[Federal Register Volume 67, Number 234 (Thursday, December 5, 2002)]
[Rules and Regulations]
[Pages 72373-72375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30525]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1611


Privacy Act Regulations

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission is revising its 
regulations, which implement the Privacy Act of 1974, to exempt two 
EEOC systems of records from some of the Act's requirements.

EFFECTIVE DATE: December 5, 2002.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, or Kathleen Oram, Senior Attorney, Office of Legal Counsel, 
(202) 663-4669 (voice) or (202) 663-7026 (TDD).

SUPPLEMENTARY INFORMATION: This rule is also available in the following 
formats: large print, braille, audio tape and electronic file on 
computer disk. Requests for this rule in an alternative format should 
be made to EEOC's Publication Center at 1-800-669-3362. The Commission 
published a notice of proposed rulemaking on July 30, 2002, proposing 
to amend its Privacy Act regulations. The Commission proposed to amend 
Sec.  611.13 to exempt its system of records EEOC-15, Internal 
Harassment Inquiries, pursuant to section k(2) of the Privacy Act, from 
subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and 
(f) of the Privacy Act. In addition, the Commission proposed to add a 
new Sec.  1611.14, to exempt its system of records EEOC-16, Office of 
Inspector General Investigative Files, pursuant to section (j)(2) from 
sections (c)(3), (d)(1), (d)(2), (e)(1), (e)(2) and (e)(3) and pursuant 
to section (k)(2) from sections (c)(3), (d)(1), (d)(2) and (e)(1) of 
the Act.
    Section (k) of the Privacy Act allows an agency to exempt any 
system of records from the above-referenced subsections of the Act if 
it consists of ``investigatory material compiled for law enforcement 
purposes.'' 5 U.S.C. 552(k)(2). Section (j) of the Privacy Act permits 
an agency to exempt a system of records from sections of the Act, 
including those noted above, if the system of records is ``maintained 
by an agency or component thereof which performs as its principal 
function any activity pertaining to the enforcement of criminal laws.'' 
5 U.S.C. 552(j)(2). The files in the Internal Harassment Inquiries 
system of records contain information obtained by EEOC in its internal 
investigations of allegations of harassment filed by EEOC employees. 
The files in the Office of Inspector General Investigations Files 
system contain information obtained during investigations by the Office 
of Inspector General relating to programs and operations of the EEOC. 
It would impede the law enforcement activities of the Commission, and 
the Office of Inspector General to apply the disclosure and amendment 
provisions of the Privacy Act to the two systems of records. The 
regulation includes detailed reasons for the exemption of the two 
systems of records from the particular provisions of the Privacy Act.
    We did not receive any comments on the proposed changes. This final 
rule, therefore, adopts the amendments proposed in the notice of 
proposed rulemaking without change.

Regulatory Procedures:

List of Subjects in 29 CFR Part 1611

    For the Commission.
Cari M. Dominguez,
Chair.

    Accordingly, chapter XIV of title 29 of the Code of Federal 
Regulations is amended as follows:

PART 1611--[AMENDED]

    1. The authority citation for Part 1611 continues to read as 
follows:

    Authority: 5 U.S.C. 552a

    2. Section 1611.13 is revised to read as follows:


Sec.  1611.13  Specific Exemptions-Charge and complaint files

    Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), 
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-
3 (Title VII and Americans with Disabilities Act Discrimination Case

[[Page 72374]]

Files), EEOC-15 (Internal Harassment Inquiries) and EEOC/GOVT-1 (Equal 
Employment Opportunity Complaint Records and Appeal Records) are exempt 
from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
and (f) of the Privacy Act. The Commission has determined to exempt 
these systems from the above named provisions of the Privacy Act for 
the following reasons:
    (a) The files in these systems contain information obtained by the 
Commission and other Federal agencies in the course of harassment 
inquiries, and investigations of charges and complaints that violations 
of Title VII of the Civil Rights Act, the Age Discrimination in 
Employment Act, the Equal Pay Act, the Americans With Disabilities Act 
and the Rehabilitation Act have occurred. In some instances, EEOC and 
agencies obtain information regarding unlawful employment practices 
other than those complained of by the individual who is the subject of 
the file. It would impede the law enforcement activities of the 
Commission and other agencies if these provisions of the Act applied to 
such records.
    (b) The subject individuals of the files in these systems know that 
the Commission or their employing agencies are maintaining a file on 
their charge, complaint, or inquiry, and the general nature of the 
information contained in it.
    (c) Subject individuals of the files in EEOC-1 (Age and Equal Pay 
Act Discrimination Case Files), EEOC-3 (Title VII and Americans with 
Disabilities Act Discrimination Case Files, and EEOC/GOVT-1 (Equal 
Employment Opportunity Complaint Records and Appeal Records) have been 
provided a means of access to their records by the Freedom of 
Information Act. Subject individuals of the charge files in system 
EEOC-3 have also been provided a means of access to their records by 
section 83 of the Commission's Compliance Manual. Subject individuals 
of the case files in system EEOC/GOVT-1 have also been provided a means 
of access to their records by the Commission's Equal Employment 
Opportunity in the Federal Government regulation, 29 CFR 1614.108(f).
    (d) Many of the records contained in system EEOC/GOVT-1 are 
obtained from other systems of records. If such records are incorrect, 
it would be more appropriate for an individual to seek to amend or 
correct those records in their primary filing location so that notice 
of the correction can be given to all recipients of that information.
    (e) Subject individuals of the files in each of these systems have 
access to relevant information provided by the allegedly discriminating 
employer, accuser or harasser as part of the investigatory process and 
are given the opportunity to explain or contradict such information and 
to submit any responsive evidence of their own. To allow such 
individuals the additional right to amend or correct the records 
submitted by the allegedly discriminatory employer, accuser or harasser 
would undermine the investigative process and destroy the integrity of 
the administrative record.
    (f) The Commission has determined that the exemption of these four 
systems of records from subsections (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I) and (f) of the Privacy Act is necessary for the 
agency's law enforcement efforts.
    3. Section 1611.14 is added to read as follows:


