[Privacy Act Issuances (2001)]
[From the U.S. Government Publishing Office, www.gpo.gov]
INDEPENDENT COUNSEL OFFICE
28 CFR CHAPTER VII--OFFICE OF INDEPENDENT COUNSEL
PART 700--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION OF THE
OFFICE OF INDEPENDENT COUNSEL
Subpart A--Protection of Privacy and Access to Individual Records Under
the Privacy Act of 1974
Sec.
700.10 General provisions.
700.11 Request for access to records.
700.12 Responses to requests for access to records.
700.13 Form and content of Office responses.
700.14 Classified information.
700.15 Records in exempt systems of records.
700.16 Access to records.
700.17 Fees for access to records.
700.18 Appeals from denials of access.
700.19 Preservation of records.
700.20 Requests for correction of records.
700.21 Records not subject to correction.
700.22 Request for accounting of record disclosures.
700.23 Notice of subpoenas and emergency disclosures.
700.24 Security of systems of records.
700.25 Use and collection of social security numbers.
700.26 Employee standards of conduct.
700.27 Other rights and services.
Subpart B--Exemption of the Office of Independent Counsel's Systems of
Records--Limited Access
700.31 Exemption of the Office of Independent Counsel's Systems of
Records--Limited Access.
Authority: 5 U.S.C. 552a.
Source: 53 FR 48097, Dec. 18, 1987.
Subpart A--Protection of Privacy and Access to Individual Records
Under the Privacy Act of 1974
Sec. 700.10 General provisions.
(a) Purpose and scope. The subpart contains the regulations of the
Office of Independent Counsel implementing the Privacy Act of 1974, 5
U.S.C. 552a. The regulations apply to all records that are contained in
systems of records maintained by the Office of Independent Counsel and
that are retrieved by an individual's name or personal identifier. These
regulations set forth the procedures by which an individual may seek
access under the Privacy Act to records pertaining to him, may request
correction of such records, or may seek an accounting of disclosures of
such records by the office.
(b) Transfer of law-enforcement records. The head of the Office, or
his designee, is authorized to make written requests under 5 U.S.C.
552a(b)(7) for transfer of records maintained by other agencies that are
necessary to carry out an authorized law-enforcement activity of the
Office.
(c) Definitions. As used in this subpart, the following terms shall
have the following meanings:
(1) ``Agency'' has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C.
552a(a)(1).
(2) ``Record'' has the same meaning given in 5 U.S.C. 552(a)(4).
(3) ``Request for access'' means a request made pursuant to 5 U.S.C.
552a(d)(1).
(4) ``Request for correction'' means a request made pursuant to 5
U.S.C. 552a(d)(2).
(5) ``Request for an accounting'' means a request made pursuant to 5
U.S.C. 552a(c)(3).
(6) ``Requester'' means an individual who makes either a request for
access, a request for correction, or a request for an accounting.
(7) ``System of records'' means a group of any group of any records
under the control of the Office from which information is retrieved by
the name of an individual or by some identifying number, symbol, or
other identifying particular assigned to that individual.
Sec. 700.11 Request for access to records.
(a) Procedure for making requests for access to records. An individual
may request access to a record about him by appearing in person or by
writing the Office. A requester in need of guidance in defining his
request may write to the FOIA/PA Officer, Office of Independent Counsel,
Suite 701 West, 555 Thirteenth Street, NW, Washington, DC 20004. Both
the envelope and the request itself should be marked: ``Privacy Act
Request.''
(b) Description of records sought. A request for access to records
must describe the records sought in sufficient detail to enable Office
personnel to locate the system of records containing the record with a
reasonable amount of effort. Whenever possible, a request for access
should describe the nature of the records sought, the date of the record
or the period in which the record was compiled, and the name or
identifying number of the system of records in which the requester
believes the record is kept.
(c) Agreement to pay fees. The filing of a request for access to a
record under this subpart shall be deemed to constitute an agreement to
pay all applicable fees charged under Sec. 700.17 up to $25.00. The
Office shall confirm this agreement in its letter of acknowledgment to
the requesters. When filing a request, a requester may specifiy a
willingness to pay a greater amount, if applicable.
