34 CFR Part 5b
Privacy Act Regulations
ACTION: Final Regulations.
Secretary of Education issues final regulations under the Privacy Act of 1974 (Act). This amendment permits the Office for Civil Rights (OCR) to exempt the "Complaint Files and Log" system of records from certain provisions under the Act, including the access provisions and some notice provisions. Currently, a complainant has access to the files compiled during the investigation of his or her civil rights complaint against a recipient of Federal financial assistance. The amendment encourages recipients to furnish information essential to the investigation, since this information will be exempt from disclosure under the Act.
EFFECTIVE DATE: These regulations are expected to take effect either 45 days after publication in the Federal Register or later if the Congress takes certain adjournments. If you want to know the effective date of these regulations, call or write the Department of Education contact person.
FORFURTHER INFORMATION CONTACT: William A. Delaney III, Litigation, Enforcement and Policy Service, Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW., 20202. Telephone: (202) 245-0912, "Voice-TDE" 472-4422.
SUPPLEMENTARY INFORMATION: The notice of proposed rulemaking with invitation to comment was published in the Federal Register in 47 FR 21096-7 (May 17,1982). The public was given 30 days to comment on this regulation. The period for comment was extended to August 13, 1982, 47 FR 30498 (July 14, 1982).
These regulations allow OCR to deny access to the complaint file and log by individuals who file complaints, and to delete portions of the notices of systems of records published in the Federal Register. In addition, OCR would not be required to account for disclosure of an individual's record to that individual. These regulations will aid negotiations between recipients and OCR in resolving civil rights issues. Disclosure of an investigative file to a complainant pursuant to the Act has on occasion disrupted negotiations. Also, the regulations will encourage recipients to more readily furnish information to OCR, since that information will not be subject to disclosure under the Act. Comments were received from several State and local governmental entities, private individuals, and advocacy groups. The concern most often expressed was that the regulations were overbroad, and that Congress did not intend the exemption codified at 5 U.S.C. 552a(k)(2) ((k)(2) exemption) to apply to civil rights investigatory files. The comments have been reviewed and appropriate responses have been prepared.
Summary of Comments and Responses
A summary of the substantive comments and the responses of the Secretary follows:
Comment: A school district commented that it opposed the regulations as the "accused" should have a right to respond to charges made against it, and that the exemption will delay the resolution of complaints.
Response: No change has been made. The exemption only affects the rights of individuals under the Act. School districts do not have any rights under the Privacy Act (5 U.S.C. 552a(a)(2); 34 CFR 5b.1(e)). The purpose of the regulations is to expedite civil rights investigations, not to delay them. If a school district is found in violation of the civil rights laws, it is notified through a letter of findings.
Comment: One commenter opposed adoption of the regulations on the grounds that it would violate the court order entered in Adams v. Bell, C.A. No. 3095-70 (D.D.C., filed Dec. 29, 1977).
Response: The Adams order requires that a complainant be interviewed during the course of an investigation. Further, if OCR anticipates making a finding adverse to the complainant, then OCR must notify the complainant to that effect. In addition, OCR must notify the complainant of the evidence supporting the adverse finding, either by actually showing the evidence to the complainant or by providing a written or oral summary of the evidence. Then, the complainant will be provided an opportunity to respond. See Adams v. Bell, supra, para. 10. The Adams order does not require that the entire contents of an investigatory file be turned over to a complainant upon request. Thus, the regulations do not violate the Adams order OCR will continue to carry out its obligations under Adams.
Comment: Some commenters stated that the justification for the regulations is insufficient as written in the preamble to the NPRM.
Response: No change has been made. The Secretary feels that the reasons set forth in the NPRM are ample justification for the regulations. As stated in the NPRM, OCR's investigatory efforts, in certain instances, have been impeded by recipients' reluctance to reveal information where providing such information compromises the legitimate privacy interests of a source. Additionally, the untimely release of information may jeopardize delicate and sometimes lengthy negotiations that would otherwise result in the successful resolution of complaints. The regulations reflects the Secretary's carefully considered solution to problems experienced in the course of investigating civil rights complaints. It is intended to enhance OCR's ability to conduct investigations and thus to ensure compliance with civil rights laws.
