[Federal Register: November 24, 1997 (Volume 62, Number 226)]
[Proposed Rules]
[Page 62669-62672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no97-21]
[[Page 62669]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Part 5b
Privacy Act Regulations; Proposed Rule Privacy Act of 1974; Notice
[[Page 62670]]
DEPARTMENT OF EDUCATION
34 CFR Part 5b
RIN 1880-AA78
Privacy Act Regulations
AGENCY: Office of Inspector General, Department of Education.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Secretary proposes to amend the Department's regulations
implementing the Privacy Act of 1974 (the Act). These amendments are
needed to modify existing departmental regulations to exempt from
certain provisions of the Act a new system of records known as the
Office of Inspector General (OIG) Hotline Complaints Files (System No.
18-10-0004) (ED/OIG Hotline Complaint Files). These exemptions are
needed to protect information regarding Hotline complaints from
disclosure to target individuals and others who could interfere with
the processing and disposition of the information and with law
enforcement activities relating to the Hotline complaints.
DATES: Comments must be received by the Department on or before January
8, 1998.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Dianne Van Riper, U.S. Department of Education, 600
Independence Avenue, SW., Room 4106, Switzer Building, Washington, DC
20202-1530. Comments may also be sent through the Internet to:
Comments@ed.gov
You must include the term ``Privacy Act'' in the subject line of
the electronic message.
To ensure that public comments have maximum effect in developing
the final regulations, the Department urges commenters to identify
clearly the specific section or sections of the proposed regulations
that each comment addresses and to arrange comments in the same order
as the proposed regulations.
FOR FURTHER INFORMATION CONTACT: Dianne Van Riper. Telephone: (202)
205-8762. Individuals who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-
877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through
Friday.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION:
Electronic Access to This Document
Anyone may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document
published in the Federal Register.
General
The proposed exemptions are authorized under the Privacy Act, 5
U.S.C. 552a(j)(2) and (k)(2). Under subsection (j)(2) of the Act, the
Secretary through rulemaking may exempt from certain provisions of the
Act those systems of records maintained by a component of the
Department that performs as its principal function any activity
pertaining to the enforcement of criminal laws, if the information in
the system is compiled for the purpose of criminal investigation. Under
5 U.S.C. 552a(k)(2), the Secretary through rulemaking may exempt from a
more limited number of Privacy Act requirements a system of records
that contains investigatory materials compiled for civil and
administrative law enforcement purposes.
The OIG is a component of the Department that performs as its
principal function investigations into violations of criminal law in
connection with the Department's programs and operations, pursuant to
the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3. The ED/
OIG Hotline Complaint Files system of records falls within the scope of
subsection (j)(2), i.e., information compiled for the purpose of
criminal investigation. The proposed (j)(2) exemptions for criminal law
enforcement records would remove restrictions on the manner in which
information may be collected and the type of information that may be
collected by OIG in processing Hotline information; would limit certain
requirements regarding notice to individuals; and would exempt the
system of records from civil remedies for violations of the Act. These
exemptions are necessary primarily to avoid premature disclosures of
sensitive information, including, but not limited to, the existence of
a criminal investigation, that may compromise or impede the disposition
of Hotline complaints and allegations.
The proposal to add (k)(2) exemptions reflects recognition that
certain records in the Hotline system may fall outside the (j)(2)
exemptions because they relate primarily to civil and administrative
law enforcement, such as allegations of misconduct by Department
employees in violation of the Standards of Conduct. Nevertheless, the
Act recognizes that these records may also properly be exempted from
certain disclosure and notice requirements, as well as restrictions on
the manner in which OIG may collect information, in order to avoid
compromising, impeding, or interfering with the disposition of those
Hotline complaints.
A more complete explanation of each proposed exemption follows.
A. Exemptions Pursuant to (j)(2)
The Secretary has determined that, to the extent the ED/OIG Hotline
Complaint Files consist of information compiled for the purpose of
criminal investigation, the system of records should be exempt from the
following provisions of the Privacy Act and corresponding departmental
regulations, as authorized under subparagraph (j)(2) of the Privacy
Act, for the following reasons:
1. 5 U.S.C. 552a(c)(3) and 34 CFR 5b.9(a)(1) require an agency to
make the accounting of disclosures from a system of records available
to the individual named in the record at the individual's request. If
the OIG made such an accounting available to target or source
individuals, the availability of that information could seriously
impede or compromise the processing of the Hotline complaint and any
resulting criminal investigation by prematurely revealing its existence
and nature, compromise or interfere with witnesses or make witnesses
reluctant to cooperate with the investigators, and lead to suppression,
alteration, or destruction of evidence.
2. 5 U.S.C. 552a(c)(4) and 34 CFR 5b.7(c) and 5b.8(b) require an
agency to inform parties to whom records have been disclosed about any
correction of records or a subject individual's
[[Page 62671]]
statement disputing information in the record. Because the Secretary
also proposes to exempt this system of records from the requirements to
correct records or to permit an individual to put in his or her records
a statement disagreeing with a decision not to correct records, the
requirement to inform parties who have received the record is not
applicable.
3. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)
and (c), 5b.7, and 5b.8 require an agency to provide access to records,
make corrections and amendments to records, and notify individuals of
the existence of records upon their request. Providing individuals with
access to records of Hotline complaints, permitting them to contest the
complaint contents, and allowing them to force changes to be made to
the information contained in those records seriously interfere with and
compromise the OIG's ability to conduct an orderly and unbiased
processing of Hotline complaints and would impede the conduct of
resulting investigations.
4. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to
maintain in its records only ``relevant and necessary'' information
about an individual. Because it is not always possible to detect the
relevance or necessity of each piece of information reported to the
Hotline or collected in the preliminary phase of an investigation, this
provision is inappropriate for Hotline complaints. In some cases, it is
only after the information is evaluated in light of other evidence that
its relevance and necessity is clear. In other cases, what may appear
to be a relevant and necessary piece of information may become
irrelevant in light of further inquiry or investigation. Also, the
Hotline may obtain information that relates primarily to matters under
the investigative jurisdiction of another agency (e.g., the fraudulent
use of social security numbers), and that information may not be
reasonably segregated. In the interest of effective law enforcement,
the OIG should retain this information, since it can aid in
establishing patterns of criminal activity and can provide valuable
leads for Federal and other law enforcement agencies.
5. 5 U.S.C. 552a(e)(2) and 34 CFR 5b.4(a)(3) require an agency to
collect information from the subject individual of the investigation.
The requirement that OIG collect information ``to the greatest extent
practicable'' from the target individual is not appropriate for the
Hotline Complaint Files system of records where allegations are
volunteered to OIG. To determine the proper disposition of the
complaint, it is often necessary to conduct an inquiry so that the
target individual does not suspect that he or she is being
investigated. The requirement to obtain information from targeted
individual may alert the suspect of an investigation resulting from a
Hotline complaint and thwart the investigation by enabling the suspect
to destroy evidence or take another avoidance action.
6. 5 U.S.C. 552a(e)(3) and 34 CFR 5b.4(a)(3) require an agency to
provide a Privacy Act notice in the collection of information from
individuals. Giving notice to a complainant would impair the OIG's
ability to collect candid and forthright information of criminal
wrongdoing from Hotline sources.
7. 5 U.S.C. 552a(e)(4)(G), (H), and (I) requires an agency to
publish notice of procedures for notification, access, and correction
of records and notice of the categories of sources of records in the
system. These requirements are unnecessary, since this system of
records will be exempt from the underlying duties imposed by the
Privacy Act. An exemption from (I) is required to protect the
confidentiality of sources of information and to protect the privacy
and physical safety of witnesses and informants.
8. 5 U.S.C. 552a(e)(5) requires an agency to maintain records with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness. The OIG makes every effort to maintain
records that are accurate, relevant, timely, and complete; however, it
is not always possible in processing a Hotline complaint to determine
with certainty that all the information collected is accurate,
relevant, timely, and complete.
9. 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual if any record on that
individual is made available under compulsory legal process if that
process becomes a matter of public record. If the OIG complied with
this provision, it could prematurely reveal and compromise an ongoing
criminal investigation that resulted from a Hotline complaint.
10. 5 U.S.C. 552a(g) requires an agency to be subjected to civil
remedies from an individual for alleged violations of the Privacy Act.
Allowing civil lawsuits for alleged Privacy Act violations would
compromise the orderly and objective processing of Hotline complaints
and the conduct of resulting criminal investigations by subjecting the
sensitive and confidential information in the ED/OIG Hotline Complaint
Files to the possibility of premature disclosure under the liberal
civil discovery rules. That discovery may reveal confidential sources,
the identity of informants, and investigative procedures and
techniques.
B. Exemptions Pursuant to (k)(2)
The Secretary has determined that, to the extent the ED/OIG Hotline
Complaint Files consist of investigatory material compiled for law
enforcement purposes, the system of records should be exempt from the
following provisions of the Privacy Act and corresponding departmental
regulations, as authorized by subparagraph (k)(2) of the Privacy Act,
for the following reasons:
1. 5 U.S.C. 552a(c)(3) and CFR 5b.9(c)(3) require an agency to make
the accounting of disclosures from a system of records available to the
individual named in the record at the individual's request. If the OIG
made such an accounting available to target or source individuals, the
availability of that information could seriously impede or compromise
the processing of the Hotline complaint and any resulting criminal
investigation by prematurely revealing its existence and nature,
compromise or interfere with witnesses or make witnesses reluctant to
cooperate with the investigators, and lead to suppression, alteration,
or destruction of evidence.
