[Federal Register: June 3, 2003 (Volume 68, Number 106)]
[Rules and Regulations]
[Page 32985-32996]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jn03-9]
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COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF
COLUMBIA
28 CFR Part 802
[CSOSA-0003-F]
RIN 3225-AA01
Disclosure of Records
AGENCY: Court Services and Offender Supervision Agency for the District
of Columbia.
ACTION: Final rule.
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SUMMARY: The Court Services and Offender Supervision Agency for the
District of Columbia (``CSOSA'' or ``Agency'') is adopting regulations
on the disclosure of CSOSA or the District of Columbia Pretrial
Services Agency (``PSA'' or ``Agency'') records. These regulations
include procedures for processing requests for disclosure under the
Freedom of Information Act, under the Privacy Act, and for the
production of records in response to a subpoena or other legal demand
for testimony. The regulations also identify Privacy Act systems of
records exemptions for both CSOSA and PSA. These regulations are
necessary in order to ensure that the public has appropriate access to
information maintained by the Agency and that adequate safeguards are
in place to protect the privacy rights of individuals.
EFFECTIVE DATE: July 3, 2003.
ADDRESSES: Office of the General Counsel, CSOSA, Room 1253, 633 Indiana
Avenue, NW., Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Records Manager
(telephone: (202) 220-5359; e-mail: roy.nanovic@csosa.gov).
SUPPLEMENTARY INFORMATION: The Court Services and Offender Supervision
Agency for the District of Columbia (``CSOSA'' or ``Agency'') is
adopting regulations (28 CFR part 802) on the disclosure of records
maintained by CSOSA or the District of Columbia Pretrial Services
Agency (``PSA'' or ``Agency''). CSOSA published a proposed rule on this
subject in the Federal Register on March 15, 2002 (67 FR 11804). As
noted in the proposed rule, PSA is an independent entity within CSOSA.
Summary of Regulatory Provisions
Subpart A of the proposed regulations provides a general
introduction. Subpart B covers procedures for Freedom of Information
Act (FOIA) requests; subpart C covers procedures for Privacy Act
requests; subpart D covers disclosures in response to subpoenas or
other legal demands; and subpart E covers exemptions to CSOSA and PSA
Privacy Act systems of records.
Freedom of Information Act Requests
The general guidelines for disclosure (Sec. 802.3) under the FOIA
note that a record must be in the possession and control of the agency
at the time of the request to be considered subject to release under
the regulations. There is no obligation to create, compile, or obtain a
record to satisfy a FOIA request. Hard copy of electronic records which
are subject to FOIA, but which are available to the public through an
established distribution system, the Federal Register, or the Internet
at CSOSA's Web site (http://www.csosa.gov), normally do not need to be
processed under the FOIA. CSOSA will process such requests under the
FOIA only if the requester insists on such processing.
Definitions for certain terms used in the subpart are contained in
Sec. 802.4. The procedures for submitting and processing FOIA requests
are contained in Sec. 802.5. Section 802.6 explains how CSOSA handles
requests for documents which relate to or were created by another
agency.
Section 802.7 covers the denial of a request. This section also
explains how the requester may appeal the denial. Section 802.8
explains how to request expedited processing. Section 802.9 covers
procedures for the disclosure of business information which may have
been provided to the Agency. The business submitter (any entity which
provided the business information to the Agency and which has a
proprietary interest in the information) will receive notice of the
FOIA request and have an opportunity to object to disclosure. Section
802.10 contains the fee schedule for FOIA requests.
Privacy Act Requests
The regulations in subpart C are intended to let you know how you
can determine whether CSOSA or PSA maintains records about you, how you
can obtain access to your records, and how to have your records
corrected or amended.
Definitions for certain terms used in the subpart are contained in
Sec. 802.12. Section 802.13 explains how to verify your identity when
making a request for your own records and how to document that you have
consent when you make a request for information concerning another
individual. The procedures for submitting and processing requests for
access to records are contained in
[[Page 32986]]
Sec. 802.14 and have been reorganized and amended to better address
the technical requirements for accessing and reviewing records. Section
802.15, which covers the denial of a request, and Sec. 802.16, which
explains how the requester may appeal the denial, have similarly been
adjusted (for example, appeals based upon an adverse determination of
the requester's category or for fee waiver apply to FOIA only and have
accordingly been removed from the final rule). Section 802.17 explains
how CSOSA or PSA handle requests for documents which relate to or were
created by another agency.
Section 802.18 explains how you may request to correct or amend a
record about you which the Agency maintains. Section 802.19 contains
procedures for appealing a denial to correct or amend your record.
Section 802.19 now specifies that the system manager is responsible for
granting or denying requests for corrections of records.
Section 802.20 contains the procedures for accounting for
disclosures, and Sec. 802.21 notes your appeal rights for a denial of
a request for an accounting. Section 802.20 has been amended to clarify
that disclosures made under the FOIA are exempt from accounting and
that no accounting will be provided to the record subject for
disclosures made to law enforcement agencies. Fees for Privacy Act
requests are described in Sec. 802.22 and have been reworded slightly
for the sake of clarity. Section 802.23 explains the Agency's policy on
the use and disclosure of social security numbers.
Subpoenas or Other Legal Demands for Testimony or Production or
Disclosure of Records or Other Information
Subpart D contains procedures for the production of records in
response to subpoenas or demands of courts or other authorities in
connection with a proceeding to which the Agency is not a party. These
regulations establish a systematic means by which the Agency can
evaluate requests for production of official agency information. The
regulations are intended to: (1) Conserve Agency employee's time for
conducting official business, (2) minimize the possibility of involving
the Agency in controversial issues that are not related to the mission
of the Agency, (3) prevent the possibility that the public will
misconstrue variances between personal opinions of Agency employees and
Agency policy, (4) avoid spending the government's time and money for
private purposes, (5) preserve the integrity of the administrative
process, and (6) protect confidential, sensitive information and the
deliberative process of the Agency. In adopting these provisions as
final, CSOSA is clarifying the provisions in Sec. 802.27(d) to refer
to these reasons when considering factors pertinent to whether a demand
should be complied with.
Exemption of Record Systems
The Privacy Act permits specific systems of records to be exempt
from some of its requirements. Subpart E identifies these exemptions
and explains the basis for making the exemptions. CSOSA exemptions are
contained in Sec. 802.28; PSA exemptions are contained in Sec.
802.29. The CSOSA exemption for Employment Profile, previously
identified as CSOSA-14, has been removed as that system of record is no
longer in use. The full text of CSOSA and PSA systems of records
appeared in a separate notice document in the March 15, 2002 Federal
Register (67 FR 11816).
Disposition of Public Comment
CSOSA did not receive any comments on the proposed rule. CSOSA
accordingly is adopting the proposed provisions as a final rule without
further change other than the technical amendments to the Privacy Act
procedures and the clarification to Sec. 802.27(d) noted above.
