[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Rules and Regulations]
[Pages 6315-6317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3681]



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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 113-96]


Exemption of Records System Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice, Bureau of Prisons (BOP), is 
exempting a Privacy Act system of records from subsections (c)(3) and 
(4), (d), (e)(2), and (3), (e)(5) and (e)(8), (f), and (g) of the 
Privacy Act, 5 U.S.C. 552a. This system of records is the BOP 
``Telephone Activity Record System (JUSTICE/BOP-011).'' Information in 
this system relates to inmate telephone activity and may include 
information relating to official Federal investigations and matters of 
law enforcement of the BOP pursuant to 18 U.S.C. 2510 et. seq., 3621, 
4003, 4042, and 4082. The exemptions are necessary to protect third 
party privacy and to avoid interference with law enforcement 
activities, e.g., to preclude the disclosure of investigative 
techniques, to prevent subjects of investigations from frustrating the 
investigative process, and to more effectively ensure the safety, 
security and good order of Federal correctional facilities.

EFFECTIVE DATE: February 20, 1996.

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

SUPPLEMENTARY INFORMATION: On April 21, 1995 (60 FR 19871), a proposed 
rule was published in the Federal Register with invitation to comment 
by May 22, 1995. On May 26, 1995 (60 FR 27933), BOP extended the 
comment period to June 26, 1995. BOP informally provided a further 
extension of the comment period to the record subjects until July 26, 
1995.
    One comment was received from a record subject (an inmate) who 
contended that the proposed exemption would violate privacy rights of 
the record subjects. Although the basis for this contention is not 
clear, it appears to be based upon the commenter's belief that the 
exemptions are unnecessary since ``conversations are monitored now and 
obviously this would deter anyone in his right mind from conducting 
criminal activities over the phone while incarcerated.'' However, while 
the monitoring of inmate telephone calls is successful in deterring 
many inmates from using BOP telephones to conduct criminal activities 
or violate BOP regulations, it nevertheless does not deter all inmates 
or all cases. Therefore, these 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 Procedure, 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 the 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]

    The authority for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g) and 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717 and 9701.

    2. 28 CFR 16.97 is amended by adding and reserving paragraph (d) 
and by adding paragraphs (e) and (f) to read as follows:


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

* * * * *
    (d) [Reserved]
    (e) The following system of records is exempt from 5 U.S.C. 552a 
(c) (3) and (4), (d), (e) (2) and (3), (e)(5) and (e)(8), (f) and (g):

Telephone Activity Record System (JUSTICE/BOP-011).

    (f) 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) 
and/or (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, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) to the extent that this system of 
records is exempt from subsection (d), and for such reasons as those 
cited for subsection (d) in paragraph (f)(3) below.
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) makes this exemption inapplicable.
    (3) From the access provisions of subsection (d) because exemption 
from this subsection is essential to prevent access of information by 
record subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security, and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions from subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would impose an impossible administrative burden by requiring that, 
in addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, some of these records come 
from other Federal criminal justice agencies or State, local and 
foreign jurisdictions, or from Federal and State probation and judicial 
offices, and it is administratively impossible to ensure that the 
records comply with this provision.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can be obtained from other persons who are familiar with 
such individual and his/her activities. In such investigations it is 
not feasible to rely solely upon information furnished by the 
individual concerning his/her own activities since it may result in 
inaccurate information.
    (6) From subsection (e)(3) because in view of BOP's operational 
responsibilities, application of this provision to the collection of 
information is inappropriate. Application of this provision could 
provide the subject with substantial information which may in fact 
impede the information gathering process or compromise an 
investigation.
    (7) From subsection (e)(5) because in the collection and 
maintenance 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 at a later date or as an investigation progresses. Also, 
some of these records may come from other Federal, State, local and 
foreign law 

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enforcement agencies, and from Federal and State probation and judicial 
offices and it is administratively impossible to ensure that the 
records comply with this provision. It would also require that law 
enforcement information be continuously reexamined even where the 
information may have been collected from the record subject.
    (8) From subsection (e)(8) because the nature of BOP law 
enforcement activities renders impractical the notice of compliance 
with compulsory legal process. This requirement could present a serious 
impediment to law enforcement such as revealing investigative 
techniques or the existence of confidential investigations, jeopardize 
the security of third parties, or otherwise compromise law enforcement 
efforts.
    (11) From subsections (f) and (g) to the extent that this system is 
exempt from the access and amendment provisions of subsection (d).

[FR Doc. 96-3681 Filed 2-16-96; 8:45 am]
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