Rule2022-10127
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
May 11, 2022
Effective
June 10, 2022
Issuing agencies
Defense Department
Abstract
The Department of Defense (Department or DoD) is issuing a final rule to amend its regulations to exempt portions of the system of records titled DoD-0006, "Military Justice and Civilian Criminal Case Records," from certain provisions of the Privacy Act of 1974.
Full Text
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<title>Federal Register, Volume 87 Issue 91 (Wednesday, May 11, 2022)</title>
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[Federal Register Volume 87, Number 91 (Wednesday, May 11, 2022)]
[Rules and Regulations]
[Pages 28774-28776]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10127]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2021-OS-0004]
RIN 0790-AL20
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense (OSD), Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: The Department of Defense (Department or DoD) is issuing a
final rule to amend its regulations to exempt portions of the system of
records titled DoD-0006, ``Military Justice and Civilian Criminal Case
Records,'' from certain provisions of the Privacy Act of 1974.
DATES: This rule is effective on June 10, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, Privacy and Civil
Liberties Division, Directorate for Privacy, Civil Liberties and
Freedom of Information, Office of the Assistant to the Secretary of
Defense for Privacy, Civil Liberties, and Transparency, Department of
Defense, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria,
VA 22350-1700; <a href="/cdn-cgi/l/email-protection#e0afb3a4cea4b0a3acb4a4a08d81898cce8d898c"><span class="__cf_email__" data-cfemail="4e011d0a600a1e0d021a0a0e232f272260232722">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule published in the Federal Register on May 25, 2021
(86 FR 28047-28049). Comments were accepted for 60 days until July 26,
2021. A total of one comment regarding the proposed rule was received.
Please see a summary of the comment and the Department's response as
follows:
DoD received one substantive comment on the notice of proposed
rulemaking (NPRM). The substantive comment on the NPRM objected to the
exemptions as undermining the goal of ensuring records are kept and
preserved for access at any time. The Privacy Act (5 U.S.C. 552a)
generally provides that any person has a right (enforceable in court)
of access to federal agency records about themselves that are
maintained in a system of records, except to the extent that the
information is protected from disclosure by one of ten exemptions.
Exempting a system of records does not cause information to be
destroyed or deleted but allows the agency to withhold records from
first-party access for particular reasons as articulated by the
exemption rule. Records, even those with applicable exemption rules,
are retained in accordance with the requirements of the Federal Records
Act and records schedules approved by the National Archives and Records
Administration. Having considered the public comment, the Department
will implement the rulemaking as proposed.
Background
In finalizing this rule, DoD will exempt portions of the system of
records titled, DoD-0006, ``Military Justice and Civilian Criminal Case
Records,'' from certain provisions of the Privacy Act. This system of
records describes DoD's collection, use, and maintenance of records for
the handling of Uniform Code of Military Justice (UCMJ) and
disciplinary cases within the authority of the DoD. This system of
records also includes records created when DoD legal practitioners, in
support of the U.S. Department of Justice, prosecute in U.S. District
Courts crimes that occurred on military installations or property.
Individuals covered by this system of records include armed forces
members and others identified in Article 2 of the UCMJ, as well as
civilians who are alleged to have engaged in criminal acts on DoD
installations and properties.
The purpose of this system of records is to support the collection,
maintenance, use, and sharing of records compiled by the DoD for the
adjudication and litigation of cases conducted under the UCMJ, as well
as criminal proceedings brought in U.S. District Courts for offenses
occurring on DoD installations or property. This system contains
information, records, and filings publicly accessible on the
Department's court docket. It also supports the compilation of internal
statistics and reports related to these activities. The collection and
maintenance of this information by the DoD is necessary to meet its
statutory obligations and ensure good order and discipline.
The DoD is amending 32 CFR part 310 to add a new Privacy Act
exemption rule for DoD-0006, ``Military Justice and Civilian Criminal
Case Records.'' Some of the records that are part of this system of
records may contain classified national security information, and the
disclosure of those records to an individual 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 is claiming an exemption from several provisions of the Privacy
Act, including various access, amendment, disclosure of accounting, and
certain record-keeping and notice requirements pursuant to 5 U.S.C.
552a(k)(1), 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 also is exempting this system of records because these
records support the conduct of criminal law enforcement activities, and
certain requirements of the Privacy Act may interfere with the
effective execution of these activities, and undermine good order and
discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
authorizes agencies with a principal law enforcement function
pertaining to the enforcement of criminal laws (including activities of
prosecutors, courts, etc.) to claim an exemption for systems of records
that contain information identifying criminal offenders and alleged
offenders, information compiled for the purpose of criminal
investigation, or reports compiled during criminal law enforcement
proceedings. Additionally, the Privacy Act, pursuant to 5 U.S.C.
552a(k)(2), authorizes agencies to compile investigatory material for
law enforcement purposes, other than materials within the scope of 5
U.S.C. 552a(j)(2). The DoD is claiming exemptions from several
provisions of the Privacy Act, including various access, amendment,
disclosure of accounting, and certain record-keeping and notice
requirements, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to
prevent the harms articulated in this
[[Page 28775]]
rule from occurring. In addition, 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 establishing this system of records was published in the
Federal Register on May 25, 2021 (86 FR 28086-28090). This system of
records went into effect on May 25, 2021; however, comments on the
Routine Uses were accepted through June 24, 2021. At the end of the
comment period, one non-substantive comment was received. The Routine
Uses went into effect at the close of the comment period.
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.
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 certified that this rule does not have
significant economic impact on a substantial number of small entities
because it is concerned only with the administration of a Privacy Act
system 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 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)(5) to read as
follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(5) System identifier and name. DoD-0006, ``Military Justice and
Civilian Criminal Case 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) of the Privacy
Act to the extent the records are subject to exemption pursuant to 5
U.S.C. 552a(j)(2). This system of records is exempt from 5 U.S.C.
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I);
and (f) of the Privacy Act to the extent the records are subject to
exemption pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
(ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
(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 investigatory material
compiled for criminal law enforcement purposes to include 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's ability
to obtain information from future confidential sources and result in an
unwarranted invasion of the privacy of others.
(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 contain
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
[[Page 28776]]
investigation which may impede those actions or investigations; 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.
(B) Subsection (c)(4), (d)(3) and (4). These subsections 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. Accordingly,
application of exemptions (j)(2), (k)(1) and (k)(2) 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 this
subsection could reveal the existence of a criminal investigation and
compromise investigative efforts. Accordingly, application of exemption
(j)(2) may be necessary.
(F) Subsections (e)(4)(G) and (H). These subsections are
inapplicable to the extent an exemption is claimed from subsections
(d)(1) and (2).
(G) Subsection (e)(4)(I). To the extent that this provision is
construed to require more detailed disclosure than the broad, generic
information currently published in the system notice, an exemption from
this provision is necessary to protect the confidentiality of sources
of information and to protect the privacy and physical safety of
witnesses and informants. Accordingly, application of exemptions
(j)(2), (k)(1), and (k)(2) 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). The agency's rules are inapplicable to those
portions of the system that are exempt. Accordingly, application of
exemptions (j)(2), (k)(1), and (k)(2) may be necessary.
(K) Subsection (g). This subsection is inapplicable to the extent
that the system is exempt from other specific subsections of the
Privacy Act.
(iv) Exempt records from other systems. In the course of carrying
out the overall purpose for this system, exempt records from other
systems of 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: May 6, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-10127 Filed 5-10-22; 8:45 am]
BILLING CODE 5001-06-P
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</html>Indexed from Federal Register on May 11, 2022.
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