[Federal Register Volume 59, Number 104 (Wednesday, June 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13279]
[[Page Unknown]]
[Federal Register: June 1, 1994]
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DEPARTMENT OF THE INTERIOR
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 701
Privacy Act; Implementation
AGENCY: Department of the Navy, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of the Navy has revised its Privacy Act
Instruction. This proposed rule re-establishes the Navy's Privacy
Program and incorporates the changes made to the revised Instruction.
EFFECTIVE DATE: Comments must be received on or before August 1, 1994,
to be considered by this agency.
ADDRESSES: Send comments to Mrs. Gwen Aitken, Office of the Chief of
Naval Operations (N09B30), 2000 Navy Pentagon, Washington, DC 20350-
2000.
FOR FURTHER INFORMATION CONTACT: Mrs. Gwen Aitken at (703) 697-1459 or
DSN 227-1459.
SUPPLEMENTARY INFORMATION: Executive Order 12866. The Director,
Administration and Management, Office of the Secretary of Defense has
determined that this Privacy Act rule for the Department of Defense
does not constitute `significant regulatory action'. Analysis of the
rule indicates that it does not have an annual effect on the economy of
$100 million or more; does not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
does not materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; does not raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in Executive Order 12866 (1993).
Regulatory Flexibility Act of 1980. The Director, Administration and
Management, Office of the Secretary of Defense certifies that this
Privacy Act rule for the Department of Defense does not have
significant economic impact on a substantial number of small entities
because it is concerned only with the administration of Privacy Act
systems of records within the Department of Defense.
Paperwork Reduction Act. The Director, Administration and Management,
Office of the Secretary of Defense certifies that this Privacy Act rule
for the Department of Defense imposes 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.
List of Subjects in 32 CFR Part 701
Privacy.
Accordingly, 32 CFR part 701, subparts F and G are revised as
follows:
PART 701 - AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND
PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE
PUBLIC
Subpart F - Department of the Navy Privacy Act Program
701.100 Purpose.
701.101 Applicability.
701.102 Definitions.
701.103 Policy.
701.104 Responsibility and authority.
701.105 Systems of records.
701.106 Safeguarding records in systems of records.
701.107 Criteria for creating, altering, amending, and deleting
Privacy Act systems of records.
701.108 Collecting information about individuals.
701.109 Access to records.
701.110 Amendment of records.
701.111 Privacy Act appeals.
701.112 Disclosure of records.
701.113 Exemptions.
701.114 Enforcement actions.
701.115 Computer matching program.
Subpart G - Privacy Act Exemptions
701.116 Purpose.
701.117 Exemption for classified records.
701.118 Exemptions for specific Navy record systems.
701.119 Exemptions for specific Marine Corps records systems.
Authority:Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Subpart F-Department of the Navy Privacy Act Program
Sec. 701.100 Purpose.
This subpart F and subpart G of this part implement the Privacy Act
(5 U.S.C. 552a), and DoD Directive 5400.11\1\, and DoD 5400.11-R\2\,
(see 32 CFR part 310) and provides Department of the Navy policies and
procedures for:
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\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\2\See footnote 1 to Sec. 701.100.
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(a) Governing the collection, safeguarding, maintenance, use,
access, amendment, and dissemination of personal information kept by
Department of the Navy in systems of records;
(b) Notifying individuals if any systems of records contain a
record pertaining to them;
(c) Verifying the identity of individuals who request their records
before the records are made available to them;
(d) Notifying the public of the existence and character of each
system of records.
(e) Exempting systems of records from certain requirements of the
Privacy Act; and
(f) Governing the Privacy Act rules of conduct for Department of
the Navy personnel, who will be subject to criminal penalties for
noncompliance with 5 U.S.C. 552a, as amended by the Computer Matching
Act of 1988.
Sec. 701.101 Applicability.
This subpart and subpart G of this part apply throughout the
Department of the Navy. It is also applicable to contractors by
contract or other legally binding action, whenever a Department of the
Navy contract provides for the operation of a system of records or
portion of a system of records to accomplish a Department of the Navy
function. For the purposes of any criminal liabilities adjudged, any
contractor or any employee of such contractor is considered to be an
employee of Department of the Navy. In case of a conflict, this subpart
and subpart G of this part take precedence over any existing Department
of the Navy directive that deals with the personal privacy and rights
of individuals regarding their personal records, except for disclosure
of personal information required by 5 U.S.C. 552 (1988) as amended by
the Freedom of Information Reform Act and implemented by Secretary of
the Navy Instruction 5720.42E\3\, ``Department of the Navy Freedom of
Information Act Program.''
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\3\Copies available from Chief of Naval Operations (N09B30),
2000 Navy Pentagon, Washington, DC 20350-2000.
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Sec. 701.102 Definitions.
For the purposes of this subpart and subpart G of this part, the
following meanings apply.
(a) Access. The review or copying of a record or parts thereof
contained in a system of records by any individual.
(b) Agency. For the purposes of disclosing records subject to the
Privacy Act between or among Department of Defense (DoD) components,
the Department of Defense is considered a single agency. For all other
purposes, Department of the Navy is considered an agency within the
meaning of Privacy Act.
(c) Confidential source. A person or organization who has furnished
information to the Federal Government either under an express promise
that the person's or the organization's identity will be held in
confidence or under an implied promise of such confidentiality if this
implied promise was made before September 27, 1975.
(d) Defense Data Integrity Board. Consists of members of the
Defense Privacy Board, as outlined in DoD Directive 5400.11 and, in
addition, the DoD Inspector General or the designee, when convened to
oversee, coordinate and approve or disapprove all DoD component
computer matching covered by the Privacy Act.
(e) Disclosure. The transfer of any personal information from a
system of records by any means of communication (such as oral, written,
electronic, mechanical, or actual review), to any person, private
entity, or government agency, other than the subject of the record, the
subject's designated agent or the subject's legal guardian.
(f) Federal personnel. Officers and employees of the Government of
the United States, members of the uniformed services (including members
of the Reserve Components), individuals or survivors thereof, entitled
to receive immediate or deferred retirement benefits under any
retirement program of the Government of the United States (including
survivor benefits).
(g) Individual. A living citizen of the United States or alien
lawfully admitted to the U.S. for permanent residence. The legal
guardian of an individual has the same rights as the individual and may
act on his or her behalf. No rights are vested in the representative of
a deceased person under this instruction and the term ``individual''
does not embrace an individual acting in a non-personal capacity (for
example, sole proprietorship or partnership).
(h) Individual access. Access to information pertaining to the
individual by the individual or his or her designated agent or legal
guardian.
(i) Maintain. Includes maintain, collect, use, or disseminate.
(j) Member of the public. Any individual or party acting in a
private capacity.
(k) Minor. Under this subpart and subpart G of this part, a minor
is an individual under 18 years of age, who is not a member of the U.S.
Navy or Marine Corps, nor married.
(l) Official use. Under this subpart and subpart G of this part,
this term is used when Department of the Navy officials and employees
have a demonstrated need for the use of any record or the information
contained therein in the performance of their official duties.
(m) Personal information. Information about an individual that is
intimate or private to the individual, as distinguished from
information related solely to the individual's official functions or
public life.
(n) Privacy Act (PA) request. A request from an individual for
notification as to the existence of, access to, or amendment of records
pertaining to that individual. These records must be maintained in a
system of records.
(o) Record. Any item, collection, or grouping of information about
an individual that is maintained by a naval activity including, but not
limited to, the individual's education, financial transactions, and
medical, criminal, or employment history, and that contains the
individual's name or other identifying particulars assigned to the
individual, such as a finger or voice print or a photograph.
(p) Review authority. An official charged with the responsibility
to rule on administrative appeals of initial denials of requests for
notification, access, or amendment of records. The Secretary of the
Navy has delegated his review authority to the Assistant Secretary of
the Navy (Manpower and Reserve Affairs (ASN(M&RA)), the General Counsel
(OGC), and the Judge Advocate General (NJAG). Additionally, the Office
of Personnel Management (OPM) is the review authority for civilian
official personnel folders or records contained in any other OPM
record.
