[Federal Register Volume 59, Number 72 (Thursday, April 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8718]


[[Page Unknown]]

[Federal Register: April 14, 1994]


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POSTAL SERVICE

39 CFR Part 266

 

Revision of Regulations To Exempt Privacy Act Systems of Records

AGENCY: Postal Service.

ACTION: Proposed rule.

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SUMMARY: Postal Service regulations exempt certain systems of records 
that it maintains from certain provisions of the Privacy Act. This 
proposed rule would supplement those regulations to include an 
explanation of the reasons for applying specific exemptions.

DATES: Comments must be received on or before May 16, 1994.

ADDRESSES: Written comments should be addressed to USPS Records Office, 
US Postal Service, 475 L'Enfant Plaza SW room 8831, Washington DC 
20260-5240. Copies of all written comments will be available for public 
inspection and photocopying between 9 a.m. and 4 p.m. at the above 
address.

FOR FURTHER INFORMATION CONTACT:
Betty Sheriff, Records Office, (202) 268-2924.
SUPPLEMENTARY INFORMATION:
    The Postal Service has exempted certain systems of records that it 
maintains from specific provisions of the Privacy Act. At the time it 
adopted the exemptions contained in its Privacy Act regulations (39 CFR 
266.9), the Postal Service stated its reasons for each exemption in the 
preamble of the notice of proposed rulemaking (40 FR 37227, dated 
August 26, 1975). This proposed rule does not change the current 
application of exemptions, but merely incorporates into Sec. 266.9 the 
reasons for applying each exemption to a particular system.

List of Subjects in 39 CFR Part 266

    Privacy.

    For the reasons set out in the preamble, the Postal Service 
proposes to amend part 266 of 39 CFR as follows:

PART 266--PRIVACY OF INFORMATION

    1. The authority citation for part 266 continues to read as 
follows:

    Authority: 39 U.S.C. 401; 5 U.S.C. 552a.

    2. Section 266.9 is revised to read as follows:


Sec. 266.9  Exemptions.

