[Federal Register Volume 77, Number 12 (Thursday, January 19, 2012)]
[Notices]
[Pages 2692-2697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-898]


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DEPARTMENT OF COMMERCE

[Docket No. 110906558-1551-01]


Privacy Act of 1974; System of Records

AGENCY: Office of Inspector General (OIG), Department of Commerce 
(DOC).

ACTION: Notice of Proposed Amendment to Privacy Act System of Records, 
``Investigative and Inspection Records--COMMERCE/DEPT-12.''

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SUMMARY: In accordance with the Privacy Act of 1974, as amended, 5 
U.S.C. 552a(e)(4) and (11), and Office of Management and Budget (OMB) 
Circular A-130, Appendix I, ``Federal Agency Responsibility for 
Maintaining Records about Individuals,'' DOC OIG proposes to amend the 
system of records entitled ``Investigative and Inspection Records--
COMMERCE/DEPT-12,'' to include the new automated Inspector General 
Complaint Intake Reporting and Tracking System (``IG-CIRTS''); change 
the system name to ``OIG Investigative Records''; update OIG routine 
uses; update OIG's practices for electronically storing, retrieving, 
and safeguarding records in the System, and generally update the 
systems notice. The new system will enhance efficiency in the complaint 
intake and case tracking processes, reduce burdens of paper storage, 
and update protections in access and storage of information within the 
records system. Accordingly, ``Investigative and Inspection Records--
COMMERCE/DEPT--12,'' published in the Federal Register, 50 FR 9102-9105 
(Mar. 6, 1985), is amended and restated as shown below. DOC OIG invites 
public comment on the amended system announced in this publication.

DATES: Comment Date: To be considered, written comments on the proposed 
amended system must be submitted on or before February 21, 2012.
    Effective Date: Unless comments are received, the amended system of 
records will become effective, as proposed, on the date a subsequent 
notice is published in the Federal Register.

ADDRESSES: Please address comments to Counsel to the Inspector General, 
Room 7892, U.S. Department of Commerce, 1401 Constitution Avenue NW., 
Washington, DC 20230; by email to <a href="/cdn-cgi/l/email-protection#317876725e445f42545d715e58561f555e521f565e47"><span class="__cf_email__" data-cfemail="4f06080c203a213c2a230f202628612b202c61282039">[email protected]</span></a>; or by 
facsimile to (202) 501-7335. For further information, general 
questions, and privacy-related issues, please contact the Counsel to 
the Inspector General at (202) 482-5992.

SUPPLEMENTARY INFORMATION: The Inspector General Act of 1978, as 
amended, 5 U.S.C. App. 3, authorizes DOC OIG to conduct investigations 
to detect and prevent fraud, waste, mismanagement and abuse, and to 
promote economy and efficiency, in the DOC's programs and operations. 
OIG uses records in this system in the course of investigating 
individuals and entities suspected of criminal, civil, or 
administrative misconduct, and in supporting related judicial and 
administrative proceedings. OIG's Office of Investigations (OI) 
maintains and manages OIG's investigative records. The updates to the 
system will not involve the collection of additional categories of 
information, but will provide methods for data tracking and retrieval 
previously unavailable. The new system will enhance efficiency in the 
complaint intake and case tracking processes, reduce burdens of paper 
storage, and update protections in access and storage of information 
within the records system.

SYSTEM NAME:
    COMMERCE/DEPT-12, OIG Investigative Records.

SECURITY CLASSIFICATION:
    Sensitive but Unclassified (SBU).

SYSTEM LOCATION:
    U.S. Department of Commerce, Office of Inspector General, 14th 
Street and Constitution Avenue NW., Washington, DC 20230; U.S. 
Department of Commerce, Office of Inspector General, Regional Offices, 
and investigative site(s) used in the course of OIG investigation(s).

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    In connection with its investigative duties, DOC OIG maintains 
records in its records system on the following categories of 
individuals insofar as they are relevant to any investigation or 
preliminary inquiry undertaken to determine whether to commence an 
investigation: subjects of investigations; complainants; witnesses; 
confidential and non-confidential informants; contractors; 
subcontractors; recipients of Federal funds and their contractors/
subcontractors and employees; individuals interacting with DOC 
employees or management; current, former, and prospective DOC

[[Page 2693]]

employees; alleged violators of DOC rules and regulations; union 
officials; individuals who are investigated and/or interviewed; persons 
suspected of violations of administrative, civil, and/or criminal 
provisions; grantees; sub-grantees; lessees; licensees; persons engaged 
in official business with the DOC; or other persons identified by the 
OIG or by other agencies, constituent units of the DOC, and members of 
the general public in connection with the authorized functions of the 
OIG. The names of individuals and related information may be received 
by referral or through inquiries initiated at the discretion of the 
Inspector General in the conduct of assigned duties.

