Protection of Individual Privacy in Records

Federal RegisterOct 22, 1998

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SUMMARY: The Department of Labor hereby issues a final rule revising

its existing regulations governing the conduct of Departmental

employees and members of the public as it pertains to the treatment of

records covered by the Privacy Act of 1974, 5 U.S.C. 552a, as amended.

The existing regulations were promulgated shortly after the Privacy Act

was enacted over 20 years ago and are in need of revision. In their

place new regulations are being issued. The intent of these final

regulations is to conform Labor Department requirements with the

caselaw which evolved under the Privacy Act over the past years and to

provide clarity.

EFFECTIVE DATE: December 1, 1998.

FOR FURTHER INFORMATION CONTACT: Miriam McD. Miller, Co-Counsel for

Administrative Law, telephone (202) 219-8188, ext. 135.

SUPPLEMENTARY INFORMATION: This final rule addresses access to records,

records in exempt systems of records, fees, appeals from denials of

access, requests for correction or amendment of records, records not

subject to correction or amendment, requests for accounting of

disclosure of records, emergency disclosures, security of systems of

records, use and collection of social security numbers and taxpayer

identifying numbers, and employee standards of conduct. Each of these

subjects is comprehensively addressed in a separate section.

This final rule correlates with the Department's earlier

publication of all current systems of records. On September 23, 1993,

in 58 FR 49548, the Department published 137 systems of records, as

well as various proposed routine uses. On December 13, 1993, those

proposed systems became final and effective. This document is the final

step in exempting a total of thirty-nine of those systems from access.

Below, accordingly, the Department hereby revises 29 CFR part 70a,

its existing regulations governing implementation of the Privacy Act,

by inserting in lieu thereof a new regulatory scheme set forth at 29

CFR part 71 which reflects the current state of the law.

I. Discussion

A. On July 28, 1997, at 62 FR 40406, the Department published the

proposed rule which was the predecessor to this final rule. The period

for public comment ended on September 26, 1997. No comments were

received in response to that proposal. Accordingly, the proposal is

being adopted in full, except for certain minor administrative changes,

which are discussed at a later point in this Preamble.

B. The major effect of this rule is to add thirty-five systems of

records to the exempt category. The current regulations were originally

published in 1977, and set forth only four systems of records as being

exempt from access. During the past twenty years numerous additional

systems of records have been established. Thirty-five of these

additional systems are investigative systems, and accordingly, should

be exempt from certain requirements of the Privacy Act, by virtue of

either subsections (j)(2), (k)(2) or (k)(5) of Title 5 of section 552a.

C. This final regulation, in contrast to the existing regulation,

is divided into two subparts. Subpart A is entitled ``General'', and

sets forth procedures. Subpart B contains the exemptions from access,

and provides justification for the exemptions. The rule is much more

detailed and more instructive to the public than is the existing rule.

D. The existing rule places the listing of the disclosure officers

within the body of the rule. This rule places them in an appendix at

the end of the rule. This structure is more readable for the public.

E. This rule, in contrast to the existing regulations, sets forth

two government-wide systems. These systems are DOL/GOVT-1, which is the

Office of Workers' Compensation Programs, Federal Employees'

Compensation Act File, and DOL/GOVT-2, Job Corps Student Records. These

systems of records are maintained by and are under the control of the

Department of Labor, even though custody may be at the employing

agency.

F. Finally, the rule increases the fees for photocopying from $.10

to $.15 per page, and it raises the minimum payment to $15.00.

II. Changes From the Proposed Rule

The Department is making a small number of non-substantive,

administrative changes from the proposed rule. These administrative

changes are as follows:

A. Recently, one of the Department's investigative systems of

records was renamed due to a reorganization within the Department. In

this connection, DOL/OAW-1, entitled Investigative Files, a system of

records maintained by the Office of Labor-Management Standards, was

renamed in a Federal Register document published on October 14, 1997 at

62 FR 53343 through 53347. That system of records was renamed as DOL/

ESA-45, Investigative Files of the Office of Labor-Management

Standards. That change was necessitated because the Office of Labor-

Management Standards was transferred into the Employment Standards

Administration from the Office of the American Workplace which Office

was eliminated in a Departmental reorganization. In view of this

renaming, this final rule has been changed at Secs. 71.50(a)(1), and

71.51(a)(24) in order to present the various systems in alphabetical

order. The renamed system, DOL/ESA-45, is now listed at

Sec. 71.50(a)(1), and at Sec. 71.51(a)(18). This renumbering requires

the renumbering of the codified entries which follow after paragraph

(a)(1) of Sec. 71.50, and after paragraph (a)(18) of Sec. 71.51. Both

lists are thus in alphabetical order.

B. The appendix to the rule has been updated. The Appendix contains

the list of disclosure officers for the Department, and is entitled,

Appendix to Part 71-Responsible Officials. The changes in the Appendix

include the listing of an additional disclosure officer for the Bureau

of Labor Statistics, and the updating of officers and office addresses

for the Employment Standards Administration (ESA), the Occupational

Safety and Health Administration (OSHA), the Pension and Welfare

Benefits Administration (PWBA), and the Veterans' Employment and

Training Service (VETS). In addition, the Wage and Hour Division, a

component of the Employment Standards Administration, has deleted their

District Directors from the list of responsible officials, and has also

added two officials to its national office listing.

C. The Secretary of Labor finds that the above discussed

administrative changes from the proposed rule do not require public

comment under the Administrative Procedure Act (APA). This finding is

based upon the fact that rules of agency organization, procedure and

practice are exempt from public comment by virtue of section 553(b)(A)

of the APA (5 U.S.C. 553(b)(A)). The changes from the proposal, being

made in this document, are clearly within the purview of section

553(b)(A) of the APA.

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III. Companion Document

In a companion document published elsewhere in today's issue of

Federal Register, the Department's Office of Workers' Compensation

Programs (OWCP), is issuing a final rule amending its regulation which

governs the release, use and disclosure of documents relating to claims

filed under the Federal Employees' Compensation Act (FECA). This

amendment, which appears at 20 CFR 10.12, reserves to OWCP the

exclusive authority for ruling on requests submitted by the subject of

the FECA file for the correction or amendment of any record contained

in such file. The reader should note that the provisions set forth at

Sec. 71.l(b) of this rule are identical to the provisions in the

companion document. See Sec. 10.12 of the companion document.