Matters of Regulatory Procedure
Administrative Procedure Act
In accordance with the Administrative Procedure Act, CSOSA
published a proposed rule on this subject in the Federal Register. This
final rule will become effective as noted above.
Executive Order 12866
This proposed rule has been determined to be significant under
Executive Order 12866 and has been reviewed by the Office of Management
and Budget (OMB).
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, the Director of CSOSA has determined that this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulatory Flexibility Act
The Director of CSOSA, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and by
approving it certifies that this rule will not have a significant
economic impact upon a substantial number of small entities. This rule
pertains to agency management, and its economic impact is limited to
the agency's appropriated funds.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, the Director of CSOSA has
determined that no actions are necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Plain Language Instructions
If you have suggestions on how to improve the clarity of these
regulations, write, e-mail, or call the Records Manager (Roy Nanovic)
at the address or telephone number given above in the Addresses and For
Further Information Contact captions.
List of Subjects in 28 CFR Part 802
Freedom of information; Privacy; Probation and parole.
Paul A. Quander, Jr.,
Director.
0
Accordingly, we amend chapter VIII, Title 28 of the Code of Federal
Regulations by adding a new part 802 as set forth below.
PART 802--DISCLOSURE OF RECORDS
Subpart A--General
Sec.
802.1 Introduction.
Subpart B--Freedom of Information Act.
802.2 Purpose and scope.
802.3 Guidelines for disclosure.
802.4 Definitions.
[[Page 32987]]
802.5 Freedom of Information Act requests.
802.6 Documents from other agencies.
802.7 Denial of request.
802.8 Expedited processing.
802.9 Business information.
802.10 Fee schedule.
Subpart C--Privacy Act
802.11 Purpose and scope.
802.12 Definitions.
802.13 Verifying your identity.
802.14 Requests for access to records.
802.15 Denial of request.
802.16 Administrative appeal.
802.17 Documents from other agencies.
802.18 Correction or amendment of record.
802.19 Appeal of denial to correct or amend.
802.20 Accounting of disclosures.
802.21 Appeals.
802.22 Fees.
802.23 Use and disclosure of social security numbers.
Subpart D--Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
802.24 Purpose and scope.
802.25 Definitions.
802.26 Receipt of demand.
802.27 Compliance/noncompliance.
Subpart E--Exemption of Record Systems Under the Privacy Act
802.28 Exemption of the Court Services and Offender Supervision
System--limited access.
802.29 Exemption of the Pretrial Services Agency System.
Authority: 5 U.S.C. 301, 552, 552a; Pub. L. 105-33, 111 Stat.
251, 712 (D.C. Code 24-1232, 24-1233).
Subpart A--General
Sec. 802.1 Introduction.
This part contains regulations of the Court Services and Offender
Supervision Agency for the District of Columbia (``CSOSA'' or
``Agency'') and the District of Columbia Pretrial Services Agency
(``PSA'' or ``Agency'') which implement the Freedom of Information Act
(FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and provide
for the production of records in response to a demand from a court or
other non-congressional authority in connection with a proceeding to
which the Agency is not a party.
Subpart B--Freedom of Information Act
Sec. 802.2 Purpose and scope.
The purpose of this subpart is to establish procedures for the
release of records in the possession of the Agency pursuant to the
provisions of the FOIA.
Sec. 802.3 Guidelines for disclosure.
(a) The authority to release or deny access to records and
information under the FOIA is limited to the General Counsel and his or
her designee.
(b) An agency record will be released in response to a written
request, unless a valid legal exemption to disclosure is asserted.
(1) Any applicable exemption to disclosure which is provided under
the FOIA in 5 U.S.C. 552 may be asserted.
(2) A record must exist and be in the possession and control of the
agency at the time of the request to be considered subject to this part
and the FOIA. There is no obligation to create, compile, or obtain a
record to satisfy a FOIA request.
(3) Hard copy of electronic records that are subject to FOIA
requests under 5 U.S.C. 552(a)(3), and that are available to the public
through an established distribution system or through the Federal
Register or the Internet, normally need not be processed under the
provisions of the FOIA. However, if the requester insists that the
request be processed under the FOIA, then the request shall be
processed under the FOIA.
Sec. 802.4 Definitions.
As used in this subpart, the following terms have the following
meanings:
(a) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C.
552(f).
(b) Appeal means a request for a review of the agency's
determination with regard to a fee waiver, category of requester,
expedited processing, or denial in whole or in part of a request for
access to a record or records.
(c) Business information means trade secrets or other commercial or
financial information.
(d) Business submitter means any entity which provides business
information to the Agency and which has a proprietary interest in the
information.
(e) Computer software means tools by which records are created,
stored, and retrieved. Normally, computer software, including source
code, object code, and listings of source and object codes, regardless
of medium, are not agency records. Proprietary (or copyrighted)
software is not an agency record.
(f) Confidential commercial information means records provided to
the government by a submitter that arguably contain material exempt
from release under Exemption 4 of the Freedom of Information Act, 5
U.S.C. 552(b)(4), because disclosure could reasonably be expected to
cause substantial competitive harm.
(g) Duplication refers to the process of making a copy of a record
in order to respond to a FOIA request. Such copies can take the form of
paper copy, microform, audio-visual materials, or machine-readable
documentation (e.g., magnetic tape or disk), among others.
(h) Electronic records mean those records and information which are
created, stored, and retrievable by electronic means. This ordinarily
does not include computer software, which is a tool by which to create,
store, or retrieve electronic records.
(i) Request means any request for records made pursuant to 5 U.S.C.
552(a)(3).
(j) Requester means any person who makes a request for access to
records.
(k) Review, for fee purposes, refers to the process of examining
records located in response to a commercial use request to determine
whether any portion of any record located is permitted to be withheld.
It also includes processing any records for disclosure; e.g., doing all
that is necessary to excise them and otherwise prepare them for
release.
(l) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done
manually or by automated means.
Sec. 802.5 Freedom of Information Act requests.
(a) Submission, processing, and release procedures.
(1) Requests for any record (including policy) ordinarily will be
processed pursuant to the Freedom of Information Act, 5 U.S.C. 552.
Your request must be made in writing and addressed to the FOIA Officer,
Office of the General Counsel, Court Services and Offender Supervision
Agency, 633 Indiana Avenue, NW., Washington, DC 20004. The requester
should clearly mark on the face of the letter and the envelope
``Freedom of Information Request.''
(2) Your request will be considered received as of the date it is
received by the FOIA Office. For quickest possible handling, you should
mark both your request letter and the envelope ``Freedom of Information
Act Request.''
(3) Generally, all FOIA requests will be processed in the
approximate order of receipt, unless the requester shows exceptional
circumstances exist to justify an expedited response (see Sec. 802.8).
(4) You must state in your request a firm agreement to pay the fees
for search, duplication, and review as may ultimately be determined.
