Release of Information

SUMMARY: In this document, the Bureau of Prisons (``Bureau'') is

withdrawing a prior proposed rule and publishing a new proposed rule on

release of information. The rule is intended to consolidate procedures

for the release of requested records in the possession of the Bureau.

The rule has been developed to help ensure the Bureau is in compliance

with the statutory requirements of the Freedom of Information Act (5

U.S.C. 552) and the Privacy Act (5 U.S.C. 552a), and to supplement

Department of Justice regulations implementing those statutes (28 CFR

part 16).

DATES: Comments must be submitted by August 20, 1996.

ADDRESSES: Send comments to the Office of General Counsel, Bureau of

Prisons, Room 754, 320 First Street, NW., Washington, D. C. 20534.

Comments received by the closing date will be available for examination

by interested persons at the above address.

FOR FURTHER INFORMATION CONTACT: Roy M. Nanovic, Office of General

Counsel, Bureau of Prisons, Telephone (202) 514-6655.

SUPPLEMENTARY INFORMATION: Pursuant to the rulemaking authority vested

in the Attorney General in 5 U.S.C. 552(a) and delegated to the

Director of the Bureau of Prisons in 28 CFR 0.96(p), notice is given

that the Bureau of Prisons intends to publish in the Federal Register

its proposed rule on Release of Information. A proposed rule on this

subject was published in the Federal Register on March 17, 1989 (at 54

FR 11326). That proposed rule is withdrawn and comments received in

response to that rulemaking will not be considered when finalizing this

new proposed rule.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Bureau of

Prisons, Room 754, 320 First Street, NW., Washington, D.C. 20534.

Comments received during the comment period will be considered before

final action is taken. The proposed rule may be changed in light of the

comments received. No oral hearings are contemplated.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of Executive Order 12866

and accordingly, this rule was not reviewed by the Office of Management

and Budget. After review of the law and regulations, the Director of

the Bureau of Prisons has certified that this rule, for the purpose of

the Regulatory Flexibility Act (Pub. L. 96-354), does not have a

significant impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 513

Archives and records, Freedom of information, Prisoners, Privacy.

Kathleen M. Hawk,

Director, Bureau of Prisons.

In consideration of the foregoing, it is proposed to amend 28 CFR,

Chapter V, Subchapter A as follows:

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 513--ACCESS TO RECORDS

1. The authority citation for 28 CFR part 513 is revised to read as

follows:

Authority: 5 U.S.C. 301, 552, 552a; 13 U.S.C. Ch. 1 et seq.; 18

U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as

to conduct occurring on or after November 1, 1987), 5006-5024

(Repealed October 12, 1984 as to conduct occurring after that date),

5039; 28 U.S.C. 509, 510; 31 U.S.C. 3711(f); 5 CFR part 297; 28 CFR

0.95-0.99 and parts 16 and 301.

2. Subpart D, consisting of Secs. 513.30 through 513.68, is added

to read as follows:

Subpart D--Release of Information

General Provisions and Procedures

Sec.

513.30 Purpose and scope.

513.31 Limitations.

513.32 Guidelines for disclosure.

513.33 Production of records in court.

513.34 Protection of individual privacy--disclosure of records to

third parties.

513.35 Accounting/nonaccounting of disclosures to third parties.

513.36 Government contractors.

Inmate Requests to Institution for Information

513.40 Inmate access to Inmate Central File.

513.41 Inmate access to Inmate Central File in connection with

parole hearings.

513.42 Inmate access to medical records.

513.43 Fees for copies of Inmate Central File and medical records.

Privacy Act Requests for Information

513.50 Privacy Act requests by inmates.

Freedom of Information Act Requests for Information

513.60 Freedom of Information Act requests.

513.61 Freedom of Information Act requests by inmates.

513.62 Freedom of Information Act requests by former inmates.

513.63 Freedom of Information Act requests on behalf of an inmate

or former inmate.

513.64 Acknowledgement of Freedom of Information Act requests.

513.65 Review of documents for Freedom of Information Act requests.

513.66 Denials and appeals of Freedom of Information Act requests.

513.67 Fees for Freedom of Information Act requests.

513.68 Time limits for responses to Freedom of Information Act

requests.

Subpart D--Release of Information

General Provisions and Procedures

Sec. 513.30 Purpose and scope.

