[Federal Register Volume 59, Number 110 (Thursday, June 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14012]


[[Page Unknown]]

[Federal Register: June 9, 1994]


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PART 0--[AMENDED]
28 CFR Part 16

[AAG/A Order No. 88-94]

 

Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice, Drug Enforcement Administration 
(DEA) amends its Privacy Act Regulations. First, DEA removes the 
exemptions from subsections (e)(4), (G), (H), (f), and (h) of the 
Privacy Act (5 U.S.C. 552a). Second, DEA is providing a greater degree 
of specificity with respect to the reasons given for those exemptions 
which have been retained, and with respect to subsections (j) and (k) 
of the Act upon which such exemptions are based.
    The exemptions from subsections (e)(4)(G), (H), and (f), and (h) 
are removed because they are unnecessary in that DEA complies with the 
provisions thereof. The additional specificity is provided regarding 
the remaining exemptions (and the subsections upon which they are 
based) to provide clarity and add to public understanding.
    Information in this system relates to official Federal 
investigations and matters of law enforcement of the DEA and the 
exemptions are necessary to avoid interference with DEA's law 
enforcement responsibilities. Reasons for the exemptions are set forth 
in the text below.

EFFECTIVE DATE: June 9, 1994.

FOR FURTHER INFORMATION CONTACT:
Patricia E. Neely on (202) 616-0178.

SUPPLEMENTARY INFORMATION: The revisions to 28 CFR 16.98 affect twelve 
DEA Privacy Act systems of records, including the Investigative 
Reporting and Filing System, Justice/DEA-008. A revised description of 
that system is published in today's Federal Register. 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.''
    In addition, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), it has been 
determined that it is impracticable and unnecessary to provide for 
public comment and that it is not in the public interest to delay the 
effective date of this rule.

List of Subjects in Part 16

    Administrative practices and procedure, Courts, Freedom of 
Information Act, Government in the Sunshine Act, Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, 
28 CFR 16.98 is revised as set forth below.

    Dated: June 3, 1994.
Stephen R. Colgate,
Assistant Attorney General for Administration.

    1. The authority 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, 9701.

    2. 28 CFR 16.98 is revised as set forth below.


