Advanced Criminal Investigations and Intelligence Operations

by Unknown

or his representative. The administrative authority shall take

  the corrective action that the Special Counsel recommends.

  (G) In the event of noncompliance with the order of the court,

  the district court may punish for contempt the responsi-

  ble employee, and in the case of a uniformed service, the

  responsible member.

  Appendix D: Consumer and Credit Data Privacy Laws

  383

  (5) Each agency having more than one member shall maintain and

  make available for public inspection a record of the final votes of

  each member in every agency proceeding.

  (6)

  (A) Each agency, upon any request for records made under para-

  graph (1), (2), or (3) of this subsection, shall—

  (i) determine within ten days twenty days (excepting

  Saturdays, Sundays, and legal public holidays) after

  the receipt of any such request whether to comply with

  such request and shall immediately notify the person

  making such request of such determination and the

  reasons therefore, and of the right of such person to

  appeal to the head of the agency any adverse determi-

  nation; and

  (ii) make a determination with respect to any appeal

  within twenty days (excepting Saturdays, Sundays, and

  legal public holidays) after the receipt of such appeal.

  If on appeal the denial of the request for records is in

  whole or in part upheld, the agency shall notify the per-

  son making such request of the provisions for judicial

  review of that determination under paragraph (4) of

  this subsection.

  (B) In unusual circumstances as specified in this subparagraph,

  the time limits prescribed in either clause (i) or clause (ii)

  of subparagraph (A) may be extended by written notice to

  the person making such request setting forth the reasons

  for such extension and the date on which a determination is

  expected to be dispatched. No such notice shall specify a date

  that would result in an extension for more than ten work-

  ing days. As used in this subparagraph, “unusual circum-

  stances” means, but only to the extent reasonably necessary

  to the proper processing of the particular request—

  (i) the need to search for and collect the requested records

  from field facilities or other establishments that are sep-

  arate from the office processing the request;

  (ii) the need to search for, collect, and appropriately exam-

  ine a voluminous amount of separate and distinct

  records which are demanded in a single request; or

  (iii) the need for consultation, which shall be conducted

  with all practicable speed, with another agency having a

  substantial interest in the determination of the request

  or among two or more components of the agency hav-

  ing substantial subject matter interest therein.

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  Appendix D: Consumer and Credit Data Privacy Laws

  (B)

  (i) In unusual circumstances as specified in this sub-

  paragraph, the time limits prescribed in either clause

  (i) or clause (ii) of subparagraph (A) may be extended

  by written notice to the person making such request

  setting forth the unusual circumstances for such

  extension and the date on which a determination is

  expected to be dispatched. No such notice shall spec-

  ify a date that would result in an extension for more

  than ten working days, except as provided in clause

  (ii) of this subparagraph.

  (ii) With respect to a request for which a written notice

  under clause (i) extends the time limits prescribed

  under clause (i) of subparagraph (A), the agency shall

  notify the person making the request if the request

  cannot be processed within the time limit specified in

  that clause and shall provide the person an opportu-

  nity to limit the scope of the request so that it may be

  processed within that time limit or an opportunity to

  arrange with the agency an alternative time frame for

  processing the request or a modified request. Refusal

  by the person to reasonably modify the request or

  arrange such an alternative time frame shall be con-

  sidered as a factor in determining whether exceptional

  circumstances exist for purposes of subparagraph (C).

  (iii) As used in this subparagraph, “unusual circum-

  stances” means, but only to the extent reasonably

  necessary to the proper processing of the particular

  requests—

  (I) the need to search for and collect the requested

  records from field facilities or other establish-

  ments that are separate from the office process-

  ing the request;

  (II) the need to search for, collect, and appropri-

  ately examine a voluminous amount of sepa-

  rate and distinct records which are demanded

  in a single request; or

  (III) the need for consultation, which shall be con-

  ducted with all practicable speed, with another

  agency having a substantial interest in the

  determination of the request or among two or

  more components of the agency having sub-

  stantial subject matter interest therein.

