[Federal Register: July 16, 2007 (Volume 72, Number 135)]
[Rules and Regulations]
[Page 38778-38783]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy07-7]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Privacy Act of 1974; Implementation
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board (NLRB) issues a final rule
exempting three systems of records and portions of four other systems
of records from certain provisions of the Privacy Act of 1974, 5 U.S.C.
552a, pursuant to Section (k)(2) of that Act, 5 U.S.C. 552a(k)(2), and
amending existing Privacy Act regulations for clarity.
DATES: Effective July 16, 2007.
FOR FURTHER INFORMATION CONTACT: Tommie Gregg, Sr., Privacy Officer,
National Labor Relations Board, Room 7608, 1099 14th Street, NW.,
Washington, DC 20570-0001, (202) 273-2833, Tommie.Gregg@nlrb.gov.
SUPPLEMENTARY INFORMATION: On December 13, 2006, the NLRB published in
the Federal Register a notice proposing twelve systems of records under
the Privacy Act of 1974, nine of which consist of an electronic case
tracking system and associated paper or electronic files, and the
remaining three systems consist of electronic case tracking systems
only. The same day, the NLRB also published in the Federal Register a
notice of proposed rule exempting three of the systems of records and
portions of four other systems of records from certain provisions of
the Privacy Act, and amending the NLRB's existing Privacy Act
regulations for clarity. Both notices provided for a public comment
period.
In the absence of any comments, the proposed systems of records
became final 40 days thereafter.
No comments were filed regarding the proposed rule exempting three
of the systems of records and portions of four other systems of records
from certain provisions of the Privacy Act, and amending the NLRB's
existing Privacy Act regulations for clarity. Accordingly, the Board
has decided to implement the proposed rule as a final rule, with
changes to certain CFR section numbers. In particular, the proposed
rule amended the Agency's existing Privacy Act regulations by removing
them from Sections 102.117(f) through (q) of subpart K, and inserting
them as Sections 102.117a(a) through (n) of subpart K. In order to
maintain the orderly codification of the CFR, the Agency's Privacy Act
regulations instead will be inserted as Sections 102.119(a) through (n)
of subpart K. The Agency's current regulation at subpart L, Section
102.119 (Post-employment Restriction on Activities by Former Officers
and Employees), is now re-designated as subpart L, Section 102.120.
This rule relates to individuals rather than small business
entities. Accordingly, pursuant to the requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, this rule will not have a
significant impact on a substantial number of small business entities.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the Agency has determined that this rule will not impose
new recordkeeping, application, reporting, or other types of
information collection requirements on the public.
The rule will not have a substantial direct effect on the States,
on the relationship between the national Government and the States, or
on the distribution of power and responsibilities among levels of
government. Therefore, it is determined that this rule does not have
federalism implications under Executive Order 13132.
In accordance with Executive Order 12866, it has been determined
that this rule is not a ``significant regulatory action,'' and
therefore does not require a Regulatory Impact Analysis.
List of Subjects in 29 CFR Part 102
Privacy, Reporting and recordkeeping requirements.
0
For the reasons stated in the above Supplementary Information section,
Part 102 of title 29, ch. I of the Code of Federal Regulations, is
amended as follows:
PART 102--RULES AND REGULATIONS, SERIES 8
0
1. The authority citation for part 102 is revised to read as follows:
Authority: Sections 1, 6, National Labor Relations Act (29
U.S.C. 151, 156). Section 102.117 also issued under section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)), and Section 102.117a also issued under section
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and
(k)). Sections 102.143 through 102.155 also issued under section
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C.
504(c)(1)).
0
2. Section 102.117 is amended by removing paragraphs (f) through (q)
and by revising the section heading to read as follows:
Sec. 102.117 Freedom of Information Act Regulations: Board materials
and formal documents available for public inspection and copying;
requests for described records; time limit for response; appeal from
denial of request; fees for document search and duplication; files and
records not subject to inspection.
