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$ 16.14 Specific exemptions.

the date, nature, and purpose of each (a) Exemptions under 5 U.S.C.

disclosure of a record and the name and 552a(k)(2)-(1) Systems of records af

address of the recipient. Accounting for fected.

each disclosure would alert the sub

jects of an investigation to the existEPA-2 General Personnel Records-EPA.

ence of the investigation and the fact TEPA 4 OIG Criminal Investigative Index

that they are subjects of the investigaand Files EPA/OIG.

tion. The release of such information EPA-5 OIG Personnel Security Files—EPA/ OIG.

to the subjects of an investigation (EPA-17 NEIC Criminal Investigative Index would provide them with significant inand Files- EPA/NEIC/OCI.

formation concerning the nature of the EPA-30 OIG Hotline Allegation System, investigation, and could seriously imEPA/OIG.

pede or compromise the investigation, (2) Authority. Under 5 U.S.C. endanger the physical safety of con552a(k)(2), the head of any agency may

fidential sources, witnesses, law enby rule exempt any system of records forcement personnel and their families, within the agency from certain provi and lead to the improper influencing of sions of the Privacy Act of 1974, if the witnesses, the destruction of evidence, system of records is investigatory ma- or the fabrication of testimony. terial compiled for law enforcement

(ii) 5 U.S.C. 552a(d) requires an agenpurposes, other than material within cy to permit an individual to gain acthe scope of subsection (j)(2).

cess to records pertaining to him, to (3) Scope of exemption. (i) The systems request amendment to such records, to of records identified in $16.14(a)(1) are request a review of an agency decision exempted from the following provisions not to amend such records, and to conof the Privacy Act of 1974, subject to test the information contained in such the limitations set forth in 5 U.S.C. records. Granting access to records in 552a(k)(2): 5 U.S.C. 552a (c)(3); (d); (e)(1), these systems of records could inform (4)(G), (H), and (I); and (f).

the subject of an investigation of an (ii) An individual is “denied any actual or potential criminal violation right, privilege, or benefit that he of the existence of that investigation, would otherwise be entitled by Federal of the nature and scope of the informalaw, or for which he would otherwise be tion and evidence obtained as to his aceligible, as a result of the maintenance tivities, of the identity of confidential of such material,” only if the Agency sources, witnesses, and law enforceactually uses the material in denying ment personnel, and could provide inor proposing to deny such right, privi formation to enable the subject to lege, or benefit.

avoid detection or apprehension. (iii) To the extent that records con Granting access to such information tained in the systems of records identi- could seriously impede or compromise fied in $16.14(a)(1) are maintained by an investigation, endanger the physical the Office of Investigations of the OIG safety of confidential sources, witor by the Office of Criminal Investiga- nesses, law enforcement personnel and tions of the NEIC, components of EPA their families, lead to the improper inwhich perform as their principal func fluencing of witnesses, the destruction tion activities pertaining to the en- of evidence, or the fabrication of testiforcement of criminal laws, then an ex- mony, and disclose investigative techemption under 5 U.S.C. 552a(j)(2) is niques and procedures. In addition, claimed for these records.

granting access to such information (4) Reasons for exemption. The systems could disclose classified, security-senof records identified in $16.14(a)(1) are sitive, or confidential business inforexempted from the above provisions of mation and could constitute an unwarthe Privacy Act of 1974 for the fol ranted invasion of the personal privacy lowing reasons:

of others. (i) 5 U.S.C. 552a(c)(3) requires an (iii) 5 U.S.C. 552a(e)(1) requires each agency to make the accounting of each agency to maintain in its records only disclosure of records available to the such information about an individual individual named in the record at his as is relevant and necessary to accomrequest. These accountings must state plish a purpose of the agency required

by statute or by executive order of the President. The application of this provision could impair investigations and law enforcement, because it is not always possible to detect the relevance or necessity of specific information in the early stages of an investigation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation, the investigator may obtain information which is incidental to the main purpose of the investigation but which may relate to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated. Furthermore, during the course of the investigation, the investigator may obtain information concerning the violation of laws other than those which are within the scope of his jurisdiction. In the interest of effective law enforcement, EPA investigators should retain this information, since it can aid in establishing patterns of criminal activity and can provide valuable leads for other law enforcement agencies.

(iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a FEDERAL REGISTER notice concerning its procedures for notifying an individual at his request if the system of records contains a record pertaining to him, how he can gain access to such a record, and how he can contest its content. Since EPA is claiming that these systems of records are exempt from subsection (f) of the Act, concerning agency rules, and subsection (d) of the Act, concerning access to records, these requirements are inapplicable and are exempted to the extent that these systems of records are exempted from subsections (f) and (d) of the Act. Although EPA is claiming exemption from these requirements, EPA has published such a notice concerning its notification, access, and contest procedures because, under certain circumstances, EPA might decide it is appropriate for an individual to have access to all or a portion of his records in these systems of records.

(v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a FEDERAL REGISTER

notice concerning the categories of sources of records in the system of records. Exemption from this provision is necessary to protect the confidentiality of the sources of information, to protect the privacy and physical safety of confidential sources and witnesses, and to avoid the disclosure of investigative techniques and procedures. Although EPA is claiming exemption from this requirement, EPA has published such a notice in broad generic terms in the belief that this is all subsection (e)(4)(I) of the Act requires.

(vi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules which shall establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him. The application of this provision could impede or compromise an investigation or prosecution if the subject of an investigation was able to use such rules to learn of the existence of an investigation before it could be completed. In addition, mere notice of the fact of an investigation could inform the subject or others that their activities are under or may become the subject of an investigation and could enable the subjects to avoid detection or apprehension, to influence witnesses improperly, to destroy evidence, or to fabricate testimony. Since EPA is claiming that these systems of records are exempt from subsection (d) of the Act, concerning access to records, the requirements of subsections (f)(2) through (5) of the Act, concerning agency rules for obtaining access to such records, are inapplicable and are exempted to the extent that these systems of records are exempted from subsection (d) of the Act. Although EPA is claiming exemption from the requirements of subsection (f), EPA has promulgated rules which establish Agency procedures because, under certain circumstances, it might be appropriate for an individual to have access to all or a portion of his records in these systems of records. These procedures are described elsewhere in this part.

(b) Exemption under 5 U.S.C. 552a(k)(5)(1) Systems of records affected. qEPA-2 General Personnel Records—EPA.

SEPA 4 OIG Criminal Investigative Index vilian employment, Federal contracts, and Files EPAJOIG.

or access to classified information. TEPA-5 OIG Personnel Security Files—EPA/

(ii) 5 U.S.C. 552a(d) requires an agenOIG.

cy to permit an individual to gain ac(2) Authority. Under 5 U.S.C. cess to records pertaining to him, to 552a(k)(5), the head of any agency may request amendment to such records, to by rule exempt any system of records request a review of an agency decision within the agency from certain provi- not to amend such records, and to consions of the Privacy Act of 1974, if the test the information contained in such system of records is investigatory ma- records. Granting such access could terial compiled solely for the purpose cause the identity of a confidential of determining suitability, eligibility, source to be revealed, endangering the or qualifications for Federal civilian physical safety of the confidential employment, Federal contracts, or ac- source, and could impair the future cess to classified information, but only ability of the EPA to compile investo the extent that the disclosure of tigatory material for the purpose of desuch material would reveal the iden termining suitability, eligibility, or tity of a source who furnished informa- qualifications for Federal civilian emtion to the Government under an ex- ployment, Federal contracts, or access press promise that the identity of the to classified information. source would be held in confidence, or, (iii) 5 U.S.C. 552a(e)(1) requires each prior to September 27, 1975, under an

agency to maintain in its records only implied promise that the identity such information about an individual would be held in confidence.

as is relevant and necessary to accom(3) Scope of exemption. (i) The systems plish a purpose of the agency required of records identified in $16.14(b)(1) are by statute or by executive order of the exempted from the following provisions President. The application of this proof the Privacy Act of 1974, subject to vision could impair investigations, bethe limitations of 5 U.S.C. 552a(k)(5): 5 cause it is not always possible to deU.S.C. 552a (c)(3); (d); (e)(1), (4)(H) and tect the relevance or necessity of spe(I); and (f)(2) through (5).

