[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2007]
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]