Proposed Rule2021-27708
Privacy Act of 1974; Implementation
Primary source
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Published
December 22, 2021
Issuing agencies
Defense Department
Abstract
The Department of Defense (Department or DoD) is giving concurrent notice of a new Department-wide system of records pursuant to the Privacy Act of 1974 for the DoD-0008, "Freedom of Information Act and Privacy Act Records" system of records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from certain provisions of the Privacy Act because of national security requirements; to avoid interference during the conduct of criminal, civil, or administrative actions or investigations; to prevent the compromise of protective services processes; to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations; and to prevent the undermining of testing and evaluation materials.
Full Text
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<title>Federal Register, Volume 86 Issue 243 (Wednesday, December 22, 2021)</title>
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[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72536-72540]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27708]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 /
Proposed Rules
[[Page 72536]]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2021-OS-0048]
RIN 0790-AL13
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense (OSD), Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (Department or DoD) is giving
concurrent notice of a new Department-wide system of records pursuant
to the Privacy Act of 1974 for the DoD-0008, ``Freedom of Information
Act and Privacy Act Records'' system of records and this proposed
rulemaking. In this proposed rulemaking, the Department proposes to
exempt portions of this system of records from certain provisions of
the Privacy Act because of national security requirements; to avoid
interference during the conduct of criminal, civil, or administrative
actions or investigations; to prevent the compromise of protective
services processes; to protect the identity of confidential sources
incident to Federal employment, military service, contract, and
security clearance determinations; and to prevent the undermining of
testing and evaluation materials.
DATES: Send comments on or before February 22, 2022.
ADDRESSES: You may submit comments, identified by docket number and
title, by any of the following methods.
* Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for submitting comments.
* Mail: The DoD cannot receive written comments at this time due to
the COVID-19 pandemic. Comments should be sent electronically to the
docket listed above.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number for this Federal
Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Tracy Rogers, (703) 571-0070,
<a href="/cdn-cgi/l/email-protection#9fd0ccdbb1dbcfdcd3cbdbdff2fef6f3b1f2f6f3"><span class="__cf_email__" data-cfemail="642b37204a2034272830202409050d084a090d08">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the DoD is establishing
a new DoD-wide system of records titled ``Freedom of Information Act
and Privacy Act Records,'' DoD-0008. This system of records notice
describes access requests and administrative appeals under the Freedom
of Information Act (FOIA), and access and amendment requests and
administrative appeals under the Privacy Act. The system consists of
both electronic and paper records and will be used by DoD components
and offices to maintain records about individuals who submit FOIA
access requests, Privacy Act access and amendment requests,
administrative appeals to the Department under either the FOIA or
Privacy Act, and individual requests referred from other agencies.
These records may include information regarding the requesters and
their attorneys or representatives, the original request for access,
amendment, and administrative appeal, and other supporting
documentation to include related memoranda, correspondence, notes,
statements of disagreement, and, in some instances, copies of requested
records and records under administrative appeal.
II. Privacy Act Exemption
The Privacy Act allows Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
those that provide individuals with a right to request access to and
amendment of their own records. If an agency intends to exempt a
particular system of records, it must first go through the rulemaking
process pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed
rule explains why an exemption is being claimed for this system of
records and invites public comment, which DoD will consider before the
issuance of a final rule implementing the exemption.
The DoD proposes to modify 32 CFR part 310 to add a new Privacy Act
exemption rule for the DoD-0008, Freedom of Information Act and Privacy
Act Records system of records. In this proposed rulemaking, the
Department proposes to exempt portions of this system of records from
certain provisions of the Privacy Act because records and information
in this system of records may fall within the scope of the Privacy Act
exemptions. As stated in the DoD-0008 system of records notice, this
system of records generally will not be deemed to cover underlying
records that are responsive to an access or amendment request; rather,
the system covers the access, amendment, or appeal requests themselves,
correspondence created as a result of such requests, and certain other
categories of records identified in the notice. In certain limited
instances, however, entire records, portions thereof, or information
from such underlying records may be recompiled to become part of this
system. Certain records may also be recompiled from other exempt
systems of records as a result of a request for access to such records
under the Privacy Act or the Freedom of Information Act, or a request
for amendment of a record under the Privacy Act. Recompiled records and
information may fall within the scope of the Privacy Act exemptions
claimed for those systems of records, specifically the exemptions set
forth in 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6),
and (k)(7).
