[Federal Register Volume 67, Number 51 (Friday, March 15, 2002)]
[Proposed Rules]
[Pages 11804-11815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6091]



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Part III





Court Services and Offender Supervision Agency for the District of 
Columbia





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28 CFR Part 802



Freedom of Information, Privacy Act and Other Disclosure of Records; 
Proposed Rule and Notice

  Federal Register / Vol. 67 , No. 51 / Friday, March 15, 2002 / 
Proposed Rules  

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COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF 
COLUMBIA

28 CFR Part 802

[CSOSA-0003-P]
RIN 3225-AA01


Freedom of Information, Privacy Act and Other Disclosure of 
Records

AGENCY: Court Services and Offender Supervision Agency for the District 
of Columbia.

ACTION: Proposed rule.

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SUMMARY: In this document, the Court Services and Offender Supervision 
Agency for the District of Columbia (``CSOSA'' or ``Agency'') is 
proposing to adopt regulations on the disclosure of CSOSA or the 
District of Columbia Pretrial Services Agency (``PSA'' or ``Agency'') 
records. These regulations include procedures for processing requests 
for disclosure under the Freedom of Information Act, under the Privacy 
Act, and for the production of records in response to a subpoena or 
other legal demand for testimony. The regulations also identify Privacy 
Act systems of records exemptions for both CSOSA and PSA. These 
regulations are necessary in order to ensure that the public has 
appropriate access to information maintained by the Agency and that 
adequate safeguards are in place to protect the privacy rights of 
individuals.

DATES: Comments due by May 14, 2002.

ADDRESSES: Office of the General Counsel, CSOSA, Room 1253, 633 Indiana 
Avenue, NW., Washington, DC 20004.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Records Manager 
(telephone: (202) 220-5359; e-mail: [email protected]).

SUPPLEMENTARY INFORMATION: The Court Services and Offender Supervision 
Agency for the District of Columbia (``CSOSA'' or ``Agency'') is 
proposing to adopt regulations (28 CFR part 802) on the disclosure of 
records maintained by CSOSA or the District of Columbia Pretrial 
Services Agency (``PSA'' or ``Agency''). CSOSA previously published its 
organizational regulations (28 CFR part 800) in the Federal Register on 
January 8, 2001 (66 FR 1259). As noted in these organizational 
regulations, PSA is an independent entity within CSOSA.

Summary of Regulatory Provisions

    Subpart A of the proposed regulations provides a general 
introduction. Subpart B covers procedures for Freedom of Information 
Act (FOIA) requests; subpart C covers procedures for Privacy Act 
requests; subpart D covers disclosures in response to subpoenas or 
other legal demands; and subpart E covers exemptions to CSOSA and PSA 
Privacy Act systems of records.

Freedom of Information Act Requests

    The general guidelines for disclosure (Sec. 802.3) under the FOIA 
note that a record must be in the possession and control of the agency 
at the time of the request to be considered subject to release under 
the regulations. There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request. Hard copy of electronic records which 
are subject to FOIA, but which are available to the public through an 
established distribution system, the Federal Register, or the Internet 
at CSOSA's web site (www.csosa.gov), normally do not need to be 
processed under the FOIA. CSOSA will process such requests under the 
FOIA only if the requester insists on such processing.
    Definitions for certain terms used in the subpart are contained in 
Sec. 802.4. The procedures for submitting and processing FOIA requests 
are contained in Sec. 802.5. Section 802.6 explains how CSOSA handles 
requests for documents which relate to or were created by another 
agency.
    Section 802.7 covers the denial of a request. This section also 
explains how the requester may appeal the denial. Section 802.8 
explains how to request expedited processing. Section 802.9 covers 
procedures for the disclosure of business information which may have 
been provided to the Agency. The business submitter (any entity which 
provided the business information to the Agency and which has a 
proprietary interest in the information) will receive notice of the 
FOIA request and have an opportunity to object to disclosure. Section 
802.10 contains the fee schedule for FOIA requests.

Privacy Act Requests

    The regulations in subpart C are intended to let you know how you 
can determine whether CSOSA or PSA maintains records about you, how you 
can obtain access to your records, and how to have your records 
corrected or amended.
    Definitions for certain terms used in the subpart are contained in 
Sec. 802.12. Section 802.13 explains how to verify your identity when 
making a request for your own records and how to document that you have 
consent when you make a request for information concerning another 
individual. The procedures for submitting and processing requests for 
access to records are contained in Sec. 802.14. Section 802.15 covers 
the denial of a request. Section 802.16 explains how the requester may 
appeal the denial. Section 802.17 explains how CSOSA or PSA handle 
requests for documents which relate to or were created by another 
agency.
    Section 802.18 explains how you may request to correct or amend a 
record about you which the Agency maintains. Section 802.19 contains 
procedures for appealing a denial to correct or amend your record.
    Section 802.20 contains the procedures for accounting for 
disclosures, and Sec. 802.21 notes your appeal rights for a denial of a 
request for an accounting. Fees for Privacy Act requests are described 
in Sec. 802.22. Section 802.23 explains the Agency's policy on the use 
and disclosure of social security numbers.

Subpoenas or Other Legal Demands for Testimony or Production or 
Disclosure of Records or Other Information

    Subpart D contains procedures for the production of records in 
response to subpoenas or demands of courts or other authorities in 
connection with a proceeding to which the Agency is not a party. These 
regulations establish a systematic means by which the Agency can 
evaluate requests for production of official agency information. The 
regulations are intended to: (1) Conserve Agency employee's time for 
conducting official business, (2) minimize the possibility of involving 
the Agency in controversial issues that are not related to the mission 
of the Agency, (3) prevent the possibility that the public will 
misconstrue variances between personal opinions of Agency employees and 
Agency policy, (4) avoid spending the government's time and money for 
private purposes, (5) preserve the integrity of the administrative 
process, and (6) protect confidential, sensitive information and the 
deliberative process of the Agency.

Exemption of Record Systems

    The Privacy Act permits specific systems of records to be exempt 
from some of its requirements. Subpart E identifies these exemptions 
and explains the basis for making the exemptions. CSOSA exemptions are 
contained in Sec. 802.28; PSA exemptions are contained in Sec. 802.29. 
The full text of CSOSA and PSA systems of records appear in a separate 
notice document in today's Federal Register.

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Matters of Regulatory Procedure

Administrative Procedure Act

    Interested persons may participate in this proposed rulemaking by 
submitting data, views, or arguments in writing or by e-mailing the 
agency at the addresses given above in the Addresses and For Further 
Information Contact captions. Comments received during the comment 
period will be considered before final action is taken. Comments 
received after the expiration of the comment period will be considered 
to the extent practicable. All comments received remain on file for 
public inspection at the above address. The proposed rule may be 
changed in light of the comments received. We will not be holding oral 
hearings on this proceeding.

Executive Order 12866

    This proposed rule has been determined to be significant under 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget (OMB).