(d) Verification of identity. Any individual who submits a request for
access to records must verify his identity in one of the following ways,
unless the notice published in the Federal Register describing the
relevant system of records provides otherwise.
(1) Any requester making a request in writing must state in his
request his full name, current address, and date and place of birth. In
addition, a requester must provide with his request an example of his
signature, which shall be notarized. In order to facilitate the
identification and location of the requested records, a requester may
also, at his option, include in his request his Social Security number.
(2) Any requester submitting a request in person may provide to the
Office a form of Official photographic identification, such as a
passport or an identification badge. If a requester is unable to produce
a form of photographic identification, he may provide to the Office two
or more acceptable forms of identification (such as a driver's license
or credit card) bearing his name and address.
(e) Verification of guardianship. The parent or guardian of a minor
(or the guardian of a person judicially determined to be incompetent)
who submits a request for access to the records of the minor or
incompetent must establish:
(1) His own identity and the identity of the subject of the record, as
required in paragraph (d) of this section,
(2) That he is the parent or guardian of the subject of the record,
which may be proved by providing a copy of the subject's birth
certificate showing parentage or by providing a court order establishing
the guardianship, and
(3) That he seeks to act on behalf of the subject of the record.
Sec. 700.12 Responses to requests for access to records.
(a) Authority to grant or deny requests. The head of the Office, or
his designee, is authorized to grant or deny any request for access to a
record.
(b) Initial action by the Office. When the Office receives a request
for access to a record in its possession, the Office shall promptly
determine whether another Government agency is better able to determine
whether the record is exempt, to any extent, from access. If the Office
determines that it is the agency best able to determine whether the
record is exempt, to any extent, from access, then the Office shall
respond to the request. If the Office determines that it is not the
agency best able to determine whether the record is exempt from access,
the Office shall respond to the request, after consulting with the
agency best able to determine whether the record is exempt from access.
Under ordinary circumstances, the agency that generated or originated a
requested record shall be presumed to be the agency best able to
determine whether the record is exempt from access. However, nothing in
this section shall prohibit the agency that generated or originated a
requested record from consulting with the Office, if the agency that
generated or originated the requested record determines that the Office
has an interest in the requested record or the information contained
therein.
(c) Law-enforcement information. Whenever a request for access is made
for a record containing information that relates to an investigation of
a possible violation of criminal law or to a criminal law-enforcement
proceeding and that was generated or originated by another agency, the
Office shall consult with that other agency, as appropriate.
(d) Classified information. Whenever a request for access is made for
a record containing information that has been classified, or that may be
eligible for classification, by another agency under the provision of
Executive Order 12356 or any other Executive order concerning the
classification of records, the Office shall refer the responsibilities
for responding to the request to the agency that classified the
information or should consider the information for classification.
Whenever a record contains information that has been derivatively
classified by the Office because it contains information classified by
another agency, the Office shall refer the responsibility for responding
to the request to the agency that classified the underlying information;
however, such referral shall extend only to the information classified
by the other agency.
(e) Agreements regarding consultations. No provision of this section
shall preclude formal or informal agreements between the Office and
another agency, to eliminate the need for consultations concerning
requests or classes of requests.
(f) Date for determining responsive records. In determining records
responsive to a request for access, the Office ordinarily will include
only those records within the Office's possession and control as of the
date of its receipt of the request.
Sec. 700.13 Form and content of Office responses.
(a) Form of notice granting request for access. After the Office has
made a determination to grant a request for access in whole or in part,
the Office shall so notify the requester in writing. The notice shall
describe the manner in which access to the record will be granted and
shall inform the requester of any fees to be charged in accordance with
Sec. 700.17.
(b) Form of notice denying request for access. When the Office denies
a request for access in whole or in part it shall so notify the
requester in writing. The notice shall be signed by the head of the
Office, or his designee, and shall include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason or reasons for the denial,
including the Privacy Act exemption or exemptions that the Office has
relied upon in denying the request and a brief explanation of the manner
in which the exemption or exemptions apply to each record withheld; and
(3) A statement that the denial may be appealed under Sec. 700.18(a)
and a description of the requirements of that subsection.
(c) Record cannot be located or has been destroyed. If a requested
record cannot be located from the information supplied, or is known or
believed to have been destroyed or otherwise disposed of, the Office
shall so notify the requester in writing.
