[Code of Federal Regulations]

[Title 44, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 44CFR6.86]



[Page 56-61]

 

              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE

 

 CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND 

                                SECURITY

 

PART 6_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents

 

                   Subpart G_Exempt Systems of Records

 

Sec. 6.86  General exemptions.





    (a) Whenever the Director, Federal Emergency Management Agency, 

determines it to be necessary and proper, with respect to any system of 

records maintained by the Federal Emergency Management Agency, to 

exercise the right to promulgate rules to exempt such systems in 

accordance with the provisions of 5 U.S.C. 552a (j) and (k), each 

specific exemption, including the parts of each system to be exempted, 

the provisions of the Act from which they are exempted, and the 

justification for each exemption shall be published in the Federal 

Register as part of FEMA's Notice of Systems of Rec ords.

    (b) Exempt under 5 U.S.C. 552a(j)(2) from the requirements of 5 

U.S.C. 552a(c) (3) and (4), (d), (e) (1), (2), (3),



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(e)(4) (G), (H), and (I), (e) (5) and (8) (f) and (g) of the Privacy 

Act.

    (1) Exempt systems. The following systems of records, which contain 

information of the type described in 5 U.S.C. 552(j)(2), shall be exempt 

from the provisions of 5 U.S.C. 552a listed in paragraph (b) of this 

section.



General Investigative Files (FEMA/IG-2)--Limited Access



    (2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) 

enable individuals to be notified whether a system of records contains 

records pertaining to them. The Federal Emergency Management Agency 

believes that application of these provisions to the above-listed system 

of records would give individuals an opportunity to learn whether they 

are of record either as suspects or as subjects of a criminal 

investigation; this would compromise the ability of the Federal 

Emergency Management Agency to complete investigations and identify or 

detect violators of laws administered by the Federal Emergency 

Management Agency or other Federal agencies. Individuals would be able 

(A) to take steps to avoid detection, (B) to inform co-conspirators of 

the fact that an investigation is being conducted, (C) to learn the 

nature of the investigation to which they are being subjected, (D) to 

learn the type of surveillance being utilized, (E) to learn whether they 

are only suspects or identified law violators, (F) to continue to resume 

their illegal conduct without fear of detection upon learning that they 

are not in a particular system of records, and (G) to destroy evidence 

needed to prove the violation.

    (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable 

individuals to gain access to records pertaining to them. The Federal 

Emergency Management Agency believes that application of these 

provisions to the above-listed system of records would compromise its 

ability to complete or continue criminal investigations and to detect or 

identify violators of laws administered by the Federal Emergency 

Management Agency or other Federal agencies. Permitting access to 

records contained in the above-listed system of records would provide 

individuals with significant information concerning the nature of the 

investigation, and this could enable them to avoid detection or 

apprehension in the following ways:

    (A) By discovering the collection of facts which would form the 

basis for their arrest, (B) by enabling them to destroy evidence of 

criminal conduct which would form the basis for their arrest, and (C) by 

learning that the criminal investigators had reason to believe that a 

crime was about to be committed, they could delay the commission of the 

crime or change the scene of the crime to a location which might not be 

under surveillance. Granting access to ongoing or closed investigative 

files would also reveal investigative techniques and procedures, the 

knowledge of which could enable individuals planning criminal activity 

to structure their future operations in such a way as to avoid detection 

or apprehension, thereby neutralizing law enforcement officers' 

established investigative tools and procedures. Further, granting access 

to investigative files and records could disclose the identity of 

confidential sources and other informers and the nature of the 

information which they supplied, thereby endangering the life or 

physical safety of those sources of information by exposing them to 

possible reprisals for having provided information relating to the 

criminal activities of those individuals who are the subjects of the 

investigative files and records; confidential sources and other 

informers might refuse to provide criminal investigators with valuable 

information if they could not be secure in the knowledge that their 

identities would not be revealed through disclosure of either their 

names or the nature of the information they supplied, and this would 

seriously impair the ability of the Federal Emergency Management Agency 

to carry out its mandate to enforce criminal and related laws. 

