[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: 40CFR16.14]
[Page 208-213]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974--Table of Contents
Sec. 16.14 Specific exemptions.
(a) Exemptions under 5 U.S.C. 552a(k)(2)--(1) Systems of records
affected.
[para] EPA-2 General Personnel Records--EPA.
[para] EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
[para] EPA-5 OIG Personnel Security Files--EPA/OIG.
[para] EPA-17 NEIC Criminal Investigative Index and Files-- EPA/NEIC/
OCI.
[para] EPA-30 OIG Hotline Allegation System--EPA/OIG.
(2) Authority. Under 5 U.S.C. 552a(k)(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
investigatory material compiled for law enforcement purposes, other than
material within the scope of subsection (j)(2).
(3) Scope of exemption. (i) The systems of records identified in
Sec. 16.14(a)(1) are exempted from the following provisions of the
Privacy Act of 1974, subject to the limitations set forth in 5 U.S.C.
552a(k)(2): 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and (I); and
(f).
(ii) An individual is ``denied any right, privilege, or benefit that
he would otherwise be entitled by Federal law, or for which he would
otherwise be eligible, as a result of the maintenance of such
material,'' only if the Agency actually uses the material in denying or
proposing to deny such right, privilege, or benefit.
(iii) To the extent that records contained in the systems of records
identified in Sec. 16.14(a)(1) are maintained by the Office of
Investigations of the OIG or by the Office of Criminal Investigations of
the NEIC, components of EPA which perform as their principal function
activities pertaining to the enforcement of criminal laws, then an
exemption under 5 U.S.C. 552a(j)(2) is claimed for these records.
(4) Reasons for exemption. The systems of records identified in
Sec. 16.14(a)(1) are 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. 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.
(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 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,
[[Page 209]]
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 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.
(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 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
[[Page 210]]
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.
[para] EPA-2 General Personnel Records--EPA.
[para] EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
[para] EPA-5 OIG Personnel Security Files--EPA/OIG.
(2) Authority. Under 5 U.S.C. 552a(k)(5), 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
investigatory material compiled solely for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information, but
only to the extent that the disclosure of such material would reveal the
identity of a source who furnished information to the Government under
an express promise that the identity of the source would be held in
confidence, or, prior to September 27, 1975, under an implied promise
that the identity would be held in confidence.
(3) Scope of exemption. (i) The systems of records identified in
Sec. 16.14(b)(1) are exempted from the following provisions of the
Privacy Act of 1974, subject to the limitations of 5 U.S.C. 552a(k)(5):
5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(H) and (I); and (f)(2) through
(5).
(ii) To the extent that records contained in the systems of records
identified in Sec. 16.14(b)(1) reveal a violation or potential violation
of law, then an exemption under 5 U.S.C. 552a(k)(2) is also claimed for
these records.
(4) Reasons for exemption. The systems of records identified in
Sec. 16.14(b)(1) are 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 cause the identity of a
confidential source to be revealed, endangering the physical safety of
the confidential source, and could impair the future ability of the EPA
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
(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 identity of a confidential source
to be revealed, endangering the physical safety of the confidential
source, and could impair the future ability of the EPA to compile
investigatory material for the purpose of determining suitability,
eligibility, or qualifications for Federal civilian employment, Federal
contracts, or access to classified information.
(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 provision
could impair investigations, because it is not always possible to detect
the relevance or necessity of specific information in the early stages
of
[[Page 211]]
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.
(iv) 5 U.S.C. 552a(e)(4)(H) requires an agency to publish a Federal
Register notice concerning its procedures for notifying an individual at
his request how he can gain access to any record pertaining to him and
how he can contest its content. Since EPA is claiming that these systems
of records are exempt from subsections (f)(2) through (5) of the Act,
concerning agency rules, and subsection (b) 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)(2) through (5) and (d) of the Act. Although EPA is
claiming exemption from these requirements, EPA has published such a
notice concerning its 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 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.
[para] EPA-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 Sec. 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
Sec. 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
[[Page 212]]
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 compromise 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 provision
could impair personnel security investigations which use properly
classified information, because it is not always possible to know 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.
(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 this system of
records is 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
this system of records is 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 this system 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 prevent
the release of properly classified information, which would compromise
the national defense or disrupt foreign policy. 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. 552(a)(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 result in the release of properly classified
information, which would compromise the national defense or disrupt
foreign policy. Since EPA is claiming that this system of records is
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 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 this system of records. These procedures are
described elsewhere in this part.
(d) 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) or
specific exemption under 5 U.S.C. 552a(k). If an individual
[[Page 213]]
requests access to such exempt records, EPA will consult with the source
agency.
(e) 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 specific exemption under 5 U.S.C. 552a(k)
retain their exempt status even if such records are also included in a
system of records for which a specific exemption has not been claimed.
[51 FR 24147, July 2, 1986, as amended at 59 FR 17485, Apr. 13, 1994]