(d) Medical records. When an individual requests medical records
pertaining to himself that are not otherwise exempt from individual
access, the Office may advise the individual that the records will be
provided only to a physician, designated by the individual, who requests
the records and establishes his identity in writing. The designated
physician shall determine which records should be provided to the
individual and which records should not be disclosed to the individual
because of possible harm to the individual or another person.
Sec. 700.14 Classified information.
In processing a request for access to a record containing information
that is classified or classifiable under Executive Order 12356 or any
other Executive order concerning the classification of records, the
Office shall review the information to determine whether it warrants
classification. Information that does not warrant classification shall
not be withheld from a requester on the basis of 5 U.S.C. 552a(k)(1).
The Office shall, upon receipt of any appeal involving classified or
classifiable information, take appropriate action to ensure compliance
with the provisions of Executive Order 12356.
Sec. 700.15 Records in exempt systems of records.
(a) Law-enforcement records exempted under subsections (j)(2) and
(k)(2). Before denying a request by an individual for access to a law-
enforcement record that has been exempted from access pursuant to 5
U.S.C. 552a(k)(2), the Office must review the requested record to
determine whether information in the record has been used or is being
used to deny the individual any right, privilege, or benefit for which
he would otherwise be eligible or to which he would otherwise be
entitled under federal law. If so, the Office shall notify the requester
of the existence of the record and disclose such information to the
requester, except to the extent that the information would identify a
confidential source. In cases when disclosure of information in a law-
enforcement record could reasonably be expected to identify a
confidential source, the record shall not be disclosed to the requester
unless the Office is able to delete from such information all material
that would identify the confidential source.
(b) Employee background investigations. When a requester requests
access to a record pertaining to a background investigation and the
record has been exempted from access pursuant to 5 U.S.C. 552a(k)(5),
the record shall not be disclosed to the requester unless the Office is
able to delete from such record all information that would identify a
confidential source.
Sec. 700.16 Access to records.
(a) Manner of access. The Office, once it has made a determination to
grant a request for access, shall grant the requester access to the
requested record by--
(1) Providing the requester with a copy of the record or
(2) Making the record available for inspection by the requester at a
reasonable time and place.
The Office shall in either case charge the requester applicable fees in
accordance with the provisions of Sec. 700.17. If the Office provides
access to a record by making the record available for inspection by the
requester, the manner of such inspection shall not unreasonably disrupt
the operations of the Office.
(b) Accompanying person. A requester appearing in person to review his
records may be accompanied by another individual of his own choosing.
Both the requester and the accompanying person shall be required to sign
a form stating that the Office of Independent Counsel is authorized to
disclose the record in the presence of both individuals.
Sec. 700.17 Fees for access to records.
(a) When charged. The Office shall charge fees pursuant to 5 U.S.C.
552a(f)(5) for the copying of records to afford access to individuals
unless the Office, in its discretion, waives or reduces the fees for
good cause shown. The Office shall charge fees only at the rate of $0.10
per page. For materials other than paper copies, the Office may charge
the direct costs of reproduction, but only if the requester has been
notified of such costs before they are incurred. Fees shall not be
charged when they would amount, in the aggregate, for one request or for
a series of related requests, to less than $3.00. However, the Office
may, in its discretion, increase the amount of this minimum fee.
(b) Notice of estimated fees in excess of $25. When the Office
determines or estimates that the fees to be charged under this section
may amount to more than $25, the Office shall notify the requester as
soon as practicable of the actual or estimated amount of the fee, unless
the requester has indicated in advance his willingness to pay a fee as
high as that anticipated. (If only a portion of the fee can be estimated
readily, the Office shall advise the requester that the estimated fee
may be only a portion of the total fee.) When the estimated fee exceeds
$25 and the Office has so notified the requester, the Office will be
deemed not to have received the request for access to records until the
requester has agreed to pay the anticipated fee. A notice to a requester
pursuant to this paragraph shall offer him the opportunity to confer
with Office personnel with the object of reformulating his request to
meet his needs at a lower cost.
(c) Form of payment. Requesters must pay fees by check or money order
made payable to the Treasury of the United States.
