[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR16.13]
[Page 204-208]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974--Table of Contents
Sec. 16.13 General exemptions.
(a) Systems of records affected.
[para] EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
[para] EPA-17 NEIC Criminal Investigative Index and Files--EPA/NEIC/OCI.
(b) Authority. Under 5 U.S.C. 552a(j)(2), 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
maintained by an agency or component thereof which performs as its
principal function any activity pertaining to the enforcement of
criminal laws and which consists of:
(1) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status;
[[Page 205]]
(2) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(3) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
(c) Scope of exemption. (1) The EPA-4 system of records identified
in Sec. 16.13(a) is maintained by the Office of Investigations of the
Office of Inspector General (OIG), a component of EPA which performs as
its principal function activities pertaining to the enforcement of
criminal laws. Authority for the criminal law enforcement activities of
the OIG's Office of Investigations is the Inspector General Act of 1978,
5 U.S.C. app.
(2) The EPA-17 system of records identified in Sec. 16.13(a) is
maintained by the Office of Criminal Investigations (OCI) of the
National Enforcement Investigations Center (NEIC), a component of EPA
which performs as its principal function activities pertaining to the
enforcement of criminal laws. Authority for the criminal law enforcement
activities of the NEIC's Office of Criminal Investigations is 28 U.S.C.
533, with appointment letter from Benjamin Civiletti, Attorney General,
to Douglas Costle, Administrator, EPA, dated January 16, 1981.
(3) The systems of records identified in Sec. 16.13(a) are exempted
from the following provisions of the Privacy Act of 1974: 5 U.S.C. 552a
(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H), and (I), (5), and
(8); (f); and (g).
(4) To the extent that the exemption claimed under 5 U.S.C.
552a(j)(2) is held to be invalid for the systems of records identified
in Sec. 16.13(a), then an exemption under 5 U.S.C. 552a(k)(2) is claimed
for these systems of records.
(d) Reasons for exemption. The systems of records identified in
Sec. 16.13(a) are exempted from the above provisions of the Privacy Act
of 1974 for the following reasons:
(1) 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. Accounting for each disclosure would alert the subjects
of an investigation to the existence of the investigation and the fact
that they are subjects of the investigation. The release of such
information to the subjects of an investigation would provide them with
significant information concerning the nature of the investigation, and
could seriously impede or compromise the investigation, endanger the
physical safety of confidential sources, witnesses, law enforcement
personnel and their families, and lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
(2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with subsection (d) of the Act. Since EPA is
claiming that these systems of records are exempt from subsection (d) of
the Act, concerning access to records, this section is inapplicable and
is exempted to the extent that these systems of records are exempted
from subsection (d) of the Act.
(3) 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 access to records in these systems of records could inform the
subject of an investigation of an actual or potential criminal 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
could provide information to enable the subject to avoid detection or
apprehension. Granting access to such information could seriously impede
or compromise an investigation, endanger the physical safety of
confidential sources, witnesses, law enforcement personnel and their
families, lead to the improper influencing of witnesses, the destruction
[[Page 206]]
of evidence, or the fabrication of testimony, and disclose investigative
techniques and procedures. In addition, granting access to such
information could disclose classified, security-sensitive, or
confidential business information and could constitute an unwarranted
invasion of the personal privacy of others.
(4) 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 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, the 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.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision could impair investigations and law
enforcement by alerting the subject of an investigation of the existence
of the investigation, enabling the subject to avoid detection or
apprehension, to influence witnesses improperly, to destroy evidence, or
to fabricate testimony. Moreover, in certain circumstances the subject
of an investigation cannot be required to provide information to
investigators, and information must be collected from other sources.
Furthermore, it is often necessary to collect information from sources
other than the subject of the investigation to verify the accuracy of
the evidence collected.
(6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person
whom it asks to supply information, on a form that can be retained by
the person, of the authority under which the information is sought and
whether disclosure is mandatory or voluntary; of the principal purposes
for which the information is intended to be used; of the routine uses
which may be made of the information; and of the effects on the person,
if any, of not providing all or any part of the requested information.
The application of this provision could provide the subject of an
investigation with substantial information about the nature of that
investigation, which could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise on undercover investigation by revealing
its existence and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) 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
[[Page 207]]
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.
(8) 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.
(9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making any
determination about the individual. Since the Act defines maintain to
include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment it is collected. In
collecting information for criminal law enforcement purposes, it is not
possible to determine in advance what information is accurate, relevant,
timely, and complete. Facts are first gathered and then placed into a
logical order to prove or disprove objectively the criminal behavior of
an individual. Material which may seem unrelated, irrelevant, or
incomplete when collected may take on added meaning or significance as
the investigation progresses. The restrictions of this provision could
interfere with the preparation of a complete investigative report,
thereby impeding effective law enforcement.
(10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. Complying
with this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
(11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules
which shall establish procedures whereby on 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) 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 these
systems of records. These procedures are described elsewhere in this
part.
(12) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails
to comply with the requirements concerning access to records under
subsections (d)(1) and (3) of the Act; maintenance of records under
subsection (e)(5) of the Act; and any other provision of the Act, or any
rule promulgated thereunder, in such a way as to have an adverse effect
on an individual. Since EPA is claiming that these systems of records
are exempt from subsections (c)(3) and (4), (d), (e)(1), (2), (3),
(4)(G),
[[Page 208]]
(H), and (I), (5), and (8), and (f) of the Act, the provisions of
subsection (g) of the Act are inapplicable and are exempted to the
extent that these systems of records are exempted from those subsections
of the Act.
(e) Exempt records provided by another agency. Individuals may not
have access to records maintained by the EPA if such records were
provided by another agency which has determined by regulation that such
records are subject to general exemption under 5 U.S.C. 552a(j). If an
individual requests access to such exempt records, EPA will consult with
the source agency.
(f) Exempt records included in a nonexempt system of records. All
records obtained from a system of records which has been determined by
regulation to be subject to general exemption under 5 U.S.C. 552a(j)
retain their exempt status even if such records are also included in a
system of records for which a general exemption has not been claimed.
[51 FR 24146, July 2, 1986]