CATEGORIES OF RECORDS IN THE SYSTEM:
    The system contains investigative reports and materials gathered or 
created with regard to investigations of administrative, civil, and 
criminal matters by DOC OIG and other Federal, State, local, tribal, 
territorial, non-governmental, international, foreign regulatory, or 
foreign law enforcement agencies or entities. Categories of records may 
include: complaints; requests to investigate; information contained in 
criminal, civil, or administrative referrals; statements from subjects 
and/or witnesses; affidavits, transcripts, police reports, photographs, 
and/or documents relative to a subject's prior criminal record; medical 
records; accident reports; materials and intelligence information from 
other governmental investigatory or law enforcement organizations; 
information relative to the status of a particular complaint or 
investigation, including any determination relative to criminal 
prosecution, civil, or administrative action; general case management 
documentation; subpoenas and evidence obtained in response to 
subpoenas; evidence logs; pen registers; correspondence; records of 
investigation; and other data and evidence collected or generated by 
OIG's Office of Investigations while conducting its official duties.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
    The Inspector General Act of 1978, 5 U.S.C. App. 3, as amended.

PURPOSE:
    The records contained in this system are used by DOC OIG to carry 
out its statutory responsibilities under the Inspector General Act of 
1978, 5 U.S.C. App. 3, as amended, to conduct and supervise 
investigations, prevent and detect fraud, waste, and abuse, and promote 
economy, efficiency, and effectiveness in DOC programs and operations. 
The records are used in the course of investigating individuals and 
entities suspected of criminal, civil, or administrative misconduct and 
in supporting related judicial and administrative proceedings.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES 
OF USERS AND THE PURPOSES OF SUCH USES:
    1. A record from this system of records may be disclosed, as a 
routine use, to a Federal, state or local agency maintaining civil, 
criminal or other relevant enforcement information or other pertinent 
information, such as current license, if necessary to obtain 
information relevant to a DOC decision concerning the assignment, 
hiring, or retention of an individual, the issuance of a security 
clearance, the letting of a contract, or the issuance of a license, 
grant or other benefit.
    2. A record from this system of records may be disclosed, as a 
routine use, in the course of presenting evidence to a court, 
magistrate, or administrative tribunal, including disclosures to 
opposing counsel in the course of settlement negotiations.
    3. A record in this system of records may be disclosed, as a 
routine use, to a Member of Congress submitting a request involving an 
individual when the individual has requested assistance from the Member 
with respect to the subject matter of the record.
    4. A record in this system of records may be disclosed, as a 
routine use, to the Office of Management and Budget in connection with 
the review of private relief legislation as set forth in OMB Circular 
A-19 at any stage of the legislative coordination and clearance process 
as set forth in that Circular.
    5. A record in this system of records may be disclosed, as a 
routine use, to the Department of Justice in connection with 
determining whether disclosure thereof is required by the Freedom of 
Information Act (5 U.S.C. 552).
    6. A record in this system may be transferred, as a routine use, to 
the Office of Personnel Management for personnel research purposes; as 
a data source for management information; for the production of summary 
descriptive statistics and analytical studies in support of the 
function for which the records are collected and maintained; or for 
related manpower studies.
    7. A record from this system of records may be disclosed, as a 
routine use, to the Administrator, General Services, or his or her 
designee, during an inspection of records conducted by GSA as part of 
that agency's responsibility to recommend improvements in records 
management practices and programs under authority of 44 U.S.C. 2904 and 
2906. Such disclosure shall be made in accordance with the GSA 
regulations governing inspection of records for this purpose and any 
other relevant (i.e. GSA or DOC) directive. Such disclosure shall not 
be used to make determinations about individuals.
    8. A record from this system of records may be disclosed, as a 
routine use, to the appropriate agency or entity, whether Federal, 
State, local, tribal, territorial, foreign, or international, charged 
with the responsibility for investigating or prosecuting a violation of 
any law, rule, regulation or order. Routine use for law enforcement 
purposes also includes disclosure to individuals or to agencies, 
whether Federal, State, local, foreign, or international, when 
necessary to further the ends of an investigation.
    9. A record from this system of records may be disclosed, as a 
routine use, to representatives of the Department of Justice (DOJ) or 
of any other agency that is responsible for representing DOC interests 
in connection with judicial, administrative or other proceedings. This 
includes circumstances in which (1) The DOC or OIG, or any component 
thereof; (2) any employee of the DOC or OIG in his or her official 
capacity; (3) any employee of the DOC or OIG in his or her individual 
capacity, where DOJ has agreed to represent or is considering a request 
to represent the employee; or (4) the United States or any of its 
components, is a party to pending or potential litigation or has an 
interest in such litigation; in which the DOC or OIG is likely to be 
affected by the litigation, or in which the DOC or OIG determines that 
the use of such records by the DOJ is relevant and necessary to the 
litigation; provided, however, that in each case, the DOC or OIG 
determines that disclosure of records to the DOJ or representative is a 
use of the information that is compatible with the purpose for which 
the records were collected. Records may also be disclosed to 
representatives of DOJ and other U.S. Government entities, to the 
extent necessary, to obtain their advice on any matter relevant to an 
OIG investigation.
    10. A record from this system of records may be disclosed, as a 
routine use, to any source from which additional information is 
requested in order to obtain information relevant to: a decision by 
either the DOC or OIG concerning the hiring, assignment, or retention 
of an individual or other personnel action; the issuance, renewal, 
retention, or revocation of a security clearance; the execution of a 
security or

