[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: 28CFR16.96]

[Page 334-344]
 
                    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. 16.96  Exemption of Federal Bureau of Investigation Systems--limited 

access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f) and (g):
    (1) Central Records System (CRS) (JUSTICE/FBI-002).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j) and (k). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, the applicable exemption may be 
waived by the FBI.
    (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 by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses or flee the area to avoid the 
thrust of the investigation.
    (2)(i) From subsections (d), (e)(4) (G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information classified 
in the interest of national security, interfere with the overall law 
enforcement 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 to law enforcement 
personnel.
    (ii) Also, individual access to non-criminal investigative records, 
e.g., civil investigations and administrative inquiries, as described in 
subsection (k) of the Privacy Act, could also compromise classified 
information related to national security, interfere with a pending 
investigation or internal inquiry, constitute an unwarranted invasion of 
privacy, reveal a confidential source or sensitive investigative 
technique, or pose a potential threat to 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.
    (iii) In addition, from paragraph (d)(2) of this section, because to 
require

[[Page 335]]

the FBI to amend information thought to be incorrect, irrelevant or 
untimely, because of the nature of the information collected and the 
essential length of time it is maintained, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.
    (3) 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 the FBI 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.
    (4) 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 furnished by the individual concerning 
his own activities.
    (5) From subsection (e)(3) because disclosure would provide the 
subject with substantial information which could impede or compromise 
the investigation. The individual could seriously interfere with 
undercover investigative activities and could take appropriate steps to 
evade the investigation or flee a specific area.
    (6) 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 limit 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. In 
addition, because many of these records come from other federal, state, 
local, joint, foreign, tribal, and international agencies, it is 
administratively impossible to ensure compliance with this provision.
    (7) 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) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), (g) and (m):
    (1) Electronic Surveillance (Elsur) Indices (JUSTICE/FBI-006).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him and such access to records in this system would compromise 
ongoing investigations, reveal investigatory techniques and confidential 
informants, and invade the privacy of private citizens who provide

[[Page 336]]

information in connection with a particular investigation.
    (3) From subsection (e)(1) because these indices must be maintained 
in order to provide the information as described in the ``routine uses'' 
of this particular system.
    (4) From subsections (e) (2) and (3) because compliance is not 
feasible given the subject matter of the indices.
    (5) From subsection (e)(5) because this provision is not applicable 
to the indices in view of the ``routine uses'' of the indices. For 
example, it is impossible to predict when it will be necessary to 
utilize information in the system and, accordingly it is not possible to 
determine when the records are timely.
    (6) From subsection (e)(8) because the notice requirement could 
present a serious impediment to law enforcement by revealing 
investigative techniques, procedures and the existence of confidential 
investigations.
    (7) From subsection (m) for the reasons stated in subsection (b)(7) 
of this section.
    (e) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):
    (1) Identification Division Records System (JUSTICE/FBI-009).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), (f) and (g) 
because these provisions concern an individual's access to records which 
concern him. Such access is directed at allowing the subject of a record 
to correct inaccuracies in it. Although an alternate system of access 
has been provided in 28 CFR 16.30 to 34 and 28 CFR 20.34, the vast 
majority of records in this system concern local arrests which it would 
be inappropriate for the FBI to undertake to correct.
    (3) From subsection (e)(1) because it is impossible to state with 
any degree of certainty that all information on these records is 
relevant to accomplish a purpose of the FBI, even though acquisition of 
the records from state and local law enforcement agencies is based on a 
statutory requirement. In view of the number of records in the system it 
is impossible to review them for relevancy.
    (4) From subsection (e)(2) because the records in the system are 
necessarily furnished by criminal justice agencies due to their very 
nature.
    (5) From subsection (e)(3) because compliance is not feasible due to 
the nature of the records.
    (6) From subsection (e)(5) because the vast majority of these 
records come from local criminal justice agencies and it is 
administratively impossible to ensure that the records comply with this 
provision. Submitting agencies are, however, urged on a continuing basis 
to ensure that their records are accurate and include all dispositions.
    (7) From subsection (e)(8) because the FBI has no logical manner to 
ascertain whether process has been made public and compliance with this 
provision would in any case, provide an impediment to law enforcement by 
interfering with the ability to issue warrants or subpoenas and by 
revealing investigative techniques, procedures or evidence.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f), and (g):
    (1) National Crime Information Center (NCIC) (JUSTICE/FBI-001). 
These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(3).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) for 
the reasons stated in subsection (d)(2) of this section. When records 
are properly subject to access by the individual, an alternate means of 
access is provided in subsection (i) of this section.