* * * * *
Sec. 102.119 [Redesignated as Sec. 102.120]
0
3. Section 102.119 is redesignated as Sec. 102.120.
0
4. A new Sec. 102.119 is added to subpart K to read as follows:
Sec. 102.119 Privacy Act Regulations: notification as to whether a
system of records contains records pertaining to requesting
individuals; requests for access to records, amendment of such records,
or accounting of disclosures; time limits for response; appeal from
denial of requests; fees for document duplication; files and records
exempted from certain Privacy Act requirements.
(a) An individual will be informed whether a system of records
maintained by this Agency contains a record pertaining to such
individual. An inquiry should be made in writing or in person during
normal business hours to the official of this Agency designated for
that purpose and at the address set forth in a notice of a system of
records published by this Agency, in a Notice of Systems of
Governmentwide Personnel Records published by the Office of Personnel
Management, or in a Notice of Governmentwide Systems of Records
published by the Department of Labor. Copies of such notices, and
assistance in preparing an inquiry, may be obtained from any Regional
Office of the Board or at the Board offices at 1099 14th Street, NW.,
Washington, DC 20570. The inquiry should contain sufficient
information, as defined in the notice, to identify the record.
Reasonable verification of the identity of the inquirer, as
described in
[[Page 38779]]
paragraph (e) of this section, will be required to assure that
information is disclosed to the proper person. The Agency shall
acknowledge the inquiry in writing within 10 days (excluding Saturdays,
Sundays, and legal public holidays) and, wherever practicable, the
acknowledgment shall supply the information requested. If, for good
cause shown, the Agency cannot supply the information within 10 days,
the inquirer shall within that time period be notified in writing of
the reasons therefor and when it is anticipated the information will be
supplied. An acknowledgment will not be provided when the information
is supplied within the 10-day period. If the Agency refuses to inform
an individual whether a system of records contains a record pertaining
to an individual, the inquirer shall be notified in writing of that
determination and the reasons therefor, and of the right to obtain
review of that determination under the provisions of paragraph (f) of
this section. The provisions of this paragraph do not apply to the
extent that requested information from the relevant system of records
has been exempted from this Privacy Act requirement.
(b) An individual will be permitted access to records pertaining to
such individual contained in any system of records described in the
notice of system of records published by this Agency, or access to the
accounting of disclosures from such records. The request for access
must be made in writing or in person during normal business hours to
the person designated for that purpose and at the address set forth in
the published notice of system of records. Copies of such notices, and
assistance in preparing a request for access, may be obtained from any
Regional Office of the Board or at the Board offices at 1099 14th
Street, NW., Washington, DC 20570. Reasonable verification of the
identity of the requester, as described in paragraph (e) of this
section, shall be required to assure that records are disclosed to the
proper person. A request for access to records or the accounting of
disclosures from such records shall be acknowledged in writing by the
Agency within 10 days of receipt (excluding Saturdays, Sundays, and
legal public holidays) and, wherever practicable, the acknowledgment
shall inform the requester whether access will be granted and, if so,
the time and location at which the records or accounting will be made
available. If access to the record or accounting is to be granted, the
record or accounting will normally be provided within 30 days
(excluding Saturdays, Sundays, and legal public holidays) of the
request, unless for good cause shown the Agency is unable to do so, in
which case the individual will be informed in writing within that 30-
day period of the reasons therefor and when it is anticipated that
access will be granted. An acknowledgment of a request will not be
provided if the record is made available within the 10-day period.
If an individual's request for access to a record or an accounting
of disclosure from such a record under the provisions of this paragraph
is denied, the notice informing the individual of the denial shall set
forth the reasons therefor and advise the individual of the right to
obtain a review of that determination under the provisions of paragraph
(f) of this section. The provisions of this paragraph do not apply to
the extent that requested information from the relevant system of
records has been exempted from this Privacy Act requirement.