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with Executive Order 13132, the 
Director of CSOSA has determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Regulatory Flexibility Act

    The Director of CSOSA, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and by 
approving it certifies that this rule will not have a significant 
economic impact upon a substantial number of small entities. This rule 
pertains to agency management, and its economic impact is limited to 
the agency's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, the Director of CSOSA has 
determined that no actions are necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by sec. 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Plain Language Instructions

    We want to make CSOSA's documents easy to read and understand. If 
you have suggestions on how to improve the clarity of these 
regulations, write, e-mail, or call the Records Manager (Roy Nanovic) 
at the address or telephone number given above in the Addresses and For 
Further Information Contact captions.

List of Subjects in 28 CFR Part 802

    Freedom of information; Privacy; Probation and parole.

Jasper Ormond,
Interim Director.
    Accordingly, we propose to amend chapter VIII, Title 28 of the Code 
of Federal Regulations by adding a new part 802 as set forth below.

PART 802--DISCLOSURE OF RECORDS

Subpart A--General

Sec.
802.1   Introduction.
Subpart B--Freedom of Information Act
802.2   Purpose and scope.
802.3   Guidelines for disclosure.
802.4   Definitions.
802.5   Freedom of Information Act requests.
802.6   Documents from other agencies.
802.7   Denial of request.
802.8   Expedited processing.
802.9   Business information.
802.10   Fee schedule.
Subpart C--Privacy Act
802.11   Purpose and scope.
802.12   Definitions.
802.13   Verifying your identity.
802.14   Requests for access to records.
802.15   Denial of request.
802.16   Administrative appeal.
802.17   Documents from other agencies.
802.18   Correction or amendment of record.
802.19   Appeal of denial to correct or amend.
802.20   Accounting of disclosures.
802.21   Appeals.
802.22   Fees.
802.23   Use and disclosure of social security numbers.
Subpart D--Subpoenas or Other Legal Demands for Testimony or the 
Production or Disclosure of Records or Other Information
802.24   Purpose and scope.
802.25   Definitions.
802.26   Receipt of demand.
802.27   Compliance/noncompliance.
Subpart E--Exemption of record systems under the Privacy Act
802.28   Exemption of the Court Services and Offender Supervision 
System--limited access.
802.29   Exemption of the Pretrial Services Agency System.

    Authority: 5 U.S.C. 301, 552, 552a; Pub. L. 105-33, 111 Stat. 
251, 712 (D.C. Code 24-1232, 24-1233).

Subpart A--General


Sec. 802.1  Introduction.

    This part contains regulations of the Court Services and Offender 
Supervision Agency for the District of Columbia (``CSOSA'' or 
``Agency'') and the District of Columbia Pretrial Services Agency 
(``PSA'' or ``Agency'') which implement the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and provide 
for the production of records in response to a demand from a court or 
other non-congressional authority in connection with a proceeding to 
which the Agency is not a party.

Subpart B--Freedom of Information Act


Sec. 802.2  Purpose and scope.

    The purpose of this subpart is to establish procedures for the 
release of records in the possession of the Agency pursuant to the 
provisions of the FOIA.


Sec. 802.3  Guidelines for disclosure.

    (a) The authority to release or deny access to records and 
information under the FOIA is limited to the General Counsel and his or 
her designee.
    (b) An agency record will be released in response to a written 
request, unless a valid legal exemption to disclosure is asserted.
    (1) Any applicable exemption to disclosure which is provided under 
the FOIA in 5 U.S.C. 552 may be asserted.
    (2) A record must exist and be in the possession and control of the 
agency at the time of the request to be considered subject to this part 
and the FOIA. There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request.
    (3) Hard copy of electronic records that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and that are available

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to the public through an established distribution system or through the 
Federal Register or the Internet, normally need not be processed under 
the provisions of the FOIA. However, if the requester insists that the 
request be processed under the FOIA, then the request shall be 
processed under the FOIA.


Sec. 802.4  Definitions.

    As used in this subpart, the following terms have the following 
meanings:
    (a) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 
552(f).
    (b) Appeal means a request for a review of the agency's 
determination with regard to a fee waiver, category of requester, 
expedited processing, or denial in whole or in part of a request for 
access to a record or records.
    (c) Business information means trade secrets or other commercial or 
financial information.
    (d) Business submitter means any entity which provides business 
information to the Agency and which has a proprietary interest in the 
information.
    (e) Computer software means tools by which records are created, 
stored, and retrieved. Normally, computer software, including source 
code, object code, and listings of source and object codes, regardless 
of medium, are not agency records. Proprietary (or copyrighted) 
software is not an agency record.
    (f) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt 
from release under Exemption 4 of the Freedom of Information Act, 5 
U.S.C. 552(b)(4), because disclosure could reasonably be expected to 
cause substantial competitive harm.
    (g) Duplication refers to the process of making a copy of a record 
in order to respond to a FOIA request. Such copies can take the form of 
paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others.
    (h) Electronic records mean those records and information which are 
created, stored, and retrievable by electronic means. This ordinarily 
does not include computer software, which is a tool by which to create, 
store, or retrieve electronic records.
    (i) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (j) Requester means any person who makes a request for access to 
records.
    (k) Review, for fee purposes, refers to the process of examining 
records located in response to a commercial use request to determine 
whether any portion of any record located is permitted to be withheld. 
It also includes processing any records for disclosure; e.g., doing all 
that is necessary to excise them and otherwise prepare them for 
release.
    (l) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within records. Searches may be done 
manually or by automated means.


Sec. 802.5  Freedom of Information Act requests.

    (a) Submission, processing, and release procedures. (1) Requests 
for any record (including policy) ordinarily will be processed pursuant 
to the Freedom of Information Act, 5 U.S.C. 552. Your request must be 
made in writing and addressed to the FOIA Officer, Office of the 
General Counsel, Court Services and Offender Supervision Agency, 633 
Indiana Avenue, NW., Washington, DC 20004. The requester should clearly 
mark on the face of the letter and the envelope ``Freedom of 
Information Request.''
    (2) Your request will be considered received as of the date it is 
received by the FOIA Office. For quickest possible handling, you should 
mark both your request letter and the envelope ``Freedom of Information 
Act Request.''
    (3) Generally, all FOIA requests will be processed in the 
approximate order of receipt, unless the requester shows exceptional 
circumstances exist to justify an expedited response (see Sec. 802.8).
    (4) You must state in your request a firm agreement to pay the fees 
for search, duplication, and review as may ultimately be determined. 
The agreement may state the upper limit (but not less than $25) that 
the requester is willing to pay for processing the request. A request 
that fees be waived or reduced may accompany the agreement to pay fees 
and will be considered to the extent that such request is made in 
accordance with Sec. 802.4(b) and provides supporting information to be 
measured against the fee waiver standard set forth in Sec. 802.9(g). 
The requester shall be notified in writing of the decision to grant or 
deny the fee waiver. If a requester has an outstanding balance of 
search, review, or duplication fees due for FOIA request processing, 
the requirements of this paragraph are not met until the requester has 
remitted the outstanding balance due.
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Agency personnel to locate 
them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient and subject matter 
of the record. As a general rule, the more specific you are about the 
records or type of records that you want, the more likely the Agency 
will be able to locate the records in response to your request. If a 
determination is made that your request does not reasonably describe 
records, the Agency will tell you either what additional information is 
needed or why your request is otherwise insufficient. You will be given 
the opportunity to discuss your request so that you may modify it to 
meet the requirements of this section.
    (1) If a document contains information exempt from disclosure, any 
reasonably segregable portion of the record will be provided to you 
after deletion of the exempt portions.
    (2) You will be notified of the decision on the request within 20 
days after its receipt (excluding Saturdays, Sundays, and legal public 
holidays).