(q) Risk assessment. An analysis which considers information
sensitivity, vulnerability, and cost to a computer facility or word
processing center in safeguarding personal information processed or
stored in the facility or center.
(r) Routine use. Disclosure of a record outside the Department of
Defense for a purpose that is compatible with the purpose for which the
record was collected and maintained by the Department of Defense. The
routine use must have been included in the notice for the system of
records published in the Federal Register.
(s) Statistical record. A record maintained only for statistical
research, or reporting purposes, and not used in whole or in part in
making any determination about a specific individual.
(t) System manager. An official who has overall responsibility for
a system of records. He or she may serve at any level in Department of
the Navy. Systems managers are indicated in the published record
systems notices. If more than one official is indicated as a system
manager, initial responsibility resides with the manager at the
appropriate level (i.e., for local records, at the local activity).
(u) System of records. A group of records under the control of a
Department of the Navy activity from which information is retrieved by
the individual's name or by some identifying number, symbol, or other
identifying particular assigned to the individual. System notices for
all Privacy Act systems of records must be published in the Federal
Register and are also published in periodic Chief of Naval Operations
Notes (OPNAVNOTEs) 5211\4\.
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\4\See footnote 3 to Sec. 701.101.
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(v) Word processing equipment. Any combination of electronic
hardware and computer software integrated in a variety of forms
(firmware, programmable software, hard wiring, or similar equipment)
that permits the processing of textual data. Generally, the equipment
contains a device to receive information, a computer-like processor
with various capabilities to manipulate the information, a storage
medium, and an output device.
(w) Word processing system. A combination of equipment employing
automated technology, systematic procedures, and trained personnel for
the primary purpose of manipulating human thoughts and verbal or
written communications into a form suitable to the originator. The
results are written or graphic presentations intended to communicate
verbally or visually with another individual.
(x) Working day. All days excluding Saturday, Sunday, and legal
holidays.
Sec. 701.103 Policy.
It is the policy of Department of the Navy to:
(a) Ensure that all its personnel comply fully with 5 U.S.C. 552a,
DoD Directive 5400.11 and DoD 5400.11-R, to protect individuals from
unwarranted invasions of privacy. Individuals covered by this
protection are living citizens of the U.S. or aliens lawfully admitted
for permanent residence. A legal guardian of an individual or parent of
a minor when acting on the individual's or minor's behalf, has the same
rights as the individual or minor. (A member of the Armed Forces is not
a minor for the purposes of this subpart and subpart G of this part).
(b) Collect, maintain, and use only that personal information
needed to support a Navy function or program as authorized by law or
E.O., and disclose this information only as authorized by 5 U.S.C. 552a
and this subpart and subpart G of this part. In assessing need,
consideration shall be given to alternatives, such as use of
information not individually identifiable or use of sampling of certain
data for certain individuals only. Additionally, consideration is to be
given to the length of time information is needed, and the cost of
maintaining the information compared to the risks and adverse
consequences of not maintaining the information.
(c) Keep only personal information that is timely, accurate,
complete, and relevant to the purpose for which it was collected.
(d) Let individuals have access to, and obtain copies of, all or
portions of their records, subject to exemption procedures authorized
by law and this subpart and subpart G of this part.
(e) Let individuals request amendment of their records when
discrepancies proven to be erroneous, untimely, incomplete, or
irrelevant are noted.
(f) Let individuals request an administrative review of decisions
that deny them access, or refuse to amend their records.
(g) Ensure that adequate safeguards are enforced to prevent misuse,
unauthorized disclosure, alteration, or destruction of personal
information in records.
(h) Maintain no records describing how an individual exercises his
or her rights guaranteed by the First Amendment (freedom of religion,
political beliefs, speech, and press; peaceful assemblage; and petition
for redress of grievances), unless they are:
(1) Expressly authorized by statute;
(2) Authorized by the individual;
(3) Within the scope of an authorized law enforcement activity; or
(4) For the maintenance of certain items of information relating to
religious affiliation for members of the naval service who are
chaplains. This should not be construed, however, as restricting or
excluding solicitation of information which the individual is willing
to have in his or her record concerning religious preference,
particularly that required in emergency situations.
(5) Maintain only systems of records which have been published in
the Federal Register, in accordance with periodic Chief of Naval
Operations Notes (OPNAVNOTEs) 5211 and Sec. 701.105. These OPNAVNOTEs
5211 provide a listing of all Department of the Navy Privacy Act
systems of records and identify the Office of Personnel Management
(OPM) government-wide systems containing information on Department of
the Navy civilian employees, even though technically, Department of the
Navy does not have cognizance over them. A Privacy Act systems notice
outlines what kinds of information may be collected and maintained by
naval activities. When collecting/maintaining information in a Privacy
Act system of records, review the systems notice to ensure activity
compliance is within the scope of the system. If you determine the
systems notice does not meet your needs, contact the systems manager or
Chief of Naval Operations (N09B30) with your concerns so that amendment
of the system may be considered.
Sec. 701.104 Responsibility and authority.
(a) Chief of Naval Operations (CNO). CNO is designated as the
official responsible for administering and supervising the execution of
5 U.S.C. 552a, DoD Directive 5400.11, and DoD 5400.11-R. CNO has
designated the Assistant Vice Chief of Naval Operations (N09B30) as
principal Privacy Act Coordinator for the Department of the Navy to:
(1) Set Department of the Navy policy on the provisions of the
Privacy Act.
(2) Serve as principal advisor on all Privacy Act matters.
(3) Oversee the administration of the Privacy Act program, which
includes preparing the Department of the Navy Privacy Act report for
submission to Congress.
(4) Develop Navy-wide Privacy Act training program and serve as
training-oversight manager.
(5) Conduct staff assistance visits within Department of the Navy
to review compliance with 5 U.S.C. 552a and this subpart and subpart G
of this part.
(6) Coordinate and prepare responses for Privacy Act requests
received for Office of the Secretary of the Navy records.
(b) Commandant of the Marine Corps (CMC). CMC is responsible for
administering and supervising the execution of this subpart and subpart
G of this part within the Marine Corps. The Commandant has designated
the Director, Manpower Management Information Systems Division (HQMC
(Code MI)) as the Privacy Act coordinator for Headquarters, U.S. Marine
Corps.
(c) Privacy Act Coordinator. Each addressee is responsible for
implementing and administering a Privacy Act program under this subpart
and subpart G of this part. Each addressee shall designate a Privacy
Act Coordinator to:
(1) Serve as principal point of contact on Privacy Act matters.
(2) Provide training for activity/command personnel on the
provisions of 5 U.S.C. 552a and this subpart and subpart G of this
part.
(3) Issue implementing instruction which designates the activity's
Privacy Act Coordinator, Privacy Act records disposition, Privacy Act
processing procedures, identification of Privacy Act systems of records
under their cognizance, and training aids for those personnel involved
with systems of records.
(4) Review internal directives, practices, and procedures,
including those having Privacy Act implications and where Privacy Act
Statements (PASs) are needed.
(5) Compile input and submit consolidated Privacy Act report to
Echelon 2 Privacy Act Coordinator, who, in turn, will provide
consolidated report to CNO (N09B30).
(6) Maintain liaison with records management officials (i.e.,
maintenance and disposal procedures and standards, forms, and reports),
as appropriate.
(7) Provide guidance on handling Privacy Act requests and scope of
Privacy Act exemptions.
(8) Conduct staff assistance visits within command and lower
echelon commands to ensure compliance with the Privacy Act.
(9) Echelon 2 Privacy Act Coordinators shall provide CNO (N09B30)
with a complete listing of all Privacy Act Coordinators under their
jurisdiction. Such information should include activity name and
address, office code, name of Privacy Act Coordinator, commercial and
DSN telephone number, and FAX number, if applicable.
(d) Release authority. Officials having cognizance over the
requested subject matter are authorized to respond to requests for
notification, access, and/or amendment of records. These officials
could also be systems managers (see Sec. 701.104(g)).
