct by Department employees

in violation of the Standards of

Conduct. Nevertheless, the Act

recognizes that these records may also

properly be exempted from certain

disclosure and notice requirements, as

well as restrictions on the manner in

which OIG may collect information, in

order to avoid compromising, impeding,

or interfering with the disposition of

those Hotline complaints.

A more complete explanation of each

proposed exemption follows.

A. Exemptions Pursuant to (j)(2)

The Secretary has determined that, to

the extent the ED/OIG Hotline

Complaint Files consist of information

compiled for the purpose of criminal

investigation, the system of records

should be exempt from the following

provisions of the Privacy Act and

corresponding departmental regulations,

as authorized under subparagraph (j)(2)

of the Privacy Act, for the following

reasons:

1. 5 U.S.C. 552a(c)(3) and 34 CFR

5b.9(a)(1) require an agency to make the

accounting of disclosures from a system

of records available to the individual

named in the record at the individual’s

request. If the OIG made such an

accounting available to target or source

individuals, the availability of that

information could seriously impede or

compromise the processing of the

Hotline complaint and any resulting

criminal investigation by prematurely

revealing its existence and nature,

compromise or interfere with witnesses

or make witnesses reluctant to cooperate

with the investigators, and lead to

suppression, alteration, or destruction of

evidence.

2. 5 U.S.C. 552a(c)(4) and 34 CFR

5b.7(c) and 5b.8(b) require an agency to

inform parties to whom records have

been disclosed about any correction of

records or a subject individual’s
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Proposed Rules 62671

statement disputing information in the

record. Because the Secretary also

proposes to exempt this system of

records from the requirements to correct

records or to permit an individual to put

in his or her records a statement

disagreeing with a decision not to

correct records, the requirement to

inform parties who have received the

record is not applicable.

3. 5 U.S.C. 552a(d)(1) through (4) and

(f) and 34 CFR 5b.5(a)(1) and (c), 5b.7,

and 5b.8 require an agency to provide

access to records, make corrections and

amendments to records, and notify

individuals of the existence of records

upon their request. Providing

individuals with access to records of

Hotline complaints, permitting them to

contest the complaint contents, and

allowing them to force changes to be

made to the information contained in

those records seriously interfere with

and compromise the OIG’s ability to

conduct an orderly and unbiased

processing of Hotline complaints and

would impede the conduct of resulting

investigations.

4. 5 U.S.C. 552a(e)(1) and 34 CFR

5b.4(a)(1) require an agency to maintain

in its records only ‘‘relevant and

necessary’’ information about an

individual. Because it is not always

possible to detect the relevance or

necessity of each piece of information

reported to the Hotline or collected in

the preliminary phase of an

investigation, this provision is

inappropriate for Hotline complaints. In

some cases, it is only after the

information is evaluated in light of other

evidence that its relevance and

necessity is clear. In other cases, what

may appear to be a relevant and

necessary piece of information may

become irrelevant in light of further

inquiry or investigation. Also, the

Hotline 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,

the OIG 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.

5. 5 U.S.C. 552a(e)(2) and 34 CFR

5b.4(a)(3) require an agency to collect

information from the subject individual

of the investigation. The requirement

that OIG collect information ‘‘to the

greatest extent practicable’’ from the

target individual is not appropriate for

the Hotline Complaint Files system of

records where allegations are

volunteered to OIG. To determine the

proper disposition of the complaint, it is

often necessary to conduct an inquiry so

that the target individual does not

suspect that he or she is being

investigated. The requirement to obtain

information from targeted individual

may alert the suspect of an investigation

resulting from a Hotline complaint and

thwart the investigation by enabling the

suspect to destroy evidence or take

another avoidance action.

6. 5 U.S.C. 552a(e)(3) and 34 CFR

5b.4(a)(3) require an agency to provide

a Privacy Act notice in the collection of

information from individuals. Giving

notice to a complainant would impair

the OIG’s ability to collect candid and

forthright information of criminal

wrongdoing from Hotline sources.

7. 5 U.S.C. 552a(e)(4)(G), (H), and (I)

requires an agency to publish notice of

procedures for notification, access, and

correction of records and notice of the

categories of sources of records in the

system. These requirements are

unnecessary, since this system of

records will be exempt from the

underlying duties imposed by the

Privacy Act. An exemption from (I) is

required to protect the confidentiality of

sources of information and to protect

the privacy and physical safety of

witnesses and informants.