Sec. 802.6  Documents from other agencies.

    (a) Documents from or relating to Federal agencies. (1) When a 
request for records includes a document from another Federal agency, 
the document will be referred to the originating Federal agency for a 
determination of its releasability. The requester will be informed of 
the referral. This is not a denial of a FOIA request; thus no appeal 
rights accrue to the requester.
    (2) When a FOIA request is received for a record created by the 
Agency that includes information originated by another federal agency, 
the record will be referred to the originating agency for review and 
recommendation on disclosure. The Agency will not release any such 
record without prior consultation with the originating agency.
    (b) Documents from non-Federal agencies. When a request for records 
includes a document from a non-Federal agency, CSOSA staff must make a 
determination of its releasability.


Sec. 802.7  Denial of request.

    (a) Denial in whole or in part. If it is determined that the 
request for records should be denied in whole or in part, the requester 
shall be notified by mail. The letter of notification shall:
    (1) State the exemptions relied on in not granting the request;
    (2) If technically feasible, indicate the amount of information 
deleted at the place in the record where such deletion is made (unless 
providing such indication would harm an interest

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protected by the exemption relied upon to deny such material);
    (3) Set forth the name and title or position of the responsible 
official;
    (4) Advise the requester of the right to administrative appeal in 
accordance with paragraph (c) of this section; and
    (5) Specify the official or office to which such appeal shall be 
submitted.
    (b) No records found. If it is determined, after a thorough search 
for records by the responsible official or his delegate, that no 
records have been found to exist, the responsible official will so 
notify the requester in writing. The letter of notification will advise 
the requester of the right to administratively appeal the determination 
that no records exist (i.e., to challenge the adequacy of the search 
for responsive records) in accordance with paragraph (c) of this 
section. The response shall specify the official or office to which the 
appeal shall be submitted for review.
    (c) Administrative appeal. (1) A requester may appeal an initial 
determination when:
    (i) Access to records has been denied in whole or in part;
    (ii) There has been an adverse determination of the requester's 
category as provided in Sec. 802.10(d);
    (iii) A request for fee waiver or reduction has been denied; or
    (iv) It has been determined that no responsive records exist.
    (2) Appeals must be made within 30 days of the receipt of the 
letter denying the request. Both the envelope and the letter of appeal 
should be sent to the Office of the General Counsel, Court Services and 
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220, 
Washington, DC 20004 and must be clearly marked ``Freedom of 
Information Act Appeal.''
    (3) The General Counsel will make an appeal determination within 20 
days (excluding Saturdays, Sundays, and holidays) from the date of 
receipt of the appeal. However, for a good reason, this time limit may 
be extended up to an additional 10 days. If, after review, the General 
Counsel determines that additional information should be released, it 
will accompany the appeal response. If, after review, the General 
Counsel determines to uphold the initial review, we will inform you.


Sec. 802.8  Expedited processing.

    (a) Requests and appeals will be taken out of order and given 
expedited treatment whenever staff determines that they involve:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual. The requester must fully explain the 
circumstances warranting such an expected threat so that the Agency may 
make a reasoned determination.
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, a matter of widespread and exceptional media 
interest in which there exist possible questions about the government's 
integrity which affect public confidence. A person ``primarily engaged 
in disseminating information'' does not include individuals who are 
engaged only incidentally in the dissemination of information. The 
standard of ``widespread and exceptional media interest'' requires that 
the records requested pertain to a matter of current exigency to the 
American public and that delaying a response to a request for records 
would compromise a significant recognized interest to and throughout 
the general public. The requester must adequately explain the matter or 
activity and why it is necessary to provide the records being sought on 
an expedited basis.
    (b) If you seek expedited processing, you must submit a statement, 
certified to be true and correct to the best of your knowledge and 
belief. The statement must be in the form prescribed by 28 U.S.C. 1746, 
``I declare under penalty of perjury that the foregoing is true and 
correct to the best of my knowledge and belief. Executed on [date].''
    (c) The determination as to whether to grant or deny the request 
for expedited processing will be made, and the requester notified, 
within ten days after the date of the request. Because a decision to 
take a FOIA request out of order delays other requests, simple fairness 
demands that such a decision be made by the FOIA Officer only upon 
careful scrutiny of truly exceptional circumstances. The decision will 
be made solely based on the information contained in the initial letter 
requesting expedited processing.
    (d) Appeals of initial determinations to deny expedited processing 
must be made promptly. Both the envelope and the letter of appeal 
should be sent to the Office of the General Counsel, Court Services and 
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220, 
Washington, DC 2004 and must be clearly marked ``Expedited Processing 
Appeal.''
    (e) The General Counsel will make an appeal determination regarding 
expedited processing as soon as practicable.


Sec. 802.9  Business information.

    (a) In general. Business information provided to the Agency by a 
business submitter will not be disclosed pursuant to a Freedom of 
Information Act request except in accordance with this section. Any 
claim of confidentiality must be supported by a statement by an 
authorized representative of the company providing specific 
justification that the information in question is in fact confidential 
commercial or financial information and has not been disclosed to the 
public.
    (b) Notice to business submitters. The Agency will provide a 
business submitter with prompt written notice of receipt of a request 
or appeal encompassing its business information whenever required in 
accordance with paragraph (c) of this section, and except as is 
provided in paragraph (g) of this section. Such written notice shall 
either describe the exact nature of the business information requested 
or provide copies of the records or portions of records containing the 
business information.
    (c) When notice is required. (1) Notice of a request for business 
information falling within paragraph (c)(2)(i) or (ii) of this section 
will be required for a period of not more than ten years after the date 
of submission unless the business submitter had requested, and provided 
acceptable justification for, a specific notice period of greater 
duration.
    (2) The Agency shall provide a business submitter with notice of 
receipt of a request or appeal whenever:
    (i) The business submitter has in good faith designated the 
information as commercially or financially sensitive information, or
    (ii) The Agency has reason to believe that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (d) Opportunity to object to disclosure.
    (1) Through the notice described in paragraph (b) of this section, 
the Agency shall afford a business submitter ten days from the date of 
the notice (exclusive of Saturdays, Sundays, and legal public holidays) 
to provide a detailed statement of any objection to disclosure. Such 
statement shall specify why the business submitter believes the 
information is considered to be a trade secret or commercial or 
financial information that is privileged or confidential. Information 
provided by a business submitter pursuant to this paragraph might 
itself be subject to disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, the 
requester shall be advised that such

