[Federal Register Volume 61, Number 219 (Tuesday, November 12, 1996)]
[Proposed Rules]
[Pages 58018-58020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28905]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1301


Privacy Act Regulations; Implementation

AGENCY: Tennessee Valley Authority.

ACTION: Proposed rule.

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SUMMARY: The Tennessee Valley Authority (TVA) proposes to amend its 
regulations implementing the Privacy Act of 1974 (the Act), 5 U.S.C. 
552a. These amendments are needed to modify existing TVA regulations 
(18 CFR 1301.24) to exempt a system of records known as TVA Police 
Records (TVA-37) from certain provisions of the Act and corresponding 
agency regulations.

DATES: Comments must be received on or before December 12, 1996.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Wilma H. McCauley, TVA 1101 Market Street, (WR 4Q-C), 
Chattanooga, Tennessee 37402-2801. As a convenience to commenters, TVA 
will accept public comments transmitted by facsimile (``FAX'') machine. 
The telephone number of the FAX receiver is (423) 751-3400. Receipt of 
FAX transmittals will not be acknowledged.

FOR FURTHER INFORMATION CONTACT: Wilma H. McCauley, (423) 751-2523.

SUPPLEMENTARY INFORMATION: The proposed amendments would allow 
exemptions authorized by the Act, 5 U.S.C. 552a (j)(2) and (k)(2), for 
the TVA Police Records--TVA system of records under 5 U.S.C. 
552a(k)(2). Under subsections (j)(2) and (k)(2) of the Act, TVA, 
through rulemaking, may exempt those systems of records maintained by a 
component of TVA that performs as its principal function any activity 
pertaining to the enforcement of criminal laws from certain provisions 
of the Act, if the system of records is used for certain law 
enforcement purposes.
    The TVA Police is a component of TVA that performs as one of its 
principal functions investigations into violations of criminal law in 
connection with TVA's programs and operations, pursuant to the Violent 
Crime Control and Law Enforcement Act of 1994, as amended, the TVA 
Police Records system of records falls within the scope of subsections 
(j)(2); i.e., information compiled for the purpose of criminal 
investigation, reports relating to any stage of the enforcement 
process, and information compiled for the identification of individual 
criminals, and (k)(2); i.e., investigatory material compiled for law 
enforcement purposes, other than material within the scope of (k)(2) 
above.
    The proposed (j)(2) and (k)(2) exemptions for criminal law 
enforcement records would remove restrictions on the manner in which 
information may be collected and the type of information that may be 
collected by the TVA Police in the course of a criminal investigation, 
would limit certain notice requirements, and would exempt the system of 
records from civil remedies for violations of the Act. These additional 
exemptions are necessary primarily to avoid premature disclosure of 
sensitive information, including, but not limited to, the existence of 
a criminal investigation, that may compromise or impede the 
investigation.
    A more complete explanation of each proposed exemption follows, as 
required by the Act.
    TVA proposes the following changes to the current exemptions 
contained in 18 CFR 1301.24.

Exemptions Pursuant to (j)(2) and (k)(2)

    TVA has determined that the TVA Police Records should be exempt 
from the following provisions of the Privacy Act and corresponding 
agency regulations. These exemptions are necessary and appropriate to 
maintain the integrity and confidentiality of criminal investigations.

[[Page 58019]]

