[Federal Register: April 25, 2006 (Volume 71, Number 79)]
[Proposed Rules]
[Page 24493-24513]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap06-28]
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Part IV
Department of Defense
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Department of the Army
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32 CFR Part 505
The Army Privacy Program; Proposed Rule
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 505
RIN 0702-AA53
[Docket No. USA-2006-0011]
The Army Privacy Program
AGENCY: Department of the Army, DoD.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of the Army is proposing to update policies and
responsibilities for the Army Privacy Program, which implements the
Privacy Act of 1974, by showing organizational realignments and by
revising referenced statutory and regulatory authority, such as the
Health Insurance Portability and Accountability Act and E-Government
Act of 2002.
DATES: Consideration will be given to all comments received by June 26,
2006.
ADDRESSES: You may submit comments, identified by 32 CFR part 505,
Docket No. USA-2006-0011 and or RIN 0702-AA53, by any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) 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 http://www.regulations.gov
as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Janice Thornton at (703) 428-6503.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of the Army's objective in revising 32 CFR part 505
is to reinforce Privacy Act policy objectives to include (1)
restricting disclosure of personally identifiable records maintained;
(2) to grant individuals rights of access to agency records maintained
on themselves; (3) to grant individuals the right to seek amendment of
agency records maintained on themselves upon a showing that the records
are not accurate, relevant, timely, or complete; and (4) to establish
practices ensuring the Army is complying with statutory norms for
collection, maintenance, and dissemination of records.
B. 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.
C. Regulatory Flexibility
It has been certified 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.
D. Paperwork Reduction Act
It has been certified 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.
E. Unfunded Mandates Reform Act
It has been certified that the 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.
F. Executive Order 13132 (Federalism)
It has been certified that the 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.
Robert Dickerson,
Chief, U.S. Army Freedom of Information Act and Privacy Office.
List of Subjects in 32 CFR Part 505
Privacy.
For reasons stated in the preamble the Department of the Army
proposes to revise 32 CFR part 505 to read as follows:
PART 505--ARMY PRIVACY ACT PROGRAM
Sec.
505.1 General information.
505.2 General provisions.
505.3 Privacy Act systems of records.
505.4 Collecting personal information.
505.5 Individual access to personal information.
505.6 Amendment of records.
505.7 Disclosure of personal information to other agencies and third
parties.
505.8 Training requirements.
505.9 Reporting requirements.
505.10 Use and establishment of exemptions.
505.11 Federal Register publishing requirements.
505.12 Privacy Act enforcement actions.
505.13 Computer Matching Agreement Program.
505.14 Recordkeeping requirements under the Privacy Act.
Appendix A to Part 505--References
Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
Appendix C to Part 505--Privacy Act Statement Format
Appendix D to Part 505--Exemptions; Exceptions; and DOD Blanket Routine
Uses
Appendix E to Part 505--Litigation Status Sheet
Appendix F to Part 505--Example of a System of Records Notice
Appendix G to Part 505--Management Control Evaluation Checklist
Appendix H to Part 505--Definitions
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Sec. 505.1 General information.
(a) Purpose. This part sets forth policies and procedures that
govern personal information maintained by the Department of the Army
(DA) in Privacy Act systems of records. This part also provides
guidance on collecting and disseminating personal information in
general. The purpose of the Army Privacy Act Program is to balance the
government's need to maintain information about individuals with the
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right of individuals to be protected against unwarranted invasions of
their privacy stemming from federal agencies' collection, maintenance,
use and disclosure of personal information about them. Additionally,
this part promotes uniformity within the Army's Privacy Act Program.
(b) References: (1) Referenced publications are listed in Appendix
A of this part.
(2) DOD Computer Matching Program and other Defense Privacy
Guidelines may be accessed at the Defense Privacy Office Web site
http://www.defenselink.mil/privacy.
(c) Definitions are provided at Appendix H of this part.
(d) Responsibilities. (1) The Office of the Administrative
Assistant to the Secretary of the Army will--
(i) Act as the senior Army Privacy Official with overall
responsibility for the execution of the Department of the Army Privacy
Act Program;
(ii) Develop and issue policy guidance for the program in
consultation with the Army General Counsel; and
(iii) Ensure the DA Privacy Act Program complies with Federal
statutes, Executive Orders, Office of Management and Budget guidelines,
and 32 CFR part 310.
(2) The Chief Attorney, Office of the Administrative Assistant to
the Secretary of the Army (OAASA) will--
(i) Provide advice and assistance on legal matters arising out of,
or incident to, the administration of the DA Privacy Act Program;
(ii) Serve as the legal advisor to the DA Privacy Act Review Board.
This duty may be fulfilled by a designee in the Chief Attorney and
Legal Services Directorate, OAASA;
(iii) Provide legal advice relating to interpretation and
application of the Privacy Act of 1974; and
(iv) Serve as a member on the Defense Privacy Board Legal
Committee. This duty may be fulfilled by a designee in the Chief
Attorney and Legal Services Directorate, OAASA.
(3) The Judge Advocate General will serve as the Denial Authority
on requests made pursuant to the Privacy Act of 1974 for access to or
amendment of Army records, regardless of functional category,
concerning actual or potential litigation in which the United States
has an interest.
(4) The Chief, DA Freedom of Information Act and Privacy Office
(FOIA/P), U.S. Army Records Management and Declassification Agency
will--
(i) Develop and recommend policy;
(ii) Execute duties as the Army's Privacy Act Officer;
(iii) Promote Privacy Act awareness throughout the DA;
(iv) Serve as a voting member on the Defense Data Integrity Board
and the Defense Privacy Board;
(v) Represent the Department of the Army in DOD policy meetings;
and
(vi) Appoint a Privacy Act Manager who will--
(A) Administer procedures outlined in this part;
(B) Review and approve proposed new, altered, or amended Privacy
Act systems of records notices and subsequently submit them to the
Defense Privacy Office for coordination;
(C) Review Department of the Army Forms for compliance with the
Privacy Act and this part;
(D) Ensure that reports required by the Privacy Act are provided
upon request from the Defense Privacy Office;
(E) Review Computer Matching Agreements and recommend approval or
denial to the Chief, DA FOIA/P Office;
(F) Provide Privacy Act training;
(G) Provide privacy guidance and assistance to DA activities and
combatant commands where the Army is the Executive Agent;
(H) Ensure information collections are developed in compliance with
the Privacy Act provisions;
(I) Ensure Office of Management and Budget reporting requirements,
guidance, and policy are accomplished; and
(J) Immediately review privacy violations of personnel to locate
the problem and develop a means to prevent recurrence of the problem.
(5) Heads of Department of the Army activities, field-operating
agencies, direct reporting units, Major Army commands, subordinate
commands down to the battalion level, and installations will--
(i) Supervise and execute the privacy program in functional areas
and activities under their responsibility; and
(ii) Appoint a Privacy Act Official who will--
(A) Serve as the staff advisor on privacy matters;
(B) Ensure that Privacy Act records collected and maintained within
the Command or agency are properly described in a Privacy Act system of
records notice published in the Federal Register;
(C) Ensure no undeclared systems of records are being maintained;
(D) Ensure Privacy Act requests are processed promptly and
responsively;
(E) Ensure a Privacy Act Statement is provided to individuals when
information is collected that will be maintained in a Privacy Act
system of records, regardless of the medium used to collect the
personal information (i.e., forms, personal interviews, stylized
formats, telephonic interviews, or other methods);
(F) Review, biennially, recordkeeping practices to ensure
compliance with the Act, paying particular attention to the maintenance
of automated records. In addition, ensure cooperation with records
management officials on such matters as maintenance and disposal
procedures, statutory requirements, forms, and reports; and
(G) Review, biennially Privacy Act training practices. This is to
ensure all personnel are familiar with the requirements of the Act.
(6) DA Privacy Act System Managers and Developers will--
(i) Ensure that appropriate procedures and safeguards are
developed, implemented, and maintained to protect an individual's
personal information;
(ii) Ensure that all personnel are aware of their responsibilities
for protecting personal information being collected and maintained
under the Privacy Act Program;
(iii) Ensure official filing systems that retrieve records by name
or other personal identifier and are maintained in a Privacy Act system
of records have been published in the Federal Register as a Privacy Act
system of records notice. Any official who willfully maintains a system
of records without meeting the publication requirements, as prescribed
by 5 U.S.C. 552a, as amended, OMB Circular A-130, 32 CFR part 310 and
this part, will be subject to possible criminal penalties and/or
administrative sanctions;
(iv) Prepare new, amended, or altered Privacy Act system of records
notices and submit them to the DA Freedom of Information and Privacy
Office for review. After appropriate coordination, the system of
records notices will be submitted to the Defense Privacy Office for
their review and coordination;
(v) Review, biennially, each Privacy Act system of records notice
under their purview to ensure that it accurately describes the system
of records;
(vi) Review, every four years, the routine use disclosures
associated with each Privacy Act system of records notice in order to
determine if such routine use continues to be compatible with the
purpose for which the activity collected the information;
(vii) Review, every four years, each Privacy Act system of records
notice for which the Secretary of the Army has promulgated exemption
rules pursuant to sections (j) or (k) of the Act. This is to ensure
such exemptions are still appropriate;
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(viii) Review, every year, contracts that provide for the
maintenance of a Privacy Act system of records to accomplish an
activity's mission. This requirement is to ensure each contract
contains provisions that bind the contractor, and its employees, to the
requirements of 5 U.S.C. 552a(m)(1); and
(ix) Review, if applicable, ongoing Computer Matching Agreements.
The Defense Data Integrity Board approves Computer Matching Agreements
for 18 months, with an option to renew for an additional year. This
additional review will ensure that the requirements of the Privacy Act,
Office of Management and Budget guidance, local regulations, and the
requirements contained in the Matching Agreements themselves have been
met.
(7) All DA personnel will--
(i) Take appropriate actions to ensure personal information
contained in a Privacy Act system of records is protected so that the
security and confidentiality of the information is preserved;
(ii) Not disclose any personal information contained in a Privacy
Act system of records except as authorized by 5 U.S.C. 552a, DOD
5400.11-R, or other applicable laws. Personnel willfully making a
prohibited disclosure are subject to possible criminal penalties and/or
administrative sanctions; and
(iii) Report any unauthorized disclosures or unauthorized
maintenance of new Privacy Act systems of records to the applicable
activity's Privacy Act Official.
(8) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent or the Army otherwise provides fiscal,
logistical, or administrative support, will adhere to the policies and
procedures in this part.
(9) Commander, Army and Air Force Exchange Service, will supervise
and execute the Privacy Program within that command pursuant to this
part.
(10) Overall Government-wide responsibility for implementation of
the Privacy Act is the Office of Management and Budget. The Department
of Defense is responsible for implementation of the Act within the
armed services. The Privacy Act also assigns specific Government-wide
responsibilities to the Office of Personnel Management and the General
Services Administration.
(11) Government-wide Privacy Act systems of records notices are
available at http://www.defenselink.mil/privacy.
(e) Legal Authority. (1) Title 5, United States Code, section 552a,
as amended, The Privacy Act of 1974.
(2) Title 5, United States Code, section 552, The Freedom of
Information Act (FOIA).
(3) Office of Personnel Management, Federal Personnel Manual (5 CFR
parts 293, 294, 297, and 7351).
(4) OMB Circular No. A-130, Management of Federal Information
Resources, Revised, August 2003.
(5) DOD Directive 5400.11, Department of Defense Privacy Program,
November 16, 2004.
(6) DOD Regulation 5400.11-R, Department of Defense Privacy
Program, August 1983.
(7) Title 10, United States Code, section 3013, Secretary of the
Army.
(8) Executive Order No. 9397, Numbering System for Federal Accounts
Relating to Individual Persons, November 30, 1943.
