PART 1801—PUBLIC RIGHTS UNDER THE PRIVACY ACT OF 1974 Authority: 5 U.S.C. 552a. Source: 64 FR 49884, Sept. 14, 1999, unless otherwise noted. Subpart A—General § 1801.1 Authority and purpose. (a) Authority. (b) Purpose in general. (1) To request notification of whether the National Counterintellingence Center (NACIC) maintains a record concerning them in any non-exempt portion of a system of records or any non-exempt system of records; (2) To request a copy of all non-exempt records or portions of records; (3) To request that any such record be amended or augmented; and (4) To file an administrative appeal to any initial adverse determination to deny access to or amend a record. (c) Other purposes. § 1801.2 Definitions. For purposes of this part, the following terms have the meanings indicated: NACIC Days Control Coordinator Federal agency Interested party Maintain Originator Privacy Act PA Record Requester individual Responsive record Routine use System of records § 1801.3 Contact for general information and requests. For general information on this part, to inquire about the Privacy Act program at NACIC, or to file a Privacy Act request, please direct your communication in writing to the Information and Privacy Coordinator, Executive Secretariat Office, National Counterintelligence Center, 3W01 NHB, Washington, DC 20505. Requests with the required identification statement pursuant to § 1801.13 must be filed in original form by mail. Subsequent communications and any inquiries will be accepted by mail or facsimile at (703) 874-5844 or by telephone at (703) 874-4121. Collect calls cannot be accepted. § 1801.4 Suggestions and complaints. NACIC welcomes suggestions or complaints with regard to its administration of the Privacy Act. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate. Subpart B—Filing Of Privacy Act Requests § 1801.11 Preliminary information. Members of the public shall address all communications to the contact specified at § 1801.3 and clearly delineate the communication as a request under the Privacy Act and this regulation. Requests and administrative appeals on requests, referrals, and coordinations received from members of the public who owe outstanding fees for information services at this or other federal agencies will not be accepted and action on existing requests and appeals will be terminated in such circumstances. § 1801.12 Requirements as to form. (a) In general. (b) For access. Federal Register. (c) For amendment. § 1801.13 Requirements as to identification of requester. (a) In general. (b) Requirement for aliens. (c) Requirement for representatives. (d) Procedure otherwise. § 1801.14 Fees. No fees will be charged for any action under the authority of the Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is or may be processed under the authority of both the Privacy Act and the Freedom of Information Act. Subpart C—Action On Privacy Act Requests § 1801.21 Processing requests for access to or amendment of records. (a) In general. (b) Receipt, recording and tasking. (c) Effect of certain exemptions. (d) Time for response. § 1801.22 Action and determination(s) by originator(s) or any interested party. (a) Initial action for access. (1) Determine whether responsive records exist; (2) Determine whether access must be denied in whole or part and on what legal basis under both Acts in each such case; (3) Approve the disclosure of records for which they are the originator; and (4) Forward to the Coordinator all records approved for release or necessary for coordination with or referral to another originator or interested party as well as the specific determinations with respect to denials (if any). (b) Initial action for amendment. (1) Make the amendment as requested; (2) Write to all other identified persons or agencies to whom the record has been disclosed (if an accounting of the disclosure was made) and inform of the amendment; and (3) Inform the Coordinator of such decisions. (c) Action otherwise on amendment request. (1) Set forth the reasons for refusal; and (2) Inform the Coordinator of such decision and the reasons therefore. (d) Referrals and coordinations. (e) Effect of certain exemptions. § 1801.23 Notification of decision and right of appeal. Within ten (10) days of receipt of responses to all initial taskings and subsequent coordinations (if any), and dispatch of referrals (if any), NACIC will provide disclosable records to the requester. If a determination has been made not to provide access to requested records (in light of specific exemptions) or that no records are found, NACIC shall so inform the requester, identify the denying official, and advise of the right to administrative appeal. Subpart D—Additional Administrative Matters § 1801.31 Special procedures for medical and psychological records. (a) In general. (1) Which records may be sent directly to the requester and (2) Which records should not be sent directly to the requester because of possible medical or psychological harm to the requester or another person. (b) Procedure for records to be sent to physician. (1) To review the documents with the requesting individual, (2) To explain the meaning of the documents, and (3) To offer counseling designed to temper any adverse reaction, NACIC will forward such records to the designated physician. (c) Procedure if physician option not available. § 1801.32 Requests for expedited processing. (a) All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this rule will only be made in circumstances that NACIC deems to be exceptional. In making this determination, NACIC shall consider and must decide in the affirmative on all of the following factors: (1) That there is a genuine need for the records; and (2) That the personal need is exceptional; and (3) That there are no alternative forums for the records sought; and (4) That it is reasonably believed that substantive records relevant to the stated needs may exist and be deemed releasable. (b) In