[Federal Register Volume 65, Number 36 (Wednesday, February 23, 2000)]
[Proposed Rules]
[Pages 8916-8917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3117]



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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 193-2000]


Privacy Act of 1974; Implementation

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice, Environment and Natural Resources 
Division, proposes to amend 28 CFR part 16 to exempt a system of 
records from certain provisions of the Privacy Act, 5 U.S.C. 552a. The 
system of records may contain information which relates to official 
Federal investigations and matters of law and regulatory enforcement. 
Accordingly, where applicable, the exemption is necessary to avoid 
interference with law and regulatory enforcement functions. 
Specifically, the Division proposes to exempt the Environment and 
Natural Resources Division Case and Related Files System, JUSTICE/ENRD-
003, from subsections (c)(3) and (4), (d), (e)(1), (e)(2), (e)(3), 
(e)(5), (e)(8), and (g) of the Privacy Act. These exemptions are 
necessary to protect the confidentiality of civil investigatory and 
criminal law enforcement materials and of properly classified 
information.

DATES: All comments must be received by April 3, 2000.

ADDRESSES: Address all comments to Mary Cahill, Management Analyst, 
Management and Planning Staff, Justice Management Division, Department 
of Justice, National Place Building, Room 1400 North, 1331 Pennsylvania 
Avenue, NW, Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: Mary E. Cahill at (202) 307-1823.

SUPPLEMENTARY INFORMATION:

Regulatory Flexibility Act:

    This Order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 12988

    The rule complies with the applicable standards provided in 
sections 3(a) and 3(b)(2) of Executive Order No. 12988.

Executive Order 12866

    The Attorney General has determined that this rule is not a 
significant regulatory action under Executive Order No. 12966, and 
accordingly, this rule has not been reviewed by the Office of 
Management and Budget.

List of Subjects in Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information Act, Privacy Act, and Government in Sunshine Act.

    Dated: January 27, 2000.
Stephen R. Colgate,
Assistant Attorney General for Administration.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552 and delegated to me by the Attorney General Order 793-78, it 
is proposed to amend 28 CFR Part 16 as follows:

PART 16--[AMENDED]

    1. The authority citation for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553, 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534: 31 U.S.C. 3717.

    2. Section 16.92 is amended by revising paragraphs (a) and (b) to 
read as follows:


Sec. 16.92  Exemption of Environment and Natural Resources Division 
Systems--Limited Access.

    (a)(1) The following system of records is exempted pursuant to 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (e)(2), 
(e)(3), (e)(5), (e)(8), (f) and (g); in addition, the following systems 
of records are exempted pursuant to 5 U.S.C. 552a(k)(1) and (k)(2) from 
subsections (c)(3), (d), and (e)(1):
    (i) Environment and Natural Resources Division Case and Related 
Files System, JUSTICE/ENRD-003.
    (ii) [Reserved]
    (2) These exemptions apply only to the extent that information in 
this system relates to the investigation, prosecution or defense of 
actual or potential criminal or civil litigation, or which has been 
properly classified in the interest of national defense and foreign 
policy, and therefore is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2), (k)(1) and (k)(2). To the extent that information in a 
record pertaining to an individual does not relate to national defense 
or foreign policy, official Federal investigations, and/or law 
enforcement matters, the exemption does not apply. In addition, where 
compliance would not appear to interfere with or adversely affect the 
overall law or regulatory enforcement process, the applicable exemption 
may be waived by the Environment and Natural Resources Division.
    (b) Only that information that relates to the investigation, 
prosecution or defense of actual or potential criminal or civil 
litigation, or which has been properly classified in the interest of 
national defense and foreign policy is exempted for the reasons set 
forth from the following subsections:
    (1) Subsection (c)(3). Subsection (c)(3) requires an agency to 
provide an accounting of disclosures of records concerning an 
individual. To provide the subject of a criminal or civil matter or 
case under investigation with an accounting of disclosures of records 
would inform that individual (and others to whom the subject might 
disclose the records) of the existence, nature, or scope of that 
investigation and thereby seriously impede law enforcement efforts by 
permitting the record subject and others to avoid criminal penalties 
and civil remedies.
    (2) Subsections (c)(4) (requiring an agency to inform individuals 
about any corrections made to a record that has been disclosed) and (g) 
(providing for civil remedies when an agency fails to comply with these 
provisions). These provisions are inapplicable to the extent that this 
system of records is exempted from subsection (d).
    (3) Subsection (d). Subsection (d) requires an agency to allow 
individuals to gain access to a record about him or herself; to dispute 
the accuracy, relevance, timeliness or completeness of such records; 
and to have an opportunity to amend his or her record or seek judicial 
review. To the extent that information contained in this system has 
been properly classified, relates to the investigation and/or 
prosecution of grand jury, civil fraud, and other law enforcement 
matters, disclosure could comprise matters which should be kept secret 
in the interest of national security or foreign policy; compromise 
confidential investigations or proceedings; impede affirmative 
enforcement actions based upon alleged violations of regulations or of 
civil or criminal laws; reveal the identity of confidential sources; 
and result in unwarranted invasions of the privacy of others. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) Subsection (e)(1). Subsection (e)(1) requires an agency to 
maintain in its records only such information about an individual that 
is relevant and necessary to accomplish the agency's purpose. In the 
course of criminal or civil investigations, cases, or other matters, 
the Environment and Natural Resources Division may obtain information 
concerning the actual or potential violation of laws which are not 
strictly