(9) Public Law 100-503, the Computer Matching and Privacy Act of
1974.
(10) Public Law 107-347, section 208, Electronic Government (E-Gov)
Act of 2002.
(11) DOD Regulation 6025.18-R, DOD Health Information Privacy
Regulation, January 24, 2003.
Sec. 505.2 General provisions.
(a) Individual privacy rights policy. Army policy concerning the
privacy rights of individuals and the Army's responsibilities for
compliance with the Privacy Act are as follows--
(1) Protect the privacy of United States living citizens and aliens
lawfully admitted for permanent residence from unwarranted intrusion.
(2) Deceased individuals do not have Privacy Act rights, nor do
executors or next-of-kin in general. However, immediate family members
may have limited privacy rights in the manner of death details and
funeral arrangements of the deceased individual. Family members often
use the deceased individual's Social Security Number (SSN) for Federal
entitlements; appropriate safeguards must be implemented to protect the
deceased individual's SSN from release. Also, the Health Insurance
Portability and Accountability Act extends protection to certain
medical information contained in a deceased individual's medical
records.
(3) Maintain only such information about an individual that is
necessary to accomplish the Army's mission.
(4) Maintain only personal information that is timely, accurate,
complete, and relevant to the collection purpose.
(5) Safeguard personal information to prevent unauthorized use,
access, disclosure, alteration, or destruction.
(6) Maintain records for the minimum time required in accordance
with an approved National Archives and Records Administration record
disposition.
(7) Let individuals know what Privacy Act records the Army
maintains by publishing Privacy Act system of records notices in the
Federal Register. This will enable individuals to review and make
copies of these records, subject to the exemptions authorized by law
and approved by the Secretary of the Army. Department of the Army
Privacy Act systems of records notices are available at http://www.defenselink.mil/privacy
.
(8) Permit individuals to correct and amend records about
themselves which they can prove are factually in error, not timely, not
complete, not accurate, or not relevant.
(9) Allow individuals to request an administrative review of
decisions that deny them access to or the right to amend their records.
(10) Act on all requests promptly, accurately, and fairly.
(11) Keep paper and electronic records that are retrieved by name
or personal identifier only in approved Privacy Act systems of records.
(12) Maintain no records describing how an individual exercises his
or her rights guaranteed by the First Amendment (freedom of religion,
freedom of political beliefs, freedom of speech and press, freedom of
peaceful assemblage, and petition) unless expressly authorized by
statute, pertinent to and within the scope of an authorized law
enforcement activity, or otherwise authorized by law or regulation.
(13) Maintain appropriate administrative technical and physical
safeguards to ensure records are protected from unauthorized alteration
or disclosure.
(b) Safeguard personal information.
(1) Privacy Act data will be afforded reasonable safeguards to
prevent inadvertent or unauthorized disclosure of records during
processing, storage, transmission, and disposal.
(2) Personal information should never be placed on shared drives
that are accessed by groups of individuals unless each person has an
``official need to know'' the information in the performance of
official duties.
(3) Safeguarding methods must strike a balance between the
sensitivity of the data, need for accuracy and reliability for
operations, general security of the area, and cost of the safeguards.
In some situations, a password may be enough protection for an
automated system with a log-on protocol. For additional guidance on
safeguarding personal information in automated records see
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AR 380-67, The Department of the Army Personnel Security Program.
(c) Conveying privacy protected data electronically via e-mail and
the World Wide Web.
(1) Unencrypted electronic transmission of privacy protected data
makes the Army vulnerable to information interception which can cause
serious harm to the individual and the accomplishment of the Army's
mission.
(2) The Privacy Act requires that appropriate technical safeguards
be established, based on the media (e.g., paper, electronic) involved,
to ensure the security of the records and to prevent compromise or
misuse during transfer.
(3) Privacy Web sites and hosted systems with privacy-protected
data will employ secure sockets layers (SSL) and Public Key
Infrastructure (PKI) encryption certificates or other DoD-approved
commercially available certificates for server authentication and
client/server authentication. Individuals who transmit data containing
personally identifiable information over e-mail will employ PKI or
other DoD-approved certificates.
(4) When sending Privacy Act protected information within the Army
using encrypted or dedicated lines, ensure that--
(i) There is an ``official need to know'' for each addressee
(including ``cc'' addressees); and
(ii) The Privacy Act protected information is marked For Official
Use Only (FOUO) to inform the recipient of limitations on further
dissemination. For example, add FOUO to the beginning of an e-mail
message, along with the following language: ``This contains FOR
OFFICIAL USE ONLY (FOUO) information which is protected under the
Privacy Act of 1974 and AR 340-21, The Army Privacy Program. Do not
further disseminate this information without the permission of the
sender.''
(iii) Do not indiscriminately apply this statement. Use it only in
situations when actually transmitting protected Privacy Act
information.
(iv) For additional information about marking documents ``FOUO''
review AR 25-55, Chapter IV.
(5) Add appropriate ``Privacy and Security Notices'' at major Web
site entry points. Refer to AR 25-1, para 6-4n for requirements for
posting ``Privacy and Security Notices'' on public Web sites.
Procedures related to the establishing, operating, and maintaining of
unclassified DA Web sites can be accessed at http://www.defenselink.mil/webmasters/policy/DOD_web_policy
.
(6) Ensure public Web sites comply with policies regarding
restrictions on persistent and third party cookies. The Army prohibits
both persistent and third part cookies. (see AR 25-1, para 6-4n)
(7) A Privacy Advisory is required on Web sites which host
information systems soliciting personally identifying information, even
when not maintained in a Privacy Act system of records. The Privacy
Advisory informs the individual why the information is solicited and
how it will be used. Post the Privacy Advisory to the Web site page
where the information is being solicited, or to a well marked hyperlink
stating ``Privacy Advisory--Please refer to the Privacy and Security
Notice that describes why this information is collected and how it will
be used.''
(d) Protecting records containing personal identifiers such as
names and Social Security Numbers.
(1) Only those records covered by a Privacy Act system of records
notice may be arranged to permit retrieval by a personal identifier
(e.g., an individual's name or Social Security Number). AR 25-400-2,
paragraph 6-2 requires all records covered by a Privacy Act system of
records notice to include the system of record identification number on
the record label to serve as a reminder that the information contained
within must be safeguarded.
(2) Use a coversheet or DA Label 87 (For Official Use Only) for
individual records not contained in properly labeled file folders or
cabinets.
(3) When developing a coversheet, the following is an example of a
statement that you may use: ``The information contained within is FOR
OFFICIAL USE ONLY (FOUO) and protected by the Privacy Act of 1974.''
(e) Nomination of individuals when personal information is lost,
stolen, or compromised.
(1) Whenever an Army organization becomes aware the protected
personal information pertaining to a Service member, civilian employee
(appropriated or non-appropriated fund), military retiree, family
member, or another individual affiliated with Army organization (e.g.,
volunteer) has been lost, stolen, or compromised, the organization
shall inform the affected individuals as soon as possible, but not
later than ten days after the loss or compromise of protected personal
information is discovered.
(2) At a minimum, the organization shall advise individuals of what
specific data was involved; the circumstances surrounding the loss,
theft, or compromise; and what protective actions the individual can
take.
(3) If Army organizations are unable to comply with policy, they
will immediately notify their superiors, who will submit a memorandum
through the chain of command to the Administrative Assistant of the
Secretary of the Army to explain why the affected individual's or
population's personal information has been lost, stolen, or
compromised.
(4) This policy is also applicable to Army contractors who collect,
maintain, use, or disseminate protected personal information on behalf
of the organization.
(f) Federal government contractors' compliance.
(1) When a DA activity contracts for the design, development, or
operation of a Privacy Act system of records in order to accomplish a
DA mission, the agency must apply the requirements of the Privacy Act
to the contractor and its employees working on the contract (See 48 CFR
part 24 and other applicable supplements to the FAR; 32 CFR part 310).
(2) System Managers will review annually, contracts contained
within the system(s) of records under their responsibility, to
determine which ones contain provisions relating to the design,
development, or operation of a Privacy Act system of records.
(3) Contractors are considered employees of the Army for the
purpose of the sanction provisions of the Privacy Act during the
performance of the contract requirements.
(4) Disclosing records to a contractor for use in performing the
requirements of an authorized DA contract is considered a disclosure
within the agency under exception (b)(1), ``Official Need to Know'', of
the Act.
Sec. 505.3 Privacy Act systems of records.
(a) Systems of records. (1) A system of records is a group of
records under the control of a DA activity that are retrieved by an
individual's name or by some identifying number, symbol, or other
identifying particular assigned to an individual.
(2) Privacy Act systems of records must be--
(i) Authorized by Federal statute or an Executive Order;
(ii) Needed to carry out DA's mission; and
(iii) Published in the Federal Register in a system of records
notice, which will provide the public an opportunity to comment before
DA implements or changes the system.
(3) The mere fact that records are retrievable by a name or
personal identifier is not enough. Records must actually be retrieved
by a name or personal identifier. Records in a group
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of records that may be retrieved by a name or personal identifier but
are not normally retrieved by this method are not covered by this part.
However, they are covered by AR 25-55, the Department of the Army
Freedom of Information Act Program.
(4) The existence of a statute or Executive Order mandating the
maintenance of a system of records to perform an authorized activity
does not abolish the responsibility to ensure the information in the
system of records is relevant and necessary to perform the authorized
activity.
(b) Privacy Act system of records notices.
(1) DA must publish notices in the Federal Register on new,
amended, altered, or deleted systems of records to inform the public of
the Privacy Act systems of records that it maintains. The Privacy Act
requires submission of new or significantly changed systems of records
to OMB and both houses of Congress before publication in the Federal
Register (See Appendix E of this part).
(2) Systems managers must send a proposed notice at least 120 days
before implementing a new, amended or altered system to the DA Freedom
of Information and Privacy Office. The proposed or altered notice must
include a narrative statement and supporting documentation. A narrative
statement must contain the following items:
(i) System identifier and name;
(ii) Responsible Official, title, and phone number;
(iii) If a new system, the purpose of establishing the system or if
an altered system, nature of changes proposed;
(iv) Authority for maintenance of the system;
(v) Probable or potential effects of the system on the privacy of
individuals;
(vi) Whether the system is being maintained, in whole or in part,
by a contractor;
(vii) Steps taken to minimize risk of unauthorized access;
(viii) Routine use compatibility;
(ix) Office of Management and Budget information collection
requirements; and
(x) Supporting documentation as an attachment. Also as an
attachment should be the proposed new or altered system notice for
publication in the Federal Register.
(3) An amended or altered system of records is one that has one or
more of the following:
(i) A significant increase in the number, type, or category of
individuals about whom records are maintained;
(ii) A change that expands the types of categories of information
maintained;
(iii) A change that alters the purpose for which the information is
used;
(iv) A change to equipment configuration (either hardware or
software) that creates substantially greater access to the records in
the system of records;
(v) An addition of an exemption pursuant to section (j) or (k) of
the Act; or
(vi) An addition of a routine use pursuant to 5 U.S.C. 552a(b)(3).
(4) For additional guidance contact the DA FOIA/P Office.
(5) On behalf of DA, the Defense Privacy Office maintains a list of
DOD Components' Privacy Act system of records notices at the Defense
Privacy Office's Web site http://www.defenselink.mil/privacy.
(6) DA PAM 25-51 sets forth procedures pertaining to Privacy Act
system of records notices.
(7) For new systems, system managers must establish appropriate
administrative, technical, and physical safeguards to ensure the
security and confidentiality of records. This applies to all new
systems of records whether maintained manually or automated.
(i) One safeguard plan is the development and use of a Privacy
Impact Assessment (PIA) mandated by the E-Gov Act of 2002, section 208.
