Privacy Act Regulations

Part II

Department of Education

_______________________________________________________________________

34 CFR Part 5b

Privacy Act Regulations; Proposed Rule Privacy Act of 1974; Notice

Proposed Rules

DEPARTMENT OF EDUCATION

34 CFR Part 5b

RIN 1880-AA78

Privacy Act Regulations

AGENCY: Office of Inspector General, Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the Department's regulations

implementing the Privacy Act of 1974 (the Act). These amendments are

needed to modify existing departmental regulations to exempt from

certain provisions of the Act a new system of records known as the

Office of Inspector General (OIG) Hotline Complaints Files (System No.

18-10-0004) (ED/OIG Hotline Complaint Files). These exemptions are

needed to protect information regarding Hotline complaints from

disclosure to target individuals and others who could interfere with

the processing and disposition of the information and with law

enforcement activities relating to the Hotline complaints.

DATES: Comments must be received by the Department on or before January

8, 1998.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to Dianne Van Riper, U.S. Department of Education, 600

Independence Avenue, SW., Room 4106, Switzer Building, Washington, DC

20202-1530. Comments may also be sent through the Internet to:

C[email protected]

You must include the term ``Privacy Act'' in the subject line of

the electronic message.

To ensure that public comments have maximum effect in developing

the final regulations, the Department urges commenters to identify

clearly the specific section or sections of the proposed regulations

that each comment addresses and to arrange comments in the same order

as the proposed regulations.

ted]

You must include the term ``Privacy Act'' in the subject line of

the electronic message.

To ensure that public comments have maximum effect in developing

the final regulations, the Department urges commenters to identify

clearly the specific section or sections of the proposed regulations

that each comment addresses and to arrange comments in the same order

as the proposed regulations.

FOR FURTHER INFORMATION CONTACT: Dianne Van Riper. Telephone: (202)

205-8762. Individuals who use a telecommunications device for the deaf

(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-

877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through

Friday.

Individuals with disabilities may obtain this document in an

alternate format (e.g., Braille, large print, audiotape, or computer

diskette) on request to the contact person listed in the preceding

paragraph.

SUPPLEMENTARY INFORMATION:

Electronic Access to This Document

Anyone may view this document, as well as all other Department of

Education documents published in the Federal Register, in text or

portable document format (pdf) on the World Wide Web at either of the

following sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the pdf you must have the Adobe Acrobat Reader Program with

Search, which is available free at either of the previous sites. If you

have questions about using the pdf, call the U.S. Government Printing

Office toll free at 1-888-293-6498.

Anyone may also view these documents in text copy only on an

electronic bulletin board of the Department. Telephone: (202) 219-1511

or, toll free, 1-800-222-4922. The documents are located under Option

G--Files/Announcements, Bulletins and Press Releases.

Note: The official version of this document is the document

published in the Federal Register.

General

fice toll free at 1-888-293-6498.

Anyone may also view these documents in text copy only on an

electronic bulletin board of the Department. Telephone: (202) 219-1511

or, toll free, 1-800-222-4922. The documents are located under Option

G--Files/Announcements, Bulletins and Press Releases.

Note: The official version of this document is the document

published in the Federal Register.

General

The proposed exemptions are authorized under the Privacy Act, 5

U.S.C. 552a(j)(2) and (k)(2). Under subsection (j)(2) of the Act, the

Secretary through rulemaking may exempt from certain provisions of the

Act those systems of records maintained by a component of the

Department that performs as its principal function any activity

pertaining to the enforcement of criminal laws, if the information in

the system is compiled for the purpose of criminal investigation. Under

5 U.S.C. 552a(k)(2), the Secretary through rulemaking may exempt from a

more limited number of Privacy Act requirements a system of records

that contains investigatory materials compiled for civil and

administrative law enforcement purposes.

The OIG is a component of the Department that performs as its

principal function investigations into violations of criminal law in

connection with the Department's programs and operations, pursuant to

the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3. The ED/

OIG Hotline Complaint Files system of records falls within the scope of

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

criminal investigation. The proposed (j)(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 OIG in processing Hotline information; would limit certain

requirements regarding notice to individuals; and would exempt the

system of records from civil remedies for violations of the Act

ation. The proposed (j)(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 OIG in processing Hotline information; would limit certain

requirements regarding notice to individuals; and would exempt the

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

exemptions are necessary primarily to avoid premature disclosures of

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

a criminal investigation, that may compromise or impede the disposition

of Hotline complaints and allegations.