Additionally, providing access to records contained in the above-listed 

system of records could reveal the identities of undercover law 

enforcement personnel who compiled information regarding individual's 

criminal activities, thereby endangering the life or physical safety of 

those undercover personnel or their families by exposing them to 

possible reprisals.



[[Page 58]]



    (iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which 

are dependent upon access having been granted to records pursuant to the 

provisions cited in paragraph (b)(2)(ii) of this section, enable 

individuals to contest (seek amendment to) the content of records 

contained in a system of rec ords and require an agency to note an 

amended record and to provide a copy of an individual's statement (of 

disagreement with the agency's refusal to amend a record) to persons or 

other agencies to whom the record has been disclosed. The Federal 

Emergency Management Agency believes that the reasons set forth in 

paragraph (b)(2)(ii) of this section are equally applicable to this 

paragraph and, accordingly, those reasons are hereby incorporated herein 

by reference.

    (iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 

disclosures of records available to individuals named in the records at 

their request; such accountings must state the date, nature and purpose 

of each disclosure of a record and the name and address of the 

recipient. The Federal Emergency Management Agency believes that 

application of this provision to the above-listed system of rec ords 

would impair the ability of other law enforcement agencies to make 

effective use of information provided by the Federal Emergency 

Management Agency in connection with the investigation, detection and 

apprehension of violators of the criminal laws enforced by those other 

law enforcement agencies. Making accountings of disclosure available to 

violators or possible violators would alert those individuals to the 

fact that another agency is conducting an investigation into their 

criminal activities, and this could reveal the geographic location of 

the other agency's investigation, the nature and purpose of that 

investigation, and the dates on which that investigation was active. 

Violators possessing such knowledge would thereby be able to take 

appropriate measures to avoid detection or apprehension by altering 

their operations, by transferring their criminal activities to other 

geographic areas or by destroying or concealing evidence which would 

form the basis for their arrest. In addition, providing violators with 

accountings of disclosure would alert those individuals to the fact that 

the Federal Emergency Management Agency has information regarding their 

criminal activities and could inform those individuals of the general 

nature of that information; this, in turn, would afford those 

individuals a better opportunity to take appropriate steps to avoid 

detection or apprehension for violations of criminal and related laws.

    (v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or 

other agency about any correction or notation of dispute made by the 

agency in accordance with 5 U.S.C. 552a(d) of any record that has been 

disclosed to the person or agency if an accounting of the disclosure was 

made. Since this provision is dependent on an individual's having been 

provided an opportunity to contest (seek amendment to) records 

pertaining to him/her, and since the above-listed system of records is 

proposed to be exempt from those provisions of 5 U.S.C. 552a relating to 

amendments of records as indicated in paragraph (b)(2)(iii) of this 

section, the Federal Emergency Management Agency believes that this 

provision should not be applicable to the above system of records.

    (vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public 

notice listing the categories of sources for information contained in a 

system of rec ords. The categories of sources of this system of records 

have been published in the Federal Register in broad generic terms in 

the belief that this is all that subsection (e)(4)(I) of the Act 

requires. In the event, however, that this subsection should be 

interpreted to require more detail as to the identity of sources of the 

records in this system, exemption from this provision is necessary in 

order to protect the confidentiality of the sources of criminal and 

other law enforcement information. Such exemption is further necessary 

to protect the privacy and physical safety of witnesses and informants.