The Office of Management and Budget specifically directs that a PIA be
conducted, reviewed, and published for all new or significantly altered
information in identifiable form collected from or about the members of
the public. The PIA describes the appropriate administrative,
technical, and physical safeguards for new automated systems. This will
assist in the protection against any anticipated threats or hazards to
the security or integrity of data, which could result in substantial
harm, embarrassment, inconvenience, or unfairness to any individual on
whom information is maintained. Contact your local Information Officer
for guidance on conducting a PIA.
(ii) The development of appropriate safeguards must be tailored to
the requirements of the system as well as other factors, such as the
system environment, location, and accessibility.
Sec. 505.4 Collecting personal information.
(a) General provisions. (1) Employees will collect personal
information to the greatest extent practicable directly from the
subject of the record. This is especially critical, if the information
may result in adverse determinations about an individual's rights,
benefits, and privileges under Federal programs (See 5 U.S.C.
552a(e)(2)).
(2) It is unlawful for any Federal, state, or local government
agency to deny anyone a legal right, benefit, or privilege provided by
law for refusing to give their SSN unless the law requires disclosure,
or a law or regulation adopted before January 1, 1975, required the SSN
or if DA uses the SSN to verify a person's identity in a system of
records established and in use before that date. Executive Order 9397
(issued prior to January 1, 1975) authorizes the Army to solicit and
use the SSN as a numerical identifier for individuals in most Federal
records systems. However, the SSN should only be collected as needed to
perform official duties. Executive Order 9397 does not mandate the
solicitation of SSNs from Army personnel as a means of identification.
(3) Upon entrance into military service or civilian employment with
DA, individuals are asked to provide their SSN. The SSN becomes the
service or employment number for the individual and is used to
establish personnel, financial, medical, and other official records.
After an individual has provided his or her SSN for the purpose of
establishing a record, the Privacy Act Statement is not required if the
individual is only requested to furnish or verify the SSN for
identification purposes in connection with the normal use of his or her
records. If the SSN is to be used for a purpose other than
identification, the individual must be informed whether disclosure of
the SSN is mandatory or voluntary; by what statutory authority the SSN
is solicited; and what uses will be made of the SSN. This notification
is required even if the SSN is not to be maintained in a Privacy Act
system of records.
(4) When asking an individual for his or her SSN or other personal
information that will be maintained in a system of records, the
individual must be provided with a Privacy Act Statement.
(b) Privacy Act Statement (PAS). (1) A Privacy Act Statement is
required whenever personal information is requested from an individual
and will become part of a Privacy Act system of records. The
information will be retrieved by the individual's name or other
personal identifier (See 5 U.S.C. 552a(e)(3)).
(2) The PAS will ensure that individuals know why the information
is being collected so they can make an informed decision as to
providing the personal information.
(3) In addition, the PAS will include language that is explicit,
easily understood, and not so lengthy as to deter an individual from
reading it.
[[Page 24499]]
(4) A sign can be displayed in areas where people routinely furnish
this kind of information, and a copy of the PAS will be made available
upon request by the individual.
(5) Do not ask the person to sign the PAS.
(6) A Privacy Act Statement must include the following four items--
(i) Authority: Cite the specific statute or Executive Order,
including a brief title or subject that authorizes the DA to collect
the personal information requested.
(ii) Principal Purpose(s): Cite the principal purposes for which
the information will be used.
(iii) Routine Uses: A list of where and why the information will be
disclosed OUTSIDE of DOD. Applicable routine uses are published in the
applicable Privacy Act system of records notice(s). If none, the
language to be used is: ``Routine Use(s): None. However the `Blanket
Routine Uses' set forth at the beginning of the Army's compilation of
systems of records notices apply.''
(iv) Disclosure: Voluntary or Mandatory. Include in the Privacy Act
Statement specifically whether furnishing the requested personal data
is mandatory or voluntary. A requirement to furnish personal data is
mandatory ONLY when a Federal statute, Executive Order, regulation, or
other law specifically imposes a duty on the individual to provide the
information sought, and when the individual is subject to a penalty if
he or she fails to provide the requested information. If providing the
information is only a condition of or prerequisite to granting a
benefit or privilege and the individual has the option of receiving the
benefit or privilege, providing the information is always voluntary.
However, the loss or denial of the privilege, benefit, or entitlement
sought must be listed as a consequence of not furnishing the requested
information.
(7) Some acceptable means of administering the PAS are as follows,
in the order of preference--
(i) Below the title of the media used to collect the personal
information. The PAS should be positioned so that the individual will
be advised of the PAS before he or she provides the requested
information;
(ii) Within the body with a notation of its location below the
title;
(iii) On the reverse side with a notation of its location below the
title;
(iv) Attached as a tear-off sheet; or
(v) Issued as a separate supplement.
(8) An example of a PAS is at appendix B of this part.
(9) Include a PAS on a Web site page if it collects information
directly from an individual and is retrieved by his or her name or
personal identifier (See Office of Management and Budget Privacy Act
Guidelines, 40 FR 28949, 28961 (July 9, 1975)).
(10) Army policy prohibits the collection of personally identifying
information on public Web sites without the express permission of the
user. Requests for exceptions must be forwarded to the Army CIO/G-6.
(See AR 25-1, para 6-4n.)
(c) Collecting personal information from third parties. (1) It may
not be practical to collect personal information directly from the
individual in all cases. Some examples of when collection from third
parties may be necessary are when--
(i) Verifying information;
(ii) Opinions or evaluations are needed;
(iii) The subject cannot be contacted; or
(iv) At the request of the subject individual.
(2) When asking third parties to provide information about other
individuals, they will be advised of--
(i) The purpose of the request; and
(ii) Their rights to confidentiality as defined by the Privacy Act
of 1974 (Consult with your servicing Staff Judge Advocate for potential
limitations to the confidentiality that may be offered pursuant to the
Privacy Act).
(d) Confidentiality promises. Promises of confidentiality must be
prominently annotated in the record to protect from disclosure any
information provided in confidence pursuant to 5 U.S.C. 552a(k)(2),
(k)(5), or (k)(7).
Sec. 505.5 Individual access to personal information.
(a) Individual access. (1) The access provisions of this part are
intended for use by individuals whose records are maintained in a
Privacy Act system of records. If a representative acts on their
behalf, a written authorization must be provided, with the exception of
members of Congress acting on behalf of a constituent.
(2) A Department of the Army ``Blanket Routine Use'' allows the
release of Privacy Act protected information to members of Congress
when they are acting on behalf of the constituent and the information
is filed and retrieved by the constituent's name or personal
identifier. The said ``Blanket Routine Use'' is listed below.
Congressional Inquiries Disclosure Routine Use: Disclosure from
a system of records maintained by a DOD Component may be made to a
congressional office from the record of an individual in response to
an inquiry from the congressional office made at the request of that
individual.
(3) Upon a written request, an individual will be granted access to
information pertaining to him or her that is maintained in a Privacy
Act system of records, unless--
(i) The information is subject to an exemption, the system manager
has invoked the exemption, and the exemption is published in the
Federal Register; or
(ii) The information was compiled in reasonable anticipation of a
civil action or proceeding.
(4) Legal guardians or parents acting on behalf of a minor child
have the minor child's rights of access under this part, unless the
records were created or maintained pursuant to circumstances where the
interests of the minor child were adverse to the interests of the legal
guardian or parent.
(5) These provisions should allow for the maximum release of
information consistent with Army and DOD's statutory responsibilities.
(b) Individual requests for access.
(1) Individuals will address requests for access to records in a
Privacy Act system of records to the system manager or the custodian of
the record designated in DA systems of records notices (See DA PAM 25-
51 or the Defense Privacy Office's Web site http://www.defenselink.mil/privacy
).
(2) Individuals do not have to state a reason or justify the need
to gain access to records under the Act.
(3) Release of personal information to individuals under this
section is not considered a ``public release'' of information.
(c) Verification of identity for first party requesters.
(1) Before granting access to personal data, an individual will
provide reasonable verification of identity.
(2) When requesting records in writing, the preferred method of
verifying identity is the submission of a notarized signature. An
alternative method of verifying identity for individuals who do not
have access to notary services is the submission of an un-sworn
declaration in accordance with 28 U.S.C. 1746 in the following format:
(i) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)''.
(ii) If executed outside of the United States: ``I declare under
perjury or penalty under the laws of the United States of America that
the foregoing is
[[Page 24500]]
true and correct. Executed on (date). (Signature).''
(3) When an individual seeks access in person, identification can
be verified by documents normally carried by the individual (such as
identification card, driver's license, or other license, permit or pass
normally used for identification purposes). However, level of proof of
identity is commensurate with the sensitivity of the records sought.
For example, more proof is required to access medical records than is
required to access parking records.
(4) Telephonic requests will not be honored.
(5) An individual cannot be denied access solely for refusal to
provide his or her Social Security Number (SSN) unless the SSN was
required for access by statute or regulation adopted prior to January
1, 1975.
(6) If an individual wishes to have his or her records released
directly to a third party or to be accompanied by a third party when
seeking access to his or her records, reasonable proof of authorization
must be obtained. The individual may be required to furnish a signed
access authorization with a notarized signature or other proof of
authenticity (i.e. telephonic confirmation) before granting the third
party access.
(d) Individual access to medical records.
(1) An individual must be given access to his or her medical and
psychological records unless a judgment is made that access to such
records could have an adverse effect on the mental or physical health
of the individual. This determination normally should be made in
consultation with a medical doctor. Additional guidance is provided in
DOD 5400.11-R, Department of Defense Privacy Program. In this instance,
the individual will be asked to provide the name of a personal health
care provider, and the records will be provided to that health care
provider, along with an explanation of why access without medical
supervision could be harmful to the individual.
(2) Information that may be harmful to the record subject should
not be released to a designated individual unless the designee is
qualified to make psychiatric or medical determinations.
(3) DA activities may offer the services of a military physician,
other than the one who provided the treatment.
(4) Do not require the named health care provider to request the
records for the individual.
(5) The agency's decision to furnish the records to a medical
designee and not directly to the individual is not considered a denial
for reporting purposes under the Act and cannot be appealed.
(6) However, no matter what the special procedures are, DA has a
statutory obligation to ensure that access is provided the individual.
(7) Regardless of age, all DA military personnel and all married
persons are considered adults. The parents of these individuals do not
have access to their medical records without written consent of the
individual.
(8) DOD 6025.18-R, DOD Health Information Privacy Regulation,
issued pursuant to the Health Insurance Portability and Accountability
Act (HIPAA) of 1996, has placed additional procedural requirements on
the uses and disclosure of individually identifiable health information
beyond those found in the Privacy Act of 1974 and this part. In order
to be in compliance with HIPAA, the additional guidelines and
procedures will be reviewed before release of an individual's
identifiable health information.
(e) Personal notes.
(1) The Privacy Act does not apply to personal notes of individuals
used as memory aids. These documents are not Privacy Act records and
are not subject to this part.
(2) The five conditions for documents to be considered personal
notes are as follows--
(i) Maintained and discarded solely at the discretion of the
author;
(ii) Created only for the author's personal convenience and the
notes are restricted to that of memory aids;
(iii) Not the result of official direction or encouragement,
whether oral or written;
(iv) Not shown to others for any reason; and
(v) Not filed in agency files.
(3) Any disclosure from personal notes, either intentional or
through carelessness, removes the information from the category of
memory aids and the personal notes then become subject to provisions of
the Act.
(f) Denial or limitation of individual's right to access.
(1) Even if the information is filed and retrieved by an
individual's name or personal identifier, his or her right to access
may be denied if--
(i) The records were compiled in reasonable anticipation of a civil
action or proceeding including any action where DA expects judicial or
administrative adjudicatory proceedings. The term ``civil action or
proceeding'' includes quasi-judicial, pre-trial judicial, and
administrative proceedings, as well as formal litigation;
(ii) The information is about a third party and does not pertain to
the requester. A third party's SSN and home address will be withheld.