8. 5 U.S.C. 552a(e)(5) requires an

agency to maintain records with such

accuracy, relevance, timeliness, and

completeness as is reasonably necessary

to assure fairness. The OIG makes every

effort to maintain records that are

accurate, relevant, timely, and complete;

however, it is not always possible in

processing a Hotline complaint to

determine with certainty that all the

information collected is accurate,

relevant, timely, and complete.

9. 5 U.S.C. 552a(e)(8) requires an

agency to make reasonable efforts to

serve notice on an individual if any

record on that individual is made

available under compulsory legal

process if that process becomes a matter

of public record. If the OIG complied

with this provision, it could

prematurely reveal and compromise an

ongoing criminal investigation that

resulted from a Hotline complaint.

10. 5 U.S.C. 552a(g) requires an

agency to be subjected to civil remedies

from an individual for alleged violations

of the Privacy Act. Allowing civil

lawsuits for alleged Privacy Act

violations would compromise the

orderly and objective processing of

Hotline complaints and the conduct of

resulting criminal investigations by

subjecting the sensitive and confidential

information in the ED/OIG Hotline

Complaint Files to the possibility of

premature disclosure under the liberal

civil discovery rules. That discovery

may reveal confidential sources, the

identity of informants, and investigative

procedures and techniques.

B. Exemptions Pursuant to (k)(2)

The Secretary has determined that, to

the extent the ED/OIG Hotline

Complaint Files consist of investigatory

material compiled for law enforcement

purposes, the system of records should

be exempt from the following provisions

of the Privacy Act and corresponding

departmental regulations, as authorized

by subparagraph (k)(2) of the Privacy

Act, for the following reasons:

1. 5 U.S.C. 552a(c)(3) and CFR

5b.9(c)(3) require an agency to make the

accounting of disclosures from a system

of records available to the individual

named in the record at the individual’s

request. If the OIG made such an

accounting available to target or source

individuals, the availability of that

information could seriously impede or

compromise the processing of the

Hotline complaint and any resulting

criminal investigation by prematurely

revealing its existence and nature,

compromise or interfere with witnesses

or make witnesses reluctant to cooperate

with the investigators, and lead to

suppression, alteration, or destruction of

evidence.

2. 5 U.S.C. 552a(d)(1) through (4) and

(f) and 34 CFR 5b.5(a)(1) and (c), 5b.7,

and 5b.8 require an agency to provide

access to records, make corrections and

amendments to records, and notify

individuals of the existence of records

upon their request. Providing

individuals with access to records of

Hotline complaints, permitting them to

contest the complaint contents, and

allowing them to force changes to be

made to the information contained

therein would seriously interfere with

and compromise the OIG’s ability to

conduct an orderly and unbiased

processing of Hotline complaints and

would impede the conduct of resulting

investigations.

3. 5 U.S.C. 552a(e)(1) and 34 CFR

5b.4(a)(1) require an agency to maintain

in its records only ‘‘relevant and

necessary’’ information about an

individual. Because it is not always

possible to detect the relevance or

necessity of each piece of information

reported to the Hotline or collected in

the preliminary phase of an

investigation, this provision is

inappropriate for Hotline complaints. In

some cases, it is only after the

information is evaluated in light of other

evidence that its relevance and

necessity is clear. In other cases, what

may appear to be a relevant and

necessary piece of information may
62672 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Proposed Rules

become irrelevant in light of further

inquiry or investigation. Also, the

Hotline 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,

the OIG 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.

4. 5 U.S.C.552a(e)(4)(G), (H), and (I)

requires an agency to publish notice of

procedures for notification, access, and

correction of records and notice of the

categories of sources of records in the

system. These requirements are

unnecessary, since this system of

records will be exempt from the

underlying duties imposed by the

Privacy Act. An exemption from (I) is

required to protect the confidentiality of

sources of information and to protect

the privacy and physical safety of

witnesses and informants.

Clarity of the Regulations

Executive Order 12866 requires each

agency to write regulations that are easy

to understand.