    (vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its 

records only such information about an individual as is relevant and 

necessary to accomplish a purpose of the agency required



[[Page 59]]



to be accomplished by statute or executive order. The term maintain as 

defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' 

At the time that information is collected by the Federal Emergency 

Management Agency, there is often insufficient time to determine whether 

the information is relevant and necessary to accomplish a purpose of the 

Federal Emergency Management Agency; in many cases information collected 

may not be immediately susceptible to a determination of whether the 

information is relevant and necessary, particularly in the early stages 

of an investigation, and in many cases, information which initially 

appears to be irrelevant or unnecessary may, upon further evaluation or 

upon continuation of the investigation, prove to have particular 

relevance to an enforcement program of the Federal Emergency Management 

Agency. Further, not all violations of law discovered during a criminal 

investigation fall within the investigative jurisdiction of the Federal 

Emergency Management Agency; in order to promote effective law 

enforcement, it often becomes necessary and desirable to disseminate 

information pertaining to such violations to other law enforcement 

agencies which have jurisdiction over the offense to which the 

information relates. The Federal Emergency Management Agency should not 

be placed in a position of having to ignore information relating to 

violations of law not within its jurisdiction when that information 

comes to the attention of the Federal Emergency Management Agency 

through the conduct of a lawful FEMA investigation. The Federal 

Emergency Management Agency, therefore, believes that it is appropriate 

to exempt the above-listed system of records from the provisions of 5 

U.S.C. 552a(e)(1).

    (viii) 5 U.S.C. 552a(e)(2) requires that an agency collect 

information to the greatest extent practicable directly from the subject 

individual when the information may result in adverse determinations 

about an individual's rights, benefits, and privileges under Federal 

programs. The Federal Emergency Management Agency believes that 

application of this provision to the above-listed system of records 

would impair the ability of the Federal Emergency Management Agency to 

conduct investigations and to identify or detect violators of criminal 

or related laws for the following reasons:

    (A) Most information collected about an individual under criminal 

investigations is obtained from third parties such as witnesses and 

informers, and it is usually not feasible to rely upon the subject of 

the investigation as a source for information regarding his/her criminal 

activities, (B) an attempt to obtain information from the subject of a 

criminal investigation will often alert that individual to the existence 

of an investigation, thereby affording the individual an opportunity to 

attempt to conceal his/her criminal activities so as to avoid 

apprehension, (C) in certain instances, the subject of a criminal 

investigation is not required to supply information to criminal 

investigators as a matter of legal duty, and (D) during criminal 

investigations it is often a matter of sound investigative procedures to 

obtain information from a variety of sources in order to verify 

information already obtained.

    (ix) 5 U.S.C. 552a(e)(3) requires that an agency inform each 

individual whom it asks to supply information, either on the form which 

the agency uses to collect the information or on a separate form which 

can be retained by the individual, with the following information: The 

authority which authorizes the solicitation of the information and 

whether disclosure of such information is mandatory or voluntary; the 

principal purposes for which the information is intended to be used; the 

routine uses which may be made of the information; and the effects on 

the individual of not providing all or part of the requested 

information. The Federal Emergency Management Agency believes that the 

above-listed system of records should be exempted from this provision in 

order to avoid adverse effects on its ability to identify or detect 

violators of criminal or related laws. In many cases, information is 

obtained by confidential sources, other informers or undercover law 

enforcement officers under circumstances where it is necessary that the 

true purpose of their actions be kept secret so as to avoid



[[Page 60]]



alerting the subject of the investigation or his/her associates that a 

criminal investigation is in process. Further, if it became known that 

the undercover officer was assisting in a criminal investigation, that 

officer's life or physical safety could be endangered through reprisal, 

and, under such circumstances it may not be possible to continue to 

utilize that officer in the investigation. In many cases, individuals, 

for personal reasons, would feel inhibited in talking to a person 

representing a criminal law enforcement agency but would be willing to 

talk to a confidential source or undercover officer who they believe is 

not involved in law enforcement activities. In addition, providing a 

source of information with written evidence that he was a source, as 

required by this provision, could increase the likelihood that the 

source of information would be the subject of retaliatory action by the 

subject of the investigation. Further, application of this provision 

could result in an unwarranted invasion of the personal privacy of the 

subject of the criminal investigation, particularly where further 

investigation would result in a finding that the subject was not 

involved in any criminal activity.