  Appendix D: Consumer and Credit Data Privacy Laws

  385

  (iv) Each agency may promulgate regulations, pursuant

  to notice and receipt of public comment, provid-

  ing for the aggregation of certain requests by the

  same requestor, or by a group of requestors acting

  in concert, if the agency reasonably believes that

  such requests actually constitute a single request,

  which would otherwise satisfy the unusual circum-

  stances specified in this subparagraph, and the

  requests involve clearly related matters. Multiple

  requests involving unrelated matters shall not be

  aggregated.

  (C)

  (i) Any person making a request to any agency for

  records under paragraph (1), (2), or (3) of this subsec-

  tion shall be deemed to have exhausted his admin-

  istrative remedies with respect to such request if

  the agency fails to comply with the applicable time

  limit provisions of this paragraph. If the Government

  can show exceptional circumstances exist and that

  the agency is exercising due diligence in respond-

  ing to the request, the court may retain jurisdiction

  and allow the agency additional time to complete its

  review of the records. Upon any determination by

  an agency to comply with a request for records, the

  records shall be made promptly available to such per-

  son making such request. Any notification of denial

  of any request for records under this subsection shall

  set forth the names and titles or positions of each per-

  son responsible for the denial of such request.

  (ii) For purposes of this subparagraph, the term “excep-

  tional circumstances” does not include a delay

  that results from a predictable agency workload of

  requests under this section, unless the agency dem-

  onstrates reasonable progress in reducing its backlog

  of pending requ
ests.

  (iii) Refusal by a person to reasonably modify the scope

  of a request or arrange an alternative time frame for

  processing the request (or a modified request) under

  clause (ii) after being given an opportunity to do so

  by the agency to whom the person made the request

  shall be considered as a factor in determining whether

  exceptional circumstances exist for purposes of this

  subparagraph.

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  Appendix D: Consumer and Credit Data Privacy Laws

  (D)

  (i) Each agency may promulgate regulations, pursuant to

  notice and receipt of public comment, providing for

  multitrack processing of requests for records based

  on the amount of work or time (or both) involved in

  processing requests.

  (ii) Regulations under this subparagraph may provide a per-

  son making a request that does not qualify for the fastest

  multitrack processing an opportunity to limit the scope

  of the request in order to qualify for faster processing.

  (iii) This subparagraph shall not be considered to affect

  the requirement under subparagraph (C) to exercise

  due diligence.

  (E)

  (i) Each agency shall promulgate regulations, pursuant

  to notice and receipt of public comment, providing

  for expedited processing of requests for records—

  (I) in cases in which the person requesting the

  records demonstrates a compelling need; and

  (II) in other cases determined by the agency.

  (ii) Notwithstanding clause (i), regulations under this

  subparagraph must ensure—

  (I) that a determination of whether to provide

  expedited processing shall be made, and notice

  of the determination shall be provided to the

  person making the request, within 10 days after

  the date of the request; and

  (II) expeditious consideration of administrative

  appeals of such determinations of whether to

  provide expedited processing.

  (iii) An agency shall process as soon as practicable any

  request for records to which the agency has granted

  expedited processing under this subparagraph.

  Agency action to deny or affirm denial of a request

  for expedited processing pursuant to this subpara-

  graph, and failure by an agency to respond in a timely

  manner to such a request shall be subject to judicial

  review under paragraph (4), except that the judicial

  review shall be based on the record before the agency

  at the time of the determination.

  (iv) A district court of the United States shall not have

  jurisdiction to review an agency denial of expedited

  Appendix D: Consumer and Credit Data Privacy Laws

  387

  processing of a request for records after the agency

  has provided a complete response to the request.

  (v) For purposes of this subparagraph, the term “com-

  pelling need” means—

  (I) that a failure to obtain requested records on an

  expedited basis under this paragraph could rea-

  sonably be expected to pose an imminent threat

  to the life or physical safety of an individual; or

  (II) with respect to a request made by a person pri-

  marily engaged in disseminating information,

  urgency to inform the public concerning actual

  or alleged Federal Government activity.

  (vi) A demonstration of a compelling need by a person

  making a request for expedited processing shall be

  made by a statement certified by such person to be

  true and correct to the best of such person’s knowl-

  edge and belief.

