[Federal Register: December 5, 2002 (Volume 67, Number 234)]
[Rules and Regulations]
[Page 72373-72375]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de02-9]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1611
Privacy Act Regulations
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission is revising its
regulations, which implement the Privacy Act of 1974, to exempt two
EEOC systems of records from some of the Act's requirements.
EFFECTIVE DATE: December 5, 2002.
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, or Kathleen Oram, Senior Attorney, Office of Legal Counsel,
(202) 663-4669 (voice) or (202) 663-7026 (TDD).
SUPPLEMENTARY INFORMATION: This rule is also available in the following
formats: large print, braille, audio tape and electronic file on
computer disk. Requests for this rule in an alternative format should
be made to EEOC's Publication Center at 1-800-669-3362. The Commission
published a notice of proposed rulemaking on July 30, 2002, proposing
to amend its Privacy Act regulations. The Commission proposed to amend
Sec. 611.13 to exempt its system of records EEOC-15, Internal
Harassment Inquiries, pursuant to section k(2) of the Privacy Act, from
subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and
(f) of the Privacy Act. In addition, the Commission proposed to add a
new Sec. 1611.14, to exempt its system of records EEOC-16, Office of
Inspector General Investigative Files, pursuant to section (j)(2) from
sections (c)(3), (d)(1), (d)(2), (e)(1), (e)(2) and (e)(3) and pursuant
to section (k)(2) from sections (c)(3), (d)(1), (d)(2) and (e)(1) of
the Act.
Section (k) of the Privacy Act allows an agency to exempt any
system of records from the above-referenced subsections of the Act if
it consists of ``investigatory material compiled for law enforcement
purposes.'' 5 U.S.C. 552(k)(2). Section (j) of the Privacy Act permits
an agency to exempt a system of records from sections of the Act,
including those noted above, if the system of records is ``maintained
by an agency or component thereof which performs as its principal
function any activity pertaining to the enforcement of criminal laws.''
5 U.S.C. 552(j)(2). The files in the Internal Harassment Inquiries
system of records contain information obtained by EEOC in its internal
investigations of allegations of harassment filed by EEOC employees.
The files in the Office of Inspector General Investigations Files
system contain information obtained during investigations by the Office
of Inspector General relating to programs and operations of the EEOC.
It would impede the law enforcement activities of the Commission, and
the Office of Inspector General to apply the disclosure and amendment
provisions of the Privacy Act to the two systems of records. The
regulation includes detailed reasons for the exemption of the two
systems of records from the particular provisions of the Privacy Act.
We did not receive any comments on the proposed changes. This final
rule, therefore, adopts the amendments proposed in the notice of
proposed rulemaking without change.
Regulatory Procedures:
List of Subjects in 29 CFR Part 1611
For the Commission.
Cari M. Dominguez,
Chair.
Accordingly, chapter XIV of title 29 of the Code of Federal
Regulations is amended as follows:
PART 1611--[AMENDED]
1. The authority citation for Part 1611 continues to read as
follows:
Authority: 5 U.S.C. 552a
2. Section 1611.13 is revised to read as follows:
Sec. 1611.13 Specific Exemptions-Charge and complaint files
Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2),
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-
3 (Title VII and Americans with Disabilities Act Discrimination Case
[[Page 72374]]
Files), EEOC-15 (Internal Harassment Inquiries) and EEOC/GOVT-1 (Equal
Employment Opportunity Complaint Records and Appeal Records) are exempt
from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I),
and (f) of the Privacy Act. The Commission has determined to exempt
these systems from the above named provisions of the Privacy Act for
the following reasons:
(a) The files in these systems contain information obtained by the
Commission and other Federal agencies in the course of harassment
inquiries, and investigations of charges and complaints that violations
of Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Equal Pay Act, the Americans With Disabilities Act
and the Rehabilitation Act have occurred. In some instances, EEOC and
agencies obtain information regarding unlawful employment practices
other than those complained of by the individual who is the subject of
the file. It would impede the law enforcement activities of the
Commission and other agencies if these provisions of the Act applied to
such records.
(b) The subject individuals of the files in these systems know that
the Commission or their employing agencies are maintaining a file on
their charge, complaint, or inquiry, and the general nature of the
information contained in it.
(c) Subject individuals of the files in EEOC-1 (Age and Equal Pay
Act Discrimination Case Files), EEOC-3 (Title VII and Americans with
Disabilities Act Discrimination Case Files, and EEOC/GOVT-1 (Equal
Employment Opportunity Complaint Records and Appeal Records) have been
provided a means of access to their records by the Freedom of
Information Act. Subject individuals of the charge files in system
EEOC-3 have also been provided a means of access to their records by
section 83 of the Commission's Compliance Manual. Subject individuals
of the case files in system EEOC/GOVT-1 have also been provided a means
of access to their records by the Commission's Equal Employment
Opportunity in the Federal Government regulation, 29 CFR 1614.108(f).
(d) Many of the records contained in system EEOC/GOVT-1 are
obtained from other systems of records. If such records are incorrect,
it would be more appropriate for an individual to seek to amend or
correct those records in their primary filing location so that notice
of the correction can be given to all recipients of that information.
