Privacy Act: Proposed Exemptions

CourtFederal Retirement Thrift Investment Board
Citation86 FR 44642
Publication Date13 Aug 2021
Record Number2021-16435
Federal Register, Volume 86 Issue 154 (Friday, August 13, 2021)
[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 [www.gpo.gov]
                [FR Doc No: 2021-16435]
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                Proposed Rules
                 Federal Register
                ________________________________________________________________________
                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.
                ========================================================================
                Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 /
                Proposed Rules
                [[Page 44642]]
                FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
                5 CFR Part 1630
                Privacy Act: Proposed Exemptions
                AGENCY: Federal Retirement Thrift Investment Board.
                ACTION: Notice of proposed rulemaking.
                -----------------------------------------------------------------------
                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:
                 Federal eRulemaking Portal: https://www.regulations.gov.
                Follow the website instructions for submitting comments.
                 Fax: 202-942-1676.
                 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
                [[Page 44643]]
                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:
                 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
                [[Page 44644]]
                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.
                 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.
                 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).
                 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.
                 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.
                * * * * *
                 (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.
                * * * * *
                [FR Doc. 2021-16435 Filed 8-12-21; 8:45 am]
                BILLING CODE 6760-01-P
                

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