[[Page 11808]]

notice has been given to the submitter. The requester shall be further 
advised that a delay in responding to the request may be considered a 
denial of access to records and that the requester may proceed with an 
administrative appeal or seek judicial review, if appropriate. However, 
the requester will be invited to agree to a voluntary extension of time 
so that staff may review the business submitter's objection to 
disclose.
    (e) Notice of intent to disclose. The Agency will consider 
carefully a business submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever a decision to disclose business information over 
the objection of a business submitter is made, the Agency shall forward 
to the business submitter a written notice which shall include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date which is not less than ten days 
(exclusive of Saturdays, Sundays, and legal public holidays) after the 
notice of the final decision to release the requested information has 
been mailed to the submitter.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information covered by 
paragraph (c) of this section, the Agency shall promptly notify the 
business submitter.
    (g) Exception to notice requirement. The notice requirements of 
this section shall not apply if:
    (1) The Agency determines that the information shall not be 
disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).


Sec. 802.10  Fee schedule.

    (a) The fees described in this section conform to the Office of 
Management and Budget Uniform Freedom of Information Act Fee Schedule 
and Guidelines. They reflect direct costs for search, review (in the 
case of commercial requesters), and duplication of documents, 
collection of which is permitted by the FOIA. However, for each of 
these categories, the fees may be limited, waived, or reduced for the 
reasons given below or for other reasons.
    (b) The term direct costs means those expenditures the agency 
actually makes in searching for, review (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request.
    (c) Fees shall be charged in accordance with the schedule contained 
in paragraph (i) of this section for services rendered in responding to 
requests for records, unless any one of the following applies:
    (1) Services were performed without charge;
    (2) The fees were waived or reduced in accordance with paragraph 
(f) of this section.
    (d) Specific levels of fees are prescribed for each of the 
following categories of requesters.
    (1) Commercial use requesters. These requesters are assessed 
charges, which recover the full direct costs of searching for, 
reviewing, and duplicating the records sought. Commercial use 
requesters are not entitled to two hours of free search time or 100 
free pages of duplication of documents. Moreover, when a request is 
received for disclosure that is primarily in the commercial interest of 
the requester, the Agency is not required to consider a request for a 
waiver or reduction of fees based upon the assertion that disclosure 
would be in the public interest. The Agency may recover the cost of 
searching for and reviewing records even if there is ultimately no 
disclosure of records, or no records are located.
    (2) Educational and non-commercial scientific institution 
requesters. Records shall be provided to requesters in these categories 
for the cost of duplication alone, excluding charges for the first 100 
pages. To be eligible, requesters must show that the request is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. These categories do not include requesters who 
want records for use in meeting individual academic research or study 
requirements.
    (3) Requesters who are representatives of the news media. Records 
shall be provided to requesters in this category for the cost of 
duplication alone, excluding charges for the first 100 pages.
    (4) All other requesters. Requesters who do not fit any of the 
categories described in paragraphs (d)(1) through (3) of this section 
shall be charged fees that will recover the full direct cost of 
searching for and duplicating records that are responsive to the 
request, except that the first 100 pages of duplication and the first 
two hours of search time shall be furnished without charge. The Agency 
may recover the cost of searching for records even if there is 
ultimately no disclosure of records, or no records are located. 
Requests from persons for records about themselves filed in a systems 
of records shall continue to be treated under the fee provisions of the 
Privacy Act of 1974 which permit fees only for duplication.
    (e) Fee waiver determination. Where the initial request includes a 
request for reduction or waiver of fees, the responsible official shall 
determine whether to grant the request for reduction or waiver before 
processing the request and notify the requester of this decision. If 
the decision does not waive all fees, the responsible official shall 
advise the requester of the fact that fees shall be assessed and, if 
applicable, payment must be made in advance pursuant to paragraph (g) 
of this section.
    (f) Waiver or reduction of fees.
    (1) Fees may be waived or reduced on a case-by-case basis in 
accordance with this paragraph by the official who determines the 
availability of the records, provided such waiver or reduction has been 
requested in writing. Fees shall be waived or reduced by this official 
when it is determined, based upon the submission of the requester, that 
a waiver or reduction of the fees is in the public interest because 
furnishing the information is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. Fee 
waiver/reduction requests shall be evaluated against the current fee 
waiver policy guidance issued by the Department of Justice.
    (2) Appeals from denials of requests for waiver or reduction of 
fees shall be decided in accordance with the criteria set forth in this 
section by the official authorized to decide appeals from denials of 
access to records. Appeals shall be addressed in writing to the Office 
of the General Counsel, Court Services and Offender Supervision Agency, 
Office of the General Counsel, 633 Indiana Avenue, NW., Washington, DC 
20004 within 30 days of the denial of the initial request for waiver or 
reduction and shall be decided within 20 days (excluding Saturdays, 
Sundays and holidays).
    (3) Appeals from an adverse determination of the requester's 
category as described in paragraphs (d)(1) through (3) of this section 
shall be decided by the official authorized to decide appeals from 
denials of access to records and shall be based upon a review of the 
requester's submission

[[Page 11809]]

