[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Proposed Rules]
[Pages 10495-10496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5663]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 130-97]


Exemption of Records Systems Under the Privacy Act

agency: Department of Justice.

action: Proposed rule.

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summary: The Department of Justice proposes to exempt a Privacy Act 
system of records from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5) and (8); and (g) of the Privacy Act, 5 U.S.C. 552a. This 
system of records is maintained by the Immigration and Naturalization 
Service (INS) and is entitled ``Office of Internal Audit Investigations 
Index and Records, JUSTICE/INS-002.'' Information in this system 
relates to official Federal investigations and law enforcement matters 
of the Office of Internal Audit of the INS, 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 certain internal law enforcement functions of the INS 
for which records falling within the scope of subsections (j)(2) and 
(k)(2) may be generated. 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; and to protect the privacy of 
third parties.

dates: Submit any comments by April 7, 1997.

addresses: Address all comments to Patricia E. Neely, Program Analyst, 
Information Management and Security Staff, Justice Management Division, 
Department of Justice, Washington, D.C. 20530 (Room 850, WCTR 
Building).

for further information contact: Patricia E. Neeley 202-616-0178.

supplementary information: In the notice section of today's Federal 
Register, the Department of Justice provides a description of the 
``Office of Internal Audit Investigations Index and Records, JUSTICE/
INS-002.''
    This order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-602, 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 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, 
it is proposed to amend part 16, of title 28 of the Code of Federal 
Regulations as set forth below.

    Dated: February 11, 1997.
Stephen R. Colgate,
Assistant Attorney General for Administration.

    1. The authority for part 16 continues to read as follows:

    Authority: 5 U.S.C. 401, 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. It is proposed to amend 28 CFR 16.99 by adding paragraphs (g) 
and (h) to read as follows:


Sec. 16.99  Exemption of the Immigration and Naturalization Service 
Systems-limited access.

* * * * *
    (g) The Office of Internal Audit Investigations Index and Records 
(Justice/INS-002) system of records is exempt under the provisions of 5 
U.S.C. 552a(j)(2) from subsections (c) (3) and (4); (d); (e) (1), (2), 
(3), (5) and (8); and (g), but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in the system are subject to exemption therefrom. 
In addition, this system of records is also exempt under the provisions 
of 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but 
only to the extent that this system contains records within the scope 
of subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (h) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure could permit the subject of an actual or 
potential criminal or civil investigation to obtain valuable 
information concerning the existence and nature of the investigation, 
the fact that individuals are subjects of the investigation, and 
present a serious impediment to law enforcement.
    (2) From subsection (c)(4) to the extent that the exemption from 
subsection (d) is applicable. Subsection (c)(4) will not be applicable 
to the extent that records in the system are properly withholdable 
under subsection (d).
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to their 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. Such disclosures 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 these records could result in a disclosure that 
would constitute an unwarranted invasion of the privacy of third 
parties.

[[Page 10496]]

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 in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction. 
In the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identify of confidential sources 
of information and endanger the life or physical safety of confidential 
informants.
    (7) From subsection (e)(5) because in the collection of information 
for criminal 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 of 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 individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement as this could interfere with the Immigration 
and Naturalization Service's ability to issue administrative subpoenas 
and could reveal investigative techniques and procedures.
    (9) From subsection (g) for those portions of this system of 
records that were compiled for criminal law enforcement purposes and 
which are subject to exemption from the access provisions of subsection 
(d) pursuant to subsection (j)(2).

[FR Doc. 97-5663 Filed 3-6-97; 8:45 am]
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