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Federal Register
Proposed Rules
Department of Health, Education, and Welfare
Office of the Secretary
45 CFR Part 5b
Privacy Act
Notice of Proposed Exemptions
Date: September 5, 1975
Summary: Notice is hereby given that the Secretary proposes exemptions as provided under subsections (j) and (k) of the Privacy Act, Public Law 93-579, 5 U.S.C. 552a. These exemptions are proposed in addition to those exemptions proposed in § 5b.9(b) of the Secretary's proposed regulations, implementing the Privacy Act, published in the FEDERAL REGISTER on August 14, 1975 (40 FR 34129).
The “Maryland Psychiatric…[text omitted]
The “Investigatory Material Compiled for Law enforcement Purposes System, HEW,” is a system of records proposed to be exempted, as provided in subsection (j)(2) of the Act, from all subsections of the Act except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i). This system is maintained for criminal investigation purposes by the Division of Investigations in the Agency’s Office of Investigations and Security. Records maintained in the system pertain to employees, former employees, grantees, subgrantees, contractors, subcontractors, and others doing business with the Department who have or allegedly have violated Federal and/or State criminal laws.
The Division of Investigations performs as its principal function criminal investigations for the purpose of enforcement of criminal laws. Information which it compiles and maintains for this purpose includes reports of informants and investigators associated with an identifiable individual.
The “General Criminal…[text omitted]
The (j)(2) and (k)(2) exemptions are proposed for these systems to assure the orderly and unbiased conduct of law enforcement investigations. Investigatory efforts for law enforcement purposes would be severely impaired if the subjects of these investigations were aware that their activities were being observed. If these subjects were given access to the investigatory materials in these systems of records they may have ample opportunity to attempt to thwart the investigation or escape prosecution.
Also proposed to be exempted from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f) of the Act are the “Investigatory Material Compiled for Security and Suitability Purposes System, HEW,” maintained by the Division of Security of the Agency’s Office of Investigations and Security, and the “Suitability for Employment Records, HEW,” a system maintained by the Agency’s Personnel Offices. As provided in subsection (k)(5) of the Act these systems are proposed to be exempted from these subsections to the extent that access to its records or portions of its records would reveal a confidential source or to the extent that disclosure of its records or a portion of its records is otherwise prohibited by law. Information contained in these systems includes information pertaining to the suitability, eligibility, or qualifications of Agency applicants, employees, former employees, and others doing business with the Agency.
The (k)(5) exemption is proposed for these systems to assure that efforts to obtain accurate and objective information relating to a person’s suitability and eligibility for Agency employment or business will not be frustrated. Many sources of this type of information will be reluctant to provide a full and objective appraisal of a person’s suitability or eligibility unless they can be assured that their identity will not be revealed. Additionally much of the information presently contained in these systems of records was obtained under an implied promise that the identity of the source would be held in confidence. No useful public purpose would be served if these past confidences were violated or if the Agency was not in a position to expressly guarantee that the identity of future sources would be treated confidentially if the giving of such appraisals were conditioned upon a promise that the identity of its source would not be revealed.
As provided in subsections (j)(2), (k)(2) and (5) of the Act, the “Clinical Investigator…[text omitted]
Interested persons and organizations are invited to submit written comments on these proposed exemptions to the Director, Fair Information Practices Staff, Department of Health, Education, and Welfare, 330 Independence Avenue, S.W., Washington, D.C. 20201.
All comments received on or before September 17, 1975 will be considered by the Secretary before taking action on the proposed exemptions, and will be available for public inspection in Room 4513, at the above address.
These exemptions are proposed under the authority of subsections (j) and (k) of 5 U.S.C. § 552a and 5 U.S.C. § 301.
In consideration of the foregoing, it is proposed to amend part 5b of 45 CFR Subtitle A (40 FR 34129) as follows:
Part 5b—Privacy Act Regulation
1. By adding paragraphs (b)(2)(iv), (3), (4), (5), (6) and (c) as follows:
§ 5b.9 Exemptions.
(b) * * *
(2) * * *
[text omitted]
(3) As provided in subsection (j)(2) of the Act, the “Investigatory Material Compiled for Law Enforcement Purposes System, HEW,” a system of records, maintained by the Division of Investigation of the Agency’s Office of Investigations and Security is exempt from all subsections of the Act except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) which govern conditions of disclosing records contained in a system of records and criminal penalties for the willful and knowing disclosure of records which are prohibited from disclosure under 552a; and which require each agency, with respect to each system of records under its control, to: make and keep an accounting for all disclosures except for disclosures made under subsections (b)(1), (2), and (7) of the Act; annually published the existence and character of the systems of records; assure that records are accurate and relevant for agency purposes prior to disseminating any record about an individual; maintain no record describing how an individual exercises First Amendment rights unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity; establish rules of conduct for persons maintaining systems of records and administrative, technical and physical safeguards to insure the security and confidentiality of records; and, publish in the FEDERAL REGISTER notice of new or intended uses of information in a system at least 30 days prior to publication of a routine use for public comment. This system of records is maintained for the purpose of criminal investigation and includes reports of informants and investigators associated with an identifiable individual under the authority of section 535(b) of title 28, United States Code and title 18, United States Code.
(4) As provided in subsection (k)(2) of the Act…[text omitted
(5) As provided in subsection (k)(5) of the Act and except to the extent that access is required under that subsection and paragraph (c)(2) of this section, the following systems of records are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f) of the Act which require each agency, with respect to each system of records under its control, to: make accountings of disclosures available to individuals named in records at their request; provide access to records; maintain in its records only such information about an individual which is relevant and necessary to accomplish an agency purpose; annually publish access procedures and categories of sources of records in the system, and the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him; and to promulgate rules establishing procedures whereby individuals can be notified of information in systems of records pertaining to the individual, requirements for verification of the identity of individuals requesting access to records, for reviewing requests for amending an individual’s records, and procedures for establishing fees.
(i) The “Investigatory Material Compiled for Security and Suitability Purposes System, HEW,” a system of records, maintained by the Division of Security of the Agency’s Office of Investigations and Security under the authority of § 7302 of title 5, United States Code and Executive Orders 10450 and 11652 containing investigatory material compiled for the purpose of determining the suitability, eligibility, or qualifications of Agency applicants, employees, former employees, and others doing business with the Agency.
(ii) The “Suitability for Employment Records, HEW,” a system of records, maintained by the Agency’s Personnel Offices under the authority of §§ 3301, 3302, 7601 of title 5, United States Code and Executive Orders 10577 and 11222 containing information pertaining to an agency employee’s suitability for employment. This system includes information relating to an employee’s character, reputation, and fitness, and includes letters of reference, responses to pre-employment inquiries, National Agency Checks and Inquiries material received from the Civil Service Commission relating to non-sensitive positions, qualifications and character investigations.
(6) As provided in subsections (j)(2), (k)(2), and (5) of the Act…[text omitted]
(c) Access…[text omitted]
Dated: August 29, 1975.
DAVID MATHEWS,
Secretary
[FR Doc 75-23621 Filed 9-4-75; 8:45am]