[Federal Register Volume 68, Number 114 (Friday, June 13, 2003)]
[Rules and Regulations]
[Pages 35297-35299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14861]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AL33


Privacy Act of 1974; Implementation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
regulations governing the confidentiality and release of VA records 
subject to the Privacy Act, 5 U.S.C. 552a. It revises the regulation 
which exempts certain records from the provisions of the Privacy Act 
authorized under 5 U.S.C. 552a(j)(2) and (k)(2). This revision permits 
VA to exempt a new Privacy Act system of records, Police and Security 
Records--VA (103VA07B).

DATES: This final rule is effective August 12, 2003.

FOR FURTHER INFORMATION CONTACT: Director Police and Security Service 
(07B), Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, telephone (202) 273-5544.

SUPPLEMENTARY INFORMATION: This document sets forth the VA regulation 
to exempt from certain provisions of the Privacy Act an additional VA 
Privacy Act system of records (see, 38 CFR 1.582) by adding a new 
system of records, ``Police and Security Records--VA (103VA07B),'' to 
that VA system of records already exempt under Sec.  1.582.
    In a document published in the Federal Register on December 19, 
2002 (67 FR 77737), VA proposed to amend VA regulations governing the 
confidentiality and release of VA records subject to the Privacy Act to 
exempt certain records from the provisions of the Privacy Act 
authorized under 5 U.S.C. 552a(j)(2) and (k)(2). This proposal would 
have allowed VA to exempt a new Privacy Act system of records relating 
to police and security records. The public comment period ended on 
February 18, 2003. Since VA did not receive any comments or response on 
the proposed rule for RIN 2900-AL33, we are now adopting this proposal 
as a final rule without change.

[[Page 35298]]

    Under title 5 United States Code (U.S.C.) 552a(j)(2), the head of 
any agency may exempt any system of records within the agency from 
certain provisions of the Privacy Act, if the agency or component that 
maintains the system of records performs as its principal function 
activities pertaining to the enforcement of criminal laws. The function 
of the Office of Security and Law Enforcement's Police and Security 
Service is to provide for the maintenance of law and order and the 
protection of persons and property on VA property.
    The system of records ``Police and Security Records--VA 
(103VA07B)'' was created in major part to support the criminal law 
related activities assigned to the Police and Security Service under 
the authority of 38 U.S.C. 901. These activities constitute the 
principal function of this staff. In addition to the principal 
functions pertaining to the enforcement of criminal laws, the Police 
and Security Service may receive and investigate complaints or 
information from various sources concerning the possible existence of 
activities constituting non-criminal violations of law, rules or 
regulations or substantial and specific danger to public safety.
    Based upon the foregoing, VA exempts this system of records to the 
extent that it encompasses information pertaining to criminal law 
related activities from the following provisions of the Privacy Act of 
1974, as permitted by 5 U.S.C. 552a(j)(2):

5 U.S.C. 552a(c)(3) and (4)
5 U.S.C. 552a(d)
5 U.S.C. 552a(e)(1), (2) and (3)
5 U.S.C. 552a(e)(4)(G), (H) and (I)
5 U.S.C. 552a(e)(5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)

    Also, VA exempts this system of records to the extent that it does 
not encompass information pertaining to criminal law related activities 
under 5 U.S.C. 552a(j)(2) from the following provisions of the Privacy 
Act of 1974 as permitted by 5 U.S.C. 552a(k)(2):

5 U.S.C. 552a(c) (3)
5 U.S.C. 552a(d)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H) and (I)
5 U.S.C. 552a(f)

    The exemption of information and material in this system of records 
is necessary in order to accomplish the law enforcement functions of 
the Police and Security Service, to prevent subjects of investigations 
from frustrating the investigatory process, to prevent the disclosure 
of investigative techniques, to fulfill commitments made to protect the 
confidentiality of sources, to maintain access to sources of 
information and to avoid endangering these sources and Police and 
Security personnel.
    Based on the rationale set forth in the proposed rule, we now adopt 
the proposed rule as a final rule without change.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule will have no 
consequential effect on State, local, or tribal governments.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this rule does not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The rule applies only to individuals. Accordingly, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analyses requirements of sections 603 and 604.
    There is no Catalog of Federal Domestic Assistance number for this 
final rule.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Flags, Freedom of information, Government 
contracts, Government employees, Government property, Infants and 
children, Inventions and patents, Parking, Penalties, Postal Service, 
Privacy, Reporting and recordkeeping requirements, Seals and insignia, 
Security measures, Wages.

    Approved: May 16, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR part 1 is amended as 
follows:

PART I--GENERAL

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


0
2. Section 1.582 is amended by adding paragraph (d) preceding the 
authority citation at the end of the section, to read as follows:


Sec.  1.582  Exemptions.