(c) An individual granted access to records pertaining to such
individual contained in a system of records may review all such
records. For that purpose the individual may be accompanied by a person
of the individual's choosing, or the record may be released to the
individual's representative who has written consent of the individual,
as described in paragraph (e) of this section. A first copy of any such
record or information will ordinarily be provided without charge to the
individual or representative in a form comprehensible to the
individual. Fees for any other copies of requested records shall be
assessed at the rate of 10 cents for each sheet of duplication.
(d) An individual may request amendment of a record pertaining to
such individual in a system of records maintained by this Agency. A
request for amendment of a record must be in writing and submitted
during normal business hours to the person designated for that purpose
and at the address set forth in the published notice for the system of
records containing the record of which amendment is sought. Copies of
such notices, and assistance in preparing a request for amendment, may
be obtained from any Regional Office of the Board or at the Board
offices at 1099 14th Street, NW., Washington, DC 20570. The requester
must provide verification of identity as described in paragraph (e) of
this section, and the request should set forth the specific amendment
requested and the reason for the requested amendment. The Agency shall
acknowledge in writing receipt of the request within 10 days of receipt
(excluding Saturdays, Sundays, and legal public holidays) and, wherever
practicable, the acknowledgment shall advise the individual of the
determination of the request. If the review of the request for
amendment cannot be completed and a determination made within 10 days,
the review shall be completed as soon as possible, normally within 30
days (Saturdays, Sundays, and legal public holidays excluded) of
receipt of the request unless unusual circumstances preclude completing
the review within that time, in which event the requester will be
notified in writing within that 30-day period of the reasons for the
delay and when the determination of the request may be expected. If the
determination is to amend the record, the requester shall be so
notified in writing and the record shall be amended in accordance with
that determination. If any disclosures accountable under the provisions
of 5 U.S.C. 552a(c) have been made, all previous recipients of the
record which was amended shall be advised of the amendment and its
substance. If it is determined that the request should not be granted,
the requester shall be notified in writing of that determination and of
the reasons therefor, and advised of the right to obtain review of the
adverse determination under the provisions of paragraph (f) of this
section. The provisions of this paragraph do not apply to the extent
that requested information from the relevant system of records has been
exempted from this Privacy Act requirement.
(e) Verification of the identification of individuals required
under paragraphs (a), (b), (c), and (d) of this section to assure that
records are disclosed to the proper person shall be required by the
Agency to an extent consistent with the nature, location, and
sensitivity of the records being disclosed. Disclosure of a record to
an individual in person will normally be made upon the presentation of
acceptable identification. Disclosure of records by mail may be made on
the basis of the identifying information set forth in the request.
Depending on the nature, location, and sensitivity of the requested
record, a signed notarized statement verifying identity may be required
by the Agency. Proof of authorization as representative to have access
to a record of an individual shall be in writing, and a signed
notarized statement of such authorization may be required by the Agency
if the record requested is of a sensitive nature.
(f)(1) Review may be obtained with respect to:
(i) A refusal, under paragraph (a) or (g) of this section, to
inform an
[[Page 38780]]
individual if a system of records contains a record concerning that
individual,
(ii) A refusal, under paragraph (b) or (g) of this section, to
grant access to a record or an accounting of disclosure from such a
record, or
(iii) A refusal, under paragraph (d) of this section, to amend a
record.
(iv) The request for review should be made to the Chairman of the
Board if the system of records is maintained in the office of a Member
of the Board, the office of the Executive Secretary, the office of the
Solicitor, the Division of Information, or the Division of
Administrative Law Judges. Consonant with the provisions of section
3(d) of the National Labor Relations Act, and the delegation of
authority from the Board to the General Counsel, the request should be
made to the General Counsel if the system of records is maintained by
an office of the Agency other than those enumerated above. Either the
Chairman of the Board or the General Counsel may designate in writing
another officer of the Agency to review the refusal of the request.