and the Agency's own records. Appeals shall be addressed in writing to 
the office or officer specified in Sec. 802.7(c)(2) within 30 days of 
the receipt of the Agency's determination of the requester's category 
and shall be decided within 20 days (excluding Saturdays, Sundays, and 
holidays).
    (g) Advance notice of fees.
    (1) When the fees for processing the request are estimated to 
exceed the limit set by the requester, and that amount is less than 
$250.00, the requester shall be notified of the estimated costs. The 
requester must provide an agreement to pay the estimated costs; 
however, the requester will also be given an opportunity to reformulate 
the request in an attempt to reduce fees.
    (2) If the requester has failed to state a limit and the costs are 
estimated to exceed $250.00, the requester shall be notified of the 
estimated costs and must pre-pay such amount prior to the processing of 
the request, or provide satisfactory assurance of full payment if the 
requester has a history of prompt payment of FOIA fees. The requester 
will also be given an opportunity to reformulate the request in an 
attempt to reduce fees.
    (h) Form of payment.
    (1) Payment may be made by check or money order payable to the 
Treasury of the United States.
    (2) The Court Services and Offender Supervision Agency reserves the 
right to request prepayment after a request is processed and before 
documents are released in the following circumstances.
    (i) When costs are estimated or determined to exceed $250.00, the 
Agency shall either obtain satisfactory assurance of full payment of 
the estimated cost where the requester has a history of prompt payment 
of FOIA fees or require the requester to make an advance payment of the 
entire estimated or determined fee before continuing to process the 
request.
    (ii) If a requester has previously failed to pay a fee within 30 
days of the date of the billing, the requester shall be required to pay 
the full amount owed plus any applicable interest, and to make an 
advance payment of the full amount of the estimated fee before the 
Agency begins to process a new request or the pending request. Whenever 
interest is charged, the Agency shall begin assessing interest on the 
31st day following the day on which billing was sent. Interest shall be 
at the rate prescribed in 31 U.S.C. 3717.
    (i) Amounts to be charged for specific services. The fees for 
services performed by an employee of the Agency shall be imposed and 
collected as set forth in this paragraph.
    (1) Duplicating records. All requesters, except commercial 
requesters, shall receive the first 100 pages duplicated without 
charge; the first two hours of search time free; or charge which total 
$10.00 or less. Fees for the copies are to be calculated as follows:
    (i) The duplication cost is calculated by multiplying the number of 
pages in excess of 100 by $0.25.
    (ii) Photographs, films, and other materials--actual cost of 
duplication.
    (iii) Other types of duplication services not mentioned above--
actual cost.
    (iv) Material provided to a private contractor for copying shall be 
charged to the requester at the actual cost charged by the private 
contractor.
    (2) Search services. The cost of search time is calculated by 
multiplying the number of quarter hours in excess of two hours by the 
following rates for the staff conducting the search:
    (i) $7.00 per quarter hour for clerical staff;
    (ii) $10.00 per quarter hour for professional staff; and
    (iii) $14.00 per quarter hour for managerial personnel.
    (3) Assessment exclusions. Only fees in excess of $10.00 will be 
assessed. This means that the total cost must be greater than $10.00, 
either for the cost of the search (for time in excess of two hours), 
for the cost of duplication (for pages in excess of 100), or for both 
costs combined.
    (j) Searches for electronic records. The Agency shall charge for 
actual direct cost of the search, including computer search time, runs, 
and the operator's salary. The fee for computer output shall be actual 
direct costs. For requesters in the ``all other'' category, when the 
cost of the search (including the operator time and the cost of 
operating the computer to process a request) equals the equivalent 
dollar amount of two hours of the salary of the person performing the 
search (i.e., the operator), the charge for the computer search will 
begin.
    (k) Aggregating requests. When the Agency reasonably believes that 
a requester or group of requesters is attempting to break a request 
down into a series of requests for the purpose of evading the 
assessment of fees, the Agency shall aggregate any such requests and 
charge accordingly.

Subpart C--Privacy Act


Sec. 802.11  Purpose and scope.

    The regulations in this subpart apply to all records which are 
contained in a system of records maintained by the Agency and which are 
retrieved by an individual's name or personal identifier. This subpart 
implements the Privacy Act by establishing Agency policy and procedures 
providing for the maintenance of and guaranteed access to records. 
Under these procedures:
    (a) You can ask us whether we maintain records about you or obtain 
access to your records; and
    (b) You may seek to have your record corrected or amended if you 
believe that your record is not accurate, timely, complete, or 
relevant.


Sec. 802.12  Definitions.

    As used in this subpart, the following terms shall have the 
following meanings:
    (a) Agency has the meaning as defined in 5 U.S.C. 552(e).
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (c) Maintain includes maintain, collect, use, or disseminate.
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Agency. This includes, 
but is not limited to, the individual's education, financial 
transactions, medical history, and criminal or employment history and 
that contains the name, or an identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger 
print or a photograph.
    (e) System of records means a group of any records under the 
control of the Agency from which information is retrieved by the name 
of the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or part in making any determination about an identifiable 
individual, except as provided by 13 U.S.C. 8.
    (g) Routine use means the disclosure of a record that is compatible 
with the purpose for which the record was collected.
    (h) Request for access means a request made pursuant to 5 U.S.C. 
552a(d)(1).
    (i) Request for amendment means a request made pursuant to 5 U.S.C. 
552a(d)(2).
    (j) Request for accounting means a request made pursuant to 5 
U.S.C. 552a(c)(3).


Sec. 802.13  Verifying your identity.

    (a) Requests for your own records. When you make a request for 
access to records about yourself, you must verify your identity. You 
must state your full

[[Page 11810]]

name, current address, and date and place of birth. You must sign your 
request and your signature must either be notarized or submitted by you 
under 28 U.S.C. 1746. In order to help the identification and location 
of requested records, you may also, at your option, include your social 
security number.
    (b) Requests on behalf of another. Information that concerns an 
individual and that is contained in a system of records maintained by 
the Agency shall not be disclosed to any person, or to another agency, 
except under the provisions of the Privacy Act, 5 U.S.C. 552a, or the 
Freedom of Information Act, 5 U.S.C. 552.
    (c) Disclosure criteria. Staff may disclose information from an 
agency system of records only if one or more of the following criteria 
apply:
    (1) With the written consent of the individual to whom the record 
pertains.
    (2) Pursuant to a specific exception listed under the Privacy Act 
(5 U.S.C. 552a(b)). For example, specific exceptions allow disclosure:
    (i) To employees within the Agency who have a need for the record 
in the performance of their duties.
    (ii) If disclosure is permitted under FOIA, e.g. ``public 
information,'' when the public interest in disclosure of the 
information outweighs the privacy interest involved.
    (iii) For a routine use described in the agency system of records 
as published in the Federal Register.
    (A) The published notices for these systems describe the records 
contained in each system and the routine uses for disclosing these 
records without first obtaining the consent of the person to whom the 
records pertain.
    (B) CSOSA publishes notices of system of records, including all 
pertinent routine uses, in the Federal Register.


Sec. 802.14  Requests for access to records.

    (a) Submission, processing, and release procedures.
    (1) Requests for any agency record about yourself ordinarily will 
be processed pursuant to the Privacy Act, 5 U.S.C. 552a. Such a request 
must be made in writing and addressed to the FOIA Officer, Office of 
the General Counsel, Court Services and Offender Supervision Agency, 
633 Indiana Avenue, NW., Washington, DC 20004. The requester should 
clearly mark on the face of the letter and the envelope ``Privacy Act 
Request.''
    (2) Your request will be considered received as of the date it is 
received by the FOIA Office. For quickest possible handling, you should 
mark both your request letter and the envelope ``Privacy Act Request.''
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Agency personnel to locate 
them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient and subject matter 
of the record. As a general rule, the more specific you are about the 
records or type of records that you want, the more likely the Agency 
will be able to locate the records in response to your request. If a 
determination is made that your request does not reasonably describe 
records, the Agency will tell you either what additional information is 
needed or why your request is otherwise insufficient. You will be given 
the opportunity to discuss your request so that you may modify it to 
meet the requirements of this section.
    (1) If a document contains information exempt from disclosure, any 
reasonably segregable portion of the record will be provided to the 
requester after deletion of the exempt portions.
    (2) A requester will be notified of the decision on the request in 
writing. Every effort will be made to respond to the requester within 
the time limit set under the governing disclosure statute.
    (3) Generally, all Privacy Act requests will be processed in the 
approximate order of receipt, unless the requester shows exceptional 
circumstances exist to justify an expedited response (see Sec. 802.8).