IV. Regulatory Procedures

Executive Order 12866

The final rule constitutes a ``significant regulatory action''

within the meaning of Executive Order 12866 of September 30, 1993 (58

FR 51735), because it meets the criteria of section 3(f)(4) of

Executive Order 12866 for the following reasons. This final rule raises

certain novel legal and policy issues arising out of legal mandates,

the President's priorities, and principles set forth in the Executive

Order.

Accordingly, because the rule meets the criteria of section 3(f)(4)

of the Executive Order, and because the Office of Management and Budget

(OMB) performs a special role under the Privacy Act, pursuant to the

statute and as specified by OMB Circular A-130, this document has been

submitted to OMB.

It should be noted that the rule does not require an assessment of

anticipated monetary costs because the proposal will not have an annual

monetary effect on the economy of $100 million or more, nor will it

adversely affect the economy in any material way. This conclusion is

based upon the fact that this final rule addresses access to records

and related matters, and clearly does not affect the economy in a

material fashion.

Regulatory Flexibility Act

This final rule will address access to records and related matters.

The Privacy Act records that are maintained by the Department of Labor

relate to individuals rather than small, or even large business or

other types of entities. For the vast majority of instances, these

records do not relate to sole proprietorships. In view of the above

facts, the Secretary of Labor hereby certifies that this rule will not

have a ``significant economic impact on a substantial number of small

entities''. Therefore, a regulatory flexibility analysis under the

Regulatory Flexibility Act (5 U.S.C. 605(b)) is not required. The

Secretary of Labor has certified to this effect to the Chief Counsel

for Advocacy of the Small Business Administration.

Unfunded Mandates Reform

Executive Order 12875--This rule will not create an unfunded

Federal mandate upon any State, local or tribal government.

Unfunded Mandates Reform Act of 1995--This rule will not include

any Federal mandate that may result in increased expenditures by State,

local, and tribal governments, in the aggregate, of $100 million or

more, or in increased expenditures by the private sector of $100

million or more.

Paperwork Reduction Act

This rule is not subject to section 3504(h) of the Paperwork

Reduction Act since it does not contain a collection of information

requirement.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of the United States-based companies to

compete with foreign-based companies in domestic and export markets.

V. Congressional Notification

Consistent with the Small Business Regulatory Enforcement Fairness

Act of 1996, the Department will submit to Congress a report regarding

the issuance of today's final rule prior to the Effective Date set

forth in the outset of this document. The report will note the Office

of Management and Budget's determination that this rule does not

constitute a ``major rule'' under that Act. 5 U.S.C. 801, 805.

List of Subjects in 29 CFR Parts 70a and 71

Privacy.

For the reasons set out in the preamble, part 70a of subtitle A of

Title 29 of the Code of Federal Regulations is redesignated as part 71

and revised to read as follows:

PART 70a--[REDESIGNATED AS PART 71 AND REVISED]

PART 71--PROTECTION OF INDIVIDUAL PRIVACY AND ACCESS TO RECORDS

UNDER THE PRIVACY ACT OF 1974

Subpart A--General

Sec.

71.1 General provisions.

71.2 Request for access to records.

71.3 Responses by components to requests for access to records.

71.4 Form and content of component responses.

71.5 Access to records.

71.6 Fees for access to records.

71.7 Appeals from denials of access.

71.8 Preservation of records.

71.9 Requests for correction or amendment of records.

71.10 Certain records not subject to correction.

71.11 Emergency disclosures.

71.12 Use and collection of social security numbers.

71.13 Employee standards of conduct.

71.14 Use of nonpublic information.

71.15 Training.

Subpart B--Exemption of Records Systems Under the Privacy Act

71.50 General exemptions pursuant to subsection (j) of the Privacy

Act.

71.51 Specific exemptions pursuant to subsection (k)(2) of the

Privacy Act.

71.52 Specific exemptions pursuant to subsection (k)(5) of the

Privacy Act.

Appendix A to Part 71--Responsible Officials

Authority: 5 U.S.C. 301; 5 U.S.C. 552a as amended;

Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix.

Subpart A--General

Sec. 71.1 General provisions.

(a) Purpose and scope. This part contains the regulations of the

U.S. Department of Labor implementing the Privacy Act of 1974, 5 U.S.C.

552a. The regulations apply to all records which are contained in

systems of records maintained by, or under the control of, the

Department of Labor and which 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 or amendment of such records,

or may seek an accounting of disclosures of such records by the

Department. These regulations are applicable to each component of the

Department.

(b) Government-wide systems of records. (1) DOL/GOVT-1 (Office of

Workers' Compensation Programs, Federal Employees' Compensation Act

File):

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(i) All records, including claim forms, medical, investigative and

other reports, statements of witnesses, and other papers relating to

claims for compensation filed under the Federal Employees' Compensation

Act (as amended and extended), are covered by the government-wide

system of records entitled DOL/GOVT-1. This system is maintained by and

under the control of the Employment Standards Administration's Office

of Workers' Compensation Programs (OWCP), and, as such, all records

contained in the OWCP claims file, as well as all copies of such

documents retained and/or maintained by the injured worker's employing

agency, are official records of the OWCP.

(ii) The protection, release, inspection and copying of records

covered by DOL/GOVT-1 shall be accomplished in accordance with the

rules, guidelines and provisions of this part, as well as with part 70

of this subtitle, and with the notice of the systems of records and

routine uses published in the Federal Register. All questions relating

to access/disclosure, and/or the amendment of FECA records maintained

by the OWCP or an employing agency, are to be resolved in accordance

with this part.

(iii)(A) While an employing agency may establish procedures that an

injured employee or beneficiary should follow in requesting access to

documents it maintains, any decision issued in response to such a

request must comply with the rules and regulations of the Department of

Labor.

(B) Any administrative appeal taken from a denial issued by the

employing agency shall be filed with the Solicitor of Labor in

accordance with Secs. 71.7 and 71.9 of this part.

(iv) No agency other than the OWCP has authority to issue

determinations in response to requests for the correction or amendment

of records contained in or covered by DOL/GOVT-1. Any request for

correction or amendment received by an employing agency must be

referred to the OWCP for review and decision.