[[Page 2694]]

suitability investigation; the letting of a contract; or the issuance, 
retention, or revocation of a license, grant, award, contract, or other 
benefit to the extent the information is relevant and necessary to a 
decision by the DOC or OIG on the matter.
    11. A record from this system of records may be disclosed, as a 
routine use, to a Federal, State, local, tribal, territorial, foreign, 
international, or other public authority in response to its request in 
connection with: the hiring, assignment, or retention of an individual; 
the issuance, renewal, retention, or revocation of a security 
clearance; the reporting of an investigation of an individual; the 
execution of a security or suitability investigation; the letting of a 
contract; or the issuance, retention, or revocation of a license, 
grant, award, contract, or other benefit conferred by that entity to 
the extent that the information is relevant and necessary to the 
requesting entity's decision on the matter.
    12. A record in this system of records may be disclosed, as a 
routine use, in the event that a record, either by itself or in 
combination with other information, indicates a violation or a 
potential violation of law, whether civil, criminal, or regulatory in 
nature, and whether arising by general statute or particular program 
statute, or by regulation, rule, or order issued pursuant thereto; or a 
violation or potential violation of a contract provision. In these 
circumstances, the relevant records in the system may be referred, as a 
routine use, to the appropriate agency or entity, whether Federal, 
State, local, tribal, territorial, foreign, or international charged 
with the responsibility of investigating or prosecuting such violation 
or charged with enforcing or implementing the statute, rule, 
regulation, order, or contract.
    13. A record in this system of records may be disclosed, as a 
routine use, to any source from which additional information is 
requested, either private or governmental, to the extent necessary to 
solicit information relevant to any investigation, audit, or 
evaluation.
    14. A record in this system of records may be disclosed, as a 
routine use, to a foreign government or international organization 
pursuant to an international treaty, convention, implementing 
legislation, or executive agreement entered into by the United States.
    15. A record in this system of records may be disclosed, as a 
routine use, to contractors, grantees, consultants, or volunteers 
performing or working on a contract, service, grant, cooperative 
agreement, job, or other activity for the DOC or OIG, who have a need 
to access the information in the performance of their duties or 
activities. When appropriate, recipients will be required to comply 
with the requirements of the Privacy Act of 1974 as provided in 5 
U.S.C. 552a(m).
    16. A record in this system of records may be disclosed, as a 
routine use, to representatives of the Office of Personnel Management, 
the Office of Special Counsel, the Merit Systems Protection Board, the 
Federal Labor Relations Authority, the Equal Employment Opportunity 
Commission, the Office of Government Ethics, and other Federal agencies 
in connection with their efforts to carry out their responsibilities to 
conduct examinations, investigations, and/or settlement efforts, in 
connection with administrative grievances, complaints, claims, or 
appeals filed by an employee, and such other functions promulgated in 5 
U.S.C. 1205-06.
    17. A record in this system of records may be disclosed, as a 
routine use, to a grand jury agent pursuant to a Federal or State grand 
jury subpoena or to a prosecution request that such record be released 
for the purpose of its introduction to a grand jury.
    18. A record in this system of records may be disclosed, as a 
routine use, to the Departments of the Treasury and Justice in 
circumstances in which OIG seeks to obtain, or has in fact obtained, an 
ex parte court order to obtain tax return information from the Internal 
Revenue Service.
    19. A record in this system of records may be disclosed, as a 
routine use, to any Federal official charged with the responsibility to 
conduct qualitative assessment reviews of internal safeguards and 
management procedures employed in investigative operations for purposes 