The DoD proposes this exemption rule for several reasons. First,
some of the records in this system of records may contain information
recompiled from other systems of records maintained by a DoD component
or other agency which performs as its principal function activities
pertaining to the enforcement of criminal laws and the records contain
investigatory material compiled for criminal law enforcement purposes.
The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), authorizes agencies
to claim an exemption for systems of records that contain this type of
information. The DoD therefore is proposing to claim an exemption from
several provisions of the Privacy Act, including various
[[Page 72537]]
access, amendment, disclosure of accounting, and certain record-keeping
and notice requirements, to prevent, among other harms, the
identification of actual or potential subjects of criminal
investigation and/or sources of criminal investigative information and
to avoid frustrating the underlying criminal law enforcement purpose
for which the records were collected.
Additionally, some of the records in this system of records may
contain classified national security information and providing notice,
access, amendment, and disclosure of accounting of those records to an
individual, as well as certain recordkeeping requirements, may cause
damage to national security. The Privacy Act, pursuant to 5 U.S.C.
552a(k)(1), authorizes agencies to claim an exemption for systems of
records that contain information properly classified pursuant to
executive order. The DoD therefore is proposing to claim an exemption
from several provisions of the Privacy Act, including various access,
amendment, disclosure of accounting, and certain record-keeping and
notice requirements, to prevent disclosure of any information properly
classified pursuant to executive order, as implemented by DoD
Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.
The DoD is also proposing this Privacy Act exemption rule because
this system of records may contain investigatory material compiled for
law enforcement purposes recompiled from other systems of records
within the scope of 5 U.S.C. 552a(k)(2). This exemption allows the
Department to claim an exemption for systems of records that contain
investigatory materials compiled for law enforcement purposes, other
than material within the scope of 5 U.S.C. 552a(j)(2), which is
described above. The DoD therefore is proposing to claim an exemption
from several provisions of the Privacy Act, including various access,
amendment, disclosure of accounting, and certain recordkeeping and
notice requirements, to prevent, among other harms, the identification
of actual or potential subjects of investigation and/or sources of
investigative information and to avoid frustrating the underlying law
enforcement purpose for which the records were collected.
The DoD also proposes an exemption for this system of records
because the records may in certain instances contain information
recompiled from other systems of records pertaining to providing
protective services to the President of the United States or other
individuals pursuant to 18 U.S.C. 3056. The Privacy Act, pursuant to 5
U.S.C. 552a(k)(3), authorizes agencies to claim an exemption for
systems of records that contain information concerning protective
services for which access to, amendment of, or release of the
accounting of disclosures of such records could compromise the
effectiveness of the protective services, the safety of the individuals
protected pursuant to 18 U.S.C. 3056, and the safety of the personnel
providing protective services. The DoD is proposing to claim an
exemption from several provisions of the Privacy Act, including various
access, amendment, disclosure of accounting, and certain recordkeeping
and notice requirements, to avoid, among other harms, frustrating the
purposes of the protective services for which the information was
gathered.
In addition, the DoD proposes an exemption for this system of
records because the records may contain information recompiled from
other systems of records consisting of investigatory material compiled
solely for determining suitability, eligibility, and qualifications for
Federal civilian employment, military service, Federal contracts, or
access to classified information. The Privacy Act, pursuant to 5 U.S.C.
552a(k)(5), authorizes agencies to claim an exemption for systems of
records that contain information identifying sources crucial to
determining suitability for holding positions of trust and who
furnished information to the Government under an express promise that
the source's identity would be held in confidence. The DoD is proposing
to claim an exemption from several provisions of the Privacy Act,
including various access, amendment, disclosure of accounting, and
certain record-keeping and notice requirements, to prevent the
compromise of the identity of such confidential sources within such
investigatory material.