(2) For the government-wide system of records entitled DOL/GOVT-2

(Job Corps Student Records), a system maintained by and under the

control of the Employment and Training Administration, the regulations

of this Department shall govern, including the procedure for requesting

access to, or amendment of the records, as well as appeals therefrom,

shall govern.

have the following meanings:

(1) Agency has the meaning set forth in 5 U.S.C. 552(f).

(2) Component means each separate agency, bureau, office, board,

division, commission, service, or administration of the Department of

Labor, as well as each agency which possesses records covered by a DOL

government-wide system of records.

(3) Individual Data Subject means the individual by whose name or

identifier the subject record is retrieved.

(4) Record means any item, collection, or grouping of information

about an individual which is maintained by any component within a

system of records and which contains the individual's name, identifying

number, symbol, or other identifying particular assigned to the

individual, such as a fingerprint, voiceprint, or photograph.

(5) Requester means an individual who makes either a request for

access, a request for correction or amendment, or a request for an

accounting.

(6) Routine use has the meaning set forth in 5 U.S.C. 552a(7).

(7) Statistical record has the meaning set forth in 5 U.S.C.

552a(6).

(8) System of records means a group of any records under the

control of the Department or any component 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.

(9) Under the control of means those official records for which the

agency is officially responsible and either has in its possession or

exercises dominion over. This excludes those records which, although in

the physical possession of agency employees and used by them in

performing official functions, are not, in fact, agency records.

Uncirculated personal notes, papers and records which are retained or

discarded at the author's discretion and over which the agency

exercises no dominion or control (e.g., personal telephone list) are

not agency records for purposes of this part.

(10) He, his, and him include ``she'', ``hers'' and ``her''.

Sec. 71.2 Requests for access to records.

(a) Procedure for making requests for access to records. An

individual, or legal representative acting on his behalf, may request

access to a record about himself by appearing in person or by writing

to the component that maintains the record. (See appendix A to this

part which lists the components of the Department of Labor and their

addresses.) A requester in need of guidance in defining his request may

write to the Assistant Secretary for Administration and Management,

U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC

20210-0002. A request should be addressed to the component that

maintains the requested record. 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

Department 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 record 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.

record under this subpart shall be deemed to constitute an agreement to

pay all applicable fees charged under Sec. 71.6 up to $25.00. The

component responsible for responding to the request shall confirm this

agreement in its letter of acknowledgment to the requester. When filing

a request, a requester may specify 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:

(1) Any requester making a request in writing must state in his

request his full name, and current address. In addition, a requester

must provide with his request an example of his signature, which shall

be notarized, or signed as an unsworn declaration under penalty of

perjury, pursuant to 28 U.S.C. 1746. In order to facilitate the

identification of the requested records, a requester may also include

in his request his Social Security number.

(2) Any requester submitting a request in person may provide to the

component a form of official photographic identification, such as a

passport, an identification badge or a driver's license which contains

the photograph of the requester. If a requester is unable to produce a

form of photographic identification, he may provide to the component

two or more acceptable forms of identification bearing his name and

address. In all cases, sufficient identification must be presented to

confirm that the requester is the individual data subject.

(e) Verification of guardianship. The parent, guardian, or

representative of a minor or the guardian or representative of a person

judicially determined to be

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incompetent who submits a request for access to the records of the

minor or incompetent must establish:

(1) His identity, as required in paragraph (d) of this section,

(2) That the requester is the parent, guardian, or representative

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.

(f) The disclosure officer may waive the requirements set forth in

paragraphs (d) and (e) of this section when he deems such action to be

appropriate, and may substitute in lieu thereof, other reasonable means

of identification.

Sec. 71.3 Responses by components to requests for access to records.

(a) In general. Except as otherwise provided in this section, the

component that:

(1) First receives a request for access to a record, and

(2) Has possession of the requested record is the component

ordinarily responsible for responding to the request.

(b) Authority to grant or deny requests. The head of a component,

or his designee (i.e. disclosure officer), is authorized to make an

initial grant or denial of any request for access to a record in the

possession of that component.

request for access that is not properly addressed as specified in

Sec. 71.2 shall be forwarded to the Assistant Secretary for

Administration and Management, who shall forward the request to the

appropriate component or components for processing. A request not

addressed to the appropriate component will be deemed not to have been

received by the Department until the Assistant Secretary for

Administration and Management has forwarded the request to the

appropriate component which has the record and that component has

received the request. When the component receives an improperly

addressed request, it shall notify the requester of the date on which

it received the request. Accordingly, a request for access shall be

deemed received on the date that it is received in the appropriate

component.

(d) Date for determining responsive records. In determining the

extent to which records are responsive to a request for access, a

component ordinarily will include only those records within the

component's possession and control as of the date of its receipt of the

request.

(e) First party requests. A request for access by the individual

data subject for his or her own records shall be processed both under

the Freedom of Information Act (FOIA) and the Privacy Act (PA).

Sec. 71.4 Form and content of component responses.

(a) Form of notice granting request for access. A request by the

individual data subject for access to his or her own records shall not

be denied unless both a Privacy Act exemption and a Freedom of

Information Act exemption apply to the requested records. A component

shall make a determination within 30 days to grant or deny a request

for access in whole or in part. If the request is granted in whole, the

component 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. 71.6.

(b) Form of notice denying request for access. A component denying

a request for access in whole or in part shall so notify the requester

in writing. The notice, signed by the responsible agency official,

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 and FOIA exemption or exemptions which the

component has relied upon in denying the request; and

(3) A statement that the denial may be appealed under Sec. 71.7(a),

and a description of the requirements of that paragraph.

responsive to the request, the component shall so notify the requester

in writing. Such notification by the component shall inform the

requester that, if the requester considers this response to be a denial

of their request, the requester has a right to appeal to the Solicitor

of Labor, within ninety days, as set forth in Sec. 71.7.

(d) Medical records. When an individual requests medical records

concerning himself, which are not otherwise exempt from disclosure, the

disclosure officer shall, if deemed necessary because of possible harm

to the individual, advise the individual that the Department of Labor

believes that the records should be provided to a physician designated

in writing by the individual. In addition, the Department shall request

the individual to designate such a physician. Upon receipt of the

designation, the disclosure officer will permit the physician to review

the records or to receive copies of the records by mail, upon proper

verification of identity.