Such review shall be completed within 30 days (excluding Saturdays,
Sundays, and legal public holidays) from the receipt of the request for
review unless the Chairman of the Board or the General Counsel, as the
case may be, for good cause shown, shall extend such 30-day period.
(2) If, upon review of a refusal under paragraph (a) or (g) of this
section, the reviewing officer determines that the individual should be
informed of whether a system of records contains a record pertaining to
that individual, such information shall be promptly provided. If the
reviewing officer determines that the information was properly denied,
the individual shall be so informed in writing with a brief statement
of the reasons therefor.
(3) If, upon review of a refusal under paragraph (b) or (g) of this
section, the reviewing officer determines that access to a record or to
an accounting of disclosures should be granted, the requester shall be
so notified and the record or accounting shall be promptly made
available to the requester. If the reviewing officer determines that
the request for access was properly denied, the individual shall be so
informed in writing with a brief statement of the reasons therefor, and
of the right to judicial review of that determination under the
provisions of 5 U.S.C. 552a(g)(1)(B).
(4) If, upon review of a refusal under paragraph (i) of this
section, the reviewing official grants a request to amend, the
requester shall be so notified, the record shall be amended in
accordance with the determination, and, if any disclosures accountable
under the provisions of 5 U.S.C. 552a(c) have been made, all previous
recipients of the record which was amended shall be advised of the
amendment and its substance. If the reviewing officer determines that
the denial of a request for amendment should be sustained, the Agency
shall advise the requester of the determination and the reasons
therefor, and that the individual may file with the Agency a concise
statement of the reason for disagreeing with the determination, and may
seek judicial review of the Agency's denial of the request to amend the
record. In the event a statement of disagreement is filed, that
statement--
(i) Will be made available to anyone to whom the record is
subsequently disclosed together with, at the discretion of the Agency,
a brief statement summarizing the Agency's reasons for declining to
amend the record, and
(ii) Will be supplied, together with any Agency statements, to any
prior recipients of the disputed record to the extent that an
accounting of disclosure was made.
(g) To the extent that portions of system of records described in
notices of Governmentwide systems of records published by the Office of
Personnel Management are identified by those notices as being subject
to the management of an officer of this Agency, or an officer of this
Agency is designated as the official to contact for information,
access, or contents of those records, individual requests for access to
those records, requests for their amendment, and review of denials of
requests for amendment shall be in accordance with the provisions of 5
CFR part 297, subpart A, Sec. 297.101, et seq., as promulgated by the
Office of Personnel Management. To the extent that portions of system
of records described in notices of Governmentwide system of records
published by the Department of Labor are identified by those notices as
being subject to the management of an officer of this Agency, or an
officer of this Agency is designated as the official to contact for
information, access, or contents of those records, individual requests
for access to those records, requests for their amendment, and review
of denials of requests for amendment shall be in accordance with the
provisions of this rule. Review of a refusal to inform an individual
whether such a system of records contains a record pertaining to that
individual and review of a refusal to grant an individual's request for
access to a record in such a system may be obtained in accordance with
the provisions of paragraph (f) of this section.
(h) Pursuant to 5 U.S.C. 552a(j)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that contains Investigative Files shall be exempted
from the provisions of 5 U.S.C. 552a, except subsections (b), (c)(1)
and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and
(i), from 29 CFR 102.117(c) and (d), and from 29 CFR 102.119(a), (b),
(c), (d), (e), and (f), insofar as the system contains investigatory
material compiled for criminal law enforcement purposes.
(i) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that contains the Investigative Files shall be exempted
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and
(f), from 29 CFR 102.117 (c) and (d), and from 29 CFR 102.119(a), (b),
(c), (d), (e), and (f), insofar as the system contains investigatory
material compiled for law enforcement purposes not within the scope of
the exemption at 29 CFR 102.119(h).
