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compliance with the provisions of the Privacy Act.
$ 700.27 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under 5 U.S.C. 552a.
Subpart B-Exemption of the Of
fice of Independent Counsel's Systems of Records Under the Privacy Act
closure of the accounting would, therefore, present a serious impediment to law enforcement. In addition, disclosure of the accounting would amount to notice to the individual of the existence of a record; such notice requirement under subsection (f)(1) of the Act is specifically exempted for this system of records.
(2) From subsection (c)(4) because an exemption is being claimed under subsection (d) of the Act. This system is exempt from the access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act. Subsection (c)(4), therefore, is inapplicable to this system of records.
(3) From subsection (d) because the records contained in this system relate to official federal investigations. Individual access to these records contained in this system would inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, of the existence of that investigation, of the nature and scope of the information and evidence obtained as to his activities, of the identities of witnesses and informants,
would provide information that could enable the subject to avoid detection or apprehension. These factors would present a serious impediment to effective law enforcement because they could prevent the successful completion of the investigation, reveal confidential informants, endanger the physical safety of witnesses or informants, and lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony. Individual access also could constitute an unwarranted invasion of the personal privacy of third parties who are involved in an investigation. Amendment of the records would interfere with ongoing criminal-law enforcement proceedings and impose an impossible administrative burden.
(4) From subsections (e) (1) and (5) because, in the course of criminal or other law-enforcement investigation, cases and matters, the Office of Independent Counsel may occasionally obtain information concerning actual or potential violations of law that are not strictly within its authority or jurisdiction, or may compile information, the accuracy of which is unclear or
$ 700.31 Exemption of the Office of
Independent Counsel's systems of
records-limited access. (a) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2) and (3); (e)(4) (G), (H) and (I); (e) (5) and (8); (f); and (g):
(1) General Files System of the Office of Independent Counsel (OIC/001). These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), (k)(2), and (k)(5).
(b) Exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because making available to a record subject the accounting of disclosures from records concerning him/her would reveal investigative interest on the part of the Office of Inde ndent Counsel as well as the recipient agency. This would permit record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law-enforcement personnel. Moreover, the release of the accounting of disclosures made under subsection (b) of the Act, including those disclosures permitted under the routine uses published for these systems would permit the subject of an investigation of an actual or potential criminal, civil or regulatory violation to determine whether he is the subject of an investigation or to obtain valuable information concerning the nature of the investigation, material compiled during the investigation, and the identity of witnesses and informants. Dis
which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate and necessary to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede the specific investigative process if it were necessary to ensure the relevance, accuracy, timeliness and completeness of all information obtained. In particular, this would restrict the ability of trained investigators, intelligence analysts, and government attorneys to exercise their judgment in reporting on information and investigations.
(5) From subsection (e)(2) because, in a criminal or other law-enforcement investigation, the requirement that information be collected to the greatest extent possible from the subject individual would present a serious impediment to law enforcement. In such circumstances, the subject of the investigation or prosecution would be informed of the existence of the investigation and would therefore be able to avoid detection, apprehension, or legal obligations or duties, as well as to influence witnesses improperly, to destroy evidence, or to fabricate testimony.
(6) From subsection (e)(3) because compliance with the requirements of this subsection during the course of an investigation could impede the information-gathering process, thus hampering the investigation. Furthermore, such requirements could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(7) From subsections (e)(4) (G) and (H) because this system is exempt from the individual-access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act.
(8) From subsection (e)(4)(I) because the categories of sources of records in this system 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 these systems, exemption from this provision is necessary in order to protect the confiden
tiality 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.
(9) From subsection (e)(8) because the individual-notice requirements of subsection (e)(8) could present a serious impediment to law enforcement through interference with the Office of Independent Counsel's ability to issue subpoenas and the disclosure of its investigative techniques and procedures.
(10) From subsection (f) because this system is exempt from the individualaccess provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act. Furthermore, such notice to an individual would be detrimental to the successful conduct and/or completion of an investigation or prosecution pending or future.
(11) From subsection (g) because this system is exempt from the individualaccess and amendment provisions of subsection (d) and the provisions of subsection (f) pursuant to subsections (j) and (k) of the Privacy Act.
(c) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4). (d), (e) (1), (2) and (3), (e)(4), (G), (H) and (I); (e) (5) and (8); (f) and (g):
(1) Freedom of Information Act Privacy Act Files (OIC/002). These exemptions appls to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2,) and (k)(5).
(d) Because this system contains Office of Independent Counsel criminal law-enforcement investigatory records, exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the disclosure accounting would permit the subject(s) of criminal investigations under investigation or in litigation to obtain valuable information concerning the nature of that investigation, matter or case and present a serious impediment to lawenforcement activities.