Sec. 71.5 Access to records.

(a) Manner of access. A component that has made a determination to

grant a request for access shall grant the requester access to the

requested record either by providing the requester with a copy of the

record, or making the record available for inspection by the requester

at a reasonable time and place. The component shall charge the

requester only duplication costs in accordance with the provisions of

Sec. 71.6. If a component 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

component.

(b) Accompanying person. A requester appearing in person to review

his own records may be accompanied by another individual of his own

choosing. The requester shall provide the Department with his or her

written consent to disclose the record to the accompanying person.

Sec. 71.6 Fees for access to records.

(a) When charged. A component shall charge fees pursuant to 31

U.S.C. 9701 and 5 U.S.C. 552a(f)(5) for the copying of records unless

the component, in its discretion, waives or reduces the fees for good

cause shown. A component shall charge fees at the rate of $0.15 per

page. In accordance with the provisions of the Freedom of Information

Act, the first 100 pages of copying shall be furnished without charge.

For materials other than paper copies, the component 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 where they would amount, in the aggregate, for one request or

for a series of related requests, to less than $15.00. Notwithstanding

any other provision of this paragraph, the first copy of an

individual's Privacy Act record shall be provided to the individual at

no cost.

(b) Notice of estimated fees amounting to between $25 to $250. When

a component determines or estimates that the fees to be charged under

this section may amount to between $25 to $250, the component 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.

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determines or estimates that the fees to be charged under this section

may amount to more than $250, the component 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 estimated. If the fee is estimated to be in excess

of $250, then the agency may require payment in advance. (If only a

portion of the fee can be estimated readily, the component shall advise

the requester that the estimated fee may be only a portion of the total

fee.) Where the estimated fee exceeds $250 and a component has so

notified the requester, the component will be deemed not to have

received the request for access to records until the requester has paid

the anticipated fee, in full or in part. A notice to a requester

pursuant to this paragraph shall offer him the opportunity to confer

with Department personnel with the object of reformulating his request

to meet his needs at a lower cost.

(d) Form of payment. Requesters must pay fees by cash, check or

money order payable to either the Treasury of the United States, or the

U.S. Department of Labor. However, the Department shall not require

advance payment in any case where the fee is under $250, except that

where a requester has previously failed to pay a fee charged under this

part, the requester must pay the component or the Department the full

amount owed and make an advance deposit of the full amount of any

estimated fee before a component shall be required to process a new or

pending request for access from that requester.

Sec. 71.7 Appeals from denials of access.

(a) Appeals to the Solicitor of Labor. When a component denies in

whole or in part a request for access to records, the requester may

appeal the denial to the Solicitor of Labor within 90 days of his

receipt of the notice denying his request. An appeal to the Solicitor

of Labor shall be made in writing, addressed to the Solicitor of Labor,

U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC.

20210-0002. Both the envelope and the letter of appeal itself must be

clearly marked: ``Privacy Act Appeal.'' An appeal not so addressed and

marked shall be forwarded to the Office of the Solicitor as soon as it

is identified as an appeal under the Privacy Act. An appeal that is

improperly addressed shall be deemed not to have been received by the

Department until the Office of the Solicitor receives the appeal.

(b) Form of action on appeal. The disposition of an appeal shall be

in writing. A written 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 affirmation, including each Privacy Act and FOIA

exemption relied upon and its relation to each record withheld, and a

statement that judicial review of the denial is available in the U.S.

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.

Solicitor of Labor is authorized to delegate his authority to decide

appeals from any and all denials of access to other senior attorneys

within the Office of the Solicitor.

Sec. 71.8 Preservation of records.

Each component 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

U.S. Code and record schedules approved by the National Archives and

Records Administration, and otherwise in accordance with retention

requirements as published in the agency's system of records. 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. 71.9 Request for correction or amendment of records.

(a) How made. An individual may submit a request for correction or

amendment of a record pertaining to him. The request must be in writing

and must be addressed to the component that maintains the record.

(Appendix A of this part lists the components of the Department and

their addresses.) The request must identify the particular record in

question, state the correction or amendment sought, and set forth the

justification for the change. Both the envelope and the request itself

must be clearly marked: ``Privacy Act Amendment Request.''

(b) Initial determination. Within 30 working days of receiving a

request for correction or amendment, a component shall notify the

requester whether his request will be granted or denied, in whole or in

part. If the component grants the request in whole or in part, it shall

send the requester a copy of the amended record, in releasable form, as

proof of the change. If the component denies the request 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.

in whole or in part, the requester may appeal the denial to the

Solicitor of Labor within 90 days of his receipt of the notice denying

his request. An appeal to the Solicitor of Labor shall be made in

writing, shall set forth the specific item of information sought to be

corrected or amended, and shall include any documentation said to

justify the change. An appeal shall be addressed to the Solicitor of

Labor, U.S. Department of Labor, 200 Constitution Avenue, NW,

Washington, DC 20210-0002. Both the envelope and the letter of appeal

itself must be clearly marked: ``Privacy Act Amendment Appeal.''

(d) Determination on appeal. The Solicitor of Labor shall decide

all appeals from denials of requests to correct or amend records. All

such appeals shall be decided within 30 working days of receipt of the

appeal, unless there is good cause shown to extend this period. The

appellant shall be notified if the period for decision has been

extended.

(1) If the denial of a request is affirmed on appeal, the requester

shall be so notified in writing and advised of:

(i) The reason or reasons the denial has been affirmed,

(ii) The requester's right to file a Statement of Disagreement, as

provided in paragraph (f) of this section, and

(iii) The requester's right to obtain judicial review of the denial

in the U.S. District Court for the judicial district in which the

requester resides or has its principal place of business, the judicial

district in which the record is located, or the District of Columbia.

(2) If the denial is reversed on appeal, the requester shall be so

notified and the request for correction or amendment shall be promptly

remanded to the component that denied the request for processing in

accordance with the decision on appeal.

(e) Delegation of Authority by the Solicitor of Labor. The

Solicitor of Labor is authorized to delegate his or her authority to

decide any and all appeals from denials of requests to correct or amend

records to other senior attorneys within the Office of the Solicitor.