(e) Denial authority. Within the Department of the Navy, the
following chief officials, their respective vice commanders, deputies,
principal assistants, and those officials specifically designated by
the chief official are authorized to deny requests, either in whole or
in part, for notification, access and amendment, made under this
subpart and subpart G of this part, when the records relate to matters
within their respective areas of responsibility or chain of command:
(1) Department of the Navy: Civilian Executive Assistants; CNO;
CMC; Chief of Naval Personnel; Commanders of the Naval Systems
Commands, Office of Naval Intelligence, Naval Security Group Command,
Naval Imaging Command, and Naval Computer and Telecommunications
Command; Chief, Bureau of Medicine and Surgery; Auditor General of the
Navy; Naval Inspector General; Director, Office of Civilian Personnel
Management; Chief of Naval Education and Training; Commander, Naval
Reserve Force; Chief of Naval Research; Commander, Naval Oceanography
Command; heads of Department of the Navy Staff Offices, Boards, and
Councils; Flag Officers and General Officers. NJAG and his Deputy, and
OGC and his Deputies are excluded from this grant of authorization.
While NJAG and OGC are not denial authorities, they are authorized to
further delegate the authority conferred here to other senior officers/
officials within NJAG and OGC.
(2) For the shore establishment:
(i) All officers authorized under Article 22, Uniform Code of
Military Justice (UCMJ) or designated in section 0120, Manual of the
Judge Advocate General (JAGINST 5800.7C)\5\, to convene general courts-
martial.
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\5\Copies available from the Judge Advocate General, Navy
Department, 200 Stovall Street, Alexandria, VA 22332-2400.
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(ii) Commander, Naval Investigative Service Command.
(iii) Deputy Commander, Naval Legal Service Command.
(3) In the Operating Forces: All officers authorized by Article 22,
Uniform Code of Military Justice (UCMJ), or designated in section 0120,
Manual of the Judge Advocate General (JAGINST 5800.7C), to convene
general courts-martial.
(f) Review authority. (1) The Assistant Secretary of the Navy
(Manpower and Reserve Affairs), is the Secretary's designee, and shall
act upon requests for administrative review of initial denials of
requests for amendment of records related to fitness reports and
performance evaluations of military personnel (see Sec. 701.111(c)(3)).
(2) The Judge Advocate General and General Counsel, as the
Secretary's designees, shall act upon requests for administrative
review of initial denials of records for notification, access, or
amendment of records, as set forth in Sec. 701.111(c)(2) and (4).
(3) The authority of the Secretary of the Navy (SECNAV), as the
head of an agency, to request records subject to the Privacy Act from
an agency external to the Department of Defense for civil or criminal
law enforcement purposes, under subsection (b)(7) of 5 U.S.C. 552a, is
delegated to the Commandant of the Marine Corps, the Director of Naval
Intelligence, the Judge Advocate General, and the General Counsel.
(g) Systems manager. Systems managers, as designated in Department
of the Navy's compilation of systems notices (periodic Chief of Naval
Operations Notes (OPNAVNOTEs) 5211\6\, ``Current Privacy Act
Issuances'') shall:
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\6\See footnote 3 to Sec. 701.101.
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(1) Ensure the system has been published in the Federal Register
and that any additions or significant changes are submitted to CNO
(N09B30) for approval and publication. The systems of records should be
maintained in accordance with the systems notices as published in the
periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, ``Current
Privacy Act Issuances.''
(2) Maintain accountability records of disclosures.
(h) Department of the Navy employees. Each employee of the
Department of the Navy has certain responsibilities for safeguarding
the rights of others. These include:
(1) Not disclosing any information contained in a system of records
by any means of communication to any person or agency, except as
authorized by this subpart and subpart G of this part.
(2) Not maintaining unpublished official files which would fall
under the provisions of 5 U.S.C. 552a.
(3) Safeguarding the privacy of individuals and confidentiality of
personal information contained in a system of records.
Sec. 701.105 Systems of records.
To be subject to this subpart and subpart G of this part, a
``system of records'' must consist of ``records'' that are retrieved by
the name, or some other personal identifier, of an individual and be
under the control of Department of the Navy.
(a) Retrieval practices. (1) Records in a group of records that are
not retrieved by personal identifiers are not covered by this subpart
and subpart G of this part, even if the records contain information
about individuals and are under the control of Department of the Navy.
The records must be retrieved by personal identifiers to become a
system of records.
(2) If records previously not retrieved by personal identifiers are
rearranged so they are retrieved by personal identifiers, a new system
notice must be submitted in accordance with Sec. 701.107.
(3) If records in a system of records are rearranged so retrieval
is no longer by personal identifiers, the records are no longer subject
to this subpart and subpart G of this part and the records system
notice should be deleted in accordance with Sec. 701.107.
(b) Recordkeeping standards. A record maintained in a system of
records subject to this subpart and subpart G of this part must meet
the following criteria:
(1) Be accurate. All information in the record must be factually
correct.
(2) Be relevant. All information contained in the record must be
related to the individual who is the record subject and also must be
related to a lawful purpose or mission of the Department of the Navy
activity maintaining the record.
(3) Be timely. All information in the record must be reviewed
periodically to ensure that it has not changed due to time or later
events.
(4) Be complete. It must be able to stand alone in accomplishing
the purpose for which it is maintained.
(5) Be necessary. All information in the record must be needed to
accomplish a Department of the Navy mission or purpose established by
Federal Law or E.O. of the President.
(c) Authority to establish systems of records. Identify the
specific Federal statute or E.O. of the President that authorizes
maintaining each system of records. When a naval activity uses its
``internal housekeeping'' statute, i.e., 5 U.S.C. 301, Departmental
Regulations, the naval instruction that implements the statute should
also be identified. A statute or E.O. authorizing a system of records
does not negate the responsibility to ensure the information in the
system of records is relevant and necessary.
(d) Exercise of First Amendment rights. (1) Do not maintain any
records describing how an individual exercises rights guaranteed by the
First Amendment of the U.S. Constitution unless expressly authorized by
Federal law; the individual; or pertinent to and within the scope of an
authorized law enforcement activity.
(2) First amendment rights include, but are not limited to, freedom
of religion, freedom of political beliefs, freedom of speech, freedom
of the press, the right to assemble, and the right to petition.
(e) System manager's evaluations and reviews. (1) Evaluate each new
system of records. Before establishing a system of records, evaluate
the information to be included and consider the following:
(i) The relationship of each item of information to be collected
and retained to the purpose for which the system is maintained (all
information must be relevant to the purpose);
(ii) The specific impact on the purpose or mission if each category
of information is not collected (all information must be necessary to
accomplish a lawful purpose or mission.);
(iii) The ability to meet the informational needs without using
personal identifiers (will anonymous statistical records meet the
needs?);
(iv) The length of time each item of information must be kept;
(v) The methods of disposal;
(vi) The cost of maintaining the information; and
(vii) Whether a system already exists that serves the purpose of
the new system.
(2) Evaluate and review all existing systems of records.
(i) When an alteration or amendment of an existing system is
prepared pursuant to Sec. 701.107(b) and (c), do the evaluation
described in Sec. 701.105(e).
(ii) Conduct the following reviews annually and be prepared to
report, in accordance with Sec. 701.104(c)(8), the results and
corrective actions taken to resolve problems uncovered.
(A) Training practices to ensure all personnel are familiar with
the requirements of 5 U.S.C. 552a, and DoD Directive 5400.11, ``DoD
Privacy Program'', this subpart and subpart G of this part, and any
special needs their specific jobs entail.
(B) Recordkeeping and disposal practices to ensure compliance with
this subpart and subpart G of this part.
(C) Ongoing computer matching programs in which records from the
system have been matched with non-DoD records to ensure that the
requirements of Sec. 701.115 have been met.
(D) Actions of Department of the Navy personnel that resulted in
either Department of the Navy being found civilly liable or a person
being found criminally liable under 5 U.S.C. 552a, to determine the
extent of the problem and find the most effective way of preventing the
problem from occurring in the future.