This subpart establishes procedures for the release of requested

records in possession of the Federal Bureau of Prisons (``Bureau''). It

is intended to implement provisions of the Freedom of Information Act

(FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and to

supplement Department of Justice (DOJ) regulations concerning the

production or disclosure of records or information, 28 CFR part 16.

Sec. 513.31 Limitations.

(a) Social Security Numbers. As of September 27, 1975, Social

Security Numbers may not be used in their entirety as a method of

identification for any Bureau record system, unless such use is

authorized by statute or by regulation adopted prior to January 1,

1975.

(b) Employee records. Access and amendment of employee personnel

records under the Privacy Act are governed by Office of Personnel

Management regulations published in 5 CFR part 297 and by Department of

Justice regulations published in 28 CFR part 16.

Sec. 513.32 Guidelines for disclosure.

The Bureau provides for the disclosure of agency information

pursuant to applicable laws, e.g. the Freedom of Information Act (5

U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).

Sec. 513.33 Production of records in court.

Bureau records are often sought by subpoena, court order, or other

court demand, in connection with court proceedings. The Attorney

General has directed that these records may not be produced in court

without the approval of the Attorney General or his or her

[[Page 32259]]

designee. The guidelines are set forth in 28 CFR part 16, subpart B.

Sec. 513.34 Protection of individual privacy--disclosure of records to

third parties.

(a) Information that concerns an individual and is contained in a

system of records maintained by the Bureau shall not be disclosed to

any person, or to another agency except under the provisions of the

Privacy Act, 5 U.S.C. 552a, or the Freedom of Information Act, 5 U.S.C.

552.

(b) Lists of Bureau inmates shall not be disclosed.

Sec. 513.35 Accounting/nonaccounting of disclosures to third parties.

Accounting/nonaccounting of disclosures to third parties shall be

made in accordance with Department of Justice regulations contained in

28 CFR 16.52.

Sec. 513.36 Government contractors.

(a) No Bureau component may contract for the operation of a record

system by or on behalf of the Bureau without the express written

approval of the Director or the Director's designee.

(b) Any contract which is approved shall contain the standard

contract requirements promulgated by the General Services

Administration (GSA) to ensure compliance with the requirements imposed

by the Privacy Act. The contracting component shall have the

responsibility to ensure that the contractor complies with the contract

requirements relating to privacy.

Inmate Requests to Institution for Information

Sec. 513.40 Inmate access to Inmate Central File.

Inmates are encouraged to use the simple access procedures

described in this section to review disclosable records maintained in

his or her Inmate Central File, rather than the FOIA procedures

described in Secs. 513.60 through 513.68. Disclosable records in the

Inmate Central File include, but are not limited to, documents relating

to the inmate's sentence, detainer, participation in Bureau programs

such as the Inmate Financial Responsibility Program, classification

data, parole information, mail, visits, property, conduct, work,

release processing, and general correspondence. This information is

available without filing a FOIA request. If any information is withheld

from the inmate, staff will provide the inmate with a general

description of that information and also will notify the inmate that he

or she may file a formal FOIA request.

(a) Inmate review of his or her Inmate Central File. An inmate may

at any time request to review all disclosable portions of his or her

Inmate Central File by submitting a request to a staff member

designated by the Warden. Staff are to acknowledge the request and

schedule the inmate, as promptly as is practical, for a review of the

file at a time which will not disrupt institution operations.

(b) Procedures for inmate review of his or her Inmate Central File.

(1) Prior to the inmate's review of the file, staff are to remove the

Inmate Privacy Folder which contains documents withheld from disclosure

pursuant to Sec. 513.32.

(2) During the file review, the inmate is to be under direct and

constant supervision by staff. The staff member monitoring the review

shall enter the date of the inmate's file review on the Inmate Activity

Record and initial the entry. Staff shall also ask the inmate to

initial the entry, and if the inmate refuses to do so, shall enter a

notation to that effect.

(3) Staff shall advise the inmate if there are documents withheld

from disclosure and, if so, shall advise the inmate of the inmate's

right under the provisions of Sec. 513.61 to make a FOIA request for

the withheld documents.

Sec. 513.41 Inmate access to Inmate Central File in connection with

parole hearings.

A parole-eligible inmate (an inmate who is currently serving a

sentence for an offense committed prior to November 1, 1987) may review

disclosable portions of the Inmate Central File prior to the inmate's

parole hearing, under the general procedures set forth in Sec. 513.40.