[[Page 337]]

    (3) From subsection (e)(1) because information contained in this 
system is primarily from state and local records, and it is for the 
official use of agencies outside the Federal Government in accordance 
with 28 U.S.C. 534.
    (4) From subsections (e) (2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system.
    (5) 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 limit 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. In 
addition, the vast majority of these records come from other federal, 
state, local, joint, foreign, tribal, and international agencies and it 
is administratively impossible to ensure that the records comply with 
this provision. Submitting agencies are, however, urged on a continuing 
basis to ensure that their records are accurate and include all 
dispositions.
    (6) From subsection (e)(8) for the reasons stated in subsection 
(d)(6) of this section.
    (i) Access to computerized criminal history records in the National 
Crime Information Center is available to the individual who is the 
subject of the record pursuant to procedures and requirements specified 
in the Notice of Systems of Records compiled by the National Archives 
and Records Service and published under the designation:
    (j) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G) and (H), (e)(5), (f) and (g):
    (1) National Center for the Analysis of Violent Crime (NCAVC) 
(JUSTICE/FBI-015).


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) and 
(k)(2).
    (k) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because providing the accounting of 
disclosures to the subject could prematurely reveal investigative 
interest by the FBI and other law enforcement agencies, thereby 
providing the individual an opportunity to impede an active 
investigation, destroy or alter evidence, and possibly render harm to 
violent crime victims and/or witnesses.
    (2) From subsections (d), (e)(4) (G) and (H), and (f) because 
disclosure to the subject could interfere with enforcement proceedings 
of a criminal justice agency, reveal the identity of a confidential 
source, result in an unwarranted invasion of another's privacy, reveal 
the details of a sensitive investigative technique, or endanger the life 
and safety of law enforcement personnel, potential violent crime 
victims, and witnesses. Disclosure also could prevent the future 
apprehension of a violent or exceptionally dangerous criminal fugitive 
should he or she modify his or her method of operation in order to evade 
law enforcement. Also, specifically from subsection (d)(2), which 
permits an individual to request amendment of a record, because the 
nature of the information in the system is such that an individual 
criminal offender would frequently demand amendment of derogatory 
information, forcing the FBI to continuously retrograde its criminal 
investigations in an attempt to resolve questions of accuracy, etc.
    (3) From subsection (g) because the system is exempt from the access 
and amendment provisions of subsection (d).
    (4) From subsection (e)(1) because it is not always possible to 
establish relevance and necessity of the information at the time it is 
obtained or developed. Information, the relevance and necessity of which 
may not be readily apparent, frequently can prove to be of investigative 
value at a later date and time.
    (5) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible

[[Page 338]]

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 limit 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. In addition, because many of these records come from 
other federal, state, local, joint, foreign, tribal, and international 
agencies, it is administratively impossible to ensure compliance with 
this provision.
    (l) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (c)(4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g).
    (1) FBI Counterdrug Information Indices System (CIIS) (JUSTICE/FBI--
016)
    (2) [Reserved]
    (m) 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). 
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 by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate 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) to the extent it is not applicable 
because an exemption is being claimed from subsection (d).
    (3)(i) From subsections (d), (e)(4) (G) and (H) because these 
provisions concern individual access to 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 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.
    (ii) In addition, from paragraph (d), because to require the FBI to 
amend information thought to be incorrect, irrelevant or untimely, 
because of the nature of the information collected and the essential 
length of time it is maintained, 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)(i) From subsection (e)(1) because 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 otherwise. It is only after the information is assessed that its 
relevancy and necessity in a specified investigative activity can be 
established.
    (iii) In any investigation the FBI 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 investigations or to 
an investigative activity under the jurisdiction of another agency.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual often 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 principally rely upon information 
furnished by the individual concerning his own activities.

