Rule Exempting an Amended System of Records From Certain Provisions of the Privacy Act

 
CONTENT
Federal Register, Volume 84 Issue 246 (Monday, December 23, 2019)
[Federal Register Volume 84, Number 246 (Monday, December 23, 2019)]
[Rules and Regulations]
[Pages 70424-70426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26820]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Rule Exempting an Amended System of Records From Certain
Provisions of the Privacy Act
AGENCY: National Labor Relations Board.
ACTION: Final rule; correction.
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SUMMARY: On February 24, 2017, the National Labor Relations Board
published in the Federal Register a comprehensive amendment of its
procedural regulations that revised a section in its entirety, but
inadvertently failed to include two paragraphs. This document corrects
those regulations to include the paragraphs that were inadvertently
repealed.
DATES: Effective February 21, 2020.
FOR FURTHER INFORMATION CONTACT: Prem Aburvasamy, Senior Agency
Official for Privacy, National Labor Relations Board, 1015 Half Street
SE, Washington, DC 20570-0001, (202) 273-3733, [email protected].
SUPPLEMENTARY INFORMATION: On November 21, 2016, the National Labor
Relations Board amended one of its systems of records, NLRB-17,
Personnel Security Records, in accordance with the Privacy Act of 1974,
5 U.S.C. 552a. Pursuant to subsections (k)(1), (2), (3), (5), (6), and
(7) of the Privacy Act, the Board included within Section 102.119,
additional paragraphs (o) and (p), exempting portions of the amended
system of records (NLRB-17) from subsections (c)(3), (d), (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Privacy Act. This
amendment was published in the Federal Register on November 21, 2016.
Three months later, on February 24, 2017, the National Labor Relations
Board published in the Federal Register a comprehensive amendment of
its procedural regulations that replaced Sec.  102.119 in its entirety.
In the comprehensive amendment, the Board inadvertently failed to
include Sec.  102.119, paragraphs (o) and (p). This document corrects
the regulations that were published February 24, 2017, to include the
paragraphs that were inadvertently repealed.
List of Subjects in 29 CFR Part 102
    Privacy, Reporting and Recordkeeping Requirements.
    Accordingly, 29 CFR part 102 is corrected by making the following
amendments:
[[Page 70425]]
PART 102--RULES AND REGULATIONS, SERIES 8
0
1. The authority citation for part 102 continues to read as follows:
    Authority: Sections 1, 6, National Labor Relations Act (29
U.S.C. 151, 156). Section 102.117 also issued under section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)), and Section 102.117a also issued under section
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and
(k)). Sections 102.143 through 102.155 also issued under section
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C.
504(c)(1)).
Subpart K--Records and Information
0
2. In Sec.  102.119, paragraphs (o) and (p) are added to read as
follows:
Sec.  102.119  Privacy Act Regulations: notification as to whether a
system of records contains records pertaining to requesting
individuals; requests for access to records, amendment of requests;
fees for document duplication; files and records exempted from certain
Privacy Act requirements.
* * * * *
    (o) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), (5), (6), and (7) of
the Privacy Act, the system of records maintained by the NLRB
containing Personnel Security Records shall be exempted from the
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and
(I), and (f) insofar as the system may contain:
    (1) Records properly classified pursuant to an Executive Order,
within the meaning of section 552(b)(1);
    (2) Investigatory material compiled for law enforcement purposes
other than material within the scope of 5 U.S.C. 552a(j)(2);
    (3) Information maintained in connection with providing protective
services to the President of the United States or other individuals
pursuant to section 3056 of title 18 of the U.S. Code;
    (4) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualifications for Federal
civilian employment and Federal contact or access to classified
information;
    (5) Testing and examination materials used for a personnel
investigation for employment or promotion in the Federal service;
    (6) Evaluation materials, compiled during the course of a personnel
investigation, that are used solely to determine potential for
promotion in the armed services.
    (p) The Privacy Act exemptions contained in paragraph (o) of this
section are justified for the following reasons:
    (1)(i) 5 U.S.C. 552a(c)(3) requires an agency to make the
accounting of each disclosure of records available to the individual
named in the record at his/her request. These accountings must state
the date, nature, and purpose of each disclosure of a record and the
name and address of the recipient. 5 U.S.C. 552a(d) requires an agency
to permit an individual to gain access to records pertaining to him/
her, to request amendment to such records, to request a review of an
agency decision not to amend such records, and to contest the
information contained in such records.
    (ii) Personnel investigations may contain properly classified
information which pertains to national defense and foreign policy
obtained from another Federal agency. Application of exemption 5 U.S.C.
552a(k)(1) is necessary to preclude an individual's access to and
amendment of such classified information under 5 U.S.C. 552a(d).