The proposal to add (k)(2) exemptions reflects recognition that

certain records in the Hotline system may fall outside the (j)(2)

exemptions because they relate primarily to civil and administrative

law enforcement, such as allegations of misconduct by Department

employees in violation of the Standards of Conduct. Nevertheless, the

Act recognizes that these records may also properly be exempted from

certain disclosure and notice requirements, as well as restrictions on

the manner in which OIG may collect information, in order to avoid

compromising, impeding, or interfering with the disposition of those

Hotline complaints.

A more complete explanation of each proposed exemption follows.

A. Exemptions Pursuant to (j)(2)

The Secretary has determined that, to the extent the ED/OIG Hotline

Complaint Files consist of information compiled for the purpose of

criminal investigation, the system of records should be exempt from the

following provisions of the Privacy Act and corresponding departmental

regulations, as authorized under subparagraph (j)(2) of the Privacy

Act, for the following reasons:

1. 5 U.S.C. 552a(c)(3) and 34 CFR 5b.9(a)(1) require an agency to

make the accounting of disclosures from a system of records available

to the individual named in the record at the individual's request

ld be exempt from the

following provisions of the Privacy Act and corresponding departmental

regulations, as authorized under subparagraph (j)(2) of the Privacy

Act, for the following reasons:

1. 5 U.S.C. 552a(c)(3) and 34 CFR 5b.9(a)(1) require an agency to

make the accounting of disclosures from a system of records available

to the individual named in the record at the individual's request. If

the OIG made such an accounting available to target or source

individuals, the availability of that information could seriously

impede or compromise the processing of the Hotline complaint and any

resulting criminal investigation by prematurely revealing its existence

and nature, compromise or interfere with witnesses or make witnesses

reluctant to cooperate with the investigators, and lead to suppression,

alteration, or destruction of evidence.

2. 5 U.S.C. 552a(c)(4) and 34 CFR 5b.7(c) and 5b.8(b) require an

agency to inform parties to whom records have been disclosed about any

correction of records or a subject individual's

statement disputing information in the record. Because the Secretary

also proposes to exempt this system of records from the requirements to

correct records or to permit an individual to put in his or her records

a statement disagreeing with a decision not to correct records, the

requirement to inform parties who have received the record is not

applicable.

3. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)

and (c), 5b.7, and 5b.8 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

statement disagreeing with a decision not to correct records, the

requirement to inform parties who have received the record is not

applicable.

3. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)

and (c), 5b.7, and 5b.8 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 Hotline complaints, permitting them to contest the

complaint contents, and allowing them to force changes to be made to

the information contained in those records seriously interfere with and

compromise the OIG's ability to conduct an orderly and unbiased

processing of Hotline complaints and would impede the conduct of

resulting investigations.

4. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to

maintain in its records only ``relevant and necessary'' information

about an individual. Because it is not always possible to detect the

relevance or necessity of each piece of information reported to the

Hotline or collected in the preliminary phase of an investigation, this

provision is inappropriate for Hotline complaints. In some cases, it is

only after the information is evaluated in light of other evidence that

its relevance and necessity is clear. In other cases, what may appear

to be a relevant and necessary piece of information may become

irrelevant in light of further inquiry or investigation. Also, the

Hotline 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,

the OIG 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.

5. 5 U.S.C

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,

the OIG 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.

5. 5 U.S.C. 552a(e)(2) and 34 CFR 5b.4(a)(3) require an agency to

collect information from the subject individual of the investigation.

The requirement that OIG collect information ``to the greatest extent

practicable'' from the target individual is not appropriate for the

Hotline Complaint Files system of records where allegations are

volunteered to OIG. To determine the proper disposition of the

complaint, it is often necessary to conduct an inquiry so that the

target individual does not suspect that he or she is being

investigated. The requirement to obtain information from targeted

individual may alert the suspect of an investigation resulting from a

Hotline complaint and thwart the investigation by enabling the suspect

to destroy evidence or take another avoidance action.

