[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Proposed Rules]
[Pages 62670-62672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30716]



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Part II





Department of Education





_______________________________________________________________________



34 CFR Part 5b



Privacy Act Regulations; Proposed Rule Privacy Act of 1974; Notice

  Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / 
Proposed Rules  

[[Page 62670]]



DEPARTMENT OF EDUCATION

34 CFR Part 5b

RIN 1880-AA78


Privacy Act Regulations

AGENCY: Office of Inspector General, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the Department's regulations 
implementing the Privacy Act of 1974 (the Act). These amendments are 
needed to modify existing departmental regulations to exempt from 
certain provisions of the Act a new system of records known as the 
Office of Inspector General (OIG) Hotline Complaints Files (System No. 
18-10-0004) (ED/OIG Hotline Complaint Files). These exemptions are 
needed to protect information regarding Hotline complaints from 
disclosure to target individuals and others who could interfere with 
the processing and disposition of the information and with law 
enforcement activities relating to the Hotline complaints.

DATES: Comments must be received by the Department on or before January 
8, 1998.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Dianne Van Riper, U.S. Department of Education, 600 
Independence Avenue, SW., Room 4106, Switzer Building, Washington, DC 
20202-1530. Comments may also be sent through the Internet to: 
C[email protected]
    You must include the term ``Privacy Act'' in the subject line of 
the electronic message.
    To ensure that public comments have maximum effect in developing 
the final regulations, the Department urges commenters to identify 
clearly the specific section or sections of the proposed regulations 
that each comment addresses and to arrange comments in the same order 
as the proposed regulations.

FOR FURTHER INFORMATION CONTACT: Dianne Van Riper. Telephone: (202) 
205-8762. Individuals who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-
877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through 
Friday.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION:

Electronic Access to This Document

    Anyone may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (pdf) on the World Wide Web at either of the 
following sites:

http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html

    To use the pdf you must have the Adobe Acrobat Reader Program with 
Search, which is available free at either of the previous sites. If you 
have questions about using the pdf, call the U.S. Government Printing 
Office toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an 
electronic bulletin board of the Department. Telephone: (202) 219-1511 
or, toll free, 1-800-222-4922. The documents are located under Option 
G--Files/Announcements, Bulletins and Press Releases.

    Note: The official version of this document is the document 
published in the Federal Register.

General

    The proposed exemptions are authorized under the Privacy Act, 5 
U.S.C. 552a(j)(2) and (k)(2). Under subsection (j)(2) of the Act, the 
Secretary through rulemaking may exempt from certain provisions of the 
Act those systems of records maintained by a component of the 
Department that performs as its principal function any activity 
pertaining to the enforcement of criminal laws, if the information in 
the system is compiled for the purpose of criminal investigation. Under 
5 U.S.C. 552a(k)(2), the Secretary through rulemaking may exempt from a 
more limited number of Privacy Act requirements a system of records 
that contains investigatory materials compiled for civil and 
administrative law enforcement purposes.
    The OIG is a component of the Department that performs as its 
principal function investigations into violations of criminal law in 
connection with the Department's programs and operations, pursuant to 
the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3. The ED/
OIG Hotline Complaint Files system of records falls within the scope of 
subsection (j)(2), i.e., information compiled for the purpose of 
criminal investigation. The proposed (j)(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 OIG in processing Hotline information; would limit certain 
requirements regarding notice to individuals; and would exempt the 
system of records from civil remedies for violations of the Act. These 
exemptions are necessary primarily to avoid premature disclosures of 
sensitive information, including, but not limited to, the existence of 
a criminal investigation, that may compromise or impede the disposition 
of Hotline complaints and allegations.
    The proposal to add (k)(2) exemptions reflects recognition that 
certain records in the Hotline system may fall outside the (j)(2) 
exemptions because they relate primarily to civil and administrative 
law enforcement, such as allegations of misconduct by Department 
employees in violation of the Standards of Conduct. Nevertheless, the 
Act recognizes that these records may also properly be exempted from 
certain disclosure and notice requirements, as well as restrictions on 
the manner in which OIG may collect information, in order to avoid 
compromising, impeding, or interfering with the disposition of those 
Hotline complaints.
    A more complete explanation of each proposed exemption follows.

