Exemption of Records System Under the Privacy Act

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

28 CFR Part 16

[AAG/A Order No. 174-99]

Exemption of Records System Under the Privacy Act

AGENCY: Executive Office for Immigration Review, 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, the ``Practitioner Complaint/Disciplinary

Files,'' (Justice/EOIR-003) may contain information which relates to

official Federal investigations and matters of law and regulatory

enforcement of the Executive Office for Immigration Review (EOIR).

Accordingly, where applicable, the exemptions are necessary to avoid

interference with the law and regulatory enforcement functions of EOIR.

Specifically, the exemptions are necessary for the following: To

prevent subjects of investigations from frustrating the investigatory

process; to preclude the disclosure of investigative techniques; to

impede the identification of confidential sources and of law and

regulatory enforcement personnel, as well as to protect their physical

safety; to ensure EOIR's ability to obtain facts from information

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

classified information as required by Executive Order 12958.

DATES: Submit any comments by October 12, 1999.

ADDRESSES: Address any comments to Mary E. Cahill, Management and

Planning Staff, Justice Management Division, Department of Justice,

Washington, DC 20530 (Room 1400, National Place Building).

FOR FURTHER INFORMATION CONTACT: Mary E. Cahill, (202) 307-1823.

SUPPLEMENTARY INFORMATION: In the notice section of todays' Federal

Register, the Department of Justice provides a description of the

``Practitioner Complaint/Disciplinary Files (JUSTICE/EOIR 003).''

Regulatory Flexibility Act

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.''

Executive Order 12988

The rule complies with the applicable standards provided in

sections 3(a) and 3(b)(2) of Executive Order No. 12988.

Executive Order 12866

The Attorney General has determined that this rule is not a

significant regulatory action under Executive Order No. 12966, and

accordingly, this rule has not been reviewed by the Office of

Management and Budget.

List of Subjects in Part 16

Administrative Practices and Procedures, Courts, Freedom of

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

Dated: August 25, 1999.

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 29 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 16.83 by adding paragraphs (c)

and (d) to read as follows:

Sec. 16.83 Exemption of the Executive Office for Immigration Review

System--limited access.

* * * * *

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

552a(d).

(1) Practitioner Complaint/Disciplinary Files (JUSTICE/EOIR 003).

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 or

regulatory enforcement process, the applicable exemption may be waived

by the Executive Office for Immigration Review.

(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 the investigation of an actual or potential

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

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

obtained as to the subject's 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 and regulatory 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 personal 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. 99-23602 Filed 9-9-99; 8:45 am]

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