Privacy Act Regulations; Implementation

rds is used for certain law

enforcement purposes.

The TVA Police is a component of TVA that performs as one of its

principal functions investigations into violations of criminal law in

connection with TVA's programs and operations, pursuant to the Violent

Crime Control and Law Enforcement Act of 1994, as amended, the TVA

Police Records system of records falls within the scope of subsections

(j)(2); i.e., information compiled for the purpose of criminal

investigation, reports relating to any stage of the enforcement

process, and information compiled for the identification of individual

criminals, and (k)(2); i.e., investigatory material compiled for law

enforcement purposes, other than material within the scope of (k)(2)

above.

The proposed (j)(2) and (k)(2) exemptions for criminal law

enforcement records would remove restrictions on the manner in which

information may be collected and the type of information that may be

collected by the TVA Police in the course of a criminal investigation,

would limit certain notice requirements, and would exempt the system of

records from civil remedies for violations of the Act. These additional

exemptions are necessary primarily to avoid premature disclosure of

sensitive information, including, but not limited to, the existence of

a criminal investigation, that may compromise or impede the

investigation.

A more complete explanation of each proposed exemption follows, as

required by the Act.

TVA proposes the following changes to the current exemptions

contained in 18 CFR 1301.24.

Exemptions Pursuant to (j)(2) and (k)(2)

TVA has determined that the TVA Police Records should be exempt

from the following provisions of the Privacy Act and corresponding

agency regulations. These exemptions are necessary and appropriate to

maintain the integrity and confidentiality of criminal investigations.

ses the following changes to the current exemptions

contained in 18 CFR 1301.24.

Exemptions Pursuant to (j)(2) and (k)(2)

TVA has determined that the TVA Police Records should be exempt

from the following provisions of the Privacy Act and corresponding

agency regulations. These exemptions are necessary and appropriate to

maintain the integrity and confidentiality of criminal investigations.

TVA proposes use of the (j)(2) and (k)(2) exemptions for the

following reasons: (a) 5 U.S.C. 552a(c)(3) requires an agency to make

the accounting of each disclosure of records available to the

individual named in the record at his/her request. This accounting must

state the date, nature and purpose of each disclosure of a record and

the name and address of the recipient. Accounting for each disclosure

could alert the subject of an investigation to the existence and nature

of the investigation and reveal investigative or prosecutive interest

by other agencies, particularly in a joint-investigation situation.

This could seriously impede or compromise the investigation and case

preparation by prematurely revealing its existence and nature;

compromise or interfere with witnesses or make witnesses reluctant to

cooperate with the investigators; lead to suppression, alteration,

fabrication, or destruction of evidence; and endanger the physical

safety of confidential sources, witnesses, law enforcement personnel

and their families.

(b) 5 U.S.C. 552a(c)(4) requires an agency to inform outside

parties of correction of and notation of disputes about information in

a system in accordance with subsection (d) of the Privacy Act. Since

this system of records is already exempted from the access provisions

of subsection (d) of the Privacy Act, this section is not properly

applicable.

w enforcement personnel

and their families.

(b) 5 U.S.C. 552a(c)(4) requires an agency to inform outside

parties of correction of and notation of disputes about information in

a system in accordance with subsection (d) of the Privacy Act. Since

this system of records is already exempted from the access provisions

of subsection (d) of the Privacy Act, this section is not properly

applicable.

(c) 5 U.S.C. 552a (d) and (f) require an agency to provide access

to records, make corrections and amendments to records, and notify

individuals of the existence of records upon their request. Providing

individuals with access to records of an investigation and the right to

contest the contents of those records and force changes to be made to

the information contained therein would seriously interfere with and

thwart the orderly and unbiased conduct of the investigation and impede

case preparation. Providing the access normally afforded under the

Privacy Act would provide the subject with valuable information that

would allow interference with or compromise of witnesses or render

witnesses reluctant to cooperate with investigators; lead to

suppression, alteration, fabrication, or destruction of evidence;

endanger the physical safety of confidential sources, witnesses, law

enforcement personnel and their families; and result in the secreting

of or other disposition of assets that would make them difficult or

impossible to reach to satisfy any Government claims growing out of the

investigation.

perate with investigators; lead to

suppression, alteration, fabrication, or destruction of evidence;

endanger the physical safety of confidential sources, witnesses, law

enforcement personnel and their families; and result in the secreting

of or other disposition of assets that would make them difficult or

impossible to reach to satisfy any Government claims growing out of the

investigation.

(d) 5 U.S.C. 552a(e)(1) requires an agency to maintain in agency

records only ``relevant and necessary'' information about an

individual. This provision is inappropriate for investigations, because

it is not always possible to detect the relevance or necessity of each

piece of information in the early stages of an investigation. In some

cases, it is only after the information is evaluated in light of other

evidence that its relevance and necessity will be clear. In other

cases, what may appear to be a relevant and necessary piece of

information may become irrelevant in light of further investigation.

