[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: 28CFR16.98]

[Page 352-356]
 
                    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. 16.98  Exemption of the Drug Enforcement Administration (DEA)--limited 

access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (d):
    (1) Automated Records and Consummated Orders System/Diversion 
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
    (2) Controlled Substances Act Registration Records (Justice/DEA-005)
    (3) Registration Status/Investigatory Records (Justice/DEA-012)
    (b) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain valuable 
information concerning the nature and scope of the investigation and 
seriously hamper the regulatory functions of the DEA.
    (2) From subsection (d) because access to records contained in these 
systems may provide the subject of an investigation information that 
could enable him to avoid compliance with the Drug Abuse Prevention and 
Control Act of 1970 (Pub. L. 91-513).
    (c) Systems of records identified in paragraphs (c)(1) through 
(c)(7) below are exempted pursuant to the provisions of 5 U.S.C. 552a 
(j)(2) from subsections (c)(3) and (4); (d)(1), (2). (3) and (4); 
(e)(1), (2) and (3), (e)(5), (e)(8); and (g) of 5 U.S.C. 552a. In 
addition, systems of records identified in paragraphs (c)(1), (c)(2), 
(c)(3), (c)(4), (c)(5), and (c)(6) below are also exempted pursuant to 
the provisions of 5 U.S.C. 552a (k)(1) from subsections (c)(3); (d)(1), 
(2), (3) and (4); and (e)(1):
    (1) Air Intelligence Program (Justice/DEA-001)
    (2) Clandestine Laboratory Seizure System (CLSS) (Justice/DEA-002)
    (3) Investigative Reporting and Filing System (Justice/DEA-008)
    (4) Planning and Inspection Division Records (Justice/DEA-010)
    (5) Operation Files (Justice/DEA-011)
    (6) Security Files (Justice/DEA-013)
    (7) System to Retrieve Information from Drug Evidence (STRIDE/
Ballistics) (Justice/DEA-014)
    (d) Exemptions apply to the following systems of records only to the 
extent that information in the systems is subject to exemption pursuant 
to 5 U.S.C. 552a (j)(2), (k)(1), and (k)(2): Air Intelligence Program 
(Justice/DEA-001); Clandestine Laboratory Seizure System (CLSS) 
(Justice/DEA-002); Planning and Inspection Division Records (Justice/
DEA-010); and Security Files (Justice/DEA-013). Exemptions apply to the 
Investigative Reporting and Filing System (Justice/DEA-008) only to the 
extent that information in the system is subject to exemption pursuant 
to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply to the Operations 
Files (Justice/DEA-011) only to the extent that information in the 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and 
(k)(2). Exemptions apply to the System to Retrieve Information from Drug 
Evidence (STRIDE/Ballistics) (Justice/DEA-014) only to the extent that 
information in the system is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2). Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
would provide to the subjects of an investigation significant 
information concerning the nature of the investigation and thus would 
present the same impediments to law enforcement as those enumerated in 
paragraph (d)(3) regarding exemption from subsection (d).
    (2) From subsection (c)(4) to the extent that it is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From the access provisions of subsection (d) because access to 
records in this system of records would present a serious impediment to 
law enforcement. Specifically, it could inform the record subject of an 
actual or potential criminal, civil, or regulatory investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his activities; of the identity 
of confidential sources, witnesses, and law enforcement personnel; and 
of information that may enable the subject to

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avoid detection or apprehension. Similarly, it may alert collateral 
suspects yet unprosecuted in closed cases. It could prevent the 
successful completion of the investigation; endanger the life, health, 
or physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony; 
or it may simply reveal a sensitive investigative technique. In 
addition, granting access to such information could result in the 
disclosure of confidential/security-sensitive or other information that 
would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. From the amendment 
provisions of subsection (d) because amendment of the records would 
interfere with ongoing investigations and law enforcement activities and 
impose an impossible administrative burden by requiring investigations 
to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the DEA for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations 
during which DEA may obtain properly classified information. Relevance 
and necessity are 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.
    (ii) During the DEA's investigative activities DEA may detect the 
violation of either drug-related or non-drug related laws. In the 
interests of effective law enforcement, it is necessary that DEA retain 
all information obtained because it can aid in establishing patterns of 
activity and provide valuable leads for Federal and other law 
enforcement agencies or otherwise assist such agencies in discharging 
their law enforcement responsibilities. Such information may include 
properly classified information, the retention of which could be in the 
interests of national defense and/or foreign policy.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts must be obtained from other 
sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful prosecution.
    (6) From subsection (e)(3) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety or either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party sources and thereby inhibiting law enforcement efforts.
    (7) From subsection (e)(5) because 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 and the accuracy of such information can only be determined in