However, information about the relationship between the individual and
the third party would normally be disclosed as it pertains to the
individual;
(iii) The records are in a system of records that has been properly
exempted by the Secretary of the Army from the access provisions of
this part and the information is exempt from release under a provision
of the Freedom of Information Act (See appendix C of this part for a
list of applicable Privacy Act exemptions, exceptions, and ``Blanket''
routine uses);
(iv) The records contain properly classified information that has
been exempted from the access provision of this part;
(v) The records are not described well enough to enable them to be
located with a reasonable amount of effort on the part of an employee
familiar with the file. Requesters should reasonably describe the
records they are requesting. They do not have to designate a Privacy
Act system of records notice identification number, but they should at
least identify a type of record or functional area. For requests that
ask for ``all records about me,'' DA personnel should ask the requester
for more information to narrow the scope of his or her request; and
(vi) Access is sought by an individual who fails or refuses to
comply with Privacy Act established procedural requirements, included
refusing to pay fees.
(2) Requesters will not use government equipment, supplies,
stationery, postage, telephones, or official mail channels for making
Privacy Act requests. System managers will process such requests but
inform requesters that using government resources to make Privacy Act
requests is not authorized.
(3) When a request for information contained in a Privacy Act
system of records is denied in whole or in part, the Denial Authority
or designee shall inform the requester in writing and explain why the
request for access has been refused.
(4) A request for access, notification, or amendment of a record
shall be acknowledged in writing within 10 working days of receipt by
the proper system manager or record custodian.
(g) Relationship between the Privacy Act and the Freedom of
Information Act.
(1) Not all requesters are knowledgeable of the appropriate
statutory authority to cite when
[[Page 24501]]
requesting information. In some instances, they may cite neither the PA
nor the Freedom of Information Act in their request. In some instances
they may cite one Act but not the other. The Freedom of Information Act
and the PA works together to ensure that requesters receive the
greatest amount of information possible.
(2) Do not deny the individual access to his or her records simply
because he or she failed to cite the appropriate statute or regulation.
(3) If the records are required to be released under the Freedom of
Information Act, the PA will never block disclosure to requester. If
the PA allows the DA activity to deny access to an individual, the
Freedom of Information Act must still be applied, and the information
released if required by the Freedom of Information Act.
(4) Unlike the Freedom of Information Act, the Privacy Act applies
only to U.S. citizens and aliens lawfully admitted for permanent
residence.
(5) Requesters who seek records about themselves contained in a
Privacy Act system of records (1st party requesters) and who cite or
imply only the Privacy Act, will have their request processed under the
provisions of both the PA and the Freedom of Information Act. If the
information requested is not contained in a Privacy Act system of
records or is not about the requester, the individual's request will be
processed under the provisions of the Freedom of Information Act only,
and the Freedom of Information Act processing requirements/time lines
will apply.
(6) Third party information.
(i) Third party information contained in a Privacy Act system of
records that does not pertain to the requester, such as SSN, home
addresses, and other purely personal information that is not about the
requester, will be processed under the provisions of Freedom of
Information Act only. Third party information that is not about the
requester is not subject to the Privacy Act's first party access
provision.
(ii) Information about the relationship between the first party
requester and a third party is normally disclosed as pertaining to the
first party requester. Consult your servicing Staff Judge Advocate if
there is a question about the release of third party information to a
first party requester.
(7) If an individual requests information about them contained in a
Privacy Act system of records, the individual may be denied the
information only if the information is exempt under both the PA and the
Freedom of Information Act. Both PA and Freedom of Information Act
exemptions will be cited in the denial letter and appeals will be
processed in accordance with both Acts.
(8) Each time a first party requester cites or implies the PA,
perform this analysis:
(i) Is the request from a United States living citizen or an alien
lawfully admitted for permanent residence?
(ii) Is the individual requesting an agency record?
(iii) Are the records within a PA system of records that are filed
and retrieved by an individual's name or other personal identifier? (If
the answer is ``yes'' to all of these questions, then the records
should be processed under the ``Privacy Act'') and
(iv) Does the information requested pertain exclusively to the
requester?
(A) If yes, no further consideration of Freedom of Information Act
exemptions required. Release all information unless a PA exemption
authorizes withholding.
(B) If no, process the information that is not about the requester
under the Freedom of Information Act and withhold only if a proper
Freedom of Information Act exemption applies.
(h) Functional requests. If an individual asks for his or her
records and does not cite or reasonably imply either the Privacy Act or
the Freedom of Information Act, and another prescribing directive or
regulation authorizes the release, the records should be released under
that other directive or regulation and not the PA or the FOIA. Examples
of functional requests are military members asking to see their
Official Military Personnel Records or civilian employees asking to see
their Official Personnel Folder.
(i) Procedures for denying or limiting an individual's right to
access or amendment and the role of the Denial Authority.
(1) The only officials authorized to deny a request for records or
a request to amend records in a PA system of records pertaining to the
requesting individual, are the appropriate Denial Authorities, their
designees, or the Secretary of the Army who will be acting through the
General Counsel.
(2) Denial Authorities are authorized to deny requests, either in
whole or in part, for notification, access and amendment of Privacy Act
records contained in their respective areas of responsibility.
(i) The Denial Authority may delegate all or part of their
authority to a division chief under his supervision within the Agency
in the grade of 0-5/GS-14 or higher. All delegations must be in
writing.
(ii) The Denial Authority will send the names, office names, and
telephone numbers of their delegates to the DA Freedom of Information
and Privacy Office.
(iii) If a Denial Authority delegate denies access or amendment,
the delegate must clearly state that he or she is acting on behalf of
the Denial Authority, who must be identified by name and position in
the written response to the requester. Denial Authority designation
will not delay processing privacy requests/actions.
(iv) The official Denial Authorities are for records under their
authority (See appendix B of this part). The individuals designated as
Denial Authorities under this part are the same individuals designated
as Initial Denial Authorities under AR 25-55, the Department of the
Army Freedom of Information Act Program. However, delegation of Denial
Authority pursuant to this part does not automatically encompass
delegation of Initial Denial Authority under AR 25-55. Initial Denial
Authority must be expressly delegated pursuant to AR 25-55 for an
individual to take action on behalf of an Initial Denial Authority
under AR 25-55.
(3) The custodian of the record will acknowledge requests for
access made under the provisions of the Privacy Act within 10 working
days of receipt.
(4) Requests for information recommended for denial will be
forwarded to the appropriate Denial Authority, along with a copy of the
records and justification for withholding the record. At the same time,
notify the requester of the referral to the Denial Authority for
action. All documents or portions thereof determined to be releasable
to the requester will be released to the requester before forwarding
the case to the Denial Authority.
(5) Within 30 working days, the Denial Authority will provide the
following notification to the requester in writing if the decision is
to deny the requester access to the information.
(6) Included in the notification will be:
(i) Denying Official's name, position title, and business address;
(ii) Date of the denial;
(iii) The specific reason for the denial, citing the appropriate
subsections of the Privacy Act, the Freedom of Information Act, AR 25-
55, The Department of the Army Freedom of Information Act Program and
this part; and
(iv) The individual's right to administratively appeal the denial
within 60 calendar days of the mailing date of the notice, through the
Denial Authority, to the Office of the General Counsel, Secretary of
the Army, 104
[[Page 24502]]
Army Pentagon, Washington, DC 20310-0104.
(7) The appeal must be in writing and the requester should provide
a copy of the denial letter and a statement of their reasons for
seeking review.
(8) For denials made by the DA when the record is maintained in a
Government-wide system of records, an individual's request for further
review must be addressed to each of the appropriate government Privacy
Act offices listed in the Privacy Act system of records notices. For a
current listing of Government-wide Privacy Act system of records
notices see the Defense Privacy Office's Web site http://www.defenselink.mil/privacy
or DA PAM 25-51.
(j) No records determinations.
(1) Since a no record response may be considered an ``adverse''
determination, the Denial Authority must make the final determination
that no records exist. The originating agency shall notify the
requester that an initial determination has been made that there are no
responsive records, however the final determination will be made by the
Denial Authority. A no records certificate must accompany a no records
determination that is forwarded to the Denial Authority.
(2) The Denial Authority must provide the requester with appeal
rights.
(k) Referral of requests.
(1) A request received by a DA activity having no records
responsive to a request shall be referred to another DOD Component or
DA activity, if the other Component or activity confirms that they have
the requested records, or verifies that they are the proper custodian
for that type of record. The requester will be notified of the
referral. In cases where the DA activity receiving the request has
reason to believe that the existence or nonexistence of the record may
in itself be classified, that activity will consult the Component or
activity having cognizance over the records in question before
referring the request. If the Component or activity that is consulted
determines that the existence or nonexistence of the records is in
itself classified, the requester shall be so notified by the DA
activity originally receiving the request that it can neither confirm
nor deny the existence of the record, and no referral shall take place.
(2) A DA activity shall refer a Privacy Act request for a
classified record that it holds to another DOD Component, DA activity,
or agency outside the Department of Defense, if the record originated
in the other DOD Component, DA activity, or outside agency, or if the
classification is derivative. The referring DA activity will provide
the records and a release recommendation with the referral action.
(3) Any DA activity receiving a request that has been misaddressed
will refer the request to the proper address and advise the requester.
(4) Within DA, referrals will be made directly to offices having
custody of the requested records (unless the Denial Authority is the
custodian of the requested records). If the office receiving the
Privacy Act request does not know where the requested records are
located, the office will contact the DA FOIA/P Office, to determine the
appropriate office for referral.
(5) The requester will be informed of the referral whenever records
or a portion of records are, after prior consultation, referred to
another activity for a release determination and direct response.
Additionally, the DA activity referral letter will accomplish the
following--
(i) Fully describe the Privacy Act system of records from which the
document was retrieved; and
(ii) Indicate whether the referring activity claims any exemptions
in the Privacy Act system of records notice.
(6) Within the DA, an activity will refer a Privacy Act request for
records that it holds but was originated by another activity, to the
originating activity for direct response. An activity will not, in any
case, release or deny such records without prior consultation with the
originating activity. The requester will be notified of such referral.
(7) A DA activity may refer a Privacy Act request for records that
originated in an agency outside of DOD, or that is based on information
obtained from an agency outside the DOD, to that agency for direct
response to the requester, only if that agency is subject to the
Privacy Act. Otherwise, the DA activity must respond to the request.
(8) DA activities will not honor any Privacy Act requests for
investigative, intelligence, or any other type of records that are on
loan to the Department of Defense for a specific purpose, if the
records are restricted from further release in writing. Such requests
will be referred to the agency that provided the records.
(9) A DA activity will notify requesters seeking National Security
Council (NSC) or White House documents that they should write directly
to the NSC or White House for such documents. DA documents in which the
NSC or White House have a concurrent reviewing interest will be
forwarded to the Department of Defense, Office of Freedom of
Information and Security Review, which will coordinate with the NSC or
White House, and return the documents to the originating DA activity
after NSC or White House review. NSC or White House documents
discovered in DA activity files which are responsive to a Privacy Act
request will be forwarded to DOD for coordination and return with a
release determination.
(10) To the extent referrals are consistent with the policies
expressed above; referrals between offices of the same DA activity are
authorized.
(l) Reproduction fees. (1) Use fees only to recoup direct
reproduction costs associated with granting access.
(2) DA activities may use discretion in their decision to charge
for the first copy of records provided to an individual to whom the
records pertain. Thereafter, fees will be computed pursuant to the fee
schedule set forth in AR 25-55, including the fee waiver provisions.
(3) Checks or money orders for fees should be made payable to the
Treasurer of the United States and will be deposited in the
miscellaneous receipts of the treasury account maintained at the
activity's finance office.