of reporting to the President and Congress on the activities of OIG. 
This disclosure category includes other Federal Offices of Inspectors 
General and members of the Council of Inspectors General on Integrity 
and Efficiency, and officials and administrative staff within their 
investigative chain of command, as well as authorized officials of DOJ 
and its component, the Federal Bureau of Investigation.
    20. A record in this system of records may be disclosed, as a 
routine use, to appropriate agencies, entities, and persons when (1) It 
is suspected or determined that the security or confidentiality of 
information in the system of records has been compromised; (2) it is 
determined that as a result of the suspected or confirmed compromise 
there is a risk of harm to economic or property interests, identify 
theft or fraud, or harm to the security or integrity of this system or 
other systems or programs (whether maintained by OIG, DOC, or another 
agency or entity) that rely upon the compromised information; and (3) 
the disclosure made to such agencies, entities, and persons is 
reasonably necessary to assist in connection with efforts to respond to 
the suspected or confirmed compromise and to prevent, minimize, or 
remedy such harm.
    21. A record in this system of records may be disclosed, as a 
routine use, to the public or to the media for release to the public, 
following consultation with the DOC Chief Privacy Officer, when the 
matter under investigation has become public knowledge or the Inspector 
General determines that such disclosure is necessary to preserve 
confidence in the integrity of the Inspector General audit, inspection, 
review, or investigative process, or is necessary to demonstrate the 
accountability of DOC employees, officers or individuals covered by the 
system, unless it is determined that release of the specific 
information in the context of a particular case would constitute an 
unwarranted invasion of personal privacy.
    22. A record in this system of records may be disclosed, as a 
routine use, to Congress, congressional committees, or the staffs 
thereof, in order to fulfill the Inspector General's responsibility, as 
mandated by the Inspector General Act of 1978, to keep the Congress, in 
connection with its oversight and legislative functions concerning the 
administration of programs and operations administered or financed by 
DOC, fully and currently informed concerning fraud and other serious 
problems, abuses, and deficiencies concerning the administration of 
programs and operations administered or financed by DOC.

DISCLOSURE TO CONSUMER REPORTING AGENCIES:
    None.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, 
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
    Paper records and other media (photographs, audio recording, 
diskettes, CDs, etc.) are stored in GSA-approved security containers 
with combination locks in a secured area. Electronic records are 
maintained on two servers, a data server which maintains the IG-CIRTS 
database, and a file server which maintains case files

[[Page 2695]]

and related materials. Both servers are maintained in a secured, 
restricted-area facility.

RETRIEVABILITY:
    Paper records are retrieved by alphabetical indices cross 
referenced to file numbers. Electronic records are retrieved via 
`Secure Socket Layer' (SSL) encryption search mechanisms. Electronic 
searches may be performed by search criteria that include case numbers, 
names of individuals or organizations, and other key word search 
variations.

SAFEGUARDS:
    Paper records are kept in locked cabinets, secured rooms, in a 
guarded building, and used only by authorized screened personnel. 
Electronic records are stored on two servers maintained in a locked 
facility that is secured at all times by security systems and video 
cameras. Data in the system are encrypted and password protected. 
Access to electronic records is restricted to DOC OIG staff 
individually authorized to access the IG-CIRTS application. Passwords 
are changed every 90 days. Backup tapes are stored in a locked and 
controlled room in a secure off-site facility.

RETENTION AND DISPOSAL:
    Records are retained and disposed of in accordance with the DOC OIG 
Records Retention Schedules approved by the National Archives and 
Records Administration.