    (a) Subsections 552a(j) and (k) of Title 5, U.S.C., empower the 
Postmaster General to exempt systems of records meeting certain 
criteria from various other subsections of section 552a. With respect 
to systems of records so exempted, nothing in this part shall require 
compliance with provisions hereof implementing any subsections of 
section 552a from which those systems have been exempted.
    (b) At paragraph (b)(1) of this section is a summary of the Act's 
provisions for which exemption is claimed pursuant to, and to the 
extent permitted by, subsection 552a (j) and (k) of Title 5, U.S.C., 
for some systems of records. Paragraphs (b) (2) through (6) of this 
section identify the exempted systems of records, the exemptions 
applied to each, and the reasons for the exemptions:
    (1) Explanation of Act's provisions for which an exemption is 
claimed in the systems discussed below:
    (i) Subsection (c)(3) requires an agency to make available to the 
individual named in the records an accounting of each disclosure of 
records.
    (ii) Subsection (c)(4) requires an agency to inform any person or 
other agency to which a record has been disclosed of any correction or 
notation of dispute it has made to the record in accordance with 
subsection (d) of the Act.
    (iii) Subsection (d), paragraphs (1)-(4) require an agency to 
permit an individual to gain access to records about the individual, to 
request amendment of such records, to request a review of an agency 
decision not to amend such records, and to provide a statement of 
disagreement about a disputed record to be filed and disclosed with the 
disputed record.
    (iv) Subsection (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 required by statute or executive 
order of the President.
    (v) Subsection (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.
    (vi) Subsection (e)(3) requires an agency to inform each person 
whom it asks to supply information of the authority under which the 
information is sought, the purposes for which the information will be 
used, the routine uses that may be made of the information, whether 
disclosure is mandatory or voluntary, and the effects of not providing 
the information.
    (vii) Subsection (e)(4), paragraphs (G) and (H) require an agency 
to publish a Federal Register notice of its procedures whereby an 
individual can be notified upon request whether the system of records 
contains information about the individual, how to gain access to any 
record about the individual contained in the system, and how to contest 
its content.
    (viii) Subsection (e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to ensure fairness to the individual in making any 
determination about the individual.
    (ix) Subsection (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.
    (x) Subsection (f) requires an agency to establish procedures 
whereby an individual can be notified upon request if any system of 
records named by the individual contains a record pertaining to the 
individual, obtain access to the record, and request amendment.
    (xi) Subsection (g) provides for civil remedies if an agency fails 
to comply with the access and amendment provisions of subsections 
(d)(1) and (d)(3), and with other provisions of the Act, or any rule 
promulgated thereunder, in such a way as to have an adverse effect on 
an individual.
    (xii) Subsection (m) requires an agency to cause the requirements 
of the Act to be applied to a contractor operating a system of records 
to accomplish an agency function.
    (2) Inspection Requirements--Investigative File System, USPS 
080.010 and Inspection Requirements--Mail Cover Program, USPS 080.020. 
These systems of records are exempt from 5 U.S.C. 552a(c)(3) and (4), 
(d)(1)-(4), (e)(1)-3, (e)(4)(G) and (H), (e)(5) and (8), (f), (g), and 
(m). The reasons for exemption follow:
    (i) Disclosure to the record subject pursuant to (c)(3), (c)(4), or 
(d)(1)-(d)(4) could (A) alert subjects that they are targets of an 
investigation or mail cover; (B) alert subjects of the nature and scope 
of the investigation, and of evidence obtained; (C) enable the subject 
of an investigation to avoid detection or apprehension; (D) subject 
confidential sources, witnesses, and law enforcement personnel to 
harassment or intimidation if their identities were released to the 
target of an investigation; (E) constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation; (F) intimidate potential witnesses and cause them to be 
reluctant to offer information; (G) lead to the improper influencing of 
witnesses, the destruction or alteration of evidence yet to be 
discovered, the fabrication of testimony, or the compromising of 
classified material; and (H) seriously impede or compromise law 
enforcement, mail cover, or background investigations which may involve 
law enforcement aspects as a result of the above.
    (ii) Application of subsections (e)(1) and (e)(5) is impractical 
because the relevance, necessity, or correctness of specific 
information may be established only after considerable analysis and as 
the investigation progresses. As to relevance (subsection (e)(1)), 
effective law enforcement requires the keeping of information not 
relevant to a specific Postal Service investigation. Such information 
may be kept to provide leads for appropriate law enforcement and to 
establish patterns of activity which may relate to the jurisdiction of 
the Postal Inspection Service and/or other agencies. As to accuracy 
(subsection (e)(5)), the correctness of records sometimes can be 
established only in a court of law.
    (iii) Application of subsections (e)(2) and (e)(3) would require 
collection of information directly from the subject of a potential or 
ongoing investigation. The subject would be put on alert that he or she 
is a target of an investigation or mail cover, enabling avoidance of 
detection or apprehension, thereby seriously compromising law 
enforcement, mail cover, or background investigations involving law 
enforcement aspects. 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.
    (iv) The requirements of subsection (e)(4) (G) and (H) and (f) do 
not apply because this system is exempt from the individual access and 
amendment provisions of subsection d. Nevertheless, the Postal Service 
has published notice of its notification, access, and contest 
procedures since access may be appropriate in some cases.
    (v) Application of subsection (e)(8) could prematurely reveal an 
ongoing criminal investigation to the subject of the investigation.
    (vi) The provisions of subsection (g) do not apply because 
exemption from the provisions of subsection (d) renders the provisions 
on suits to enforce (d) inapplicable.
    (3) Personnel Records--Preemployment Investigation Records, USPS 
120.110 and Personnel Records--Postmaster Selection Program Records, 
USPS 120.130. These systems of records are exempt from 5 U.S.C. 552a, 
