Rule2022-17977
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
August 23, 2022
Effective
September 22, 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-0008, "Freedom of Information Act and Privacy Act Records," from certain provisions of the Privacy Act of 1974.
Full Text
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<title>Federal Register, Volume 87 Issue 162 (Tuesday, August 23, 2022)</title>
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[Federal Register Volume 87, Number 162 (Tuesday, August 23, 2022)]
[Rules and Regulations]
[Pages 51611-51614]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17977]
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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: 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-0008, ``Freedom of Information Act and Privacy Act
Records,'' from certain provisions of the Privacy Act of 1974.
DATES: This rule is effective September 22, 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#93dcc0d7bdd7c3d0dfc7d7d3fef2faffbdfefaff"><span class="__cf_email__" data-cfemail="c8879b8ce68c988b849c8c88a5a9a1a4e6a5a1a4">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule published in the Federal Register (86 FR 72536-
72540) on December 22, 2021. Comments were accepted for 60 days until
February 22, 2022. A total of two comments regarding the proposed rule
were received. Please see a summary of the comments and the
Department's response below:
DoD received one substantive comment and one non-substantive
comment on the NPRM. The substantive comment expressed a concern that
the application of exemptions to this system of records would globally
shield all FOIA case processing records from disclosure. This
rulemaking would not globally or improperly shield a requester's
ability to seek access to the case processing of records of a FOIA or
Privacy Act case. 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, except to the extent that the
information is protected from disclosure by one of ten exemptions. To
the extent that the case processing records are ``records'' as defined
in the Privacy Act to which an individual has a Privacy Act right of
access, this rule will deny the individual access to those records only
to the extent a claimed exemption applies. In addition, records in the
DoD-0008 Freedom of Information Act and Privacy Act Records system of
records are only exempt from the Privacy Act to the extent the purposes
underlying the exemption pertain to the record. Applying Privacy Act
exemptions allows agencies to withhold records from access for
particular reasons as articulated by the exemption rule. Having
considered the public comment, the Department will implement the
rulemaking as proposed.
I. Background
In finalizing this rule, DoD is seeking to exempt portions of this
system of records titled, DoD-0008 Freedom of Information Act and
Privacy Act Records, from certain provisions of the Privacy Act. This
system of records covers DoD's maintenance of records about individuals
who submit access requests and administrative appeals under the Freedom
of Information Act, and who submit access and amendment requests and
administrative appeals under the Privacy Act. This system of records
data includes information regarding the individual requesters and their
attorneys or representatives, the original request for access and any
administrative appeal, and other supporting documentation to include
related memoranda, correspondence, notes, and, in some instances,
copies of requested records and records under administrative appeal.
II. Privacy Exemption
The Privacy Act permits Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
the provisions providing individuals with a right to request access to
and amendment of their own records and accountings of disclosures of
such records. If an agency intends to exempt a particular system of
records, it must first go through the rulemaking process to provide
public notice and an opportunity to comment on the proposed exemption.
The OSD is amending 32 CFR part 310 to add a new Privacy Act exemption
rule for this system of records. The DoD is adding an exemption for
this system of records because some of its records may contain
investigatory material compiled for law enforcement purposes,
classified national security information, protective services
information pursuant to 18 U.S.C. 3056, and testing or examination
information pursuant to 5 U.S.C.
[[Page 51612]]
552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7). The DoD
is claiming 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 underlying purposes for which the information
was gathered.
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
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. DoD will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule may take effect no earlier than 60 calendar days after
Congress receives the rule report or the rule is published in the
Federal Register, whichever is later. 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 is not subject to
the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This rule is concerned only with the administration
of Privacy Act systems of records within the DoD. Therefore, the
Regulatory Flexibility Act, as amended, does not require DoD to prepare
a regulatory flexibility analysis.
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''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates may result in the expenditure by
State, local and tribal governments in the aggregate, or by the private
sector, in any one year of $100 million in 1995 dollars, updated
annually for inflation. This rule will not mandate any requirements for
State, local, or tribal governments, nor will it affect private sector
costs.
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 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--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974
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.
[[Page 51613]]
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
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 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), (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. 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 this
subsection could reveal the existence of a criminal investigation and
compromise investigative efforts.
[[Page 51614]]
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
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). This subsection 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 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: August 16, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-17977 Filed 8-22-22; 8:45 am]
BILLING CODE 5001-06-P
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