Proposed Rule2021-14995
Privacy Act of 1974; Implementation
Primary source
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Published
July 23, 2021
Issuing agencies
Justice Department
Abstract
On July 14, 2021, the Office of Legal Policy (OLP), a component within the United States Department of Justice (DOJ or Department), published in the Federal Register a notice of a modified system of records for the OLP system of records, Judicial Nominations Files, JUSTICE/OLP-002. In this notice of proposed rulemaking, OLP proposes to modify the exemptions from certain provisions of the Privacy Act claimed for this system of records, as well as other administrative modifications. For the reasons provided below, the Department proposes to amend its Privacy Act regulations. Public comments are invited.
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<title>Federal Register, Volume 86 Issue 139 (Friday, July 23, 2021)</title>
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[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Proposed Rules]
[Pages 38955-38958]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14995]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 005-2020]
Privacy Act of 1974; Implementation
AGENCY: Office of Legal Policy, United States Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: On July 14, 2021, the Office of Legal Policy (OLP), a
component within the United States Department of Justice (DOJ or
Department), published in the Federal Register a notice of a modified
system of records for the OLP system of records, Judicial Nominations
Files, JUSTICE/OLP-002. In this notice of proposed rulemaking, OLP
proposes to modify the exemptions from certain
[[Page 38956]]
provisions of the Privacy Act claimed for this system of records, as
well as other administrative modifications. For the reasons provided
below, the Department proposes to amend its Privacy Act regulations.
Public comments are invited.
DATES: Comments must be received by August 23, 2021.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#69191b001f080a10470a060419050008070a0c291c1a0d0603470e061f"><span class="__cf_email__" data-cfemail="88f8fae1fee9ebf1a6ebe7e5f8e4e1e9e6ebedc8fdfbece7e2a6efe7fe">[email protected]</span></a>. To ensure proper
handling, please reference the CPCLO Order No. in the subject line of
the message.
<bullet> Fax: 202-307-0693.
<bullet> Mail: United States Department of Justice, Office of
Privacy and Civil Liberties, ATTN: Privacy Analyst, Two Constitution
Square (2Con), 145 N Street NE, Suite 8W.300, Washington, DC 20530. All
comments sent via regular or express mail will be considered timely if
postmarked on the day the comment period closes. To ensure proper
handling, please reference the CPCLO Order No. in your correspondence.
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
When submitting comments electronically, you must include the CPCLO
Order No. in the subject box. Please note that the Department is
requesting that electronic comments be submitted before midnight
Eastern Daylight Savings Time on the day the comment period closes
because <a href="http://www.regulations.gov">http://www.regulations.gov</a> terminates the public's ability to
submit comments at that time. Commenters in time zones other than
Eastern Time may want to consider this to ensure that their electronic
comments are received.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and in the Department's
public docket. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter. If you want to submit personally identifying information
(such as your name, address, etc.) as part of your comment, but do not
want it to be posted online or made available in the public docket, you
must include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the
first paragraph of your comment. You must also place all personally
identifying information that you do not want posted online or made
available in the public docket in the first paragraph of your comment
and identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personally identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, may be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph, below.
FOR FURTHER INFORMATION CONTACT: Matrina Matthews, Executive Officer,
Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania
Avenue NW, Room 4234, Washington, DC 20530-0001; telephone: (202) 616-
0040; email: <a href="/cdn-cgi/l/email-protection#deb3bfaaacb7b0bff0b3bfaaaab6bba9ad9eabadbab1b4f0b9b1a8"><span class="__cf_email__" data-cfemail="7c111d080e15121d52111d080814190b0f3c090f181316521b130a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The Assistant Attorney General, OLP, is
responsible for assisting the Attorney General in, inter alia, advising
and assisting in the selection and appointment of Federal judges. OLP
is comprised of attorneys and other DOJ personnel responsible for
assisting the Assistant Attorney General in executing the
responsibilities of the office. DOJ established the recently renamed
system of records, ``Judicial Nominations Files,'' JUSTICE/OLP-002, to
maintain records primarily needed to assist the Assistant Attorney
General, OLP, and the personnel within OLP, in assessing candidates for
potential nomination to be a Federal judge and securing a judicial
nominee's confirmation and appointment.