SYSTEM MANAGER NAME AND ADDRESS:
    Deputy Assistant Inspector General for Investigations, Room 7898c, 
Office of Inspector General, United States Department of Commerce, 1401 
Constitution Ave., NW., Washington, DC 20230.

NOTIFICATION PROCEDURE:
    The Inspector General has exempted this system from the procedures 
of the Privacy Act relating to individuals' requests for notification 
of the existence of records on themselves.

RECORD ACCESS PROCEDURE:
    The Inspector General has exempted this system from the access 
procedures of the Privacy Act.

CONTESTING RECORDS PROCEDURE:
    The Inspector General has exempted this system from the contest 
procedures of the Privacy Act.

RECORD SOURCE CATEGORIES:
    DOC OIG collects information from a wide variety of sources, 
including information from the DOC and other Federal, State, and local 
agencies, subjects, witnesses, complainants, victims, confidential and 
non-confidential sources, individuals, and non-governmental entities.

SYSTEM EXEMPTIONS FROM CERTAIN PROVISIONS OF THE ACT:
    Under 5 U.S.C. 552a(j)(2), the head of any agency may exempt any 
system of records within the agency from certain provisions of the 
Privacy Act of 1974, if the agency or component that maintains the 
system performs as its principal function any activities pertaining to 
the enforcement of criminal laws. The Inspector General Act of 1978, 5 
U.S.C. App. 3, as amended, mandates the Inspector General to recommend 
policies for, and to conduct, supervise and coordinate activities in 
the Department and between the Department and other Federal, State and 
local government agencies with respect to all matters relating to the 
prevention and detection of fraud in programs and operations 
administered or financed by the Department, and to the identification 
and prosecution of participants in such fraud. Under the Act, whenever 
the Inspector General has reasonable grounds to believe there has been 
a violation of Federal criminal law, the Inspector General must report 
the matter expeditiously to the Attorney General. In addition to these 
principal functions pertaining to the enforcement of criminal laws, the 
Inspector General may receive and investigate complaints on information 
from various sources concerning the possible existence of activities 
constituting violations of law, rules or regulations, or mismanagement, 
gross waste of funds, abuses of authority or substantial and specific 
danger to the public health and safety. The provisions of the Privacy 
Act of 1974 from which exemptions are claimed under 5 U.S.C. 552a(j)(2) 
are as follows: 5 U.S.C. 552a(c)(3) and (4); 5 U.S.C. 552a(d); 5 U.S.C. 
552a(e)(1), (2) and (3); 5 U.S.C. 552a(e)(4)(G), (H), and (I); 5 U.S.C. 
552a(e)(5) and (8); 5 U.S.C. 552a(f); 5 U.S.C. 552a(g).
    To the extent that the exemption under 5 U.S.C. 552a(j)(2) is held 
to be invalid, then the exemptions under 5 U.S.C. 552a(k)(1), (k)(2), 
and (k)(5) are claimed for all material which meets the criteria of 
these three subsections.
    Provisions of the Privacy Act of 1974 from which exemptions are 
claimed under 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) are as follows: 5 
U.S.C. 552a(c)(3); 5 U.S.C. 552a(d); 5 U.S.C. 552a(e)(1); 5 U.S.C. 
552a(e)(4)(G), (H), and (I); 5 U.S.C. 552a(f).
    Reasons for exemptions: In general, the exemption of this 
information and material is necessary in order to accomplish the law 
enforcement function of the Office of Inspector General, to prevent 
disclosure of classified information as required by Executive Order, to 
prevent subjects of investigations from frustrating the investigatory 
process, to prevent the disclosure of investigative techniques, to 
fulfill commitments made to protect the confidentiality of sources, to 
maintain access to sources of information, and to avoid endangering 
these sources and law enforcement personnel. Detailed reasons follow:
    Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2):
    (1) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must 
give an individual named in a record an accounting which reflects the 
disclosure of the record to other persons or agencies. This accounting 
must state the date, nature and purpose of each disclosure of the 
record and the name and address of the recipient. The application of 
this provision would alert subjects of an investigation to the 
existence of the investigation and that such persons are subjects of 
that investigation. Since release of such information to subjects of an 
investigation would provide the subjects with significant information 
concerning the nature of the investigation, it could result in the 
altering or destruction of documentary evidence, improper influencing 
of witnesses, and other activities that could impede or compromise the 
investigation.
    (2) 5 U.S.C. 552a(c)(4), (d), (e)(4)(G) and (H), (f) and (g) relate 
to an individual's right to be notified of the existence of records 
pertaining to such individual; requirements for identifying an 
individual who requests access to records; the agency procedures 
relating to access to records and the contest of information contained 
in such records; and the civil remedies available to the individual in 
the event of adverse determinations by an agency concerning access to 
or amendment of information contained in records systems. This system 
is exempt from the foregoing provisions for the following reasons: To 
notify an individual at the individual's request of the existence of 
records in an investigative file pertaining to such individual, or to 
grant access to an investigative file could interfere with 
investigative and enforcement proceedings, deprive co-defendants of a 
right to a fair trial or other impartial adjudication, constitute an 
unwarranted invasion of personal privacy of others, disclose the 
identity or confidential sources, reveal confidential information 
supplied by these sources and disclose