    (x) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records 

used by the agency in making any determination about any individual with 

such accuracy, relevance, timeliness and completeness as is reasonably 

necessary to assure fairness to the individual in the determination. 

Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect'' 

and ``disseminate,'' application of this provision to the above-listed 

system of records would hinder the initial collection of any information 

which could not, at the moment of collection, be determined to be 

accurate, relevant, timely and complete. Similarly, application of this 

provision would seriously restrict the necessary flow of information 

from the Federal Emergency Management Agency to other law enforcement 

agencies when a FEMA investigation revealed information pertaining to a 

violation of law which was under investigative jurisdiction of another 

agency. In collecting information during the course of a criminal 

investigation, it is not possible or feasible to determine accuracy, 

relevance, timeliness or completeness prior to collection of the 

information; in disseminating information to other law enforcement 

agencies it is often not possible to determine accuracy, relevance, 

timeliness or completeness prior to dissemination because the 

disseminating agency may not have the expertise with which to make such 

determinations. Further, information which may initially appear to be 

inaccurate, irrelevant, untimely or incomplete may, when gathered, 

grouped, and evaluated with other available information, become more 

pertinent as an investigation progresses. In addition, application of 

this provision could seriously impede criminal investigators and 

intelligence analysts in the exercise of their judgment in reporting on 

results obtained during criminal investigations. The Federal Emergency 

Management Agency believes that it is appropriate to exempt the above-

listed system of records from the provisions of 5 U.S.C. 552a(e)(5).

    (xi) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable 

effort to serve notice on an individual when any record on the 

individual is made available to any person under compulsory legal 

process when such process becomes a matter of public record. The Federal 

Emergency Management Agency believes that the above-listed system of 

records should be exempt from this provision in order to avoid revealing 

investigative techniques and procedures outlined in those records and in 

order to prevent revelation of the existence on an on-going 

investigation where there is a need to keep the existence of the 

investigation secret.

    (xii) 5 U.S.C. 552a(g) provides civil remedies to an individual for 

an agency's refusal to amend a record or to make a review of a request 

for amendment; for an agency's refusal to grant access to a record; for 

an agency's failure to maintain accurate, relevant, timely and complete 

records which are used to make a determination which is adverse to the 

individual; and for an agency's failure to comply with any other 

provision of 5 U.S.C. 552a in such a way as to have an adverse effect on 

an individual. The Federal Emergency Management Agency believes that the



[[Page 61]]



above-listed system of records should be exempted from this provision to 

the extent that the civil remedies provided therein may relate to 

provisions of 5 U.S.C. 552a from which the above-listed system of 

records is proposed to be exempt. Since the provisions of 5 U.S.C. 552a 

enumerated in paragraphs (b)(2)(i) through (xi) of this section are 

proposed to be inapplicable to the above-listed systems of records for 

the reasons stated therein, there should be no corresponding civil 

remedies for failure to comply with the requirements of those provisions 

to which the exemption is proposed to apply. Further, the Federal 

Emergency Management Agency believes that application of this provision 

to the above-listed system of records would adversely affect its ability 

to conduct criminal investigations by exposing to civil court action 

every stage of the criminal investigative process in which information 

is compiled or used in order to identify, detect, or otherwise 

investigate persons suspected or known to be engaged in criminal 

conduct.

    (xiii) Individuals may not have access to another agency's records, 

which are contained in files maintained by the Federal Emergency 

Management Agency, when that other agency's regulations provide that 

such records are subject to general exemption under 5 U.S.C. 552a(j). If 

such exempt records are within a request for access, FEMA will advise 

the individual of their existence and of the name and address of the 

source agency. For any further information concerning the record and the 

exemption, the individual must contact that source agency.



[45 FR 64580, Sept. 30, 1980]