Date: Mon, 13 Sep 1993 03:07:57 UTC Subject: Waco Exemption from FOIA - Federal Register f

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From: an12070@anon.penet.fi Date: Mon, 13 Sep 1993 03:07:57 UTC Subject: Waco Exemption from FOIA - Federal Register full text - [28K] Waco Administrative Review Group (Treasury Dept., US Government)=20 proposed exemption from the Freedom of Information Act. Full text transcription of the "Federal Register" / Vol. 58, No. 156 Monday, August 16, 1993 / Proposed Rules Full text follows: DEPARTMENT OF THE TREASURY Departmental Offices 31 CFR Part 1 Privacy Act of 1974, as Amended; Exemption of System of Record From Certain Provisions AGENCY: Departmental Offices, Department of the Treasury. ACTION: Proposed rule. SUMMARY: In accordance with the requirements of the Privacy Act of 1974, as amended, Departmental Offices, Office of Enforcement is proposing to exempt a system of records, the Waco Administrative Review Group Investigation (D0/.207) from certain provisions of the Privacy Act. The exemptions are intended to increase the value of the system of records for law enforcement and investigative purposes, to comply with legal prohibitions against the disclosure of certain kinds of information, and to protect the privacy of individuals identified in the system of records. The exemptions are intended to increase the value of the system of records for the factfinding investigation and administrative review performed by the Waco Administrative Review Group so as not to reveal local, state or Federal law enforcement techniques, sources and methods or affect the ability of law enforcement agencies to prosecute people for criminal wrongdoing. DATES: Comments must be received no later than September 15, 1993. Addresses: Comments (preferably in triplicate) must be submitted to the Department of the Treasury, Office of Enforcement, room 4312,1500 Pennsylvania Ave., NW., Washington, DC 20220. FOR FURTHER INFORMATION CONTACT: Nichole L. Jenkins, Attorney, Office of the Assistant General Counsel (Administrative & General Law), (202) 622-0450, room 1410, 1500 Pennsylvania Ave., NW., Washington, DC 20220. SUPPLEMENTARY INFORMATION: As an investigative and law enforcement office, the Office of Enforcement has a wide variety of investigatory responsibilities. As a part of that Office, the Waco Administrative Review Group is being established to conduct a comprehensive investigation of the Bureau of Alcohol, Tobacco & Firearms (BATF) including analyzing whether BATF procedures, policies and practices were adequate and whether they were followed. The Waco Administrative Review Group will collect and store information obtained during the investigation, conducted by the Waco Administrative Review Group, of individuals involved in the events leading to the Bureau of Alcohol, Tobacco & Firearms execution of search and arrest warrants at the Branch Davidian compound, near Waco, Texas, on February 28,1993, and, where appropriate, disclose this information to other law enforcement agencies which have an interest in this information. Authority for the system is provided by 5 U.S.C. 301; 31 U.S.C. 321. Pursuant to the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Department of the Treasury is today publishing separately a notice of a system of records, the Waco Administrative Review Group=D1 Treasury/D.207. This system of records will assist the Office of Enforcement in the proper performance of its functions. Under 5 U.S.C. 552(a)(j)(2), the head of an agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (a) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (b) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (c) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. In addition, under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) set forth above. Accordingly, pursuant to the authority contained in section 1.23(c) of the regulations of the Department of the Treasury (31 CFR 1.23(c)), the Assistant Secretary intends to exempt the Waco Administrative Review Group Investigation from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and 31 CFR 1.23(c). The specific provisions and the reasons for exempting the system of records from each specific provision of 5 U.S.C. 552a are set forth below as required by 5 U.S.C. 552a(j)(2) and (k)(2). As required by Executive Order 12291, it has been determined that this proposed rule is not a "major" rule and, therefore, does not require a Regulatory Impact Analysis. Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601- 612, it is hereby certified that these regulations will not have significant economic impact on a substantial number of small entities. In accordance with the provisions of the Paperwork Reduction Act of 1980, the Department of the Treasury has determined that this proposed rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements. List of Subjects in 31 CFR Part 1 Privacy. Part 1 of title 31 of the Code of Federal Regulations is amended as follows: 1. The authority citation for part 1 continues to read as follows: Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C. 552a. 2. Section 1.36 of Subpart C is amended by adding the following text immediately preceding the heading THE INTERNAL REVENUE SERVICE: =A41.36 Systems exempt in whole or in part from Provisions of 5 U.S.C. 552a and this part. In accordance with 5 U.S.C. 552a (j) and (k) and 1.23(c), constituent units of the Department of the Treasury exempt the following systems of records from certain provisions of the Privacy Act for the reasons indicated: Office of the Assistant Secretary for Enforcement Waco Administrative Review Group Investigation Notice of Exempt System (a) In general. The Assistant Secretary of the Treasury for Enforcement exempts the system of records entitled "Waco Administrative Review Group Investigation" treasury/DO .207) from certain provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a (b) Authority: 5 U.S.C. 552a(j) and (k); 31 CFR 1 23(c). (c) General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2), the Assistant Secretary for Enforcement hereby exempts the Waco Administrative Review Group Investigation system of records maintained by the Office of Enforcement, an office reporting to the Assistant Secretary for Enforcement, from the following provisions of the Privacy Act of 1974: 5 U S.C.552a(c)(3) and (4); 5 U S.C. 552a(dj(1), (2), (3) and (4); 5 U S.C. 552a(s)(1) (2) and (3); 5 U.S.C. 552a(c)(4)(C), (n. nd (I); 5 U S.C.552a()(5) and (8); 5 U S.C. 552a(f); and 5 U.S.C. 552a(g). (d) Specific exemptions under 5 U.S.C. 552a(k)(2). To the extent that the exemption under 5 U.S.C. 552a(j)(2) does not apply to the Waco Administrative Review Group Investigation, the Assistant Secretary for Enforcement hereby exempts the Waco Administrative Review Group Investigation system of records from the following provisions of 5 U.S.C. 552a pursuant to 5 U.S.C. 552a(k)(2): 5 U S.C. 552a(c(3); 5 U S.C. 552a(d)(1), (2), (3) and (4); 5 U S.C.552a((1); 5 U S.C. 552a(c)(4)(G), (I), and (I); and 5 U S.C.ss2a(f) (e) Reasons for exemptions under 5 U.S C. 552a(j)(2) and (k)(2). (1) 5 U.S.C. 552a (e)(4)(G) and (f)l) enable individuals to inquire whether a system of records contains records pertaining to them. Application of these provisions to the Waco Administrative Review Group investigation would allow individuals to learn whether they have been identified as suspects or subjects of investigation. As further described in the following paragraph, access to such knowledge would impair the Waco Administrative Review Group's ability to carry out its mission, since individuals could (A) take steps to avoid' detection, (B) inform associates that an investigation is in progress, (C) learn the nature of the investigation, (D) learn whether they are only suspects or identified as law violators, (E) begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records, or (F) destroy evidence needed to prove the violation, and (G) confer with associates to develop A false and misleading account of events that would deter, delay, or complicate the investigation. (2) 5 U.S.C. 552a(d)(l), (e)(4)(ii) and (f)(2), (3) and (5) grant individuals access to records pertaining to them. The application of these provisions to the Waco Administrative Review Group Investigation would compromise the Waco Administrative Review Group's ability to provide useful tactical and strategic information to law enforcement agencies and to complete a review of the events leading to the Bureau of Alcohol, Tobacco & Firearms execution of search and arrest warrants at the Branch Davidian compound. near Waco, Texas, on February 28,1993. (A) Permitting access to records contained in the Waco Administrative Review Group would provide individuals with information concerning the nature of any current investigations and would enable them t avoid detection or apprehension by (i) discovering the facts that would form the basis for their arrest, (iii) enabling them to destroy or alter evidence of criminal conduct that would form the basis for their arrest, (ii) using knowledge that criminal or administrative investigators had reason to believe that a crime was about to be committed, to delay the commission of the crime or commit it at a location that might not be under surveillance, and (iv) providing them the knowledge to evade investigators' further inquiries. (B) Permitting access to either on- going or closed investigative files would also reveal investigative techniques and procedures, the knowledge of which could enable individuals planning crimes to structure their operations so as to avoid detection, apprehension or further investigation. (C) Permitting access to investigative files and records could, moreover disclose the identity of confidential sources and informers might and the nature of the information supplied and thereby endanger the physical safety of those sources by exposing them to possible reprisals for having provided the information. Confidential sources and informers might refuse to provide criminal or administrative investigators with valuable information unless they believe that their identities would not he revealed through disclosure of their names or the nature of the information they supplied. Loss of access to such sources would seriously impair the Office of Enforcement's ability to carry out its mandate. (D) Furthermore, providing access to records contained in the Waco Administrative