(d) Advance deposits. (1) When the estimated fee chargeable under this
section exceeds $25, the Office may require a requester to make an
advance deposit of 25 percent of the estimated fee or an advance payment
of $25, whichever is greater.
(2) When a requester has previously failed to pay a fee charged under
this part, the requester must pay the Office the full amount owed and
make an advance deposit of the full amount of any estimated fee before
the Office shall be required to process a new or pending request for
access from that requester.
Sec. 700.18 Appeals from denials of access.
(a) Appeals to Independent Counsel. When the Office denies in whole or
part a request for access to records, the requester may appeal the
denial to Independent Counsel within 30 days of his receipt of the
notice denying his request. An appeal to Independent Counsel shall be
made in writing, addressed to the Office of Independent Counsel, Suite
701 West, 555 Thirteenth Street, NW, Washington, DC 20004. Both the
envelope and the letter of appeal itself must be clearly marked:
``Privacy Act Appeal.''
(b) Action on appeals. Unless Independent Counsel otherwise directs,
he or his designee shall act on all appeals under this section, except
that: A denial of a request for access by Independent Counsel, or his
designee, shall constitute the final action of the Office on that
request.
(c) Form of action on appeal. The disposition of an appeal shall be in
writing. A decision affirming in whole or in part the denial of a
request for access shall include a brief statement of the reason or
reasons for the affirmance, including each Privacy Act exemption relied
upon and its relation to each record withheld, and a statement that
judicial review of the denial is available in the United States District
Court for the judicial district in which the requester resides or has
his principal place of business, the judicial district in which the
requested records are located, or the District of Columbia. If the
denial of a request for access is reversed on appeal, the requester
shall be so notified and the request shall be processed promptly in
accordance with the decision on appeal.
Sec. 700.19 Preservation of records.
The Office shall preserve all correspondence relating to the requests
it receives under this subpart, and all records processed pursuant to
such requests, until such time as the destruction of such correspondence
and records is authorized pursuant to Title 44 of the United States
Code. Under no circumstances shall records be destroyed while they are
the subject of a pending request for access, appeal, or lawsuit under
the Act.
Sec. 700.20 Requests for correction of records.
(a) How made. Unless a record is exempted from correction and
amendment, an individual may submit a request for correction of a record
pertaining to him. A request for correction must be made in writing. The
request must identify the particular record in question, state the
correction sought, and set forth the justification for the correction.
Both the envelope and the request for correction itself must be clearly
marked: ``Privacy Act Correction Request.''
(b) Initial determination. Within 10 working days of receiving a
request for correction, the Office shall notify the requester whether
his request will be granted or denied, in whole or in part. If the
Office grants the request for correction in whole or in part, it shall
advise the requester of his right to obtain a copy of the corrected
record, in releasable form, upon request. If the Office denies the
request for correction in whole or in part, it shall notify the
requester in writing of the denial. The notice of denial shall state the
reason or reasons for the denial and advise the requester of his right
to appeal.
(c) Appeals. When a request for correction is denied in whole or in
part, the requester may appeal the denial to Independent Counsel within
30 days of his receipt of the notice denying his request. An appeal to
Independent Counsel shall be made in writing, shall set forth the
specific item of information sought to be corrected, and shall include
any documentation said to justify the correction. An appeal shall be
addressed to the Office of Independent Counsel, Suite 701 West, 555
Thirteenth Street, NW, Washington, DC 20004. Both the envelope and the
letter of appeal itself must be clearly marked: ``Privacy Act Correction
Appeal.''
(d) Determination on appeal. Independent Counsel, or his designee,
shall decide all appeals from denials or requests to correct records.
All such appeals shall be decided within 30 working days of receipt of
the appeal, unless there is good cause to extend this period. If the
denial of a request is affirmed on appeal, the requester shall be so
notified in writing and advised of--
(1) The reason or reasons the denial has been affirmed,
(2) The requester's right to file a Statement of Disagreement, as
provided in paragraph (e) of this section, and
(3) The requester's right to obtain judicial review of the denial in
the United States District Court for the judicial district in which the
requester resides or has his principal place of business, the judicial
district in which the record is located, or the District of Columbia.
If the denial is reversed on appeal, the requester shall be so notified
and the request for correction shall be remanded to the Office for
processing in accordance with the decision on appeal.