Sec. 802.15  Denial of request.

    (a) Denial in whole or in part. If it is determined that the 
request for records should be denied in whole or in part, the requester 
shall be notified by mail. The letter of notification shall:
    (1) State the FOIA exemptions relied on in not granting the 
request;
    (2) If technically feasible, indicate the amount of information 
deleted at the place in the record where such deletion is made (unless 
providing such indication would harm an interest protected by the 
exemption relied upon to deny such material);
    (3) Set forth the name and title or position of the responsible 
official;
    (4) Advise the requester of the right to administrative appeal in 
accordance with Sec. 802.16(e); and
    (5) Specify the official or office to which such appeal shall be 
submitted.
    (b) No records found. If it is determined, after a thorough search 
for records by the responsible official or his delegate, that no 
records have been found to exist, the responsible official will so 
notify the requester in writing. The letter of notification will advise 
the requester of the right to administratively appeal the determination 
that no records exist (i.e., to challenge the adequacy of the search 
for responsive records) in accordance with paragraph (a)(1) of this 
section. The response shall specify the official or office to which the 
appeal shall be submitted for review.


Sec. 802.16  Administrative appeal.

    (a) A requester may appeal an Agency initial determination when:
    (1) Access to records has been denied in whole or in part;
    (2) There has been an adverse determination of the requester's 
category as provided in Sec. 802.9(d);
    (3) A request for fee waiver or reduction has been denied; or
    (4) It has been determined that no responsive records exist.
    (b) Appeals of initial determinations must be made within 30 days 
of the receipt of the letter denying the request. Both the envelope and 
the letter of appeal should be sent to the Office of the General 
Counsel, Court Services and Offender Supervision Agency, 633 Indiana 
Avenue, NW., Room 1220, Washington, DC 20004 and must be clearly marked 
``Privacy Act Appeal.''
    (c) The General Counsel will make an appeal determination within 20 
days (excluding Saturdays, Sundays, and holidays) from the date of 
receipt of the appeal. However, for a good reason, this time limit may 
be extended up to an additional 10 days. If, after review, the General 
Counsel determines that additional information should be released, it 
will accompany the appeal response. If, after review, the General 
Counsel determines to uphold the initial review, we will inform you of 
that decision.


Sec. 802.17  Documents from other agencies.

    (a)(1) Documents from or pertaining to Federal agencies. When a 
request for records includes a document from another Federal agency, 
the document will be referred to the originating Federal agency for a 
determination of its releasability. The requester will be informed of 
the referral. This is not a denial of a Privacy Act request; thus no 
appeal rights accrue to the requester.
    (2) When a Privacy Act request is received for a record created by 
the Agency that includes information originated by another Federal 
agency, the record will be referred to the originating agency for 
review and recommendation on disclosure. The Agency will not release 
any such record without prior consultation with the originating agency.

[[Page 11811]]

    (b) Documents from non-Federal agencies. When a request for records 
includes a document from a non-Federal agency, CSOSA staff must make a 
determination of its releasability.


Sec. 802.18  Correction or amendment of records.

    This section applies to all records kept by the Agency except for 
records of earnings. If you believe your record is not accurate, 
relevant, timely, or complete, you may request that your record be 
corrected or amended. A request for correction or amendment must 
identify the particular record in question, state the correction or 
amendment sought, and set forth the justification for the correction. 
To amend or correct your record, you should write to the Office of the 
General Counsel identified in Sec. 802.14(a)(1). You should submit any 
available evidence to support your request. Both the request and the 
envelope must be clearly marked ``Privacy Act Correction Request.'' 
Your request should indicate:
    (a) The system of records from which the record is retrieved;
    (b) The particular record which you want to correct or amend;
    (c) Whether you want to add, delete or substitute information in 
the records; and
    (d) Your reasons for believing that your record should be corrected 
or amended.


Sec. 802.19  Appeal of denial to correct or amend.

    (a) Agency staff may grant or deny requests for correction of 
agency records. One basis for denial may be that the records are 
contained in an agency system of records that has been published in the 
Federal Register and exempted from the Privacy Act provisions requiring 
amendment and correction.
    (1) Any denial of a request for correction should contain a 
statement of the reason for denial and notice to the requester that the 
denial may be appealed to the General Counsel by filing a written 
appeal.
    (2) The appeal should be marked on the face of the letter and the 
envelope, ``PRIVACY APPEAL--DENIAL OF CORRECTION,'' and be addressed to 
the Office of the General Counsel, address cited at Sec. 802.14(a)(1).
    (3) The General Counsel will review your request within 30 days 
from the date of receipt. However, for a good reason, this time limit 
may be extended. If, after review, the General Counsel determines that 
the record should be corrected, the record will be corrected. If, after 
review, the General Counsel refuses to amend the record exactly as you 
requested, we will inform you:
    (i) That your request has been refused and the reason;
    (ii) That this refusal is the Agency's final decision;
    (iii) That you have a right to seek court review of this request to 
amend the record; and
    (iv) That you have a right to file a statement of disagreement with 
the decision. Your statement should include the reason you disagree. We 
will make your statement available to anyone to whom the record is 
subsequently disclosed, together with a statement of our reasons for 
refusing to amend the record.
    (b) Requests for correction of records prepared by other federal 
agencies shall be forwarded to that agency for appropriate action and 
the requester will be immediately notified of the referral in writing.
    (c) When the request is for correction of non-Federal records, the 
requester will be advised to write to that non-Federal entity.


Sec. 802.20  Accounting of disclosures.

    (a) We will maintain an accounting of all disclosures of a record 
for five years or until the record is destroyed, whichever is longer, 
except that, we will not make an accounting for:
    (1) Disclosures of public information;
    (2) Disclosures made within the agency; and
    (3) Disclosures of your record made with your written consent.
    (b) The accounting will include:
    (1) The date, nature, and purpose of the disclosure; and
    (2) The name and address of the person or entity to whom the 
disclosure is made.
    (c) You may request access to an accounting of disclosures of your 
record. Your request should be in accordance with the procedures in 
Sec. 802.14. You will be granted access to an accounting of the 
disclosures of your record in accordance with the procedures of this 
part which govern access to the related record, excepting disclosures 
made for an authorized civil or criminal law enforcement agency as 
provided by subsection (c)(3) of the Privacy Act. You will be required 
to provide reasonable identification.


Sec. 802.21  Appeals.

    You may appeal a denial of a request for an accounting to the 
Office of the General Counsel in the same manner as a denial of a 
request for access to records (See Sec. 802.16) and the same procedures 
will be followed.


Sec. 802.22  Fees.

    The Agency shall charge fees for duplication of records under the 
Privacy Act in the same way in which it charges duplication fees under 
the Freedom of Information Act (See Sec. 802.10).


