[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

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

[CITE: 8CFR103.22]



[Page 64-65]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 103_POWERS AND DUTIES; AVAILABILITY OF RECORDS--Table of Contents

 

Sec. 103.22  Records exempt in whole or in part.



    (a) When individuals request records about themselves which are 

exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C. 

552a(d)(5), (j) or (k), their requests shall also be considered under 

the Freedom of Information Act, 5 U.S.C. 552, and, unless the records 

are exempt under both Acts, the request shall be granted. If exemptions 

under both Acts permit the denial of the records sought and there is 

good reason to invoke the exemptions, the individual shall be provided a 

denial of his/her request in writing with the governing exemptions 

cited. If the disclosure of the existence of a criminal law enforcement 

proceeding record could itself interfere with a pending law enforcement 

proceeding of which there is reason to believe the subject is unaware, 

the Service may, during only such time as the circumstance continues, 

treat the records as not subject to the requirements of 5 U.S.C. 552.

    (b) Individual requests for access to records which have been 

exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as 

follows:

    (1) A request for information classified by the Service under 

Executive Order 12356 on National Security Information requires the 

Service to review the information to determine whether it continues to 

warrant classification under the criteria of the Executive Order. 

Information which no longer warrants classification shall be 

declassified and made available to the individual, if not otherwise 

exempt. If the information continues to warrant classification, the 

individual shall be advised that the information sought is classified; 

that it has been reviewed and continues to warrant classification; and 

that it has been exempted from access under 5 U.S.C. 552a(k)(1). 

Information which has been exempted under 5 U.S.C. 552a(j) and which is 

also classified, shall be reviewed as required by this paragraph but the 

response to the individual shall be in the form prescribed by paragraph 

(a) of this section.

    (2) Requests for information which has been exempted from disclosure 

pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner 

provided in paragraph (a) of this section unless a review of the 

information indicates that the information has been used or is being 

used to deny the individual any right, privilege or benefit for which he 

is eligible or to which he would otherwise be entitled under Federal 

law. In that event, the individual shall be advised of the existence of 

the record and shall be provided the information except to the extent it 

would identify a confidential source. If and only if information 

identifying a confidential source can be deleted or the pertinent parts 

of the record summarized in a manner which protects the identity of the 

confidential source, the document with deletions made or the summary 

shall be furnished to the requester.

    (3) Information compiled as part of an employee background 

investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5) 

shall be made available to an individual upon request except to the 

extent that it identifies a confidential source. If and only if 

information identifying a confidential source can be deleted or the 

pertinent parts of the record summarized in a manner which protects the 

identity of the confidential source, the document with deletions made or 

the summary shall be furnished to the requester.

    (4) Testing or examination material which has been exempted pursuant 

to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if 

disclosure



[[Page 65]]



would compromise the objectivity or fairness of the testing or 

examination process but shall be made available if no such compromise 

possibility exists.

    (5) The Service records which are exempted and the reasons for the 

exemptions are enumerated in 28 CFR 16.99.



[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 

58 FR 31149, June, 1, 1993]