(d)(1)-(4) and (e)(1) to the extent that information in the system is 
subject to exemption under 5 U.S.C. 552a(k)(5) as relating to the 
identity of a source who furnished information to the Government in 
confidence as a part of an investigation conducted solely for the 
purpose of determining suitability, eligibility, or qualifications of 
an individual for employment. The reasons for exemption follow.
    (i) In the course of its investigation and evaluation of an 
applicant for a position, the Postal Service contacts individuals who, 
without an assurance of anonymity, would refuse to provide information 
concerning the subject of the investigation. If a record subject were 
given access pursuant to (d)(1)-(d)(4), the promised confidentiality 
would be breached and the confidential source would be identified. The 
result would be restriction of the free flow of information vital to a 
determination of an individual's qualifications and suitability for 
appointment to or continued occupancy of his position.
    (ii) In collecting information for investigative and evaluative 
purposes, it is impossible to determine in advance what information may 
be of assistance in determining the qualifications and suitability of 
an individual for appointment. Information that seems irrelevant, when 
linked with other information, can sometimes provide a composite 
picture of an individual which assists in determining whether that 
individual should be appointed to or retained in a position. For this 
reason, exemption from subsection (e)(1) is claimed.
    (4) USPS 120.120, Personnel Records--Personnel Research and Test 
Validation Records; and USPS 120.152, Personnel Records--Career 
Development and Training Records. These systems of records are exempt 
from 5 U.S.C. 552a (d)(1)-(4), (e)(4) (G) and (H), and (f) to the 
extent that information in the system is subject to exemption pursuant 
to 5 U.S.C. 552a(k)(6) as relating to the compromise of the objectivity 
or fairness of the testing or examination process. The reasons for 
exemption follow.
    (i) These systems contain questions and answers to standard testing 
materials, the disclosure of which would compromise the fairness of the 
future use of these materials. It is not feasible to develop entirely 
new examinations after each administration as would be necessary if 
questions or answers were available for inspection and copying. 
Consequently, exemption from subsection (d) is claimed.
    (ii) The requirements of subsections (e)(4) (G) and (H) and (f) do 
not apply to these systems for which exemption from subsection (d) of 
the Act has been claimed. Nevertheless, the Postal Service has 
published notice of its notification, access, and contest procedures 
since access to system records that do not compromise the objectivity 
or fairness of the testing examination process may be appropriate in 
some cases.
    (5) USPS 120.151, Personnel Records--Recruiting, Examining, and 
Appointment Records. This system is exempt from 5 U.S.C. 552a (d)(1)-
(4), (e)(1), (e)(4) (G) and (H), and (f) to the extent that information 
in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5) 
as relating to the identity of a source who has furnished information 
to the Government in confidence as part of an investigation conducted 
solely for the purpose of determining suitability, eligibility, or 
qualifications of an individual for employment and (k)(6) as relating 
to the compromise of the objectivity or fairness of the testing or 
examination process. The reasons for exemption follow.
    (i) To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(5), application of the 
provisions at (d)(1)-(4) would reveal to the applicant whose 
suitability is being investigated the identity of individuals who 
supplied information under a promise of anonymity. As a result, the 
Postal Service's promise of confidentiality would be breached, its 
ability to obtain information in the future would be diminished, and 
the information source could be subjected to harassment by the 
applicant. To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(6), the requirements of the 
exemption at (d)(1)-(4) and the reasons for exemption information 
relating to the compromise of the objectivity or fairness of the 
testing or examination process are the same as those given in paragraph 
(b)(5)(i) of this section.
    (ii) The reasons for exempting this system of records from 
subsection (e)(1) are the same as those given in paragraph (b)(4)(ii) 
of this section.
    (iii) The requirements of subsections (e)(4) (G) and (H) and (f) do 
not apply to this system for which exemption from subsection (d) of the 
Act has been claimed. Nevertheless, the Postal Service has published 
notice of its notification, access, and contest procedures since access 
to system records that do not compromise the objectivity or fairness of 
the testing or examination process or reveal the identity of a 
confidential source may be appropriate in some cases.
    (6) USPS 030.010, Equal Employment Opportunity--EEO Discrimination 
Complaint Investigations. This system is exempt from 5 U.S.C. 552a 
(d)(1)-(4), (e)(4) (G) and (H), and (f) to the extent that information 
in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) 
as material compiled for law enforcement purposes and (k)(5) as 
relating to the identity of a source who has furnished information to 
the Government in confidence as a part of an investigation conducted 
solely for the purpose of determining suitability, eligibility, or 
qualifications of an individual for employment. The reasons for 
exemption follow.
    (i) To the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(2), application of the 
requirements of the exemption at (d) (1)-(4) would cause disruption of 
enforcement of the laws relating to equal employment opportunity (EEO). 
To the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(5), application of the provisions at 
(d)(1)-(4) would reveal to the EEO complainant the identity of 
individuals who supplied information under a promise of anonymity. It 
is essential to the integrity of the EEO complaint system that 
information collected in the investigative process not be prematurely 
disclosed and that witnesses be free from restraint, interference, 
coercion, or reprisal.
    (ii) The requirements of subsections (e)(4) (G) and (H) and (f) do 
not apply to this system for which exemption from subsection (d) of the 
Act has been claimed. Nevertheless, the Postal Service has published 
notice of its notification, access, and contest procedures since access 
to system records that do not compromise the investigative process or 
reveal the identify of confidential sources may be appropriate in some 
cases.
    An appropriate revision of 39 CFR 266.9 to reflect the proposed 
change will be published if the proposal is adopted.
Stanley F. Mires,
Chief Counsel, Legislative Division.
[FR Doc. 94-8718 Filed 4-13-94; 8:45 am]
BILLING CODE 7710-12-M