A. Exemptions Pursuant to (j)(2)

    The Secretary has determined that, to the extent the ED/OIG Hotline 
Complaint Files consist of information compiled for the purpose of 
criminal investigation, the system of records should be exempt from the 
following provisions of the Privacy Act and corresponding departmental 
regulations, as authorized under subparagraph (j)(2) of the Privacy 
Act, for the following reasons:
    1. 5 U.S.C. 552a(c)(3) and 34 CFR 5b.9(a)(1) require an agency to 
make the accounting of disclosures from a system of records available 
to the individual named in the record at the individual's request. If 
the OIG made such an accounting available to target or source 
individuals, the availability of that information could seriously 
impede or compromise the processing of the Hotline complaint and any 
resulting criminal investigation by prematurely revealing its existence 
and nature, compromise or interfere with witnesses or make witnesses 
reluctant to cooperate with the investigators, and lead to suppression, 
alteration, or destruction of evidence.
    2. 5 U.S.C. 552a(c)(4) and 34 CFR 5b.7(c) and 5b.8(b) require an 
agency to inform parties to whom records have been disclosed about any 
correction of records or a subject individual's

[[Page 62671]]

statement disputing information in the record. Because the Secretary 
also proposes to exempt this system of records from the requirements to 
correct records or to permit an individual to put in his or her records 
a statement disagreeing with a decision not to correct records, the 
requirement to inform parties who have received the record is not 
applicable.
    3. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1) 
and (c), 5b.7, and 5b.8 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 Hotline complaints, permitting them to contest the 
complaint contents, and allowing them to force changes to be made to 
the information contained in those records seriously interfere with and 
compromise the OIG's ability to conduct an orderly and unbiased 
processing of Hotline complaints and would impede the conduct of 
resulting investigations.
    4. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to 
maintain in its records only ``relevant and necessary'' information 
about an individual. Because it is not always possible to detect the 
relevance or necessity of each piece of information reported to the 
Hotline or collected in the preliminary phase of an investigation, this 
provision is inappropriate for Hotline complaints. In some cases, it is 
only after the information is evaluated in light of other evidence that 
its relevance and necessity is clear. In other cases, what may appear 
to be a relevant and necessary piece of information may become 
irrelevant in light of further inquiry or investigation. Also, the 
Hotline 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, 
the OIG 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.
    5. 5 U.S.C. 552a(e)(2) and 34 CFR 5b.4(a)(3) require an agency to 
collect information from the subject individual of the investigation. 
The requirement that OIG collect information ``to the greatest extent 
practicable'' from the target individual is not appropriate for the 
Hotline Complaint Files system of records where allegations are 
volunteered to OIG. To determine the proper disposition of the 
complaint, it is often necessary to conduct an inquiry so that the 
target individual does not suspect that he or she is being 
investigated. The requirement to obtain information from targeted 
individual may alert the suspect of an investigation resulting from a 
Hotline complaint and thwart the investigation by enabling the suspect 
to destroy evidence or take another avoidance action.
    6. 5 U.S.C. 552a(e)(3) and 34 CFR 5b.4(a)(3) require an agency to 
provide a Privacy Act notice in the collection of information from 
individuals. Giving notice to a complainant would impair the OIG's 
ability to collect candid and forthright information of criminal 
wrongdoing from Hotline sources.
    7. 5 U.S.C. 552a(e)(4)(G), (H), and (I) requires an agency to 
publish notice of procedures for notification, access, and correction 
of records and notice of the categories of sources of records in the 
system. These requirements are unnecessary, since this system of 
records will be exempt from the underlying duties imposed by the 
Privacy Act. An exemption from (I) is required to protect the 
confidentiality of sources of information and to protect the privacy 
and physical safety of witnesses and informants.
    8. 5 U.S.C. 552a(e)(5) requires an agency to maintain records with 
such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness. The OIG makes every effort to maintain 
records that are accurate, relevant, timely, and complete; however, it 
is not always possible in processing a Hotline complaint to determine 
with certainty that all the information collected is accurate, 
relevant, timely, and complete.
    9. 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual if any record on that 
individual is made available under compulsory legal process if that 
process becomes a matter of public record. If the OIG complied with 
this provision, it could prematurely reveal and compromise an ongoing 
criminal investigation that resulted from a Hotline complaint.
    10. 5 U.S.C. 552a(g) requires an agency to be subjected to civil 
remedies from an individual for alleged violations of the Privacy Act. 
Allowing civil lawsuits for alleged Privacy Act violations would 
compromise the orderly and objective processing of Hotline complaints 
and the conduct of resulting criminal investigations by subjecting the 
sensitive and confidential information in the ED/OIG Hotline Complaint 
Files to the possibility of premature disclosure under the liberal 
civil discovery rules. That discovery may reveal confidential sources, 
the identity of informants, and investigative procedures and 
techniques.