The agreement may state the upper limit (but not less than $25) that
the requester is willing to pay for processing the request. A request
that fees be waived or reduced may accompany the agreement
[[Page 32988]]
to pay fees and will be considered to the extent that such request is
made in accordance with Sec. 802.4(b) and provides supporting
information to be measured against the fee waiver standard set forth in
Sec. 802.9(g). The requester shall be notified in writing of the
decision to grant or deny the fee waiver. If a requester has an
outstanding balance of search, review, or duplication fees due for FOIA
request processing, the requirements of this paragraph are not met
until the requester has remitted the outstanding balance due.
(b) Description of records sought. You must describe the records
that you seek in enough detail to enable Agency personnel to locate
them with a reasonable amount of effort. Whenever possible, your
request should include specific information about each record sought,
such as the date, title or name, author, recipient and subject matter
of the record. As a general rule, the more specific you are about the
records or type of records that you want, the more likely the Agency
will be able to locate the records in response to your request. If a
determination is made that your request does not reasonably describe
records, the Agency will tell you either what additional information is
needed or why your request is otherwise insufficient. You will be given
the opportunity to discuss your request so that you may modify it to
meet the requirements of this section.
(1) If a document contains information exempt from disclosure, any
reasonably segregable portion of the record will be provided to you
after deletion of the exempt portions.
(2) You will be notified of the decision on the request within 20
days after its receipt (excluding Saturdays, Sundays, and legal public
holidays).
Sec. 802.6 Documents from other agencies.
(a) Documents from or relating to Federal agencies. (1) When a
request for records includes a document from another Federal agency,
the document will be referred to the originating Federal agency for a
determination of its releasability. The requester will be informed of
the referral. This is not a denial of a FOIA request; thus no appeal
rights accrue to the requester.
(2) When a FOIA request is received for a record created by the
Agency that includes information originated by another federal agency,
the record will be referred to the originating agency for review and
recommendation on disclosure. The Agency will not release any such
record without prior consultation with the originating agency.
(b) Documents from non-Federal agencies. When a request for records
includes a document from a non-Federal agency, CSOSA staff must make a
determination of its releasability.
Sec. 802.7 Denial of request.
(a) Denial in whole or in part. If it is determined that the
request for records should be denied in whole or in part, the requester
shall be notified by mail. The letter of notification shall:
(1) State the exemptions relied on in not granting the request;
(2) If technically feasible, indicate the amount of information
deleted at the place in the record where such deletion is made (unless
providing such indication would harm an interest protected by the
exemption relied upon to deny such material);
(3) Set forth the name and title or position of the responsible
official;
(4) Advise the requester of the right to administrative appeal in
accordance with paragraph (c) of this section; and
(5) Specify the official or office to which such appeal shall be
submitted.
(b) No records found. If it is determined, after a thorough search
for records by the responsible official or his delegate, that no
records have been found to exist, the responsible official will so
notify the requester in writing. The letter of notification will advise
the requester of the right to administratively appeal the determination
that no records exist (i.e., to challenge the adequacy of the search
for responsive records) in accordance with paragraph (c) of this
section. The response shall specify the official or office to which the
appeal shall be submitted for review.
(c) Administrative appeal.
(1) A requester may appeal an initial determination when:
(i) Access to records has been denied in whole or in part;
(ii) There has been an adverse determination of the requester's
category as provided in Sec. 802.10(d);
(iii) A request for fee waiver or reduction has been denied; or
(iv) It has been determined that no responsive records exist.
(2) Appeals must be made within 30 days of the receipt of the
letter denying the request. Both the envelope and the letter of appeal
should be sent to the Office of the General Counsel, Court Services and
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220,
Washington, DC 20004 and must be clearly marked ``Freedom of
Information Act Appeal.''
(3) The General Counsel will make an appeal determination within 20
days (excluding Saturdays, Sundays, and holidays) from the date of
receipt of the appeal. However, for a good reason, this time limit may
be extended up to an additional 10 days. If, after review, the General
Counsel determines that additional information should be released, it
will accompany the appeal response. If, after review, the General
Counsel determines to uphold the initial review, we will inform you.
Sec. 802.8 Expedited processing.
(a) Requests and appeals will be taken out of order and given
expedited treatment whenever staff determines that they involve:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual. The requester must fully explain the
circumstances warranting such an expected threat so that the Agency may
make a reasoned determination.
(2) With respect to a request made by a person primarily engaged in
disseminating information, a matter of widespread and exceptional media
interest in which there exist possible questions about the government's
integrity which affect public confidence. A person ``primarily engaged
in disseminating information'' does not include individuals who are
engaged only incidentally in the dissemination of information. The
standard of ``widespread and exceptional media interest'' requires that
the records requested pertain to a matter of current exigency to the
American public and that delaying a response to a request for records
would compromise a significant recognized interest to and throughout
the general public. The requester must adequately explain the matter or
activity and why it is necessary to provide the records being sought on
an expedited basis.
(b) If you seek expedited processing, you must submit a statement,
certified to be true and correct to the best of your knowledge and
belief. The statement must be in the form prescribed by 28 U.S.C. 1746,
``I declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge and belief. Executed on [date].''
(c) The determination as to whether to grant or deny the request
for expedited processing will be made, and the requester notified,
within ten days after the date of the request. Because a decision to
take a FOIA request out of order delays other requests, simple fairness
demands that such a decision be made by the FOIA Officer only upon
careful scrutiny of truly exceptional circumstances. The decision will
be made solely based on the information
[[Page 32989]]
contained in the initial letter requesting expedited processing.
(d) Appeals of initial determinations to deny expedited processing
must be made promptly. Both the envelope and the letter of appeal
should be sent to the Office of the General Counsel, Court Services and
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220,
Washington, DC 2004 and must be clearly marked ``Expedited Processing
Appeal.''
(e) The General Counsel will make an appeal determination regarding
expedited processing as soon as practicable.
Sec. 802.9 Business information.
(a) In general. Business information provided to the Agency by a
business submitter will not be disclosed pursuant to a Freedom of
Information Act request except in accordance with this section. Any
claim of confidentiality must be supported by a statement by an
authorized representative of the company providing specific
justification that the information in question is in fact confidential
commercial or financial information and has not been disclosed to the
public.
(b) Notice to business submitters. The Agency will provide a
business submitter with prompt written notice of receipt of a request
or appeal encompassing its business information whenever required in
accordance with paragraph (c) of this section, and except as is
provided in paragraph (g) of this section. Such written notice shall
either describe the exact nature of the business information requested
or provide copies of the records or portions of records containing the
business information.
(c) When notice is required.
(1) Notice of a request for business information falling within
paragraph (c)(2)(i) or (ii) of this section will be required for a
period of not more than ten years after the date of submission unless
the business submitter had requested, and provided acceptable
justification for, a specific notice period of greater duration.
(2) The Agency shall provide a business submitter with notice of
receipt of a request or appeal whenever:
(i) The business submitter has in good faith designated the
information as commercially or financially sensitive information, or
(ii) The Agency has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(d) Opportunity to object to disclosure.
