[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Rules and Regulations]
[Pages 6317-6318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3680]



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DEPARTMENT OF JUSTICE
28 CFR Part 16

[AAG/A Order No. 114-96]


Exemption of Records System Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is exempting a Privacy Act system of 
records from subsections (c) (3) and (4), (d), (e) (1), (2), and (3), 
(e)(5) and (e)(8), and (g) of the Privacy Act, 5 U.S.C. 552a. This 
system of records is the ``Bureau of Prisons, Office of Internal 
Affairs Investigative Records, Justice/BOP-012.'' Information in this 
system relates to official Federal investigations and law enforcement 
matters of the Office of Internal Affairs (OIA) of the Federal Bureau 
of Prisons (BOP), pursuant to the Inspector General Act of 1978, 5 
U.S.C. App., as amended by the Inspector General Act amendments of 
1988. The exemptions are necessary to avoid interference with the law 
enforcement functions of the BOP. Specifically, the exemptions are 
necessary to prevent subjects of investigations from frustrating the 
investigatory process; to preclude the disclosure of investigative 
techniques; to protect the identities and physical safety of 
confidential informants and of law enforcement personnel; to ensure 
OIA's ability to obtain information from information sources; to 
protect the privacy of third parties; and to safeguard classified 
information as required by Executive Order 12356.

EFFECTIVE DATE: February 20, 1996.

FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, 202-616-0178.

SUPPLEMENTARY INFORMATION: On August 29, 1995 (60 FR 44901), a proposed 
rule with invitation to comment was published in the Federal Register.
    One late comment was received in which the individual was under the 
erroneous impression that the exemption of a Privacy Act system of 
records is promulgated to protect the record from disclosure to third 
parties. Subsection (b) of the Privacy Act already prohibits disclosure 
to third parties, except as otherwise expressly authorized by that 
subsection. As permitted by subsections (j) and (k) of the Privacy Act, 
the proposed rule was promulgated to permit BOP, where necessary and 
appropriate, to exempt itself from certain of the Act's provisions as 
they apply to the record subject. The exemptions are essential for the 
reasons stated in this final rule.
    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.''

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information Act, Government in the Sunshine Act, and the 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 part 16 is amended as set forth below.

    Dated: February 7, 1996.
Stephen R. Colgate,
Assistant Attorney General for Administration.

PART 16--[AMENDED]

    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 16.97 is amended by adding paragraphs (g) and (h) to read 
as follows:


Sec. 16.97  Exemption of the Federal Bureau of Prisons (BOP) Systems-
limited access.

* * * * *
    (g) The following system of records is exempt 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) and (e)(8), and (g) of 5 U.S.C. 
552a. In addition, the following system of records is exempt pursuant 
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections 
(c)(3), (d), and (e)(1) of 5 U.S.C. 552a:

Bureau of Prisons, Office of Internal Affairs Investigative Records, 
JUSTICE/BOP-012

    (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). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the Office of 
Internal Affairs (OIA). Exemptions from the particular subsections are 
justified for the following reasons:

    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIA but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in 
activities that would impede or compromise law enforcement such as: the 
destruction of documentary evidence; improper influencing of witnesses; 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel; fabrication of testimony; and flight of 
the subject from the area. In addition, release of disclosure 
accounting could result in the release of properly classified 
information which could compromise the national defense or disrupt 
foreign policy.

    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.

    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
provide the subject of an investigation with information concerning law 
enforcement activities such as that relating to an actual or potential 
criminal, civil or regulatory violation; the existence of an 
investigation; the 

[[Page 6318]]
nature and scope of the information and evidence obtained as to his 
activities; the identity of confidential sources, witnesses, and law 
enforcement personnel; and information that may enable the subject to 
avoid detection or apprehension. Such disclosure would present a 
serious impediment to effective law enforcement where they prevent the 
successful completion of the investigation; endanger the 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. In addition, 
granting access to such information could disclose security-sensitive 
or confidential business information or 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 could compromise the national 
defense or disrupt foreign policy. 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 OIA 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 in 
which use is made of 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 course of any investigation, the OIA may obtain 
information concerning actual or potential violations of laws other 
than those within the scope of its jurisdiction. In the interest of 
effective law enforcement, the OIA should retain this information as it 
may aid in establishing patterns of criminal activity, and can provide 
valuable leads for Federal and other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator which relates to matters incidental to the primary purpose 
of the investigation but which may relate also to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (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, violations of rules 
of conduct, or any other misconduct 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 litigation.
    (6) From subsection (e)(3) because the application of this 
provision would provide the subject of an investigation with 
substantial information which could impede or compromise the 
investigation. Providing such notice to a subject of an investigation 
could interfere with an undercover investigation by revealing its 
existence, and could endanger the physical safety of confidential 
sources, witnesses, and investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this 
provision would prevent the collection of any data not shown to be 
accurate, relevant, timely, and complete at the moment it is collected. 
In the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Material which may seem unrelated, 
irrelevant, or incomplete when collected may take on added meaning or 
significance as an investigation progresses. The restrictions of this 
provision could interfere with the preparation of a complete 
investigation report, and thereby impede 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 investigation 
techniques, procedures, and/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.

[FR Doc. 96-3680 Filed 2-16-96; 8:45 am]
BILLING CODE 4410-05-M