[[Page 56745]]

(f) Statements of disagreement. A requester whose request or appeal

under this section has been denied shall have the right to file a

Statement of Disagreement with the Solicitor of Labor, U.S. Department

of Labor, 200 Constitution Avenue, NW, Washington, DC 20210-0002,

within 30 days of receiving notice of denial. 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, the agency shall promptly have the statement included in the

record and shall have the disputed record marked so as to indicate that

a Statement of Disagreement has been filed.

(g) Notices of correction or amendment or disagreement. Within 30

working days of the correction or amendment of a record, the component

that maintains the record shall advise all components or agencies to

which it previously disclosed the record that the record has been

amended. Whenever an individual has filed a Statement of Disagreement,

a component shall append a copy of the Statement to the disputed record

whenever the record is disclosed. The component may also append to the

disputed record a written statement giving the component's reasons for

denying the request to correct or amend the record.

Sec. 71.10 Certain records not subject to correction.

Certain records are not subject to correction or amendment. These

include, but are not limited to:

(a) Transcripts of testimony given under oath or written statements

made under oath;

(b) Transcripts or decisions of grand jury, administrative,

judicial, or quasi-judicial proceedings which constitute the official

record of such proceedings;

552a(j) or 552a(k) by rulemaking promulgated under the Administrative

Procedure Act (5 U.S.C. 551 et seq.)

Sec. 71.11 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. 71.12 Use and collection of social security numbers.

(a) Each component unit that requests an individual to disclose his

social security account number shall provide the individual, in

writing, with the following information:

(1) The statute, regulation, Executive Order or other authority

under which the number is solicited;

(2) Whether the disclosure is mandatory or voluntary; and

(3) The consequences, if any, to the individual should he or she

refuse or fail to disclose the number.

(b) Neither the Department nor any of its component units shall, in

the absence of specific federal statutory authority, deny to an

individual any right, benefit or privilege provided by law solely

because of such individual's refusal to disclose his social security

account number.

authorized to collect social security account numbers or tax

identifying numbers, are aware of the statutory or other basis for

collecting such information, of the uses to which such numbers may be

put, and of the consequences, if any, that might follow if a person

refuses to disclose the requested number.

Sec. 71.13 Employee standards of conduct.

(a) Each component shall inform its employees of the provisions of

the Privacy Act, including the Act's civil liability and criminal

penalty provisions. Each component also shall notify its employees that

they have a duty to:

(1) Protect the security of records,

(2) Ensure the accuracy, relevance, timeliness, and completeness of

records,

(3) Avoid the unauthorized disclosure, either verbal or written, of

records, and

(4) Ensure that the component maintains no system of records

without public notice.

(b) Except to the extent that the Privacy Act permits such

activities, an employee of the Department of Labor 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 Department;

(2) Collect from individuals only that information which is

necessary to the performance of the functions or to the discharge of

the responsibilities of the Department;

(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 Department to collect

such information,

(ii) The principal purposes for which the Department intends to use

the information,

(iii) The routine uses the Department may make of the information,

and

(iv) The practical and legal effects upon the individual of not

furnishing the information;

(5) Maintain all records which are used by the agency in making any

determination about any individual with such accuracy, relevance,

timeliness, and completeness as to ensure fairness to the individual in

the determination;

(6) Maintain no record describing how any individual exercises

rights guaranteed by the First Amendment to the United States

Constitution, unless:

(i) The individual has volunteered such information for his own

benefit,

(ii) A statute expressly authorizes the Department 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

activity;

(7) Notify the head of the component of the existence or

development of any system of records that has not been disclosed to the

public;

(8) Disclose no record to anyone, for any use, unless authorized by

the Act;

(9) Maintain and use records with care to prevent the inadvertent

disclosure of a record to anyone; and

(10) Notify the head of the component of any record that contains

information that the Act or the foregoing provisions of this paragraph

do not permit the Department to maintain.

Sec. 71.14 Use of nonpublic information.

(a) Prohibition. (1) An employee shall not engage in a financial

transaction using nonpublic information, nor allow the improper use of

nonpublic information to further his own private interest or that of

another, whether through advice or recommendations, or by knowing

unauthorized disclosure. See 5 CFR 2635.703.

(2) Nonpublic information is information that an employee gains by

reason of Federal employment that he knows or reasonably should know

has not been made available to the general

[[Page 56746]]

public. Nonpublic information includes information contained in a

Privacy Act system of records which an individual knew or should have

known:

(i) Is normally exempt from disclosure under Exemptions 6 or 7(C)

of the Freedom of Information Act, or is otherwise protected from

disclosure by statute, Executive Order or regulation;

(ii) Has not actually been disseminated to the general public and

is not authorized to be made available to the public upon request.

(b) Sanctions. Any DOL employee who willfully discloses any

information or records from any file that contains individually-

identifiable information to any person or agency not entitled to

receive it, and the disclosure of which is prohibited by the Privacy

Act or by rules or regulations established thereunder, and who, knowing

the disclosure of the specific material is so prohibited, will be

subject to disciplinary action, as appropriate.

When Labor Department records subject to the Privacy Act are disclosed

to third parties, and as a condition of the disclosure of such records,

the person or entity to whom the records are furnished is expressly

prohibited from further disseminating the information, any further

dissemination of the information so furnished to such person or entity

may be subject to the penalties set forth in 18 U.S.C. 641.

Sec. 71.15 Training.

All DOL systems managers, disclosure officers, and employees with

responsibilities under the Privacy Act shall periodically attend

training offered by the Department on the Privacy Act.

Subpart B--Exemption of Records Systems Under the Privacy Act

Sec. 71.50 General exemptions pursuant to subsection (j) of the

Privacy Act.

(a) The following systems of records are eligible for exemption

under 5 U.S.C. 552a(j)(2) because they are maintained by a component of

the agency or subcomponent which performs as its principal function the

enforcement of criminal laws, and they contain investigatory material

compiled for criminal law enforcement purposes. Accordingly, these

systems of records are exempt from the following subsections of 552a of

title 5 U.S. Code: (c)(3) and (4), (d), (e)(1), (2), and (3),

(e)(4)(G), (H), and (I), (e)(5) and (8), (f) and (g).

(1) DOL/ESA-45 ( Investigative Files of the Office of Labor-

Management Standards), a system of records maintained by the Office of

Labor-Management Standards.