The DoD also proposes an exemption for this system of records
because the records may contain examination and testing material
recompiled from other systems of records that is used solely to
determine individual qualification for appointment or promotion in the
Federal service within the scope of 5 U.S.C. 552a(k)(6). The DoD is
therefore proposing to claim an exemption from several provisions of
the Privacy Act, including various access, amendment, disclosure of
accounting, and certain record-keeping and notice requirements, to
prevent disclosure of any information that would compromise the
objectivity or fairness of testing and examination material.
Finally, the DoD proposes an exemption for this system of records
because the records may contain evaluation material recompiled from
other systems of records that is used to determine potential for
promotion in the armed services within the scope of 5 U.S.C.
552a(k)(7). In some cases, such records may contain information
pertaining to the identity of a source who furnished information to the
Government under an express promise that the source's identity would be
held in confidence (or prior to the effective date of the Privacy Act,
under an implied promise). The DoD therefore is proposing to claim an
exemption from several provisions of the Privacy Act, including various
access, amendment, disclosure of accounting, and certain record-keeping
and notice requirements, to prevent disclosure of any information that
would compromise the identity of confidential sources who might not
have otherwise come forward to assist the Government.
Records in this system of records are only exempt from the Privacy
Act to the extent the purposes underlying the exemption pertain to the
record. A notice of a new system of records for DoD-0008, Freedom of
Information Act and Privacy Act Records, is also published in this
issue of the Federal Register.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. It has been determined that this rule is not a significant
regulatory action under these executive orders.
Congressional Review Act
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
The Assistant to the Secretary of Defense for Privacy, Civil
Liberties, and Transparency has certified that this Privacy Act rule
does not have
[[Page 72538]]
significant economic impact on a substantial number of small entities
because they are concerned only with the administration of Privacy Act
systems of records within the DoD.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that this rule does not impose additional
information collection requirements on the public under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this rule does not involve a Federal
mandate that may result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more and that it will not significantly or uniquely affect
small governments.
Executive Order 13132, ``Federalism''
It has been determined that this rule does not have federalism
implications. This rule does not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or
more Indian tribes, preempts tribal law, or effects the distribution of
power and responsibilities between the federal government and Indian
tribes. This rule will not have a substantial effect on Indian tribal
governments.
List of Subjects in 32 CFR Part 310
Privacy.
Accordingly, 32 CFR part 310 is proposed to be amended as follows:
PART 310 [Amended]
0
1. The authority citation for 32 CFR part 310 continues to read as
follows:
Authority: 5 U.S.C. 552a.
0
2. Section 310.13 is amended by adding paragraph (e)(7) to read as
follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(7) System identifier and name. DoD-0008, ``Freedom of Information
Act and Privacy Act Records.''
(i) Exemptions. This system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3);
(e)(4)(G), (H), and(I); (e)(5); (e)(8); (f) and (g).
(ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3),
(k)(5), (k)(6), and (k)(7).
(iii) Exemption from the particular subsections. Exemption from the
particular subsections is justified for the following reasons:
(A) Subsection (c)(3), (d)(1), and (d)(2)--(1) Exemption (j)(2).
Records in this system of records may contain information recompiled
from other systems of records maintained by a DoD component or other
agency which performs as its principal function activities pertaining
to the enforcement of criminal laws and contain investigatory material
compiled for criminal law enforcement purposes, including information
identifying criminal offenders and alleged offenders, information
compiled for the purpose of criminal investigation, or reports compiled
during criminal law enforcement proceedings. Application of exemption
(j)(2) may be necessary because access to, amendment of, or release of
the accounting of disclosures of such records could inform the record
subject of an investigation of the existence, nature, or scope of an
actual or potential law enforcement or disciplinary investigation, and
thereby seriously impede law enforcement or prosecutorial efforts by
permitting the record subject and other persons to whom he might
disclose the records to avoid criminal penalties or disciplinary
measures; reveal confidential sources who might not have otherwise come
forward to assist in an investigation and thereby hinder DoD or the
other agency's ability to obtain information from future confidential
sources and result in an unwarranted invasion of the privacy of others.