(E) Each system of records notice to ensure it accurately describes
the system. Where major changes are needed, alter the system notice in
accordance with Sec. 701.107(b). If minor changes are needed, amend the
system notice pursuant to Sec. 701.107(c).
(iii) Every even-numbered year, review a random sample of
Department of the Navy contracts that provide for the operation of a
system of records to accomplish a Department of the Navy function, to
ensure the wording of each contract complies with the provisions of 5
U.S.C. 552a and Sec. 701.105(h).
(iv) Every three years, beginning in 1992, review the routine use
disclosures associated with each system of records to ensure the
recipient's use of the records continues to be compatible with the
purpose for which the information was originally collected.
(v) Every three years, beginning in 1993, review each system of
records for which exemption rules have been established to determine
whether each exemption is still needed.
(vi) When directed, send the reports through proper channels to the
CNO (N09B30).
(f) Discontinued information requirements. (1) Immediately stop
collecting any category or item of information about individuals that
is no longer justified, and when feasible, remove the information from
existing records.
(2) Do not destroy records that must be kept in accordance with
retention and disposal requirements established under SECNAVINST
5212.5\7\, ``Disposal of Navy and Marine Corps Records.''
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\7\Copies available from OPNAV/SECNAV Directives Control Office,
Washington Navy Yard, Building 200, Washington, DC 20350-2000.
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(g) Review records before disclosing outside the Federal
government. Before disclosing a record from a system of records to
anyone outside the Federal government, take reasonable steps to ensure
the record which is being disclosed is accurate, relevant, timely, and
complete for the purposes it is being maintained.
(h) Federal government contractors--(1) Applicability to Federal
government contractors--(i) When a naval activity contracts for the
operation of a system of records to accomplish its function, the
activity must ensure compliance with this subpart and subpart G of this
part and 5 U.S.C. 552a. For the purposes of the criminal penalties
described in 5 U.S.C. 552a, the contractor and its employees shall be
considered employees of the agency during the performance of the
contract.
(ii) Consistent with Parts 24 and 52 of the Federal Acquisition
Regulation (FAR), contracts for the operation of a system of records
shall identify specifically the record system and the work to be
performed, and shall include in the solicitations and resulting
contract the terms as prescribed by the FAR.
(iii) If the contractor must use records that are subject to this
subpart and subpart G of this part to perform any part of a contract,
the contractor activities are subject to this subpart and subpart G of
this part.
(iv) This subpart and subpart G of this part do not apply to
records of a contractor that are:
(A) Established and maintained solely to assist the contractor in
making internal contractor management decisions, such as records
maintained by the contractor for use in managing the contract;
(B) Maintained as internal contractor employee records, even when
used in conjunction with providing goods or services to the naval
activity;
(C) Maintained as training records by an educational organization
contracted by a naval activity to provide training when the records of
the contract students are similar to and commingled with training
records of other students, such as admission forms, transcripts, and
academic counseling and similar records; or
(D) Maintained by a consumer reporting agency to which records have
been disclosed under contract in accordance with 31 U.S.C. 952d.
(v) For contracting that is subject to this subpart and subpart G
of this part, naval activities shall publish instructions that:
(A) Furnish Privacy Act guidance to personnel who solicit, award,
or administer Government contracts;
(B) Inform prospective contractors of their responsibilities under
this subpart and subpart G of this part and the Department of the Navy
Privacy Program;
(C) Establish an internal system for reviewing contractor's
performance for compliance with the Privacy Act; and
(D) Provide for the biennial review of a random sample of contracts
that are subject to this subpart and subpart G of this part.
(2) Contracting procedures. The Defense Acquisition Regulatory
(DAR) Council, which oversees the implementation of the FAR within the
Department of Defense, is responsible for developing the specific
policies and procedures for soliciting, awarding, and administering
contracts that are subject to this subpart and subpart G of this part
and 5 U.S.C. 552a.
(3) Contractor compliance. Naval activities shall establish
contract surveillance programs to ensure contractors comply with the
procedures established by the DAR Council under the preceding
subparagraph.
(4) Disclosing records to contractors. Disclosing records to a
contractor for use in performing a contract let by a naval activity is
considered a disclosure within Department of the Navy. The contractor
is considered the agent of Department of the Navy when receiving and
maintaining the records for that activity.
Sec. 701.106 Safeguarding records in systems of records.
Establish appropriate administrative, technical, and physical
safeguards to ensure the records in every system of records are
protected from unauthorized alteration, destruction, or disclosure.
Protect the records from reasonably anticipated threats or hazards that
could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is maintained.
(a) Minimum standards. (1) Conduct risk analysis and management
planning for each system of records. Consider sensitivity and use of
the records, present and projected threats and vulnerabilities, and
present and projected cost-effectiveness of safeguards. The risk
analysis may vary from an informal review of a small, relatively
insensitive system to a formal, fully quantified risk analysis of a
large, complex, and highly sensitive system.
(2) Train all personnel operating a system of records or using
records from a system of records in proper record security procedures.
(3) Label information exempt from disclosure under this subpart and
subpart G of this part to reflect their sensitivity, such as ``FOR
OFFICIAL USE ONLY,'' ``PRIVACY ACT SENSITIVE: DISCLOSE ON A NEED-TO-
KNOW BASIS ONLY,'' or some other statement that alerts individuals of
the sensitivity to the records.
(4) Administer special administrative, physical, and technical
safeguards to protect records processed or stored in an automated data
processing or word processing system to protect them from threats
unique to those environments.
(b) Records disposal. (1) Dispose of records from systems of
records so as to prevent inadvertent disclosure. Disposal methods are
considered adequate if the records are rendered unrecognizable or
beyond reconstruction (i.e., such as tearing, burning, melting,
chemical decomposition, burying, pulping, pulverizing, shredding, or
mutilation). Magnetic media may be cleared by completely erasing,
overwriting, or degaussing the tape.
(2) The transfer of large volumes of records (e.g., printouts and
computer cards) in bulk to a disposal activity such as a Defense
Reutilization and Marketing Office for authorized disposal is not a
disclosure of records, if the volume of records, coding of the
information, or some other factor render it impossible to recognize any
personal information about a specific individual.
(3) When disposing or destroying large quantities of records from a
system of records, care must be taken to ensure that the bulk of the
records is maintained to prevent easy identification of specific
records. If such bulk is maintained, no special procedures are
required. If bulk is not maintained, or if the form of the records
makes individually identifiable information easily discernable, dispose
of the records in accordance with Sec. 701.106(b)(1).
Sec. 701.107 Criteria for creating, altering, amending and deleting
Privacy Act systems of records.
(a) Criteria for a new system of records. A new system of records
is one for which no existing system notice has been published in the
Federal Register. If a notice for a system of records has been canceled
or deleted, and it is determined that it should be reinstated or
reused, a new system notice must be published in the Federal Register.
Advance public notice must be given before a naval activity may begin
to collect information for or use a new system of records. The
following procedures apply:
(1) Describe in the record system notice the contents of the record
system and the purposes and routine uses for which the information will
be used and disclosed.
(2) The public shall be given 30 days to comment on any proposed
routine uses before the routine uses are implemented.
(3) The notice shall contain the date the system of records will
become effective.
(b) Criteria for an alteration to a system of records notice. A
system is considered altered when any one of the following actions
occur or is proposed:
(1) A significant increase or change in the number or types of
individuals about whom records are maintained. For example, a decision
to expand a system of records that originally covered personnel
assigned to only one naval activity to cover personnel at several
installations would constitute an altered system. An increase or
decrease in the number of individuals covered due to normal growth or
decrease is not an alteration.
(2) A change that expands the types or categories of information
maintained. For example, a personnel file that has been expanded to
include medical records would be an alteration.
(3) A change that alters the purpose for which the information is
used. In order to be an alteration, the change must be one that is not
reasonably inferred from any of the existing purposes.
(4) A change to equipment configuration (either hardware or
software) that creates substantially greater use of records in the
system. For example, placing interactive computer terminals at regional
offices when the system was formerly used only at the headquarters
would be an alteration.