Comment: Some commenters stated that the exemption was unnecessary, since the Department has the power to compel a recipient to respond to an information request pursuant to an investigation. One commenter also stated, in this vein, that an administrative proceeding to compel disclosure of information is the more appropriate method of resolving the problem.
Response: No change has been made. While it is true that a refusal by a recipient to supply information upon request is grounds for an administrative proceeding under 34 CFR 100.6(c), it has been the experience of OCR that these proceedings are time-consuming and may delay the investigation of the merits of a complaint for years while the access issue is being litigated. In that light, the Secretary feels that the regulations are appropriate and will encourage cooperation of recipients in providing the information necessary for investigating complaints, and thereby avoid protracted litigation which might substantially delay resolution of complaints.
Comment: Several commenters stated that the exemption of the complaint files and log is overbroad, and suggested that the more appropriate method is to disclose records on a case-by-case basis.
Response: No change has been made. OCR has considered this type of procedure, but has rejected it as impractical. Further, it is not required under the Act.
Comment: An attorney who has represented school districts commented that the regulations may impede discovery, and may lead to litigation.
Response: No change has been made. As already stated, the Privacy Act does not apply to school districts. Consequently, promulgating the regulations will not alter any right or privilege of a school district. However, the Secretary feels that the exemption will encourage the school districts to provide information pursuant to a civil rights investigation, and thereby diminish the possibility of litigation.
Comment: One commenter stated that OCR should maintain a list of persons to whom the investigative file has been disclosed.
Response: No change has been made. The Department is required by the Act to maintain an accounting of disclosures made under most of the exceptions to the Act, except 5 U.S.C. 552a(b) (1) and (2). Under 5 U.S.C. 552a(c)(3), the Department must make the accounting of disclosures under each exception, other than exception (b)(7), available to the subject individual. (See 34 CFR 5b.9(c)). The Department is still required to keep the accountings. The change made by this amendment only affects a subject individual's access to the accountings.
Comment: Several commenters have expressed concern that the regulations will exclude complainants from the investigatory process, in that they will be precluded from "overseeing" the case, and from the opportunity to rebut incorrect information or otherwise be apprised of the course of the investigation.
Response: No change has been made. As already stated, the Adams order requires that the complainant be informed at appropriate stages of the investigation. Under Adams, a complainant is informed of, and given an opportunity to rebut, any evidence that may lead to an adverse finding. The involvement of the complainant in the investigatory process will not be diminished by the regulations.
Comment: One commenter expressed the fear that the regulations may hinder disabled people from securing jobs, education, or training.
Response: No change has been made. The Secretary feels that the regulations will have the opposite effect, since it will facilitate civil rights investigations.
Comment: One State agency agreed with the regulations, noting that the nature of OCR's investigations sometimes require that the complainant not be given access to the complaint file, and observes that the regulations will enhance informal resolution of complaints.
Response: No change has been made. The Secretary concurs with the comment.
Comment: One commenter suggested that further study of the problem be made, with a view toward finding remedies other than utilizing the (k)(2) exemption.
Response: No change has been made. The Secretary feels that the problem has been sufficiently studied, and that the regulations are within the intent of the Act, and are the most appropriate and practical remedy.
Comment: One commenter stated that the (k)(2) exemption ought to be read in light of another exemption in the Act precluding disclosure of information compiled in anticipation of a civil action, 5 U.S.C. 552a(d)(5), and the exemption precluding disclosure of criminal records, 5 U.S.C. 552a(j)(2). The commenter urged that if the (k)(2) exemption is read in light of these two exemptions, then the exemption may only be invoked when access to investigatory files seriously jeopardizes an agency's law enforcement activities.
Response: No change has been made. The Secretary disagrees that the regulations should be limited by the other exemptions suggested by the commenter. The Secretary notes the two exemptions apply to circumstances different than the present regulations. Further, if Congress intended the (k)(2) exemption to be read as urged, it would have so stated in the Act. In any event, the Secretary feels that the need for the regulations has been sufficiently demonstrated, and their implementation is appropriate.
Comment: The most common concern expressed by the commenters was that Congress did not intend the (k)(2) exemption to apply to the investigative files maintained by OCR. One commenter asserted that the purpose of the (k)(2) exemption was to prohibit individuals who were the targets of investigation from being alerted that they were being investigated. Along this line, another commenter stated that Congress did not intend all civil rights files to fall within the purview of the (k)(2) exemption.
