[Federal Register Volume 67, Number 170 (Tuesday, September 3, 2002)]
[Proposed Rules]
[Pages 56252-56254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22516]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 5b


Privacy Act, Exempt Record System

AGENCY: Office of the Secretary, HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office for Civil Rights (OCR) of the Department of Health 
and Human Services is implementing a new System of Records (SOR) called 
the ``Program Information Management System (PIMS), HHS/OS/OCR (09-90-
0052).'' PIMS effectively combines, and

[[Page 56253]]

ultimately will replace, OCR's two existing systems of records, the 
``Case Information Management System (CIMS), HHS/OS/OCR (09-90-0050),'' 
and the ``Complaint File and Log, HHS/OS/OCR (09-90-0051),'' to create 
a single, integrated system with enhanced electronic storage, retrieval 
and tracking capacities. The Department proposes to exempt the 
investigative records in PIMS from certain provisions of the Privacy 
Act, 5 U.S.C. 552a. The exemption is authorized by subsection (k)(2) of 
the Privacy Act, which applies to investigative materials compiled for 
law enforcement purposes. Unrestricted disclosure of confidential 
information in OCR files can impede ongoing investigations, invade the 
personal privacy of individuals, reveal the identities of confidential 
sources, or otherwise impair the ability of the Office for Civil Rights 
to conduct investigations. For these reasons, the Complaint File and 
Log system was exempted from the notification, access, correction and 
amendment provisions of the Privacy Act under subsection (k)(2) 
concerning records compiled for law enforcement purposes. 49 FR 14107 
(April 10, 1984). Therefore, in this proposed rule, we merely extend 
this important exemption to OCR's new SOR.
    OCR is authorized to gather information for civil and 
administrative law enforcement purposes pursuant to a number of 
statutes that prohibit discrimination based on race, color, national 
origin, disability, age, and, in some instances, sex and religion by 
recipients of Federal financial assistance, and, in certain instances, 
by public entities and the Department's federally conducted programs. 
OCR is also responsible for enforcement of medical records privacy 
protections under the Health Insurance Portability and Accountability 
Act (HIPAA). In order to maintain the integrity of the OCR 
investigative process and to assure that OCR will be able to obtain 
access to complete and accurate information, the Department proposes to 
exempt the investigative records in PIMS, under subsection (k)(2), from 
the notification, access, correction and amendment provisions of the 
Privacy Act, specifically subsections (c)(3), (d), (e)(1), (e)(4)(G), 
(H), and (I) and (f). The Department is requesting public comments on 
the proposed exemption.

DATES: To assure consideration, public comments must be delivered to 
the address provided below by no later than 5 p.m. on October 3, 2002.

ADDRESSES: The public should address comments to: Larry Velez, Program, 
Policy and Training Division, Office for Civil Rights, Department of 
Health and Human Services, Room 509F, Hubert H. Humphrey Building, 200 
Independence Avenue, SW., Washington, DC 20201. Comments also may be 
sent via e-mail to [email protected]. Comments received will be available 
for review at this location, by appointment, during regular business 
hours, Monday through Friday from 9 a.m.-3 p.m., eastern standard time.

FOR FURTHER INFORMATION CONTACT: Claudia Schlosberg, Acting Director, 
Program, Policy and Training Division, Office for Civil Rights, 
Department of Health and Human Services, Room 503F, Hubert Humphrey 
Building, 200 Independence Avenue SW., Washington, DC, 20201, telephone 
(202) 619-3196. (TTY No. 1-800-537-7697).