Review Group investigation could reveal the identities of undercover law enforcement officers who compiled information regarding the individual's criminal activities and thereby endanger the physical safety of those undercover officers or their families by exposing them to possible reprisals. (E) By compromising the law enforcement value of the Waco ' Administrative Review Group for the reasons outlined in paragraphs (e)(2)(A) through (D) of this paragraph, permitting access in keeping with these provisions would discourage other law enforcement and regulatory agencies, foreign and domestic, from freely sharing information with the Waco Administrative Review Group and thus would restrict the Waco Administrative Review Group's access to information necessary to accomplish its mission most effectively. (3) 5 U.S.C. 552a (d)(2) (3) and (4) (e)4)(h) and (f)(4) permit an individual to request amendment of a record pertaining to him or her and require the agency either to amend the record, or to note the disputed portion of the record and to provide a copy of the individual's statement of disagreement with the agency's refusal to amend a record to persons or other agencies to whom the record is thereafter disclosed. Since these provisions depend on the individual's having access to his or her records, and since these rules propose to exempt the Waco Administrative Review Group Investigation from the provisions of 5 U.S.C. 552a relating to access to records, for the reasons set out in paragraph (2) of this paragraph, these provisions should not apply to the Waco Administrative Review Group Investigation. (4) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or other agency about any correction or notation of dispute that the agency made in accordance with 5 U.S.C. 552a(d) to any record that the agency disclosed to the person or agency if an accounting of the disclosure was made. Since this provision depends on an individual's having access to and an opportunity to request amendment of records pertaining to him or her and since these rules propose to exempt the Waco Administrative Review Group Investigation from the provisions of U.S.C. 552a relating to access to and amendment of records, for the reasons set out in paragraph (f)(3) of this sect;on, this provision should not apply to the Waco Administrative Review Group Investigation. (5) 5 U.S.C. 552a(3) requires an agency to make accounting of disclosures of a record available to the individual named in the record upon his or her request. The accountings must state the date, nature, and purpose of each disclosure of the record and the name and address of the recipient. (A) The application of this provision would impair the ability of law enforcement agencies outside the Department of the Treasury to make effective use of the information provided by the Waco Administrative Review Group. Making accountings of disclosures available to the subjects of an investigation would alert them to the fact that another agency is conducting an investigation into possible criminal activities and could reveal the geographic location of the other agency's investigation, the nature and purpose of that investigation, and the dates on which that investigation W85 active. Violators possessing such knowledge would be able to take measures to avoid detection, apprehension or further investigation by altering their operations, by transferring their criminal activities to other geographical areas, by destroying or concealing evidence that would form the basis for arrest, or by developing a false and misleading account of facts that would deter, delay or complicate any investigation. (B) Moreover, providing accounting o the subjects of investigations would alert them to the fact that the Waco Administrative Review Group has information regarding possible criminal activities and could inform them of the general nature of that information. Access to such information could reveal the operation of the Waco Administrative Review Group information-gathering and analysis systems and permit violators to take steps to avoid detection, apprehension or further investigation. (6) 5 U.S.C. 552a(e)(4)(1) requires an agency to publish a general notice listing the categories of sources for information contained in a system of records. The application of this provision to the Waco Administrative Review Group Investigation could compromise the Waco Administrative Review Group's ability to provide useful information to law enforcement agencies, since revealing sources for the information could{A) disclose investigative techniques, systems, methods and procedures, (B) result in threats or reprisals against informers by the subjects of investigations, and (C) cause informers to refuse to give full information to criminal or administrative investigators for fear of having their identities as sources disclosed. (7) 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 to be accomplished by statute or executive order. The term "maintain," as defined in 5 U.S.C. 552a(a)(3) includes "collect" and "disseminate." The application of this provision to the Waco Administrative Review Group Investigation could impair the Waco Administrative Review Group's ability to collect