(5) A change in the manner in which records are organized or in the
method by which records are retrieved.
(6) Combining record systems due to a reorganization within
Department of the Navy.
(7) Retrieving by Social Security Numbers (SSNs), records that
previously were retrieved only by names would be an alteration if the
present notice failed to indicate retrieval by SSNs. An altered system
of records must be published in the Federal Register. Submission for an
alteration must contain a narrative statement, the specific changes
altering the system, and the system of records notice.
(c) Criteria for amending a systems of records notice. Minor
changes to published system of records notices are considered
amendments. All amendments should be forwarded to CNO (N09B30) for
publication in the Federal Register. When submitting an amendment to a
system of records notice, the naval activity must include a description
of the specific changes proposed and the system of records notice.
(d) Criteria for deleting a system of records notice. When a system
of records is discontinued, incorporated into another system, or
determined to be no longer subject to this subpart and subpart G of
this part, a deletion notice must be published in the Federal Register.
The deletion notice shall include the system identification number,
system name, and the reason for deleting it. If a system is deleted
through incorporation into or merger with another system, identify the
successor system in the deletion notice.
Sec. 701.108 Collecting information about individuals.
(a) Collecting directly from the individual. To the greatest extent
practicable, collect information for systems of records directly from
the individual to whom the record pertains if the record may be used to
make an adverse determination about the individual's rights, benefits,
or privileges under the Federal programs.
(b) Collecting information about individuals from third persons. It
might not always be practical to collect all information about an
individual directly from that person, such as verifying information
through other sources for security or employment suitability
determinations; seeking other opinions, such as a supervisor's comments
on past performance or other evaluations; obtaining the necessary
information directly from the individual would be exceptionally
difficult or would result in unreasonable costs or delays; or, the
individual requests or consents to contacting another person to obtain
the information.
(c) Soliciting the social security number (SSN). (1) It is unlawful
for any Federal, State, or local government agency to deny an
individual a right, benefit, or privilege provided by law because the
individual refuses to provide his or her SSN. However, this prohibition
does not apply if a Federal law requires that the SSN be provided, or
the SSN is required by a law or regulation adopted before January 1,
1975, to verify the individual's identity for a system of records
established and in use before that date.
(2) Before requesting an individual to provide the SSN, the
individual must be advised whether providing the SSN is mandatory or
voluntary; by what law or other authority the SSN is solicited; and
what uses will be made of the SSN.
(3) The preceding advice relates only to the SSN. If other
information about the individual is solicited for a system of records,
a Privacy Act statement (PAS) also must be provided to him/her.
(4) The notice published in the Federal Register for each system of
records containing SSNs solicited from individuals must indicate the
authority for soliciting the SSNs and whether it is mandatory for the
individuals to provide their SSNs. E.O. 9397 requires federal agencies
to use SSNs as numerical identifiers for individuals in most federal
records systems, however, it does not make it mandatory for individuals
to provide their SSNs.
(5) When entering military service or civilian employment with the
Department of the Navy, individuals must provide their SSNs. This is
then the individual's numerical identifier and is used to establish
personnel, financial, medical, and other official records (as
authorized by E.O. 9397). The individuals must be given the
notification described above. Once the individual has provided his or
her SSN to establish the records, a notification is not required when
the SSN is requested only for identification or to locate the records.
(6) The Federal Personnel Manual\8\ must be consulted when
soliciting SSNs for use in systems of records maintained by the Office
of Personnel Management.
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\8\Copies available from the Office of Personnel Management,
1900 E Street, Washington, DC 20415.
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(7) A Department of the Navy activity may request an individual's
SSN even though it is not required by Federal statute, or is not for a
system of records in existence and operating prior to January 1, 1975.
However, the separate Privacy Act Statement for the SSN, alone, or a
merged Privacy Act Statement covering both the SSN and other items of
personal information, must make clear that disclosure of the number is
voluntary. If the individual refuses to disclose his or her SSN, the
activity must be prepared to identify the individual by alternate
means.
(d) Contents of Privacy Act Statement. (1) When an individual is
requested to furnish information about himself/herself for a system of
records, a Privacy Act Statement must be provided to the individual,
regardless of the method used to collect the information (i.e., forms,
personal or telephonic interview, etc). If the information requested
will not be included in a system of records, a Privacy Act Statement is
not required.
(2) The Privacy Act Statement shall include the following:
(i) The Federal law or E.O. that authorizes collecting the
information (i.e., E.O. 9397 authorizes collection of SSNs);
(ii) Whether or not it is mandatory for the individual to provide
the requested information (It is only mandatory when a Federal law or
E.O. of the President specifically imposes a requirement to furnish the
information and provides a penalty for failure to do so. If furnishing
information is a condition for granting a benefit or privilege
voluntarily sought by the individual, it is voluntary for the
individual to give the information.);
(iii) The principle purposes for collecting the information;
(iv) The routine uses that will be made of the information (i.e.,
to whom and why it will be disclosed outside the Department of
Defense); and
(v) The possible effects on the individual if the requested
information is not provided.
(3) The Privacy Act Statement must appear on the form used to
collect the information or on a separate form that can be retained by
the individual collecting the information. If the information is
collected by means other than a form completed by the individual, i.e.,
solicited over the telephone, the Privacy Act Statement should be read
to the individual and if requested by the individual, a copy sent to
him/her. There is no requirement that the individual sign the Privacy
Act Statement.
(e) Format for Privacy Act Statement. When forms are used to
collect information about individuals for a system of records, the
Privacy Act Statement shall appear as follows (listed in the order of
preference):
(1) Immediately below the title of the form,
(2) Elsewhere on the front page of the form (clearly indicating it
is the Privacy Act Statement),
(3) On the back of the form with a notation of its location below
the title of the form, or
(4) On a separate form which the individual may keep.
Sec. 701.109 Access to records.
(a) Individual access to records--(1) Right of access. Only
individuals who are subjects of records maintained in systems of
records and by whose personal identifiers the records are retrieved
have the right of individual access under this subpart and subpart G of
this part, unless they provide written authorization for their
representative to act on their behalf. Legal guardians or parents
acting on behalf of a minor child also have the right of individual
access under this subpart and subpart G of this part.
(2) Notification of record's existence. Each naval activity shall
establish procedures for notifying an individual, in response to his or
her request, if a system of records identified by him/her contains a
record pertaining to the individual.
(3) Individual request for access. Individuals shall address
requests for access to records in systems of records to the system
manager or the office designated in the Department of the Navy
compilation of system notices (periodic Chief of Naval Operations Notes
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'').
(4) Verifying identity. (i) An individual shall provide reasonable
verification of identity before obtaining access to records.
(ii) When requesting records in writing, naval activities may not
insist that a requester submit a notarized signature. The courts have
ruled that an alternative method of verifying identity must be
established for individuals who do not have access to notary services.
This alternative permits requesters to provide an unsworn declaration
that states ``I declare under perjury or penalty under the laws of the
United States of American that the foregoing is true and correct.''
(iii) When an individual seeks access in person, identification can
be verified by documents normally carried by the individual (i.e.,
identification card, driver's license, or other license, permit or pass
normally used for identification purposes).
(iv) When access is requested other than in writing, identity may
be verified by the individual's providing minimum identifying data such
as full name, date and place of birth, or other information necessary
to locate the record sought. If the information sought is sensitive,
additional identifying data may be required. Telephonic requests should
not be honored.
(v) Allow an individual to be accompanied by a person of his or her
choice when viewing the record; however, require the individual to
provide written authorization to have the record discussed in front of
the other person.
(vi) Do not deny access to an individual who is the subject of the
record solely for refusing to divulge his or her SSN, unless it is the
only means of retrieving the record or verifying identity.
(vii) Do not require the individual to explain why he or she is
seeking access to a record under this subpart and subpart G of this
part.
(viii) Only a designated denial authority may deny access. The
denial must be in writing and contain the information required by
Sec. 701.109(d).
