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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

<end of transcription>

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Full text transcription of the Federal Register / Vol. 58, No. 156
Monday, August 16, 1993 / Proposed Rules

Transcribed and proof read by Richard Ginn <[e-mail]> 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.

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