(2) DOL/OIG-1 (General Investigative Files, and Subject Title

Index, USDOL/OIG), a system of records maintained by the Office of the

Inspector General (OIG).

(3) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a

system of records maintained by the OIG.

(4) DOL/OIG-3 (Case Development Records), a system of records

maintained by the OIG.

(5) DOL/OIG-5 (Investigative Case Tracking Systems/Audit

Information Reporting Systems, USDOL/OIG), a system of records

maintained by the OIG.

(6) DOL/MSHA-20 (Civil/Criminal Investigations), a system of

records maintained by the Mine Safety and Health Administration.

(7) DOL/PWBA-2 (Office of Enforcement Index Cards and Investigation

Files), a system of records maintained by the Pension and Welfare

Benefits Administration.

(b) This exemption applies to the extent that information in these

systems of records is subject to exemption pursuant to 5 U.S.C.

552a(j)(2).

paragraphs (c)(1) through (12) of this section, from the following

subsections of 5 U.S.C. 552a:

(1) Subsection (c)(3). The release of the disclosure accounting

would present a serious impediment to law enforcement by permitting the

subject of an investigation of an actual or potential criminal

violation to determine whether he is the subject of investigation, or

to obtain valuable information concerning the nature of that

investigation and the information obtained, or to identify witnesses

and informants.

(2) Subsection (c)(4). Since an exemption is being claimed for

subsection (d) of the Act (Access to Records), this subsection is

inapplicable to the extent that these systems of records are exempted

from subsection (d).

(3) Subsection (d). Access to records contained in these systems

would inform the subject of an actual or potential criminal

investigation of the existence of that investigation, of the nature and

scope of the investigation, of the information and evidence obtained as

to his or her activities, and of the identity of witnesses or

informants. Such access would, accordingly, provide information that

could enable the subject to avoid detection, apprehension, and

prosecution. This result, therefore, would constitute a serious

impediment to effective law enforcement not only because it would

prevent the successful completion of the investigation but also because

it could endanger the physical safety of witnesses or informants, lead

to the improper influencing of witnesses, the destruction of evidence,

or the fabrication of testimony. Amendment of the records would

interfere with ongoing criminal law enforcement proceedings and imposes

an impossible administrative burden by requiring criminal

investigations to be continuously reinvestigated.

(4) Subsection (e)(1). In the course of criminal and related law

enforcement investigations, cases, and matters, the agency will

occasionally obtain information concerning actual or potential

violations of law that may not be technically within its statutory or

other authority, or it may compile information in the course of an

investigation which may not be relevant to a specific prosecution. In

the interests of effective law enforcement, it is necessary to retain

some or all of such information since it can aid in establishing

patterns of criminal activity and can provide valuable leads for

Federal and other law enforcement agencies. Moreover, it is difficult

to know during the course of an investigation what is relevant and

necessary. In this connection, facts or evidence may not seem relevant

at first, but later in the investigation, their relevance is borne out.

(5) Subsection (e)(2). To collect information to the greatest

extent practicable from the subject individual of a criminal

investigation or prosecution would present a serious impediment to law

enforcement because the subject of the investigation or prosecution

would be placed on notice as to the existence of the investigation and

would therefore be able to avoid detection or apprehension, improperly

influence witnesses, destroy evidence, or fabricate testimony.

(6) Subsection (e)(3). To provide individuals supplying information

with a form which includes the information required by subsection

(e)(3) would constitute a serious impediment to law enforcement, i.e.,

it could compromise the existence of a confidential investigation or

reveal the identity of witnesses or confidential informants.

(7) Subsections (e)(4)(G) and (H). These subsections are

inapplicable to the extent that these systems are exempt from the

access provisions of subsection (d) and the rules provisions of

subsection (f).

(8) Subsection (e)(4)(I). The categories of sources of the records

in these systems have been published in the

[[Page 56747]]

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 this system, exemption from

this provision is necessary to protect the confidentiality of the

sources of criminal and related law enforcement information. Such

exemption is further necessary to protect the privacy and physical

safety of witnesses and informants.

(9) Subsection (e)(5). In the collection of information for

criminal 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. Furthermore, the accuracy of such information can often only be

determined in a court of law. The restrictions of subsection (e)(5)

would inhibit the ability of government attorneys in exercising their

judgment in reporting on information and investigations and impede the

development of criminal information and related data necessary for

effective law enforcement.

(10) Subsection (e)(8). The individual notice requirements of

subsection (e)(8) could present a serious impediment to law enforcement

as this could interfere with the ability to issue warrants or subpoenas

and could reveal investigative techniques, procedures, or evidence.

(11) Subsection (f). Procedures for notice to an individual

pursuant to subsection (f)(1) as to existence of records pertaining to

the individual dealing with an actual or potential criminal, civil, or

regulatory investigation or prosecution must be exempted because such

notice to an individual would be detrimental to the successful conduct

and/or completion of an investigation or case, pending or future. In

addition, mere notice of the fact of an investigation could inform the

subject or others that their activities are under investigation or may

become the subject of an investigation and could enable the subjects to

avoid detection, to influence witnesses improperly, to destroy

evidence, or to fabricate testimony. Since an exemption is being

claimed for subsection (d) of the Act (Access to Records) the rules

required pursuant to subsections (f)(2) through (5) are inapplicable to

these systems of records to the extent that these systems of records

are exempted from subsection (d).

(12) Subsection (g). Since an exemption is being claimed for

subsections (d) (Access to Records) and (f) (Agency Rules) this section

is inapplicable, and is exempted for the reasons set forth for those

subsections, to the extent that these systems of records are exempted

from subsections (d) and (f).

Sec. 71.51 Specific exemptions pursuant to subsection (k)(2) of the

Privacy Act.

(a) The following systems of records are eligible for exemption

under 5 U.S.C. 552a(k)(2) because they contain investigatory material

compiled for law enforcement purposes other than material within the

scope of subsection (j)(2) of 5 U.S.C. 552a. Provided however, that if

any individual is denied any right, privilege or benefit to which he

would otherwise be entitled by Federal law, or for which he would

otherwise be eligible, as a result of the maintenance of such material,

such material shall be provided to such individual, except to the

extent that the disclosure of such material would reveal the identity

of a source who furnished information to the Government under an

express promise that the identity of the source would be held in

confidence, or prior to January 1, 1975, under an implied promise that

the identity of the source would be held in confidence. Accordingly the

following systems of records are exempt from (c)(3), (d)(1), (d)(2),

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

(1) DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal

Employees' Compensation Act File), a system of records maintained by

the Employment Standards Administration (ESA).

