Content created by Freedom of Information Act (FOIA) Division
Federal Register
Rules and Regulations
Title 45--Public Welfare
Subtitle A—Department of Health, Education, And Welfare, General Administration
Part 5b—PRIVACY ACT REGULATION
Date: October 8, 1975
Summary: A notice of proposed rulemaking to implement Section 3 of the Privacy Act of 1974, 5 U.S.C. 552a (hereinafter referred to as the Act) was published in the FEDERAL REGISTER on August 14, 1975 (40 FR 34129). The notice proposed procedures whereby individuals could avail themselves of the provisions of the Act which, among other things
(1) permit an individual to determine what records pertaining to him are maintained in a system of records by the Department;
(2) permit an individual to gain access to records pertaining to him in such systems of records and to have copies made of any or all such records; and,
(3) permit an individual to correct or amend a record pertaining to him in a system of records.
The notice also proposed procedures under which the Department would operate to comply with the provisions of the Act mentioned above as well as other provisions of the Act which impose requirements on federal agencies with respect to the manner in which they collect, use, disseminate and otherwise maintain records which pertain to specific individuals.
Pursuant to the provisions of subsections (j)(2) and (k)(4) of the Act, exemptions from certain provisions of the Act were proposed for four systems of records maintained by the Department.
On September 5, 1975 an additional notice of proposed rulemaking was published in the FEDERAL REGISTER (40 FR 41140) which proposed exemptions pursuant to subsections (j)(2), (k)(2), (k)(4), and (k)(5) for 10 other systems of records.
Five comments were received on the August 14, 1975 proposal. These comments are from an intermediary and a carrier which perform functions under contracts and agreements entered into under §§ 1816 and 1842 of the Social Security Act, 42 U.S.C. 1395h and 1395u, a medical specialty association representing general and family practitioners, a public interest group, and a health statistics consultant. The comments address the proposed inclusion of intermediaries and carriers as a part of the Department, the proposed special procedures for medical records, the prohibition on blanket consents, and the scope of the proposed exemption of systems of records required by statute to be maintained and used solely as statistical records.
No comments were received on those additional exemptions proposed on September 5, 1975.
The comments and recommendations, and the Secretary’s conclusion in light of them, are detailed below.
Interaction between the Freedom of Information Act and the Privacy Act
[text omitted]
General Policy and Format
[text omitted]
Definitions
[text omitted]
Maintenance of Records
[text omitted]
Notification of or Access to Records
[text omitted]
Special Procedures for Medical Records
[text omitted]
Correction or Amendment of Records
[text omitted]
Disclosure of Records
[text omitted]
Exempt Systems
The four exemptions which were proposed in section 5b.9 of the proposed regulation published in the FEDERAL REGISTER on August 14, 1975 and the ten other exemptions which were proposed in a notice published in the FEDERAL REGISTER on September 5, 1975 are included as final exemptions in section 5b.11 of this regulation. As was noted in the preambles of these two proposals, the exemptions are necessary to assure: continued and uninterrupted activity in the area of health services statistical research and the continued cooperation of the sources of such statistical information; the orderly and unbiased conduct of law enforcement investigations, and that efforts by the Department to obtain accurate and objective information relating to an individual’s suitability and eligibility for Department employment will not be prejudiced (40 FR 34130-34131, 40 FR 41141).
Two substantive changes have been made. As proposed the fourteen systems of records were exempted from all of those requirements of the Act authorized by subsections (j) and (k). The Department has determined, however, that it is necessary to exempt these systems of records only from the notification and access and correction and amendment provisions of the Act and this regulation. It was also determined that criminal law enforcement systems of records exempt under subsection (j)(2) of the Act need only be additionally exempted from subsection (e)(3) of the Act (requiring agencies to inform individuals whom it asks to provide a record, including the authority for providing the record, whether providing the record is mandatory or voluntary, the principal purpose for maintaining the record, etc.) to the extent that subsection (e)(3) requirements would prejudice the conduct of a criminal investigation.
A provision was also added in the final regulation to…[text omitted]
[text omitted]
Appendix A
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Effective date. This regulation is effective immediately on October 3, 1975.
Dated: September 30, 1975.
DAVID MATHEWS,
Secretary.
Sec.
5b.1 Definitions.
5b.2 Purpose and Scope.
5b.3 Policy.
5b.4 Maintenance of records.
5b.5 Notification of or access to records.
5b.6 Special procedures for notification of or access to medical records.
5b.7 Procedures for correction and amendment of records.
5b.8 Appeals of refusals to correct or amend records.
5b.9 Disclosure of records.
5b.10 Parents and Guardians
5b.11 Exempt systems.
5b.12 Contractors.
5b.13 Fees.
