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(c) When such determination has been made, the particular document or portion of document to which it relates shall thereafter be available upon request for inspection and copying: Provided however, That use of nondiscloseable records or information from such records for authorized program purposes, including law enforcement purposes and litigation is not a disclosure within the meaning of this section.
Subpart G Administrative Review
$ 5.80 Review of denial of a record.
This subpart provides for the review of a denial, pursuant to $5.53, of a written request for inspection or copying of a record.
(a) Intra-agency and inter-agency communications. Communications within the Department other than those described in $5.72(d) or between the Department or any other agency within the meaning of 5 U.S.C. 551(1) and
52(e), to the extent they reflect the views or judgment of the writer or of other individuals. If disclosure of any factual portion of the communication would indicate the views or judgment being withheld from disclosure, then such factual portions will also be withheld.
(b) Investigatory files. Investigatory files compiled for law enforcement purposes to the extent that production of such records would (1) interfere with enforcement proceedings, (2) deprive a person of a right to a fair trial or an impartial adjudication, (3) constitute an unwarranted invasion of personal privacy, (4) disclose the identity of a confidential source, and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (5) disclose investigative techniques and procedures or (6) endanger the life or physical safety of law enforcement personnel. For the purpose of this section enforcement action means any authorized action intended to abate, prevent, counteract, deter, or terminate violations of law and includes action involving possible civil, criminal, or administrative sanctions whether such sanctions involve adversary proceedings or other procedures, such as termination of benefits, protective measures, etc.
$5.81 Time for initiation of request for
review. A person whose request has been denied may initiate a review by filing a request for review within (a) 30 days of receipt of the determination to deny or (b) within 30 days of receipt of records which are in partial response to his request if a portion of a request is granted and a portion denied, whatever is later.
$5.82 By whom review is made.
(a) Requests for review of denials should be addressed to the Secretary.
$5.83 Contents of request for review.
The request for review shall include a copy of the written request and the denial.
$5.84 Consideration on review.
$ 5.74 Further disclosure.
Review shall be considered on the basis of the written record including any written argument submitted by the requester.
$5.85 Decisions on review.
(a) The Secretary may in particular instances, except where prohibited by law, disclose documents or portions of documents described in $5.73 if he determines that disclosure is in the public interest and is consistent with obligations of confidentiality and administrative necessity.
(b) In making such a determination, consideration may be given to the Department's responsibilities under law for dissemination to the public of information relating to education.
(a) Decisions on review shall be in writing within 20 working days from receipt of the request for review. Extension of the time limit may be granted to the extent that the maximum 10day limit on extensions has not been exhausted on the initial determination.
Such extension may only be granted for the reasons enumerated in $5.51(d).
(b) The decision, which constitutes final action of the Department, if adverse to the requester shall be in writing, stating the reasons for the decision, and advising the requester of the
right to judicial review of such decision.
(c) Failure to comply with time limits set forth in $5.51 or in this paragraph constitutes an exhaustion of the requester's administrative remedies.
APPENDIX TO PART 5 [The following are some examples of specific records (or specific information relating to personnel, programs, or activities of this
Department) listed according to whether or not they are available upon request for inspection and copying]
PART 5bPRIVACY ACT
Sec. 56.1 Definitions. 5b.2 Purpose and scope. 56.3 Policy. 5b.4 Maintenance of records. 5b.5 Notification of or access to records. 5b.7 Procedures for correction or amend
ment of records. 5b.8 Appeals of refusals to correct or amend
records. 5b.9 Disclosure of records. 5b.10 Parents and guardians. 5b.11 Exempt systems. 5b.12 Contractors. 55.13 Fees.
APPENDIX A TO PART 5b EMPLOYEE STAND
ARDS OF CONDUCT
PLICABLE TO MORE THAN ONE SYSTEM OF
AUTHORITY: 5 U.S.C. 301, 5 U.S.C. 552a.
SOURCE: 45 FR 30808, May 9, 1980, unless otherwise noted.