and disseminate valuable law enforcement information. (A) At the time that the Waco Administrative Review Group collects information, it often lacks sufficient time to determine whether the information is relevant and necessary to accomplish a Waco Administrative Review Group purpose. (B) In many cases, especially in the early stages of investigation, it my be impossible immediately to determine whether information collected is relevant and necessary, and information that initially appears irrelevant and unnecessary often may, upon further evaluation or upon collation with information developed subsequently, prove particularly relevant to a law enforcement program, establish a critical fact in a chain of events, or reveal other investigative leads or sources. (C) Not all violations of law discovered by the Waco Administrative Review Group fall within the investigative jurisdiction of the Department of the Treasury. To promote effective law enforcement, the Waco Administrative Review Group will have to disclose such violations to other law enforcement agencies, including state, other federal agencies, local and foreign agencies, that have jurisdiction over the offenses to which the information relates. Otherwise, the Waco Administrative Review Group might be placed in the position of having to ignore information relating to violations of law not within the jurisdiction of the Department of the Treasury when that information comes to the Waco Administrative Review Group's attention during the collation and analysis of information in its records. (D) In order to effectively fulfill its assigned functions, the Waco Administrative Review Group must retain and maintain divergent and diverse information to follow leads, tips, allegations and rumors to an investigative conclusion. (8) 5 U.S.C. 552a(e)(2) requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. The application of this provision to the Waco Administrative Review Group Investigation would impair the Waco Administrative Review Group's ability to collate, analyze, and disseminate investigative, intelligence, and enforcement information. (A) Most information collected about an individual under criminal or administrative investigation is obtained from third parties, such as witnesses and informants. It is usually not feasible to rely upon the subject of the investigation as a source for information regarding his possible criminal activities. (B) An attempt to obtain information from the subject of an investigation will often alert that individual to the existence of a criminal or administrative investigation, thereby affording the individual an opportunity to attempt to conceal his criminal activities so as to avoid apprehension. (C) In certain instances, the subject of a criminal or administrative investigation is not required to supply information to criminal investigators as a matter of legal duty. (D) During criminal or administrative investigations it is often a matter of sound investigative procedure to obtain information from a variety of sources to verify information already obtained. (9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual whom it asks to supply information, on the form that it uses to collect the information or on a separate form that the individual can retain, of the agency's authority for soliciting the information; whether disclosure of information is voluntary or mandatory; the principal purposes for which the agency will use the information; the routine uses that may be made of the information; and the effects on the individual of not providing all or part of the information. The WACO Administrative Review Group Investigation should be exempted from this provision to avoid impairing the Waco Administrative Review Group's ability to collect and collate investigative, intelligence, and enforcement data. (A) Confidential sources often obtain information under circumstances in which it is necessary to keep the true purpose of their actions secret so as not to let the subject of the investigation, or his or her associates know that an investigation is in progress. (B) If it became known that the undercover officer was assisting in an investigation, that officer's physical safety could be endangered through reprisal, and that officer may not be able to continue working on the investigation. (C) Individuals often feel inhibited in talking to a person representing a law enforcement agency but are willing to talk to A confidential source or undercover officer whom they believe not to be involved in law enforcement activities. (D) Providing A confidential source of information with written evidence that he or she was a source, AS required by this provision, could increase the likelihood that the source of information would be subject to retaliation by the subject of the investigation. (E) Finally, application of this provision could result in an unwarranted invasion of the personal privacy of the subject of the investigation, particularly where further investigation reveals that the subject was not involved in any criminal activity, or any other activity integral or pertinent to the investigation. (10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records it uses