(4) Reproduction costs shall only include the direct costs of
reproduction and shall not include costs of--
(i) Time or effort devoted to searching for or reviewing the
records by personnel;
(ii) Fees not associated with the actual cost of reproduction;
(iii) Producing a copy when it must be provided to the individual
without cost under another regulation, directive, or law;
(iv) Normal postage;
(v) Transportation of records or personnel; or
(vi) Producing a copy when the individual has requested only to
review the records and has not requested a copy, and the only means of
allowing review is to make a copy (e.g., the records are stored in a
computer and a copy must be printed to provide individual access, or
the activity does not wish to surrender temporarily the original
records for the individual to review).
(m) Privacy Act case files.
(1) Whenever an individual submits a Privacy Act request, a case
file will be established. This Privacy Act case file is a specific type
of file that is governed by a specific Privacy Act system of records
notice. In no instance will the individual's Privacy Act request and
corresponding Army actions be included in the individual's military
personnel file or other military filing systems, such as adverse action
files or general legal files, and in no instance will the Privacy Act
case file be used to
[[Page 24503]]
make an adverse determination about the individual.
(2) The case file will be comprised of the request for access/
amendment, grants, refusals, coordination action(s), and all related
papers.
Sec. 505.6 Amendment of records.
(a) Amended records.
(1) Individuals are encouraged to periodically review the
information maintained about them in Privacy Act systems of records and
to familiarize themselves with the amendment procedures established by
this part.
(2) An individual may request to amend records that are retrieved
by his or her name or personal identifier from a system of records
unless the system has been exempted from the amendment provisions of
the Act. The standard for amendment is that the records are inaccurate
as a matter of fact rather than judgment, irrelevant, untimely, or
incomplete. The burden of proof is on the requester.
(3) The system manager or custodian must review Privacy Act records
for accuracy, relevance, timeliness, and completeness.
(4) Amendment procedures are not intended to permit individuals to
challenge events in records that have actually occurred. Amendment
procedures only allow individuals to amend those items that are
factually inaccurate and not matters of official judgment (e.g.,
performance ratings, promotion potential, and job performance
appraisals). In addition, an individual is not permitted to amend
records for events that have been the subject of judicial or quasi-
judicial actions/proceedings.
(b) Proper amendment requests.
(1) Amendment requests, except for routine administrative changes,
will be in writing.
(2) When acting on behalf of a first party requester, an individual
must provide written documentation of the first party requester's
consent to allow the individual to view his or her records.
(3) Amendment is appropriate if it can be shown that--
(i) Circumstances leading up to the recorded event were found to be
inaccurately reflected in the document;
(ii) The record is not identical to the individual's copy; or
(iii) The document was not constructed in accordance with the
applicable recordkeeping requirements prescribed in AR 25-400-2, The
Army Records Information Management System (ARIMS).
(4) Under the amendment provisions, an individual may not challenge
the merits of an adverse determination.
(5) U.S. Army Criminal Investigation Command (USACIDC) reports of
investigations (PA system of records notice A0195-2a USACIDC, Source
Register; A0195-2b USACIDC, Criminal Investigation and Crime Laboratory
Files) have been exempted from the amendment provisions of the Privacy
Act. Requests to amend these reports will be considered under AR 195-2.
Actions taken by the Commander of U.S. Army Criminal Investigation
Command will constitute final action on behalf of the Secretary of the
Army under that regulation.
(6) Records placed in the National Archives are exempt from the
Privacy Act provision allowing individuals to request amendment of
records. Most provisions of the Privacy Act apply only to those systems
of records that are under the legal control of the originating agency;
for example, an agency's current operating files or records stored at a
Federal Records Center.
(7) Inspector General investigative files and action request/
complaint files (records in system notice A0021-1 SAIG, Inspector
General Records) have been exempted from the amendment provisions of
the Privacy Act. Requests to amend these reports will be considered
under AR 20-1 by The Inspector General. Action by the The Inspector
General will constitute final action on behalf of the Secretary of the
Army under that regulation.
(8) Other records that are exempt from the amendment provisions of
the Privacy Act are listed in the applicable PA system of records
notices.
(c) Amendment procedures.
(1) Requests to amend records should be addressed to the custodian
or system manager of the records. The request must reasonably describe
the records to be amended and the changes sought (e.g., deletion,
addition, or amendment). The burden of proof is on the requester. The
system manager or records custodian will provide the individual with a
written acknowledgment of the request within 10 working days and will
make a final response within 30 working days of the date the request
was received. The acknowledgment must clearly identify the request and
inform the individual that final action will be forthcoming within 30
working days.
(2) Records for which amendment is sought must be reviewed by the
proper system manager or custodian for accuracy, relevance, timeliness,
and completeness.
(3) If the amendment is appropriate, the system manager or
custodian will physically amend the records accordingly. The requester
will be notified of such action.
(4) If the amendment is not warranted, the request and all relevant
documents, including reasons for not amending, will be forwarded to the
proper Denial Authority within 10 working days to ensure that the 30
day time limit for the final response is met. In addition, the
requester will be notified of the referral.
(5) Based on the documentation provided, the Denial Authority will
either amend the records and notify the requester and the custodian of
the records of all actions taken, or deny the request. If the records
are amended, those who have received the records in the past will
receive notice of the amendment.
(6) If the Denial Authority determines that the amendment is not
warranted, he or she will provide the requester and the custodian of
the records reason(s) for not amending. In addition, the Denial
Authority will send the requester an explanation regarding his or her
right to seek further review by the DA Privacy Act Review Board,
through the Denial Authority, and the right to file a concise
``Statement of Disagreement'' to append to the individual's records.
(i) On receipt of a request for further review by the Privacy Act
Review Board, the Denial Authority will append any additional records
or background information that substantiates the refusal or renders the
case complete;
(ii) Within 5 working days of receipt, forward the appeal to the DA
Privacy Act Review Board; and
(iii) Append the servicing Judge Advocate's legal review, including
a determination that the Privacy Act Review Board packet is complete.
(d) DA Privacy Act Review Board.
(1) The DA Privacy Act Review Board acts on behalf of the Secretary
of the Army in deciding appeals of the appropriate Denial Authority's
refusal to amend records.
(2) The Board will process an appeal within 30 working days of its
receipt. The General Counsel may authorize an additional 30 days when
unusual circumstances and good cause so warrant.
(3) The Board membership consists of the following principal
members, comprised of three voting and two non-voting members, or their
delegates.
(4) Three voting members include--
(i) Administrative Assistant to the Secretary of the Army (AASA)
who acts as the Chairman of the Board;
(ii) The Judge Advocate General; and
(iii) The Chief, DA Freedom of Information and Privacy Division,
U.S. Army Records Management and Declassification Agency.
(5) In addition, two non-voting members include--
[[Page 24504]]
(i) The Chief Attorney, OAASA (or designee) who serves as the legal
advisor and will be present at all Board sessions to provide legal
advice as required; and
(ii) Recording Secretary provided by the Office of the
Administrative Assistant to the Secretary of the Army.
(e) DA Privacy Act Review Board meetings.
(1) The meeting of the Board requires the presence of all five
members or their designated representatives. Other non-voting members
with subject matter expertise may participate in a meeting of the
Board, at the discretion of the Chairman.
(2) Majority vote of the voting members is required to make a final
determination on a request before the Board.
(3) Board members, who have denial authority, may not vote on a
matter upon which they took Denial Authority action. However, an
individual who took Denial Authority action, or his or her
representative, may serve as a non-voting member when the Board
considers matters in the Denial Authority's area of functional
specialization.
(4) The Board may seek additional information, including the
requester's official personnel file, if relevant and necessary to
decide the appeal.
(5) If the Board determines that an amendment is warranted (the
record is inaccurate as a matter of fact rather than judgment,
irrelevant, untimely, or incomplete) it will amend the record and
notify the requester, the Denial Authority, the custodian of the
record, and any prior recipients of the record, of the amendment.
(6) If the Board determines that amendment is unwarranted, they
will--
(i) Obtain the General Counsel's concurrence in writing;
(ii) Respond to the requester with the reasons for denial; and
(iii) Inform the requester of the right to file a ``Statement of
Disagreement'' with the Board's action and to seek judicial review of
the Army's refusal to amend. A ``Statement of Disagreement'' must be
received by the system manager within 120 days and it will be made an
integral part of the pertinent record. Anyone who may have access to,
use of, or need to disclose information from the record will be aware
that the record was disputed. The disclosing authority may include a
brief summary of the Board's reasons for not amending the disputed
record.
(7) It is inappropriate for the Privacy Act Review Board to
consider any record which is exempt from the amendment provision of the
Privacy Act.
Sec. 505.7 Disclosure of personal information to other agencies and
third parties.
(a) Disclosing records to third parties.
(1) DA is prohibited from disclosing a record from a Privacy Act
system of records to any person or agency without the prior written
consent of the subject of the record, except when--
(i) Pursuant to the twelve Privacy Act exceptions. The twelve
exceptions to the ``no disclosure without consent'' rule are those
exceptions which permit the release of personal information without the
individual's/subject's consent (See appendix C of this part).
(ii) The FOIA requires the release of the record. One of the twelve
exceptions to Privacy Act is the FOIA Exception. If the FOIA requires
the release of information, the information must be released. The
Privacy Act can not prevent release to a third party if the FOIA
requires release. However, information must not be discretionarily
released under the FOIA if the information is subject to the Privacy
Act's ``no disclosure without consent'' rule.
(iii) A routine use applies. Another major exception to the ``no
disclosure without consent'' rule is the routine use exception. The
Privacy Act allows federal agencies to publish routine use exceptions
to the Privacy Act. Some routine uses are Army specific, DOD specific,
and Government-wide. Routine uses exceptions are listed in the Privacy
Act system of records notice(s) applicable to the Privacy Act records
in question. The Army and other agencies' system of records notices may
be accessed at the Defense Privacy Office's Web site http://www.defenselink.mil/privacy
.
(2) The approved twelve exceptions to the Privacy Act ``no
disclosure without consent'' rule are listed at appendix C of this
part.
(b) Disclosing records to other DOD components and to Federal
agencies outside the DOD.
(1) The twelve Privacy Act exceptions referred to in appendix C of
this part are available to other DOD components and to Federal agencies
outside the DOD as exceptions to the Privacy Act's ``no disclosure
without consent'' rule, with the exception of the FOIA exception. The
FOIA is not an appropriate mechanism for providing information to other
DOD components and to Federal agencies outside the DOD.
(2) A widely used exception to requests for information from local
and state government agencies and Federal agencies not within the DOD
is the routine use exception to the Privacy Act.
(3) The most widely used exception to requests for information from
other DOD components is the ``intra-agency need to know'' exception to
the Privacy Act. Officers and employees of the DOD who have an official
need for the records in the performance of their official duties are
entitled to Privacy Act protected information. Rank, position, or title
alone does not authorize access to personal information about others.
An official need for the information must exist before disclosure.
(4) For the purposes of disclosure and disclosure accounting, the
Department of Defense (DOD) is considered a single agency.
(c) Disclosures under AR 25-55, the Freedom of Information Act
(FOIA) Program.
(1) Despite Privacy Act protections, all records must be disclosed
if the Freedom of Information Act (FOIA) requires their release. The
FOIA requires release unless the information is exempted by one or more
of the nine FOIA exemptions.
(2) Required release under the FOIA. The following are examples of
personal information that is generally not exempt from the FOIA;
therefore, it must be released to the public, unless covered by
paragraphs (d)(2) and (d)(3) of this section. The following list is not
all inclusive:
(i) Military Personnel--
(A) Rank, date of rank, active duty entry date, basic pay entry
date, and gross pay (including base pay, special pay, and all
allowances except Basic Allowance for Housing);
(B) Present and past duty assignments, future stateside
assignments;
(C) Office/unit name, duties address and telephone number (DOD
policy may require withholding of this information in certain
circumstances);
(D) Source of commission, promotion sequence number, military
awards and decorations, and professional military education;
(E) Duty status, at any given time;
(F) Separation or retirement dates;
(G) Military occupational specialty (MOS);
(H) Active duty official attendance at technical, scientific or
professional meetings; and
(I) Biographies and photos of key personnel (DOD policy may require
withholding of this information in certain circumstances).