In addition, the following guidelines apply:

(a) A parole-eligible inmate may request to review his or her

Inmate Central File by submitting the appropriate Parole Commission

form. This form shall ordinarily be available to each eligible inmate

within five work days after a list of eligible inmates is prepared.

(b) Bureau staff ordinarily shall schedule an eligible inmate for a

requested Inmate Central File review within seven work days of the

request after the inmate has been scheduled for a parole hearing. A

reasonable extension of time is permitted for documents which have been

provided (prior to the inmate's request) to originating agencies for

clearance, or which are otherwise not available at the institution.

(c) A report received from another agency which is determined to be

nondisclosable (see Sec. 513.40 (b)) will be summarized by that agency,

in accordance with Parole Commission regulations. Bureau staff shall

place the summary in the appropriate disclosable section of the Inmate

Central File. The original report (or portion which is summarized in

another document) will be placed in the portion of the Inmate Privacy

File for Joint Use by the Bureau and the Parole Commission.

(d) Bureau documents which are determined to be nondisclosable to

the inmate will be summarized for the inmate's use. A copy of the

summary will be placed in the disclosable section of the Inmate Central

File. The document from which the summary is taken will be placed in

the Joint Use Section of the Inmate Privacy Folder. Nondisclosable

documents not summarized for the inmate's use are not available to the

Parole Commission and are placed in a nondisclosable section of the

Inmate Central File.

(e) When no response regarding disclosure has been received from an

originating agency in time for inmate review prior to the parole

hearing, Bureau staff are to inform the Parole Commission Hearing

Examiner.

Sec. 513.42 Inmate access to medical records.

(a) Except for the limitations of paragraphs (c) and (d) of this

section, an inmate may review records from his or her medical file

(including dental records) by submitting a request to a staff member

designated by the Warden.

(b) Laboratory Reports which contain only scientific testing

results and which contain no staff evaluation or opinion (such as

Standard Form 514A, Urinalysis) are ordinarily disclosable. Lab results

of HIV testing may be reviewed by the inmate. However, an inmate may

not retain a copy of his or her test results while the inmate is

confined in a Bureau facility or a Community Corrections Center. A copy

of an inmate's HIV test results may be forwarded to a third party

outside the institution and chosen by the inmate, provided that the

inmate gives written authorization for the disclosure.

(c) Medical records containing subjective evaluations and opinions

of medical staff relating to the inmate's care and treatment will be

provided to the inmate only after the staff review required by

paragraph (d) of this section. These records include, but are not

limited to, outpatient notes, consultation reports, narrative summaries

or reports by a specialist, operative reports by the physician,

summaries by specialists as the result of laboratory analysis, or in-

patient progress reports.

(d) Prior to release to the inmate, records described in paragraph

(c) of

[[Page 32260]]

this section shall be reviewed by staff to determine if the release of

this information would present a harm to either the inmate or other

individuals. Any records determined not to present a harm will be

released to the inmate at the conclusion of the review by staff. If any

records are determined by staff not to be releasable based upon the

presence of harm, the inmate will be so advised in writing and provided

the address of the agency component to which the inmate may address a

formal request for the withheld records. An accounting of any medical

records will be maintained in the inmate's medical file.

Sec. 513.43 Fees for copies of Inmate Central File and medical

records.

Within a reasonable time after a request, Bureau staff are to

provide an inmate personal copies of requested disclosable documents

maintained in the Inmate Central File and Medical Record. Fees for the

copies are to be calculated in accordance with 28 CFR 16.10.

Privacy Act Requests for Information

Sec. 513.50 Privacy Act requests by inmates.

Because inmate records are exempt from disclosure under the Privacy

Act, (see 28 CFR 16.97) inmate requests for records under the Privacy

Act will be processed in accordance with the FOIA. See Secs. 513.61

through 513.68.

Freedom of Information Act Requests for Information

Sec. 513.60 Freedom of Information Act requests.

Requests for any Bureau record (including Program Statements and

Operations Memoranda) ordinarily shall be processed pursuant to the

Freedom of Information Act, 5 U.S.C. 552. Such a request must be made

in writing and addressed to the Director, Federal Bureau of Prisons,

320 First Street, NW., Washington, D.C. 20534. The requester shall

clearly mark on the face of the letter and the envelope ``FREEDOM OF

INFORMATION REQUEST,'' and shall clearly describe the records sought.

See Secs. 513.61 through 513.63 for additional requirements.