(2) From subsection (c)(4) because an exemption is being claimed for subsection (d) of the Act, rendering this subsection inapplicable to the extent that this system of records is exempted from subsection (d).
(3) From subsection (d) because ac- (8) From subsection (e)(5) because, in cess to the records contained in this the collection of information for lawsystem would inform the subject of enforcement purposes, it is impossible criminal investigation or case of the to determine in advance what informaexistence of such, and provide the sub- tion is accurate, relevant, timely, and ject with information that might en- complete. With the passage of time, able him to avoid detection, apprehen- seemingly irrelevant or untimely inforsion or legal obligations, and present a mation may acquire new significance serious impediment to law enforcement as further investigation brings new deand other civil remedies. Amendment tails to light and the accuracy of such of the records would interfere with on- information can only be determined in going criminal law-enforement pro- a court of law. The restrictions of subceedings and impose an impossible ad- section (e)(5) would inhibit the ability ministrative burden.
of trained investigators and intel(4) From subsection (e)(1) because in ligence analysts to exercise their judgthe courses of criminal investigations, ment in reporting on investigations matters or cases, the Office of Inde- and impede the development of intelpendent Counsel often obtains informa- ligence necessary for effective law ention concerning the violation of laws forcement. other than those relating to an active (9) From subsection (e)(8) because the case, matter, or investigation. In the individual-notice requirements of subinterests of effective law enforcement section (e)(8) could present a serious and criminal litigation, it is necessary impediment to law enforcement, i.e., that the Office of Independent Counsel this could interfere with the Office of retain this information since it can aid Independent Counsel's ability to issue in establishing patterns of activity and subpoenas and could reveal investigaprovide valuable leads for future cases tive techniques and procedures. that may be brought within the Office
(10) From subsection (f) because this of Independent Counsel.
system has been exempted from the in(5) From subsection (e)(2) because dividual-access and amendment provicollecting information to the greatest sions of subsection (d). extent possible from the subject indi- (11) From subsection (g) because the vidual of a criminal investigation or records in this system are generally prosecution would present a serious compiled for law-enforcement purposes impediment to law enforcement. In
and are exempt from the individual-acsuch circumstances, the subject of the cess and amendment provisions of subinvestigation would be placed on notice
sections (d) and (f), this rendering subof the existence of the investigation section (g) inapplicable. and would therefore be able to avoid detection, apprehension, or legal obli
PART 701-PROCEDURES FOR DISgations and duties. (6) From subsection (e)(3) because
CLOSURE OF RECORDS UNDER providing individuals supplying infor
THE FREEDOM OF INFORMATION mation with a form stating the re
ACT quirements of subsection (e)(3) would constitute a serious impediment to law Sec. enforcement. In those circumstances,
701.10 General provisions. it could compromise the existence of a 701.11 Requirements pertaining to requests. confidential investigation, reveal the
701.12 Responses by the Office to requests. identity of confidential sources of in
701.13 Form and content of Office responses. formation, and endanger the life and
701.14 Classified information.
701.15 Business information. physical safety of confidential inform
701.16 Appeals. ants.
701.17 Preservation of records. (7) From subsection (e)(4) (G), (H) and
701.18 Fees. (I) because this system of records is ex
701.19 Other rights and services. empt from the individual-access and amendment provisions of subsection (d)
AUTHORITY: 5 U.S.C. 552. and the rules provisions of subsection SOURCE: 53 FR 8895, Mar. 18, 1988, unless (f).
$ 701.10 General provisions.
(a) This part contains the regulations of the Office of Independent Counsel implementing the Freedom of Information Act (“FOIA"), 5 U.S.C. 552. Information customarily furnished to the public in the regular course of the performance of official duties may continue to be furnished to the public without complying with this part, provided that the furnishing of such information would not violate the Privacy Act of 1974, 5 U.S.C. 552a, and would not be inconsistent with regulations issued pursuant to the Privacy Act. To the extent permitted by other laws, the Office will also consider making available records that it is permitted to withhold under the FOIA if it determines that such disclosure would be in the public interest and would not interfere with the functioning of the Office.
(b) As used in this part, the following terms shall have the following meanings:
(1) Appeal means the appeal by a requester of an adverse determination of his request, as described in 5 U.S.C. 552(a)(6)(A)(ii).
(2) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 552(e).
(3) Request means any request for records made pursuant to 5 U.S.C. 552(a)(3).
(4) Requester means any person who makes a request to the Office.
(5) Business information means trade secrets or other commercial or financial information.
(6) Business submitter means any commercial entity that provides business information to the Office and that has a proprietary interest in the information.
(c) The FOIA/PA Officer of the Office of Independent Counsel shall be responsible to Independent Counsel for all matters pertaining to the administration of this part.