[[Page 2696]]

investigative techniques and procedures.
    (3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose investigative techniques 
and procedures and cause sources to refrain from giving such 
information because of fear of reprisal, or fear of breach of promises 
of anonymity and confidentiality. This would compromise the ability to 
conduct investigations, and to identify, detect, and apprehend 
violators.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. An exemption from the foregoing is needed:
    a. Because it is not possible to detect relevance or necessity of 
specific information in the early stages of a criminal or other 
investigation.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any investigation the Inspector General may obtain 
information concerning the violations of laws other than those within 
the scope of his or her jurisdiction. In the interest of effective law 
enforcement, the Inspector General should retain this information as it 
may aid in establishing patterns of criminal activity, and provide 
leads for those law enforcement agencies charged with enforcing other 
segments of criminal or civil law.
    d. In interviewing persons, or obtaining other forms of evidence 
during an investigation, information may be supplied to the 
investigator which related to matters incidental to the main purpose of 
the investigation but which may relate to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (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 privilege under Federal programs. 
The application of the provision would impair investigations of illegal 
acts, violations of the rules of conduct, merit system and any other 
misconduct for the following reasons:
    a. In certain instances the subject of an investigation cannot be 
required to supply information to investigators. In those instances, 
information relating to a subject's illegal acts, violations of rules 
of conduct, or any other misconduct, etc., must be obtained from other 
sources.
    b. Most information collected about an individual under 
investigation is obtained from third parties such as witnesses and 
informers. It is not feasible to rely upon the subject of the 
investigation as a source for information regarding his or her 
activities.
    c. The subject of an investigation will be alerted to the existence 
of an investigation if any attempt is made to obtain information from 
subject. This could afford the individual the opportunity to conceal 
any criminal activities to avoid apprehension.
    d. 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) 5 U.S.C. 552a(e)(3) requires that an agency must inform the 
subject of an investigation who is asked to supply information of:
    a. The authority under which the information is sought and whether 
disclosure of the information is mandatory or voluntary,
    b. The purposes for which the information is intended to be used,
    c. The routine uses which may be made of the information, and
    d. The effects on the subject, if any, of not providing the 
requested information. The reasons for exempting this system of records 
from the foregoing provision are as follows:
    (i) The disclosure to the subject of the investigation as stated in 
(b) above would provide the subject with substantial information 
relating to the nature of the investigation and could impede or 
compromise the investigation.
    (ii) If the subject were informed of the information required by 
this provision, it could seriously interfere with undercover activities 
requiring disclosure of undercover agents' identity and impairing their 
safety, as well as impairing the successful conclusion of the 
investigation.
    (iii) Individuals may be contacted during preliminary information-
gathering in investigations before any individual is identified as the 
subject of an investigation. Informing the individual of the matters 
required by this provision would hinder or adversely affect any present 
or subsequent investigations.
    (7) 5 U.S.C. 552a(e)(5) requires that records be maintained with 
such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual in making any 
determination about an individual. Because the law defines ``maintain'' 
to include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment of its collection. In 
gathering information during the course of an investigation it is not 
possible to determine this prior to collection of the information. 
Facts are first gathered and then placed into a logical order which 
objectively proves or disproves criminal behavior on the part of the 
suspect. Material which may seem unrelated, irrelevant, incomplete, 
untimely, etc., may take on added meaning as an investigation 
progresses. The restrictions in this provision could interfere with the 
preparation of a complete investigative report.
    (8) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record of such 
individual is made available to any persons; under compulsory legal 
process when such process becomes a matter of public record. The notice 
requirements of this provision could prematurely reveal an ongoing 
criminal investigation to the subject of the investigation.
    Reasons for exemptions under 5 U.S.C. 552a(k)(1):
    (1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the record at 
their request. These accountings must state the date, nature and 
purpose of each disclosure of the record and the name and address of 
the recipient. The application of this provision would alert subjects 
of an investigation to the existence of the investigation, and that 
such persons are subjects of that investigation, information which if 
known might cause damage to national security.
    (2) 5 U.S.C. 552a(d), (e)(4)(G) and (H), and (f) relate to an 
individual's right to be notified of the existence of records 
pertaining to such individual; requirements for identifying an 
individual who requests access to records; and the agency procedures 
relating to access to records, and the contest of information contained 
in such records. This system is exempt from the foregoing provisions 
for the following reasons: To notify an individual at the individual's 
request of the existence of

