Page images
PDF
EPUB

not relevant or necessary to accomplish the Department function for which the record was provided or is maintained. In either case, the subject individual will be informed in writing of the correction, amendment, or deletion and, if accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.

(d) If the responsible Department official does not agree that the record should be corrected or amended, the subject individual will be informed in writing of the refusal to correct or amend the record. He will also be informed that he may appeal the refusal to correct or amend his record $5b.8 of this part.

(e) Requests to correct or amend a record governed by the regulation of another government agency, e.g., Office of Personnel Management, Federal Bureau of Investigation, will be forwarded to such government agency for processing and the subject individual will be informed in writing of the referral.

85b.8 Appeals of refusals to correct or

amend records. (a) Processing the appeal. (1) A subject individual who disagrees with a refusal to correct or amend his record may appeal the refusal in writing. All appeals shall be made to the Secretary.

(2) An appeal will be completed within 30 working days from its receipt by the appeal authority; except that, the appeal authority may for good cause extend this period for an additional 30 days. Should the appeal period be extended, the subject individual appealing the refusal to correct or amend the record will be informed in writing of the extension and the circumstances of the delay. The subject individual's request to amend or correct the record, the responsible Department official's refusal to correct or amend, and any other pertinent material relating to the appeal will be reviewed. No hearing will be held.

(3) If the appeal authority agrees that the record subject to the appeal should be corrected or amended, the record will be amended and the subject individual will be informed in writing of the correction or amendment. Where

an accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.

(4) If the appeal is denied, the subject individual will be informed in writing:

(i) Of the denial and the reasons for the denial;

(ii) That he has a right to seek judicial review of the denial; and,

(iii) That he may submit to the responsible Department official a concise statement of disagreement to be associated with the disputed record and disclosed whenever the record is disclosed.

(b) Notation and disclosure of disputed records. Whenever a subject individual submits a statement of disagreement to the responsible Department official in accordance with paragraph (a)(4)(iii) of this section, the record will be noted to indicate that it is disputed. In any subsequent disclosure, a copy of the subject individual's statement of disagreement, will be disclosed with the record. If the responsible Department official deems it appropriate, a concise statement of the appeal authority's reasons for denying the subject individual's appeal may also be disclosed with the record. While the subject individual will have access to this statement of reasons, such statement will not be subject to correction or amendment. Where an accounting was made of prior disclosures of the record, all previous recipients of the record will be provided a copy of the subject individual's statement of disagreement, as well as the statement, if any, of the appeal authority's reasons for denying the subject individual's appeal. $5b.9 Disclosure of records.

(a) Consent to disclosure by a subject individual. (1) Except as provided in paragraph (b) of this section authorizing disclosures of records without consent, no disclosure of a record will be made without the consent of the subject individual. In each case the consent, whether obtained from the subject individual at the request of the Department or whether provided to the Department by the subject individual on his own initiative, shall be in writing. The consent shall specify the individual, organizational unit or class of individuals or organizational units to

whom the record may be disclosed, transferred in a form that does not which record may be disclosed and, identify the subject individ- ual. where applicable, during which time (6) To the National Archives of the frame the record may be disclosed (e.g., United States as a record which has during the school year, while the sub

sufficient historical or other value to ject individual is out of the country, warrant its continued preservation by whenever the subject individual is re

the United States Government, or for ceiving specific services). A blanket

evaluation by the Administrator of consent to disclose all of a subject indi

General Services or his designee to devidual's records to unspecified individ

termine whether the record has such uals or organizational units will not be

value. honored. The subject individual's iden

(7) To another government agency or tity and, where applicable (e.g., where a

to an instrumentality of any governsubject individual gives consent to dis

mental jurisdiction within or under the closure of a record to a specific indi

control of the United States for a civil vidual), the identity of the individual

or criminal law enforcement activity if to whom the record is to be disclosed

the activity is authorized by law, and if shall be verified.

the head of such government agency or (2) A parent or guardian of any minor is not authorized to give consent to a

instrumentality has submitted a writdisclosure of the minor's medical

ten request to the Department specirecord.