(ii) Federal civilian employees--
(A) Present and past position titles, occupational series, and
grade;
(B) Present and past annual salary rates (including performance
awards or
[[Page 24505]]
bonuses, incentive awards, merit pay amount, Meritorious or
Distinguished Executive Ranks, and allowances and differentials);
(C) Present and past duty stations;
(D) Office or duty telephone number (DOD policy may require
withholding of this information in certain circumstances); and
(E) Position descriptions, identification of job elements, and
performance standards (but not actual performance appraisals), the
release of which would not interfere with law enforcement programs or
severely inhibit agency effectiveness. Performance elements and
standards (or work expectations) may also be withheld when they are so
intertwined with performance appraisals, the disclosure would reveal an
individual's performance appraisal.
(d) Personal information that requires protection.
(1) The following are examples of information that is generally NOT
releasable without the written consent of the subject. This list is not
all inclusive--
(i) Marital status;
(ii) Dependents' names, sex and SSN numbers;
(iii) Civilian educational degrees and major areas of study (unless
the request for the information relates to the professional
qualifications for Federal employment);
(iv) School and year of graduation;
(v) Home of record;
(vi) Home address and phone;
(vii) Age and date of birth;
(viii) Overseas assignments (present or future);
(ix) Overseas office or unit mailing address and duty phone of
routinely deployable or sensitive units;
(x) Race/ethnic origin;
(xi) Educational level (unless the request for the information
relates to professional qualifications for federal employment);
(xii) Social Security Number (SSN); and
(xiii) The information that would otherwise be protected from
mandatory disclosure under a FOIA exemption.
(2) The Office of the Secretary of Defense issued a policy
memorandum in 2001 that provided greater protection of DOD personnel in
the aftermath of 9/11 by requiring information that personally
identifies DOD personnel be more carefully scrutinized and limited. In
general, the Department of Defense has specifically advised that DOD
components are not to release lists of names, duty addresses, present
or past position titles, grades, salaries, and performance standards of
DOD military members and civilian employees. At the office director
level or above, the release of information will be limited to the name,
official title, organization, and telephone number, provided a
determination is made that disclosure does not raise security or
privacy concerns. No other information, including room numbers, will
normally be released about these officials. Consistent with current
policy, information on officials below the office director level may
continue to be released if their positions or duties require frequent
interaction with the public.
(3) Disclosure of records pertaining to personnel of overseas,
sensitive, or routinely deployed units shall be prohibited to the
extent authorized by 10 U.S.C. 130b.
(e) Release of home addresses and home telephone numbers.
(1) The release of home addresses and home telephone numbers
normally is prohibited. This release is normally considered a clearly
``unwarranted invasion'' of personal privacy and is exempt from
mandatory release under the FOIA. However, home addresses and home
telephone numbers may still be released if--
(i) The individual has indicated previously in writing that he or
she has no objection to the release;
(ii) The source of the information to be released is a public
document such as commercial telephone directory or other public
listing;
(iii) The release is required by Federal statute (for example,
pursuant to federally funded state programs to locate parents who have
defaulted on child support payments) (See 42 U.S.C. 653); or
(iv) The releasing of information is pursuant to the routine use
exception or the ``intra-agency need to know'' exception to the Privacy
Act.
(2) A request for a home address or telephone number may be
referred to the last known address of the individual for a direct reply
by the individual to the requester. In such cases, the requester shall
be notified of the referral.
(3) Do not sell or rent lists of individual names and addresses
unless such action is specifically authorized by the appropriate
authority.
(f) Emergency Recall Rosters.
(1) The release of emergency recall rosters normally is prohibited.
Their release is normally considered a clearly ``unwarranted invasion''
of personal privacy and is exempt from mandatory release under the
FOIA. Emergency recall rosters should only be shared with those who
have an ``official need to know'' the information, and they should be
marked ``For Official Use Only'' (See AR 25-55).
(2) Do not include a person's SSN on an emergency recall roster or
their spouse's name.
(3) Commanders and supervisors should give consideration to those
individuals with unlisted phone numbers. Commanders and supervisors
should consider limiting access to an unlisted number within the unit.
(g) Social Rosters.
(1) Before including personal information such as a spouse's name,
home addresses, home phone numbers, and similar information on social
rosters or social directories, which will be shared with individuals,
always ask for the individual's written consent. Without their written
consent, do not include this information.
(2) Collection of this information will require a Privacy Act
Statement which clearly tells the individual what information is being
solicited, the purpose, to whom the disclosure of the information is
made, and whether collection of the information is voluntary or
mandatory.
(h) Disclosure of personal information on group orders.
(1) Personal information will not be posted on group orders so that
everyone on the orders can view it. Such a disclosure of personal
information violates the Privacy Act and this part.
(2) The following are some examples of personal information that
should not be contained in group orders. The following list is not all
inclusive--
(i) Complete SSN;
(ii) Home addresses and phone numbers; or
(iii) Date of birth.
(i) Disclosures for established routine uses.
(1) Records may be disclosed outside the DOD without the consent of
the individual to whom they pertain for an established routine use.
(2) A routine use shall--
(i) Be compatible with and related to the purpose for which the
record was compiled;
(ii) Identify the persons or organizations to which the records may
be released; and
(iii) Have been published previously in the Federal Register.
(3) Establish a routine use for each user of the information
outside the Department of Defense who needs official access to the
records.
(4) Routine uses may be established, discontinued, or amended
without the consent of the individuals involved. However, new or
changed routine uses must be published in the Federal
[[Page 24506]]
Register at least 30 days before actually disclosing any records.
(5) In addition to the routine uses listed in the applicable
systems of records notices, ``Blanket Routine Uses'' for all DOD
maintained systems of records have been established. These ``Blanket
Routine Uses'' are applicable to every record system maintained within
the DOD unless specifically stated otherwise within a particular record
system. The ``Blanket Routine Uses'' are listed at appendix C of this
part.
(j) Disclosure accounting.
(1) System managers must keep an accurate record of all disclosures
made from DA Privacy Act system of records, including those made with
the consent of the individual, except when records are--
(i) Disclosed to DOD officials who have a ``need to know'' the
information to perform official government duties; or
(ii) Required to be disclosed under the Freedom of Information Act.
(2) The purpose for the accounting of disclosure is to--
(i) Enable an individual to ascertain those persons or agencies
that have received information about them;
(ii) Enable the DA to notify past recipients of subsequent
amendments or ``Statements of Dispute'' concerning the record; and
(iii) Provide a record of DA compliance with the Privacy Act of
1974, if necessary.
(3) Since the characteristics of records maintained within DA vary
widely, no uniform method for keeping the disclosure accounting is
prescribed.
(4) Essential elements to include in each disclosure accounting
report are--
(i) The name, position title, and address of the person making the
disclosure;
(ii) Description of the record disclosed;
(iii) The date, method, and purpose of the disclosure; and
(iv) The name, position title, and address of the person or agency
to which the disclosure was made.
(5) The record subject has the right of access to the disclosure
accounting except when--
(i) The disclosure was made for law enforcement purposes under 5
U.S.C. 552a(b)(7); or
(ii) The disclosure was made from a system of records for which an
exemption from 5 U.S.C. 552a(c)(3) has been claimed.
(6) There are no approved filing procedures for the disclosure of
accounting records; however, system managers must be able to retrieve
upon request. With this said, keep disclosure accountings for 5 years
after the disclosure, or for the life of the record, whichever is
longer.
(7) When an individual requests such an accounting, the system
manager or designee will respond within 20 working days.
Sec. 505.8 Training requirements.
(a) Training.
(1) The Privacy Act requires all heads of Army Staff agencies,
field operating agencies, direct reporting units, Major Commands,
subordinate commands, and installations to establish rules of conduct
for all personnel involved in the design, development, operation, and
maintenance of any Privacy Act system of records and to train the
appropriate personnel with respect to the privacy rules including the
penalties for non-compliance (See 5 U.S.C. 552a(e)(9)).
(2) To meet the training requirements, three general levels of
training must be established. They are--
(i) Orientation. Training that provides basic understanding of this
part as it applies to the individual's job performance. This training
will be provided to personnel, as appropriate, and should be a
prerequisite to all other levels of training;
(ii) Specialized training. Training that provides information as to
the application of specific provisions of this part to specialized
areas of job performance. Personnel of particular concern include, but
are not limited to, personnel specialists, finance officers, DOD
personnel who may be expected to deal with the news media or the
public, special investigators, paperwork managers, individuals working
with medical and security records, records managers, computer systems
development personnel, computer systems operations personnel,
statisticians dealing with personal data and program evaluations,
contractors and anyone responsible for implementing or carrying out
functions under this part. Specialized training should be provided on a
periodic basis; and
(iii) Managerial training. Training designed to identify for
responsible managers (such as senior system managers, Denial
Authorities, and functional managers described in this section) issues
that they should consider when making management decisions affected by
the Privacy Act Program.
(b) Training tools. Helpful resources include--
(1) Privacy Act training slides for Major Commands and Privacy Act
Officers: Contact the DA FOIA/P Office, or slides can be accessed at
the Web site https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp
.
(2) The ``DOJ Freedom of Information Act Guide and Privacy Act
Overview': The U.S. Department of Justice, Executive Office for United
States Attorneys, Office of Legal Education, 600 E. Street, NW., Room
7600, Washington, DC 20530, or training programs can be accessed at the
Web site http://www.usdoj.gov/usao/eousa/ole.html.
Sec. 505.9 Reporting requirements.
The Department of the Army will submit reports, consistent with the
requirements of DOD 5400.11-R, OMB Circular A-130, and as otherwise
directed by the Defense Privacy Office. Contact the DA FOIA/P Office
for further guidance regarding reporting requirements.
Sec. 505.10 Use and establishment of exemptions.
(a) Three types of exemptions.
(1) There are three types of exemptions applicable to an
individual's right to access permitted by the Privacy Act. They are the
Special, General, and Specific exemptions.
(2) Special exemption (d)(5)--Relieves systems of records from the
access provision of the Privacy Act only. This exemption applies to
information compiled in reasonable anticipation of a civil action or
proceeding.
(3) General exemption (j)(2)--Relieves systems of records from most
requirements of the Act. Only Army activities actually engaged in the
enforcement of criminal laws as their primary function may claim this
exemption.
(4) Specific exemptions (k)(1)-(k)(7)--Relieves systems of records
from only a few provisions of the Act.
(5) To find out if an exemption is available for a particular
record, refer to the applicable system of records notices. System of
records notices will state which exemptions apply to a particular type
of record. System of records notices that are applicable to the Army
are contained in DA Pam 25-51 (available at the Army Publishing
Directorate Web site http://www.usapa.army.mil/), the Defense Privacy Office's Web site http://www.defenselink.mil/privacy/), or in this
s
section). Some of the system of records notices apply only to the Army
and the DOD and some notices are applicable government-wide.
(6) Descriptions of current exemptions are listed in detail at
appendix C of this part.
(b) Exemption procedures.
(1) For the General and Specific exemptions to be applicable to the
[[Page 24507]]
Army, the Secretary of the Army must promulgate exemption rules to
implement them. This requirement is not applicable to the one Special
exemption which is self-executing. Once an exemption is made applicable
to the Army through the exemption rules, it will be listed in the
applicable system of records notices to give notice of which specific
types of records the exemption applies to. When a system manager seeks
to have an exemption applied to a certain Privacy Act system of records
that is not currently provided for by an existing system of records
notice, the following information will be furnished to the DA FOIA/P
Office--
(i) Applicable system of records notice;
(ii) Exemption sought; and
(iii) Justification.
