[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR16.106]

[Page 373-377]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of Contents
 
      Subpart E_Exemption of Records Systems Under the Privacy Act
 
Sec. 16.106  Exemption of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives (ATF)--Limited Access.

    (a) 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), and (3), 
(e)(4)(G), (H) and (I), (e)(5) and (8), (f) and (g).
    (1) Criminal Investigation Report System (JUSTICE/ATF-003).
    (2) 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). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (b) 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 reveal investigative interest not only of ATF, but also of the 
recipient agency. This would permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses or flee the area to avoid the thrust of the 
investigation.
    (2) From subsection (c)(4) because an exemption being claimed for 
subsection (d) makes this subsection inapplicable.
    (3) From subsections (d)(1), (e)(4)(G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement process by revealing a pending 
sensitive investigation, possibly identify a confidential source or 
disclose information, including actual or potential tax information, 
which would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law enforcement 
personnel.
    (4) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (6) From subsection (e)(1) because: (i) It is not possible in all 
instances to determine relevancy or necessity of specific information in 
the early stages of a criminal or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) In any investigation, ATF might obtain information concerning 
violations of law not under its jurisdiction, but in the interest of 
effective law enforcement, dissemination will be made to the agency 
charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (7) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar with 
such individual and his/her activities. In such investigations it is not 
feasible to rely upon information

[[Page 374]]

furnished by the individual concerning his own activities.
    (8) From subsection (e)(3) because disclosure would provide the 
subject with substantial information that could impede or compromise the 
investigation. The individual could seriously interfere with undercover 
investigative activities and could take steps to evade the investigation 
or flee a specific area.
    (9) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (10) From subsection (e)(5) because in the collection of information 
for law enforcement 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 subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (11) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Internal Security Record System (JUSTICE/ATF-006).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) and 
(k)(5). Where compliance would not appear to interfere with or adversely 
affect the overall law enforcement process, ATF may waive the applicable 
exemption.
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to provide the subject with an 
accounting of disclosures of records in this system could inform that 
individual of the existence, nature, or scope of an actual or potential 
law enforcement investigation, and thereby seriously impede law 
enforcement efforts by permitting the record subject and other persons 
to whom he might disclose the records to avoid criminal penalties, civil 
remedies, or other measures.
    (2) From subsection (d)(1) because disclosure of records in the 
system could reveal the identity of confidential sources and result in 
an unwarranted invasion of the privacy of others. Disclosure may also 
reveal information relating to actual or potential criminal 
investigations. Such breaches would restrict the free flow of 
information which is vital to the law enforcement process and the 
determination of an applicant's qualifications.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).

[[Page 375]]

    (5) From subsection (e)(1) because it is often impossible to 
determine in advance if investigative records contained in this system 
are accurate, relevant, timely, complete, or of some assistance to 
either effective law enforcement investigations, or to the determination 
of the qualifications and suitability of an applicant. It also is 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. Information that may appear 
irrelevant, when combined with other apparently irrelevant information, 
can on occasion provide a composite picture of a subject or an applicant 
which assists the law enforcement process and the determination of an 
applicant's suitability qualifications.
    (6) From subsection (e)(4)(G) and (H), and (f) because these 
provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement or qualification process by revealing a 
pending sensitive investigation, possibly identify a confidential source 
or disclose information which would constitute an unwarranted invasion 
of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel. In addition, disclosure of 
information collected pursuant to an employment suitability or similar 
inquiry could reveal the identity of a source who provided information 
under an express promise of confidentiality, or could compromise the 
objectivity or fairness of a testing or examination process.
    (7) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (e) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Personnel Record System (JUSTICE/ATF-007).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (f) 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 reveal the existence, nature, or scope of an actual or potential 
personnel action. This would permit the record subject to take measures 
to hamper or impede such actions.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because many 
persons are contacted who, without an assurance of anonymity, refuse to 
provide information concerning a candidate for a position with ATF. 
Access could reveal the identity of the source of the information and 
constitute a breach of the promise of confidentiality on the part of 
ATF. Such breaches ultimately would restrict the free flow of 
information vital to a determination of a candidate's qualifications and 
suitability.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of

[[Page 376]]

specific information in the early stages of a personnel-related action.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) ATF might obtain information concerning violations of law not 
under its jurisdiction, but in the interest of effective law 
enforcement, dissemination will be made to the agency charged with 
enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (g) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Regulatory Enforcement Record System (JUSTICE/ATF-008).
    (2) Technical and Scientific Services Record System (JUSTICE/ATF-
009).
    (3) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (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 reveal investigative interest, whether civil, criminal or 
regulatory, not only of ATF, but also of the recipient agency. This 
would permit the record subject to take measures to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses or 
flee the area to avoid the thrust of the investigation thus seriously 
hampering the regulatory and law enforcement functions of ATF.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because 
these provisions concern individual access to investigative and 
compliance records, disclosure of which could compromise sensitive 
information, interfere with the overall law enforcement and regulatory 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source or disclose information, including actual 
or potential tax information, which would constitute an unwarranted 
invasion of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations and compliance actions attempting to resolve questions of 
accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal, 
civil, regulatory, or other investigation.

[[Page 377]]

    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative or regulatory 
activity can be established.
    (iii) In any investigation or compliance action ATF might obtain 
information concerning violations of law not under its jurisdiction, but 
in the interest of effective law enforcement, dissemination will be made 
to the agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or 
compliance action or to an investigative activity under the jurisdiction 
of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal, regulatory, and other law enforcement information. 
Such exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.

[Order No. 002-2003, 68 FR 3393, Jan. 24, 2003]