(e) Statements of disagreement. A requester whose appeal under this
section is denied shall have the right to file a Statement of
Disagreement with the Office of Independent Counsel, Suite 701 West, 555
Thirteenth Street, NW, Washington, DC 20004, within 30 days of receiving
notice of denial of his appeal. Statements of disagreement may not
exceed one typed page per fact disputed. Statements exceeding this limit
shall be returned to the requester for condensation. Upon receipt of a
statement of disagreement under this section, Independent Counsel, or
his designee, shall have the statement included in the system of records
in which the disputed record is maintained and shall have the disputed
record marked so as to indicate--
(1) That a statement of disagreement has been filed, and
(2) Where in the system of records the statement of disagreement may
be found.
(f) Notices of correction or disagreement. Within 30 working days of
the correction of a record, the Office shall advise all agencies to
which it previously disclosed the record that the record has been
corrected. Whenever an individual has filed a statement of disagreement,
the Office shall append a copy of the statement to the disputed record
whenever the record is disclosed. The Office may also append to the
disputed record any written statement it has made giving the Office's
reasons for denying the request to correct the record.
Sec. 700.21 Records not subject to correction.
The following records are not subject to correction or amendment as
provided in Sec. 700.20:
(a) Transcripts of testimony given under oath or written statements
made under oath;
(b) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings that constitute the official record of such
proceedings;
(c) Presentence records that are the property of the courts, but may
be maintained by the Office in a system of records; and
(d) Records duly exempted from correction pursuant to 5 U.S.C. 552a(j)
or 552a(k) by notice published in the Federal Register.
Sec. 700.22 Request for accounting of record disclosures.
(a) An individual may request the Office to provide him with an
accounting of those other agencies to which the Office has disclosed the
record, and the date, nature, and purpose of each disclosure. A request
for an accounting must be made in writing and must identify the
particular record for which the accounting is requested. The request
also must be addressed to the Office and both the envelope and the
request itself must clearly be marked: ``Privacy Act Accounting
Request.''
(b) The Office shall not be required to provide an accounting to an
individual to the extent that the accounting relates to--
(1) Records for which no accounting must be kept pursuant to 5 U.S.C.
552a(c)(1),
(2) Disclosures of records to law-enforcement agencies for lawful law-
enforcement activities, pursuant to written requests from such law-
enforcement agencies specifying records sought and the law-enforcement
activities for which the records are sought, under 5 U.S.C. 552a(c)(3)
and (b)(7), or
(3) Records for which an accounting need not be disclosed pursuant to
5 U.S.C. 552a(j) or (k).
(c) A denial of a request for an accounting may be appealed to
Independent Counsel in the same manner as a denial of a request for
access, with both the envelope and the letter of appeal itself clearly
marked: ``Privacy Act Accounting Appeal.''
Sec. 700.23 Notice of subpoenas and emergency disclosures.
(a) Subpoenas. When records pertaining to an individual are subpoenaed
by a grand jury, court, or quasi-judicial authority, the official served
with the subpoena shall be responsible for ensuring that written notice
of its service is forwarded to the individual. Notice shall be provided
within 10 working days of the service of the subpoena or, in the case of
a grand jury subpoena, within 10 working days of its becoming a matter
of public record. Notice shall be mailed to the last known address of
the individual and shall contain the following information: The date the
subpoena is returnable, the court or quasi-judicial authority to which
it is returnable, the name and number of the case of proceeding, and the
nature of the records sought. Notice of the service of a subpoena is not
required if the system of records has been exempted from the notice
requirement of 5 U.S.C. 552a(e)(8), pursuant to 5 U.S.C. 552a(j), by a
Notice of Exemption published in the Federal Register.
(b) Emergency disclosures. If the record of an individual has been
disclosed to any person under compelling circumstances affecting the
health or safety of any person, as described in 5 U.S.C. 552a(b)(8), the
individual to whom the record pertains shall be notified of the
disclosure at his last known address within 10 working days. The notice
of such disclosure shall be in writing and shall state the nature of the
information disclosed, the person or agency to whom it was disclosed,
the date of disclosure, and the compelling circumstances justifying the
disclosure. The officer who made or authorized the disclosure shall be
responsible for providing such notification.