OLP updated the system of records notice for JUSTICE/OLP-002, 86 FR
37192 (July 14, 2021), to account for a number of organizational,
procedural, and technological changes that have modernized the
information and information system used to collect, maintain, and
disseminate these records. The Department determined that these updates
to the system of records notice were necessary to accurately describe
the Department's organizational, procedural, and technological changes.
As part of the existing process for reviewing an individual's
potential nomination to a Federal judgeship or other related Executive
Branch position, and securing confirmation, individuals agree to a
number of evaluations, including but not limited to, a full background
investigation. As disclosed in JUSTICE/OLP-002, OLP will maintain
records relating to these investigations in its system of records.
Given the law enforcement and national security information maintained
in these records, as well as the examination materials used to assess a
potential nominee, the Department has determined that it is appropriate
to claim additional exemptions from certain Privacy Act provisions for
these records.
Specifically, certain classified information may be maintained in
JUSTICE/OLP-002, including but not limited to, records related to a
potential nominee that maintained a previous or current position with
access to classified information and/or assigned to a national security
sensitive position. Given the law enforcement information that may be
discovered as part of the nomination investigation and/or evaluations,
certain investigatory materials for law enforcement purposes may be
maintained in this system of records. Investigatory material may also
be used in determining suitability, eligibility, or qualification
decisions, and such information may require exemption to the extent
that the disclosure of such material would reveal the identity of a
source who furnished information to the Department under an express
promise that the identity of the source would be held in confidence.
The Department also utilizes various examination materials to determine
individual qualifications for appointment, which if disclosed, could
compromise the objectivity or fairness of the Department's examination
and vetting process.
Finally, as an administrative matter, the Department proposes to
modify 28 CFR 16.73 as a result of the rescindment of JUSTICE/OLP-001,
``Freedom of Information and Privacy Appeals Index,'' and JUSTICE/OLP-
004, ``Declassification Review System.'' See 66 FR 29994 (June 6,
2001). Specifically, the administrative edits proposed in this rule
would: (1) Remove the current paragraphs (g), and (h); and (2) revise
28 CFR 16.73(a), (b), (c), and (d), to account for OLP's two remaining
systems of records that claim Privacy Act exemptions--JUSTICE/OLP-002
and the
[[Page 38957]]
``General Files System of the Office of Legal Policy,'' JUSTICE/OLP-
003.
Executive Orders 12866 and 13563-Regulatory Review
In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed
action is subject to formal rulemaking procedures by giving interested
persons an opportunity to participate in the rulemaking process
``through submission of written data, views, or arguments,'' pursuant
to 5 U.S.C. 553. The Department has determined that this proposed rule
is not a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly this proposed rule has not been reviewed
by the Office of Information and Regulatory Affairs within the Office
of Management and Budget pursuant to Executive Order 12866.
Regulatory Flexibility Act
This proposed rule will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E-
Congressional Review Act)
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, 5 U.S.C. 801 et seq., requires the Department to comply with
small entity requests for information and advice about compliance with
statutes and regulations within the Department's jurisdiction. Any
small entity that has a question regarding this document may contact
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph,
above. Persons can obtain further information regarding SBREFA on the
Small Business Administration's web page at <a href="https://www.sba.gov/advocacy">https://www.sba.gov/advocacy</a>. This proposed rule is not a major rule as defined by 5 U.S.C.
804 of the Congressional Review Act.
Executive Order 13132--Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Executive Order 12988--Civil Justice Reform
This proposed regulation meets the applicable standards set forth
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This proposed rule will have no implications for Indian Tribal
governments. More specifically, it does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175 do
not apply.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100,000,000, as adjusted for inflation, or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
the Department to consider the impact of paperwork and other
information collection burdens imposed on the public. There are no
current or new information collection requirements associated with this
proposed rule.
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedures, Courts, Freedom of
Information, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008,
the Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
Subpart E--Exemption of Records Systems Under the Privacy Act
0
2. Revise Sec. 16.73 to read as follows:
Sec. 16.73 Exemption of Office of Legal Policy Systems.