Sec. 513.61 Freedom of Information Act requests by inmates.

(a) Inmates are encouraged to use the simple access procedures

described in Sec. 513.40 to review disclosable records maintained in

his or her Inmate Central File.

(b) An inmate may make a request for access to documents in his or

her Inmate Central File or Medical File (including documents which have

been withheld from disclosure during the inmate's review of his or her

Inmate Central File pursuant to Sec. 513.40) and/or other documents

concerning the inmate which are not contained in the Inmate Central

File or Medical File. Staff shall process such a request pursuant to

the applicable provisions of the Freedom of Information Act, 5 U.S.C.

552.

(c) The inmate requester shall clearly mark on the face of the

letter and on the envelope ``FREEDOM OF INFORMATION ACT REQUEST'', and

shall clearly describe the records sought, including the approximate

dates covered by the record. An inmate making such a request must

provide his or her full name, current address, date and place of birth.

In addition, if the inmate requests documents to be sent to a third

party, the inmate must provide with the request an example of his or

her signature, which must be verified and dated within three (3) months

of the date of the request.

Sec. 513.62 Freedom of Information Act requests by former inmates.

Former federal inmates may request copies of their Bureau records

by writing to the Director, Federal Bureau of Prisons, 320 First

Street, NW., Washington, D.C. 20534. Such requests shall be processed

pursuant to the provisions of the Freedom of Information Act. The

request must be clearly marked on the face of the letter and on the

envelope ``FREEDOM OF INFORMATION ACT REQUEST'', and must describe the

record sought, including the approximate dates covered by the record. A

former inmate making such a request must provide his or her full name,

current address, date and place of birth. In addition, the requester

must provide with the request an example of his or her signature, which

must be either notarized or sworn under penalty of perjury, and dated

within three (3) months of the date of the request.

Sec. 513.63 Freedom of Information requests on behalf of an inmate or

former inmate.

A request for records concerning an inmate or former inmate made by

an authorized representative of that inmate or former inmate will be

treated as in Sec. 513.61, on receipt of the inmate's or former

inmate's written authorization. This authorization must be dated within

three (3) months of the date of the request letter. Identification

data, as listed in 28 CFR 16.41, must be provided.

Sec. 513.64 Acknowledgement of Freedom of Information Act requests.

(a) All requests for records under the Freedom of Information Act

received by the FOI/PA Administrator, Office of General Counsel, will

be reviewed and may be forwarded to the appropriate Regional Office for

proper handling. Requests for records located at a Bureau facility

other than the Central Office or Regional Office may be referred to the

appropriate staff at that facility for proper handling.

(b) The requester shall be notified of the status of his or her

request by the office with final responsibility for processing the

request.

Sec. 513.65 Review of documents for Freedom of Information Act

requests.

If a document is deemed to contain information exempt from

disclosure, any reasonably segregable portion of the record shall be

provided to the requester after deletion of the exempt portions. If

documents, or portions of documents, in an Inmate Central File have

been determined to be nondisclosable by institution staff but are later

released by Regional or Central Office staff pursuant to a request

under this section, appropriate instructions will be given to the

institution to move those documents, or portions, from the Inmate

Privacy Folder into the disclosable section of the Inmate Central File.

Sec. 513.66 Denials and appeals of Freedom of Information Act

requests.

If a request made pursuant to the Freedom of Information Act is

denied in whole or in part, a denial letter must be issued and signed

by the Director or his or her designee, and shall state the basis for

denial under Sec. 513.32. The requester who has been denied such access

shall be advised that he or she may appeal that decision to the Office

of Information and Privacy, U.S. Department of Justice, Suite 570, Flag

Building, Washington, D.C. 20530. Both the envelope and the letter of

appeal itself should be clearly marked: ``Freedom of Information Act

Appeal.''

[[Page 32261]]

Sec. 513.67 Fees for Freedom of Information Act requests.

Fees for copies of records disclosed under the FOIA, including fees

for a requester's own records, may be charged in accordance with

Department of Justice regulations contained in 28 CFR 16.10.

Sec. 513.68 Time limits for responses to Freedom of Information Act

requests.

Consistent with sound administrative practice and the provisions of

28 CFR 16.1, the Bureau strives to comply with the time limits set

forth in the Freedom of Information Act. These time limits begin when

the request is received at the Central Office.

[FR Doc. 96-15598 Filed 6-20-96; 8:45 am]

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