(5) Blanket requests not honored. Do not honor requests from
individuals for notification and/or access concerning all Department of
the Navy systems of records. In these instances, notify the individual
that requests for notification and/or access must be directed to the
appropriate system manager for the particular record system being
requested, as indicated in the periodic Chief of Naval Operations Notes
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances''; and the request
must either designate the particular system of records to be searched,
or provide sufficient information for the system manager to identify
the appropriate system. Also, provide the individual with any other
information needed for obtaining consideration of his or her request.
(6) Granting individual access to records. (i) Grant the individual
access to the original record (or exact copy) without any changes or
deletions, other than those made in accordance with Sec. 701.113.
(ii) Grant the individual's request for an exact copy of the
record, upon the signed authorization of the individual, and provide a
copy to anyone designated by the individual. In either case, the
copying fees may be assessed to the individual pursuant to
Sec. 701.109(b).
(iii) If requested, explain any record or portion of a record that
is not understood, as well as any changes or deletions.
(7) Illegible or incomplete records. Do not deny an individual
access solely because the physical condition or format of the record
does not make it readily available (i.e., when the record is in a
deteriorated state or on magnetic tape). Either prepare an extract or
recopy the document exactly.
(8) Access by parents and legal guardians. (i) The parent of any
minor, or the legal guardian of any individual declared by a court of
competent jurisdiction to be incompetent due to physical or mental
incapacity or age, may obtain access to the record of the minor or
incompetent individual if the parent or legal guardian is acting on
behalf or for the benefit of the minor or incompetent. However, with
respect to access by parents and legal guardians to medical records and
medical determinations about minors, use the following procedures:
(A) In the United States, the laws of the state where the records
are located might afford special protection to certain medical records
(i.e., drug and alcohol abuse treatment, and psychiatric records). The
state statutes might apply even if the records are maintained by a
naval medical facility.
(B) For installations located outside the U.S., the parent or legal
guardian of a minor shall be denied access if all four of the following
conditions are met:
(1) The minor at the time of the treatment or consultation was 15,
16, or 17 years old;
(2) The treatment or consultation was within a program authorized
by law or regulation to provide confidentiality to the minor;
(3) The minor indicated a desire that the treatment or consultation
record be handled in confidence and not disclosed to a parent or
guardian; and
(4) The parent or legal guardian does not have the written
authorization of the minor or a valid court order granting access.
(ii) A minor or incompetent has the same right of access as any
other individual under this subpart and subpart G of this part. The
right of access of the parent or legal guardian is in addition to that
of the minor or incompetent.
(9) Access to information compiled in reasonable anticipation of a
civil proceeding. (i) An individual is not entitled under this subpart
and subpart G of this part to access information compiled in reasonable
anticipation of a civil action or proceeding.
(ii) The term ``civil action or proceeding'' includes quasi-
judicial and pre-trial judicial proceedings, as well as formal
litigation.
(iii) Sec. 701.109(9)(i) and (ii) do not prohibit access to records
compiled or used for purposes other than litigation, nor prohibit
access to systems of records solely because they are frequently subject
to litigation. The information must have been compiled for the primary
purpose of litigation.
(10) Personal notes or records not under the control of the
Department of the Navy. (i) Certain documents under the control of a
Department of the Navy employee and used to assist him/her in
performing official functions are not considered Department of the Navy
records within the meaning of this subpart and subpart G of this part.
These documents are not systems of records that are subject to this
subpart and subpart G of this part, if they are:
(A) Maintained and discarded solely at the discretion of the
author;
(B) Created only for the author's personal convenience;
(C) Not the result of official direction or encouragement, whether
oral or written; and
(D) Not shown to other persons for any reason or filed in agency
files.
(11) Relationship between the Privacy Act and FOIA. In some
instances, individuals requesting access to records pertaining to
themselves may not know which Act to cite as the appropriate statutory
authority. The following guidelines are to ensure that the individuals
receive the greatest degree of access under both Acts:
(i) Access requests that specifically state or reasonably imply
that they are made under 5 U.S.C. 552 (1988) as amended by the Freedom
of Information Reform Act of 1986, are processed under Secretary of the
Navy Instruction 5720.42E, ``Department of the Navy Freedom of
Information Act Program.''
(ii) Access requests that specifically state or reasonably imply
that they are made under 5 U.S.C. 552a are processed under this subpart
and subpart G of this part.
(iii) Access requests that cite both 5 U.S.C. 552a, as amended by
the Computer Matching Act of 1988 and 5 U.S.C. 552 (1988) as amended by
the Freedom of Information Reform Act are processed under the Act that
provides the greater degree of access. Inform the requester which
instruction was used in granting or denying access.
(iv) Do not penalize the individual access to his or her records
otherwise releasable under 5 U.S.C. 552a and periodic Chief of Naval
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'',
simply because he or she failed to cite the appropriate statute or
instruction.
(12) Time limits. Acknowledge requests for access made under
Privacy Act or this subpart and subpart G of this part within 10
working days after receipt, and advise the requester of your decision
to grant/deny access within 30 working days.
(b) Reproduction fees. Normally, only one copy of any record or
document will be provided. Checks or money orders for fees should be
made payable to the Treasurer of the United States and deposited to the
miscellaneous receipts of the treasury account maintained at the
finance office servicing the activity.
(1) Fee schedules shall include only the direct cost of
reproduction and shall not include costs of:
(i) Time or effort devoted to searching for or reviewing the record
by naval 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 record and has not requested a copy to keep, and the only
means of allowing review is to make a copy (e.g., the record is stored
in a computer and a copy must be printed to provide individual access,
or the naval activity does not wish to surrender temporarily the
original record for the individual to review).
(2) Fee schedules.
(i) Office copy (per page)............$.10
(ii) Microfiche (per fiche)............$.25
(3) Fee waivers. Waive fees automatically if the direct cost of
reproduction is less than $15, unless the individual is seeking an
obvious extension or duplication of a previous request for which he or
she was granted a waiver. Decisions to waive or reduce fees that exceed
$15 are made on a case-by-case basis.
(c) Denying individual access. (1) Deny the record subject access
to requested record only if it was compiled in reasonable anticipation
of a civil action or proceeding or is in a system of records that has
been exempt from the access provisions of Sec. 701.113.
(2) Deny the individual access only to those portions of the record
for which the denial will serve a legitimate government purpose. An
individual may be refused access for failure to comply with established
procedural requirements, but must be told the specific reason for the
refusal and the proper access procedures.
(3) Deny the individual access to his or her medical and
psychological records if it is determined that access could have an
adverse affect on the mental or physical health of the individual. This
determination normally should be made in consultation with a medical
practitioner. If it is medically indicated that access could have an
adverse mental or physical effect on the individual, provide the record
to a medical practitioner named by the individual, along with an
explanation of why access without medical supervision could be harmful
to the individual. In any case, do not require the named medical
practitioner to request the record for the individual. If, however, the
individual refuses or fails to designate a medical practitioner, access
shall be refused. The refusal is not considered a denial for reporting
purposes under the Privacy Act.
(d) Notifying the individual. Written denial of access must be
given to the individual. The denial letter shall include:
(1) The name, title, and signature of a designated denial
authority;
(2) The date of the denial;
(3) The specific reason for the denial, citing the appropriate
subsections of 5 U.S.C. 552a or this subpart and subpart G of this part
authorizing the denial;
(4) The individual's right to appeal the denial within 60 calendar
days of the date the notice is mailed; and
(5) The title and address of the review authority.
Sec. 701.110 Amendment of records.
(a) Individual review and amendment. Encourage individuals to
review periodically, the information maintained about them in systems
of records, and to avail themselves of the amendment procedures
established by this subpart and subpart G of this part.
(1) Right to amend. An individual may request to amend any record
retrieved by his or her personal identifier from a system of records,
unless the system has been exempt from the amendment procedures under
this subpart. Amendments under this subpart and subpart G of this part
are limited to correcting factual matters, not matters of opinion
(i.e., information contained in evaluations of promotion potential or
performance appraisals). When records sought to be amended are covered
by another issuance, the administrative procedures under that issuance
must be exhausted before using the Privacy Act. In other words, the
Privacy Act may not be used to avoid the administrative procedures
required by the issuance actually covering the records in question.