(2) DOL/OASAM-17 (Equal Employment Opportunity Complaint Files), a

system of records maintained by the Office of the Assistant Secretary

for Administration and Management (OASAM).

(3) DOL/OASAM-19 (Negotiated Grievance Procedure and Unfair Labor

Practice Files), a system of records maintained by OASAM.

(4) DOL/OASAM-20 (Personnel Investigation Records), a system of

records maintained by OASAM.

(5) DOL/OASAM-22 (Directorate of Civil Rights Discrimination

Complaint Case Files), a system of records maintained by OASAM.

(6) DOL/OASAM-29 (OASAM Employee Administrative Investigation

File), a system of records maintained by OASAM.

(7) DOL/BLS-7 (BLS Employee Conduct Investigation), a system of

records maintained by the Bureau of Labor Statistics (BLS).

(8) DOL/ESA-2 (Office of Federal Contract Compliance Programs,

Complaint Files), a system of records maintained by ESA.

(9) DOL/ESA-25 (Office of Federal Contract Compliance Programs,

Management Information Systems (OFCCP/MIS), a system of records

maintained by ESA.

(10) DOL/ESA-26 (Office of Workers' Compensation Programs,

Longshore and Harbor Workers' Compensation Act Investigation Files), a

system of records maintained by ESA.

(11) DOL/ESA-27 (Office of Workers' Compensation Programs,

Longshore Act Claimant Representatives), a system of records maintained

by ESA.

(12) DOL/ESA-28 (Office of Workers' Compensation Programs,

Physicians and Health Care Providers Excluded under the Longshore Act),

a system of records maintained by ESA.

(13) DOL/ESA-29 (Office of Workers' Compensation Programs,

Physicians and Health Care Providers Excluded under the Federal

Employees' Compensation Act), a system of records maintained by ESA.

(14) DOL/ESA-32 (ESA, Complaint and Employee Conduct

Investigations), a system of records maintained by ESA.

(15) DOL/ESA-36 (ESA, Wage and Hour Division, MSPA/FLCRA Civil

Money Penalty Record Files), a system of records maintained by ESA.

(16) DOL/ESA-40 (ESA, Wage and Hour Division, MSPA/FLCRA Tracer

List), a system of records maintained by ESA.

(17) DOL/ESA-41 (ESA, Wage and Hour Division, MSPA/FLCRA

Certificate Action Record Files), a system of records maintained by

ESA.

(18) DOL/ESA-45 (Investigative Files of the Office of Labor-

Management Standards), a system maintained by the Office of Labor-

Management Standards.

(19) DOL/ETA-16 (Employment and Training Administration

Investigatory File), a system of records maintained by the Employment

and Training Administration (ETA).

(20) DOL/ETA-22 (ETA Employee Conduct Investigations), a system of

records maintained by ETA.

(21) DOL/OIG-1 (General Investigative Files, and Subject Title

Index, USDOL/OIG), a system of records maintained by the Office of the

Inspector General (OIG).

(22) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a

system of records maintained by the OIG.

(23) DOL/OIG-3 (Case Development Records), a system of records

maintained by OIG.

[[Page 56748]]

(24) DOL/OIG-5 (Investigative Case Tracking Systems/Audit

Information Reporting Systems, USDOL/OIG), a system of records

maintained by OIG.

(25) DOL/MSHA-10 (Discrimination Investigations), a system of

records maintained by the Mine Safety and Health Administration (MSHA).

(26) DOL/MSHA-19 (Employee Conduct Investigations), a system of

records maintained by MSHA.

(27) DOL/MSHA-20 (Civil/Criminal Investigations), a system of

records maintained by MSHA.

(28) DOL/OSHA-1 (Discrimination Complaint File), a system of

records maintained by the Occupational Safety and Health Administration

(OSHA).

(29) DOL/OSHA-12 (Employee Conduct Investigations), a system of

records maintained by OSHA.

(30) DOL/PWBA-2 (Office of Enforcement Index Cards and

Investigation Files), a system of records maintained by the Pension and

Welfare Benefits Administration (PWBA).

(31) DOL/PWBA-7 (PWBA Employee Conduct Investigations), a system of

records maintained by PWBA.

(32) DOL/SOL-8 (Special Litigation Files), a system of records

maintained by the Office of the Solicitor (SOL).

(33) DOL/SOL-9 (Freedom of Information Act and Privacy Act Appeals

Files), a system of records maintained by SOL.

(34) DOL/SOL-11 (Division of Civil Rights Defensive Litigation

Files), a system of records maintained by SOL.

(35) DOL/SOL-12 (Third-party Recovery Files), a system of records

maintained by SOL.

(36) DOL/SOL-13 (SOL Employee Conduct Investigations), a system of

records maintained by SOL.

(37) DOL/SOL-15 (Solicitor's Office Litigation Files), a system of

records maintained by SOL.

(38) DOL/VETS-1 (Veterans' Reemployment Complaint File--VETS-1), a

system of records maintained by the Veterans' Employment and Training

Service (VETS).

(39) DOL/VETS-2 (Veterans' Preference Complaint File), a system of

records maintained by VETS.

(b) This exemption applies to the extent that information in these

systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).

(a)(39) of this section are exempted for the reasons set forth in

paragraphs (c) (1) through (6) of this section, from the following

subsections of 5 U.S.C. 552a:

(1) Subsection (c)(3). The release of the disclosure accounting,

for disclosures made pursuant to subsection (b) of the Act, including

those permitted under the routine uses published for these systems of

records, would enable the subject of an investigation of an actual or

potential civil case to determine whether he or she is the subject of

investigation, to obtain valuable information concerning the nature of

that investigation and the information obtained, and to determine the

identity of witnesses or informants. Such access to investigative

information would, accordingly, present a serious impediment to law

enforcement. In addition, disclosure of the accounting would constitute

notice to the individual of the existence of a record even though such

notice requirement under subsection (f)(1) is specifically exempted for

this system of records.