    TVA proposes use of the (j)(2) and (k)(2) exemptions for the 
following reasons: (a) 5 U.S.C. 552a(c)(3) requires an agency to make 
the accounting of each disclosure of records available to the 
individual named in the record at his/her request. This accounting must 
state the date, nature and purpose of each disclosure of a record and 
the name and address of the recipient. Accounting for each disclosure 
could alert the subject of an investigation to the existence and nature 
of the investigation and reveal investigative or prosecutive interest 
by other agencies, particularly in a joint-investigation situation. 
This could seriously impede or compromise the investigation and case 
preparation by prematurely revealing its existence and nature; 
compromise or interfere with witnesses or make witnesses reluctant to 
cooperate with the investigators; lead to suppression, alteration, 
fabrication, or destruction of evidence; and endanger the physical 
safety of confidential sources, witnesses, law enforcement personnel 
and their families.
    (b) 5 U.S.C. 552a(c)(4) requires an agency to inform outside 
parties of correction of and notation of disputes about information in 
a system in accordance with subsection (d) of the Privacy Act. Since 
this system of records is already exempted from the access provisions 
of subsection (d) of the Privacy Act, this section is not properly 
applicable.
    (c) 5 U.S.C. 552a (d) and (f) require an agency to provide access 
to records, make corrections and amendments to records, and notify 
individuals of the existence of records upon their request. Providing 
individuals with access to records of an investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing the access normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate with investigators; lead to 
suppression, alteration, fabrication, or destruction of evidence; 
endanger the physical safety of confidential sources, witnesses, law 
enforcement personnel and their families; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach to satisfy any Government claims growing out of the 
investigation.
    (d) 5 U.S.C. 552a(e)(1) requires an agency to maintain in agency 
records only ``relevant and necessary'' information about an 
individual. This provision is inappropriate for investigations, because 
it is not always possible to detect the relevance or necessity of each 
piece of information in the early stages of an investigation. In some 
cases, it is only after the information is evaluated in light of other 
evidence that its relevance and necessity will be clear. In other 
cases, what may appear to be a relevant and necessary piece of 
information may become irrelevant in light of further investigation.
    In addition, during the course of an investigation, the 
investigator may obtain information that relates primarily to matters 
under the investigative jurisdiction of another agency (e.g., the 
fraudulent use of Social Security numbers), and that information may 
not be reasonably segregated. In the interest of effective law 
enforcement, TVA Police should retain this information, since it can 
aid in establishing patterns of criminal activity and can provide 
valuable leads for Federal and other law enforcement agencies.
    (e) 5 U.S.C. 552a(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. The general rule that information be collected ``to the 
greatest extent practicable'' from the target individual is not 
appropriate in investigations. TVA Police should be authorized to use 
their professional judgment as to the appropriate sources and timing of 
an investigation. Often it is necessary to conduct an investigation so 
that the target does not suspect that he or she is being investigated. 
The requirement to obtain the information from the targeted individual 
may put the suspect on notice of the investigation and thereby thwart 
the investigation by enabling the suspect to destroy evidence and take 
other action that would impede the investigation. This requirement may 
also in some cases preclude TVA Police from gathering information and 
evidence before interviewing an investigative target in order to 
maximize the value of the interview by confronting the target with the 
evidence or information. 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. 
Furthermore, it is often necessary to collect information from sources 
other than the subject of the investigation to verify the accuracy of 
the evidence collected.
    In addition, the statutory term ``to the greatest extent 
practicable'' is a subjective standard, and it is impossible adequately 
to define the term so that individual TVA Police investigators can 
consistently apply it to the many fact patterns presented in TVA Police 
investigations.
    (f) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purpose 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation that could interfere with the investigation. Moreover, 
providing such a notice to the subject of an investigation could 
seriously impede or compromise an undercover investigation by revealing 
its existence and could endanger the physical safety of confidential 
sources, witnesses, and investigators by revealing their identities.
    (g) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his/her request, if the system of records contains a 
record pertaining to him/her, how to gain access to such a record and 
how to contest its content. Since these systems of records are being 
exempted from subsection (f) of the Act, concerning agency rules, and 
subsection (d) of the Act, concerning access to records, these 
requirements are inapplicable to the extent that these systems of 
records will be exempted from these subsections. Although the system 
would be exempt from these requirements, TVA Police has published 
information concerning its notification, access, and contest procedures 
because, under certain circumstances, TVA Police could decide it is 
appropriate for an individual to have access to all or a portion of 
his/her records in these systems of records.
    (h) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of 
the categories of sources or records in the system of records. To the 
extent that this provision is construed to require more detailed 
disclosure than the broad,