In addition, during the course of an investigation, the

investigator may obtain information that relates primarily to matters

under the investigative jurisdiction of another agency (e.g., the

fraudulent use of Social Security numbers), and that information may

not be reasonably segregated. In the interest of effective law

enforcement, TVA Police should retain this information, since it can

aid in establishing patterns of criminal activity and can provide

valuable leads for Federal and other law enforcement agencies.

under the investigative jurisdiction of another agency (e.g., the

fraudulent use of Social Security numbers), and that information may

not be reasonably segregated. In the interest of effective law

enforcement, TVA Police should retain this information, since it can

aid in establishing patterns of criminal activity and can provide

valuable leads for Federal and other law enforcement agencies.

(e) 5 U.S.C. 552a(e)(2) requires an agency to collect information

to the greatest extent practicable directly from the subject

individual, when the information may result in adverse determinations

about an individual's rights, benefits and privileges under Federal

programs. The general rule that information be collected ``to the

greatest extent practicable'' from the target individual is not

appropriate in investigations. TVA Police should be authorized to use

their professional judgment as to the appropriate sources and timing of

an investigation. Often it is necessary to conduct an investigation so

that the target does not suspect that he or she is being investigated.

The requirement to obtain the information from the targeted individual

may put the suspect on notice of the investigation and thereby thwart

the investigation by enabling the suspect to destroy evidence and take

other action that would impede the investigation. This requirement may

also in some cases preclude TVA Police from gathering information and

evidence before interviewing an investigative target in order to

maximize the value of the interview by confronting the target with the

evidence or information. Moreover, in certain circumstances the subject

of an investigation cannot be required to provide information to

investigators and information must be collected from other sources.

Furthermore, it is often necessary to collect information from sources

other than the subject of the investigation to verify the accuracy of

the evidence collected

nting the target with the

evidence or information. Moreover, in certain circumstances the subject

of an investigation cannot be required to provide information to

investigators and information must be collected from other sources.

Furthermore, it is often necessary to collect information from sources

other than the subject of the investigation to verify the accuracy of

the evidence collected.

In addition, the statutory term ``to the greatest extent

practicable'' is a subjective standard, and it is impossible adequately

to define the term so that individual TVA Police investigators can

consistently apply it to the many fact patterns presented in TVA Police

investigations.

(f) 5 U.S.C. 552a(e)(3) requires an agency to inform each person

whom it asks to supply information, on a form that can be retained by

the person, of the authority under which the information is sought and

whether disclosure is mandatory or voluntary; of the principal purpose

for which the information is intended to be used; of the routine uses

which may be made of the information; and of the effects on the person,

if any, of not providing all or any part of the requested information.

The application of this provision could provide the subject of an

investigation with substantial information about the nature of that

investigation that could interfere with the investigation. Moreover,

providing such a notice to the subject of an investigation could

seriously impede or compromise an undercover investigation by revealing

its existence and could endanger the physical safety of confidential

sources, witnesses, and investigators by revealing their identities.

th substantial information about the nature of that

investigation that could interfere with the investigation. Moreover,

providing such a notice to the subject of an investigation could

seriously impede or compromise an undercover investigation by revealing

its existence and could endanger the physical safety of confidential

sources, witnesses, and investigators by revealing their identities.

(g) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a

Federal Register notice concerning its procedures for notifying an

individual at his/her request, if the system of records contains a

record pertaining to him/her, how to gain access to such a record and

how to contest its content. Since these systems of records are being

exempted from subsection (f) of the Act, concerning agency rules, and

subsection (d) of the Act, concerning access to records, these

requirements are inapplicable to the extent that these systems of

records will be exempted from these subsections. Although the system

would be exempt from these requirements, TVA Police has published

information concerning its notification, access, and contest procedures

because, under certain circumstances, TVA Police could decide it is

appropriate for an individual to have access to all or a portion of

his/her records in these systems of records.

(h) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish notice of

the categories of sources or records in the system of records. To the

extent that this provision is construed to require more detailed

disclosure than the broad,

generic information currently published in the system notice, an

exemption from this provision is necessary to protect the

confidentiality of sources of information, to protect privacy and

physical safety of witnesses and informants, and to avoid the

disclosure of investigative techniques and procedures. TVA Police will,

nevertheless, publish such a notice in broad generic terms.

the broad,

generic information currently published in the system notice, an

exemption from this provision is necessary to protect the

confidentiality of sources of information, to protect privacy and

physical safety of witnesses and informants, and to avoid the

disclosure of investigative techniques and procedures. TVA Police will,

nevertheless, publish such a notice in broad generic terms.