(2) After appropriate staffing and approval by the Secretary of the
Army and the Defense Privacy Office, it will be published in the
Federal Register as a proposed rule, followed by a final rule 60 days
later. No exemption may be invoked until these steps have been
completed.
Sec. 505.11 Federal Register publishing requirements.
(a) The Federal Register. There are three types of documents
relating to the Privacy Act Program that must be published in the
Federal Register. They are the DA Privacy Program policy and procedures
(AR 340-21), the DA exemption rules, and Privacy Act system of records
notices.
(b) Rulemaking procedures.
(1) DA Privacy Program procedures and exemption rules are subject
to the formal rulemaking process.
(2) Privacy Act system of records notices are not subject to formal
rulemaking and are published in the Federal Register as Notices, not
Rules.
(3) The Privacy Program procedures and exemption rules are
incorporated into the Code of Federal Regulations (CFR). Privacy Act
system of records notices are not published in the CFR.
Sec. 505.12 Privacy Act enforcement actions.
(a) Judicial Sanctions. The Act has both civil remedies and
criminal penalties for violations of its provisions.
(1) Civil remedies. The DA is subject to civil remedies for
violations of the Privacy Act. In addition to specific remedial
actions, 5 U.S.C. 552a(g) may provide for the payment of damages, court
costs, and attorney's fees.
(2) Criminal penalties. A DA official or employee may be found
guilty of a misdemeanor and fined not more than $5,000 for willfully--
(i) Disclosing individually identifiable personal information to
one not entitled to the information;
(ii) Requesting or obtaining information from another's record
under false pretenses; or
(iii) Maintaining a system of records without first meeting the
public notice requirements of the Act.
(b) Litigation Status Sheet.
(1) When a complaint citing the Privacy Act is filed in a U.S.
District Court against the Department of the Army, an Army Component, a
DA Official, or any Army employee, the responsible system manager will
promptly notify the Army Litigation Division, 901 North Stuart Street,
Arlington, VA 22203-1837.
(2) The Litigation Status Sheet at appendix E of this part provides
a standard format for this notification. At a minimum, the initial
notification will have items (a) through (f) provided.
(3) A revised Litigation Status Sheet must be provided at each
stage of the litigation.
(4) When a court renders a formal opinion or judgment, copies must
be provided to the Defense Privacy Office by the Army Litigation
Division.
(c) Administrative Remedies--Privacy Act complaints.
(1) The installation level Privacy Act Officer is responsible for
processing Privacy Act complaints or allegations of Privacy Act
violations. Guidance should be sought from the local Staff Judge
Advocate and coordination made with the system manager to assist in the
resolution of Privacy Act complaints. The local Privacy Act officer is
responsible for--
(i) Reviewing allegations of Privacy Act violations and the
evidence provided by the complainants;
(ii) Making an initial assessment as to the validity of the
complaint, and taking appropriate corrective action;
(iii) Coordinating with the local Staff Judge Advocate to determine
whether a more formal investigation such as a commander's inquiry or an
AR 15-6 investigation is appropriate; and
(iv) Ensuring the decision at the local level from either the
Privacy Act Officer or other individual who directed a more formal
investigation is provided to the complainant in writing.
(2) The decision at the local level may be appealed to the next
higher command level Privacy Act Officer.
(3) A legal review from the next higher command level Privacy Act
Officer's servicing Staff Judge Advocate is required prior to action on
the appeal.
Sec. 505.13 Computer Matching Agreement Program.
(a) General provisions.
(1) Pursuant to the Privacy Act and this part, DA records may be
subject to computer matching, i.e., the computer comparison of
automated systems of records.
(2) There are two specific kinds of Matching Programs covered by
the Privacy Act--
(i) Matches using records from Federal personnel or payroll systems
of records; and
(ii) Matches involving Federal benefit programs to accomplish one
or more of the following purposes--
(A) To determine eligibility for a Federal benefit;
(B) To comply with benefit program requirements; and
(C) To effect recovery of improper payments or delinquent debts
from current or former beneficiaries.
(3) The comparison of records must be computerized. Manual
comparisons are not covered.
(4) Any activity that expects to participate in a Computer Matching
Program must contact the DA FOIA/P Office immediately.
(5) In all cases, Computer Matching Agreements are processed by the
Defense Privacy Office and approved by the Defense Data Integrity
Board. Agreements will be conducted in accordance with the requirements
of 5 U.S.C. 552a, and OMB Circular A-130.
(b) Other matching. Several types of computer matching are exempt
from the restrictions of the Act such as matches used for statistics,
pilot programs, law enforcement, tax administration, routine
administration, background checks, and foreign counterintelligence. The
DA FOIA/P Office should be consulted if there is a question as to
whether the Act governs a specific type of computer matching.
Sec. 505.14 Recordkeeping requirements under the Privacy Act.
(a) AR 25-400-2, The Army Records Information Management System
(ARIMS). To maintain privacy records are required by the Army Records
Information Management System (ARIMS) to provide adequate and proper
documentation of the conduct of Army business so that the rights and
interests of individuals and the Federal Government are protected.
(b) A full description of the records prescribed by this part and
their disposition/retention requirements are found on the ARIMS Web
site at https://www.arims.army.mil.
Appendix A to Part 505--References
(a) The Privacy Act of 1974 (5 U.S.C. 552a, as amended).
(b) OMB Circular No. A-130, Management of Federal Information
Resources.
[[Page 24508]]
(c) AR 25-55, The Department of the Army Freedom of Information
Program.
(d) DA PAM 25-51, The Army Privacy Program--System of Records
Notices and Exemption Rules.
(e) DOD Directive 5400.11, Department of Defense Privacy
Program.
(f) DOD 5400.11-R, Department of Defense Privacy Program.
(g) AR 25-2, Information Assurance.
(h) AR 25-400-2, The Army Records Information Management System
(ARIMS).
(i) AR 27-10, Military Justice.
(j) AR 40-66, Medical Record Administration and Health Care
Documentation.
(k) AR 60-20 and AFR 147-14, Army and Air Force Exchange Service
Operating Policies.
(l) AR 190-45, Law Enforcement Reporting.
(m) AR 195-2, Criminal Investigation Activities.
(n) AR 380-5, Department of Army Information Security Program.
(o) DOD Directive 5400-7, DOD Freedom of Information Act (FOIA)
Program.
(q) DOD 5400.7-R, DOD Freedom of Information Program.
(r) DOD 6025.18-R, DOD Health Information Privacy Regulation
(HIPAA).
(s) U.S. Department of Justice, Freedom of Information Act Guide
and Privacy Act Overview.
(t) Office of Secretary of Defense memorandum, dated July 15,
2005, subject: Notifying Individuals when Personal Information is
Lost, Stolen, or Compromised located at http://www.army.mil/ciog6/referencs/policy/dos/OSDprivateinfo.pdf
.
Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
(a) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and
its serviced activities, as well as requests requiring the personal
attention of the Secretary of the Army. This also includes civilian
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for
Military Equal Opportunity (EO) actions). The Administrative
Assistant to the Secretary of the Army has delegated this authority
to the Chief Attorney, OAASA (See DCS, G1 for Military Equal
Opportunity (EO) actions).
(b) The Assistant Secretary of the Army (Financial Management
and Comptroller) is authorized to act on requests for finance and
accounting records. Requests for CONUS finance and accounting
records should be referred to the Defense Finance and Accounting
Service (DFAS). The Chief Attorney, OAASA, acts on requests for non-
finance and accounting records of the Assistant Secretary of the
Army (Financial Management and Comptroller).
(c) The Assistant Secretary of the Army (Acquisition, Logistics,
& Technology) is authorized to act on requests for procurement
records other than those under the purview of the Chief of Engineers
and the Commander, U.S. Army Materiel Command. The Chief Attorney,
OAASA, acts on requests for non-procurement records of the Assistant
Secretary of the Army (Acquisition, Logistics and Technology).
(d) The Deputy Assistant Secretary of the Army (Civilian
Personnel Policy)/Director of Civilian Personnel, Office of the
Assistant Secretary of the Army (Manpower and Reserve Affairs) is
authorized to act on requests for civilian personnel records,
personnel administration and other civilian personnel matters,
except for EEO (civilian) matters which will be acted on by the
Administrative Assistant to the Secretary of the Army. The Deputy
Assistant Secretary of the Army (Civilian Personnel Policy)/Director
of Civilian Personnel has delegated this authority to the Chief,
Policy and Program Development Division (Note: Requests from former
civilian employees to amend a record in an Office of Personnel
Management system of records, such as the Official Personnel Folder,
should be sent to the Office of Personnel Management, Assistant
Director for Workforce Information, Compliance, and Investigations
Group: 1900 E. Street, NW., Washington, DC 20415-0001).
(e) The Chief Information Officer G-6 is authorized to act on
requests for records pertaining to Army Information Technology,
command, control communications and computer systems and the
Information Resources Management Program (automation,
telecommunications, visual information, records management,
publications and printing).
(f) The Inspector General is authorized to act on requests for
all Inspector General Records.
(g) The Auditor General is authorized to act on requests for
records relating to audits done by the U.S. Army Audit Agency under
AR 10-2. This includes requests for related records developed by the
Audit Agency.
(h) The Director of the Army Staff is authorized to act on
requests for all records of the Chief of Staff and its Field
Operating Agencies. The Director of the Army Staff has delegated
this authority to the Chief Attorney and Legal Services Directorate,
U.S. Army Resources & Programs Agency (See The Judge Advocate
General for the General Officer Management Office actions). The
Chief Attorney and Legal Services Director, U.S. Army Resources &
Programs Agency acts on requests for records of the Chief of Staff
and its Field Operating Agencies (See The Judge Advocate General for
the General Officer Management Office actions).
(i) The Deputy Chief of Staff, G-3/5/7 is authorized to act on
requests for records relating to International Affairs policy,
planning, integration and assessments, strategy formulation, force
development, individual and unit training policy, strategic and
tactical command and control systems, nuclear and chemical matters,
use of DA forces.
(j) The Deputy Chief of Staff, G-8 is authorized to act on
requests for records relating to programming, material integration
and externally directed reviews.
(k) The Deputy Chief of Staff, G-1 is authorized to act on the
following records: Personnel board records, Equal Opportunity
(military) and sexual harassment, health promotions, physical
fitness and well being, command and leadership policy records, HIV
and suicide policy, substance abuse programs except for individual
treatment records which are the responsibility of the Surgeon
General, retiree benefits, services, and programs (excluding
individual personnel records of retired military personnel, which
are the responsibility of the U.S. Army Human Resources Command-St.
Louis), DA dealings with Veterans Affairs, U.S. Soldier's and
Airmen's Home; all retention, promotion, and separation records; all
military education records including records related to the removal
or suspension from a military school or class; Junior Reserve
Officer Training Corps (JROTC) and Senior Reserve Officer Training
Corps (SROTC) records; SROTC instructor records; U.S. Military
Academy Cadet Records; recruiting and MOS policy issues, personnel
travel and transportation entitlements, military strength and
statistics, The Army Librarian, demographics, and Manprint.
(l) The Deputy Chief of Staff, G-4 is authorized to act on
requests for records relating to DA logistical requirements and
determinations, policy concerning materiel maintenance and use,
equipment standards, and logistical readiness.
(m) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(n) The Surgeon General/Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at
DA medical facilities, to include alcohol and drug treatment/test
records.
(o) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by
DA chaplains, and nonprivileged communications relating to clergy
and active duty chaplains' military personnel files.