[[Page 58020]]

generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information, to protect privacy and 
physical safety of witnesses and informants, and to avoid the 
disclosure of investigative techniques and procedures. TVA Police will, 
nevertheless, publish such a notice in broad generic terms.
    (i) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Much the same rationale is 
applicable to this proposed exemption as that set out previously in 
item (d) (duty to maintain in agency records only ``relevant and 
necessary'' information about an individual). While the TVA Police make 
every effort to maintain records that are accurate, relevant, timely, 
and complete, it is not always possible in an investigation to 
determine with certainty that all the information collected is 
accurate, relevant, timely, and complete. During a thorough 
investigation, a trained investigator would be expected to collect 
allegations, conflicting information, and information that may not be 
based upon the personal knowledge of the provider. At the point of 
determination to refer the matter to a prosecutive agency, for example, 
that information would be in the system of records, and it may not be 
possible until further investigation is conducted, or indeed in many 
cases until after a trial (if at all), to determine the accuracy, 
relevance, and completeness of some information. This requirement would 
inhibit the ability of trained investigators to exercise professional 
judgment in conducting a thorough investigation. Moreover, fairness to 
affected individuals is assured by the due process they are accorded in 
any trial or other proceeding resulting from the TVA Police 
investigation.
    (j) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available under compulsory legal process when such 
process becomes a matter of public record. Compliance with this 
provision could prematurely reveal and compromise an ongoing criminal 
investigation to the target of the investigation and reveal techniques, 
procedures, or evidence.
    (k) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails 
to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any other provision of the Act, or 
any rule promulgated thereunder, in such a way as to have an adverse 
effect on an individual. Allowing civil lawsuits for alleged Privacy 
Act violations by TVA Police would compromise TVA Police investigations 
by subjecting the sensitive and confidential information in the TVA 
Police Records to the possibility of inappropriate disclosure under the 
liberal civil discovery rules. That discovery may reveal confidential 
sources, the identity of informants, and investigative procedures and 
techniques, to the detriment of the particular criminal investigation 
as well as other investigations conducted by the TVA Police.
    The pendency of such a suit would have a chilling effect on 
investigations, given the possibility of discovery of the contents of 
the investigative case file, and a Privacy Act lawsuit could therefore 
become a ready strategic weapon used to impede TVA Police 
investigations. Furthermore, since, under the current and proposed 
regulations, the system would be exempt from many of the Act's 
requirements, it is unnecessary and contradictory to provide for civil 
remedies from violations of those provisions in particular.
    This proposed rule has been reviewed under Executive Order No. 
12291 and has been determined not to be a ``major rule'' since it will 
not have an annual effect on the economy of $100 million or more.
    In addition, it has been determined that this proposed rule will 
not have a significant economic impact on a substantial number of small 
entities.

List of Subjects in 18 CFR Part 31

    Administrative practice and procedure, Freedom of Information, 
Privacy Act, Sunshine Act.

    For the reasons set forth in the preamble, it is proposed to amend 
18 CFR chapter XIII, part 1301, as follows:

PART 1301--PROCEDURES

    1. The authority citation for part 1301 continues to read as 
follows:

    Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.


Sec. 1301.24  [Amended]

    2. Section 1301.24(e) is added to read as follows:
* * * * *
    (e) The TVA system TVA Police Records is exempt from subsections 
(c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a 
(section 3 of the Privacy Act) and corresponding sections of these 
rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is 
exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
This system is exempt because application of these provisions might 
alert investigation subjects to the existence or scope of 
investigations, lead to suppression, alteration, fabrication, or 
destruction of evidence, disclose investigative techniques or 
procedures, reduce the cooperativeness or safety of witnesses, or 
otherwise impair investigations.
William S. Moore,
Senior Manager, Administrative Services.
[FR Doc. 96-28905 Filed 11-8-96; 8:45 am]
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