Amendment of such records could also impose a highly impracticable
administrative burden by requiring investigations to be continuously
reinvestigated.
(2) Exemption (k)(1). Records in this system of records may contain
information that is properly classified pursuant to Executive order.
Application of exemption (k)(1) may be necessary because access to and
amendment of the records, or release of the accounting of disclosures
for such records, could reveal classified information. Disclosure of
classified records to an individual may cause damage to national
security.
(3) Exemption (k)(2). Records in this system of records may may
contain information recompiled from other systems of records pertaining
to investigatory material compiled for law enforcement purposes other
than material within the scope of 5 U.S.C. 552a(j)(2). Application of
exemption (k)(2) may be necessary because access to, amendment of, or
release of the accounting of disclosures of such records could: Inform
the record subject of an investigation of the existence, nature, or
scope of an actual or potential law enforcement or disciplinary
investigation, and thereby seriously impede law enforcement or
prosecutorial efforts by permitting the record subject and other
persons to whom he might disclose the records or the accounting of
records to avoid criminal penalties, civil remedies, or disciplinary
measures; interfere with a civil or administrative action or
investigation by allowing the subject to tamper with witnesses or
evidence, and to avoid detection or apprehension, which may undermine
the entire investigatory process; reveal confidential sources who might
not have otherwise come forward to assist in an investigation and
thereby hinder DoD's ability to obtain information from future
confidential sources; and result in an unwarranted invasion of the
privacy of others. Amendment of such records could also impose a highly
impracticable administrative burden by requiring investigations to be
continuously reinvestigated.
(4) Exemption (k)(3). Records in this system of records may contain
information recompiled from other systems of records pertaining to
providing protective services to the President of the United States or
other individuals pursuant to 18 U.S.C. 3056. Application of exemption
(k)(3) for such records may be necessary because access to, amendment
of, or release of the accounting of disclosures of such records could
compromise the effectiveness of protective services, the safety of the
individuals protected pursuant to 18 U.S.C. 3056, and the safety of the
personnel providing protective services.
(5) Exemption (k)(5). Records in this system of records may contain
information recompiled from other systems of records concerning
investigatory material compiled solely for determining suitability,
eligibility, and qualifications for Federal civilian employment,
military service, Federal contracts, or access to classified
information. In some cases, such records
[[Page 72539]]
may contain information pertaining to the identity of a source who
furnished information to the Government under an express promise that
the source's identity would be held in confidence (or prior to the
effective date of the Privacy Act, under an implied promise).
Application of exemption (k)(5) may be necessary because access to,
amendment of, or release of the accounting of disclosures of such
records could identify these confidential sources who might not have
otherwise come forward to assist the Government; hinder the
Government's ability to obtain information from future confidential
sources; and result in an unwarranted invasion of the privacy of
others. Amendment of such records could also impose a highly
impracticable administrative burden by requiring investigations to be
continuously reinvestigated.
(6) Exemption (k)(6). Records in this system of records may contain
information recompiled from other systems of records relating to
testing or examination material used solely to determine individual
qualifications for appointment or promotion in the Federal service.
Application of exemption (k)(6) may be necessary when access to and
amendment of the records, or release of the accounting of disclosure
for such records, may compromise the objectivity and fairness of the
testing or examination process. Amendment of such records could also
impose a highly impracticable administrative burden by requiring
testing and examinations to be continuously re-administered.
(7) Exemption (k)(7). Records in this system of records may contain
evaluation material recompiled from other systems of records used to
determine potential for promotion in the Armed Forces of the United
States. In some cases, such records may contain information pertaining
to the identity of a source who furnished information to the Government
under an express promise that the source's identity would be held in
confidence (or prior to the effective date of the Privacy Act, under an
implied promise). Application of exemption (k)(7) may be necessary
because access to, amendment of, or release of the accounting of
disclosures of such records could identify these confidential sources
who might not have otherwise come forward to assist the Government;
hinder the Government's ability to obtain information from future
confidential sources; and result in an unwarranted invasion of the
privacy of others.
