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compliance with the provisions of the closure of the accounting would, therePrivacy Act.

fore, present a serious impediment to

law enforcement. In addition, disclo$ 700.27 Other rights and services.

sure of the accounting would amount Nothing in this subpart shall be con- to notice to the individual of the existstrued to entitle any person, as of ence of a record; such notice requireright, to any service or to the disclo- ment under subsection (f)(1) of the Act sure of any record to which such person is specifically exempted for this system is not entitled under 5 U.S.C. 552a.

of records.

(2) From subsection (c)(4) because an Subpart B-Exemption of the Of- exemption is being claimed under sub

fice of Independent Counsel's section (d) of the Act. This system is Systems of Records Under the exempt from the access provisions of

subsection (d) pursuant to subsections Privacy Act

(j) and (k) of the Privacy Act. Sub8700.31 Exemption of the Office of

section (c)(4), therefore, is inapplicable Independent Counsel's systems of to this system of records. records-limited access.

(3) From subsection (d) because the (a) The following system of records is

records contained in this system relate exempt from 5 U.S.C. 552a(c)(3) and (4);

to official federal investigations. Indi(d); (e)(1), (2) and (3); (e)(4) (G), (H) and

vidual access to these records con(I); (e) (5) and (8); (f); and (g):

tained in this system would inform the

subject of an investigation of an actual (1) General Files System of the Office of

or potential criminal, civil, or reguIndependent Counsel (OIC/001).

latory violation, of the existence of These exemptions apply only to the ex

that investigation, of the nature and tent that information in the system is

scope of the information and evidence subject to exemption pursuant to 5

obtained as to his activities, of the U.S.C. 552a (j)(2), (k)(1), (k)(2), and

identities of witnesses and informants, (k)(5).

or would provide information that (b) Exemptions from the particular

could enable the subject to avoid detecsubsections are justified for the fol- tion or apprehension. These factors lowing reasons:

would present a serious impediment to (1) From subsection (c)(3) because effective law enforcement because they making available to a record subject could prevent the successful complethe accounting of disclosures from tion of the investigation, reveal conrecords concerning him/her would re- fidential informants, endanger the veal investigative interest on the part physical safety of witnesses or informof the Office of Independent Counsel as ants, and lead to the improper influwell as the recipient agency. This encing of witnesses, the destruction of would permit record subjects to impede evidence, or the fabrication of testithe investigation, e.g., destroy evi- mony. Individual access also could condence, intimidate potential witnesses, stitute an unwarranted invasion of the or flee the area to avoid inquiries or personal privacy of third parties who apprehension by law-enforcement per- are involved in

investigation. sonnel. Moreover, the release of the ac- Amendment of the records would intercounting of disclosures made under fere with ongoing criminal-law enforcesubsection (b) of the Act, including ment proceedings and impose an imthose disclosures permitted under the possible administrative burden. routine uses published for these sys- (4) From subsections (e) (1) and (5) betems would permit the subject of an in- cause, in the course of criminal or vestigation of an actual or potential other law-enforcement investigation, criminal, civil or regulatory violation cases and matters, the Office of Indeto determine whether he is the subject pendent Counsel may occasionally obof an investigation or to obtain valu- tain information concerning actual or able information concerning the nature potential violations of law that are not of the investigation, material compiled strictly within its authority or jurisduring the investigation, and the iden- diction, or may compile information, tity of witnesses and informants. Dis- the accuracy of which is unclear or

an

to

which is not strictly relevant or nec- tiality of the sources of criminal and essary to a specific investigation. In other law-enforcement information. the interests of effective law enforce- Such exemption is further necessary to ment, it is appropriate and necessary protect the privacy and physical safety to retain all information that may aid of witnesses and informants. in establishing patterns of criminal ac- (9) From subsection (e)(8) because the tivity. Moreover, it would impede the individual-notice requirements of subspecific investigative process if it were section (e)(8) could present a serious necessary to ensure the relevance, ac- impediment

law enforcement curacy, timeliness and completeness of through interference with the Office of all information obtained. In particular, Independent Counsel's ability to issue this would restrict the ability of subpoenas and the disclosure of its intrained investigators, intelligence ana- vestigative techniques and procedures. lysts, and government attorneys to ex- (10) From subsection (f) because this ercise their judgment in reporting on system is exempt from the individualinformation and investigations.

access provisions of subsection (d) pur(5) From subsection (e)(2) because, in suant to subsections (j) and (k) of the a criminal or other law-enforcement

Privacy Act. Furthermore, such notice investigation, the requirement that in- to an individual would be detrimental formation be collected to the greatest to the successful conduct and/or comextent possible from the subject indi- pletion of an investigation or prosecuvidual would present a serious impedi- tion pending or future. ment to law enforcement. In such cir

(11) From subsection (g) because this cumstances, the subject of the inves

system is exempt from the individualtigation or prosecution would be in

access and amendment provisions of formed of the existence of the inves

subsection (d) and the provisions of tigation and would therefore be able to

subsection (f) pursuant to subsections avoid detection, apprehension, or legal (j) and (k) of the Privacy Act. obligations or duties, as well as to in

(c) The following system of records is fluence witnesses improperly, to de

exempt from 5 U.S.C. 552a(c)(3) and (4), stroy evidence, or to fabricate testi

(d), (e) (1), (2) and (3), (e)(4), (G), (H) and mony.

