[Federal Register: November 29, 2002 (Volume 67, Number 230)]
[Proposed Rules]
[Page 71119-71120]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no02-19]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 311
[Administrative Instruction 81]
Privacy Act; Implementation
AGENCY: Office of the Secretary, DoD.
ACTION: Proposed rule.
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SUMMARY: The Office of the Secretary of Defense is proposing to add an
exemption rule to an existing system of records. The exemption will
protect the privacy of individuals identified in the system of records.
DATES: Comments must be received on or before January 28, 2003, to be
considered by this agency.
ADDRESSES: Send comments to OSD Privacy Act Coordinator, Directives and
Records Branch, Washington Headquarters Services, 1155 Defense
Pentagon, Washington, DC 20301-1155.
FOR FURTHER INFORMATION CONTACT: Mr. David Bosworth at (703) 601-4728.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that Privacy Act rules for the Department of
Defense are not significant rules. The rules do not (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy; a sector of the economy; productivity;
competition; jobs; the environment; public health or safety; or State,
local, or tribal governments or communities; (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned by
another Agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in this Executive order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been determined that Privacy Act rules for the Department of
Defense do not have 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 Department
of Defense.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that Privacy Act rules for the Department of
Defense impose no information requirements beyond the Department of
Defense and that the information collected within the Department of
Defense is necessary and consistent with 5 U.S.C. 552a, known as the
Privacy Act of 1974.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that Privacy Act rulemaking for the
Department of Defense 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 such rulemaking will not significantly or uniquely affect small
governments.
Executive Order 13132, ``Federalism''
It has been determined that Privacy Act rules for the Department of
Defense do not have federalism implications. The rules do 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.
List of Subjects in 32 CFR Part 311
Privacy.
Accordingly, 32 CFR part 311 is amended to read as follows:
PART 311--OSD PRIVACY PROGRAM
1. The authority citation for 32 CFR part 311 continues to read as
follows:
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
2. Section 311.8 is amended by adding paragraph (c)(14) to read as
follows:
Sec. 311.8 Procedures for exemptions.
* * * * *
(c) Specific exemptions. * * *
(14) System identifier and name: DHRA 02, PERSEREC Research Files.
(i) Exemptions: Investigative material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal
[[Page 71120]]
the identity of a confidential source. Therefore, portions of this
system of records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from
the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (H) and (I), and (f).
(ii) Authority: 5 U.S.C. 552a(k)(5).
(iii) Reasons: (A) From subsection (c)(3) because to grant access
to the accounting for each disclosure as required by the Privacy Act,
including the date, nature, and purpose of each disclosure and the
identity of the recipient, could alert the subject to the existence of
the investigation or prosecutable interest by the Department of Defense
or other agencies. This could seriously compromise case preparation by
prematurely revealing its existence and nature; compromise or interfere
with witnesses or make witnesses reluctant to cooperate; and lead to
suppression, alteration, or destruction of evidence.
(B) From subsections (d) and (f) because providing access to
investigative records and the right to contest the contents of those
records and force changes to be made to the information contained
therein would seriously interfere with and thwart the orderly and
unbiased conduct of the investigation and impede case preparation.
Providing access rights normally afforded under the Privacy Act would
provide the subject with valuable information that would allow
interference with or compromise of witnesses or render witnesses
reluctant to cooperate; lead to suppression, alteration, or destruction
of evidence; enable individuals to conceal their wrongdoing or mislead
the course of the investigation; and result in the secreting of or
other disposition of assets that would make them difficult or
impossible to reach in order to satisfy any Government claim growing
out of the investigation or proceeding.
(C) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of each piece of information in the
early stages of an investigation. In some cases, it is only after the
information is evaluated in light of other evidence that its relevance
and necessity will be clear.
(D) From subsections (e)(4)(G) and (H) because this system of
records is compiled for investigative purposes and is exempt from the
access provisions of subsections (d) and (f).
(E) From subsection (e)(4)(I) because 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 privacy and
physical safety of witnesses and informants. The Office of the
Secretary of Defense will, nevertheless, continue to publish such a
notice in broad generic terms, as is its current practice.
(F) Consistent with the legislative purpose of the Privacy Act of
1974, OSD will grant access to nonexempt material in the records being
maintained. Disclosure will be governed by OSD Administrative
Instruction 81, but will be limited to the extent that the
identity of confidential sources will not be compromised; subjects of
an investigation of an actual or potential criminal or civil violation
will not be alerted to the investigation; the physical safety of
witnesses, informants and law enforcement personnel will not be
endangered; the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of the above nature will be deleted from
the requested documents and the balance made available. The controlling
principle behind this limited access is to allow disclosures except
those indicated in this paragraph. The decisions to release information
from these systems will be made on a case-by-case basis.
Dated: November 18, 2002.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 02-29814 Filed 11-27-02; 8:45 am]
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