[[Page 339]]

    (6) From subsection (e)(3) because disclosure would provide the 
subject with information which could impede or compromise the 
investigation. The individual could seriously interfere with undercover 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (7) 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.
    (8) 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.
    (9) From subsection (f) to the extent that this system is exempt 
from the provisions of subsection (d).
    (10) From subsection (g) to the extent that this system of records 
is exempt from the provisions of subsection (d).
    (n) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4); (d); (e) (1), (2), and 3; (e)(4) (G) and (H); (e) (5) and 
(8); and (g):
    (1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
    (2) [Reserved]
    (o) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available the accounting 
of disclosures of records to the subject of the record would prematurely 
place the subject on notice of the investigative interest of law 
enforcement agencies, provide the subject with significant information 
concerning the nature of the investigation, or permit the subject to 
take measures to impede the investigation (e.g., destroy or alter 
evidence, intimidate potential witnesses, or flee the area to avoid 
investigation and prosecution), and result in a serious impediment to 
law enforcement.
    (2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him/her and access to records in this system would compromise 
ongoing investigations. Such access is directed at allowing the subject 
of the record to correct inaccuracies in it. The vast majority of 
records in this system are from the DNA records of local and State NDIS 
agencies which would be inappropriate and not feasible for the FBI to 
undertake to correct. Nevertheless, an alternate method to access and/or 
amend records in this system is available to an individual who is the 
subject of a record pursuant to procedures and requirements specified in 
the Notice of Systems of Records compiled by the National Archives and 
Records Administration and published in the Federal Register under the 
designation: National DNA Index System (NDIS) (JUSTICE/FBI-017)
    (ii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, 
irrelevant, or untimely, because of the nature of the information 
collected and the essential length of time it is maintained, would 
create an impossible administrative and investigative burden by forcing 
the agency to continuously retrograde investigations attempting to 
resolve questions of accuracy, etc.
    (iii) In addition, from subsection (g) to the extent that the system 
is exempt from the access and amendment provisions of subsection (d).
    (3) From subsection (e)(1) because:
    (i) Information in this system is primarily from State and local 
records and it is for the official use of agencies outside the Federal 
Government.
    (ii) It is not possible in all instances to determine the relevancy 
or necessity of specific information in the early stages of the criminal 
investigative process.

[[Page 340]]

    (iii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary, and vice versa. It is only after the information is 
assessed that its relevancy in a specific investigative activity can be 
established.
    (iv) Although the investigative process could leave in doubt the 
relevancy and necessity of evidence which had been properly obtained, 
the same information could be relevant to another investigation or 
investigative activity under the jurisdiction of the FBI or another law 
enforcement agency.
    (4) From subsections (e)(2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system. Most of 
the records in this system are necessarily furnished by State and local 
criminal justice agencies and not by individuals due to the very nature 
of the records and the system.
    (5) From subsection (e)(5) because the vast majority of these 
records come from State and local criminal justice agencies and because 
it is administratively impossible for them and the FBI to insure that 
the records comply with this provision. Submitting agencies are urged 
and make every effort to insure records are accurate and complete; 
however, since it is not possible to predict when information in the 
indexes of the system (whether submitted by State and local criminal 
justice agencies or generated by the FBI) will be matched with other 
information, it is not possible to determine when most of them are 
relevant or timely.
    (6) From subsection (e)(8) because the FBI has no logical manner to 
determine whenever process has been made public and compliance with this 
provision would provide an impediment to law enforcement by interfering 
with ongoing investigations.
    (p) The National Instant Criminal Background Check System (NICS), 
(JUSTICE/FBI-018), a Privacy Act system of records, is exempt:
    (1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and 
(4); (d); (e) (1), (2) and (3); (e)(4) (G) and (H); (e) (5) and (8); and 
(g); and
    (2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections 
(c)(3), (d), (e)(1), and (e)(4) (G) and (H).
    (q) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), 
(k)(2), and (k)(3). Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) because the release of the accounting of 
disclosures would place the subject on notice that the subject is or has 
been the subject of investigation and result in a serious impediment to 
law enforcement.
    (2) From subsection (c)(4) to the extent that it is not applicable 
since an exemption is claimed from subsection (d).
    (3)(i) From subsections (d) and (e)(4) (G) and (H) because these 
provisions concern an individual's access to records which concern the 
individual and such access to records in the system would compromise 
ongoing investigations, reveal investigatory techniques and confidential 
informants, invade the privacy of persons who provide information in 
connection with a particular investigation, or constitute a potential 
danger to the health or safety of law enforcement personnel.
    (ii) In addition, from subsection (d)(2) because, to require the FBI 
to amend information thought to be not accurate, timely, relevant, and 
complete, because of the nature of the information collected and the 
essential length of time it is maintained, would create an impossible 
administrative burden by forcing the agency to continuously update its 
investigations attempting to resolve these issues.
    (iii) Although the Attorney General is exempting this system from 
subsections (d) and (e)(4) (G) and (H), an alternate method of access 
and correction has been provided in 28 CFR, part 25, subpart A.
    (4) From subsection (e)(1) because it is impossible to state with 
any degree of certainty that all information in these records is 
relevant to accomplish a purpose of the FBI, even though acquisition of 
the records from state and local law enforcement agencies is based on a 
statutory requirement. In view of the number of records in the system, 
it

