Exemption of Records System Under the Privacy Act

DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 157-98]

Exemption of Records System 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 subsection (d) of the Privacy Act, 5 U.S.C.

552a. This system of records is the ``Freedom of Information/Privacy

Acts (FOI/PA) Records, (JUSTICE/OPR-002).'' Records in this system may

contain information which relates to official Federal investigations

and matters of law enforcement of the Office of Professional

Responsibility (OPR). Accordingly, where applicable, the exemptions are

necessary to avoid interference with the law enforcement functions of

OPR. Specifically, the exemptions are necessary to prevent subjects of

investigations from frustrating the investigatory process; preclude the

disclosure of investigative techniques; protect the identities and

physical safety of confidential sources and of law enforcement

personnel; ensure OPR's ability to obtain information from information

sources; protect the privacy of third parties; and safeguard classified

information as required by Executive Order 12958.

DATE: Submit any comments by January 11, 1998.

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

Information Management and Security Staff, Justice Management Division,

Department of Justice, Washington, DC 20530 (Room 850 WCTR Building).

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

feguard classified

information as required by Executive Order 12958.

DATE: Submit any comments by January 11, 1998.

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

Information Management and Security Staff, Justice Management Division,

Department of Justice, Washington, DC 20530 (Room 850 WCTR Building).

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

SUPPLEMENTARY INFORMATION: In the notice section of today's Federal

Register, the Department of Justice provides a description of the

``Freedom of Information/Privacy Acts (FOI/PA) Records (JUSTICE/OPR-

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. 601-612, it is hereby stated that the order

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

of small entities.''

List of Subjects in Part 16

Administrative Practices and Procedures, Courts, Freedom of

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

Dated: November 20, 1998.

Stephen R. Colgate,

Assistant Attorney General for Administration.

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 28 CFR part 16 as follows:

PART 16--[AMENDED]

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

Authority: 5 U.S.C. 301, 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 16.80 by adding paragraphs (c)

and (d) to read as follows:

Sec. 16.80 Exemption of Office of Professional Responsibility (OPR)

System--limited access.

* * * * *

RT 16--[AMENDED]

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

Authority: 5 U.S.C. 301, 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 16.80 by adding paragraphs (c)

and (d) to read as follows:

Sec. 16.80 Exemption of Office of Professional Responsibility (OPR)

System--limited access.

* * * * *

(c) The following system of records is exempted from 5 U.S.C.

552a(d).

(1) Freedom of Information/Privacy Act (FOI/PA) Records (JUSTICE/

OPR-002).

This exemption applies only to the extent that information in this

system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1),

and (k)(2). To the extent that information in a record pertaining to an

individual does not relate to national defense or foreign policy,

official Federal investigations and/or law enforcement matters, the

exemption does not apply. In addition, where compliance would not

appear to interfere with or adversely affect the overall law

enforcement process, the applicable exemption may be waived by OPR.

(d) Exemption from subsection (d) is justified for the following

reasons:

(1) 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 an investigation of an actual or potential

criminal, civil, or regulatory violation of the existence of that

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

obtained as to his 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

form the subject of an investigation of an actual or potential

criminal, civil, or regulatory violation of the existence of that

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

obtained as to his 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. These factors

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 such information could

disclose security-sensitive or confidential business information or

information that would constitute an unwarranted invasion of the

personnel privacy of third parties. Finally, access to the records

could result in the release of properly classified information which

would compromise the national defense or disrupt foreign policy.

Amendment of the records would interfere with ongoing investigations

and law enforcement activities and impose an enormous administrative

burden by requiring investigations to be continuously reinvestigated.

[FR Doc. 98-32866 Filed 12-9-98; 8:45 am]

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