Proposed Rule2021-16435
Privacy Act: Proposed Exemptions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 13, 2021
Issuing agencies
Federal Retirement Thrift Investment Board
Abstract
In accordance with the Privacy Act of 1974, the Federal Retirement Thrift Investment Board (FRTIB) proposes to exempt five systems of records from certain requirements of the Act. FRTIB has previously published System of Records Notices (SORNs) for these systems.
Full Text
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<title>Federal Register, Volume 86 Issue 154 (Friday, August 13, 2021)</title>
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[Federal Register Volume 86, Number 154 (Friday, August 13, 2021)]
[Proposed Rules]
[Pages 44642-44644]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16435]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 /
Proposed Rules
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FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
5 CFR Part 1630
Privacy Act: Proposed Exemptions
AGENCY: Federal Retirement Thrift Investment Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In accordance with the Privacy Act of 1974, the Federal
Retirement Thrift Investment Board (FRTIB) proposes to exempt five
systems of records from certain requirements of the Act. FRTIB has
previously published System of Records Notices (SORNs) for these
systems.
DATES: Comments on this notice of proposed rulemaking must be received
by September 13, 2021.
ADDRESSES: You may submit written comments to FRTIB through the
following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions for submitting comments.
<bullet> Fax: 202-942-1676.
<bullet> Mail or Hand Delivery: Office of General Counsel, Federal
Retirement Thrift Investment Board, 77 K Street NE, Suite 1000,
Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Dharmesh Vashee, General Counsel and
Senior Agency Official for Privacy, Federal Retirement Thrift
Investment Board, Office of General Counsel, 77 K Street NE, Suite
1000, Washington, DC 20002, (202) 942-1600.
SUPPLEMENTARY INFORMATION: FRTIB proposes to revise its Privacy Act
regulations at 5 CFR part 1630 to exempt five of its systems of
records, FRTIB-2, FRTIB-13, FRTIB-14, FRTIB-15, and FRTIB-23, from
certain requirements of the Privacy Act, 5 U.S.C. 552a. The FRTIB is
promulgating exemptions to the Privacy Act for these five systems of
records in accordance with subsection (k)(2) and subsection (k)(5).
Subsection (k)(2) of the Privacy Act authorizes the head of an
agency to exempt a system of records from the applicable subsections if
investigatory records are compiled for law enforcement purposes;
provided, however if an individual is denied any right, privilege, or
benefit that he or she would otherwise be entitled by Federal law, or
for which he or she would otherwise be eligible, as a result of the
maintenance of such material, such material shall be provided to such
individual, except 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. Subsection (k)(5) of the Privacy Act
authorizes the head of an agency to exempt a system of records from the
applicable subsections if investigatory records are compiled solely for
the purpose of determining suitability, eligibility, or qualifications
for Federal civilian employment, military service, 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.
Under the Privacy Act, individuals have a right of access to
information pertaining to them which is contained in a system of
records. At the same time, the Privacy Act permits certain types of
systems to be exempt from some Privacy Act requirements. If an agency
claims an exemption, however, it must issue a Notice of Proposed
Rulemaking to make clear to the public the reasons why a particular
exemption is being claimed.
As indicated in the Agency's accompanying Privacy Act system of
records notices proposing and modifying these systems of records, these
five systems of records contain information collected by the Agency in
the course of carrying out its duties under 5 U.S.C. 8401.
The FRTIB is promulgating exemptions under subsections (k)(2) and
(k)(5) for FRTIB-2, Personnel Security Investigation Files. FRTIB-2
contains information compiled by the Agency in order to document and
support decisions regarding clearance for access to sensitive FRTIB
information and the suitability, eligibility, and fitness for service
of applicants for federal employment and contract positions. FRTIB has
previously published a SORN for this system in the Federal Register, 85
FR 43654, 43655 (July 21, 2020). FRTIB's personnel investigations
records fall under the exemption stated within subsection (k)(2) of the
Privacy Act because these records may be used to help streamline and
make more efficient the investigations and adjudications process, and
may be used to document security violations and actions taken in
response to such violations. FRTIB's personnel investigations records
also fall under the exemption stated within subsection (k)(5) of the
Privacy Act because these records are compiled for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information. FRTIB proposes to exempt eligible records
contained within FRTIB-2 from the requirements of subsections (c)(3);
(d); (e)(1); (e)(4)(G), (H), (I); and (f), which require agencies to
provide an accounting of disclosures; provide notification, access, and
amendment rights, rules, and procedures; maintain only relevant and
necessary information; and identify categories of record sources.