fying the record desired and the law en(b) Disclosures without the consent of

forcement activity for which the record the subject individual. The disclosures

is sought. listed in this paragraph may be made

(8) To an individual pursuant to a without the consent of the subject indi

showing of compelling circumstances vidual. Such disclosures are:

affecting the health or safety of any in(1) To those officers and employees of dividual if a notice of the disclosure is the Department who have a need for transmitted to the last known address the record in the performance of their

of the subject individual. duties. The responsible Department of- (9) To either House of Congress, or to ficial may upon request of any officer the extent of matter within its jurisor employee, or on his own initiative, diction, any

committee or subdetermine what constitutes legitimate committee thereof, any joint comneed.

mittee of Congress or subcommittee of (2) Required to be disclosed under the any such joint committee. Freedom of Information Act, 5 U.S.C. (10) To the Comptroller General, or 552, and part 5 of this title.

any of the Comptroller General's au(3) For a routine use as defined in

thorized representatives, in the course paragraph (j) of 85b.1. Routine uses will

of the performance of the duties of the be listed in any notice of a system of

General Accounting Office. records. Routine uses published in Ap

(11) Pursuant to the order of a court pendix B are applicable to more than

of competent jurisdiction. one system of records. Where applica

(c) Accounting of disclosures. (1) An acble, notices of systems of records may

counting of all disclosures of a record contain references to the routine uses

will be made and maintained by the listed in Appendix B. Appendix B will

Department for 5 years or for the life of be published with any compendium of

the record, whichever is longer; except notices of systems of records. (4) To the Bureau of the Census for

that, such an accounting will not be

made: purposes of planning or carrying out a

(i) For disclosures under paragraphs census or survey or related activity pursuant to the provisions of title 13

(b) (1) and (2) of this section; and, U.S.C.

(ii) For disclosures made with the (5) To a recipient who has provided written consent of the subject indithe agency with advance written assur

vidual. ance that the record will be used solely (2) The accounting will include: as a statistical research or reporting (i) The date, nature, and purpose of record; Provided, That, the record is each disclosure; and

(ii) The name and address of the person or entity to whom the disclosure is made.

(3) Any subject individual may request access to an accounting of disclosures of a record. The subject individual shall make a request for access to an accounting in accordance with the procedures in $ 56.5 of this part. A subject individual will be granted access to an accounting of the disclosures of a record in accordance with the procedures of this part which govern access to the related record. Access to an accounting of a disclosure of a record made under paragraph (b)(7) of this section may be granted at the discretion of the responsible Department official. 85b.10 Parents and guardians.

For the purpose of this part, a parent or guardian of any minor or the legal guardian or any individual who has been declared incompetent due to physical or mental incapacity or age by a court of competent jurisdiction is authorized to act on behalf of an individual or a subject individual. Ex as provided in paragraph (b)(2) of $56.5, of this part governing procedures for verifying an individual's identity, individual authorized to act on behalf of a minor or legal incompetent will be viewed as if he were the individual or subject individual. 85b.11 Exempt systems.

(a) General policy. The Act permits an agency to exempt certain types of systems of records from some of the Act's requirements. It is the policy of the Department to exercise authority to exempt systems of records only in compelling cases.

(b) Specific systems of records exempted under ()(2). The Department exempts the Investigative Files of the Inspector General ED/OIG (18-10-0001) and the Hotline Complaint Files of the Inspector General ED/OIG (18-10-0004) systems of records from the following provisions of 5 U.S.C. 552a and this part:

(1) 5 U.S.C. 552a(c)(3) and $5b.9(a)(1) and (c)(3) of this part, regarding access to an accounting of disclosures of a record.

(2) 5 U.S.C. 552a(c)(4) and 88 5b.7(c) and 5b.8(b) of this part, regarding notification to outside parties and agencies of

correction or notation of dispute made in accordance with 5 U.S.C. 552a(d).

(3) 5 U.S.C. 552a(d) (1) through (4) and (f) and $8 5b.5(a)(1) and (c), 5b.7, and 5b.8 of this part, regarding notification or access to records and correction or amendment of records.

(4) 5 U.S.C. 552a(e)(1) and 85b.4(a)(1) of this part, regarding maintaining only relevant and necessary information.

(5) 5 U.S.C. 552a(e)(2) and 856.4(a)(2) of this part, regarding collection of information from the subject individual.

(6) 5 U.S.C. 552a(e)(3) and 85b.4(a)(3) of this part, regarding notice to individuals asked to provide information to the Depai

nt. (7) 5 U.S.C. 552a(e)(4) (G), (H), and (I), regarding inclusion of information in the system notice about procedures for notification, access, correction, and source of records.