in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination. (A) Since 5 U.S.C. 552a(a)(3) defines "maintain" to include "collect" and "disseminate," application of this provision to the Waco Administrative Review Group would hinder the initial collection of any information that could, not, at the moment of collection, be determined to be accurate, relevant, timely, and complete. Similarly, application of this provision would seriously restrict the Waco Administrative Review Group's ability to disseminate information pertaining to a possible violation of law to law enforcement and regulatory agencies. In collecting information during an investigation, it is often impossible or unfeasible to determine accuracy, relevance, timeliness, or completeness prior to collection of the information. In disseminating information to law enforcement and regulatory agencies, it is often impossible to determine accuracy, relevance, timeliness, or completeness prior to dissemination, because the Waco Administrative Review Group may not have the expertise with which to make such determinations. (B) Information that may initially appear inaccurate, irrelevant, untimely, or incomplete may, when collated and analyzed with other available information, prove not to be so as an investigation progresses. In addition, application of this provision could seriously impede investigators and intelligence analysts in the exercise of their judgment in reporting results obtained during the investigation. (11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to serve notice-on an individual when the agency makes any record on the individual available to any person under compulsory legal process, when such process becomes a matter of public record. The Waco Administrative Review Group should be exempted from this provision to avoid revealing investigative techniques and procedures outlined in those records and to prevent revelations of the existence of an ongoing investigation where there is need to keep the existence of the investigation secret. (12) 5 U.S.C. 552a(g) provides for civil remedies to an individual when an agency wrongfully refuses to amend a record or to review a request for amendment, when an agency wrongfully refuses to grant access to a record, when an agency fails to maintain accurate, relevant, timely, and complete records which are used to make a determination adverse to the individual, and when an agency fails to comply with any other provision of 5 U.S.C. 552a so as to adversely affect the individual. The Waco Administrative Review Group should be exempted from this provision to the extent that the civil remedies may relate to provisions of 5 U.S.C. 552a from which these rules propose to exempt the Waco Administrative Review Group Investigation, since there should be no civil remedies for failure to comply with provisions from which the Waco Administrative Review Group is exempted. Exemption from this provision will also protect the Waco Administrative Review Group from baseless civil court actions that might hamper} its ability to collate, analyze, and disseminate investigative, intelligence, and law enforcement data. (f) Exempt information included in another system. Any information from a system of records for which an exemption is claimed under 5 U.S.C. 552a (j) or (k) which is also included in another system of records retains the same exempt status such information has in the system for which such exemption is claimed. Comments Consideration will be given to any written comments timely submitted to the Office of Enforcement. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), =A41.4, Treasury Department Regulations (31 CFR 1.4), l03.11(b), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Departmental Disclosure Office, Department of the Treasury, 1500 Pennsylvania Ave., NW., room 1054, Washington, DC. After consideration of he comments received, notice will be given concerning the exempt status of this system of records. If the Office of Enforcement finally exempts as herein proposed, a final rule amending 31 CFR 1.36 will be published. . Dated: July 29,1993. Deborah M. Witchey, Acting Assistant Secretary (Management). Dated: July 28, 1993. Ronald K. Noble, Assistant Secretary for Enforcement. [FR Doc. 93-19692 Filed 8-13-93; 8:45 am] BILLING CODE 4810-25-M - 0 - Full text transcription of the Federal Register / Vol. 58, No. 156 Monday, August 16, 1993 / Proposed Rules Transcribed and proof read by Richard Ginn 12 Sept 93 Transcriber's note: All citations are accurate and all numerals are accura= te,=20 there may be minor errors in spelling. The format of this transcription=20 matches the Federal Register text exactly, paragraph and line length are=20 unchanged. Caveat: This text should not substitute for first-hand verification by=20 investigative journalists, but is accurate as far as this transcriber is=20 concerned. - 30 - ------------------------------------------------------------------------- To find out more about the anon service, send mail to help@anon.penet.fi. Due to the double-blind, any mail replies to this message will be anonymized, and an anonymous id will be allocated automatically. You have been warned. 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