(d) The Office of Independent Counsel shall comply with the time limits set forth in the FOIA for responding to and processing requests and appeals, unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C). The Office shall notify a requester whenever it is unable to respond to or process the request or appeal within the time limits established
by the FOIA. The Office shall respond to and process requests and appeals in their approximate order of receipt, to the extent consistent with sound administrative practice. $701.11 Requirements pertaining to
requests. (a) How made and addressed. A requester may make a request under this part for a record of the Office of Independent Counsel by writing to the Office at: FOIA/PA Officer, Office of Independent counsel, Suite 701 West, 555 Thirteenth Street NW., Washington, DC 20004. A request should be sent to the Office at its proper address and both the envelope and the request itself should be clearly marked: “Freedom of Information Act Request."
(b) Request must reasonably describe the records sought. A request must describe the records sought in sufficient detail to enable Office personnel to locate the records with a reasonable amount of effort. A request for a specific category of records shall be regarded as fulfilling this requirement if it enables responsive records to be indentified by a technique or process that is not unreasonably burdensome or disruptive of Office operations. Wherever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. In additon, if the request seeks records pertaining to pending litigation, the request should indicate the title of the case, the court in which the case was filed, and the nature of the case. If the Office determines that a request does not reasonably describe the records sought, the Office shall either advise the requester what additional information is needed or otherwise state why the request is insufficient. The Office also shall extend to the requester an opportunity to confer with Office personnel with the objective of reformulating the request in a manner that will meet the requirements of this section.
(c) Agreement to pay fees. (1) The filing of a request under this part shall be deemed to constitute an agreement by the requester to pay all applicable fees charged under $701.18 of this part, up to $25, unless a waiver of fees is sought.
The Office shall confirm this agreement in its letter of acknowledgement to the requester. When filing a request, a requester may specify a willingness to pay a greater amount, if applicable.
(2) If a waiver of fees up to $25 is sought in the requester's request to the Office, the Office will make its determination on the fee waiver (and notify the requester as soon as possible) after receipt of the request. The submission of a request for fee waiver will not delay the Office's responsibility to search for responsive records.
(3) If the fee waiver is denied by the Office, and the fees involved total $25 or less, the Office will send the responsive documents to the requester, along with a bill for fees. The collection of the unpaid bill shall follow the procedures found herein at $701.18 (g)(2) and (h).
$ 701.12 Responses by the Office to re
quests. (a) Authority to grant or deny requests. The head of the Office, or his designee, is authorized to grant or deny and request for a record of the Office.
(b) Initial action by the Office. When the Office receives a request for a record in its possession, the Office shall promptly determine whether another agency of the Government is better able to determine whether the record is exempt, to any extent, from mandatory disclosure under the FOIA; and whether the record, if exempt to any extent from mandatory disclosure under the FOIA, should nonetheless be released to the requester as a matter of discretion. If the Office determines that it is the agency best able to determine whether to disclose the record in response to the request, then the Office shall respond to the request. If the Office determines that it is not the agency best able to determine whether to disclose the record in response to the request, the Office shall either:
(1) Respond to the request, after consulting with the other agency best able to determine whether to disclose the record and with any other agency having a substantial interest in the requested record or the information contained therein; or
(2) Refer the responsibility for responding to the request to another
agency that generated or originated the record, but only if that other agency is subject to the provisions of the FOIA. Under ordinary circumstances, the agency that generated or originated a requested record shall be presumed to be the agency best able to determine whether to disclose the record in response to the request.
(c) Law-enforcement information. Whenever a request is made for a record containing information that relates to an investigation of a possible violation of criminal law or to a criminal law-enforcement proceeding and that was generated or originated by another agency, the Office shall refer the responsibility for responding to the request to that other agency; however, such referral shall extend only to the information generated or originated by that other agency.
(d) Classified information. Whenever a request is made for a record containing information that has been classified, or that may be eligible for classification, by another agency under the provisions of Executive Order 12356 or any other Executive Order concerning the classification of records, the Office shall refer the responsibility for responding to the request to the agency that classified the information or should consider the information for classification. Whenever a record contains information that has been derivatively classified by the Office because it contains information classified by another agency, the Office shall refer the responsibility for responding to the request to the agency that classified the underlying information; however, such referral shall extend only to the information classified by the other agency.
(e) Notice of referral. Whenever the Office refers all or any part of the responsibility for responding to a request to another agency, the Office will consult with the other agency to obtain specific approval to notify the requester of the referral and inform the requester of the name and address of the agency to which the request has been referred and the portions of the request so referred.
(f) Agreements regarding consultations and referrals. No provision of this section shall preclude formal or informal