[[Page 341]]

is impossible to review them for relevancy.
    (5) From subsections (e) (2) and (3) because the purpose of the 
system is to verify information about an individual. It would not be 
realistic to rely on information provided by the individual. In 
addition, much of the information contained in or checked by this system 
is from Federal, State, and local criminal history records.
    (6) From subsection (e)(5) because it is impossible to predict when 
it will be necessary to use the information in the system, and, 
accordingly, it is not possible to determine in advance when the records 
will be timely. Since most of the records are from State and local or 
other Federal agency records, it would be impossible to review all of 
them to verify that they are accurate. In addition, an alternate 
procedure is being established in 28 CFR, part 25, subpart A, so the 
records can be amended if found to be incorrect.
    (7) From subsection (e)(8) because the notice requirement could 
present a serious impediment to law enforcement by revealing 
investigative techniques and confidential investigations.
    (8) From subsection (g) to the extent that, pursuant to subsections 
(j)(2), (k)(2), and (k)(3), the system is exempted from the other 
subsections listed in paragraph (p) of this section.
    (r) 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):
    (1) Terrorist Screening Records System (TSRS) (JUSTICE/FBI-019).
    (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), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the counterterrorism purposes of this system, and 
the overall law enforcement process, the applicable exemption may be 
waived by the FBI in its sole discretion.
    (s) 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 specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected terrorist 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. 
Similarly, disclosing this information to individuals who have been 
misidentified as known or suspected terrorists due to a close name 
similarity could reveal the Government's investigative interest in a 
terrorist suspect, because it could make known the name of the 
individual who actually is the subject of the Government's interest. 
Consequently, the Government has as great an interest in protecting the 
confidentiality of identifying information of misidentified persons as 
it does in protecting the confidentiality of the identities of known or 
suspected terrorists.
    (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 counterterrorism, 
investigatory and intelligence records. Compliance with these provisions 
could alert the subject of a terrorism investigation of the fact and 
nature of the investigation, and/or the investigative interest of the 
FBI and/or other intelligence or law enforcement agencies; compromise 
sensitive information classified in the interest of national security; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; or constitute a potential 
danger to the health

[[Page 342]]

or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of these records would interfere with ongoing 
counterterrorism investigations and analysis activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised. Similarly, 
compliance with these provisions with respect to records on individuals 
who have been misidentified as known or suspected terrorists due to a 
close name similarity could reveal the Government's investigative 
interest in a terrorist suspect, because it could make known the name of 
the individual who actually is the subject of the Government's interest.
    (4) From subsection (e)(1) because it is not always possible for TSC 
to know in advance what information is relevant and necessary for it to 
complete an identity comparison between the individual being screened 
and a known or suspected terrorist. Also, because TSC and the FBI may 
not always know what information about an encounter with a known or 
suspected terrorist will be relevant to law enforcement for the purpose 
of conducting an operational response.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism 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 
counterterrorism 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), to the extent that this subsection is 
interpreted to require TSC to provide notice to an individual if TSC 
receives information about that individual from a third party. Should 
the subsection be so interpreted, exemption from this provision is 
necessary to avoid impeding counterterrorism efforts by putting the 
subject of an investigation, study or analysis on notice of that fact, 
thereby permitting the subject to engage in conduct intended to 
frustrate or impede that activity.
    (7) From subsection (e)(5) because many of the records in this 
system are derived from other domestic and foreign agency record systems 
and therefore it is not possible for the FBI and the TSC to vouch for 
their compliance with this provision; however, the TSC has implemented 
internal quality assurance procedures to ensure that TSC terrorist 
screening data is as thorough, accurate, and current as possible. In 
addition, TSC supports but does not conduct investigations; therefore, 
it must be able to collect information related to terrorist identities 
and encounters for distribution to law enforcement and intelligence 
agencies that do conduct terrorism investigations. In the collection of 
information for law enforcement, counterterrorism, and intelligence 
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. The TSC has, however, implemented internal 
quality assurance procedures to ensure that TSC terrorist screening data 
is as thorough, accurate, and current as possible. The FBI also is 
exempting the TSRS 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 TSRS. The FBI has 
exempted TSRS records from the access and amendment requirements of 
subsection (d) of the Privacy Act in order to protect the integrity of 
counterterrorism investigations. Exempting the TSRS from subsection 
(e)(5) serves to prevent the assertion of

