Rule2021-21340
Privacy Act of 1974; Implementation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 1, 2021
Effective
November 1, 2021
Issuing agencies
Justice Department
Abstract
The United States Department of Justice (DOJ or Department), is finalizing with changes its Privacy Act exemption regulations for the system of records titled, "Judicial Nominations Files," JUSTICE/ OLP-002, which were published as a notice of proposed rulemaking (NPRM) on July 23, 2021. Specifically, the Department's regulations will exempt the records maintained in JUSTICE/OLP-002 from one or more provisions of the Privacy Act.
Full Text
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<title>Federal Register, Volume 86 Issue 188 (Friday, October 1, 2021)</title>
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[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54368-54371]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21340]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 009-2021]
Privacy Act of 1974; Implementation
AGENCY: Office of Legal Policy, United States Department of Justice.
ACTION: Final rule.
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SUMMARY: The United States Department of Justice (DOJ or Department),
is finalizing with changes its Privacy Act exemption regulations for
the system of records titled, ``Judicial Nominations Files,'' JUSTICE/
OLP-002, which were published as a notice of proposed rulemaking (NPRM)
on July 23, 2021. Specifically, the Department's regulations will
exempt the records maintained in JUSTICE/OLP-002 from one or more
provisions of the Privacy Act.
DATES: This final rule is effective November 1, 2021.
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#c7aaa6b3b5aea9a6e9aaa6b3b3afa2b0b487b2b4a3a8ade9a0a8b1"><span class="__cf_email__" data-cfemail="1b767a6f6972757a35767a6f6f737e6c685b6e687f7471357c746d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
On July 14, 2021, the Office of Legal Policy (OLP) published in the
Federal Register a System of Records Notice (SORN) for an OLP system of
records titled, ``Judicial Nominations Files,'' JUSTICE/OLP-002. 86 FR
37192. On July 23, 2021, the Department published
[[Page 54369]]
a notice of proposed rulemaking (NPRM) proposing to exempt records
maintained in JUSTICE/OLP-002 from certain provisions of the Privacy
Act pursuant to 5 U.S.C. 552a(k), and inviting public comment on the
proposed exemptions. 86 FR 38955. The comment period was open through
August 13, 2021, for the SORN and through August 23, 2021, for the
NPRM. The Department received no comments on the proposed rule. After
providing the opportunity for public comment, exemptions necessary to
protect the ability of OLP to do its judicial nomination functions have
been codified in this final rule as proposed in the NPRM.
The exemptions are necessary because 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. Moreover, 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. In addition, 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. Finally, 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.
Response to Public Comments
In its Judicial Nominations Files SORN, published on July 14, 2021,
and its Judicial Nominations Files NPRM, published on July 23, 2021,
the Department invited public comment. The comment period for the SORN
closed on August 13, 2021, and the comment period for the NPRM closed
on August 23, 2021. The Department received no comments. Because no
comments were submitted, and because OLP continues to assert the
rationales in support of the exemptions as stated in the NPRM, the
Department adopts in this final rule the exemptions and rationales
proposed in the NPRM.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation, and Executive Order 13563 ``Improving
Regulation and Regulatory Review'' section 1(b), General Principles of
Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this 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 regulation 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.
Executive Order 13132--Federalism
This regulation 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 rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This 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 regulation 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 regulation 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.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804 of the
Congressional Review Act.
Paperwork Reduction Act
This rule imposes no information collection or recordkeeping
requirements.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
information, 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 amends 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). The exemptions in this paragraph (a) 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
[[Page 54370]]
interfere with or adversely affect the Office of Legal Policy's (OLP's)
processes, OLP may waive the applicable exemption.
(b) Exemptions from the particular subsections in paragraph (a) of
this section 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
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 relate
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). The exemptions in this paragraph (c) 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 in paragraph (c) of
this section 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.
[[Page 54371]]
Dated: September 23, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2021-21340 Filed 9-30-21; 8:45 am]
BILLING CODE P
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