Exemption of Records Systems Under the Privacy Act

DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 130-97]

Exemption of Records Systems Under the Privacy Act

agency: Department of Justice.

action: Proposed rule.

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summary: The Department of Justice proposes to exempt a Privacy Act

system of records from subsections (c)(3) and (4); (d); (e)(1), (2),

(3), (5) and (8); and (g) of the Privacy Act, 5 U.S.C. 552a. This

system of records is maintained by the Immigration and Naturalization

Service (INS) and is entitled ``Office of Internal Audit Investigations

Index and Records, JUSTICE/INS-002.'' Information in this system

relates to official Federal investigations and law enforcement matters

of the Office of Internal Audit of the INS, pursuant to the Inspector

General Act of 1978, 5 U.S.C. App., as amended by the Inspector General

Act amendments of 1988. The exemptions are necessary to avoid

interference with certain internal law enforcement functions of the INS

for which records falling within the scope of subsections (j)(2) and

(k)(2) may be generated. Specifically, the exemptions are necessary to

prevent subjects of investigations from frustrating the investigatory

process; to preclude the disclosure of investigative techniques; to

protect the identities and physical safety of confidential informants

and of law enforcement personnel; to ensure OIA's ability to obtain

information from information sources; and to protect the privacy of

third parties.

dates: Submit any comments by April 7, 1997.

addresses: Address all comments to Patricia E. Neely, Program Analyst,

Information Management and Security Staff, Justice Management Division,

Department of Justice, Washington, D.C. 20530 (Room 850, WCTR

Building).

for further information contact: Patricia E. Neeley 202-616-0178.

information sources; and to protect the privacy of

third parties.

dates: Submit any comments by April 7, 1997.

addresses: Address all comments to Patricia E. Neely, Program Analyst,

Information Management and Security Staff, Justice Management Division,

Department of Justice, Washington, D.C. 20530 (Room 850, WCTR

Building).

for further information contact: Patricia E. Neeley 202-616-0178.

supplementary information: In the notice section of today's Federal

Register, the Department of Justice provides a description of the

``Office of Internal Audit Investigations Index and Records, JUSTICE/

INS-002.''

This order relates to individuals rather than small business

entities. Nevertheless, pursuant to the requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601-602, it is hereby stated that the order

will not have ``a significant economic impact on a substantial number

of small entities.''

List of Subjects in Part 16

Administrative practices and procedures, Courts, Freedom of

Information Act, Government in the Sunshine Act, and the Privacy Act.

Pursuant to the authority vested in the Attorney General by 5

U.S.C. 552a and delegated to me by Attorney General Order No. 793-78,

it is proposed to amend part 16, of title 28 of the Code of Federal

Regulations as set forth below.

Dated: February 11, 1997.

Stephen R. Colgate,

Assistant Attorney General for Administration.

1. The authority for part 16 continues to read as follows:

Authority: 5 U.S.C. 401, 552, 552a, 552b(g), 553; 18 U.S.C.

4203(a)(1); 28 U.S.C. 509, 510, 534, 31 U.S.C. 3717, 9701.

2. It is proposed to amend 28 CFR 16.99 by adding paragraphs (g)

and (h) to read as follows:

Sec. 16.99 Exemption of the Immigration and Naturalization Service

Systems-limited access.

* * * * *

ncerning the existence and nature of the investigation,

the fact that individuals are subjects of the investigation, and

present a serious impediment to law enforcement.

(2) From subsection (c)(4) to the extent that the exemption from

subsection (d) is applicable. Subsection (c)(4) will not be applicable

to the extent that records in the system are properly withholdable

under subsection (d).

(3) From the access and amendment provisions of subsection (d)

because access to the records contained in this system of records could

inform the subject of a criminal or civil investigation of the

existence of that investigation; of the nature and scope of the

information and evidence obtained as to their activities; of the

identity of confidential sources, witnesses and law enforcement

personnel; and of information that may enable the subject to avoid

detection or apprehension. Such disclosures would present a serious

impediment to effective law enforcement where they prevent the

successful completion of the investigation; endanger the physical

safety of confidential sources, witnesses, and law enforcement

personnel; and/or lead to the improper influencing of witnesses, the

destruction of evidence, or the fabrication of testimony. In addition,

granting access to these records could result in a disclosure that

would constitute an unwarranted invasion of the privacy of third

parties.

Amendment of the records would interfere with ongoing investigations

and law enforcement activities and impose an impossible administrative

burden by requiring investigations to be continuously reinvestigated.

the fabrication of testimony. In addition,

granting access to these records could result in a disclosure that

would constitute an unwarranted invasion of the privacy of third

parties.

Amendment of the records would interfere with ongoing investigations

and law enforcement activities and impose an impossible administrative

burden by requiring investigations to be continuously reinvestigated.

(4) From subsection (e)(1) because in the course of criminal or

civil investigations, the Immigration and Naturalization Service often

obtains information concerning the violation of laws other than those

relating to violations over which INS has investigative jurisdiction.

In the interests of effective law enforcement, it is necessary that INS

retain this information since it can aid in establishing patterns of

criminal activity and provide valuable leads for those law enforcement

agencies that are charged with enforcing other segments of the criminal

law.

(5) From subsection (e)(2) because in a criminal investigation, the

requirement that information be collected to the greatest extent

possible from the subject individual would present a serious impediment

to law enforcement in that the subject of the investigation would be

placed on notice of the existence of the investigation and would

therefore be able to avoid detection or apprehension.

(6) From subsection (e)(3) because the requirement that individuals

supplying information be provided with a form stating the requirements

of subsection (e)(3) would constitute a serious impediment to criminal

law enforcement in that it could compromise the existence of a

confidential investigation, reveal the identify of confidential sources

of information and endanger the life or physical safety of confidential

informants.

the requirement that individuals

supplying information be provided with a form stating the requirements

of subsection (e)(3) would constitute a serious impediment to criminal

law enforcement in that it could compromise the existence of a

confidential investigation, reveal the identify of confidential sources

of information and endanger the life or physical safety of confidential

informants.

(7) From subsection (e)(5) because in the collection of information

for criminal law 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 and the accuracy of such information can only be

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

would restrict the ability of trained investigators and intelligence

analysts to exercise their judgment in reporting on investigations and

impede the development of criminal intelligence necessary for effective

law enforcement.

(8) From subsection (e)(8) because the individual notice

requirements of subsection (e)(8) could present a serious impediment to

criminal law enforcement as this could interfere with the Immigration

and Naturalization Service's ability to issue administrative subpoenas

and could reveal investigative techniques and procedures.

(9) From subsection (g) for those portions of this system of

records that were compiled for criminal law enforcement purposes and

which are subject to exemption from the access provisions of subsection

(d) pursuant to subsection (j)(2).

[FR Doc. 97-5663 Filed 3-6-97; 8:45 am]

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