[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR16.14]

[Page 210-214]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 16_IMPLEMENTATION OF PRIVACY ACT OF 1974--Table of Contents
 
Sec. 16.14  Specific exemptions.

    (a) Exemptions under 5 U.S.C. 552a(k)(2)--(1) Systems of records 
affected.

] EPA-2 General Personnel Records--EPA.
] EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
] EPA-5 OIG Personnel Security Files--EPA/OIG.
] EPA-17 NEIC Criminal Investigative Index and Files-- EPA/NEIC/OCI.
] EPA-30 OIG Hotline Allegation System--EPA/OIG.

    (2) Authority. Under 5 U.S.C. 552a(k)(2), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
investigatory material compiled for law enforcement purposes, other than 
material within the scope of subsection (j)(2).
    (3) Scope of exemption. (i) The systems of records identified in 
Sec. 16.14(a)(1) are exempted from the following provisions of the 
Privacy Act of 1974, subject to the limitations set forth in 5 U.S.C. 
552a(k)(2): 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and (I); and 
(f).
    (ii) An individual is ``denied any right, privilege, or benefit that 
he would otherwise be entitled by Federal law, or for which he would 
otherwise be eligible, as a result of the maintenance of such 
material,'' only if the Agency actually uses the material in denying or 
proposing to deny such right, privilege, or benefit.
    (iii) To the extent that records contained in the systems of records 
identified in Sec. 16.14(a)(1) are maintained by the Office of 
Investigations of the OIG or by the Office of Criminal Investigations of 
the NEIC, components of EPA which perform as their principal function 
activities pertaining to the enforcement of criminal laws, then an 
exemption under 5 U.S.C. 552a(j)(2) is claimed for these records.
    (4) Reasons for exemption. The systems of records identified in 
Sec. 16.14(a)(1) are exempted from the above provisions of the Privacy 
Act of 1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting for each disclosure would alert the subjects 
of an investigation to the existence of the investigation and the fact 
that they are subjects of the investigation. The release of such 
information to the subjects of an investigation would provide them with 
significant information concerning the nature of the investigation, and 
could seriously impede or compromise the investigation, endanger the 
physical safety of confidential sources, witnesses, law enforcement 
personnel and their families, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting access to records in these systems of records could inform the 
subject of an investigation of an actual or potential criminal violation 
of the existence of that investigation, of the nature and scope of the 
information and evidence obtained as to his activities, of the identity 
of confidential sources, witnesses, and law enforcement personnel, and 
could provide information to enable the subject to avoid detection or 
apprehension. Granting access to such information could seriously impede 
or compromise an investigation, endanger the physical safety of 
confidential sources, witnesses, law enforcement personnel and their 
families, lead to the improper influencing of witnesses, the destruction 
of evidence, or the fabrication of testimony, and disclose investigative 
techniques and procedures. In addition, granting access to such 
information could disclose classified, security-sensitive, or 
confidential business information and could constitute an unwarranted 
invasion of the personal privacy of others.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required

[[Page 211]]

by statute or by executive order of the President. The application of 
this provision could impair investigations and law enforcement, because 
it is not always possible to detect the relevance or necessity of 
specific information in the early stages of an investigation. Relevance 
and necessity are often 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. In addition, during the course of 
the investigation, the investigator may obtain information which is 
incidental to the main purpose of the investigation but which may relate 
to matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated. Furthermore, during the course 
of the investigation, the investigator may obtain information concerning 
the violation of laws other than those which are within the scope of his 
jurisdiction. In the interest of effective law enforcement, EPA 
investigators should retain this information, since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for other law enforcement agencies.
    (iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him, how he can gain access to such a record, and how he 
can contest its content. Since EPA is claiming that these systems of 
records are exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempted to the extent that 
these systems of records are exempted from subsections (f) and (d) of 
the Act. Although EPA is claiming exemption from these requirements, EPA 
has published such a notice concerning its notification, access, and 
contest procedures because, under certain circumstances, EPA might 
decide it is appropriate for an individual to have access to all or a 
portion of his records in these systems of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources and witnesses, and 
to avoid the disclosure of investigative techniques and procedures. 
Although EPA is claiming exemption from this requirement, EPA has 
published such a notice in broad generic terms in the belief that this 
is all subsection (e)(4)(I) of the Act requires.
    (vi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his request if any system of records named by the 
individual contains a record pertaining to him. The application of this 
provision could impede or compromise an investigation or prosecution if 
the subject of an investigation was able to use such rules to learn of 
the existence of an investigation before it could be completed. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony. Since EPA is claiming that these 
systems of records are exempt from subsection (d) of the Act, concerning 
access to records, the requirements of subsections (f)(2) through (5) of 
the Act, concerning agency rules for obtaining access to such records, 
are inapplicable and are exempted to the extent that these systems of 
records are exempted from subsection (d) of the Act. Although EPA is 
claiming exemption from the requirements of subsection (f), EPA has 
promulgated rules which establish Agency procedures because, under 
certain circumstances, it might be appropriate for an individual to have 
access to all or a portion of his records in these systems of records. 
These procedures are described elsewhere in this part.
    (b) Exemption under 5 U.S.C. 552a(k)(5)--(1) Systems of records 
affected.