(B) Subsection (c)(4) and (d)(3) and (4). Subsections (c)(4) and
(d)(3) and (4) are inapplicable to the extent that an exemption is
being claimed from subsections (d)(1) and (2).
(C) Subsection (e)(1). In the collection of information for
investigatory or law enforcement purposes, it is not always possible to
conclusively determine the relevance and necessity of particular
information in the early stages of the investigation or adjudication.
In some instances, it will be only after the collected information is
evaluated in light of other information that its relevance and
necessity for effective investigation and adjudication can be assessed.
Collection of such information permits more informed decision-making by
the Department when making required disciplinary and prosecutorial
determinations. Additionally, records within this system may be
properly classified pursuant to executive order. Further, it is not
always possible to determine relevancy or necessity of specific
information in the earlier stages of responding to a FOIA or Privacy
Act request or in litigation case development, including with respect
to records pertaining to suitability determinations or armed services
promotion evaluations that contain information about sources who were
granted an express promise of confidentiality, or pertaining to 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. Such information may later be deemed
unnecessary upon further assessment. Accordingly, application of
exemptions (j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or (k)(7)
may be necessary.
(D) Subsection (e)(2). To collect information from the subject
individual could serve notice that he or she is the subject of a
criminal investigation and thereby present a serious impediment to such
investigations. Collection of information only from the individual
accused of criminal activity or misconduct could also subvert discovery
of relevant evidence and subvert the course of justice. Accordingly,
application of exemption (j)(2) may be necessary.
(E) Subsection (e)(3). To inform individuals as required by
subsection (e)(3) could reveal the existence of a criminal
investigation and compromise investigative efforts. Accordingly,
application of exemption (j)(2) may be necessary.
(F) Subsection (e)(4)(G) and (H). Subsections (e)(4)(G) and (H) are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2).
(G) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I)
is construed to require more detailed disclosure than the broad
information currently published in the system notice concerning
categories of sources of records in the system, an exemption from this
provision is necessary to protect the confidentiality of sources of
information, the privacy and physical safety of witnesses and
informants, and testing or examination material used solely to
determine individual qualifications for appointment of promotion in the
Federal service. Accordingly, application of exemptions (j)(2), (k)(1),
(k)(2), (k)(5), (k)(6), and (k)(7) may be necessary.
(H) Subsection (e)(5). It is often impossible to determine in
advance if investigatory records contained in this system are accurate,
relevant, timely and complete, but, in the interests of effective law
enforcement, it is necessary to retain this information to maintain an
accurate record of the investigatory activity to preserve the integrity
of the investigation and satisfy various constitutional and evidentiary
requirements, such as mandatory disclosure of potentially exculpatory
information in the investigative file to a defendant. It is also
necessary to retain this information to aid in establishing patterns of
activity and provide investigative leads. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light and
the accuracy of such information can only be determined through
judicial processes. Accordingly, application of exemption (j)(2) may be
necessary.
(I) Subsection (e)(8). To serve notice could give persons
sufficient warning to evade investigative efforts. Accordingly,
application of exemption (j)(2) may be necessary.
(J) Subsection (f). To the extent that portions of the system are
exempt from the provisions of the Privacy Act concerning individual
access and amendment of records, DoD is not required to establish rules
concerning procedures and requirements relating to such provisions.
Accordingly, application of exemptions (j)(2), (k)(1), (k)(2), (k)(5),
(k)(6), and (k)(7) may be necessary.
(K) Subsection (g). Subsection (g) is inapplicable to the extent
that the system is exempt from other specific subsections of the
Privacy Act to which the civil remedies provisions pertain.
(iv) Exempt records from other systems. In the course of carrying
out the overall purpose for this system, exempt records from other
systems of
[[Page 72540]]
records may in turn become part of the records maintained in this
system. To the extent that copies of exempt records from those other
systems of records are maintained in this system, the DoD claims the
same exemptions for the records from those other systems that are
entered into this system, as claimed for the prior system(s) of which
they are a part, provided the reason for the exemption remains valid
and necessary.
Dated: December 16, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-27708 Filed 12-21-21; 8:45 am]
BILLING CODE 5001-06-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.