Exempting records from this system is necessary and appropriate to
maintain the integrity of personnel investigations and to ensure that
FRTIB's efforts to obtain accurate and objective information will be
successful. To the extent that FRTIB uses investigatory material within
this system of records as a basis for denying an individual any right,
privilege, or benefit to which an individual would be entitled in the
absence of that record, FRTIB will grant that individual access to the
material except to the extent that access would reveal the identity of
a source promised confidentiality.
The FRTIB is promulgating exemptions under subsection (k)(2) for
FRTIB-13, Fraud and Forgery Records. FRTIB-13 contains information
compiled by the Agency in the course of carrying out its fiduciary
duties to detect and prevent fraudulent activity against participant
accounts. FRTIB has previously published a SORN for this system in the
Federal Register, 84 FR 12249 (April 1, 2019), and a notice of proposed
rulemaking for the exemptions, 84 FR 12954 (April 3, 2019). This notice
of proposed
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rulemaking supersedes the previous notice. FRTIB's fraud and forgery
records fall under the exemption stated within subsection (k)(2) of the
Privacy Act because these records are compiled for law enforcement
purposes. FRTIB proposes to exempt eligible records contained within
FRTIB-13 from the requirements of subsections (c)(3); (d); (e)(1);
(e)(4)(G), (H), (I); and (f), which require agencies to provide an
accounting of disclosures; provide notification, access, and amendment
rights, rules, and procedures; maintain only relevant and necessary
information; and identify categories of record sources. Exempting
records from this system is necessary and appropriate to maintain the
integrity of FRTIB's investigations into allegations of fraud or
forgery and to ensure that FRTIB's efforts to obtain accurate and
objective information will be successful. To the extent that FRTIB uses
investigatory material within this system of records as a basis for
denying an individual any right, privilege, or benefit to which an
individual would be entitled in the absence of that record, FRTIB will
grant that individual access to the material except to the extent that
access would reveal the identity of a source promised confidentiality.
The FRTIB is promulgating exemptions under subsection (k)(2) for
FRTIB-14, Legal Case Files. FRTIB-14 contains information compiled by
the Agency in the course of its duties to provide legal advice to FRTIB
personnel and respond appropriately to claims and litigation. FRTIB has
previously published a SORN for this system in the Federal Register, 85
FR 43654, 43666 (July 21, 2020). FRTIB's legal case files fall under
the exemption stated within subsection (k)(2) of the Privacy Act
because these records may be compiled for law enforcement purposes.
FRTIB proposes to exempt eligible records contained within FRTIB-14
from the requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G),
(H), (I); and (f), which require agencies to provide an accounting of
disclosures; provide notification, access, and amendment rights, rules,
and procedures; maintain only relevant and necessary information; and
identify categories of record sources. Exempting records from this
system is necessary and appropriate to maintain the integrity of
FRTIB's legal case files and to ensure that FRTIB's efforts to obtain
accurate and objective information will be successful. To the extent
that FRTIB uses investigatory material within this system of records as
a basis for denying an individual any right, privilege, or benefit to
which an individual would be entitled in the absence of that record,
FRTIB will grant that individual access to the material except to the
extent that access would reveal the identity of a source promised
confidentiality.
