[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: 28CFR16.99]

[Page 356-361]
 
                    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. 16.99  Exemption of the Immigration and Naturalization Service Systems-

limited access.

    (a) The following systems of records of the Immigration and 
Naturalization Service are 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) The Immigration and Naturalization Service Alien File (A-File) 
and Central Index System (CIS), JUSTICE/INS-001A.
    (2) The Immigration and Naturalization Service Index System, 
JUSTICE/INS-001 which consists of the following subsystems:
    (i) Agency Information Control Record Index.
    (ii) Alien Enemy Index.
    (iii) Congressional Mail Unit Index.
    (iv) Air Detail Office Index.
    (v) Anti-smuggling Index (general).
    (vi) Anti-smuggling Information Centers Systems for Canadian and 
Mexican Borders.
    (vii) Border Patrol Sectors General Index System.
    (viii) Contact Index.
    (ix) Criminal, Narcotic, Racketeer and Subversive Indexes.
    (x) Enforcement Correspondence Control Index System.
    (xi) Document Vendors and Alterers Index.
    (xii) Informant Index.
    (xiii) Suspect Third Party Index.
    (xiv) Examination Correspondence Control Index.
    (xv) Extension Training Enrollee Index.
    (xvi) Intelligence Index.
    (xvii) Naturalization and Citizenship Indexes.
    (xviii) Personnel Investigations Unit Indexes.
    (xix) Service Look-Out Subsystem.
    (xx) White House and Attorney General Correspondence Control Index.
    (xxi) Fraudulent Document Center Index.
    (xxii) Emergency Reassignment Index.
    (xxiii) Alien Documentation, Identification, and Telecommunication 
(ADIT) System.


The exemptions apply to the extent that information in these subsystems 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
    (3) The Immigration and Naturalization Service ``National Automated 
Immigration Lookout System (NAILS) JUSTICE/INS-032.'' The exemptions 
apply only to the extent that records in the system are subject to 
exemptions pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure pursuant to the routine uses published for 
these subsystems would permit the subject of a criminal or civil 
investigation to obtain valuable information concerning the nature of 
that investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these subsystems would inform the subject of a criminal or civil 
investigation of the existence of that investigation, provide the 
subject of the investigation with

[[Page 357]]

information that might enable him to avoid detection or apprehension, 
and present a serious impediment to law enforcement.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction. In 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal or civil 
investigation, the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be placed on notice of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life or physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these subsystems of 
records are exempt from individual access pursuant to subsection (j) of 
the Privacy Act of 1974.
    (8) 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 a 
court of law. The restrictions of 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.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the Immigration and 
Naturalization Service's ability to issue administrative subpoenas and 
could reveal investigative techniques and procedures.
    (10) From subsection (g) because these subsystems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (11) In addition, these systems of records are exempt from 
subsections (c)(3), (d), (e)(1), (e)(4) (G) and (H) to the extent they 
are subject to exemption pursuant to 5 U.S.C. 552a(k)(1). To permit 
access to records classified pursuant to Executive Order would violate 
the Executive Order protecting classified information.
    (c) The Border Patrol Academy Index Subsystem is exempt from 5 
U.S.C. 552a (d) and (f).

This exemption applies only to the extent that information in this 
subsystem is subject to exemption pursuant to 5 U.S.C. 552a(k).
    (d) Exemptions for the particular subsections are justified for the 
following reasons.
    (1) From subsection (d) because exemption is claimed only for those 
testing and examination materials used to determine an individual's 
qualifications for retention and promotion in the Immigration and 
Naturalization Service. This is necessary to protect the integrity of 
testing materials and to insure fair and uniform examinations.
    (2) From subsection (f) because the subsystem of records has been 
exempted from the access provisions of subsection (d).
    (e) The Orphan Petitioner Index and Files (Justice/INS-007) system 
of records is exempt from 5 U.S.C. 552a(d). This exemption applies only 
to the extent that information in this system is

[[Page 358]]

subject to exemption pursuant to 5 U.S.C. 552a(k)(1).
    (f) Exemption from paragraph (d) of this section is claimed solely 
because of the possibility of receipt of classified information during 
the course of INS investigation of prospective adoptive parents.