(p) The Judge Advocate General is authorized to act on requests
for records relating to claims, courts-martial, legal services,
administrative investigations, and similar legal records. The Judge
Advocate General is also authorized to act on requests for the
General Officer Management Office actions, and records described
elsewhere in this part if those records relate to litigation in
which the United States has an interest. In addition, The Judge
Advocate General is authorized to act on requests for records that
are not within the functional areas of responsibility of any other
Denial Authority.
(q) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired,
separated, discharged, deceased, and active Army National Guard
military personnel, including technician personnel, unless such
records clearly fall within another Denial Authority's
responsibility. This authority includes, but is not limited to,
National Guard organization and training files; plans, operations,
and readiness files, policy files,
[[Page 24509]]
historical files, files relating to National Guard military support,
drug interdiction, and civil disturbances; construction, civil
works, and ecology records dealing with armories, facilities within
the States, ranges, etc.; Equal Opportunity investigative records;
aviation program records and financial records dealing with
personnel, operation and maintenance, and equipment budgets.
(r) The Chief, Army Reserve and Commander, U.S. Army Reserve
Command are authorized to act on requests for all personnel and
medical records of retired, separated, discharged, deceased, and
reserve component military personnel, and all U.S. Army Reserve
(USAR) records, unless such records clearly fall within another
Denial Authority's responsibility. Records under the responsibility
of the Chief, Army Reserve and the Commander, U.S. Army Reserve
Command include records relating to USAR plans, policies, and
operations; changes in the organizational status of USAR units;
mobilization and demobilization policies, active duty tours, and the
Individual Mobilization Augmentation program; and all other Office
of the Chief, Army Reserve (OCAR) records and Headquarters, U.S.
Army Reserve Command records.
(s) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the records of AMC headquarters
and to subordinate commands, units, and activities that relate to
procurement, logistics, research and development, and supply and
maintenance operations.
(t) The Provost Marshal General is authorized to act on all
requests for provost marshal activities and law enforcement
functions for the Army, all matters relating to police intelligence,
physical security, criminal investigations, corrections and
internment (to include confinement and correctional programs for
U.S. prisoners, criminal investigations, provost marshal activities,
and military police support. The Provost Marshal General is
responsible for the Office of Security, Force Protection, and Law
Enforcement Division and is the functional proponent for AR 190-
series (Military Police) and 195-series (Criminal Investigation), AR
630-10 Absent Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings, and AR 633-30,
Military Sentences to Confinement.
(u) The Commander, U.S. Army Criminal Investigation Command, is
authorized to act on requests for criminal investigative records of
USACIDC headquarters, and its subordinate activities, and military
police reports. This includes criminal investigation records,
investigation-in-progress records, and all military police records
and reports that result in criminal investigation reports. This
authority has been delegated to the Director, U.S. Army Crime
Records Center.
(v) The Commander, U.S. Army Human Resources Command, is
authorized to act on requests for military personnel files relating
to active duty personnel including, but not limited to military
personnel matters, military education records including records
related to the removal or suspension from a military school or
class; personnel locator, physical disability determinations, and
other military personnel administration records; records relating to
military casualty and memorialization activities; heraldic
activities, voting, records relating to identification cards,
naturalization and citizenship, commercial solicitation, Military
Postal Service Agency and Army postal and unofficial mail service.
The Commander, U.S. Army Human Resources Command, is also authorized
to act on requests concerning all personnel and medical records of
retired, separated, discharged, deceased, and reserve component
military personnel, unless such records clearly fall within another
Denial Authority's authority.
(w) The Commander, U.S. Army Resources Command-St. Louis has
been delegated authority to act on behalf of the U.S. Army Human
Resources Commander for requests concerning all personnel and
medical records of retired, separated, discharged, deceased, and
reserve component military personnel, unless such records clearly
fall within another Denial Authority's authority. The authority does
not include records relating to USAR plans, policies, and
operations; changes in the organizational status of USAR units,
mobilization and demobilization policies; active duty tours, and the
individual mobilization augmentation program.
(x) The Assistant Chief of Staff for Installation Management is
authorized to act on requests for records relating to planning,
programming, execution and operation of Army installations. This
includes base realignment and closure activities, environmental
activities other than litigation, facilities and housing activities,
and installation management support activities.
(y) The Commander, U.S. Army Intelligence and Security Command,
is authorized to act on requests for intelligence and security
records, foreign scientific and technological records, intelligence
training, intelligence threat assessments, and foreign liaison
information, mapping and geodesy information, ground surveillance
records, intelligence threat assessment, and missile intelligence
data relating to tactical land warfare systems.
(z) The Commander, U.S. Army Combat Readiness Center (formerly
U.S. Army Safety Center), is authorized to act on requests for Army
safety records.
(aa) The Commander, U.S. Army Test and Evaluation Command
(ATEC), is authorized to act on requests for the records of ATEC
headquarters, its subordinate commands, units, and activities that
relate to test and evaluation operations.
(bb) The General Counsel, Army and Air Force Exchange Service,
is authorized to act on requests for Army and Air Force Exchange
Service records, under AR 60-20/AFR 147-14.
(cc) The Commandant, United States Disciplinary Barracks (USDB)
is authorized to act on records pertaining to USDB functional area
responsibilities relating to the administration and confinement of
individual military prisoners at the USDB. This includes, but is not
limited to, all records pertaining to the treatment of military
prisoners; investigation of prisoner misconduct; management,
operation, and administration of the USDB confinement facility; and
related programs which fall directly within the scope of the
Commandant's functional area of command and control.
(dd) The Commander, U.S. Army Community and Family Support
Center (USACFSC) is authorized to act on requests for records
pertaining to morale, welfare, recreation, and entertainment
programs; community and family action programs; child development
centers; non-appropriated funds issues, and private organizations on
Army installations.
(ee) The Commander, Military Surface Deployment and Distribution
Command (formerly Military Traffic Management Command) is authorized
to act on requests for records pertaining to military and commercial
transportation and traffic management records.
(ff) The Director, Installation Management Agency (IMA) is
authorized to act on requests for all IMA records.
(gg) Special Denial Authority's authority for time-event related
records may be designated on a case-by-case basis. These will be
published in the Federal Register. You may contact the Department of
the Army, Freedom of Information and Privacy Office to obtain
current information on special delegations.
Appendix C to Part 505--Privacy Act Statement Format
(a) Authority: The specific federal statute or Executive Order
that authorizes collection of the requested information.
(b) Principal Purpose(s): The principal purpose or purposes for
which the information is to be used.
(c) Routine Uses(s): Disclosure of the information outside DOD.
(d) Disclosure: Whether providing the information is voluntary
or mandatory and the effects on the individual if he or she chooses
not to provide the requested information.
(1) Example of a Privacy Act Statement--
(i) Authority: Emergency Supplement Act of 2000; Public Law 106-
246; 5 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary
of the Navy; 10 U.S.C. 8013, Secretary of the Air Force; Department
of Defense Directive 8500.aa, Information Assurance (IA); and E.O.
9397 (SSN).
(ii) Principal Purpose(s): To control access to DOD information,
information based systems and facilities by authenticating the
identity of a person using a measurable physical characteristic(s).
This computer system uses software programs to create biometrics
templates and summary statistics, which are used for purposes such
as assessing system performance or identifying problem areas.
(iii) Routine Use(s): None. The DOD ``Blanket Routine Uses'' set
forth at the beginning of the Army's Compilations of System of
Records Notices applies to this system.
(iv) Disclosure: Voluntary; however, failure to provide the
requested information may result in denial of access to DOD
information based systems and/or DOD facilities.
(2) [Reserved].
[[Page 24510]]
Appendix D to Part 505--Exemptions; Exceptions; and DOD Blanket Routine
Uses
(a) Special Exemption. 5 U.S.C. 552a(d)(5)--Denies individual
access to any information compiled in reasonable anticipation of
civil action or proceeding.
(b) General and Specific Exemptions. The Secretary of the Army
may exempt Army systems of records from certain requirements of the
Privacy Act. The two kinds of exemptions that require Secretary of
the Army enactment are General and Specific exemptions. The Army
system of records notices for a particular type of record will state
whether the Secretary of the Army has authorized a particular
General and Specific exemption to a certain type of record. The Army
system of records notices are published in DA Pam 25-51 and on the
Defense Privacy Office's Web site http://www.defenselink.mil/privacy/
.
(c) Twelve Exceptions to the ``No Disclosure without Consent''
rule of the Privacy Act.
(1) 5 U.S.C. 552a(b)(1)--To DOD officers and employees who have
a need for the record in the performance of their official duties.
This is the ``official need to know concept.''
(2) 5 U.S.C. 552a(b)(2)--FOIA requires release of the
information.
(3) 5 U.S.C. 552a(b)(3)--the Routine Use Exception. The Routine
Use must be published in the Federal Register and the purpose of the
disclosure must be compatible with the purpose for the published
Routine Use. The applicable Routine Uses for a particular record
will be listed in the applicable Army Systems Notice.
(4) 5 U.S.C. 552a(b)(4)--To the Bureau of the Census to plan or
carry out a census or survey, or related activity pursuant to Title
13 of the U.S. Code.
(5) 5 U.S.C. 552a(b)(5)--To a recipient who has provided DA or
DOD with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable.
(6) 5 U.S.C. 552a(b)(6)--To the National Archives and Records
Administration as a record that has sufficient historical or other
value to warrant its continued preservation by the U.S. Government,
or for evaluation by the Archivist of the United States or the
designee of the Archivist to determine whether the record has such
value. Note: Records transferred to the Federal Records Centers for
storage remain under the control of the DA and no accounting for
disclosure is required under the Privacy Act.
(7) 5 U.S.C. 552a(b)(7)--To another agency or instrumentality of
any governmental jurisdiction within or under the control of the
United States for a civil or criminal law enforcement activity, if
the activity is authorized by law, and if the head of the agency or
instrumentality has made a written request to the Army or the DOD
specifying the particular portion desired and the law enforcement
activity for which the record is sought.
(8) 5 U.S.C. 552a(b)(8)--To a person pursuant to a showing of
compelling circumstances affecting the health or safety of an
individual if upon such disclosure, notification is transmitted to
the last known address of such individual.
(9) 5 U.S.C. 552a(b)(9)--To either House of Congress, or, to the
extent the matter is within its jurisdiction, any committee or
subcommittee thereof, or any joint committee of Congress or
subcommittee of any such joint committee. Requests from a
Congressional member acting on behalf of a constituent are not
included in this exception, but may be covered by a routine use
exception to the Privacy Act (See applicable Army system of records
notice).
(10) 5 U.S.C. 552a(b)(10)--To the Comptroller General or
authorized representatives, in the course of the performance of the
duties of the Government Accountability Office.
(11) 5 U.S.C. 552a(b)(11)--Pursuant to the order of a court of
competent jurisdiction. The order must be signed by a judge.
(12) 5 U.S.C. 552a(b)(12)--To a consumer reporting agency in
accordance with section 3711(e) of Title 31 of the U.S. Code. The
name, address, SSN, and other information identifying the
individual; amount, status, and history of the claim; and the agency
or program under which the case arose may be disclosed. However,
before doing so, agencies must complete a series of steps designed
to validate the debt and to offer the individual an opportunity to
repay it.
(d) DOD Blanket Routine Uses. In addition to specific routine
uses which are listed in the applicable Army system of record
notices, certain ``Blanket Routine Uses'' apply to all DOD
maintained systems of records. These are listed on the Defense
Privacy Office's Web site http://www.defenselink.mil/privacy/. These
``Blanket Routine Uses'' are not specifically listed in each system
of records notice as the specific routine uses are. The current DOD
``Blanket Routine Uses'' are as follows--
(1) Law Enforcement Routine Use. If a system of records
maintained by a DOD component to carry out its functions indicates a
violation or potential violation of law, whether civil, criminal or
regulatory in nature, and whether arising by general statute or by
regulation, rule, or order issued pursuant thereto, the relevant
records in the system of records may be