] EPA-2 General Personnel Records--EPA.

[[Page 212]]

] EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
] EPA-5 OIG Personnel Security Files--EPA/OIG.

    (2) Authority. Under 5 U.S.C. 552a(k)(5), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, Federal contracts, or access to classified information, but 
only to the extent that the disclosure of such material would reveal the 
identity of a source who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence, or, prior to September 27, 1975, under an implied promise 
that the identity would be held in confidence.
    (3) Scope of exemption. (i) The systems of records identified in 
Sec. 16.14(b)(1) are exempted from the following provisions of the 
Privacy Act of 1974, subject to the limitations of 5 U.S.C. 552a(k)(5): 
5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(H) and (I); and (f)(2) through 
(5).
    (ii) To the extent that records contained in the systems of records 
identified in Sec. 16.14(b)(1) reveal a violation or potential 
violation of law, then an exemption under 5 U.S.C. 552a(k)(2) is also 
claimed for these records.
    (4) Reasons for exemption. The systems of records identified in 
Sec. 16.14(b)(1) are exempted from the above provisions of the Privacy 
Act of 1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Making such an accounting could cause the identity of a 
confidential source to be revealed, endangering the physical safety of 
the confidential source, and could impair the future ability of the EPA 
to compile investigatory material for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, Federal contracts, or access to classified information.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting such access could cause the identity of a confidential source 
to be revealed, endangering the physical safety of the confidential 
source, and could impair the future ability of the EPA to compile 
investigatory material for the purpose of determining suitability, 
eligibility, or qualifications for Federal civilian employment, Federal 
contracts, or access to classified information.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations, because it is not always possible to detect 
the relevance or necessity of specific information in the early stages 
of an investigation. Relevance and necessity are often 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.
    (iv) 5 U.S.C. 552a(e)(4)(H) requires an agency to publish a Federal 
Register notice concerning its procedures for notifying an individual at 
his request how he can gain access to any record pertaining to him and 
how he can contest its content. Since EPA is claiming that these systems 
of records are exempt from subsections (f)(2) through (5) of the Act, 
concerning agency rules, and subsection (b) of the Act, concerning 
access to records, these requirements are inapplicable and are exempted 
to the extent that these systems of records are exempted from 
subsections (f)(2) through (5) and (d) of the Act. Although EPA is 
claiming exemption from these requirements, EPA has published such a 
notice concerning its access and contest procedures because, under 
certain circumstances, EPA

[[Page 213]]

might decide it is appropriate for an individual to have access to all 
or a portion of his records in these systems of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources, and to avoid the 
disclosure of investigative techniques and procedures. Although EPA is 
claiming exemption from this requirement, EPA has published such a 
notice in broad generic terms in the belief that this is all subsection 
(e)(4)(I) of the Act requires.
    (vi) 5 U.S.C. 552a(f)(2) through (5) require an agency to promulgate 
rules for obtaining access to records. Since EPA is claiming that these 
systems of records are exempt from subsection (d) of the Act, concerning 
access to records, the requirements of subsections (f)(2) through (5) of 
the Act, concerning agency rules for obtaining access to such records, 
are inapplicable and are exempted to the extent that this system of 
records is exempted from subsection (d) of the Act. Although EPA is 
claiming exemption from the requirements of subsections (f)(2) through 
(5) of the Act, EPA has promulgated rules which establish Agency 
procedures because, under certain circumstances, it might be appropriate 
for an individual to have access to all or a portion of his records in 
this system of records. These procedures are described elsewhere in this 
part.
    (c) Exemption under 5 U.S.C. 552a(k)(1)--(1) System of records 
affected.