[[Page 354]]

a court of law. 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 application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
    (e) The following systems of records are exempt from 5 U.S.C. 552a 
(d)(1) and (e)(1):
    (1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
    (2) DEA Applicant Investigations (Justice/DEA-018).
    (f) These exemptions apply only to the extent that information in 
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning an applicant for a grant of confidentiality with DEA. By 
permitting access to information which may reveal the identity of the 
source of that information--after a promise of confidentiality has been 
given--DEA would breach the promised confidentiality. Ultimately, such 
breaches would restrict the free flow of information which is vital to a 
determination of an applicant's qualifications for a grant.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluation purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other apparently irrelevant 
information, can on occasion provide a composite picture of an applicant 
which assists in determining whether a grant of confidentiality is 
warranted.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and 
(8); and (g): El Paso Intelligence Center (EPIC) Seizure System (ESS) 
(JUSTICE/DEA-022). These exemptions apply only to the extent that 
information in this system is subject to exemption pursuant to 5 U.S.C. 
552a (j)(2), (k)(1), and (k)(2). Where compliance would not appear to 
interfere with or adversely affect the law enforcement and counter-drug 
purposes of this system, and the overall law enforcement process, the 
applicable exemption may be waived by the DEA in its sole discretion.
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would potentially reveal any investigative interest in the individual. 
Revealing this information would permit the subject of an investigation 
of an actual or potential criminal, civil, or regulatory violation to 
determine whether he is the subject of investigation, or to obtain 
valuable information concerning the nature of that investigation, and 
the information obtained, or the identity of witnesses and informants. 
Similarly, disclosing this information could reasonably be expected to 
compromise ongoing investigatory efforts by notifying the record subject 
that he/she is under investigation. This information could also permit 
the record subject to take measures to impede the investigation, e.g., 
destroy evidence, intimidate potential witnesses, or flee the area to 
avoid or impede the investigation.
    (2) From subsection (c)(4) because this system is exempt from the 
access and amendment provisions of subsection (d).
    (3) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of records 
contained in this system, which consists of counter-drug and criminal 
investigatory records.

[[Page 355]]

Compliance with these provisions could alert the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his activities, of 
the identity of witnesses and informants, or would provide information 
that could enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law enforcement 
because they could prevent the successful completion of the 
investigation; endanger the physical safety of witnesses or informants; 
or lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (4) From subsection (e)(1) because it is not always possible to know 
in advance what information is relevant and necessary to complete an 
identity comparison between the individual being screened and a known or 
suspected criminal or terrorist. Also, it may not always be known what 
information will be relevant to law enforcement for the purpose of 
conducting an operational response or on-going investigation.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement and counter-drug 
efforts in that it would put the subject of an investigation, study or 
analysis on notice of that fact, thereby permitting the subject to 
engage in conduct designed to frustrate or impede that activity. The 
nature of counter-drug investigations is such that vital information 
about an individual frequently can be obtained only from other persons 
who are familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) From subsection (e)(3) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety of either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party sources and thereby inhibiting law enforcement efforts.
    (7) From subsection (e)(5) because many of the records in this 
system are derived from other domestic record systems and therefore it 
is not possible for the DEA and EPIC to vouch for their compliance with 
this provision. In addition, EPIC supports but does not conduct 
investigations; therefore, it must be able to collect information 
related to illegal drug and other criminal activities and encounters for 
distribution to law enforcement and intelligence agencies that do 
conduct counter-drug investigations. In the collection of information 
for law enforcement and counter-drug purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely, and 
complete. With the passage of time, seemingly irrelevant or untimely 
information may acquire new significance as further investigation brings 
new details to light. The restrictions imposed by (e)(5) would limit the 
ability of those agencies' trained investigators and intelligence 
analysts to exercise their judgment in conducting investigations and 
impede the development of intelligence necessary for effective law 
enforcement and counterterrorism efforts. EPIC has, however, implemented 
internal quality assurance procedures to ensure that ESS data is as 
thorough, accurate, and current as possible. ESS is also exempt from the 
requirements of subsection (e)(5) in order to prevent the use of a 
challenge under subsection (e)(5) as a collateral means to obtain access 
to records in the ESS. ESS records are exempt from the access and 
amendment requirements of subsection (d) of the Privacy Act in order to 
protect the integrity of investigations. Exempting ESS from subsection 
(e)(5) serves to prevent the assertion of challenges to a

[[Page 356]]

record's accuracy, timeliness, completeness, and/or relevance under 
subsection (e)(5) to circumvent the exemption claimed from subsection 
(d).
    (8) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on the DEA and EPIC and could alert the 
subjects of counter-drug, counterterrorism, law enforcement, or 
intelligence investigations to the fact of those investigations when not 
previously known. Additionally, compliance could present a serious 
impediment to law enforcement as this could interfere with the ability 
to issue warrants or subpoenas and could reveal investigative 
techniques, procedures, or evidence.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

[Order No. 88-94, 59 FR 29717, June 9, 1994, as amended by Order No. 
127-97, 62 FR 2903, Jan. 21, 1997; Order No. 009-2003, 68 FR 14140, Mar. 
24, 2003; 72 FR 54825, Sept. 27, 2007]