Although it would be rare, prospective adoptive parents may originally 
be from foreign countries (for example) and information received on them 
from their native countries may require classification under Executive 
Order 12356 which safeguards national security information. If such 
information is relevant to the INS determination with respect to 
adoption, the information would be kept in the file and would be 
classified accordingly. Therefore, access could not be granted to the 
record subject under the Privacy Act without violating E.O. 12356.
    (g) The Office of Internal Audit Investigations Index and Records 
(Justice/INS-002) system of records is exempt under the provisions of 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5) and (8); and (g), but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in the system are subject to exemption therefrom. In 
addition, this system of records is also exempt under the provisions of 
5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only 
to the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (h) The following justification apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure could permit the subject of an actual or 
potential criminal or civil investigation to obtain valuable information 
concerning the existence and nature of the investigation, the fact that 
individuals are subjects of the investigation, and present a serious 
impediment to law enforcement.
    (2) From subsection (c)(4) to the extent that the exemption from 
subsection (d) is applicable. Subsection (c)(4) will not be applicable 
to the extent that records in the system are properly withholdable under 
subsection (d).
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; of the identity of 
confidential sources, witnesses and law enforcement personnel; and of 
information that may enable the subject to avoid detection or 
apprehension. Such disclosures would present a serious impediment to 
effective law enforcement where they prevent the successful completion 
of the investigation; endanger the 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. In addition, granting access to these records 
could result in a disclosure that would constitute an unwarranted 
invasion of the privacy of third parties. 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 in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction, in 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation

[[Page 359]]

would be placed on notice of the existence of the investigation and 
would therefore be able to avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment of criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identify of confidential sources 
of information and endanger the life or physical safety of confidential 
informants.
    (7) From subsection (e)(5) because in the collection of information 
for criminal 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 
a court of law. The restrictions of 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 individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement as this could interfere with the Immigration 
and Naturalization Service's ability to issue administrative subpoenas 
and could reveal investigative techniques and procedures.
    (9) From subsection (g) for those portions of this system of records 
that were compiled for criminal law enforcement purposes and which are 
subject to exemption from the access provisions of subsections (d) 
pursuant to subsection (j)(2).
    (i) The Law Enforcement Support Center Database (LESC) (Justice/INS-
023) system of records is exempt under the provisions of 5 U.S.C. 
552a(j)(2) from subsections (c) (3) and (4); (d); (e) (1), (2), (3), 
(5), (8) and (g); but only to the extent that this system contains 
records within the scope of subsection (j)(2), and to the extent that 
records in the system are subject to exemption therefrom. In addition, 
this system of records is also exempt in part under the provisions of 5 
U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only to 
the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (j) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of 
this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; and of information that may 
enable the subject to avoid detection or apprehension. Such disclosures 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation or other law 
enforcement operation such as deportation or exclusion. In addition, 
granting access to these records could result in a disclosure that would 
constitute an unwarranted invasion of the privacy of third parties. 
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) for reasons stated in paragraph (h)(4) of 
this section.
    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to criminal 
law enforcement

[[Page 360]]

in that it could compromise the existence of a confidential 
investigation.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.
    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).
    (k) The Attorney/Representative Complaint/Petition File (JUSTICE/
INS-022) system of records is exempt under the provisions of 5 U.S.C. 
552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), 
and (8); and (g); but only to the extent that this system contains 
records within the scope of subsection (j)(2), and to the extent that 
records in this system are subject to exemption therefrom. In addition, 
this system of records is also exempt in part under the provisions of 5 
U.S.C. 552a (k)(2) from subsections (c)(3); (d); and (e)(1), but only to 
the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in this system are 
subject to exemption therefrom.
    (l) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of 
this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) for 
reasons stated in paragraph (h)(3) of this section.
    (4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of 
this section.
    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of 
this section.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.
    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.
    (9) From subsection (g) to the extent that the system is exempt from 
the access and amendment provisions of subsection (d).
    (m) The Worksite Enforcement Activity and Records Index (LYNX) 
(JUSTICE/INS-025) system of records is exempt under the provisions of 5 
U.S.C. 552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5), and (8); and (g); but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in this system are subject to exemption therefrom. 
In addition, this system of records is also exempt in part under the 
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and 
(e)(1), but only to the extent that this system contains records within 
the scope of subsection (k)(2), and to the extent that records in this 
system are subject to exemption therefrom.
    (n) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons started in paragraph (h)(1) 
of this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) for 
reasons sated in paragraph (h)(3) of this section.
    (4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of 
this section.
    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of 
this section.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.
    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.

[[Page 361]]

    (9) From subsection (g) to the extent that the system is exempt from 
the access and amendment provisions of subsection (d).

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 10001, Feb. 18, 1977; Order No. 6-84, 49 FR 20812, May 17, 
1984; Order No. 25-88, 53 FR 41161, Oct. 20, 1988; Order No. 137-97, 62 
FR 34169, June 25, 1997; Order No. 142-97, 62 FR 44083, Aug. 19, 1997; 
Order No. 196-2000, 65 FR 21139, Apr. 20, 2000; Order No. 197-2000, 65 
FR 21140, Apr. 20, 2000]