(j) Privacy Act exemptions contained in paragraphs (h) and (i) of
this section are justified 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/her 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 this system
of records is being exempted from subsection (d) of the Act, concerning
access to records, this section is inapplicable to the extent that this
system of records will be
[[Page 38781]]
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/her, 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 this system 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/her
activities, or 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.
(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 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/her jurisdiction. In the
interest of effective law enforcement, OIG 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, thereby
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 that could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise an 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/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record and
how to contest its content. Since this system of records is being
exempted from subsection (f) of the Act, concerning agency rules, and
subsection (d) of the Act, concerning access to records, these
requirements are inapplicable to the extent that this system of records
will be exempt from subsections (f) and (d) of the Act. Although the
system would be exempt from these requirements, OIG has published
information concerning its notification, access, and contest procedures
because, under certain circumstances, OIG could decide it is
appropriate for an individual to have access to all or a portion of
his/her records in this system 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 the system will be exempt from this requirement, OIG has
published such a notice in broad generic terms.
(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
could 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 seems unrelated,
irrelevant, or incomplete when collected can 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.
[[Page 38782]]
(11) 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/her request if any system of records named by the
individual contains a record pertaining to him/her. The application of
this provision could impede or compromise an investigation or
prosecution if the subject of an investigation were 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 and 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 this
system would be exempt from subsection (d) of the Act, concerning
access to records, the requirements of subsection (f)(2) through (5) of
the Act, concerning agency rules for obtaining access to such records,
are inapplicable to the extent that this system of records will be
exempted from subsection (d) of the Act. Although this system would be
exempt from the requirements of subsection (f) of the Act, OIG has
promulgated rules which establish agency procedures because, under
certain circumstances, it could be appropriate for an individual to
have access to all or a portion of his/her records in this system of
records.
(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 this system of records would be exempt
from subsections (c)(3) and (4), (d), (e)(1), (2), and (3) and (4)(G)
through (I), (e)(5), and (8), and (f) of the Act, the provisions of
subsection (g) of the Act would be inapplicable to the extent that this
system of records will be exempted from those subsections of the Act.
(k) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the NLRB containing Agency Disciplinary Case Files
(Nonemployees) shall be exempted from the provisions of 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) insofar as
the system contains investigatory material compiled for law enforcement
purposes other than material within the scope of 5 U.S.C. 552a(j)(2).
(l) The Privacy Act exemption set forth in paragraph (k) of this
section is claimed on the ground that the requirements of subsections
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of the Privacy
Act, if applied to Agency Disciplinary Case Files, would seriously
impair the ability of the NLRB to conduct investigations of alleged or
suspected violations of the NLRB's misconduct rules, as set forth in
paragraphs (j)(1), (3), (4), (7), (8), and (11) of this section.
(m) Pursuant to 5 U.S.C. 552a(k)(2), the following three proposed
systems of records shall be exempted in their entirety from the
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I), and (f), because the systems contain investigatory material
compiled for law enforcement purposes, other than material within the
scope of 5 U.S.C. 552a(j)(2): Case Activity Tracking System (CATS) and
Associated Regional Office Files (NLRB-25), Regional Advice and
Injunction Litigation System (RAILS) and Associated Headquarters Files
(NLRB-28), and Appeals Case Tracking System (ACTS) and Associated
Headquarters Files (NLRB-30). Pursuant to 5 U.S.C. 552a(k)(2), limited
categories of information from the following four proposed systems of
records shall be exempted from the provisions of 5 U.S.C. 552a(c)(3),
(d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f), insofar as the