sum, requests shall be considered for expedited processing only when health, humanitarian, or due process considerations involving possible deprivation of life or liberty create circumstances of exceptional urgency and extraordinary need. In accordance with established judicial precedent, requests more properly the scope of requests under the Federal Rules of Civil or Criminal Procedure (or equivalent state rules) will not be granted expedited processing under this or related (e.g., Freedom of Information Act) provisions unless expressly ordered by a federal court of competent jurisdiction. § 1801.33 Allocation of resources; agreed extensions of time. (a) In general. (1) The totality of resources available to the component, (2) The business demands imposed on the component by the Director, NACIC or otherwise by law, (3) The information review and release demands imposed by the Congress or other governmental authority, and (4) The rights of all members of the public under the various information review and disclosure laws. (b) Discharge of Privacy Act responsibilities. (c) Requests for extension of time. Subpart E—Action On Privacy Act Administrative Appeals § 1801.41 Appeal authority. The Director, NACIC will make final NACIC decisions from appeals of initial adverse decisions under the Privacy Act and such other information release decisions made under 32 CFR parts 1800, 1802, and 1803 of this chapter. Matters decided by the Director, NACIC will be deemed a final decision by NACIC. § 1801.42 Right of appeal and appeal procedures. (a) Right of Appeal. (b) Requirements as to time and form. (c) Exceptions. (d) Receipt, recording, and tasking. § 1801.43 Determination(s) by Office Chiefs. Each Office Chief in charge of an office which originated or has an interest in any of the records subject to the appeal, or designee, is a required party to any appeal; other interested parties may become involved through the request of the Coordinator when it is determined that some or all of the information is also within their official cognizance. These parties shall respond in writing to the Coordinator with a finding as to the exempt or non-exempt status of the information including citations to the applicable exemption and/or their agreement or disagreement as to the requested amendment and the reasons therefore. Each response shall be provided expeditiously on a “first-in, first-out” basis taking into account the business requirements of the parties and consistent with the information rights of members of the general public under the various information review and release laws. § 1801.44 Action by appeals authority. (a) Preparation of docket. (b) Decision by the Director, NACIC. § 1801.45 Notification of decision and right of judicial review. (a) In general. (b) For amendment requests. Subpart F—Prohibitions § 1801.51 Limitations on disclosure. No record which is within a system of records shall be disclosed by any means of communication to any individual or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be: (a) To those officers and employees of NACIC which maintains the record who have a need for the record in the performance of their duties; (b) Required under the Freedom of Information Act, 5 U.S.C. 552; (c) For a routine use as defined in § 1801.02(m), as contained in the Privacy Act Issuances Compilation which is published biennially in the Federal Register, (d) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of U.S.C. Title 13; (e) To a recipient who has provided NACIC with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable; (f) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or designee to determine whether the record has such value; (g) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of that agency or instrumentality has made a written request to NACIC specifying the particular information desired and the law enforcement activity for which the record is sought; (h) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual; (i) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee; (j) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office; or (k) To any agency, government instrumentality, or other person or entity pursuant to the order of a court of competent jurisdiction of the United States or constituent states. § 1801.52 Criminal penalties. (a) Unauthorized disclosure. (b) Unauthorized maintenance. (c) Unauthorized requests. Subpart G—Exemptions § 1801.63 Specific exemptions. Pursuant to authority granted in section (k) of the Privacy Act, the Director, NACIC has determined to exempt from section (d) of the Privacy Act those portions and only those portions of all systems of records maintained by NACIC that would consist of, pertain to, or otherwise reveal information that is: (a) Classified pursuant to Executive Order 12958 (or successor or prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1) and 5 U.S.C. 552a(k)(1); (b) Investigatory in nature and compiled for law enforcement purposes, other than material within the scope of section (j)(2) of the Act; provided however, that if an individual is denied any right, privilege, or benefit to which they are otherwise eligible, as a result of the maintenance of such material, then such material shall be provided to that individual except to the extent that the disclosure would reveal the identity of a source who furnished the information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality; (c) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056; (d) Required by statute to be maintained and used solely as statistical records; (e) Investigatory in nature and compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality; (f) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or (g) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the United States Government under an express promise of confidentiality, or, prior to the effective date of this section, under an implied promise of confidentiality.