Response: No change has been made. The Secretary feels that both the legislative history and the language of the Act support the regulations. In setting forth the basis for the (k)(2) exemption, the legislative history states.
Individual access to certain law enforcement files could impair investigations, particularly those which involve complex or continuing patterns of behavior. H.R. Rep. No. 93-1416, 93 Cong. 2nd Sess., 19 (1974).
The above report cites an example whereby the (k)(2) exemption could be utilized to preclude an individual, who is the subject of an investigation, from obtaining his or her file under the Privacy Act and thus being able to frustrate detection of illegal action or escape prosecution. Some commenters take the position that this is the only time the (k)(2) exemption should be employed. However, the commenter read the example too narrowly. As was stated elsewhere in the legislative history:
The exemptions (allowed from disclosure under the Act) are for three purposes only, national defense, and foreign policy, and certain law enforcement investigative and intelligence matters where access and challenge rights are found to damage the purpose for which the information is collected. S. Rep. No. 93-1183, 93rd Cong. 2nd Sess, reprinted in (1974) U.S. Code Cong., & Ad. News 6916, 6935-36.
The true test is whether disclosure of information contained in investigative files will "damage the purpose for which the information is collected." The Department has demonstrated that disclosure of its investigative files by a complainant has impeded investigations by OCR because recipients were reluctant to disclose information, thus damaging the purpose for which the information is collected. Moreover, a plain reading of 5 U.S.C. 552a(k)(2) does not limit the exemption to the very narrow grounds urged by the commenter. Thus, both the legislative history and the statute support the promulgation of the regulations by the Secretary. Moreover, many other Federal agencies have promulgated regulations similar or identical to the present regulations.
Comment: One commenter stated that the Privacy Act does not give the Department authority to exempt whole systems of files from disclosures under the (k)(2) exemption.
Response: No change has been made. The Act specifically allows the head of any agency to promulgate rules to "exempt any system of records" under the appropriate circumstances outlined by the Act. 5 U.S.C. 552a(k). This language is broad enough to allow the Secretary's exemption permitting the Office for Civil Rights to withhold investigatory materials contained inits complaint files and log system of records.
Comment: A commenter suggested that there was no "compelling need" for the exemption, and that the same end could be achieved by deleting or encoding names or other information, encoding or eliminating confidential documents, or summarizing documents.
Response: No change has been made. The suggested measures, if adopted, would not avoid the application of the Privacy Act. Every record connected to an individual by a personal identifier must be disclosed to that identifying under the Act unless the record falls within an exemption. Moreover, the Secretary must disclose what identifying symbols, numbers, or other identifying particulars the Secretary used in responding to a request under the Act. Consequently, encoding or eliminating documents with personal identifiers from files will not avoid disclosure under the Act. These regulations are the most viable means available for exempting its complaint log and files from disclosure. See 5 U.S.C. 552a(a) (4-5); 34 CFR 5b.1(h,n); Shermco Industries v. Secretary of the Air Force, 452 F. Supp. 306, 315 n. 5 (N.D. Tex. 1978); reversed on other grounds, 613 F 2d 1314 (5th Cir. 1980). The Secretary disagrees that a compelling case for implementing the regulations has not been made.
Executive Order 12291
These regulations have been reviewed in accordance with Executive Order 12291, and are classified as nonmajor because they do not meet the criteria for major regulations established in the order.
Regulatory Flexibility Act Certification
The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. These regulations are administrative and do not affect any small entities.
List of Subjects in 34 CFR Part 5b
Administrative practice and procedure, Civil rights, Privacy, Privacy Act regulations.
A citation of statutory authority is placed in parentheses on the line following the regulations.
(Catalog of Federal Domestic Assistance number does not apply)
Dated: August 22, 1983.
T. H. Bell,
The Secretary amends Part 5b of Title 34 of the Code of Federal Regulations as follows:
1. Section 5b.11 is revised by adding a new paragraph (b)(2)(ii) to read as follows:
§ 5b.11 Exempt systems.
* * * *
(b) * * *
(2) * * *
(ii) Pursuant to subsection (k)(2) of the Act: Complaint Files and Log, Office for Civil Rights.
* * * * *
(5 U.S.C. 552a(k))
[FR Doc. 83-23465 Filed 8-25-83; 8:45 am]
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