Sec. 16.98  Exemption of the Drug Enforcement Administration (DEA)--
limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (d):
    (1) Automated Records and Consummated Orders System/Diversion 
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
    (2) Controlled Substances Act Registration Records (Justice/DEA-
005)
    (3) Registration Status/Investigatory Records (Justice/DEA-012)
    (b) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain 
valuable information concerning the nature and scope of the 
investigation and seriously hamper the regulatory functions of the DEA.
    (2) From subsection (d) because access to records contained in 
these systems may provide the subject of an investigation information 
that could enable him to avoid compliance with the Drug Abuse 
Prevention and Control Act of 1970 (Pub. L. 91-513).
    (c) Systems of records identified in paragraphs (c)(1) through 
(c)(6) below are exempted pursuant to the provisions of 5 U.S.C. 
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3), 
(e)(5), (e)(8) and (g) of 5 U.S.C. 552a. In addition, systems of 
records identified in paragraphs (c)(1), (c)(3), (c)(4), and (c)(5) 
below are also exempted pursuant to the provisions of 5 U.S.C. 
552a(k)(2) from subsections (c)(3), (d) and (e)(1). Finally, systems of 
records identified in paragraphs (c)(1), (c)(2), (c) (3) and (c)(5) 
below are also exempted pursuant to the provisions of 5 U.S.C. 
552a(k)(1) from subsections (c)(3), (d) and (e)(1):
    (1) Air Intelligence Program (Justice/DEA-001)
    (2) Investigative Reporting and Filing System (Justice/DEA-008)
    (3) Planning and Inspection Division Records (Justice/DEA-010)
    (4) Operations Files (Justice/DEA-011)
    (5) Security Files (Justice/DEA-013)
    (6) System to Retrieve Information from Drug Evidence (Stride/
Ballistics) (Justice/DEA-014)
    (d) Exemptions apply to the following systems of records only to 
the extent that information in the systems is subject to exemption 
pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence 
Program (Justice/DEA-001); Planning and Inspection Division Records 
(Justice/DEA-010); and Security Files (Justice/DEA-013). Exemptions 
apply to the Investigative Reporting and Filing System (Justice/DEA-
008) only to the extent that information in the system is subject to 
exemption pursuant to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply 
to the Operations Files (Justice/DEA-011) only to the extent that 
information in the system is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2) and (k)(2). Exemptions apply to the System to Retrieve 
Information from Drug Evidence (STRIDE/Ballistics) (Justice/DEA-014) 
only to the extent that information in the system is subject to 
exemption pursuant to 5 U.S.C. 552a(j)(2). Exemption from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
would provide to the subjects of an investigation significant 
information concerning the nature of the investigation and thus would 
present the same impediments to law enforcement as those enumerated in 
paragraph (d)(3) regarding exemption from subsection (d).
    (2) From subsection (c)(4) to the extent that it is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From the access provisions of subsection (d) because access to 
records in this system of records would present a serious impediment to 
law enforcement. Specifically, it could inform the record subject of an 
actual or potential criminal, civil, or regulatory investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his activities; of the identity 
of confidential sources, witnesses, and law enforcement personnel; and 
of information that may enable the subject to avoid detection or 
apprehension. Similarly, it may alert collateral suspects yet 
unprosecuted in closed cases. It could prevent the successful 
completion of the investigation; endanger the life, health, or physical 
safety of confidential sources, witnesses, and law enforcement 
personnel, and/or lead to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony; or it may 
simply reveal a sensitive investigative technique. In addition, 
granting access to such information could result in the disclosure of 
confidential/security-sensitive or other information that would 
constitute an unwarranted invasion of the personal privacy of third 
parties. Finally, access to the records could result in the release of 
properly classified information which would compromise the national 
defense or disrupt foreign policy. From the amendment provisions of 
subsection (d) because amendment of the records would interfere with 
ongoing investigations and law enforcement activities and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this 
provision could impair investigations and interfere with the law 
enforcement responsibilities of the DEA for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations 
during which DEA may obtain properly classified information. Relevance 
and necessity are questions of judgment and timing, and it is only 
after the information is evaluated that the relevance and necessity of 
such information can be established.
    (ii) During the DEA's investigative activities DEA may detect the 
violation of either drug-related or non-drug related laws. In the 
interests of effective law enforcement, it is necessary that DEA retain 
all information obtained because it can aid in establishing patterns of 
activity and provide valuable leads for Federal and other law 
enforcement agencies or otherwise assist such agencies in discharging 
their law enforcement responsibilities. Such information may include 
properly classified information, the retention of which could be in the 
interests of national defense and/or foreign policy.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to 
destroy evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation 
cannot be required to provide information to investigators, and 
information relating to a subject's illegal acts must be obtained from 
other sources.
    (iii) 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 prosecution.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided a form stating the requirements of 
subsection (3)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of an actual or 
potential confidential investigation, reveal the identity of 
confidential sources of information and endanger the life, health or 
physical safety of confidential informants, witnesses, and 
investigators/law enforcement personnel.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators and intelligence analysts 
to exercise their judgment in reporting on investigations and impede 
the development of criminal intelligence necessary for effective law 
enforcement.
    (8) From subsection (e)(8) because the application of this 
provision could prematurely reveal an ongoing criminal investigation to 
the subject of the investigation, and could reveal investigative 
techniques, procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
    (e) The following systems of records are exempt from 5 U.S.C. 552a 
(d)(1) and (e)(1):
    (1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
    (2) DEA Applicant Investigations (Justice/DEA-018).
    (f) These exemptio9ns apply only to the extent that information in 
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning an applicant for a grant of confidentiality with DEA. By 
permitting access to information which may reveal the identity of the 
source of that information--after a promise of confidentiality has been 
given--DEA would breach the promised confidentiality. Ultimately, such 
breaches would restrict the free flow of information which is vital to 
a determination of an applicant's qualifications for a grant.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluation purposes, it is impossible to 
determine in advance what exact information may be of assistance in 
determining the qualifications and suitability of a candidate. 
Information which may appear irrelevant, when combined with other 
apparently irrelevant information, can on occasion provide a composite 
picture of an applicant which assists in determining whether a grant of 
confidentiality is warranted.
    (g) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), 
(d), (e) (1), (2) and (3), (e)(5), (e)(8) and (g) of 5 U.S.C. 552a. In 
addition, this system of records is exempted pursuant to the provisions 
of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), (d), and 
(e)(1):

Freedom of Information/Privacy Act Records (Justice/DEA-006)

    (h) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), 
(k)(1), and (k)(2). Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) for the reasons given in paragraphs 
(b)(1) and (d)(1).
    (2) From subsection (c)(4) to the extent that is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From subsection (d) for the reasons given in paragraphs (b)(2), 
(d)(3), and (f)(1).
    (4) From subsection (e)(1) for reasons given in paragraphs (d)(4) 
and (f)(2).
    (5) From subsection (e)(2) for reasons given in paragraph (d)(5).
    (6) From subsection (e)(3) for reasons given in paragraph (d)(6).
    (7) From subsection (e)(5) for reasons given in paragraph (d)(7).
    (8) From subsection (e)(8) for the reasons given in paragraph 
(d)(8).
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.

[FR Doc. 94-14012 Filed 6-8-94; 8:45 am]
BILLING CODE 4410-09-M