] EPA-5 OIG Personnel Security Files--EPA/OIG.

    (2) Authority. Under 5 U.S.C. 552a(k)(1), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
subject to the provisions of 5 U.S.C. 552(b)(1). A system of records is 
subject to the provisions of 5 U.S.C. 552(b)(1) if it contains records 
that are specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and are in fact properly classified pursuant to such 
Executive order. Executive Order 12356 establishes criteria for 
classifying records which are to be kept secret in the interest of 
national defense or foreign policy.
    (3) Scope of exemption. To the extent that the system of records 
identified in Sec. 16.14(c)(1) contains records provided by other 
Federal agencies that are specifically authorized under criteria 
established by Executive Order 12356 to be kept secret in the interest 
of national defense or foreign policy and are in fact properly 
classified by other Federal agencies pursuant to that Executive order, 
the system of records is exempted from the following provisions of the 
Privacy Act of 1974: 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and 
(I); and (f).
    (4) Reasons for exemption. The system of records identified in Sec. 
16.14(c)(1) is exempted from the above provisions of the Privacy Act of 
1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Making such an accounting could result in the release of 
properly classified information, which would compromise the national 
defense or disrupt foreign policy.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting such access could cause the release of properly classified 
information, which would compromise the national defense or disrupt 
foreign policy.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the

[[Page 214]]

President. The application of this provision could impair personnel 
security investigations which use properly classified information, 
because it is not always possible to know the relevance or necessity of 
specific information in the early stages of an investigation. Relevance 
and necessity are often 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.
    (iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him, how he can gain access to such a record, and how he 
can contest its content. Since EPA is claiming that this system of 
records is exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempted to the extent that 
this system of records is exempted from subsections (f) and (d) of the 
Act. Although EPA is claiming exemption from these requirements, EPA has 
published such a notice concerning its notification, access, and contest 
procedures because, under certain circumstances, EPA might decide it is 
appropriate for an individual to have access to all or a portion of his 
records in this system of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to prevent 
the release of properly classified information, which would compromise 
the national defense or disrupt foreign policy. Although EPA is claiming 
exemption from this requirement, EPA has published such a notice in 
broad generic terms in the belief that this is all subsection (e)(4)(I) 
of the Act requires.
    (vi) 5 U.S.C. 552(a)(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his request if any system of records named by the 
individual contains a record pertaining to him. The application of this 
provision could result in the release of properly classified 
information, which would compromise the national defense or disrupt 
foreign policy. Since EPA is claiming that this system of records is 
exempt from subsection (d) of the Act, concerning access to records, the 
requirements of subsections (f)(2) through (5) of the Act, concerning 
agency rules for obtaining access to such records, are inapplicable and 
are exempted to the extent that this system of records is exempted from 
subsection (d) of the Act. Although EPA is claiming exemption from the 
requirements of subsection (f) of the Act, EPA has promulgated rules 
which establish Agency procedures because, under certain circumstances, 
it might be appropriate for an individual to have access to all or a 
portion of his records in this system of records. These procedures are 
described elsewhere in this part.
    (d) Exempt records provided by another agency. Individuals may not 
have access to records maintained by the EPA if such records were 
provided by another agency which has determined by regulation that such 
records are subject to general exemption under 5 U.S.C. 552a(j) or 
specific exemption under 5 U.S.C. 552a(k). If an individual requests 
access to such exempt records, EPA will consult with the source agency.
    (e) Exempt records included in a nonexempt system of records. All 
records obtained from a system of records which has been determined by 
regulation to be subject to specific exemption under 5 U.S.C. 552a(k) 
retain their exempt status even if such records are also included in a 
system of records for which a specific exemption has not been claimed.

[51 FR 24147, July 2, 1986, as amended at 59 FR 17485, Apr. 13, 1994]