The FRTIB is promulgating exemptions under subsection (k)(2) for
FRTIB-15, Internal Investigations of Harassment and Hostile Work
Environment Allegations. FRTIB-15 contains information compiled by the
Agency in the course of upholding FRTIB's policy to provide for a work
environment free from all forms of harassment. FRTIB has previously
published a SORN for this system in the Federal Register, 85 FR 43654,
43669 (July 21, 2020). FRTIB's internal investigations and hostile work
environment allegations files fall under the exemption stated within
subsection (k)(2) of the Privacy Act because these records may be
compiled for law enforcement purposes. FRTIB proposes to exempt
eligible records contained within FRTIB-15 from the requirements of
subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f), which
require agencies to provide an accounting of disclosures; provide
notification, access, and amendment rights, rules, and procedures;
maintain only relevant and necessary information; and identify
categories of record sources. Exempting records from this system is
necessary and appropriate to maintain the integrity of FRTIB's legal
case files and to ensure that FRTIB's efforts to obtain accurate and
objective information will be successful. To the extent that FRTIB uses
investigatory material within this system of records as a basis for
denying an individual any right, privilege, or benefit to which an
individual would be entitled in the absence of that record, FRTIB will
grant that individual access to the material except to the extent that
access would reveal the identity of a source promised confidentiality.
The FRTIB is promulgating exemptions under subsection (k)(2) for
FRTIB-23, Insider Threat Program Records. FRTIB-23 contains information
compiled by the Agency in the course of performing insider threat
program functions. The FRTIB has published a SORN for this system in
the Federal Register, 86 FR 40564 (July 28, 2021). Insider threat
program records fall under the exemption stated within subsection
(k)(2) of the Privacy Act because these records are compiled for law
enforcement purposes. FRTIB proposes to exempt eligible records
contained within FRTIB-23 from the requirements of subsections (c)(3);
(d); (e)(1); (e)(4)(G), (H), (I); and (f), which require agencies to
provide an accounting of disclosures; provide notification, access, and
amendment rights, rules, and procedures; maintain only relevant and
necessary information; and identify categories of record sources.
Exempting records from this system is necessary and appropriate to
maintain the integrity of FRTIB's investigations into allegations of
insider threats and to ensure that FRTIB's efforts to obtain accurate
and objective information will be successful. To the extent that FRTIB
uses investigatory material within this system of records as a basis
for denying an individual any right, privilege, or benefit to which an
individual would be entitled in the absence of that record, FRTIB will
grant that individual access to the material except to the extent that
access would reveal the identity of a source promised confidentiality.
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k). Where
FRTIB determines compliance would not appear to interfere with or
adversely affect the purpose of this system to investigate and prevent
insider threats, the applicable exemption may be waived by FRTIB in its
sole discretion.
Exemptions from the particular subsections are necessary and
appropriate, and justified for the following reasons:
<bullet> 5 U.S.C. 552a(c)(3) (the requirement to provide
accountings of disclosures) and 5 U.S.C. 552a(d)(1)-(4) (requirements
addressing notification, access, and amendment rights, collectively
referred to herein as access requirements). Providing individuals with
notification, access, and amendment rights with respect to allegations
and investigations into personnel investigations, fraud against
participant accounts, legal case files, internal investigations of
harassment and hostile work environment allegations, or investigations
of potential insider threats could reveal the existence of an
investigation; investigative interest; investigative techniques;
details about an investigation; security-sensitive information, such as
information about security measures and security vulnerabilities;
information that must remain non-public to protect personal privacy;
identities of law enforcement personnel; or other sensitive or Privacy
Act-protected information. Revealing such information to individuals
could compromise or otherwise impede pending and future law enforcement
investigations and efforts to protect sensitive information. Revealing
such information could also violate personal
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privacy. Additionally, revealing this information could enable
individuals to evade detection and apprehension by security and law
enforcement personnel; destroy, conceal, or tamper with evidence or
fabricate testimony; or harass, intimidate, harm, coerce, or retaliate
against witnesses, complainants, investigators, security personnel, law
enforcement personnel, or their family members, their employees, or
other individuals. With respect to investigatory material compiled for
law enforcement purposes, the exemption pursuant to 5 U.S.C. 552a(k)(2)
from access requirements in subsection (d) of the Act is statutorily
limited. If any individual is denied a right, privilege, or benefit to
which the individual would otherwise be entitled by Federal law or for
which the individual would otherwise be eligible, access will be
granted, except to the extent that the disclosure would reveal the
identity of a source who furnished the information to the Government
under an express promise of confidentiality.