systems contain investigatory material compiled for law enforcement
purposes, other than material within the scope of 5 U.S.C. 552a(j)(2):
(1) the Judicial Case Management Systems-Pending Case List (JCMS-
PCL) and Associated Headquarters Files (NLRB-21)--information relating
to requests to file injunctions under 29 U.S.C. 160(j), requests to
initiate federal court contempt proceedings, certain requests that the
Board initiate litigation or intervene in non-Agency litigation, and
any other investigatory material compiled for law enforcement purposes;
(2) the Solicitor's System (SOL) and Associated Headquarters Files
(NLRB-23)--information relating to requests to file injunctions under
29 U.S.C. 160(j), requests to initiate federal court contempt
proceedings, certain requests that the Board initiate litigation or
intervene in non-Agency litigation, and any other investigatory
material compiled for law enforcement purposes;
(3) the Special Litigation Case Tracking System (SPLIT) and
Associated Headquarters Files (NLRB-27)--information relating to
investigative subpoena enforcement cases, injunction and mandamus
actions regarding Agency cases under investigation, bankruptcy case
information in matters under investigation, Freedom of Information Act
cases involving investigatory records, certain requests that the Board
initiate litigation or intervene in non-Agency litigation, and any
other investigatory material compiled for law enforcement purposes; and
(4) The Freedom of Information Act Tracking System (FTS) and
Associated Agency Files (NLRB-32)--information requested under the
Freedom of Information Act, 5 U.S.C. 552, that relates to the Agency's
investigation of unfair labor practice and representation cases or
other proceedings described in paragraphs (m)(1) through (3) of this
section.
(n) The reasons for exemption under 5 U.S.C. 552a(k)(2) are as
follows:
(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 such individual's request. These accountings must state the
date, nature, and purpose of each disclosure of a record, and the name
and address of the recipient. Providing such an accounting of
investigatory information to a party in an unfair labor practice or
representation matter under investigation could inform that individual
of the precise scope of an Agency investigation, or the existence or
scope of another law enforcement investigation. Accordingly, this
Privacy Act requirement could seriously impede or compromise either the
Agency's investigation, or another law enforcement investigation, by
causing the improper influencing of witnesses, retaliation against
witnesses, destruction of evidence, or fabrication of testimony.
(2) 5 U.S.C. 552a(d) requires an agency to permit an individual to
gain access to records pertaining to such individual, to request
amendment to such records, to request review of an agency decision not
to amend such records, and, where the Agency refuses to amend records,
to submit a statement of disagreement to be included with the records.
Such disclosure of investigatory information could seriously impede or
compromise the Agency's investigation by revealing the identity of
confidential sources or confidential business information, or causing
the improper influencing of witnesses, retaliation against witnesses,
destruction of evidence, fabrication of testimony, or unwarranted
invasion of the privacy of others. Amendment of the records could
interfere with ongoing law enforcement proceedings and impose an undue
administrative burden by requiring
[[Page 38783]]
investigations to be continuously reinvestigated.
(3) 5 U.S.C. 552a(e)(1) requires an 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. This requirement could foreclose
investigators from acquiring or receiving information the relevance and
necessity of which is not readily apparent and could only be
ascertained after a complete review and evaluation of all the evidence.
(4) 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 the individual's request, if the system of records
contains a record pertaining to the individual, for gaining access to
such a record, and for contesting its content. Because certain
information from these systems of records is exempt from subsection (d)
of the Act concerning access to records, and consequently, from
subsection (f) of the Act concerning Agency rules governing access,
these requirements are inapplicable to that information.
(5) 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 sources of information, to protect
against the disclosure of investigative techniques and procedures, to
avoid threats or reprisals against informers by subjects of
investigations, and to protect against informers refusing to give full
information to investigators for fear of having their identities as
sources revealed.
(6) 5 U.S.C. 552a(f) requires an agency to promulgate rules for
notifying individuals of Privacy Act rights granted by subsection (d)
of the Act concerning access and amendment of records. Because certain
information from these systems is exempt from subsection (d) of the
Act, the requirements of subsection (f) of the Act are inapplicable to
that information.
Dated: Washington, DC, July 10, 2007.
By Direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. E7-13684 Filed 7-13-07; 8:45 am]
BILLING CODE 7545-01-P