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Privacy Act of 1974: Implementation
FR Doc E7-19129 [Federal Register: September 27, 2007 (Volume 72, Number
187)] [Rules and Regulations] [Page 54825-54826] From the Federal Register
Online via GPO Access [wais.access.gpo.gov] [DOCID:fr27se07-8]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
28 CFR PART 16
[AAG/A Order No. 032-2007]
Privacy Act of 1974: Implementation
AGENCY: Drug Enforcement Administration, DOJ.
ACTION: Final rule.
SUMMARY: The Department of Justice (DOJ), Drug Enforcement
Administration (DEA), is exempting a Privacy Act system of records from the
following subsections of the Privacy Act: (c)(3) and (4), (d)(1), (2), (3),
and (4); (e)(1), (2), (3), (5), and (8); and (g), pursuant to 5 U.S.C. 552a
(j) and (k). The Privacy Act system of records is the "El Paso Intelligence
Center (EPIC) Seizure System, (JUSTICE/DEA- 022).'' The exemptions are
necessary to prevent the compromise of ongoing investigative efforts, to help
ensure the integrity of law enforcement and investigatory information, to
ensure third party privacy, and to protect the physical safety of sources of
information and law enforcement personnel.
DATES: Effective Date: This final rule is effective September 27,
2007.
FOR FURTHER INFORMATION CONTACT: Joo Chung, Counsel, Privacy and
Civil Liberties Office, 202-514-4921.
SUPPLEMENTARY INFORMATION: On June 26, 2006 (71 FR 36294), a
proposed rule was published in the Federal Register with an invitation to
comment. No comments were received. This final rule contains corrections to
typographic errors appearing in the proposed rule and a revised justification
for the exemption claimed from subsection (e)(3), found at (h)(6). The revised
justification more specifically addresses the Privacy Act's notice requirement
of subsection (e)(3) and, therefore increases the accuracy and clarity of the
final rule.
This rule relates to individuals rather than to small business entities.
Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act,
5 U.S.C. 601-612, this rule will not have a significant economic impact on a
substantial number of small entities.
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedure, Freedom of Information Act,
Government in the Sunshine Act, and Privacy Act.
0 Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a
and delegated to me by Attorney General Order No. 793-78, 28 CFR part 16 is
amended as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
- 1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g) and 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717 and 9701.
- 2. Section 16.98 is amended by adding paragraphs (g) and (h) to read as
follows:
Sec. 16.98 Exemption of Drug Enforcement Administration Systems--
limited access.
* * * * *
(g) The following system of records is exempt from 5 U.S.C. 552a (c)(3) and
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and (8); and (g): El
Paso Intelligence Center (EPIC) Seizure System (ESS) (JUSTICE/DEA-022). These
exemptions apply only to the extent that information in this system is subject
to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), and (k)(2). Where
compliance would not appear to interfere with or adversely affect the law
enforcement and counter-drug purposes of this system, and the overall law
enforcement process, the applicable exemption may be waived by the DEA in its
sole discretion.
(h) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available to a record subject the
accounting of disclosures from records concerning him/her would potentially
reveal any investigative interest in the individual. Revealing this
information would permit the subject of an
[[Page 54826]]
investigation of an actual or potential criminal, civil, or regulatory
violation to determine whether he is the subject of investigation, or to
obtain valuable information concerning the nature of that investigation, and
the information obtained, or the identity of witnesses and informants.
Similarly, disclosing this information could reasonably be expected to
compromise ongoing investigatory efforts by notifying the record subject that
he/she is under investigation. This information could also permit the record
subject to take measures to impede the investigation, e.g., destroy evidence,
intimidate potential witnesses, or flee the area to avoid or impede the
investigation.
(2) From subsection (c)(4) because this system is exempt from the access
and amendment provisions of subsection (d).
(3) From subsections (d)(1), (2), (3), and (4) because these provisions
concern individual access to and amendment of records contained in this
system, which consists of counter-drug and criminal investigatory records.
Compliance with these provisions could alert the subject of an investigation
of an actual or potential criminal, civil, or regulatory 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 witnesses and
informants, or would provide information that could enable the subject to
avoid detection or apprehension. These factors would present a serious
impediment to effective law enforcement because they could prevent the
successful completion of the investigation; endanger the physical safety of
witnesses or informants; or lead to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony.
(4) From subsection (e)(1) because it is not always possible to know in
advance what information is relevant and necessary to complete an identity
comparison between the individual being screened and a known or suspected
criminal or terrorist. Also, it may not always be known what information will
be relevant to law enforcement for the purpose of conducting an operational
response or on-going investigation.
(5) From subsection (e)(2) because application of this provision could
present a serious impediment to law enforcement and counter-drug efforts in
that it would put the subject of an investigation, study or analysis on notice
of that fact, thereby permitting the subject to engage in conduct designed to
frustrate or impede that activity. The nature of counter-drug investigations
is such that vital information about an individual frequently can be obtained
only from other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely upon information
furnished by the individual concerning his own activities.
(6) From subsection (e)(3) because the requirements thereof would
constitute a serious impediment to law enforcement in that they could
compromise the existence of an actual or potential confidential investigation
and/or permit the record subject to speculate on the identity of a potential
confidential source, and endanger the life, health or physical safety of
either actual or potential confidential informants and witnesses, and of
investigators/law enforcement personnel. In addition, the notification
requirement of subsection (e)(3) could impede collection of that information
from the record subject, making it necessary to collect the information solely
from third party sources and thereby inhibiting law enforcement efforts.
(7) From subsection (e)(5) because many of the records in this system are
derived from other domestic record systems and therefore it is not possible
for the DEA and EPIC to vouch for their compliance with this provision. In
addition, EPIC supports but does not conduct investigations; therefore, it
must be able to collect information related to illegal drug and other criminal
activities and encounters for distribution to law enforcement and intelligence
agencies that do conduct counter-drug investigations. In the collection of
information for law enforcement and counter-drug purposes, it is impossible to
determine in advance what information is accurate, relevant, timely, and
complete. With the passage of time, seemingly irrelevant or untimely
information may acquire new significance as further investigation brings new
details to light. The restrictions imposed by (e)(5) would limit the ability
of those agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development of
intelligence necessary for effective law enforcement and counterterrorism
efforts. EPIC has, however, implemented internal quality assurance procedures
to ensure that ESS data is as thorough, accurate, and current as possible. ESS
is also exempt from the requirements of subsection (e)(5) in order to prevent
the use of a challenge under subsection (e)(5) as a collateral means to obtain
access to records in the ESS. ESS records are exempt from the access and
amendment requirements of subsection (d) of the Privacy Act in order to
protect the integrity of investigations. Exempting ESS from subsection (e)(5)
serves to prevent the assertion of challenges to a record's accuracy,
timeliness, completeness, and/or relevance under subsection (e)(5) to
circumvent the exemption claimed from subsection (d).
(8) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on the DEA and EPIC and could alert the
subjects of counter-drug, counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously known.
Additionally, compliance could present a serious impediment to law enforcement
as this could interfere with the ability to issue warrants or subpoenas and
could reveal investigative techniques, procedures, or evidence.
(9) From subsection (g) to the extent that the system is exempt from other
specific subsections of the Privacy Act.
Dated: September 20, 2007.
Lee J. Lofthus,
Assistant Attorney General for Administration.
[FR Doc. E7-19129 Filed 9-26-07; 8:45 am]
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