Sec.  1611.14  Exemptions--Office of Inspector General Files

    (a) General. The system of records entitled Office of Inspector 
General Investigative Files consists, in part, of information compiled 
by the OIG for the purpose of criminal law enforcement investigations. 
Therefore, to the extent that information in this system falls within 
the scope of Exemption (j)(2) of the Privacy Act, 5 U.S.C. 552a(j)(2), 
this system of records is exempt from the requirements of the following 
subsections of the Privacy Act, for the reasons stated below.
    (1) From subsection (c)(3), because release of an accounting of 
disclosures to an individual who is the subject of an investigation 
could reveal the nature and scope of the investigation and could result 
in the altering or destruction of evidence, improper influencing of 
witnesses, and other evasive actions that could impede or compromise 
the investigation.
    (2) From subsection (d)(1), because release of investigative 
records to an individual who is the subject of an investigation could 
interfere with pending or prospective law enforcement proceedings, 
constitute an unwarranted invasion of the personal privacy of third 
parties, reveal the identity of confidential sources, or reveal 
sensitive investigative techniques and procedures.
    (3) From subsection (d)(2), because amendment or correction of 
investigative records could interfere with pending or prospective law 
enforcement proceedings, or could impose an impossible administrative 
and investigative burden by requiring the OIG to continuously 
retrograde its investigations attempting to resolve questions of 
accuracy, relevance, timeliness and completeness.
    (4) From subsection (e)(1), because it is often impossible to 
determine relevance or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgment and timing; what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, the OIG may obtain information 
concerning the violation of laws other than those within the scope of 
its jurisdiction. In the interest of effective law enforcement, the OIG 
should retain this information because it may aid in establishing 
patterns of unlawful activity and provide leads for other law 
enforcement agencies. Further, in obtaining evidence during an 
investigation, information may be provided to the OIG which relates to 
matters incidental to the main purpose of the investigation but which 
may be pertinent to the investigative jurisdiction of another agency. 
Such information cannot readily be identified.
    (5) From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable from the subject thereof. It is not 
always feasible to rely upon the subject of an investigation as a 
source for information which may implicate him or her in illegal 
activities. In addition, collecting information directly from the 
subject could seriously compromise an investigation by prematurely 
revealing its nature and scope, or could provide the subject with an 
opportunity to conceal criminal activities, or intimidate potential 
sources, in order to avoid apprehension.
    (6) From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.
    (b) Specific. The system of records entitled Office of Inspector 
General Investigative Files consists, in part, of investigatory 
material compiled by the OIG for law enforcement purposes. Therefore, 
to the extent that information in this system falls within the coverage 
of exemption (k)(2) of the Privacy Act, 5 U.S.C. 552a(k)(2), this 
system of records is exempt from the requirements of the following 
subsections of the

[[Page 72375]]

Privacy Act, for the reasons stated below.
    (1) From subsection (c)(3), because release of an accounting of 
disclosures to an individual who is the subject of an investigation 
could reveal the nature and scope of the investigation and could result 
in the altering or destruction of evidence, improper influencing of 
witnesses, and other evasive actions that could impede or compromise 
the investigation.
    (2) From subsection (d)(1), because release of investigative 
records to an individual who is the subject of an investigation could 
interfere with pending or prospective law enforcement proceedings, 
constitute an unwarranted invasion of the personal privacy of third 
parties, reveal the identity of confidential sources, or reveal 
sensitive investigative techniques and procedures.
    (3) From subsection (d)(2), because amendment or correction of 
investigative records could interfere with pending or prospective law 
enforcement proceedings, or could impose an impossible administrative 
and investigative burden by requiring the OIG to continuously 
retrograde its investigations attempting to resolve questions of 
accuracy, relevance, timeliness and completeness.
    (4) From subsection (e)(1), because it is often impossible to 
determine relevance or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgment and timing; what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
investigation. In addition, the OIG may obtain information concerning 
the violation of laws other than those within the scope of its 
jurisdiction. In the interest of effective law enforcement, the OIG 
could retain this information because it may aid in establishing 
patterns of unlawful activity and provide leads for other law 
enforcement agencies. Further, in obtaining evidence during an 
investigation, information may be provided to the OIG which relates to 
matters incidental to the main purpose of the investigation but which 
may be pertinent to the investigative jurisdiction of another agency. 
Such information cannot readily be identified.

[FR Doc. 02-30525 Filed 12-4-02; 8:45 am]
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