(1) Through the notice described in paragraph (b) of this section,
the Agency shall afford a business submitter ten days from the date of
the notice (exclusive of Saturdays, Sundays, and legal public holidays)
to provide a detailed statement of any objection to disclosure. Such
statement shall specify why the business submitter believes the
information is considered to be a trade secret or commercial or
financial information that is privileged or confidential. Information
provided by a business submitter pursuant to this paragraph might
itself be subject to disclosure under the FOIA.
(2) When notice is given to a submitter under this section, the
requester shall be advised that such notice has been given to the
submitter. The requester shall be further advised that a delay in
responding to the request may be considered a denial of access to
records and that the requester may proceed with an administrative
appeal or seek judicial review, if appropriate. However, the requester
will be invited to agree to a voluntary extension of time so that staff
may review the business submitter's objection to disclose.
(e) Notice of intent to disclose. The Agency will consider
carefully a business submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever a decision to disclose business information over
the objection of a business submitter is made, the Agency shall forward
to the business submitter a written notice which shall include:
(1) A statement of the reasons for which the business submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date which is not less than ten days
(exclusive of Saturdays, Sundays, and legal public holidays) after the
notice of the final decision to release the requested information has
been mailed to the submitter.
(f) Notice of FOIA lawsuit. Whenever a requester brings suit
seeking to compel disclosure of business information covered by
paragraph (c) of this section, the Agency shall promptly notify the
business submitter.
(g) Exception to notice requirement. The notice requirements of
this section shall not apply if:
(1) The Agency determines that the information shall not be
disclosed;
(2) The information lawfully has been published or otherwise made
available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552).
Sec. 802.10 Fee schedule.
(a) The fees described in this section conform to the Office of
Management and Budget Uniform Freedom of Information Act Fee Schedule
and Guidelines. They reflect direct costs for search, review (in the
case of commercial requesters), and duplication of documents,
collection of which is permitted by the FOIA. However, for each of
these categories, the fees may be limited, waived, or reduced for the
reasons given below or for other reasons.
(b) The term direct costs means those expenditures the agency
actually makes in searching for, review (in the case of commercial
requesters), and duplicating documents to respond to a FOIA request.
(c) Fees shall be charged in accordance with the schedule contained
in paragraph (i) of this section for services rendered in responding to
requests for records, unless any one of the following applies:
(1) Services were performed without charge;
(2) The fees were waived or reduced in accordance with paragraph
(f) of this section.
(d) Specific levels of fees are prescribed for each of the
following categories of requesters.
(1) Commercial use requesters. These requesters are assessed
charges, which recover the full direct costs of searching for,
reviewing, and duplicating the records sought. Commercial use
requesters are not entitled to two hours of free search time or 100
free pages of duplication of documents. Moreover, when a request is
received for disclosure that is primarily in the commercial interest of
the requester, the Agency is not required to consider a request for a
waiver or reduction of fees based upon the assertion that disclosure
would be in the public interest. The Agency may recover the cost of
searching for and reviewing records even if there is ultimately no
disclosure of records, or no records are located.
(2) Educational and non-commercial scientific institution
requesters. Records shall be provided to requesters in these categories
for the cost of duplication alone, excluding charges for the first 100
pages. To be eligible, requesters must show that the request is made
under the auspices of a qualifying institution and that the records are
not sought for a commercial use, but are sought in furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a non-commercial scientific
institution) research. These categories do not include requesters who
want records for
[[Page 32990]]
use in meeting individual academic research or study requirements.
(3) Requesters who are representatives of the news media. Records
shall be provided to requesters in this category for the cost of
duplication alone, excluding charges for the first 100 pages.
(4) All other requesters. Requesters who do not fit any of the
categories described in paragraphs (d)(1) through (3) of this section
shall be charged fees that will recover the full direct cost of
searching for and duplicating records that are responsive to the
request, except that the first 100 pages of duplication and the first
two hours of search time shall be furnished without charge. The Agency
may recover the cost of searching for records even if there is
ultimately no disclosure of records, or no records are located.
Requests from persons for records about themselves filed in a systems
of records shall continue to be treated under the fee provisions of the
Privacy Act of 1974 which permit fees only for duplication.
(e) Fee waiver determination. Where the initial request includes a
request for reduction or waiver of fees, the responsible official shall
determine whether to grant the request for reduction or waiver before
processing the request and notify the requester of this decision. If
the decision does not waive all fees, the responsible official shall
advise the requester of the fact that fees shall be assessed and, if
applicable, payment must be made in advance pursuant to paragraph (g)
of this section.
(f) Waiver or reduction of fees.
(1) Fees may be waived or reduced on a case-by-case basis in
accordance with this paragraph by the official who determines the
availability of the records, provided such waiver or reduction has been
requested in writing. Fees shall be waived or reduced by this official
when it is determined, based upon the submission of the requester, that
a waiver or reduction of the fees is in the public interest because
furnishing the information is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester. Fee
waiver/reduction requests shall be evaluated against the current fee
waiver policy guidance issued by the Department of Justice.
(2) Appeals from denials of requests for waiver or reduction of
fees shall be decided in accordance with the criteria set forth in this
section by the official authorized to decide appeals from denials of
access to records. Appeals shall be addressed in writing to the Office
of the General Counsel, Court Services and Offender Supervision Agency,
Office of the General Counsel, 633 Indiana Avenue, NW., Washington, DC
20004 within 30 days of the denial of the initial request for waiver or
reduction and shall be decided within 20 days (excluding Saturdays,
Sundays and holidays).
(3) Appeals from an adverse determination of the requester's
category as described in paragraphs (d)(1) through (3) of this section
shall be decided by the official authorized to decide appeals from
denials of access to records and shall be based upon a review of the
requester's submission and the Agency's own records. Appeals shall be
addressed in writing to the office or officer specified in Sec.
802.7(c)(2) within 30 days of the receipt of the Agency's determination
of the requester's category and shall be decided within 20 days
(excluding Saturdays, Sundays, and holidays).
(g) Advance notice of fees.
(1) When the fees for processing the request are estimated to
exceed the limit set by the requester, and that amount is less than
$250.00, the requester shall be notified of the estimated costs. The
requester must provide an agreement to pay the estimated costs;
however, the requester will also be given an opportunity to reformulate
the request in an attempt to reduce fees.
(2) If the requester has failed to state a limit and the costs are
estimated to exceed $250.00, the requester shall be notified of the
estimated costs and must pre-pay such amount prior to the processing of
the request, or provide satisfactory assurance of full payment if the
requester has a history of prompt payment of FOIA fees. The requester
will also be given an opportunity to reformulate the request in an
attempt to reduce fees.
(h) Form of payment.
(1) Payment may be made by check or money order payable to the
Treasury of the United States.
(2) The Court Services and Offender Supervision Agency reserves the
right to request prepayment after a request is processed and before
documents are released in the following circumstances.
(i) When costs are estimated or determined to exceed $250.00, the
Agency shall either obtain satisfactory assurance of full payment of
the estimated cost where the requester has a history of prompt payment
of FOIA fees or require the requester to make an advance payment of the
entire estimated or determined fee before continuing to process the
request.