(2) In writing. Amendment requests shall be in writing, except for
routine administrative changes, such as change of address.
(3) Content of amendment request. An amendment request must include
a description of the information to be amended;the reason for the
amendment; the type of amendment action sought (i.e., deletion,
correction, or addition); and copies of available documentary evidence
supporting the request.
(b) Burden of proof. The individual must provide adequate support
for the request.
(c) Verifying identity. The individual may be required to provide
identification to prevent the inadvertent or intentional amendment of
another's record. Use the verification guidelines provided in
Sec. 701.109(a)(4).
(d) Limits on amending judicial and quasi-judicial evidence and
findings. This subpart and subpart G of this part do not permit the
alteration of evidence presented in the course of judicial or quasi-
judicial proceedings. Amendments to such records must be made in
accordance with procedures established for such proceedings. This
subpart and subpart G of this part do not permit a collateral attack on
a judicial or quasi-judicial finding; however, this subpart and subpart
G of this part may be used to challenge the accuracy of recording the
finding in a system of records.
(e) Standards for amendment request determinations. The record
which the individual requests to be amended must meet the recordkeeping
standards established in Sec. 701.105. The record must be accurate,
relevant, timely, complete, and necessary. If the record in its present
state does not meet each of the criteria, grant the amendment request
to the extent necessary to meet them.
(f) Time limits. Within 10 working days of receiving an amendment
request, the systems manager shall provide the individual a written
acknowledgement of the request. If action on the amendment request is
completed within the 10 working days and the individual is so informed,
no separate acknowledgment is necessary. The acknowledgment must
clearly identify the request and advise the individual when to expect
notification of the completed action. Only under exceptional
circumstances should more than 30 working days be required to complete
the action on an amendment request.
(g) Granting an amendment request in whole or in part.--(1) Notify
the requester. To the extent the amendment request is granted, the
systems manager shall notify the individual and make the appropriate
amendment.
(2)Notify previous recipients. Notify all previous recipients of
the information (as reflected in the disclosure accounting record) that
the amendment has been made and provide each a copy of the amended
record. Recipients who are known to be no longer retaining the record
need not be advised of the amendment. If it is known that other naval
activities, DoD components, or Federal agencies have been provided the
information that now requires amendment, or if the individual requests
that these agencies be notified, provide the notification of amendment
even if those activities or agencies are not listed on the disclosure
accounting form.
(h) Denying an amendment request in whole or in part. If the
amendment request is denied in whole or in part, promptly notify the
individual in writing. Include in the notification to the individual
the following:
(1) Those sections of 5 U.S.C. 552a or this subpart and subpart G
of this part upon which the denial is based;
(2) His or her right to appeal to the head of the activity for an
independent review of the initial denial;
(3) The procedures for requesting an appeal, including the title
and address of the official to whom the appeal should be sent; and
(4) Where the individual can receive assistance in filing the
appeal.
(i) Requests for amending OPM records. The records in an OPM
government-wide system of records are only temporarily in the custody
of naval activities. Requests for amendment of these records must be
processed in accordance with OPM Regulations and the Federal Personnel
Manual. The denial authority may deny a request, but all denials are
subject to review by the Assistant Director for Workforce Information,
Personnel Systems Oversight Group, Office of Personnel Management, 1900
E Street, NW, Washington, DC 20415.
(j) Individual's statement of disagreement. (1) If the review
authority refuses to amend the record as requested, the individual may
submit a concise statement of disagreement listing the reasons for
disagreeing with the refusal to amend.
(2) If possible, incorporate the statement of disagreement into the
record. If that is not possible, annotate the record to reflect that
the statement was filed and maintain the statement so that it can be
readily obtained when the disputed information is used or disclosed.
(3) Furnish copies of the statement of disagreement to all
individuals listed on the disclosure accounting form (except those
known to be no longer retaining the record), as well as to all other
known holders of copies of the record.
(4) Whenever the disputed information is disclosed for any purpose,
ensure that the statement of disagreement also is used or disclosed.
(k) Department of the Navy statement of reasons. (1) If the
individual files a statement of disagreement, the naval activity may
file a statement of reasons containing a concise summary of the
activity's reasons for denying the amendment request.
(2) The statement of reasons shall contain only those reasons given
to the individual by the appellate official and shall not contain any
comments on the individual's statement of disagreement.
(3) At the discretion of the naval activity, the statement of
reasons may be disclosed to those individuals, activities, and agencies
that receive the statement of disagreement.
Sec. 701.111 Privacy Act Appeals
(a) How to file an appeal. The following guidelines shall be
followed by individuals wishing to appeal a denial of notification,
access, or amendment of records.
(1) The appeal must be received by the cognizant review authority
(i.e., ASN (M&RA), NJAG, OGC, or OPM) within 60 calendar days of the
date of the response.
(2) The appeal must be in writing and requesters should provide a
copy of the denial letter and a statement of their reasons for seeking
review.
(b) Time of receipt. The time limits for responding to an appeal
commence when the appeal reaches the office of the review authority
having jurisdiction over the record. Misdirected appeals should be
referred expeditiously to the proper review authority.
(c) Review authorities. ASN (M&RA), NJAG, and OGC are authorized to
adjudicate appeals made to SECNAV. NJAG and OGC are further authorized
to delegate this authority to a designated Assistant NJAG and the
Principal Deputy General or Deputy General Counsel, respectively, under
such terms and conditions as they deem appropriate.
(1) If the record is from a civilian Official Personnel Folder or
is contained on any other OPM forms, send the appeal to the Assistant
Director for Workforce Information, Personnel Systems and Oversight
Group, Office of Personnel Management, 1900 E Street, NW, Washington,
DC 20415. Records in all systems of records maintained in accordance
with the OPM government-wide systems notices are only in the temporary
custody of the Department of the Navy.
(2) If the record pertains to the employment of a present or former
Navy and Marine Corps civilian employee, such as Navy or Marine Corps
civilian personnel records or an employee's grievance or appeal file,
to the General Counsel, Navy Department, Washington, DC 20360-5110.
(3) If the record pertains to a present or former military member's
fitness reports or performance evaluations to the Assistant Secretary
of the Navy (Manpower and Reserve Affairs), Navy Department,
Washington, DC 20350-1000.
(4) All other records dealing with present or former military
members to the Judge Advocate General, Navy Department, 200 Stovall
Street, Alexandria, VA 22332-2400.
(d) Appeal procedures. (1) If the appeal is granted, the review
authority shall advise the individual that his or her appeal has been
granted and provide access to the record being sought.
(2) If the appeal is denied totally or in part, the appellate
authority shall advise the reason(s) for denying the appeal, citing the
appropriate subsections of 5 U.S.C. 552a or this subpart and subpart G
of this part that apply; the date of the appeal determination; the
name, title, and signature of the appellate authority; and a statement
informing the requester of his or her right to seek judicial relief in
the Federal District Court.
(e) Final action, time limits and documentation. (1) The written
appeal notification granting or denying access is the final naval
activity action on the initial request for access.
(2) All appeals shall be processed within 30 working days of
receipt, unless the appellate authority finds that an adequate review
cannot be completed within that period. If additional time is needed,
notify the applicant in writing, explaining the reason for the delay
and when the appeal will be completed.
(f) Denial of appeal by activity's failure to act. An individual
may consider his or her appeal denied if the appellate authority fails
to:
(1) Take final action on the appeal within 30 working days of
receipt when no extension of time notice was given; or
(2) Take final action within the period established by the notice
to the appellate authority of the need for an extension of time to
complete action on the appeal.
Sec. 701.112 Disclosure of records.
(a) Conditions of disclosure. (1) 5 U.S.C. 552a prohibits an agency
from disclosing any record contained in a system of records to any
person or agency, except when the record subject gives written consent
for the disclosure or when one of the 12 conditions listed below in
this subsection applies.