2. 5 U.S.C. 552a(d)(1) through (4) and (f) and 34 CFR 5b.5(a)(1)
and (c), 5b.7, and 5b.8 require an agency to provide access to records,
make corrections and amendments to records, and notify individuals of
the existence of records upon their request. Providing individuals with
access to records of Hotline complaints, permitting them to contest the
complaint contents, and allowing them to force changes to be made to
the information contained therein would seriously interfere with and
compromise the OIG's ability to conduct an orderly and unbiased
processing of Hotline complaints and would impede the conduct of
resulting investigations.
3. 5 U.S.C. 552a(e)(1) and 34 CFR 5b.4(a)(1) require an agency to
maintain in its records only ``relevant and necessary'' information
about an individual. Because it is not always possible to detect the
relevance or necessity of each piece of information reported to the
Hotline or collected in the preliminary phase of an investigation, this
provision is inappropriate for Hotline complaints. In some cases, it is
only after the information is evaluated in light of other evidence that
its relevance and necessity is clear. In other cases, what may appear
to be a relevant and necessary piece of information may
[[Page 62672]]
become irrelevant in light of further inquiry or investigation. Also,
the Hotline may obtain information that relates primarily to matters
under the investigative jurisdiction of another agency (e.g., the
fraudulent use of social security numbers), and that information may
not be reasonably segregated. In the interest of effective law
enforcement, the OIG should retain this information, since it can aid
in establishing patterns of criminal activity and can provide valuable
leads for Federal and other law enforcement agencies.
4. 5 U.S.C.552a(e)(4)(G), (H), and (I) requires an agency to
publish notice of procedures for notification, access, and correction
of records and notice of the categories of sources of records in the
system. These requirements are unnecessary, since this system of
records will be exempt from the underlying duties imposed by the
Privacy Act. An exemption from (I) is required to protect the
confidentiality of sources of information and to protect the privacy
and physical safety of witnesses and informants.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the proposed regulations contain technical terms
or other wording that interferes with their clarity? (3) Does the
format of the proposed regulations (grouping and order of sections, use
of headings, paragraphing, etc.) aid or reduce their clarity? Would the
regulations be easier to understand if they were divided into more (but
shorter) sections? (A ``section'' is preceded by the symbol ``Sec. ''
and a numbered heading; for example, Sec. 5b.11 Exempt systems.) (4) Is
the description of the proposed regulations in the Supplementary
Information section of this preamble helpful in understanding the
proposed regulations? How could this description be more helpful in
making the proposed regulations easier to understand? (5) What else
could the Department do to make the proposed regulations easier to
understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, S.W. (Room 5100, FB-10B),
Washington, D.C. 20202-2241.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
These proposed regulations involve procedural rights of individuals
under the Privacy Act. Individuals are not considered to be
``entities'' under the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
These proposed regulations have been examined under the Paperwork
Reduction Act of 1995 and have been found to contain no information
collection requirements.
Intergovernmental Review
This program is not subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79.
Invitation To Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. All comments
submitted in response to these proposed regulations will be available
for public inspection, during and after the comment period, in Room
5624, GSA Regional Office Building 3, Washington, D.C., between the
hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday
of each week except Federal holidays.
On request the Department supplies an appropriate aid, such as a
reader or print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking docket for these proposed regulations. An individual with a
disability who wants to schedule an appointment for this type of aid
may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD
may call the Federal Information Relay Service at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
To assist the Department in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden, the Secretary invites comments on whether
there may be further opportunities to reduce any regulatory burdens
found in these proposed regulations.
List of Subjects in 34 CFR Part 5b
Privacy.
Dated: November 18, 1997.
Richard W. Riley,
Secretary of Education.
(Catalogue of Federal Domestic Assistance Number does not apply)
The Secretary proposes to amend Part 5b of Title 34 of the Code of
Federal Regulations as follows:
PART 5b--PRIVACY ACT REGULATIONS
1. The authority citation for Part 5b is revised to read as
follows:
Authority: 5 U.S.C. 301 and 552a.
2. Section 5b.11 is amended by revising paragraphs (b) introductory
text and (c)(1) introductory text to read as follows:
Sec. 5b.11 Exempt systems.
* * * * *
(b) Specific systems of records exempted under (j)(2). The
Department exempts the Investigative Files of the Inspector General ED/
OIG (18-10-0001) and the Hotline Complaint Files of the Inspector
General ED/OIG (18-10-0004) systems of records from the following
provisions of 5 U.S.C. 552a and this part:
* * * * *
(c) * * *
(1) The Department exempts the Investigative Files of the Inspector
General ED/OIG (18-10-0001) and the Hotline Complaint Files of the
Inspector General ED/OIG (18-10-0004) from the following provisions of
5 U.S.C. 552a and this part to the extent that these systems of records
consist of investigatory material and complaints that may be included
in investigatory material compiled for law enforcement purposes:
* * * * *
[FR Doc. 97-30716 Filed 11-21-97; 8:45 am]
BILLING CODE 4000-01-P