<bullet> 5 U.S.C. 552a(e)(1) (the requirement to maintain only
relevant and necessary information authorized by statute or Executive
Order). It will not always be possible to determine at the time
information is received or compiled in these systems of records whether
the information is or will be relevant and necessary to a law
enforcement investigation. For example, a tip or lead that does not
initially appear relevant or necessary may prove useful when combined
with other information that reveals a pattern or that comes to light
later.
<bullet> 5 U.S.C. 552a(e)(4)(G) and (H) (the requirements to
describe procedures by which subjects may be notified of whether the
system of records contains records about them and seek access or
amendment of a record). These requirements concern individual access to
records, and the records are exempt under subsections (c) and (d) of
the Act, as described above. To the extent that subsection (e)(4)(G)
and (H) are interpreted to require the Agency to promulgate more
detailed procedures regarding record notification, access, or amendment
than have been published in the Federal Register, exemption from those
provisions is necessary for the same rationale as applies to
subsections (c) and (d).
<bullet> 5 U.S.C. 552a(e)(4)(I) (the requirement to describe the
categories of record sources). To the extent that this subsection is
interpreted to require a more detailed description regarding the record
sources in this system than has been published in the Federal Register,
exemption from this provision is necessary to protect the sources of
law enforcement and intelligence information and to protect the privacy
and safety of witnesses and informants and others who provide
information to FRTIB or as part of the Thrift Savings Plan (TSP).
Further, because records used to complete personnel investigations,
investigate and prosecute allegations of fraud and forgery against
participant accounts, pursue legal claims, pursue internal
investigations of harassment or hostile work environment allegations,
or investigate and prosecute allegations of insider threats could come
from any source, it is not possible to know every category in advance
in order to list them all in FRTIB's accompanying SORN. Some record
source categories may not be appropriate to make public in the SORN if,
for example, revealing them could enable individuals to discover
investigative techniques and devise ways to bypass them to evade
detection and apprehension.
<bullet> 5 U.S.C. 552a(f) (the requirement to promulgate rules to
implement provisions of the Privacy Act). To the extent that this
subsection is interpreted to require agency rules addressing the
aforementioned exempted requirements, exemption from this provision is
also necessary to protect the sources of law enforcement and
intelligence information and to protect the privacy and safety of
witnesses and informants and others who provide information to FRTIB or
as part of the TSP.
Regulatory Flexibility Act
FRTIB certifies that this proposed regulation will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). This
rulemaking does not impose a requirement for small businesses to report
or keep records on any of the requirements contained in this proposed
rule. The exemptions to the Privacy Act apply to individuals, and
individuals are not covered entities under the Regulatory Flexibility
Act.
Paperwork Reduction Act
I certify that these proposed regulations do not require additional
reporting under the criteria of the Paperwork Reduction Act.
Unfunded Mandates Reform Act of 1995
Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602,
632, 653, 1501 1571, the effects of this proposed regulation on state,
local, and tribal governments and the private sector have been
assessed. This proposed regulation will not compel the expenditure in
any one year of $100 million or more by state, local, and tribal
governments, in the aggregate, or by the private sector. Therefore, a
statement under Sec. 1532 is not required.
List of Subjects in 5 CFR Part 1630
Privacy.
Ravindra Deo,
Executive Director, Federal Retirement Thrift Investment Board.
Accordingly, FRTIB proposes to amend 5 CFR part 1630 as follows:
PART 1630--PRIVACY ACT REGULATIONS
0
1. The authority citation for part 1630 continues to read as follows:
Authority: 5 U.S.C. 552a.
0
2. Amend Sec. 1630.15 by revising paragraph (b) to read as follows:
Sec. 1630.15 Exemptions.
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(b) Those designated systems of records which are exempt from the
requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I);
and (f) of the Privacy Act, 5 U.S.C. 552a, include FRTIB-2, Personnel
Security Investigation Files; FRTIB-13, Fraud and Forgery Records;
FRTIB-14, FRTIB Legal Case Files; FRTIB-15, Internal Investigations of
Harassment and Hostile Work Environment Allegations; and FRTIB-23,
Insider Threat Program Records.
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[FR Doc. 2021-16435 Filed 8-12-21; 8:45 am]
BILLING CODE 6760-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.