Exemption of Records System Under the Privacy Act

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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 113-96]

Exemption of Records System Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice, Bureau of Prisons (BOP), is

exempting a Privacy Act system of records from subsections (c)(3) and

(4), (d), (e)(2), and (3), (e)(5) and (e)(8), (f), and (g) of the

Privacy Act, 5 U.S.C. 552a. This system of records is the BOP

``Telephone Activity Record System (JUSTICE/BOP-011).'' Information in

this system relates to inmate telephone activity and may include

information relating to official Federal investigations and matters of

law enforcement of the BOP pursuant to 18 U.S.C. 2510 et. seq., 3621,

4003, 4042, and 4082. The exemptions are necessary to protect third

party privacy and to avoid interference with law enforcement

activities, e.g., to preclude the disclosure of investigative

techniques, to prevent subjects of investigations from frustrating the

investigative process, and to more effectively ensure the safety,

security and good order of Federal correctional facilities.

EFFECTIVE DATE: February 20, 1996.

FOR FURTHER INFORMATION CONTACT: Patricia E. Neely (202-616-0178).

SUPPLEMENTARY INFORMATION: On April 21, 1995 (60 FR 19871), a proposed

rule was published in the Federal Register with invitation to comment

by May 22, 1995. On May 26, 1995 (60 FR 27933), BOP extended the

comment period to June 26, 1995. BOP informally provided a further

extension of the comment period to the record subjects until July 26,

1995.

One comment was received from a record subject (an inmate) who

contended that the proposed exemption would violate privacy rights of

the record subjects. Although the basis for this contention is not

clear, it appears to be based upon the commenter's belief that the

exemptions are unnecessary since ``conversations are monitored now and

obviously this would deter anyone in his right mind from conducting

criminal activities over the phone while incarcerated.'' However, while

the monitoring of inmate telephone calls is successful in deterring

many inmates from using BOP telephones to conduct criminal activities

or violate BOP regulations, it nevertheless does not deter all inmates

or all cases. Therefore, these exemptions are essential for the reasons

stated in this final rule.

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, it is hereby stated that the 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 the Privacy Act.

Pursuant to the authority vested in the Attorney General by 5

U.S.C. 552a and delegated to me by the Attorney General Order No. 793-

78, 28 CFR part 16 is amended as set forth below.

Dated: February 7, 1996.

Stephen R. Colgate,

Assistant Attorney General for Administration.

PART 16--[AMENDED]

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.

2. 28 CFR 16.97 is amended by adding and reserving paragraph (d)

and by adding paragraphs (e) and (f) to read as follows:

Sec. 16.97 Exemption of Federal Bureau of Prisons (BOP) Systems--

limited access.

* * * * *

(d) [Reserved]

(e) The following system of records is exempt from 5 U.S.C. 552a

(c) (3) and (4), (d), (e) (2) and (3), (e)(5) and (e)(8), (f) and (g):

Telephone Activity Record System (JUSTICE/BOP-011).

(f) 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 (f)(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 from 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 the

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.

(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 an

investigation.

(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

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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 (e)(8) because the nature of BOP law

enforcement activities renders impractical the notice of compliance

with compulsory legal process. This requirement could present a serious

impediment to law enforcement such as revealing investigative

techniques or the existence of confidential investigations, jeopardize

the security of third parties, or otherwise compromise law enforcement

efforts.

(11) From subsections (f) and (g) to the extent that this system is

exempt from the access and amendment provisions of subsection (d).

[FR Doc. 96-3681 Filed 2-16-96; 8:45 am]

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