[[Page 2697]]

records in an investigative file pertaining to such individual or to 
grant access to an investigative file could interfere with 
investigations undertaken in connection with national security; or 
could disclose the identity of sources kept secret to protect national 
security or reveal confidential information supplied by these sources.
    (3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose the identity of sources 
kept secret to protect national security.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. An exemption from the foregoing is needed:
    a. Because it is not possible to detect relevance or necessity of 
specific information in the early stages of an investigation involving 
national security matters.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any investigation the Inspector General may obtain 
information concerning the violators of laws other than those within 
the scope of his or her jurisdiction. In the interests of effective law 
enforcement, the Inspector General should retain this information as it 
may aid in establishing patterns of criminal activity, and provide 
leads for those law enforcement agencies charged with enforcing other 
segments of criminal or civil law.
    d. In interviewing persons, or obtaining forms of evidence during 
an investigation, information may be supplied to the investigator which 
relate to matters incidental to the main purpose of the investigation 
but which may relate to matters under the investigative jurisdiction of 
another agency. Such information cannot readily be segregated.
    Reasons for exemptions under 5 U.S.C. 552a(k)(5):
    (1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request. These accountings must state the date, nature and 
purpose of each disclosure of the record and the name and address of 
the recipient. The application of this provision would alert subjects 
of an investigation to the existence of the investigation and that such 
persons are subjects of that investigation. Since release of such 
information to subjects of an investigation would provide the subject 
with significant information concerning the nature of the 
investigation, it could result in the altering or destruction of 
documentary evidence, improper influencing of witnesses, and other 
activities that could impede or compromise the investigation.
    (2) 5 U.S.C. 552a(d), (e)(4)(G) and (H), and (f) relate to an 
individual's right to be notified of the existence of records 
pertaining to such individual; requirements for identifying an 
individual who requests access to records; and the agency procedures 
relating to access to records and the contest of information contained 
in such records. This system is exempt from the foregoing provisions 
for the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
interfere with investigative and enforcement proceedings; co-defendants 
of a right to a fair trial; constitute an unwarranted invasion of 
personal privacy of others; disclose the identity of confidential 
sources and reveal confidential information supplied by these sources; 
and disclose investigative techniques and procedures.
    (3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose investigative techniques 
and procedures and cause sources to refrain from giving such 
information because of fear of reprisal, or fear of breach of promises 
of anonymity and confidentiality. This would compromise the ability to 
conduct investigations, and to make fair and objective decisions on 
questions of suitability for Federal employment and related issues.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. An exemption from the foregoing is needed:
    a. Because it is not possible to detect relevance or necessity of 
specific information in the early stages of an investigation.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after that information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any investigation the Inspector General may obtain 
information concerning the violations of laws other than those within 
the scope of his or her jurisdiction. In the interest of effective law 
enforcement, the Inspector General should retain this information as it 
may aid in establishing patterns of criminal activity, and provide 
leads for those law enforcement agencies charged with enforcing other 
segments of criminal or civil law.
    d. In interviewing persons, or obtaining other forms of evidence 
during an investigation, information may be supplied to the 
investigator which relate to matters incidental to the main purpose of 
the investigation but which may relate to matters under investigative 
jurisdiction of another agency. Such information cannot readily be 
segregated.

    Dated: December 16, 2011.
Jonathan R. Cantor,
Chief Privacy Officer, Department of Commerce.
[FR Doc. 2012-898 Filed 1-18-12; 8:45 am]
BILLING CODE 3510-55-P


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