(ii) If a requester has previously failed to pay a fee within 30
days of the date of the billing, the requester shall be required to pay
the full amount owed plus any applicable interest, and to make an
advance payment of the full amount of the estimated fee before the
Agency begins to process a new request or the pending request. Whenever
interest is charged, the Agency shall begin assessing interest on the
31st day following the day on which billing was sent. Interest shall be
at the rate prescribed in 31 U.S.C. 3717.
(i) Amounts to be charged for specific services. The fees for
services performed by an employee of the Agency shall be imposed and
collected as set forth in this paragraph.
(1) Duplicating records. All requesters, except commercial
requesters, shall receive the first 100 pages duplicated without
charge; the first two hours of search time free; or charge which total
$10.00 or less. Fees for the copies are to be calculated as follows:
(i) The duplication cost is calculated by multiplying the number of
pages in excess of 100 by $0.25.
(ii) Photographs, films, and other materials--actual cost of
duplication.
(iii) Other types of duplication services not mentioned above--
actual cost.
(iv) Material provided to a private contractor for copying shall be
charged to the requester at the actual cost charged by the private
contractor.
(2) Search services. The cost of search time is calculated by
multiplying the number of quarter hours in excess of two hours by the
following rates for the staff conducting the search:
(i) $7.00 per quarter hour for clerical staff;
(ii) $10.00 per quarter hour for professional staff; and
(iii) $14.00 per quarter hour for managerial personnel.
(3) Only fees in excess of $10.00 will be assessed. This means that
the total cost must be greater than $10.00, either for the cost of the
search (for time in excess of two hours), for the cost of duplication
(for pages in excess of 100), or for both costs combined.
(j) Searches for electronic records. The Agency shall charge for
actual direct cost of the search, including computer search time, runs,
and the operator's salary. The fee for computer output shall be actual
direct costs. For requesters in the ``all other'' category, when the
cost of the search (including the operator time and the cost of
operating the computer to process a request) equals the equivalent
dollar amount of two hours of the salary of the person performing the
search (i.e., the operator), the charge for the computer search will
begin.
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(k) Aggregating requests. When the Agency reasonably believes that
a requester or group of requesters is attempting to break a request
down into a series of requests for the purpose of evading the
assessment of fees, the Agency shall aggregate any such requests and
charge accordingly.
Subpart C--Privacy Act
Sec. 802.11 Purpose and scope.
The regulations in this subpart apply to all records which are
contained in a system of records maintained by the Agency and which are
retrieved by an individual's name or personal identifier. This subpart
implements the Privacy Act by establishing Agency policy and procedures
providing for the maintenance of and guaranteed access to records.
Under these procedures:
(a) You can ask us whether we maintain records about you or obtain
access to your records; and
(b) You may seek to have your record corrected or amended if you
believe that your record is not accurate, timely, complete, or
relevant.
Sec. 802.12 Definitions.
As used in this subpart, the following terms shall have the
following meanings:
(a) Agency has the meaning as defined in 5 U.S.C. 552(e).
(b) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(c) Maintain includes maintain, collect, use, or disseminate.
(d) Record means any item, collection, or grouping of information
about an individual that is maintained by the Agency. This includes,
but is not limited to, the individual's education, financial
transactions, medical history, and criminal or employment history and
that contains the name, or an identifying number, symbol, or other
identifying particular assigned to the individual, such as a
fingerprint or a photograph.
(e) System of records means a group of any records under the
control of the Agency from which information is retrieved by the name
of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(f) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or part in making any determination about an identifiable
individual, except as provided by 13 U.S.C. 8.
(g) Routine use means the disclosure of a record that is compatible
with the purpose for which the record was collected.
(h) Request for access means a request made pursuant to 5 U.S.C.
552a(d)(1).
(i) Request for amendment means a request made pursuant to 5 U.S.C.
552a(d)(2).
(j) Request for accounting means a request made pursuant to 5
U.S.C. 552a(c)(3).
Sec. 802.13 Verifying your identity.
(a) Requests for your own records. When you make a request for
access to records about yourself, you must verify your identity. You
must state your full name, current address, and date and place of
birth. You must sign your request and your signature must either be
notarized or submitted by you under 28 U.S.C. 1746. In order to help
the identification and location of requested records, you may also, at
your option, include your social security number.
(b) Requests on behalf of another. Information that concerns an
individual and that is contained in a system of records maintained by
the Agency shall not be disclosed to any person, or to another agency,
except under the provisions of the Privacy Act, 5 U.S.C. 552a, or the
Freedom of Information Act, 5 U.S.C. 552.
(c) Disclosure criteria. Staff may disclose information from an
agency system of records only if one or more of the following criteria
apply:
(1) With the written consent of the individual to whom the record
pertains.
(2) Pursuant to a specific exception listed under the Privacy Act
(5 U.S.C. 552a(b)). For example, specific exceptions allow disclosure:
(i) To employees within the Agency who have a need for the record
in the performance of their duties.
(ii) If disclosure is required under FOIA when the public interest
in disclosure of the information outweighs the privacy interest
involved.
(iii) For a routine use described in the agency system of records
as published in the Federal Register.
(A) The published notices for these systems describe the records
contained in each system and the routine uses for disclosing these
records without first obtaining the consent of the person to whom the
records pertain.
(B) CSOSA publishes notices of system of records, including all
pertinent routine uses, in the Federal Register.
Sec. 802.14 Requests for access to records.
(a) Submission and processing procedures.
(1) Requests for any agency record about yourself ordinarily will
be processed pursuant to the Privacy Act, 5 U.S.C. 552a. Such a request
must be made in writing and addressed to the FOIA Officer, Office of
the General Counsel, Court Services and Offender Supervision Agency,
633 Indiana Avenue, NW., Washington, DC 20004. The requester should
clearly mark on the face of the letter and the envelope ``Privacy Act
Request.''
(2) Your request will be considered received as of the date it is
received by the Office of the General Counsel. For quickest possible
handling, you should mark both your request letter and the envelope
``Privacy Act Request.''
(3) You must describe the records that you seek in enough detail to
enable Agency personnel to locate them with a reasonable amount of
effort. Whenever possible, your request should include specific
information about each record sought, such as the date, title or name,
author, recipient and subject matter of the record. As a general rule,
the more specific you are about the records or type of records that you
want, the more likely the Agency will be able to locate the records in
response to your request. If a determination is made that your request
does not reasonably describe records, the Agency will tell you either
what additional information is needed or why your request is otherwise
insufficient. You will be given the opportunity to discuss your request
so that you may modify it to meet the requirements of this section.
(b) Release and review procedures. Upon written request by an
individual to gain access to his or her records which are not otherwise
exempted, CSOSA shall permit the individual and, upon the individual's
request, a person of his or her choosing to accompany him or her, to
review the record and have a copy of all or any portion of the record.
If a document contains information exempt from disclosure under the
Privacy Act, any reasonably segregable portion of the record will be
provided to the requester after deletion of the exempt portions.