$ 5b.1 Definitions.
As used in this part:
(a) Access means availability of a record to a subject individual.
(b) Agency means the Department of Education.
(c) Department means the Department of Education.
(d) Disclosure means the availability or release of a record to anyone other than the subject individual.
(e) Individual means a living person who is a citizen of the United States or an alien lawfully admitted for permanent residence. It does not include persons such as sole proprietorships, partnerships, or corporations. A business firm which is identified by the name of one or more persons is not an individual within the meaning of this part.
(f) Maintain means to maintain, collect, use, or disseminate when used in
, connection with the term "record”; and, to have control over or responsibility for a system of records when used in connection with the term “system of records."
(g) Notification means communication to an individual whether he is a subject individual.
(h) Record means any item, collection, or grouping of information about an individual that is maintained by the
Department, including but not limited to the individual's education, financial transactions, medical history,
, and criminal or employment history and that contains his name, or an identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. When used in this part, record means only a record which is in a system of records.
(i) Responsible Department official means that officer who is listed in a notice of a system of records as the system manager for a given system of records or another individual listed in the notice of a system of records to whom requests may be made, or the designee of either such officer or individual.
(j) Routine use means the disclosure of a record outside the Department, without the consent of the subject individual, for a purpose which is compatible with the purpose for which the record was collected. It includes disclosures required to be made by statute other than the Freedom of Information Act, 5 U.S.C. 552. It does not include disclosures which are permitted to be made without the consent of the subject individual which are not compatible with the purpose for which it was collected such as disclosures to the Bureau of the Census, the General ACcounting Office, or to Congress.
(k) Secretary means the Secretary of Education.
(1) Statistical record means a record maintained for statistical research or reporting purposes only and not maintained to make determinations about a particular subject individual.
(m) Subject individual means that individual to whom a record pertains.
(n) System of records means any group of records under the control of the Department from which a record is retrieved by personal identifier such as the name of the individual, number, symbol or other unique retriever assigned to the individual. Single records or groups of records which are not retrieved by a personal identifier are not part of a system of records. Papers maintained by individual employees of the Department which are prepared, maintained, or discarded at the discretion of the employee and which are not subject to the Federal Records Act, 44 U.S.C. 2901, are not part of a system of records; Provided, That such personal papers are not used by the employee or the Department to determine any rights, benefits, or privileges of individuals.
[45 FR 30808, May 9, 1980; 45 FR 37426, June 3, 1980]
(2) Make available to the general public records which are retrieved by a subject individual's name or other personal identifier or make available to the general public records which would otherwise not be available to the general public under the Freedom of Information Act, 5 U.S.C. 552, and part 5 of this title.
(3) Govern the maintenance or disclosure of, notification of or access to, records in the possession of the Department which are subject to regulations of another agency, such as personnel records subject to the regulations of the Office of Personnel Management.
(4) Apply to grantees, including State and local governments or subdivisions thereof, administering federally funded programs.
(5) Make available records compiled by the Department in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable constitutional principles, rules of discovery, and applicable regulations of the Department.
$ 5b.2 Purpose and scope.
(a) This part implements section 3 of the Privacy Act of 1974, 5 U.S.C. 552a (hereinafter referred to as the Act), by establishing agency policies and procedures for the maintenance of records. This part also establishes agency policies and procedures under which a subject individual may be given notification of or access to a record pertaining to him and policies and procedures under which a subject individual may have his record corrected or amended if he believes that his record is not accurate, timely, complete, or relevant or necessary to accomplish a Department function.
(b) All components of the Department are governed by the provisions of this part. Also governed by the provisions of this part are advisory committees and councils within the meaning of the Federal Advisory Committee Act which provide advice to (1) any official or component of the Department or (2) the President and for which the Department has been delegated responsibility for providing services.