(2) Subsections (d)(1), (d)(2), (d)(3), and (d)(4). Access to the

records contained in these systems would inform the subject of an

actual or potential civil investigation of the existence of that

investigation, of the nature and scope of the information and evidence

obtained as to his or her activities, and of the identity of witnesses

or informants. Such access would, accordingly, provide information that

could enable the subject to avoid detection. This result, therefore,

would constitute a serious impediment to effective law enforcement not

only because it would prevent the successful completion of the

investigation but also because it could endanger the physical safety of

witnesses or informants, lead to the improper influencing of witnesses,

the destruction of evidence, or the fabrication of testimony.

(3) Subsection (e)(1). The notices for these systems of records

published in the Federal Register set forth the basic statutory or

related authority for maintenance of these systems. However, in the

course of civil and related law enforcement investigations, cases and

matters, the agency will occasionally obtain information concerning

actual or potential violations of law that are not strictly or

technically within its statutory or other authority or may compile

information in the course of an investigation which may not be relevant

to a specific case. In the interests of effective law enforcement, it

is necessary to retain some or all of such information in this system

of records since it can aid in establishing patterns of compliance and

can provide valuable leads for Federal and other law enforcement

agencies. Moreover, it is difficult to know during the course of an

investigation what is relevant and necessary. In this connection, facts

or evidence may not seem relevant at first, but later in the

investigation, their relevance is borne out.

(4) Subsections (e)(4) (G) and (H). Since an exemption is being

claimed for subsections (f) (Agency Rules) and (d) (Access to Records)

of the Act, these subsections are inapplicable to the extent that these

systems of records are exempted from subsections (f) and (d).

(5) Subsection (e)(4)(I). The categories of sources of the records

in these systems 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 this system, exemption from this provision is necessary

in order to protect the confidentiality of the sources of civil law

enforcement information. Such exemption is further necessary to protect

the privacy and physical safety of witnesses and informants.

(6) Subsection (f). Procedures for notice to an individual pursuant

to subsection (f)(1) as to existence of records pertaining to the

individual dealing with an actual or potential criminal, civil, or

regulatory investigation or prosecution must be exempted because such

notice to an individual would be detrimental to the successful conduct

and/or completion of an investigation or case, pending or future. In

addition, mere notice of the fact of an investigation could inform the

subject or others that their activities are under or may become the

subject of an investigation and could enable the subjects to avoid

detection, to influence witnesses improperly, to destroy evidence, or

to fabricate testimony. Since an exemption is being claimed for

subsection (d) of the Act (Access to Records), the rules required

pursuant to subsections (f)(2) through (5) are inapplicable to these

systems of records to the extent that these systems of records are

exempted from subsection (d).

Sec. 71.53 Specific exemptions pursuant to subsection (k)(5) of the

Privacy Act.

(a) The following systems of records are eligible for exemption

under 5 U.S.C. 552a(k)(5) because they contain investigatory material

compiled solely for the purpose of determining suitability,

eligibility, or qualifications for Federal civilian employment,

military service, Federal contracts, or access to classified

information, but only to the extent that the disclosure of such

material would reveal the identity of a source who furnished

information to the Government under an express

[[Page 56749]]

promise that the identity of the source would be held in confidence,

or, prior to January 1, 1975 , under an implied promise that the

identity of the source would be held in confidence. Accordingly, these

systems of records are exempt from (c)(3), (d)(1), (d)(2), (d)(3),

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

(1) DOL/OASAM-20 (Personnel Investigation Records), a system of

records maintained by the Office of the Assistant Secretary for

Administration and Management (OASAM).

(2) DOL/OIG-1 (General Investigative Files, and Subject Title

Index, USDOL/OIG), a system of records maintained by the Office of the

Inspector General (OIG).

(3) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a

system of records maintained by the OIG.

(4) DOL/OIG-3 (Case Development Records), a system of records

maintained by the OIG.

(5) DOL/OIG-5 (Investigative Case Tracking Systems/Audit

Information Reporting Systems, USDOL/OIG), a system of records

maintained by the OIG.

(b) This exemption applies to the extent that information in these

systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).

(a)(5) of this section are exempted for the reasons set forth in

paragraphs (c)(1) through (6) of this section, from the following

subsections of 5 U.S.C. 552a:

(1) Subsection (c)(3). The release of the disclosure accounting,

for disclosures made pursuant to subsection (b) of the Act, including

those permitted under the routine uses published for this system of

records, would enable the subject of an investigation of an actual or

potential civil case to determine whether he or she is the subject of

investigation, to obtain valuable information concerning the nature of

that investigation and the information obtained, and to determine the

identity of witnesses or informants. Such access to investigative

information would, accordingly, present a serious impediment to the

investigation. In addition, disclosure of the accounting would

constitute notice to the individual of the existence of a record even

though such notice requirement under subsection (f)(1) is specifically

exempted for this system of records.

(2) Subsections (d)(1), (d)(2), (d)(3), and (d)(4). Access to the

records contained in these systems would inform the subject of an

actual or potential investigation of the existence of that

investigation, of the nature and scope of the information and evidence

obtained as to his or her activities, and of the identity of witnesses

or informants. Such access would, accordingly, provide information that

could enable the subject to avoid detection. This result, therefore,

would constitute a serious impediment to effective investigation not

only because it would prevent the successful completion of the

investigation but also because it could endanger the physical safety of

witnesses or informants, lead to the improper influencing of witnesses,

the destruction of evidence, or the fabrication of testimony.

(3) Subsection (e)(1). The notices for these systems of records

published in the Federal Register set forth the basic statutory or

related authority for maintenance of this system. However, in the

course of civil and related investigations, cases and matters, the

agency will occasionally obtain information concerning actual or

potential violations of law that are not strictly or technically within

its statutory or other authority or may compile information in the

course of an investigation which may not be relevant to a specific

case. In the interests of effective investigation, it is necessary to

retain some or all of such information in these systems of records

since it can aid in establishing patterns of compliance and can provide

valuable leads for Federal and other law enforcement agencies.

Moreover, it is difficult to know during the course of an investigation

what is relevant and necessary. In this connection, facts or evidence

may not seem relevant at first, but later in the investigation, their

relevance is borne out.

(4) Subsections (e)(4)(G) and (H). Since an exemption is being