(I); (e) (5) and (8); (f) and (g): (6) From subsection (e)(3) because compliance with the requirements of (1) Freedom of Information Act Privacy this subsection during the course of an

Act Files (OIC/002). These exemptions apply investigation could impede the infor

to the extent that information in this sys

tem is subject to exemption pursuant ot 5 mation-gathering process, thus ham

U.S.C. 552a(j)(2), (k)(1), (k)(2,) and (k)(5). pering the investigation. Furthermore, such requirements could compromise (d) Because this system contains Ofthe existence of a confidential inves- fice of Independent Counsel criminal tigation or reveal the identity of wit- law-enforcement investigatory records, nesses or confidential informants.

exemptions from the particular sub(7) From subsections (e)(4) (G) and sections are justified for the following (H) because this system is exempt from reasons: the individual-access provisions of sub- (1) From subsection (c)(3) because the section (d) pursuant to subsections (j) release of the disclosure accounting and (k) of the Privacy Act.

would permit the subject(s) of criminal (8) From subsection (e)(4)(I) because investigations under investigation or the categories of sources of records in in litigation to obtain valuable inforthis system have been published in the mation concerning the nature of that FEDERAL REGISTER in broad generic investigation, matter case and terms in the belief that this is all that present a serious impediment to lawsubsection (e)(4)(I) of the Act requires. enforcement activities. In the event, however, that this sub- (2) From subsection (c)(4) because an section should be interpreted to require exemption is being claimed for submore detail as to the identity of section (d) of the Act, rendering this sources of the records in these systems, subsection inapplicable to the extent exemption from this provision is nec- that this system of records is exempted essary in order to protect the confiden- from subsection (d).

or

(3) From subsection (d) because access to the records contained in this system would inform the subject of criminal investigation or case of the existence of such, and provide the subject with information that might enable him to avoid detection, apprehension or legal obligations, and present a serious impediment to law enforcement and other civil remedies. Amendment of the records would interfere with ongoing criminal law-enforement proceedings and impose an impossible administrative burden.

(4) From subsection (e)(1) because in the courses of criminal investigations, matters or cases, the Office of Independent Counsel often obtains information concerning the violation of laws other than those relating to an active case, matter, or investigation. In the interests of effective law enforcement and criminal litigation, it is necessary that the Office of Independent Counsel retain this information since it can aid in establishing patterns of activity and provide valuable leads for future cases that may be brought within the Office of Independent Counsel.

(5) From subsection (e)(2) because collecting information to the greatest extent possible from the subject individual of a criminal investigation or prosecution would present a serious impediment to law enforcement. In such circumstances, the subject of the investigation would be placed on notice of the existence of the investigation and would therefore be able to avoid detection, apprehension, or legal obligations and duties.

(6) From subsection (e)(3) because providing individuals supplying information with a form stating the requirements of subsection (e)(3) would constitute a serious impediment to law enforcement. In those circumstances, it could compromise the existence of a confidential investigation, reveal the identity of confidential sources of information, and endanger the life and physical safety of confidential informants.

(7) From subsection (e)(4) (G), (H) and (I) because this system of records is exempt from the individual-access and amendment provisions of subsection (d) and the rules provisions of subsection (f).

(8) From subsection (e)(5) because, in the collection of information for lawenforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light and the accuracy of such information can only be determined in a court of law. The restrictions of subsection (e)(5) would inhibit the ability of trained investigators and intelligence analysts to exercise their judgment in reporting on investigations and impede the development of intelligence necessary for effective law enforcement.

(9) From subsection (e)(8) because the individual-notice requirements of subsection (e)(8) could present a serious impediment to law enforcement, i.e., this could interfere with the Office of Independent Counsel's ability to issue subpoenas and could reveal investigative techniques and procedures.

(10) Fror subsection (f) because this system has been exempted from the individual-access and amendment provisions of subsection (d).

(11) From subsection (g) because the records in this system are generally compiled for law-enforcement purposes and are exempt from the individual-access and amendment provisions of subsections (d) and (f), this rendering subsection (g) inapplicable.

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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.

$701.10 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

$ 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).

8 701.12 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

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