cific information in the early stages of (ii) To the extent that records con an investigation. Relevance and necestained in the systems of records identi sity are often questions of judgment fied in $16.14(b)(1) reveal a violation or and timing, and it is only after the inpotential violation of law, then an ex formation is evaluated that the relemption under 5 U.S.C. 552a(k)(2) is evance and necessity of such informaalso claimed for these records.

tion can be established. (4) Reasons for exemption. The systems (iv) 5 U.S.C. 552a(e)(4)(H) requires an of records identified in $16.14(b)(1) are agency to publish a FEDERAL REGISTER exempted from the above provisions of notice concerning its procedures for the Privacy Act of 1974 for the fol- notifying an individual at his request lowing reasons:

how he can gain access to any record (i) 5 U.S.C. 552a(c)(3) requires an pertaining to him and how he can conagency to make the accounting of each test its content. Since EPA is claiming disclosure of records available to the that these systems of records are exindividual named in the record at his empt from subsections (f)(2) through (5) request. These accountings must state of the Act, concerning agency rules, the date, nature, and purpose of each and subsection (b) of the Act, condisclosure of a record and the name and cerning access to records, these readdress of the recipient. Making such quirements are inapplicable and are exan accounting could cause the identity empted to the extent that these sysof a confidential source to be revealed, tems of records are exempted from subendangering the physical safety of the sections (f)(2) through (5) and (d) of the confidential source, and could impair Act. Although EPA is claiming exempthe future ability of the EPA to com- tion from these requirements, EPA has pile investigatory material for the pur- published such a notice concerning its pose of determining suitability, eligi- access and contest procedures because, bility, or qualifications for Federal ci- under certain circumstances, EPA

might decide it is appropriate for an in dividual to have access to all or a portion of his records in these systems of records.

(v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a FEDERAL REGISTER notice concerning the categories of sources of records in the system of records. Exemption from this provision is necessary to protect the confidentiality of the sources of information, to protect the privacy and physical safety of confidential sources, and to avoid the disclosure of investigative techniques and procedures. Although EPA is claiming exemption from this requirement, EPA has published such a notice in broad generic terms in the belief that this is all subsection (e)(4)(I) of the Act requires.

(vi) 5 U.S.C. 552a(f)(2) through (5) require an agency to promulgate rules for obtaining access to records. Since EPA is claiming that these systems of records are exempt from subsection (d) of the Act, concerning access to records, the requirements of subsections (f)(2) through (5) of the Act, concerning agency rules for obtaining access to such records, are inapplicable and are exempted to the extent that this system of records is exempted from subsection (d) of the Act. Although EPA is claiming exemption from the requirements of subsections (f)(2) through (5) of the Act, EPA has promulgated rules which establish Agency procedures because, under certain circumstances, it might be appropriate for an individual to have access to all or a portion of his records in this system of records. These procedures are described elsewhere in this part.

(c) Exemption under 5 U.S.C. 552a(k)(1)-(1) System of records affected. JEPA-5 OIG Personnel Security Files–EPA/ OIG.

(2) Authority. Under 5 U.S.C. 552a(k)(1), the head of any agency may by rule exempt any system of records within the agency from certain provisions of the Privacy Act of 1974, if the system of records is subject to the provisions of 5 U.S.C. 552(b)(1). A system of records is subject to the provisions of 5 U.S.C. 552(b)(1) if it contains records that are specifically authorized under criteria established by an Executive

order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. Executive Order 12356 establishes criteria for classifying records which are to be kept secret in the interest of national defense or foreign policy.

(3) Scope of exemption. To the extent that the system of records identified in $16.14(c)(1) contains records provided by other Federal agencies that are specifically authorized under criteria established by Executive Order 12356 to be kept secret in the interest of national defense or foreign policy and are in fact properly classified by other Federal agencies pursuant to that Executive order, the system of records is exempted from the following provisions of the Privacy Act of 1974: 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and (I); and (f).