(c) Employees of the Department governed by this part include all regular and special government employees of the Department; experts and consultants whose temporary (not in excess of 1 year) or intermittent services have been procured by the Department by contract pursuant to 3109 of title 5, United States Code; volunteers where acceptance of their services are authorized by law; those individuals performing gratuitous services as permitted under conditions prescribed by the Office of Personnel Management; and, participants in work-study or training programs.
(d) This part does not:
(1) Make available to a subject individual records which are not retrieved by that individual's name or other personal identifier.
It is the policy of the Department to protect the privacy of individuals to the fullest extent possible while nonetheless permitting the exchange of records required to fulfill the administrative and program responsibilities of the Department, and responsibilities of the Department for disclosing records which the general public is entitled to have under the Freedom of Information Act, 5 U.S.C. 552, and part 5 of this title.
$ 55.4 Maintenance of records.
(a) No record will be maintained by the Department unless:
(1) It is relevant and necessary to accomplish a Department function required to be accomplished by statute or Executive Order;
(2) It is acquired to the greatest extent practicable from the subject individual when maintenance of the record may result in a determination about the subject individual's rights, benefits or privileges under Federal programs;
(3) The individual providing the record is informed of the authority for providing the record (including whether the providing of the record is mandatory or voluntary, the principal purpose for maintaining the record, the routine uses for the record, what effect his refusal to provide the record may have on him), and if the record is not required by statute or Executive Order to be provided by the individual, he agrees to provide the record.
(b) No record will be maintained by the Department which describes how an individual exercises rights guaranteed by the First Amendment unless expressly authorized (1) by statute, or (2) by the subject individual, or (3) unless pertinent to and within the scope of an authorized law enforcement activity.
(a) Times, places, and manner of requesting notification of or access to a record. (1) Any individual may request notification of a record. He may at the same time request access to any record pertaining to him. An individual may be accompanied by another individual of his choice when he requests access to a record in person; Provided, That he affirmatively authorizes the presence of such other individual during any discussion of a record to which access is requested.
(2) An individual making a request for notification of or access to a record shall address his request to the responsible Department official and shall verify his identity when required in accordance with paragraph (b)(2) of this section. At the time the request is made, the individual shall specify which systems of records he wishes to have searched and the records to which he wishes to have access. He may also request that copies be made of all or any such records. An individual shall also provide the responsible Department official with sufficient particulars to enable such Official to distinguish between records on subject individuals with the same name. The necessary particulars are set forth in the notices of systems of records.
(3) An individual who makes a request in person may leave with any re
sponsible Department official a request for notification of or access to a record under the control of another responsible Department official; Provided, That the request is addressed in writing to the appropriate responsible Department official.
(b) Verification of identity—(1) When required. Unless an individual, who is making a request for notification of or access to a record in person, is personally known to the responsible Department official, he shall be required to verify his identity in accordance with paragraph (b)(2) of this section if:
(i) He makes a request for notification of a record and the responsible Department official determines that the mere disclosure of the existence of the record would be a clearly unwarranted invasion of privacy if disclosed to someone other than the subject individual; or,
(ii) He makes a request for access to a record which is not required to be disclosed to the general public under the Freedom of Information Act, 5 U.S.C. 552, and part 5 of this title.
(2) Manner of verifying identity. (i) An individual who makes a request in person shall provide to the responsible Department official at least one piece of tangible identification such as a driver's license, passport, alien or voter registration card, or union card to verify his identity. If an individual does not have identification papers to verify his identity, he shall certify in writing that he is the individual who he claims to be and that he understands that the knowing and willful request for or acquisition of a record pertaining to an individual under false pretenses is a criminal offense under the Act subject to a $5,000 fine.
(ii) Except as provided in paragraph (b)(2)(v) of this section, an individual who does not make a request in person shall submit a notarized request to the responsible Department official to verify his identity or shall certify in his request that he is the individual who he claims to be and that he understands that the knowing and willful request for or acquisition of a record pertaining to an individual under false pretenses is a criminal offense under the Act subject to a $5,000 fine.