* * * * *
    (d) Exemption of Police and Security Records. VA provides limited 
access to one Security and Law Enforcement System of Records, Police 
and Security Records--VA (103VA07B).
    (1) The investigations records and reports contained in this System 
of Records are exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy 
Act of 1974] from Privacy Act subsections (c)(3) and (c)(4); (d); 
(e)(1) through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), and (e)(8); 
(f); and (g); in addition, they are exempted [pursuant to 5 U.S.C. 
552a(k)(2) of the Privacy Act of 1974] from Privacy Act subsections 
(c)(3); (d); (e)(1), (e)(4)(G) through (e)(4)(I); and (f).
    (2) These records contained in the Police and Security Records--VA 
(103VA076B) are exempted for the following reasons:
    (i) The application of Privacy Act subsection (c)(3) would alert 
subjects to the existence of the investigation and reveal that they are 
subjects of that investigation. Providing subjects with information 
concerning the nature of the investigation could result in alteration 
or destruction of evidence which is obtained from third parties, 
improper influencing of witnesses, and other activities that could 
impede or compromise the investigation.
    (ii) The application of Privacy Act subsections (c)(4); (d); 
(e)(4)(G) and (e)(4)(H); (f); and (g) could interfere with 
investigative and enforcement proceedings, threaten the safety of 
individuals who have cooperated with authorities, constitute an 
unwarranted invasion of personal privacy of others, disclose the 
identity of confidential sources, reveal confidential information 
supplied by these sources, and disclose investigative techniques and 
procedures.
    (iii) The application of Privacy Act subsection (e)(4)(I) could 
disclose investigative techniques and procedures and cause sources to 
refrain from giving such information because of fear of reprisal, or 
fear of breach of promises of anonymity and confidentiality. This could 
compromise the ability to conduct investigations and to identify, 
detect

[[Page 35299]]

and apprehend violators. Even though the agency has claimed an 
exemption from this particular requirement, it still plans to generally 
identify the categories of records and the sources of these records in 
this system. However, for the reason stated in paragraph (d)(2)(ii) of 
this section, this exemption is still being cited in the event an 
individual wants to know a specific source of information.
    (iv) These records contained in the Police and Security Records--VA 
(103VA076B) are exempt from Privacy Act subsection (e)(1) because it is 
not possible to detect the relevance or necessity of specific 
information in the early stages of a criminal or other investigation. 
Relevance and necessity are questions of judgment and timing. What 
appears relevant and necessary may ultimately be determined to be 
unnecessary. It is only after the information is evaluated that the 
relevance and necessity of such information can be established. In any 
investigation, the Office of Security and Law Enforcement may obtain 
information concerning violations of laws other than those within the 
scope of its jurisdiction. In the interest of effective law 
enforcement, the Office of Security and Law Enforcement should retain 
this information as it may aid in establishing patterns of criminal 
activity and provide leads for those law enforcement agencies charged 
with enforcing other segments of civil or criminal law.
    (v) The application of Privacy Act subsection (e)(2) would impair 
investigations of illegal acts, violations of the rules of conduct, 
merit system and any other misconduct for the following reasons:
    (A) In order to successfully verify a complaint, most information 
about a complainant or an individual under investigation must be 
obtained from third parties such as witnesses and informers. It is not 
feasible to rely upon the subject of the investigation as a source for 
information regarding his/her activities because of the subject's 
rights against self-incrimination and because of the inherent 
unreliability of the suspect's statements. Similarly, it is not always 
feasible to rely upon the complainant as a source of information 
regarding his/her involvement in an investigation.
    (B) The subject of an investigation will be alerted to the 
existence of an investigation if an attempt is made to obtain 
information from the subject. This would afford the individual the 
opportunity to conceal any criminal activities to avoid apprehension.
    (vi) The reasons for exempting these records in the Police and 
Security Records--VA (103VA07B) from Privacy Act subsection (e)(3) are 
as follows:
    (A) The disclosure to the subject of the purposes of the 
investigation would provide the subject with substantial information 
relating to the nature of the investigation and could impede or 
compromise the investigation.
    (B) Informing the complainant or the subject of the information 
required by this provision could seriously interfere with undercover 
activities, jeopardize the identities of undercover agents and impair 
their safety, and impair the successful conclusion of the 
investigation.
    (C) Individuals may be contacted during preliminary information 
gathering in investigations before any individual is identified as the 
subject of an investigation. Informing the individual of the matters 
required by this provision would hinder or adversely affect any present 
or subsequent investigations.
    (vii) Since the Privacy Act defines ``maintain'' to include the 
collection of information, complying with subsection (e)(5) would 
prevent the collection of any data not shown to be accurate, relevant, 
timely, and complete at the moment of its collection. In gathering 
information during the course of an investigation, it is not always 
possible to make this determination prior to collecting the 
information. Facts are first gathered and then placed into a logical 
order which objectively proves or disproves criminal behavior on the 
part of the suspect. Material that may seem unrelated, irrelevant, 
incomplete, untimely, etc., may take on added meaning as an 
investigation progresses. The restrictions in this provision could 
interfere with the preparation of a complete investigative report.
    (viii) The notice requirement of Privacy Act subsection (e)(8) 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation.
* * * * *
[FR Doc. 03-14861 Filed 6-12-03; 8:45 am]
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