(2) A requester will be notified of the decision on the request in
writing.
(3) Generally, all Privacy Act requests will be processed in the
approximate order of receipt, unless the requester shows exceptional
circumstances exist to justify an expedited response (see Sec. 802.8).
Sec. 802.15 Denial of request.
(a) Denial in whole or in part. If it is determined that the
request for records should be denied in whole or in part, the requester
shall be notified by mail. The letter of notification shall:
(1) State the PA and FOIA exemptions relied on in not granting the
request;
[[Page 32992]]
(2) If technically feasible, indicate the amount of information
deleted at the place in the record where such deletion is made (unless
providing such indication would harm an interest protected by the
exemption relied upon to deny such material);
(3) Set forth the name and title or position of the responsible
official;
(4) Advise the requester of the right to an administrative appeal
in accordance with Sec. 802.16; and
(5) Specify the official or office to which such appeal shall be
submitted.
(b) No records found. If it is determined, after a thorough search
for records by the responsible official or his delegate, that no
records have been found to exist, the responsible official will so
notify the requester in writing. The letter of notification will advise
the requester of the right to administratively appeal the determination
that no records exist (i.e., to challenge the adequacy of the search
for responsive records) in accordance with Sec. 802.16. The
notification shall specify the official or office to which the appeal
shall be submitted for review.
Sec. 802.16 Administrative appeal.
(a) A requester may appeal an Agency initial determination when:
(1) Access to records has been denied in whole or in part; or
(2) It has been determined that no responsive records exist.
(b) Appeals of initial determinations must be made within 30 days
of the receipt of the letter denying the request. Both the envelope and
the letter of appeal should be sent to the Office of the General
Counsel, Court Services and Offender Supervision Agency, 633 Indiana
Avenue, NW., Room 1220, Washington, DC 20004 and must be clearly marked
``Privacy Act Appeal.''
(c) The General Counsel will make an appeal determination within 30
days (excluding Saturdays, Sundays, and holidays) from the date of
receipt of the appeal. However, for a good reason, this time limit may
be extended. If, after review, the General Counsel determines that
additional information should be released, it will accompany the appeal
response. If, after review, the General Counsel determines to uphold
the initial review, we will inform you of that decision.
Sec. 802.17 Documents from other agencies.
(a)(1) Documents from or pertaining to Federal agencies. When a
request for records includes a document from another Federal agency,
the document will be referred to the originating Federal agency for a
determination of its releasability. The requester will be informed of
the referral. This is not a denial of a Privacy Act request; thus no
appeal rights accrue to the requester.
(2) When a Privacy Act request is received for a record created by
the Agency that includes information originated by another Federal
agency, the record will be referred to the originating agency for
review and recommendation on disclosure. The Agency will not release
any such record without prior consultation with the originating agency.
(b) Documents from non-Federal agencies. When a request for records
includes a document from a non-Federal agency, CSOSA staff must make a
determination of its releasability.
Sec. 802.18 Correction or amendment of records.
This section applies to all records kept by the Agency except for
records of earnings. If you believe your record is not accurate,
relevant, timely, or complete, you may request that your record be
corrected or amended. A request for correction or amendment must
identify the particular record in question, state the correction or
amendment sought, and set forth the justification for the correction.
To amend or correct your record, you should write to the Office of the
General Counsel identified in Sec. 802.14(a)(1). You should submit any
available evidence to support your request. Both the request and the
envelope must be clearly marked ``Privacy Act Correction Request.''
Your request should indicate:
(a) The system of records from which the record is retrieved;
(b) The particular record which you want to correct or amend;
(c) Whether you want to add, delete or substitute information in
the records; and
(d) Your reasons for believing that your record should be corrected
or amended.
Sec. 802.19 Appeal of denial to correct or amend.
(a) The system manager may grant or deny requests for correction of
agency records. One basis for denial may be that the records are
contained in an agency system of records that has been published in the
Federal Register and exempted from the Privacy Act provisions allowing
amendment and correction.
(1) Any denial of a request for correction should contain a
statement of the reason for denial and notice to the requester that the
denial may be appealed to the General Counsel by filing a written
appeal.
(2) The appeal should be marked on the face of the letter and the
envelope, ``PRIVACY APPEAL--DENIAL OF CORRECTION,'' and be addressed to
the Office of the General Counsel, address cited at Sec. 802.14(a)(1).
(3) The General Counsel will review your request within 30 days
from the date of receipt. However, for a good reason, this time limit
may be extended. If, after review, the General Counsel determines that
the record should be corrected, the record will be corrected. If, after
review, the General Counsel refuses to amend the record exactly as you
requested, we will inform you:
(i) That your request has been refused and the reason;
(ii) That this refusal is the Agency's final decision;
(iii) That you have a right to seek court review of this request to
amend the record; and
(iv) That you have a right to file a statement of disagreement with
the decision. Your statement should include the reason you disagree. We
will make your statement available to anyone to whom the record is
subsequently disclosed, together with a statement of our reasons for
refusing to amend the record.
(b) Requests for correction of records prepared by other federal
agencies shall be forwarded to that agency for appropriate action and
the requester will be immediately notified of the referral in writing.
(c) When the request is for correction of non-Federal records, the
requester will be advised to write to that non-Federal entity.
Sec. 802.20 Accounting of disclosures.
(a) We will provide an accounting of all disclosures of a record
for five years or until the record is destroyed, whichever is longer,
except that no accounting will be provided to the record subject for
disclosures made to law enforcement agencies and no accounting will be
made for:
(1) Disclosures made under the FOIA;
(2) Disclosures made within the agency; and
(3) Disclosures of your record made with your written consent.
(b) The accounting will include:
(1) The date, nature, and purpose of the disclosure; and
(2) The name and address of the person or entity to whom the
disclosure is made.
(c) You may request access to an accounting of disclosures of your
record. Your request should be in accordance with the procedures in
Sec. 802.14. You will be granted access to an accounting of the
disclosures of your record in accordance with the procedures of this
part which govern
[[Page 32993]]
access to the related record, excepting disclosures made for an
authorized civil or criminal law enforcement agency as provided by
subsection (c)(3) of the Privacy Act. You will be required to provide
reasonable identification.
Sec. 802.21 Appeals.
You may appeal a denial of a request for an accounting to the
Office of the General Counsel in the same manner as a denial of a
request for access to records (See Sec. 802.16) and the same
procedures will be followed.
Sec. 802.22 Fees.
The Agency shall charge fees under the Privacy Act for duplication
of records only. These fees shall be at the same rate the Agency
charges for duplication fees under the Freedom of Information Act (See
Sec. 802.10(i)(1)).
Sec. 802.23 Use and disclosure of social security numbers.
(a) In general. An individual shall not be denied any right,
benefit, or privilege provided by law because of such individual's
refusal to disclose his or her social security number.
(b) Exceptions. The provisions of paragraph (a) of this section do
not apply with respect to:
(1) Any disclosure which is required by Federal statute, or
(2) The disclosure of a social security number to any Federal,
State, or local agency maintaining a system of records in existence and
operating before January 1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to verify the identity
of an individual.