SUPPLEMENTARY INFORMATION: The Office for Civil Rights (OCR) is 
responsible for enforcing Title VI of the Civil Rights Act of 1964, 
Section 504 of the Rehabilitation Act of 1973, the Age Discrimination 
Act of 1975, and other statutes which prohibit discrimination by 
programs or entities that receive Federal financial assistance. 
Additionally, OCR has jurisdiction over Federally conducted programs in 
cases involving disability-based discrimination under Section 504 of 
the Rehabilitation Act, over state and local public entities in cases 
involving disability-based discrimination under Title II of the 
Americans with Disabilities Act, and certain health plans, health 
clearinghouses and health care providers with respect to enforcement of 
health care privacy obligations under the Health Insurance Portability 
and Accountability Act (HIPAA).
    OCR is implementing a new System of Records (SOR) called the 
``Program Information Management System (PIMS), HHS/OS/OCR (09-90-
0052),'' but in doing so seeks both to ensure personal privacy as well 
as its ability to conduct proper, unimpaired investigations. PIMS 
effectively combines and replaces OCR's two existing systems of 
records, the ``Case Information Management System (CIMS), HHS/OS/OCR 
(09-90-0050),'' and the ``Complaint File and Log, HHS/OS/OCR (09-90-
0051),'' into a single, integrated system with enhanced electronic 
storage, retrieval and tracking capacities. While the types of 
information collected and stored in PIMS will be the same as the 
information collected in CIMS and the Complaint File and Log, PIMS will 
allow OCR to manage more effectively the information it does collect.
    Under the Privacy Act, individuals generally have a right to access 
to information pertaining to them in government files. However, the Act 
permits agencies, by regulation, to exempt from the general access 
provision records which are ``investigative material compiled for law 
enforcement purposes,'' 5 U.S.C. 552a(k)(2). This exemption is 
qualified in that if the material results in the denial of any right, 
privilege, or benefit to the individual, the individual will have 
access to the material (except to the extent necessary to protect 
confidential sources).
    OCR investigative files are records compiled for law enforcement 
purposes. In the course of investigations, OCR often has a need to 
obtain confidential information involving individuals other than the 
complainant. In these cases, it is necessary for OCR to preserve the 
confidentiality of the information to avoid unwarranted invasions of 
personal privacy and to assure recipients of Federal financial 
assistance that such information provided to OCR will be kept 
confidential. This assurance is often central to resolving disputes 
concerning access by OCR to the recipient's records, and is necessary 
to facilitate prompt and effective completion of investigations.
    Unrestricted disclosure of confidential information in OCR files 
can impede ongoing investigations, invade the personal privacy of 
individuals, reveal the identities of confidential sources, or 
otherwise impair the ability of the Office for Civil Rights to conduct 
investigations. For these reasons, the Complaint File and Log system 
was exempted from the notification, access, correction and amendment 
provisions of the Privacy Act under subsection (k)(2) concerning 
records compiled for law enforcement purposes. 49 FR 14107 (April 10, 
1984).
    PIMS, OCR's new System of Records, will consist of an electronic 
repository of information and documents, and supplementary paper 
document files. Like its predecessor, PIMS will include records 
compiled for law enforcement purposes such as complaint allegations, 
information gathered during complaint investigations or reviews, 
letters of findings and correspondence relating to investigations. The 
Department therefore is proposing an amendment to the agency's Privacy 
Act regulation at 45 CFR 5b.11 to ensure that OCR's investigative 
records remain exempt from the requirements of subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I) and (f) of the Privacy Act pursuant to 
the provisions of subsection (k)(2), both during the period of 
transition to the

[[Page 56254]]

new SOR and when the new SOR becomes effective.
    As required by Executive Order 12866, it has been determined that 
this proposed rule is not a significant regulatory action, and 
therefore, does not require a regulatory impact analysis. The 
regulation will not have a substantial direct effect on the States, on 
the relationship between the Federal Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, it is determined that this proposed rule does 
not have federalism implications under Executive Order 13132. Pursuant 
to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, it is hereby certified that this rule will not significantly 
affect a substantial number of small entities. The proposed rule 
imposes no duties or obligations on small entities. In accordance with 
the provisions of the Paperwork Reduction Act of 1995, it has been 
determined that this proposed rule would not impose new record keeping, 
application, reporting, or other types of information collection 
requirements.

List of Subjects in 45 CFR Part 5b

    Privacy.

    For reasons set out in the preamble, the Department's Privacy Act 
Regulations, Part 5b of 45 CFR Subtitle A, is proposed to be amended as 
follows:

PART 5b--PRIVACY ACT REGULATIONS

    1. The authority citation for part 5b continues to read as follows:

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

    2. Section 5b.11 is amended by adding paragraph (b)(2)(ii)(G) to 
read as follows:


Sec.  5b.11  Exempt systems.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * *
    (G) Investigative materials compiled for law enforcement purposes 
for the Program Information Management System, HHS/OS/OCR are exempt 
under (k)(2) of the Privacy Act.
* * * * *

    Dated: August 29, 2002.
Richard M. Campanelli,
Director, Office for Civil Rights.

    Dated: August 29, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-22516 Filed 8-30-02; 8:45 am]
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