Appendix A Employee standards of conduct.
Appendix B Routine uses for multiple systems of records.
Appendix C Delegations of Authority.
Authority: (5 U.S.C. 301, 5 U.S.C. 552a)
[text omitted]
§ 5b.11 Exempt systems.
(a) General policy. The Act permits certain types of specific systems of records to be exempt from some of its 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. (1) Those systems of records listed in paragraph (b)(2) of this section are exempt from the following provisions of the Act and this Part:
(i) 5 U.S.C. 552a(c)(3) and paragraph (c)(2) of § 5b.9 of this part which require a subject individual to be granted access to an accounting of disclosures of a record.
(ii) 5 U.S.C. 552a(d)(1) through (4) and (f) and §§ 5b.6, 5b.7, and 5b.8 of this part relating to notification of or access to records and correction or amendment of records.
(iii) 5 U.S.C. 552a(e)(4)(G) and (H) which require inclusion of information about Department procedures for notification, access, and correction or amendment of records in the notice for the system of records.
(iv) 5 U.S.C. 552a(e)(3) and paragraph (a)(3) of § 5b.4 of this Part which require that an individual asked to provide a record to the Department be informed of the authority for providing the record (including whether the providing of the record is mandatory or voluntary, the principal purposes for maintaining the record, the routine uses for the record, and what effect his refusal to provide the record may have on him), and if the record is not required by statute or Executive Order to be provided by the individual, he agrees to provide the record. This exemption applies only to an investigatory record compiled by the Department for criminal law enforcement purposes in a system of records exempt under subsection (j)(2) of the Act to the extent that these requirements would prejudice the conduct of the investigation.
(2) The following systems of records are exempt from those provisions of the Act and this part listed in paragraph (b)(1) of this section.
(i) Pursuant to subsection (j)(2) of the Act:
(A) text omitted]; and
(B) the Investigatory Material Compiled for Law Enforcement Purposes System, HEW.
(ii) Pursuant to subsection (k)(2) of the Act: [text omitted]
(iii) Pursuant to subsection (k)(4) of the Act: [text omitted]
(iv) Pursuant to subsection (k)(5) of the Act:
(A) the Investigatory Material Compiled for Security and Suitability Purposes System, HEW; and
(B) the Suitability for Employment Records, HEW.
(v) Pursuant to subsections (j)(2), (k)(2), and (k)(5) of the Act: [text omitted]
(c) Notification of or access…[text omitted]
(d) Discretionary actions…[text omitted]
§ 5b.12 Contractors.
[text omitted]
§ 5b.13 Fees.
[text omitted]
Appendix A
Employee Standards of Conduct
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Appendix B
Routine Uses Applicable to More Than One System of Records Maintained by HEW
[text omitted]
Appendix C
Delegations of Authority [Reserved]
[FR Doc. 75-26924 Filed 10-2-75; 4:23 pm]
40 FR 34129 (NPRM - EXCERPT) SORNS 09-20-0164, 09-20-0165, 09-20-0166
Federal Register
Proposed Rules
Department of Health, Education, and Welfare
Office of the Secretary
[45 CFR Part 5b]
Privacy Act
Notice of Proposed Rulemaking
Date: August 14, 1975
Summary: Notice is hereby given that the Secretary proposes regulations to implement the Privacy Act, Public Law 93-579, which becomes effective on September 27, 1975.
[text omitted]
Under subsections (j) and (k) of the Privacy Act, agency heads may promulgate rules, in accordance with section 553 of the Administrative Procedure Act, exempting any system of records from certain provisions of the Privacy Act provided that the system falls within one of these subsections’ categories of systems which are permitted to be exempted. As provided in section 553 of the Administrative Procedure Act, agency heads must publish a general notice of the proposed exemption and must include in that notice the specific provisions from which the system is proposed to be exempted and the rationale for the necessity of the exemption.
It is the policy of the Department to use this exemption authority sparingly. Requests for exemptions submitted to the Secretary must include full justification for exempting the system of records.
Those specific systems of records which the Secretary now proposes to exempt under the authority of subsections (j) and (k) of the Act are included in § 5b.9 of this Part. Additional exemptions may also be proposed in the near future.