Sec. 700.24 Security of systems of records.
(a) The Office Administrator or Security Officer shall be responsible
for issuing regulations governing the security of systems of records. To
the extent that such regulations govern the security of automated
systems of records, the regulations shall be consistent with the
guidelines developed by the National Bureau of Standards.
(b) The Office shall establish administrative and physical controls to
prevent unauthorized access to its systems of records, to prevent the
unauthorized disclosure of records, and to prevent the unauthorized
disclosure of records, and to prevent the physical damage or destruction
of records. The stringency of such controls shall reflect the
sensitivity of the records the controls protect. At a minimum, however,
the Office's administrative and physical controls shall ensure that--
(1) Records are protected from public view,
(2) The area in which records are kept is supervised during business
hours to prevent unauthorized persons from having access to the records,
and
(3) Records are inaccessible to unauthorized persons outside of
business hours.
(c) The Office shall establish rules restricting access to records to
only those individuals within the Office who must have access to such
records in order to perform their duties. The Office also shall adopt
procedures to prevent the accidental disclosure of records or the
accidental granting of access to records.
Sec. 700.25 Use and collection of social security numbers.
(a) Each system manager of a system of records that utilizes Social
Security numbers as a method of identification without statutory
authorization, or authorization by regulation adopted prior to January
1, 1975, shall take steps to revise the system to avoid future
collection and use of the Social Security numbers.
(b) The Office shall take such measures as are necessary to ensure
that employees authorized to collect information from individuals are
advised that individuals may not be required to furnish Social Security
numbers without statutory or regulatory authorization and that
individuals who are requested to provide Social Security numbers
voluntarily must be advised that furnishing the number is not required
and that no penalty or denial of benefits will flow from the refusal to
provide it.
Sec. 700.26 Employee standards of conduct.
(a) The Office shall inform its employees of the provisions of the
Privacy Act, including the Act's civil liability and criminal penalty
provisions. The Office also shall notify its employees that they have a
duty to--
(1) Protect the security of records,
(2) Assure the accuracy, relevance, timeliness, and completeness of
records,
(3) Avoid the unauthorized disclosure, either verbal or written, of
records, and
(4) Ensure that the Office maintains no system of records without
public notice.
(b) Except to the extent that the Privacy Act permits such activities,
an employee of the Office of Independent Counsel shall:
(1) Not collect information of a personal nature from individuals
unless the employee is authorized to collect such information to perform
a function or discharge a responsibility of the Office;
(2) Collect from individuals only that information that is necessary
to the performance of the functions or to the discharge of the
responsibilities of the Office;
(3) Collect information about an individual directly from that
individual, whenever practicable;
(4) Inform each individual from whom information is collected of--
(i) The legal authority that authorizes the Office to collect such
information,
(ii) The principal purposes for which the Office intends to use the
information,
(iii) The routine uses the Office may make of the information, and
(iv) The effects upon the individual of not furnishing the
information;
(5) Maintain all records that are used by the agency in making any
determination about any individual with such accuracy, relevance,
timeliness, and completeness as to assure fairness to the individual in
the determination;
(6) Except as to disclosures to an agency or pursuant to 5 U.S.C.
552a(b)(2), make reasonable efforts, prior to disseminating any record
about an individual, to assure that such records are accurate, relevant,
timely, and complete;
(7) Maintain no record concerning an individual's religious or
political beliefs or activities, or his membership in associations or
organizations, unless--
(i) The individual has volunteered such information for his own
benefit,
(ii) A statute expressly authorizes the Office to collect, maintain,
use or disseminate the information, or
(iii) The individual's beliefs, activities, or membership are
pertinent to and within the scope of an authorized law-enforcement or
correctional activity;
(8) Notify the head of the Office of the existence or development of
any system of records that has not been disclosed to the public;
(9) When required by the Act, maintain an accounting in the prescribed
form of all disclosures of records by the Office to agencies or
individuals whether verbally or in writing;
(10) Disclose no record to anyone, except within the Office, for any
use, unless authorized by the Act;
(11) Maintain and use records with care to prevent the inadvertent
disclosure of a record to anyone; and
(12) Notify the head of the Office of any record that contains
information that the Act or the foregoing provisions of this paragraph
do not permit the Office to maintain.