  (F) In denying a request for records, in whole or in part, an

  agency shall make a reasonable effort to estimate the vol-

  ume of any requested matter the provision of which is

  denied, and shall provide any such estimate to the person

  making the request, unless providing such estimate would

  harm an interest protected by the exemption in subsec-

  tion (b) pursuant to which the denial is made.

  (b) This section does not apply to matters that are—

  (1) (A) specifically authorized under criteria established by an

  Executive order to be kept secret in the interest of national

  defense or foreign policy and (B) are in fact properly classified

  pursuant to such Executive order;

  (2) related solely to the internal personnel rules and practices of an

  agency;

  (3) specifically exempted from disclosure by statute (other than sec-

  tion 552b of this title), provided that such statute (A) requires

  that the matters be withheld from the public in such a manner as

  to leave no discretion on the issue, or (B) establishes particular

  criteria for withholding or refers to particular types of matters to

  be withheld;

  (4) trade secrets and commercial or financial information obtained

  from a person and privileged or confidential;

  (5) inter-agency or intra-agency memorandums or letters which

  would not be available by law to a party other than an agency in

  litigation with the agency;

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  Appendix D: Consumer and Credit Data Privacy Laws

  (6) personnel and medical files and similar files the disclosure of

  which would constitute a clearly unwarranted invasion of per-

  sonal privacy;

  (7) records or information compiled for law enforcement purposes,

  but only to the extent that the production of such law enforce-

  ment records or information (A) could reasonably be expected

  to interfere with enforcement proceedings, (B) would deprive a

  person of a right to a fair trial or an impartial adjudication, (C)

  could reasonably be expected to constitute an unwarranted inva-

  sion of personal privacy, (D) could reasonably be expected to dis-

  close the identity of a confidential source, including a State, local,

  or foreign agency or authority or any private institution which

  furnished information on a confidential basis, and, in the case

  of a record or information compiled by a criminal law enforce-

  ment authority in the course of a criminal investigation or by an

  agency conducting a lawful national security intelligence inves-

  tigation, information furnished by a confidential source, (E)

  would disclose techniques and procedures for law enforcement

  investigations or prosecutions, or would disclose guidelines for

  law enforcement investigations or prosecutions if such disclosure

  could reasonably be expected to risk circumvention of the law, or

  (F) could reasonably be expected to endanger the life or physical

  safety of any individual;

  (8) contained in or related to examination, operating, or condition

  reports prepared by, on behalf of, or for the use of an agency

  responsible for the regulation or supervision of financial institu-

  tions; or

  (9) geological and geophysical information and data, including

  maps, concerning wells.

  Any reasonably segregable portion of a record shall be provided

  to any person requesting such record after deletion of the por-

  tions which are exempt under this subsec
tion. The amount of

  information deleted shall be indicated on the released portion

  of the record, unless including that indication would harm an

  interest protected by the exemption in this subsection under

  which the deletion is made. If technically feasible, the amount

  of the information deleted shall be indicated at the place in the

  record where such deletion is made.

  (c)

  (1) Whenever a request is made which involves access to records

  described in subsection (b)(7)(A) and—

  (A) the investigation or proceeding involves a possible violation

  of criminal law; and

  Appendix D: Consumer and Credit Data Privacy Laws

  389

  (B) there is reason to believe that (i) the subject of the investi-

  gation or proceeding is not aware of its pendency, and (ii)

  disclosure of the existence of the records could reasonably

  be expected to interfere with enforcement proceedings, the

  agency may, during only such time as that circumstance

  continues, treat the records as not subject to the require-

  ments of this section.

  (2) Whenever informant records maintained by a criminal law

  enforcement agency under an informant’s name or personal

  identifier are requested by a third party according to the

  informant’s name or personal identifier, the agency may treat

  the records as not subject to the requirements of this sec-

  tion unless the informant’s status as an informant has been

  officially confirmed.

  (3) Whenever a request is made which involves access to records

  maintained by the Federal Bureau of Investigation pertaining

  to foreign intelligence or counterintelligence, or international

  terrorism, and the existence of the records is classified infor-

  mation as provided in subsection (b)(1), the Bureau may, as

  long as the existence of the records remains classified infor-