6. 5 U.S.C. 552a(e)(3) and 34 CFR 5b.4(a)(3) require an agency to

provide a Privacy Act notice in the collection of information from

individuals. Giving notice to a complainant would impair the OIG's

ability to collect candid and forthright information of criminal

wrongdoing from Hotline sources.

7. 5 U.S.C. 552a(e)(4)(G), (H), and (I) requires an agency to

publish notice of procedures for notification, access, and correction

of records and notice of the categories of sources of records in the

system. These requirements are unnecessary, since this system of

records will be exempt from the underlying duties imposed by the

Privacy Act. An exemption from (I) is required to protect the

confidentiality of sources of information and to protect the privacy

and physical safety of witnesses and informants.

8. 5 U.S.C

ion

of records and notice of the categories of sources of records in the

system. These requirements are unnecessary, since this system of

records will be exempt from the underlying duties imposed by the

Privacy Act. An exemption from (I) is required to protect the

confidentiality of sources of information and to protect the privacy

and physical safety of witnesses and informants.

8. 5 U.S.C. 552a(e)(5) requires an agency to maintain records with

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

necessary to assure fairness. The OIG makes every effort to maintain

records that are accurate, relevant, timely, and complete; however, it

is not always possible in processing a Hotline complaint to determine

with certainty that all the information collected is accurate,

relevant, timely, and complete.

9. 5 U.S.C. 552a(e)(8) requires an agency to make reasonable

efforts to serve notice on an individual if any record on that

individual is made available under compulsory legal process if that

process becomes a matter of public record. If the OIG complied with

this provision, it could prematurely reveal and compromise an ongoing

criminal investigation that resulted from a Hotline complaint.

10. 5 U.S.C. 552a(g) requires an agency to be subjected to civil

remedies from an individual for alleged violations of the Privacy Act.

Allowing civil lawsuits for alleged Privacy Act violations would

compromise the orderly and objective processing of Hotline complaints

and the conduct of resulting criminal investigations by subjecting the

sensitive and confidential information in the ED/OIG Hotline Complaint

Files to the possibility of premature disclosure under the liberal

civil discovery rules. That discovery may reveal confidential sources,

the identity of informants, and investigative procedures and

techniques.

B. Exemptions Pursuant to (k)(2)

plaints

and the conduct of resulting criminal investigations by subjecting the

sensitive and confidential information in the ED/OIG Hotline Complaint

Files to the possibility of premature disclosure under the liberal

civil discovery rules. That discovery may reveal confidential sources,

the identity of informants, and investigative procedures and

techniques.

B. Exemptions Pursuant to (k)(2)

The Secretary has determined that, to the extent the ED/OIG Hotline

Complaint Files consist of investigatory material compiled for law

enforcement purposes, the system of records should be exempt from the

following provisions of the Privacy Act and corresponding departmental

regulations, as authorized by subparagraph (k)(2) of the Privacy Act,

for the following reasons:

1. 5 U.S.C. 552a(c)(3) and CFR 5b.9(c)(3) require an agency to make

the accounting of disclosures from a system of records available to the

individual named in the record at the individual's request. If the OIG

made such an accounting available to target or source individuals, the

availability of that information could seriously impede or compromise

the processing of the Hotline complaint and any resulting criminal

investigation by prematurely revealing its existence and nature,

compromise or interfere with witnesses or make witnesses reluctant to

cooperate with the investigators, and lead to suppression, alteration,

or destruction of evidence.

2. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)

and (c), 5b.7, and 5b.8 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

ith witnesses or make witnesses reluctant to

cooperate with the investigators, and lead to suppression, alteration,

or destruction of evidence.

2. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)

and (c), 5b.7, and 5b.8 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 Hotline complaints, permitting them to contest the

complaint contents, and allowing them to force changes to be made to

the information contained therein would seriously interfere with and

compromise the OIG's ability to conduct an orderly and unbiased

processing of Hotline complaints and would impede the conduct of

resulting investigations.

3. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to

maintain in its records only ``relevant and necessary'' information

about an individual. Because it is not always possible to detect the

relevance or necessity of each piece of information reported to the

Hotline or collected in the preliminary phase of an investigation, this

provision is inappropriate for Hotline complaints. In some cases, it is

only after the information is evaluated in light of other evidence that

its relevance and necessity is clear. In other cases, what may appear

to be a relevant and necessary piece of information may

become irrelevant in light of further inquiry or investigation. Also,

the Hotline 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, the OIG 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.

4

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, the OIG 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.

4. 5 U.S.C.552a(e)(4)(G), (H), and (I) requires an agency to

publish notice of procedures for notification, access, and correction

of records and notice of the categories of sources of records in the

system. These requirements are unnecessary, since this system of

records will be exempt from the underlying duties imposed by the

Privacy Act. An exemption from (I) is required to protect the

confidentiality of sources of information and to protect the privacy

and physical safety of witnesses and informants.

Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations

that are easy to understand.

The Secretary invites comments on how to make these proposed

regulations easier to understand, including answers to questions such

as the following: (1) Are the requirements in the proposed regulations

clearly stated? (2) Do the proposed regulations contain technical terms

or other wording that interferes with their clarity? (3) Does the

format of the proposed regulations (grouping and order of sections, use

of headings, paragraphing, etc.) aid or reduce their clarity? Would the

regulations be easier to understand if they were divided into more (but

shorter) sections? (A ``section'' is preceded by the symbol ``Sec. ''

and a numbered heading; for example, Sec

s

or other wording that interferes with their clarity? (3) Does the

format of the proposed regulations (grouping and order of sections, use

of headings, paragraphing, etc.) aid or reduce their clarity? Would the

regulations be easier to understand if they were divided into more (but

shorter) sections? (A ``section'' is preceded by the symbol ``Sec. ''

and a numbered heading; for example, Sec. 5b.11 Exempt systems.) (4) Is

the description of the proposed regulations in the Supplementary

Information section of this preamble helpful in understanding the

proposed regulations? How could this description be more helpful in

making the proposed regulations easier to understand? (5) What else

could the Department do to make the proposed regulations easier to

understand?

A copy of any comments that concern how the Department could make

these proposed regulations easier to understand should be sent to

Stanley M. Cohen, Regulations Quality Officer, U.S. Department of

Education, 600 Independence Avenue, S.W. (Room 5100, FB-10B),

Washington, D.C. 20202-2241.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not

have a significant economic impact on a substantial number of small

entities.

These proposed regulations involve procedural rights of individuals

under the Privacy Act. Individuals are not considered to be

``entities'' under the Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

These proposed regulations have been examined under the Paperwork

Reduction Act of 1995 and have been found to contain no information

collection requirements.

Intergovernmental Review

This program is not subject to the requirements of Executive Order

12372 and the regulations in 34 CFR Part 79.

Invitation To Comment

'' under the Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

These proposed regulations have been examined under the Paperwork

Reduction Act of 1995 and have been found to contain no information

collection requirements.

Intergovernmental Review

This program is not subject to the requirements of Executive Order

12372 and the regulations in 34 CFR Part 79.

Invitation To Comment

Interested persons are invited to submit comments and

recommendations regarding these proposed regulations. All comments

submitted in response to these proposed regulations will be available

for public inspection, during and after the comment period, in Room

5624, GSA Regional Office Building 3, Washington, D.C., between the

hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday

of each week except Federal holidays.

On request the Department supplies an appropriate aid, such as a

reader or print magnifier, to an individual with a disability who needs

assistance to review the comments or other documents in the public

rulemaking docket for these proposed regulations. An individual with a

disability who wants to schedule an appointment for this type of aid

may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD

may call the Federal Information Relay Service at 1-800-877-8339

between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.

To assist the Department in complying with the specific

requirements of Executive Order 12866 and its overall requirement of

reducing regulatory burden, the Secretary invites comments on whether

there may be further opportunities to reduce any regulatory burdens

found in these proposed regulations.

List of Subjects in 34 CFR Part 5b

Privacy.

Dated: November 18, 1997.

Richard W. Riley,

Secretary of Education.

(Catalogue of Federal Domestic Assistance Number does not apply)

The Secretary proposes to amend Part 5b of Title 34 of the Code of

Federal Regulations as follows:

PART 5b--PRIVACY ACT REGULATIONS