Sec. 802.23  Use and disclosure of social security numbers.

    (a) In general. An individual shall not be denied any right, 
benefit, or privilege provided by law because of such individual's 
refusal to disclose his or her social security number.
    (b) Exceptions. The provisions of paragraph (a) of this section do 
not apply with respect to:
    (1) Any disclosure which is required by Federal statute, or
    (2) The disclosure of a social security number to any Federal, 
State, or local agency maintaining a system of records in existence and 
operating before January 1, 1975, if such disclosure was required under 
statute or regulation adopted prior to such date to verify the identity 
of an individual.
    (c) Requests for disclosure of social security number. If the 
Agency requests an individual to disclose his or her social security 
account number, we shall inform that individual whether:
    (1) Disclosure is mandatory or voluntary.
    (2) By what statutory or other authority such number is solicited, 
and
    (3) What uses will be made of it.

Subpart D--Subpoenas or Other Legal Demands for Testimony or the 
Production or Disclosure of Records or Other Information


Sec. 802.24  Purpose and scope.

    (a) These regulations state the procedures which the Court Services 
and Offender Supervision Agency (``CSOSA'' or ``Agency'') and the 
District of Columbia Pretrial Services Agency (``PSA'' or ``Agency'') 
follow in response to a demand from a Federal, state, or local 
administrative body for the production and disclosure of material in 
connection with a proceeding to which the Agency is not a party.
    (b) These regulations do not apply to congressional requests. 
Neither do these regulations apply in the case of an employee making an 
appearance solely in his or her private capacity in judicial or 
administrative proceedings that do not relate to the Agency (such as 
cases arising out of traffic accidents, domestic relations, etc.).
    (c) This part is not intended and does not create and may not be 
relied upon to create any right or benefit, substantive or procedural, 
enforceable at law by a party against the United States or specifically 
CSOSA or PSA.

[[Page 11812]]

Sec. 802.25  Definitions.

    Demand means a request, order, or subpoena for testimony or 
documents to use in a legal proceeding.
    Employee includes a person employed in any capacity by CSOSA or 
PSA, currently or in the past; any person appointed by, or subject to 
the supervision, jurisdiction, or control of the head of the Agency, or 
any Agency official, currently or in the past. A person who is subject 
to the Agency's jurisdiction or control includes any person who hired 
as a contractor by the agency, any person performing services for the 
agency under an agreement, and any consultant, contractor, or 
subcontractor of such person. A former employee is also considered an 
employee only when the matter about which the person would testify is 
one in which he or she was personally involved while at the Agency, or 
where the matter concerns official information that the employee 
acquired while working at the Agency, such as sensitive or confidential 
agency information.
    Legal Proceeding includes any pretrial, trial, and post-trial state 
of any existing or reasonably anticipated judicial or administrative 
action, hearing, investigation, or similar proceeding before a court, 
commission, board, agency, or other tribunal, authority or entity, 
foreign or domestic. Legal proceeding also includes any deposition or 
other pretrial proceeding, including a formal or informal request for 
testimony made by an attorney or other person, or a request for 
documents gathered or drafted by an employee.


Sec. 802.26  Receipt of demand.

    If, in connection with a proceeding to which the Agency is not a 
party, an employee receives a demand from a court or other authority 
for material contained in the Agency's files, any information relating 
to material contained in the Agency's files, or any information or 
material acquired by an employee as a part of the performance of that 
person's official duties or because of that person's official status, 
the employee must:
    (a) Immediately notify the Office of the General Counsel and 
forward the demand to the General Counsel if the demand pertains to 
CSOSA; or
    (b) Immediately notify the Deputy Director of PSA and forward the 
demand to the Deputy Director if the demand pertains to PSA.


Sec. 802.27  Compliance/noncompliance.

    The General Counsel is responsible for determining if CSOSA should 
comply or not comply with the demand, and the Deputy Director of PSA is 
responsible for determining if PSA should comply with the demand.
    (a) An employee may not produce any documents, or provide testimony 
regarding any information relating to, or based upon Agency documents, 
or disclose any information or produce materials acquired as part of 
the performance of that employee's official duties, or because of that 
employee's official status without prior authorization from the General 
Counsel or Deputy Director. The reasons for this policy are as follows:
    (1) To conserve the time of the agency for conducting official 
business;
    (2) To minimize the possibility of involving the agency in 
controversial issues that are not related to the agency's mission;
    (3) To prevent the possibility that the public will misconstrue 
variances between personal opinions of agency employees and agency 
policies;
    (4) To avoid spending the time and money of the United States for 
private purposes;
    (5) To preserve the integrity of the administrative process; and
    (6) To protect confidential, sensitive information and the 
deliberative process of the agency.
    (b) An attorney from the Office of the General Counsel shall appear 
with any CSOSA employee upon whom the demand has been made (and with 
any PSA employee if so requested by the Deputy Director), and shall 
provide the court or other authority with a copy of the regulations 
contained in this part. The attorney shall also inform the court or 
authority that the demand has been or is being referred for prompt 
consideration by the General Counsel or Deputy Director. The court or 
other authority will be requested respectfully to stay the demand 
pending receipt of the requested instructions from the General Counsel 
or Deputy Director.
    (c) If the court or other authority declines to stay the effect of 
the demand pending receipt of instructions from the General Counsel or 
Deputy Director, or if the court or other authority rules that the 
demand must be complied with irrespective of the instructions from the 
General Counsel or Deputy Director not to produce the material or 
disclose the information sought, the employee upon whom the demand was 
made shall respectfully decline to produce the information under United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). In this case, the 
Supreme Court held that a government employee could not be held in 
contempt for following an agency regulation requiring agency approval 
before producing government information in response to a court order.
    (d) The agency will consider the following factors in determining 
whether a demand should be complied with:
    (1) The Privacy Act, 5 U.S.C. 522a;
    (2) Department of Health and Human Services statute and regulations 
concerning drug and alcohol treatment programs found at 42 U.S.C. 290dd 
and 42 CFR 2.1 et. seq.;
    (3) The Victims Rights Act, 42 U.S.C. 10606(b);
    (4) D.C. statutes and regulations;
    (5) Any other state or federal statute or regulation;
    (6) Whether disclosure is appropriate under the rules of procedure 
governing the case or matter in which the demand arose;
    (7) Whether disclosure is appropriate under the relevant 
substantive law concerning privilege;
    (8) Whether disclosure would reveal a confidential source or 
informant, unless the investigative agency and the source or informant 
have no objection;
    (9) Whether disclosure would reveal investigatory records compiled 
for law enforcement purposes, and would interfere with enforcement 
proceedings or disclose investigative techniques and procedures the 
effectiveness of which would thereby be impaired.

Subpart E--Exemption of Records Systems Under the Privacy Act


Sec. 802.28  Exemption of the Court Services and Offender Supervision 
Agency System--limited access.