    (iii) Personnel investigations may contain investigatory material
compiled for law enforcement purposes other than material within the
scope of 5 U.S.C. 552a(j)(2). Application of exemption 5 U.S.C.
552a(k)(2) is necessary to preclude an individual's access to or
amendment of such records under 5 U.S.C. 552a(c)(3) and (d).
    (iv) Personnel investigations may also contain information obtained
from another Federal agency that relates to providing protective
services to the President of the United States or other individuals
pursuant to 18 U.S.C. 3056. Application of exemption 5 U.S.C.
552a(k)(3) is necessary to preclude an individual's access to and
amendment of such records under 5 U.S.C. 552a(d).
    (v) Exemption 5 U.S.C. 552a(k)(5) is claimed with respect to the
requirements of 5 U.S.C. 552a(c)(3) and (d) because this system
contains investigatory material compiled solely for determining
suitability, eligibility, and qualifications for Federal employment. To
the extent that the disclosure of 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, or
prior to September 27, 1975, under an implied promise that the identity
of the source would be held in confidence, the applicability of
exemption 5 U.S.C. 552a(k)(5) will be required to honor promises of
confidentiality should an individual request access to or amendment of
the record, or access to the accounting of disclosures of the record.
Similarly, personnel investigations may contain evaluation material
used to determine potential for promotion in the armed services.
Application of exemption 5 U.S.C. 552a(k)(7) is necessary to the extent
that the disclosure of data would compromise the anonymity of a source
under an express promise that the identity of the source would be held
in confidence, or, prior to September 27, 1975, under an implied
promise that the identity of the source would be held in confidence.
Both of these exemptions are necessary to safeguard the integrity of
background investigations by minimizing the threat of harm to
confidential sources, witnesses, and law enforcement personnel.
Additionally, these exemptions reduce the risks of improper influencing
of sources, the destruction of evidence, and the fabrication of
testimony.
    (vi) All information in this system that meets the criteria
articulated in exemption 5 U.S.C. 552a(k)(6) is exempt from the
requirements of 5 U.S.C. 552a(d), relating to access to and amendment
of records by an individual. This exemption is claimed because portions
of this system relate to testing or examining materials used solely to
determine individual qualifications for appointment or promotion to the
Federal service. Access to or amendment to this information by an
individual would compromise the objectivity and fairness of the testing
or examining process.
    (2) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. This requirement could foreclose
investigators from acquiring or receiving information the relevance and
necessity of which is not readily apparent and could only be
ascertained after a complete review and evaluation of all the evidence.
This system of records is exempt from this requirement because in the
course of personnel background investigations, the accuracy of
information obtained or introduced occasionally may be unclear, or the
information may not be strictly relevant or necessary to favorably or
unfavorably adjudicate a specific investigation at a specific point in
time. However, in the interests of protecting the public trust and
national security, it is appropriate to retain all information that may
aid in establishing patterns in such areas as criminal conduct, alcohol
and drug use, financial dishonesty, allegiance, foreign preference or
influence, and psychological conditions, that are relevant to future
personnel security or suitability determinations.
[[Page 70426]]
    (3) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record and
how to contest its content. Since this system of records is being
exempted from subsection (f) of the Privacy Act, concerning agency
rules, and subsection (d) of the Privacy Act, concerning access to
records, these requirements are inapplicable to the extent that this
system of records will be exempt from subsections (f) and (d) of the
Privacy Act. Although the system would be exempt from these
requirements, the NLRB has published information concerning its
notification, access, and contest procedures because, under certain
circumstances, it may be appropriate for a subject to have access to a
portion of that individual's records in this system of records.
    (4) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to
protect the confidentiality of the sources of information, to protect
the privacy and physical safety of confidential sources and witnesses,
and to avoid the disclosure of investigative techniques and procedures.
Although the system will be exempt from this requirement, the agency
has published source information in the accompanying notice in broad
generic terms.
    (5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which
shall establish procedures whereby an individual can be notified in
response to a request if any system of records named by the individual
contains a record pertaining to that individual. The application of
this provision could compromise the progress of an investigation
concerning the suitability, eligibility, and fitness for service of
applicants for Federal employment and impede a prompt assessment of the
appropriate access to the Agency's facilities. Although this system
would be exempt from the requirements of subsection (f) of the Privacy
Act, the Agency has promulgated rules which establish agency procedures
because, under certain circumstances, it could be appropriate for an
individual to have access to all or a portion of that individual's
records in this system of records.
    Dated: December 9, 2019.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2019-26820 Filed 12-20-19; 8:45 am]
 BILLING CODE 7545-01-P