(c) Requests for disclosure of social security number. If the
Agency requests an individual to disclose his or her social security
account number, we shall inform that individual whether:
(1) Disclosure is mandatory or voluntary.
(2) By what statutory or other authority such number is solicited,
and
(3) What uses will be made of it.
Subpart D--Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
Sec. 802.24 Purpose and scope.
(a) These regulations state the procedures which the Court Services
and Offender Supervision Agency (``CSOSA'' or ``Agency'') and the
District of Columbia Pretrial Services Agency (``PSA'' or ``Agency'')
follow in response to a demand from a Federal, state, or local
administrative body for the production and disclosure of material in
connection with a proceeding to which the Agency is not a party.
(b) These regulations do not apply to congressional requests.
Neither do these regulations apply in the case of an employee making an
appearance solely in his or her private capacity in judicial or
administrative proceedings that do not relate to the Agency (such as
cases arising out of traffic accidents, domestic relations, etc.).
(c) This part is not intended and does not create and may not be
relied upon to create any right or benefit, substantive or procedural,
enforceable at law by a party against the United States or specifically
CSOSA or PSA.
Sec. 802.25 Definitions.
Demand means a request, order, or subpoena for testimony or
documents to use in a legal proceeding.
Employee includes a person employed in any capacity by CSOSA or
PSA, currently or in the past; any person appointed by, or subject to
the supervision, jurisdiction, or control of the head of the Agency, or
any Agency official, currently or in the past. A person who is subject
to the Agency's jurisdiction or control includes any person who hired
as a contractor by the agency, any person performing services for the
agency under an agreement, and any consultant, contractor, or
subcontractor of such person. A former employee is also considered an
employee only when the matter about which the person would testify is
one in which he or she was personally involved while at the Agency, or
where the matter concerns official information that the employee
acquired while working at the Agency, such as sensitive or confidential
agency information.
Legal Proceeding includes any pretrial, trial, and post-trial state
of any existing or reasonably anticipated judicial or administrative
action, hearing, investigation, or similar proceeding before a court,
commission, board, agency, or other tribunal, authority or entity,
foreign or domestic. Legal proceeding also includes any deposition or
other pretrial proceeding, including a formal or informal request for
testimony made by an attorney or other person, or a request for
documents gathered or drafted by an employee.
Sec. 802.26 Receipt of demand.
If, in connection with a proceeding to which the Agency is not a
party, an employee receives a demand from a court or other authority
for material contained in the Agency's files, any information relating
to material contained in the Agency's files, or any information or
material acquired by an employee as a part of the performance of that
person's official duties or because of that person's official status,
the employee must:
(a) Immediately notify the Office of the General Counsel and
forward the demand to the General Counsel if the demand pertains to
CSOSA; or
(b) Immediately notify the Deputy Director of PSA and forward the
demand to the Deputy Director if the demand pertains to PSA.
Sec. 802.27 Compliance/noncompliance.
The General Counsel is responsible for determining if CSOSA should
comply or not comply with the demand, and the Deputy Director of PSA is
responsible for determining if PSA should comply with the demand.
(a) An employee may not produce any documents, or provide testimony
regarding any information relating to, or based upon Agency documents,
or disclose any information or produce materials acquired as part of
the performance of that employee's official duties, or because of that
employee's official status without prior authorization from the General
Counsel or Deputy Director. The reasons for this policy are as follows:
(1) To conserve the time of the agency for conducting official
business;
(2) To minimize the possibility of involving the agency in
controversial issues that are not related to the agency's mission;
(3) To prevent the possibility that the public will misconstrue
variances between personal opinions of agency employees and agency
policies;
(4) To avoid spending the time and money of the United States for
private purposes;
(5) To preserve the integrity of the administrative process; and
(6) To protect confidential, sensitive information and the
deliberative process of the agency.
(b) An attorney from the Office of the General Counsel shall appear
with any CSOSA employee upon whom the demand has been made (and with
any PSA employee if so requested by the Deputy Director), and shall
provide the court or other authority with a copy of the regulations
contained in this part. The attorney shall also inform the court or
authority that the demand has been or is being referred for prompt
consideration by the General Counsel or Deputy Director. The court or
other authority will be requested respectfully to stay the demand
pending receipt of the requested instructions from the General Counsel
or Deputy Director.
(c) If the court or other authority declines to stay the effect of
the demand
[[Page 32994]]
pending receipt of instructions from the General Counsel or Deputy
Director, or if the court or other authority rules that the demand must
be complied with irrespective of the instructions from the General
Counsel or Deputy Director not to produce the material or disclose the
information sought, the employee upon whom the demand was made shall
respectfully decline to produce the information under United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951). In this case, the Supreme
Court held that a government employee could not be held in contempt for
following an agency regulation requiring agency approval before
producing government information in response to a court order.
(d) To achieve the purposes noted in paragraphs (a)(1) through (6)
of this section, the agency will consider factors such as the following
in determining whether a demand should be complied with:
(1) The Privacy Act, 5 U.S.C. 522a;
(2) Department of Health and Human Services statute and regulations
concerning drug and alcohol treatment programs found at 42 U.S.C. 290dd
and 42 CFR 2.1 et seq.;
(3) The Victims Rights Act, 42 U.S.C. 10606(b);
(4) D.C. statutes and regulations;
(5) Any other state or federal statute or regulation;
(6) Whether disclosure is appropriate under the rules of procedure
governing the case or matter in which the demand arose;
(7) Whether disclosure is appropriate under the relevant
substantive law concerning privilege;
(8) Whether disclosure would reveal a confidential source or
informant, unless the investigative agency and the source or informant
have no objection; and
(9) Whether disclosure would reveal investigatory records compiled
for law enforcement purposes, and would interfere with enforcement
proceedings or disclose investigative techniques and procedures the
effectiveness of which would thereby be impaired.
Subpart E--Exemption of Records Systems Under the Privacy Act
Sec. 802.28 Exemption of the Court Services and Offender Supervision
Agency System--limited access.
The Privacy Act permits specific systems of records to be exempt
from some of its requirements.
(a)(1) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and
(g):
(i) Background Investigation (CSOSA-2).
(ii) Supervision Offender Case File (CSOSA-9).
(iii) Pre-Sentence Investigations (CSOSA-10).
(iv) Supervision & Management Automated Record Tracking (SMART)
(CSOSA-11).
(v) Recidivism Tracking Database (CSOSA-12).
(vi) [Reserved].
(vii) Substance Abuse Treatment Database (CSOSA-15).
(viii) Screener (CSOSA-16).
(ix) Sex Offender Registry (CSOSA-18).
(2) Exemptions from the particular subsections are justified for
the following reasons:
(i) From subsection (c)(3) because offenders will not be permitted
to gain access or to contest contents of these record systems under the
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure
accountings can compromise legitimate law enforcement activities and
CSOSA responsibilities.