(8) 5 U.S.C. 552a(e)(5), regarding maintaining records with requisite accuracy, relevance, timeliness, and completeness.

(9) 5 U.S.C. 552a(e)(8), regarding service of notice on subject individual if a record is made available under compulsory legal process if that process becomes a matter of public record.

(10) 5 U.S.C. 552a(g), regarding civil remedies for violation of the Privacy Act.

(c) Specific systems of records erempted under (k)(2). (1) The Department exempts the Investigative Files of the Inspector General ED/OIG (18-10-0001) and the Hotline Complaint Files of the Inspector General ED/OIG (18-10-0004) from the following provisions of 5 U.S.C. 552a and this part to the extent that these systems of records consist of investigatory material and complaints that may be included in investigatory material compiled for law enforcement purposes:

(i) 5 U.S.C. 552a(c)(3) and 856.9(c)(3) of this part, regarding access to an accounting of disclosures of records.

(ii) 5 U.S.C. 552a(d) (1) through (4) and (f) and $85b.5(a)(1) and (c), 5b.7, and 5b.8 of this part, regarding notification of and access to records and correction or amendment of records.

(iii) 5 U.S.C. 552a(e)(1) and 85b.4(a)(1) of this part, regarding the requirement to maintain only relevant and necessary information.

an

(iv) 5 U.S.C. 552a(e)(4) (G), (H), and (I), regarding inclusion of information in the system notice about procedures for notification, access, correction, and source of records.

(2) The Department exempts the Complaint Files and Log, Office for Civil Rights (18-08-0002) from the following provisions of 5 U.S.C. 552a and this part:

(1) 5 U.S.C. 552a(c)(3) and $55.9(c)(3) of this part, regarding access to an accounting of disclosures of records.

(ii) 5 U.S.C. 552a(d) (1) through (4) and (f) and $85b.5(a)(1) and (c), 5b.7, and 5b.8 of this part, regarding notification of and access to records and correction or amendment of records.

(iii) 5 U.S.C. 552a(e)(4) (G) and (H), regarding inclusion of information in the system notice about procedures for notification, access, and correction of records.

(d) Specific systems of records exempted under (k)(5). (1) The Department exempts the Investigatory Material Compiled for Personnel Security and Suitability Purposes (18–10_0002) system of records from the following provisions of 5 U.S.C. 552a and this part:

(i) 5 U.S.C. 552a(c)(3) and $ 56.9(c)(3) of this part, regarding access to an accounting of disclosures of records.

(ii) 5 U.S.C. 552a(d) (1) through (4) and (f) and $85b.5(a)(1) and (c), 5b.7, and 5b.8 of this part, regarding notification of and access to records and correction or amendment of records.

(iii) 5 U.S.C. 552a(e)(4) (G) and (H), regarding inclusion of information in the system notice about procedures for notification, access, and correction of records.

(2) The Department exempts the Suitability for Employment Records (18-11-0020) from the following provisions of 5 U.S.C. 552a and this part:

(i) 5 U.S.C. 552a(c)(3) and $ 56.9(c)(3) of this part, regarding access to an accounting of disclosures of records.

(ii) 5 U.S.C. 552a(d) (1) through (4) and (f) and 88 5b.5(a)(1) and (c), 5b.7, and 5b.8 of this part, regarding notification of and access to records and correction or amendment of records.

(iii) 5 U.S.C. 552a(e)(4) (G) and (H), regarding inclusion of information in the system notice about procedures for no

tification, access, and correction of records.

(e) Basis for exemptions taken under (1)(2), (k)(2), and (k)(5). The reason the Department took each exemption described in this section is stated in the preamble for the final rulemaking document under which the exemption was promulgated. These final rulemaking documents were published in the FEDERAL REGISTER and may be obtained from the Department of Education by mailing a request to the following address: U.S. Department of Education, Privacy Act Officer, Information Management Branch, Washington, DC 20202-4753.

(f) Notification of or access to records in exempt systems of records. (1) If a system of records is exempt under this section, an individual may nonetheless request notification of or access to a record in that system. An individual shall make requests for notification of or access to a record in an exempt system or records in accordance with the procedures of $5b.5 of this part.