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within its statutory authority. In the interest of effective law 
enforcement, it is necessary to retain such information since it may 
establish patterns of criminal activity or avoidance of other civil 
obligations and provide leads for Federal and other law enforcement 
agencies.
    (5) Subsections (e)(2). Subsection (e)(2) requires an agency to 
collect information to the greatest extent practicable from the subject 
individual when the information may result in adverse determinations 
about an individual's rights, benefits and privileges under Federal 
programs. To collect information from the subject of a criminal 
investigation or prosecution would present a serious impediment to law 
enforcement in that the subject (and others with whom the subject might 
be in contact) would be informed of the existence of the investigation 
and would therefore be able to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.
    (6) Subsection (e)(3). Subsection (e)(3) requires an agency to 
inform each individual whom it asks to supply information, on a form 
that can be retained by the individual, the authority which authorizes 
the solicitation, the principal purpose for the information, the 
routine uses of the information, and the effects on the individual of 
not providing the requested information. To comply with this 
requirement during the course of a criminal investigation or 
prosecution could jeopardize the investigation by disclosing the 
existence of a confidential investigation, revealing the identify of 
witnesses or confidential informants, or impeding the information 
gathering process.
    (7) Subsection (e)(5). Subsection (e)(5) requires an agency to 
maintain records with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual. In compiling information for criminal law enforcement 
purposes, the accuracy, completeness, timeliness and relevancy of the 
information obtained cannot always be immediately determined. As new 
details of an investigation come to light, seemingly irrelevant or 
untimely information may acquire new significance and the accuracy of 
such information can often only be determined in a court of law. 
Compliance with this requirement would therefore restrict the ability 
of government attorneys in exercising their judgment in developing 
information necessary for effective law enforcement.
    (8) Subsection (e)(8). Subsection (e)(8) requires agencies to make 
reasonable efforts to serve notice on an individual when any record on 
the individual is made available to any person under compulsory legal 
process. To serve notice would give persons sufficient warning to evade 
law enforcement efforts.
    (9) Subsections (f) and (g). Subsection (f) requires an agency to 
establish procedures to allow an individual to have access to 
information about him or herself and to contest information kept by an 
agency about him or herself. Subsection (g) provides for civil remedies 
against agencies who fail to comply with the Privacy Act requirements. 
These provisions are inapplicable to the extent that this system is 
exempt from the access and amendment provisions of subsection (d).
* * * * *
[FR Doc. 00-3117 Filed 2-22-00; 8:45 am]
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