(c) Not less than once a year, the head of each Office shall review
the systems of records maintained by that Office to ensure that the
Office is in compliance with the provisions of the Privacy Act.
Sec. 700.27 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under 5 U.S.C. 552a.
Subpart B--Exemption of the Office of Independent Counsel's Systems
of Records Under the Privacy Act
Sec. 700.31 Exemption of the Office of Independent Counsel's Systems
of Records--Limited Access.
(a) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4); (d); (e)(1), (2) and (3); (e)(4) (G), (H) and (I); (e) (5)
and (8); (f); and (g):
(1) General Files System of the Office of Independent Counsel (OIC/
001).
These exemptions apply only to the extent that information in the system
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2),
and (k)(5).
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Office of
Independent Counsel as well as the recipient agency. This would permit
record subjects to impede the investigation, e.g., destroy evidence,
intimidate potential witnesses, or flee the area to avoid inquiries or
apprehension by law-enforcement personnel. Moreover, the release of the
accounting of disclosures made under subsection (b) of the Act,
including those disclosures permitted under the routine uses published
for these systems would permit the subject of an investigation of an
actual or potential criminal, civil or regulatory violation to determine
whether he is the subject of an investigation or to obtain valuable
information concerning the nature of the investigation, material
compiled during the investigation, and the identity of witnesses and
informants. Disclosure of the accounting would, therefore, present a
serious impediment to law enforcement. In addition, disclosure of the
accounting would amount to notice to the individual of the existence of
a record; such notice requirement under subsection (f)(1) of the Act is
specifically exempted for this system of records.
(2) From subsection (c)(4) because an exemption is being claimed under
subsection (d) of the Act. This system is exempt from the access
provisions of subsection (d) pursuant to subsections (j) and (k) of the
Privacy Act. Subsection (c)(4), therefore, is inapplicable to this
system of records.
(3) From subsection (d) because the records contained in this system
relate to official federal investigations. Individual access to these
records contained in this system would inform the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation, of the existence of that investigation, of the nature and
scope of the information and evidence obtained as to his activities, of
the identities of witnesses and informants, or would provide information
that could enable the subject to avoid detection or apprehension. These
factors would present a serious impediment to effective law enforcement
because they could prevent the successful completion of the
investigation, reveal confidential informants, endanger the physical
safety of witnesses or informants, and lead to the improper influencing
of witnesses, the destruction of evidence, or the fabrication of
testimony. Individual access also could constitute an unwarranted
invasion of the personal privacy of third parties who are involved in an
investigation. Amendment of the records would interfere with ongoing
criminal-law enforcement proceedings and impose an impossible
administrative burden.
(4) From subsections (e) (1) and (5) because, in the course of
criminal or other law-enforcement investigation, cases and matters, the
Office of Independent Counsel may occasionally obtain information
concerning actual or potential violations of law that are not strictly
within its authority or jurisdiction, or may compile information, the
accuracy of which is unclear or which is not strictly relevant or
necessary to a specific investigation. In the interests of effective law
enforcement, it is appropriate and necessary to retain all information
that may aid in establishing patterns of criminal activity. Moreover, it
would impede the specific investigative process if it were necessary to
ensure the relevance, accuracy, timeliness and completeness of all
information obtained. In particular, this would restrict the ability of
trained investigators, intelligence analysts, and government attorneys
to exercise their judgment in reporting on information and
investigations.
(5) From subsection (e)(2) because, in a criminal or other law-
enforcement investigation, the requirement that information be collected
to the greatest extent possible from the subject individual would
present a serious impediment to law enforcement. In such circumstances,
the subject of the investigation or prosecution would be informed of the
existence of the investigation and would therefore be able to avoid
detection, apprehension, or legal obligations or duties, as well as to
influence witnesses improperly, to destroy evidence, or to fabricate
testimony.
(6) From subsection (e)(3) because compliance with the requirements of
this subsection during the course of an investigation could impede the
information-gathering process, thus hampering the investigation.
Furthermore, such requirements could compromise the existence of a
confidential investigation or reveal the identity of witnesses or
confidential informants.