(2) An individual will be granted notification of or access to a record in an exempt system but only to the extent that notification or access would not reveal the identity of a source who furnished the record to the Department under an express promise, and, prior to September 27, 1975, an implied promise, that his identity would be held in confidence if

(i) The record is in a system of records or that portion of a system of records that is exempt under subsection (k)(2), but not under subsection (j)(2), of the Act and the individual has been, as a result of the maintenance of the record, denied a right, privilege, or benefit to which he or she would otherwise be eligible; or

(ii) The record is in a system of records that is exempt under subsection (k)(5) of the Act.

(3) If an individual is not granted notification of or access to a record in a system of records exempt under subsections (k)(2) (but not under subsection (j)(2)) and (k)(5) of the Act in accordance with this paragraph, he or she will be informed that the identity of a confidential source would be revealed if notification of or access to

[ocr errors]

the record were granted to the indi (d) This section does not apply to vidual.

systems of records maintained by a (g) Discretionary actions by the respon contractor as a result of his managesible Department official. Unless disclo ment discretion, e.g., the contractor's sure of a record to the general public is personnel records. otherwise prohibited by law, the responsible Department official may, in

$ 5b.13 Fees. his or her discretion, grant notification

(a) Policy. Where applicable, fees for of or access to a record in a system of copying records will be charged in acrecords that is exempt under this sec cordance with the schedule set forth in tion. Discretionary notification of or

this section. Fees may only be charged access to a record in accordance with

where an individual requests that a this paragraph will not be a precedent copy be made of the record to which he for discretionary notification of or ac

is granted access. No fee may be cess to a similar or related record and

charged for making a search of the syswill not obligate the responsible De

tem of records whether the search is partment official to exercise his or her

manual, mechanical, or electronic. discretion to grant notification of or

Where a copy of the record must be access to any other record in a system

made in order to provide access to the of records that is exempt under this

record (e.g., computer printout where section.

no screen reading is available), the [58 FR 44424, Aug. 20, 1993, as amended at 64 copy will be made available to the indiFR 31066, June 9, 1999)

vidual without cost.

(b) Fee schedule. The fee schedule for $ 5b.12 Contractors.

the Department is as follows: (a) All contracts entered into on or (1) Copying of records susceptible to after September 27, 1975 which require photocopying—$.10 per page. a contractor to maintain or on behalf (2) Copying records not susceptible to of the Department to maintain, a sys photocopying (e.g., punch cards or magtem of records to accomplish a Depart netic tapes)—at actual cost to be determent function must contain a provi mined on a case-by-case basis. sion requiring the contractor to com (3) No charge will be made if the ply with the Act and this part.

total amount of copying does not ex(b) All unexpired contracts entered ceed $25. into prior to September 27, 1975 which require the contractor to maintain or

APPENDIX A TO PART 5B-EMPLOYEE on behalf of the Department to main

STANDARDS OF CONDUCT tain, a system of records to accomplish

(a) General. All employees are required to a Department function will be amended

be aware of their responsibilities under the as soon as practicable to include a pro

Privacy Act of 1974, 5 U.S.C. 552a. Regulavision requiring the contractor to com tions implementing the Act are set forth in ply with the Act and this part. All such 34 CFR 5b. Instruction on the requirements contracts must be so amended by July of the Act and regulation shall be provided 1, 1976 unless for good cause the appeal to all new employees of the Department. In authority identified in $50.8 of this

addition, supervisors shall be responsible for part authorizes the continuation of the

assuring that employees who are working

with systems of records or who undertake contract without amendment beyond

new duties which require the use of systems that date.

of records are informed of their responsibil(c) A contractor and any employee of ities. Supervisors shall also be responsible such contractor shall be considered em for assuring that all employees who work ployees of the Department only for the with such systems of records are periodically purposes of the criminal penalties of reminded of the requirements of the Act and the Act, 5 U.S.C. 552a(i), and the em

are advised of any new provisions or inter

pretations of the Act. ployee standards of conduct listed in appendix A of this part where the con

(b) Penalties. (1) All employees must guard

against improper disclosure of records which tract contains a provision requiring

are governed by the Act. Because of the serithe contractor to comply with the Act ous consequences of improper invasions of and this part.

personal privacy, employees may be subject

197-126 D-2

« PreviousContinue »