    The Privacy Act permits specific systems of records to be exempt 
from some of its requirements.
    (a)(1) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and 
(g):
    (i) Background Investigation (CSOSA-2).
    (ii) Supervision Offender Case File (CSOSA-9).
    (iii) Pre-Sentence Investigations (CSOSA-10).
    (iv) Supervision & Management Automated Record Tracking (SMART) 
(CSOSA-11).
    (v) Recidivism Tracking Database (CSOSA-12).
    (vi) Employment Profile (CSOSA-14).
    (vii) Substance Abuse Treatment Database (CSOSA-15).
    (viii) Screener (CSOSA-16).
    (ix) Sex Offender Registry (CSOSA-18).
    (2) Exemptions from the particular subsections are justified for 
the following reasons:
    (i) From subsection (c)(3) because offenders will not be permitted 
to gain

[[Page 11813]]

access or to contest contents of these record systems under the 
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure 
accountings can compromise legitimate law enforcement activities and 
CSOSA responsibilities.
    (ii) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) 
because exemption from this subsection is essential to protect internal 
processes by which CSOSA personnel are able to formulate decisions and 
policies with regard to offenders, to prevent disclosure of information 
to offenders that would jeopardize legitimate correctional interests of 
rehabilitation, and to permit receipt of relevant information from 
other federal agencies, state and local law enforcement agencies, and 
federal and state probation and judicial offices.
    (iv) From subsection (e)(1) because primary collection of 
information directly from offenders about criminal history or criminal 
records is highly impractical and inappropriate.
    (A) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal or 
other investigation.
    (B) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (C) In interviewing individuals or obtaining other forms of 
evidence or information during an investigation, information could be 
obtained, the nature of which would leave in doubt its relevancy and 
necessity. Such information, however, could be relevant to another 
investigation or to an investigative activity under the jurisdiction of 
another agency.
    (v) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar 
with such individual and his/her activities. In such investigations it 
is not feasible to rely upon information furnished by the individual 
concerning his/her own activities.
    (vi) From subsection (e)(3) because disclosure would provide the 
subject with substantial information which could impede or compromise 
the investigation. The individual could seriously interfere with 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (vii) From subsection (e)(8) because the notice requirements of 
this provision could seriously interfere with a law enforcement 
activity by alerting the subject of a criminal or other investigation 
of existing investigative interest.
    (viii) Those sections would otherwise require CSOSA to notify an 
individual of investigatory materials contained in a record pertaining 
to him/her, permit access to such record, permit requests for its 
correction (section 552a(d), (e)(4)(G), and (H)); make available to 
him/her any required accounting of disclosures made of the record 
(section 552a(c)(3)), publish the sources of records in the system 
(section 552a(4)(I)); and screen records to insure that there is 
maintained only such information about an individual as is relevant to 
accomplish a required purpose of the Agency (section 552(e)(1)). In 
addition, screening for relevancy to Agency purposes, a correction or 
attempted correction of such materials could require excessive amounts 
of time and effort on the part of all concerned.
    (b)(1) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(e)(3), (4)(H), (5), (8) and (g):
    (i) Office of Professional Responsibility Record (OPR) (CSOSA-17).
    (ii) [Reserved].
    (2) Exemptions from the particular subsections are justified for 
the following reasons:
    (i) 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 OPR 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.
    (ii) 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.
    (iii) 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 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. 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.
    (iv) From subsection (e)(1) because the application of this 
provision could impair investigations and interfere with the law 
enforcement responsibilities of the OPR for the following reasons:
    (A) 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.
    (B) During the course of any investigation, the OPR 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 OPR should retain

[[Page 11814]]

this information as it may aid in establishing patterns of criminal 
activity, and can provide valuable leads for Federal and other law 
enforcement agencies.
    (C) 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.
    (v) 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:
    (A) 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.
    (B) 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.
    (C) 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.
    (vi) 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.
    (vii) 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.
    (viii) 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.
    (ix) 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.


Sec. 802.29  Exemption of the Pretrial Services Agency System.

    The Privacy Act permits specific systems of records to be exempt 
from some of its requirements.
    (a)(1) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and 
(g):
    (i) Automated Bail Agency Database (ABADABA) (CSOSA/PSA-1).
    (ii) Drug Test Management System (DTMS) (CSOSA/PSA-2).
    (iii) Interview and Treatment Files (CSOSA/PSA-3).
    (iv) Pretrial, Probation and Parole Realtime Information Systems 
Manager (PRISM) (CSOSA/PSA-6).
    (2) Exemptions from the particular subsections are justified for 
the following reasons:
    (i) From subsection (c)(3) because offenders will not be permitted 
to gain access or to contest contents of these record systems under the 
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure 
accountings can compromise legitimate law enforcement activities and 
CSOSA/PSA responsibilities.
    (ii) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) 
because exemption from this subsection is essential to protect internal 
processes by which CSOSA/PSA personnel are able to formulate decisions 
and policies with regard to offenders, to prevent disclosure of 
information to offenders that would jeopardize legitimate correctional 
interests of rehabilitation, and to permit receipt of relevant 
information from other federal agencies, state and local law 
enforcement agencies, and federal and state probation and judicial 
offices.
    (iv) From subsection (e)(1) because primary collection of 
information directly from offenders about criminal history or criminal 
records is highly impractical and inappropriate.
    (A) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal or 
other investigation.
    (B) Relevancy and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (C) In interviewing individuals or obtaining other forms of 
evidence or information during an investigation, information could be 
obtained, the nature of which would leave in doubt its relevancy and 
necessity. Such information, however, could be relevant to another 
investigation or to an investigative activity under the jurisdiction of 
another agency.
    (v) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar 
with such individual and his/her activities. In such investigations it 
is not feasible to rely upon information furnished by the individual 
concerning his/her own activities.
    (vi) From subsection (e)(3) because disclosure would provide the 
subject with substantial information which could impede or compromise 
the investigation. The individual could seriously interfere with 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (vii) From subsection (e)(8) because the notice requirements of 
this provision could seriously interfere with a law enforcement 
activity by alerting the subject of a criminal or other investigation 
of existing investigative interest.
    (viii) Those sections would otherwise require CSOSA to notify an 
individual of investigatory materials contained in a record pertaining 
to him/her, permit access to such record, permit requests for its 
correction (section 552a(d), (e)(4)(G), and (H)); make available to 
him/her any required accounting of disclosures made of the record 
(section 552a(c)(3)), publish the sources of records in the system 
(section 552a(4)(I)); and screen records to insure that there is 
maintained only such information about an individual as is relevant to 
accomplish a required purpose of the Agency (section 552(e)(1)). In 
addition, screening for

[[Page 11815]]

relevancy to Agency purposes, a correction or attempted correction of 
such materials could require excessive amounts of time and effort on 
the part of all concerned.
    (b) [Reserved].

[FR Doc. 02-6091 Filed 3-14-02; 8:45 am]
BILLING CODE 3129-01-U