(7) From subsections (e)(4) (G) and (H) because this system is exempt
from the individual-access provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
(8) From subsection (e)(4)(I) because the categories of sources of
records in this system have been published in the Federal Register in
broad generic terms in the belief that this is all that subsection
(e)(4)(I) of the Act requires. In the event, however, that this
subsection should be interpreted to require more detail as to the
identity of sources of the records in these systems, exemption from this
provision is necessary in order to protect the confidentiality of the
sources of criminal and other law-enforcement information. Such
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(9) From subsection (e)(8) because the individual-notice requirements
of subsection (e)(8) could present a serious impediment to law
enforcement through interference with the Office of Independent
Counsel's ability to issue subpoenas and the disclosure of its
investigative techniques and procedures.
(10) From subsection (f) because this system is exempt from the
individual-access provisions of subsection (d) pursuant to subsections
(j) and (k) of the Privacy Act. Furthermore, such notice to an
individual would be detrimental to the successful conduct and/or
completion of an investigation or prosecution pending or future.
(11) From subsection (g) because this system is exempt from the
individual-access and amendment provisions of subsection (d) and the
provisions of subsection (f) pursuant to subsections (j) and (k) of the
Privacy Act.
(c) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4), (d), (e) (1), (2) and (3), (e)(4), (G), (H) and (I); (e)
(5) and (8); (f) and (g):
(1) Freedom of Information Act/Privacy Act Files (OIC/002). These
exemptions apply to the extent that information in this system is
subject to exemption pursuant ot 5 U.S.C. 552a(j)(2), (k)(1), (k)(2,)
and (k)(5).
(d) Because this system contains Office of Independent Counsel
criminal law-enforcement investigatory records, exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting would permit the subject(s) of criminal investigations under
investigation or in litigation to obtain valuable information concerning
the nature of that investigation, matter or case and present a serious
impediment to law-enforcement activities.
(2) From subsection (c)(4) because an exemption is being claimed for
subsection (d) of the Act, rendering this subsection inapplicable to the
extent that this system of records is exempted from subsection (d).
(3) From subsection (d) because access to the records contained in
this system would inform the subject of criminal investigation or case
of the existence of such, and provide the subject with information that
might enable him to avoid detection, apprehension or legal obligations,
and present a serious impediment to law enforcement and other civil
remedies. Amendment of the records would interfere with ongoing criminal
law-enforement proceedings and impose an impossible administrative
burden.
(4) From subsection (e)(1) because in the courses of criminal
investigations, matters or cases, the Office of Independent Counsel
often obtains information concerning the violation of laws other than
those relating to an active case, matter, or investigation. In the
interests of effective law enforcement and criminal litigation, it is
necessary that the Office of Independent Counsel retain this information
since it can aid in establishing patterns of activity and provide
valuable leads for future cases that may be brought within the Office of
Independent Counsel.
(5) From subsection (e)(2) because collecting information to the
greatest extent possible from the subject individual of a criminal
investigation or prosecution would present a serious impediment to law
enforcement. In such circumstances, the subject of the investigation
would be placed on notice of the existence of the investigation and
would therefore be able to avoid detection, apprehension, or legal
obligations and duties.
(6) From subsection (e)(3) because providing individuals supplying
information with a form stating the requirements of subsection (e)(3)
would constitute a serious impediment to law enforcement. In those
circumstances, it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information, and endanger the life and physical safety of confidential
informants.
(7) From subsection (e)(4) (G), (H) and (I) because this system of
records is exempt from the individual-access and amendment provisions of
subsection (d) and the rules provisions of subsection (f).
(8) From subsection (e)(5) because, in the collection of information
for law-enforcement purposes, it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would inhibit the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(9) From subsection (e)(8) because the individual-notice requirements
of subsection (e)(8) could present a serious impediment to law
enforcement, i.e., this could interfere with the Office of Independent
Counsel's ability to issue subpoenas and could reveal investigative
techniques and procedures.
(10) From subsection (f) because this system has been exempted from
the individual-access and amendment provisions of subsection (d).
(11) From subsection (g) because the records in this system are
generally compiled for law-enforcement purposes and are exempt from the
individual-access and amendment provisions of subsections (d) and (f),
this rendering subsection (g) inapplicable.