B. Exemptions Pursuant to (k)(2)

    The Secretary has determined that, to the extent the ED/OIG Hotline 
Complaint Files consist of investigatory material compiled for law 
enforcement purposes, the system of records should be exempt from the 
following provisions of the Privacy Act and corresponding departmental 
regulations, as authorized by subparagraph (k)(2) of the Privacy Act, 
for the following reasons:
    1. 5 U.S.C. 552a(c)(3) and CFR 5b.9(c)(3) require an agency to make 
the accounting of disclosures from a system of records available to the 
individual named in the record at the individual's request. If the OIG 
made such an accounting available to target or source individuals, the 
availability of that information could seriously impede or compromise 
the processing of the Hotline complaint and any resulting criminal 
investigation by prematurely revealing its existence and nature, 
compromise or interfere with witnesses or make witnesses reluctant to 
cooperate with the investigators, and lead to suppression, alteration, 
or destruction of evidence.
    2. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1) 
and (c), 5b.7, and 5b.8 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 Hotline complaints, permitting them to contest the 
complaint contents, and allowing them to force changes to be made to 
the information contained therein would seriously interfere with and 
compromise the OIG's ability to conduct an orderly and unbiased 
processing of Hotline complaints and would impede the conduct of 
resulting investigations.
    3. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to 
maintain in its records only ``relevant and necessary'' information 
about an individual. Because it is not always possible to detect the 
relevance or necessity of each piece of information reported to the 
Hotline or collected in the preliminary phase of an investigation, this 
provision is inappropriate for Hotline complaints. In some cases, it is 
only after the information is evaluated in light of other evidence that 
its relevance and necessity is clear. In other cases, what may appear 
to be a relevant and necessary piece of information may

[[Page 62672]]

become irrelevant in light of further inquiry or investigation. Also, 
the Hotline 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, the OIG 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.
    4. 5 U.S.C.552a(e)(4)(G), (H), and (I) requires an agency to 
publish notice of procedures for notification, access, and correction 
of records and notice of the categories of sources of records in the 
system. These requirements are unnecessary, since this system of 
records will be exempt from the underlying duties imposed by the 
Privacy Act. An exemption from (I) is required to protect the 
confidentiality of sources of information and to protect the privacy 
and physical safety of witnesses and informants.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following: (1) Are the requirements in the proposed regulations 
clearly stated? (2) Do the proposed regulations contain technical terms 
or other wording that interferes with their clarity? (3) Does the 
format of the proposed regulations (grouping and order of sections, use 
of headings, paragraphing, etc.) aid or reduce their clarity? Would the 
regulations be easier to understand if they were divided into more (but 
shorter) sections? (A ``section'' is preceded by the symbol ``Sec. '' 
and a numbered heading; for example, Sec. 5b.11 Exempt systems.) (4) Is 
the description of the proposed regulations in the Supplementary 
Information section of this preamble helpful in understanding the 
proposed regulations? How could this description be more helpful in 
making the proposed regulations easier to understand? (5) What else 
could the Department do to make the proposed regulations easier to 
understand?
    A copy of any comments that concern how the Department could make 
these proposed regulations easier to understand should be sent to 
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of 
Education, 600 Independence Avenue, S.W. (Room 5100, FB-10B), 
Washington, D.C. 20202-2241.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    These proposed regulations involve procedural rights of individuals 
under the Privacy Act. Individuals are not considered to be 
``entities'' under the Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

    These proposed regulations have been examined under the Paperwork 
Reduction Act of 1995 and have been found to contain no information 
collection requirements.

Intergovernmental Review

    This program is not subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR Part 79.

Invitation To Comment

    Interested persons are invited to submit comments and 
recommendations regarding these proposed regulations. All comments 
submitted in response to these proposed regulations will be available 
for public inspection, during and after the comment period, in Room 
5624, GSA Regional Office Building 3, Washington, D.C., between the 
hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday 
of each week except Federal holidays.
    On request the Department supplies an appropriate aid, such as a 
reader or print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking docket for these proposed regulations. An individual with a 
disability who wants to schedule an appointment for this type of aid 
may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD 
may call the Federal Information Relay Service at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
    To assist the Department in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden, the Secretary invites comments on whether 
there may be further opportunities to reduce any regulatory burdens 
found in these proposed regulations.

List of Subjects in 34 CFR Part 5b

    Privacy.

    Dated: November 18, 1997.
Richard W. Riley,
Secretary of Education.

(Catalogue of Federal Domestic Assistance Number does not apply)

    The Secretary proposes to amend Part 5b of Title 34 of the Code of 
Federal Regulations as follows:

PART 5b--PRIVACY ACT REGULATIONS

    1. The authority citation for Part 5b is revised to read as 
follows:

    Authority: 5 U.S.C. 301 and 552a.

    2. Section 5b.11 is amended by revising paragraphs (b) introductory 
text and (c)(1) introductory text to read as follows:


Sec. 5b.11  Exempt systems.

* * * * *
    (b) Specific systems of records exempted under (j)(2). The 
Department exempts the Investigative Files of the Inspector General ED/
OIG (18-10-0001) and the Hotline Complaint Files of the Inspector 
General ED/OIG (18-10-0004) systems of records from the following 
provisions of 5 U.S.C. 552a and this part:
* * * * *
    (c) * * *
    (1) The Department exempts the Investigative Files of the Inspector 
General ED/OIG (18-10-0001) and the Hotline Complaint Files of the 
Inspector General ED/OIG (18-10-0004) from the following provisions of 
5 U.S.C. 552a and this part to the extent that these systems of records 
consist of investigatory material and complaints that may be included 
in investigatory material compiled for law enforcement purposes:
* * * * *
[FR Doc. 97-30716 Filed 11-21-97; 8:45 am]
BILLING CODE 4000-01-P