(i) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records

with such accuracy, relevance, timeliness, and completeness as is

reasonably necessary to assure fairness to the individual in making any

determination about the individual. Much the same rationale is

applicable to this proposed exemption as that set out previously in

item (d) (duty to maintain in agency records only ``relevant and

necessary'' information about an individual). While the TVA Police make

every effort to maintain records that are accurate, relevant, timely,

and complete, it is not always possible in an investigation to

determine with certainty that all the information collected is

accurate, relevant, timely, and complete. During a thorough

investigation, a trained investigator would be expected to collect

allegations, conflicting information, and information that may not be

based upon the personal knowledge of the provider. At the point of

determination to refer the matter to a prosecutive agency, for example,

that information would be in the system of records, and it may not be

possible until further investigation is conducted, or indeed in many

cases until after a trial (if at all), to determine the accuracy,

relevance, and completeness of some information. This requirement would

inhibit the ability of trained investigators to exercise professional

judgment in conducting a thorough investigation. Moreover, fairness to

affected individuals is assured by the due process they are accorded in

any trial or other proceeding resulting from the TVA Police

investigation.

t all), to determine the accuracy,

relevance, and completeness of some information. This requirement would

inhibit the ability of trained investigators to exercise professional

judgment in conducting a thorough investigation. Moreover, fairness to

affected individuals is assured by the due process they are accorded in

any trial or other proceeding resulting from the TVA Police

investigation.

(j) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable

efforts to serve notice on an individual when any record on such

individual is made available under compulsory legal process when such

process becomes a matter of public record. Compliance with this

provision could prematurely reveal and compromise an ongoing criminal

investigation to the target of the investigation and reveal techniques,

procedures, or evidence.

(k) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails

to comply with the requirements concerning access to records under

subsections (d)(1) and (3) of the Act; maintenance of records under

subsection (e)(5) of the Act; and any other provision of the Act, or

any rule promulgated thereunder, in such a way as to have an adverse

effect on an individual. Allowing civil lawsuits for alleged Privacy

Act violations by TVA Police would compromise TVA Police investigations

by subjecting the sensitive and confidential information in the TVA

Police Records to the possibility of inappropriate disclosure under the

liberal civil discovery rules. That discovery may reveal confidential

sources, the identity of informants, and investigative procedures and

techniques, to the detriment of the particular criminal investigation

as well as other investigations conducted by the TVA Police.

The pendency of such a suit would have a chilling effect on

investigations, given the possibility of discovery of the contents of

the investigative case file, and a Privacy Act lawsuit could therefore

become a ready strategic weapon used to impede TVA Police

investigations

, to the detriment of the particular criminal investigation

as well as other investigations conducted by the TVA Police.

The pendency of such a suit would have a chilling effect on

investigations, given the possibility of discovery of the contents of

the investigative case file, and a Privacy Act lawsuit could therefore

become a ready strategic weapon used to impede TVA Police

investigations. Furthermore, since, under the current and proposed

regulations, the system would be exempt from many of the Act's

requirements, it is unnecessary and contradictory to provide for civil

remedies from violations of those provisions in particular.

This proposed rule has been reviewed under Executive Order No.

12291 and has been determined not to be a ``major rule'' since it will

not have an annual effect on the economy of $100 million or more.

In addition, it has been determined that this proposed rule will

not have a significant economic impact on a substantial number of small

entities.

List of Subjects in 18 CFR Part 31

Administrative practice and procedure, Freedom of Information,

Privacy Act, Sunshine Act.

For the reasons set forth in the preamble, it is proposed to amend

18 CFR chapter XIII, part 1301, as follows:

PART 1301--PROCEDURES

1. The authority citation for part 1301 continues to read as

follows:

Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.

Sec. 1301.24 [Amended]

2. Section 1301.24(e) is added to read as follows:

* * * * *

(e) The TVA system TVA Police Records is exempt from subsections

easons set forth in the preamble, it is proposed to amend

18 CFR chapter XIII, part 1301, as follows:

PART 1301--PROCEDURES

1. The authority citation for part 1301 continues to read as

follows:

Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.

Sec. 1301.24 [Amended]

2. Section 1301.24(e) is added to read as follows:

* * * * *

(e) The TVA system TVA Police Records is exempt from subsections

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

(section 3 of the Privacy Act) and corresponding sections of these

rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is

exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G),

(H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2).

This system is exempt because application of these provisions might

alert investigation subjects to the existence or scope of

investigations, lead to suppression, alteration, fabrication, or

destruction of evidence, disclose investigative techniques or

procedures, reduce the cooperativeness or safety of witnesses, or

otherwise impair investigations.

William S. Moore,

Senior Manager, Administrative Services.

[FR Doc. 96-28905 Filed 11-8-96; 8:45 am]

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