(4) Reasons for exemption. The system of records identified in $16.14(c)(1) is exempted from the above provisions of the Privacy Act of 1974 for the following reasons:

(i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of each disclosure of records available to the individual named in the record at his request. These accountings must state the date, nature, and purpose of each disclosure of a record and the name and address of the recipient. Making such an accounting could result in the release of properly classified information, which would compromise the national defense or disrupt foreign policy.

(ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to gain access to records pertaining to him, to request amendment to such records, to request a review of an agency decision not to amend such records, and to contest the information contained in such records. Granting such access could cause the release of properly classified information, which would comprom the national defense or disrupt foreign policy.

(iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required by statute or by executive order of the

President. The application of this pro- tion of this provision could result in vision could impair personnel security the release of properly classified inforinvestigations which use properly clas mation, which would compromise the sified information, because it is not al- national defense or disrupt foreign polways possible to know the relevance or icy. Since EPA is claiming that this necessity of specific information in the system of records is exempt from subearly stages of an investigation. Rel- section (d) of the Act, concerning acevance and necessity are often ques- cess to records, the requirements of tions of judgment and timing, and it is subsections (f)(2) through (5) of the only after the information is evaluated Act, concerning agency rules for obthat the relevance and necessity of taining access to such records, are insuch information can be established. applicable and are exempted to the ex

(iv) 5 U.S.C. 552a(e)(4)(G) and (H) re tent that this system of records is exquire an agency to publish a FEDERAL empted from subsection (d) of the Act. REGISTER notice concerning its proce Although EPA is claiming exemption dures for notifying an individual at his from the requirements of subsection (f) request if the system of records con of the Act, EPA has promulgated rules tains a record pertaining to him, how which establish Agency procedures behe can gain access to such a record, cause, under certain circumstances, it and how he can contest its content. might be appropriate for an individual Since EPA is claiming that this system to have access to all or a portion of his of records is exempt from subsection (f) records in this system of records. These of the Act, concerning agency rules, procedures are described elsewhere in and subsection (d) of the Act, con this part. cerning access to records, these re (d) Exempt records provided by another quirements are inapplicable and are ex agency. Individuals may not have acempted to the extent that this system cess to records maintained by the EPA of records is exempted from sub if such records were provided by ansections (f) and (d) of the Act. Al- other agency which has determined by though EPA is claiming exemption regulation that such records are subfrom these requirements, EPA has pub ject to general exemption under 5 lished such a notice concerning its no U.S.C. 552a(j) or specific exemption tification, access, and contest proce under 5 U.S.C. 552a(k). If an individual dures because, under certain cir requests access to such exempt records, cumstances, EPA might decide it is ap- EPA will consult with the source agenpropriate for an individual to have ac cy. cess to all or a portion of his records in (e) Exempt records included in a nonthis system of records.

exempt system of records. All records ob(v) 5 U.S.C. 552a(e)(4)(I) requires an tained from a system of records which agency to publish a FEDERAL REGISTER has been determined by regulation to notice concerning the categories of be subject to specific exemption under sources of records in the system of 5 U.S.C. 552a(k) retain their exempt records. Exemption from this provision status even if such records are also inis necessary to prevent the release of cluded in a system of records for which properly classified information, which a specific exemption has not been would compromise the national defense claimed. or disrupt foreign policy. Although

[51 FR 24147, July 2, 1986, as amended at 59 EPA is claiming exemption from this

FR 17485, Apr. 13, 1994] requirement, EPA has published such a notice in broad generic terms in the be

PART 17- IMPLEMENTATION OF THE lief that this is all subsection (e)(4)(I)

EQUAL ACCESS TO JUSTICE ACT of the Act requires. (vi) 5 U.S.C. 552(a)(f)(1) requires an

IN EPA ADMINISTRATIVE PROagency to promulgate rules which shall

CEEDINGS establish procedures whereby an individual can be notified in response to

Subpart A-General Provisions his request if any system of records

Sec. named by the individual contains a 17.1 Purpose of these rules. record pertaining to him. The applica- 17.2 Definitions.

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