[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Proposed Rules]
[Pages 69487-69488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22642]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 017-2005]


Privacy Act of 1974; Implementation

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice, Bureau of Prisons (Bureau or BOP), 
proposes to exempt a Privacy Act system of records from the following 
subsections of the Privacy Act: (c)(3) and (4), (d)(1)-(4), (e)(2) and 
(3), (e)(5), and (g). This system of records is the ``Inmate Electronic 
Message Record System, (JUSTICE/BOP-013)'', as stated and described in 
today's notice section of the Federal Register.
    The exemptions are necessary to preclude the compromise of 
institution security, to better ensure the safety of inmates, Bureau 
personnel and the public, to better protect third party privacy, to 
protect law enforcement and investigatory information, and/or to 
otherwise ensure the effective performance of the Bureau's law 
enforcement functions.

DATES: Submit any comments by January 17, 2006.

ADDRESSES: Address all comments to Mary Cahill, Management and Planning 
Staff, Justice Management Division, Department of Justice, Washington, 
DC 20530 (1400 National Place Building), Facsimile Number (202) 307-
1853. To ensure proper handling, please reference the AAG/A Order No. 
on your correspondence. You may view an electronic version of this 
proposed rule at http://www.regulations.gov. You may also comment via 
the Internet to the DOJ/Justice Management Division at the following e-
mail address: [email protected]; or by using 
the http://www.regulations.gov comment form for this regulation. When 
submitting comments electronically, you must include the AAG/A Order 
No. in the subject box.

FOR FURTHER INFORMATION CONTACT: Mary Cahill, (202) 307-1823.

SUPPLEMENTARY INFORMATION: This order relates to individuals rather 
than small business entities. Nevertheless, pursuant to the 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this 
order will not have a significant economic impact on a substantial 
number of small entities.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedure, Freedom of Information Act, 
Government in the Sunshine Act, and Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, 
it is proposed to amend 28 CFR part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL INFORMATION

    1. The authority for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g) and 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717 and 9701.


[[Page 69488]]


    2. Section 16.97 is amended by adding paragraphs (p) and (q) to 
read as follows:


Sec.  16.97  Exemption of Bureau of Prisons Systems--limited access.

* * * * *
    (p) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4), (d)(1)-(4), (e)(2) and (3), (e)(5), and (g):
    Inmate Electronic Message Record System (JUSTICE /BOP-013).
    (q) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) 
and/or (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) to the extent that this system of 
records is exempt from subsection (d), and for such reasons as those 
cited for subsection (d) in paragraph (q)(3) below.
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) makes this exemption inapplicable.
    (3) From the access provisions of subsection (d) because exemption 
from this subsection is essential to prevent access of information by 
record subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions of subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would impose an impossible administrative burden by requiring that, 
in addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, some of these records come 
from other Federal criminal justice agencies or State, local and 
foreign jurisdictions, or from Federal and State probation and judicial 
offices, and it is administratively impossible to ensure that records 
comply with this provision.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can be obtained from other persons who are familiar with 
such individual and his/her activities. In such investigations it is 
not feasible to rely solely upon information furnished by the 
individual concerning his/her own activities since it may result in 
inaccurate information and compromise ongoing criminal investigations 
or correctional management decisions.
    (6) From subsection (e)(3) because in view of BOP's operational 
responsibilities, application of this provision to the collection of 
information is inappropriate. Application of this provision could 
provide the subject with substantial information which may in fact 
impede the information gathering process or compromise ongoing criminal 
investigations or correctional management decisions.
    (7) From subsection (e)(5) because in the collection and 
maintenance 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 at a later date or as an investigation progresses. Also, 
some of these records may come from other Federal, State, local and 
foreign law enforcement agencies, and from Federal and State probation 
and judicial offices and it is administratively impossible to ensure 
that the records comply with this provision. It would also require that 
law enforcement information be continuously reexamined even where the 
information may have been collected from the record subject.
    (8) From subsection(g) to the extent that this system is exempted 
from other provisions of the Act.

    Dated: November 7, 2005.
Paul R. Corts,
Assistant Attorney General for Administration.
[FR Doc. 05-22642 Filed 11-15-05; 8:45 am]
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