The Secretary invites comments on

how to make these proposed regulations

easier to understand, including answers

to questions such as the following: (1)

Are the requirements in the proposed

regulations clearly stated? (2) Do the

proposed regulations contain technical

terms or other wording that interferes

with their clarity? (3) Does the format of

the proposed regulations (grouping and

order of sections, use of headings,

paragraphing, etc.) aid or reduce their

clarity? Would the regulations be easier

to understand if they were divided into

more (but shorter) sections? (A

‘‘section’’ is preceded by the symbol

‘‘§ ’’ and a numbered heading; for

example, § 5b.11 Exempt systems.) (4) Is

the description of the proposed

regulations in the SUPPLEMENTARY

INFORMATION section of this preamble

helpful in understanding the proposed

regulations? How could this description

be more helpful in making the proposed

regulations easier to understand? (5)

What else could the Department do to

make the proposed regulations easier to

understand?

A copy of any comments that concern

how the Department could make these

proposed regulations easier to

understand should be sent to Stanley M.

Cohen, Regulations Quality Officer, U.S.

Department of Education, 600

Independence Avenue, S.W. (Room

5100, FB–10B), Washington, D.C.

20202–2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these

proposed regulations would not have a

significant economic impact on a

substantial number of small entities.

These proposed regulations involve

procedural rights of individuals under

the Privacy Act. Individuals are not

considered to be ‘‘entities’’ under the

Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

These proposed regulations have been

examined under the Paperwork

Reduction Act of 1995 and have been

found to contain no information

collection requirements.

Intergovernmental Review

This program is not subject to the

requirements of Executive Order 12372

and the regulations in 34 CFR Part 79.

Invitation To Comment

Interested persons are invited to

submit comments and recommendations

regarding these proposed regulations.

All comments submitted in response to

these proposed regulations will be

available for public inspection, during

and after the comment period, in Room

5624, GSA Regional Office Building 3,

Washington, D.C., between the hours of

8:30 a.m. and 4:00 p.m., Eastern time,

Monday through Friday of each week

except Federal holidays.

On request the Department supplies

an appropriate aid, such as a reader or

print magnifier, to an individual with a

disability who needs assistance to

review the comments or other

documents in the public rulemaking

docket for these proposed regulations.

An individual with a disability who

wants to schedule an appointment for

this type of aid may call (202) 205–8113

or (202) 260–9895. An individual who

uses a TDD may call the Federal

Information Relay Service at 1–800–

877–8339 between 8 a.m. and 8 p.m.,

Eastern time, Monday through Friday.

To assist the Department in

complying with the specific

requirements of Executive Order 12866

and its overall requirement of reducing

regulatory burden, the Secretary invites

comments on whether there may be

further opportunities to reduce any

regulatory burdens found in these

proposed regulations.

List of Subjects in 34 CFR Part 5b

Privacy.

Dated: November 18, 1997.

Richard W. Riley,

Secretary of Education.

(Catalogue of Federal Domestic Assistance

Number does not apply)

The Secretary proposes to amend Part

5b of Title 34 of the Code of Federal

Regulations as follows:

PART 5b—PRIVACY ACT

REGULATIONS

1. The authority citation for Part 5b is

revised to read as follows:

Authority: 5 U.S.C. 301 and 552a.

2. Section 5b.11 is amended by

revising paragraphs (b) introductory text

and (c)(1) introductory text to read as

follows:

§ 5b.11 Exempt systems.

* * * * *

(b) Specific systems of records

exempted under (j)(2). The Department

exempts the Investigative Files of the

Inspector General ED/OIG (18–10–0001)

and the Hotline Complaint Files of the

Inspector General ED/OIG (18–10–0004)

systems of records from the following

provisions of 5 U.S.C. 552a and this

part:

* * * * *

(c) * * *

(1) The Department exempts the

Investigative Files of the Inspector

General ED/OIG (18–10–0001) and the

Hotline Complaint Files of the Inspector

General ED/OIG (18–10–0004) from the

following provisions of 5 U.S.C. 552a

and this part to the extent that these

systems of records consist of

investigatory material and complaints

that may be included in investigatory

material compiled for law enforcement

purposes:

* * * * *

[FR Doc. 97–30716 Filed 11–21–97; 8:45 am]

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