(ii) From subsection (c)(4) because exemption from provisions of
subsection (d) will make notification of formal disputes inapplicable.
(iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g)
because exemption from this subsection is essential to protect internal
processes by which CSOSA personnel are able to formulate decisions and
policies with regard to offenders, to prevent disclosure of information
to offenders that would jeopardize legitimate correctional interests of
rehabilitation, and to permit receipt of relevant information from
other federal agencies, state and local law enforcement agencies, and
federal and state probation and judicial offices.
(iv) From subsection (e)(1) because primary collection of
information directly from offenders about criminal history or criminal
records is highly impractical and inappropriate.
(A) 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.
(B) 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.
(C) In interviewing individuals or obtaining other forms of
evidence or information 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.
(v) 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/her own activities.
(vi) 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
investigative activities and could take appropriate steps to evade the
investigation or flee a specific area.
(vii) 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.
(viii) Those sections would otherwise require CSOSA to notify an
individual of investigatory materials contained in a record pertaining
to him/her, permit access to such record, permit requests for its
correction (section 552a(d), (e)(4)(G), and (H)); make available to
him/her any required accounting of disclosures made of the record
(section 552a(c)(3)), publish the sources of records in the system
(section 552a(4)(I)); and screen records to insure that there is
maintained only such information about an individual as is relevant to
accomplish a required purpose of the Agency (section 552(e)(1)). In
addition, screening for relevancy to Agency purposes, a correction or
attempted correction of such materials could require excessive amounts
of time and effort on the part of all concerned.
(b)(1) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1)-(e)(3), (4)(H), (5), (8) and (g):
(i) Office of Professional Responsibility Record (OPR) (CSOSA-17).
(ii) [Reserved].
(2) Exemptions from the particular subsections are justified for
the following reasons:
(i) From subsection (c)(3) because release of disclosure accounting
could alert the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to the existence of the
investigation and the fact that they
[[Page 32995]]
are subjects of the investigation, and reveal investigative interest by
not only the OPR but also by the recipient agency. Since release of
such information to the subjects of an investigation would provide them
with significant information concerning the nature of the
investigation, release could result in activities that would impede or
compromise law enforcement such as: the destruction of documentary
evidence; improper influencing of witnesses; endangerment of the
physical safety of confidential sources, witnesses, and law enforcement
personnel; fabrication of testimony; and flight of the subject from the
area. In addition, release of disclosure accounting could result in the
release of properly classified information which could compromise the
national defense or disrupt foreign policy.
(ii) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(iii) From the access and amendment provisions of subsection (d)
because access to the records contained in this system of records could
provide the subject of an investigation with information concerning law
enforcement activities such as that relating to an actual or potential
criminal, civil or regulatory violation; the existence of an
investigation; the nature and scope of the information and evidence
obtained as to his activities; the identity of confidential sources,
witnesses, and law enforcement personnel; and information that may
enable the subject to avoid detection or apprehension. Such disclosure
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 such information could
disclose security-sensitive or confidential business information or
information that would constitute an unwarranted invasion of the
personal 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.
(iv) From subsection (e)(1) because the application of this
provision could impair investigations and interfere with the law
enforcement responsibilities of the OPR for the following reasons:
(A) 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 in
which use is made of 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.
(B) During the course of any investigation, the OPR may obtain
information concerning actual or potential violations of laws other
than those within the scope of its jurisdiction. In the interest of
effective law enforcement, the OPR should retain this information as it
may aid in establishing patterns of criminal activity, and can provide
valuable leads for Federal and other law enforcement agencies.
(C) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may relate also to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(v) 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:
(A) 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.
(B) 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, violations of rules of conduct,
or any other misconduct must be obtained from other sources.
(C) 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 litigation.
(vi) From subsection (e)(3) because the application of this
provision would provide the subject of an investigation with
substantial information which could impede or compromise the
investigation. Providing such notice to a subject of an investigation
could interfere with an undercover investigation by revealing its
existence, and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(vii) From subsection (e)(5) because the application of this
provision would prevent the collection of any data not shown to be
accurate, relevant, timely, and complete at the moment it is collected.
In the collection of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Material which may seem unrelated,
irrelevant, or incomplete when collected may take on added meaning or
significance as an investigation progresses. The restrictions of this
provision could interfere with the preparation of a complete
investigation report, and thereby impede effective law enforcement.
(viii) 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 investigation
techniques, procedures, and/or evidence.
(ix) 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.
Sec. 802.29 Exemption of the Pretrial Services Agency System.
The Privacy Act permits specific systems of records to be exempt
from some of its requirements.
(a)(1) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and
(g):
(i) Automated Bail Agency Database (ABADABA) (CSOSA/PSA-1).
(ii) Drug Test Management System (DTMS) (CSOSA/PSA-2).
(iii) Interview and Treatment Files (CSOSA/PSA-3).
(iv) Pretrial Realtime Information Systems Manager (PRISM) (CSOSA/
PSA-6).
(2) Exemptions from the particular subsections are justified for
the following reasons:
(i) From subsection (c)(3) because defendants/offenders will not be
permitted to gain access or to contest contents of these record systems
under the provisions of subsection (d) of 5 U.S.C. 552a. Revealing
disclosure accountings can compromise legitimate law enforcement
activities and CSOSA/PSA responsibilities.
[[Page 32996]]
(ii) From subsection (c)(4) because exemption from provisions of
subsection (d) will make notification of formal disputes inapplicable.
(iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g)
because exemption from this subsection is essential to protect internal
processes by which CSOSA/PSA personnel are able to formulate decisions
and policies with regard to defendants/offenders, to prevent disclosure
of information to defendants/offenders that would jeopardize legitimate
correctional interests of rehabilitation, and to permit receipt of
relevant information from other federal agencies, state and local law
enforcement agencies, and federal and state probation and judicial
offices.
(iv) From subsection (e)(1) because primary collection of
information directly from defendants/offenders about criminal history
or criminal records is highly impractical and inappropriate.
(A) 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.
(B) Relevancy 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.
(C) In interviewing individuals or obtaining other forms of
evidence or information 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.
(v) 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/her own activities.
(vi) 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
investigative activities and could take appropriate steps to evade the
investigation or flee a specific area.
(vii) 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.
(viii) Those sections would otherwise require CSOSA to notify an
individual of investigatory materials contained in a record pertaining
to him/her, permit access to such record, permit requests for its
correction (section 552a(d), (e)(4)(G), and (H)); make available to
him/her any required accounting of disclosures made of the record
(section 552a(c)(3)), publish the sources of records in the system
(section 552a(4)(I)); and screen records to insure that there is
maintained only such information about an individual as is relevant to
accomplish a required purpose of the Agency (section 552(e)(1)). In
addition, screening for relevancy to Agency purposes, a correction or
attempted correction of such materials could require excessive amounts
of time and effort on the part of all concerned.
(b) [Reserved].
[FR Doc. 03-13764 Filed 6-2-03; 8:45 am]
BILLING CODE 3129-01-P