(e) Subject individuals of the files in each of these systems have
access to relevant information provided by the allegedly discriminating
employer, accuser or harasser as part of the investigatory process and
are given the opportunity to explain or contradict such information and
to submit any responsive evidence of their own. To allow such
individuals the additional right to amend or correct the records
submitted by the allegedly discriminatory employer, accuser or harasser
would undermine the investigative process and destroy the integrity of
the administrative record.
(f) The Commission has determined that the exemption of these four
systems of records from subsections (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I) and (f) of the Privacy Act is necessary for the
agency's law enforcement efforts.
3. Section 1611.14 is added to read as follows:
Sec. 1611.14 Exemptions--Office of Inspector General Files
(a) General. The system of records entitled Office of Inspector
General Investigative Files consists, in part, of information compiled
by the OIG for the purpose of criminal law enforcement investigations.
Therefore, to the extent that information in this system falls within
the scope of Exemption (j)(2) of the Privacy Act, 5 U.S.C. 552a(j)(2),
this system of records is exempt from the requirements of the following
subsections of the Privacy Act, for the reasons stated below.
(1) From subsection (c)(3), because release of an accounting of
disclosures to an individual who is the subject of an investigation
could reveal the nature and scope of the investigation and could result
in the altering or destruction of evidence, improper influencing of
witnesses, and other evasive actions that could impede or compromise
the investigation.
(2) From subsection (d)(1), because release of investigative
records to an individual who is the subject of an investigation could
interfere with pending or prospective law enforcement proceedings,
constitute an unwarranted invasion of the personal privacy of third
parties, reveal the identity of confidential sources, or reveal
sensitive investigative techniques and procedures.
(3) From subsection (d)(2), because amendment or correction of
investigative records could interfere with pending or prospective law
enforcement proceedings, or could impose an impossible administrative
and investigative burden by requiring the OIG to continuously
retrograde its investigations attempting to resolve questions of
accuracy, relevance, timeliness and completeness.
(4) From subsection (e)(1), because it is often impossible to
determine relevance or necessity of information in the early stages of
an investigation. The value of such information is a question of
judgment and timing; what appears relevant and necessary when collected
may ultimately be evaluated and viewed as irrelevant and unnecessary to
an investigation. In addition, the OIG may obtain information
concerning the violation of laws other than those within the scope of
its jurisdiction. In the interest of effective law enforcement, the OIG
should retain this information because it may aid in establishing
patterns of unlawful activity and provide leads for other law
enforcement agencies. Further, in obtaining evidence during an
investigation, information may be provided to the OIG which relates to
matters incidental to the main purpose of the investigation but which
may be pertinent to the investigative jurisdiction of another agency.
Such information cannot readily be identified.
(5) From subsection (e)(2), because in a law enforcement
investigation it is usually counterproductive to collect information to
the greatest extent practicable from the subject thereof. It is not
always feasible to rely upon the subject of an investigation as a
source for information which may implicate him or her in illegal
activities. In addition, collecting information directly from the
subject could seriously compromise an investigation by prematurely
revealing its nature and scope, or could provide the subject with an
opportunity to conceal criminal activities, or intimidate potential
sources, in order to avoid apprehension.
(6) From subsection (e)(3), because providing such notice to the
subject of an investigation, or to other individual sources, could
seriously compromise the investigation by prematurely revealing its
nature and scope, or could inhibit cooperation, permit the subject to
evade apprehension, or cause interference with undercover activities.
(b) Specific. The system of records entitled Office of Inspector
General Investigative Files consists, in part, of investigatory
material compiled by the OIG for law enforcement purposes. Therefore,
to the extent that information in this system falls within the coverage
of exemption (k)(2) of the Privacy Act, 5 U.S.C. 552a(k)(2), this
system of records is exempt from the requirements of the following
subsections of the
[[Page 72375]]
Privacy Act, for the reasons stated below.
(1) From subsection (c)(3), because release of an accounting of
disclosures to an individual who is the subject of an investigation
could reveal the nature and scope of the investigation and could result
in the altering or destruction of evidence, improper influencing of
witnesses, and other evasive actions that could impede or compromise
the investigation.
(2) From subsection (d)(1), because release of investigative
records to an individual who is the subject of an investigation could
interfere with pending or prospective law enforcement proceedings,
constitute an unwarranted invasion of the personal privacy of third
parties, reveal the identity of confidential sources, or reveal
sensitive investigative techniques and procedures.
(3) From subsection (d)(2), because amendment or correction of
investigative records could interfere with pending or prospective law
enforcement proceedings, or could impose an impossible administrative
and investigative burden by requiring the OIG to continuously
retrograde its investigations attempting to resolve questions of
accuracy, relevance, timeliness and completeness.
(4) From subsection (e)(1), because it is often impossible to
determine relevance or necessity of information in the early stages of
an investigation. The value of such information is a question of
judgment and timing; what appears relevant and necessary when collected
may ultimately be evaluated and viewed as irrelevant and unnecessary to
investigation. In addition, the OIG may obtain information concerning
the violation of laws other than those within the scope of its
jurisdiction. In the interest of effective law enforcement, the OIG
could retain this information because it may aid in establishing
patterns of unlawful activity and provide leads for other law
enforcement agencies. Further, in obtaining evidence during an
investigation, information may be provided to the OIG which relates to
matters incidental to the main purpose of the investigation but which
may be pertinent to the investigative jurisdiction of another agency.
Such information cannot readily be identified.
[FR Doc. 02-30525 Filed 12-4-02; 8:45 am]
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