(a) The Judicial Nominations Files (JUSTICE/OLP-002) system of
records is exempt from subsections (c)(3); (d); (e)(1), (e)(4)(G), (H),
and (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1),
(k)(2), (k)(5), and (k)(6). These exemptions apply only to the extent
that information in this system of records is subject to an exemption,
pursuant to 5 U.S.C. 552a(k). Where compliance would not appear to
interfere with or adversely affect OLP's processes, OLP may waive the
applicable exemption.
(b) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because release of
disclosure accountings could alert the subject of an investigation and/
or evaluation to the extent of an investigation and/or evaluation. Such
a disclosure could also reveal investigative interests by not only OLP,
but also other recipient agencies or components. Since release of such
information to the subjects of an investigation would provide them with
significant information concerning the nature of the investigation and/
or evaluation, release could result in the destruction of documentary
evidence, improper influencing of witnesses, endangerment of the
physical safety of confidential sources, witnesses, and law enforcement
personnel, the fabrication of testimony, and other activities that
could impede or compromise the investigation and/or evaluation. In
addition, providing the individual an accounting for each disclosure
could result in the release of properly classified information which
would compromise the national defense or disrupt foreign policy.
(2) From subsection (d), the access and amendment provisions,
because many persons are contacted who, without an assurance of
anonymity, refuse to provide information concerning the subject of an
[[Page 38958]]
investigation and/or evaluation. Access could reveal the identity of
the source of the information and constitute a breach of the promised
confidentiality on the part of the Department. Such breaches ultimately
would restrict the free flow of information vital to the determination
of a candidate's qualifications and suitability, among other
determinations. The Department also relies on certain examination
materials to assess and evaluate an individual's qualifications for an
applicable position. Access and/or amendment to such material could
reveal information about the examination and vetting process and could
compromise its objectivity and/or fairness. Access and/or amendment to
such material could also inappropriately advantage future candidates
with knowledge of the examination materials. Finally, providing the
individual access or amendment rights could result in the release of
properly classified information which would compromise the national
defense or disrupt foreign policy.
(3) From subsection (e)(1), because in the collection of
information for investigative and evaluative purposes, it is impossible
to determine in advance what exact information may be of assistance in
determining the qualifications and suitability of the subject of an
investigation and/or evaluation. Information which may seem irrelevant,
when combined with other seemingly irrelevant information, can on
occasion provide a composite picture of a candidate which assists in
determining whether that candidate should be nominated for appointment.
Relevance and necessity are questions of judgment and timing, and it is
only after the information is evaluated that the relevance and
necessity of such information can be established. In interviewing
individuals or obtaining other forms of information during OLP
processes, information may be supplied to OLP which relates to matters
incidental to the primary purpose of OLP's processes, but also relates
to matters under the investigative jurisdiction of another agency. Such
information cannot readily be segregated.
(4) From subsections (e)(4)(G) and (H), and subsection (f), because
this system is exempt from the access and amendment provisions of
subsection (d).
(c) The General Files System of the Office of Legal Policy
(JUSTICE/OLP-003) system of records is exempt from subsections
552a(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), and
(e)(5); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
(k)(1), (k)(2) and (k)(5). These exemptions apply only to the extent
that information in this system is subject to exemption pursuant to 5
U.S.C. 552(j), (k). Where compliance would not appear to interfere with
or adversely affect OLP's processes, the applicable exemption may be
waived by OLP.
(d) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Department as
well as the recipient agency. This would permit record subjects to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid inquiries or apprehension by law
enforcement personnel.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) because the records contained in this
system relate to official Federal investigations. Individual access to
these records might compromise ongoing investigations, reveal
confidential informants, or constitute unwarranted invasions of the
personal privacy of third parties who are involved in a certain
investigation. Amendment of records would interfere with ongoing
criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(4) From subsections (e)(1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced, the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
since it may aid in establishing patterns of criminal activity.
Moreover, it would impede the specific investigation process if it were
necessary to assure the relevance, accuracy, timeliness and
completeness of all information obtained.
(5) From subsections (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations and duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4)(G) and (H) because this system is
exempt from the access provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
(8) From subsection (g) because this system is exempt from the
access and amendment provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
Dated: July 1, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2021-14995 Filed 7-22-21; 8:45 am]
BILLING CODE 4410-CW-P
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