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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 FBI and the TSC and could alert 
the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    (t) 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) of the Privacy Act:
    (1) Law Enforcement National Data Exchange (N-DEx), (JUSTICE/FBI-
020).
    (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 law enforcement purposes of this system, or the overall law 
enforcement process, the applicable exemption may be waived by the FBI 
in its sole discretion.
    (u) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because this system is exempt from the 
access provisions of subsection (d). Also, because making available to a 
record subject the accounting of disclosures from records concerning 
him/her would specifically reveal any investigative interest in the 
individual. Revealing this information may thus compromise ongoing law 
enforcement efforts. Revealing this information may also permit the 
record subject to take measures to impede the investigation, such as 
destroying evidence, intimidating potential witnesses or fleeing the 
area to avoid 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 investigatory 
records, compliance with which could alert the subject of an 
investigation of the fact and nature of the investigation, and/or the 
investigative interest of the FBI and other law enforcement agencies; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; possibly identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; or constitute a potential 
danger to the health or safety of law enforcement personnel, 
confidential informants, and witnesses. Amendment of these records would 
interfere with ongoing investigations and other law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised.
    (4) From subsection (e)(1) because it is not always possible to know 
in advance what information is relevant and necessary for law 
enforcement purposes and, in fact, a major tenet of the N-DEx 
information sharing system is that the relevance of certain information 
may not always be evident in the absence of the ability to correlate 
that information with other existing law enforcement data.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to efforts to solve crimes and 
improve homeland security in that it would put the subject of an 
investigation on notice of that fact, thereby permitting the subject to 
engage in conduct intended to frustrate or impede that activity.
    (6) From subsection (e)(3) because disclosure would put the subject 
of an investigation on notice of that fact and would permit the subject 
to engage in conduct intended to thwart that activity.
    (7)(i) From subsection (e)(5) because many of the records in this 
system are records contributed by other agencies and the restrictions 
imposed by (e)(5) would limit the utility of the N-DEx

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system. All data contributors are expected to ensure that information 
they share is relevant, timely, complete and accurate. In fact, rules 
for use of the N-DEx system will require that information be updated 
periodically and not be used as a basis for action or disseminated 
beyond the recipient without the recipient first obtaining permission 
from the record owner/contributor. These rules will be enforced through 
robust audit procedures. The existence of these rules should ameliorate 
any perceived concerns about the integrity of the information in the N-
DEx system. Nevertheless, exemption from this provision is warranted in 
order to reduce the administrative burden on the FBI to vouch for 
compliance with the provision by all N-DEx data contributors and to 
encourage those contributors to share information the significance of 
which may only become apparent when combined with other information in 
the N-DEx system.
    (ii) The FBI is also exempting the N-DEx from subsection (e)(5) in 
order to block the use of a challenge under subsection (e)(5) as a 
collateral means to obtain access to records in the N-DEx. The FBI has 
exempted these records from the access and amendment requirements of 
subsection (d) of the Privacy Act in order to protect the integrity of 
law enforcement investigations. Exempting the N-DEx system from 
subsection (e)(5) complements this exemption and will provide the FBI 
with the ability 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 FBI and may alert the subjects 
of law enforcement investigations to the fact of those investigations, 
when not previously known.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

[Order No. 40-80, 45 FR 5301, Jan. 23, 1980, as amended by Order No. 64-
81, 46 FR 20540, Apr. 6, 1981; Order No. 63-81, 46 FR 22362, Apr. 17, 
1981; Order No. 67-81, 46 FR 30495, June 9, 1981; Order No. 15-85, 50 FR 
31361, Aug. 2, 1985; Order No. 6-86, 51 FR 15479, Apr. 24, 1986; Order 
No. 94-94, 59 FR 47081, Sept. 14, 1994; Order No. 124-96, 61 FR 65180, 
Dec. 11, 1996; Order No. 155-98, 63 FR 65062, Nov. 25, 1998; Order No. 
010-2003, 68 FR 14140, Mar. 24, 2003; Order No. 010-2005, 70 FR 72204, 
Dec. 2, 2005; Order No. 001-2008, 73 FR 9947, Feb. 25, 2008]