The “Saint Elizabeths…text omitted]
The “Health and Demographic Surveys Conducted in Random Samples of the U.S. Population,” the “Health Manpower Inventories and Surveys,” and the “Vital Statistics for all Births, Deaths, marriages and Divorces Occuring in the U.S. During Each Year” are systems of records proposed to be exempted, as provided in subsection (k)(4) of the Act, from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of the Act. These systems are maintained by the National Center for Health Statistics under the authority of sections 306(b)(1), 306(b)(1)(E), and 306(h) of Public Law 93-353, or the Health Services Research, Health Statistics, and Medical Libraries Act of 1974, respectively. Section 308(d) of that Act requires these systems of records to be maintained and used solely as statistical records. In addition to demographic and socioeconomic characteristics, these records contain individually identifiable information relating to the incidence of illness and accidental injuries, prevalence of diseases and impairments, marital and childbearing histories, use of pre-natal care, educational statistics of individuals trained in specific health occupations, and vital statistics for births, deaths, marriages, and divorce. The information contained in these records is not used in whole or in part in making any determination about an identifiable individual, and as required by section 308(d) it is not published or released in a form which would identify the individual who supplies it or the individual who it is about.
The (k)(4) exemption is proposed for these systems of records to assure continued and uninterrupted activity in the area of health services statistical research and development. Currently, much of the information contained in these records is obtained through the voluntary cooperation of States, localities, hospitals, physicians, family planning agencies, and other organizations with the understanding that the National Center for Health Statistics will not disclose to anyone the personally identifiable information supplied by these sources. If these systems of records were not exempted from the access provisions of the Privacy Act, the continued cooperation to these sources would not be guaranteed, and therefore the health statistical activities and efforts of the National Center for Health Statistics would be severly disadvantaged.
Prior to the final adoption of the proposed regulation, consideration will be given to comments which are submitted in writing on or before September 15, 1975.
Comments should be addressed to the Director, Fair Information Practices Staff, Department of Health, Education and Welfare, 330 Independence Avenue, S.W., Washington, D.C. 20201. Comments received will be available for inspection in Room 4513, at the above address.
Dated: August 8, 1975.
CASPAR W. WEINBERGER,
Secretary.
Part 5b—Privacy Act Regulation
Sec.
5b.1 Purpose and scope.
5b.2 Policy.
5b.3 Definitions.
5b.4 Maintenance of personal information.
5b.5 Procedures for requesting information contained in a system of records.
5b.6 Requests for the correction or amendment of record.
5b.7 Disclosure of records to persons other than the subject individual.
5b.8 Fees.
5b.9 Exemptions.
Appendix A Internal procedures.
Appendix B Routine uses for multiple systems of records.
Appendix C Delegations of authority.
Authority: (5 U.S.C. 301, 5 U.S.C. 552a).
§ 5b.1 Purpose and scope.
[text omitted]
§ 5b.2 Policy.
[text omitted]
§ 5b.3 Definitions.
[text omitted]
§ 5b.4 Maintenance of personal information.
[text omitted]
§ 5b.5 Procedures for requesting information contained in a system of records.
[text omitted]
§ 5b.6 Requests for the correction or amendment of record.
[text omitted]
§ 5b.7 Disclosure of records to persons other than the subject individual.
[text omitted]
§ 5b.8 Fees.
[text omitted]
§ 5b.9 Exemptions.
(a) General policy. The Act permits certain specific systems of records to be exempt from some of the requirements of the Act. Unless delegated in writing the Secretary reserves the authority to make determinations on exemptions. It is the policy of the Department to exercise authority to exempt systems of records only in compelling cases. Requests for exemptions will be made to the Secretary with a full justification for exempting the system of records.
(b) Systems of records exempted. (1) As provided in subsection (j)(2) of the Act, the Saint Elizabeths…[text omitted]
(2) As provided in subsection (k)(4) of the Act, 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 individuals which is relevant and necessary to accomplish an agency purpose; annually publish access procedures and categories of sources of records in the system; 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 record, and procedures for establishing fees.
(i) The Health and Demographic Surveys Conduct in Random Samples of the U.S. Population, a system of records authorized under section 306(b)(1) of Public law 93-353, the “Health Services Research, Health Statistics, and Medical Libraries Act of 1974,” and required under section 308(d) of that Act to be maintained and used solely as statistical records.
(ii) The Health Manpower Inventories and Surveys, a system of records authorized under section 306(b)(1)(E) of Public Law 93-353, the “Health Services Research, Health Statistics, and Medical Libraries Act of 1974,” and required under section 308(d) of that Act to be maintained and used solely as statistical records.
(iii) The Vital Statistics for all Births, Deaths, Fetal Deaths, Marriages and Divorces Occurring in the U.S. during each year, a system of records authorized under section 306(h) of Public Law 93-353, the “Health Services Research, Health Statistics, and Medical Libraries Act of 1974,” and required under section308(d) of that Act to be maintained and used solely as statistical records.
Note: The following material is designed to inform the public on basics concerning internal procedures to be established. Further discussion on internal procedures will be issued in appropriate staff manuals.
Appendix A
[text omitted]
Appendix B
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Appendix C
[text omitted]
[FR Doc 75-21317 Filed 8-13-75; 8:45 am]