(2) Except for disclosures made under 5 U.S.C. 552 (1988) as
amended by the Freedom of Information Reform Act of 1986 and Secretary
of the Navy Instruction 5720.42E, ``Department of the Navy Freedom of
Information Act Program,'' before disclosing any record from a system
of records to any recipient other than a Federal agency, make
reasonable efforts to ensure the record is accurate, relevant, timely,
and complete for Department of the Navy purposes. Records discovered to
have been improperly filed in the system of records should be removed
before disclosure.
(i) If validation cannot be obtained from the record itself, the
naval activity may contact the record subject (if reasonably available)
to verify the accuracy, timeliness, completeness, and relevancy of the
information.
(ii) If validation cannot be obtained from the record and the
record subject is not reasonably available, advise the recipient that
the information is believed to be valid as of a specific date and
reveal any factors bearing on the validity of the information.
(b) Nonconsensual disclosures. 5 U.S.C. 552a provides 12 instances
when a record in a system of records may be disclosed without the
written consent of the record subject:
(1) Disclosures within the Department of Defense. For purposes of
disclosing records, the Department of Defense is considered a single
agency; hence, a record may be disclosed to any officer or employee in
the Department of Defense (including private contractor personnel who
are engaged to perform services needed in connection with the operation
of a system of records for a DoD component), who have a need for the
record in the performance of their duties, provided this use is
compatible with the purpose for which the record is maintained. This
provision is based on the ``need to know'' concept.
(i) For example, this may include disclosure to personnel managers,
review boards, discipline officers, courts-martial personnel, medical
officers, investigating officers, and representatives of the Judge
Advocate General, Auditor General, Naval Inspector General, or the
Naval Investigative Service, who require the information in order to
discharge their official duties. Examples of personnel outside the
Department of the Navy who may be included are: personnel of the Joint
Staff, Armed Forces Entrance and Examining Stations, Defense
Investigative Service, or the other military departments, who require
the information in order to discharge an official duty.
(ii) It may also include the transfer of records between naval
components and non-DoD agencies in connection with the Personnel
Exchange Program (PEP) and interagency support agreements. Disclosure
accountings are not required for intra-agency disclosure and
disclosures made in connection with interagency support agreements or
the PEP. Although some disclosures authorized by this paragraph might
also meet the criteria for disclosure under other exceptions specified
in the following paragraphs of this section, they should be treated
under this paragraph for disclosure accounting purposes.
(2) Disclosures required by the FOIA. (i) A record must be
disclosed if required by 5 U.S.C. 552 (1988) as amended by the Freedom
of Information Reform Act of 1986, which is implemented by Secretary of
the Navy Instruction 5720.42E, ``Department of the Navy Freedom of
Information Act Program.''
(ii) 5 U.S.C. 552 (1988) as amended by the Freedom of Information
Reform Act of 1986 and Secretary of the Navy Instruction 5720.42E,
``Department of the Navy Freedom of Information Act Program'' require
that records be made available to any person requesting them in
writing, unless the record is exempt from disclosure under one of the
nine FOIA exemptions. Therefore, if a record is not exempt from
disclosure, it must be provided to the requester.
(iii) Certain records, such as personnel, medical, and similar
files, are exempt from disclosure under exemption (b)(6) of 5 U.S.C.
552 (1988) as amended by the Freedom of Information Act Reform Act of
1986. Under that exemption, disclosure of information pertaining to an
individual can be denied only when the disclosure would be a clearly
unwarranted invasion of personal privacy. The first step is to
determine whether a viable personal privacy interest exists in these
records involving an identifiable living person. The second step is to
consider how disclosure would benefit the general public in light of
the content and context of the information in question. The third step
is to determine whether the identified public interests qualify for
consideration. The fourth step is to balance the personal privacy
interests against the qualifying public interest. Numerous factors must
be considered such as: the nature of the information to be disclosed
(i.e., Do individuals normally have an expectation of privacy in the
type of information to be disclosed?); importance of the public
interest served by the disclosure and probability of further disclosure
which may result in an unwarranted invasion of privacy; relationship of
the requester to the public interest being served; newsworthiness of
the individual to whom the information pertains (i.e., high ranking
officer, public figure); degree of sensitivity of the information from
the standpoint of the individual or the individual's family, and its
potential for being misused to the harm, embarrassment, or
inconvenience of the individual or the individual's family; the passage
of time since the event which is the topic of the record (i.e., to
disclose that an individual has been arrested and is being held for
trial by court-martial is normally permitted, while to disclose an
arrest which did not result in conviction might not be permitted after
the passage of time); and the degree to which the information is
already in the public domain or is already known by the particular
requester.
(iv) Records or information from investigatory records, including
personnel security investigatory records, are exempt from disclosure
under the broader standard of ``an unwarranted invasion of personal
privacy'' found in exemption (b)(7)(C) of 5 U.S.C. 552. This broader
standard applies only to records or information compiled for law
enforcement purposes.
(v) A disclosure under 5 U.S.C. 552 about military members must be
in accordance with Secretary of the Navy Instruction 5720.42E,
``Department of the Navy Freedom of Information Act Program'', but the
following information normally may be disclosed from military personnel
records (except for those personnel assigned to sensitive or routinely
deployable units, or located in a foreign territory), without a clearly
unwarranted invasion of personal privacy: Full name, rank, date of
rank, base pay, past duty stations, present duty station and future
duty station (if finalized), unless the stations have been determined
by the Department of the Navy to be sensitive, routinely deployable, or
located in a foreign territory, office or duty telephone number, source
of commission, promotion sequence number, awards and decorations,
attendance at professional military schools, and duty status at any
given time.
(vi) The following information normally may be disclosed from
civilian employee records about CONUS employees: Full name, present and
past position titles and occupational series, present and past grades,
present and past annual salary rates (including performance awards or
bonuses, incentive awards, merit pay amount, Meritorious and
Distinguished Executive Ranks, and allowances and differentials), past
duty stations, present duty station and future duty station (if
finalized), including room numbers, shop designations, or other
identifying information regarding buildings or places of employment,
unless the duty stations have been determined by the Department of the
Navy to be sensitive, routinely deployable, or located in a foreign
territory, position descriptions, identification of job elements, and
those performance standards (but not actual performance appraisals)
that the disclosure of which would not interfere with law enforcement
programs or severely inhibit Department of the Navy effectiveness.
(viii) Disclosure of home addresses and home telephone numbers
normally is considered a clearly unwarranted invasion of personal
privacy and is prohibited. However, they may be disclosed if the
individual has consented to the disclosure; the disclosure is required
by the FOIA; the disclosure is required by another law, such as 42
U.S.C. 653, which provides assistance to states in locating parents who
have defaulted on child support payments, or the collection of alimony,
and to state and local tax authorities for the purpose of enforcing tax
laws. However, care must be taken prior to release to ensure that a
written record is prepared to document the reasons for the release
determination.
(A) When compiling home addresses and telephone numbers, the
individual may be offered the option of authorizing disclosure of the
information without further consent for specific purposes, such as
locator services. In that case, the information may be disclosed for
the stated purpose without further consent. If the information is to be
disclosed for any other purpose, a signed consent permitting the
additional disclosure must be obtained from the individual.
(B) Before listing home addresses and telephone numbers in
Department of the Navy telephone directories, give the individual the
opportunity to refuse such a listing. If the individual requests that
the home address or telephone number not be listed in the directory, do
not assess any additional fee associated with maintaining an unlisted
number for government-owned telephone services.
(C) The sale or rental of lists of names and addresses is
prohibited unless such action is specifically authorized by Federal
law. This does not prohibit the disclosure of names and addresses made
under Secretary of the Navy Instruction 5720.42E, ``Department of the
Navy Freedom of Information Act Program.''
(D) In response to FOIA requests, information concerning special
and general courts-martial results (e.g., records of trial) are
releasable. However, information regarding summary courts-martial and
non-judicial punishment are generally not releasable. The balancing of
interests must be done. It is possible that in a particular case,
information regarding non-judicial punishment should be disclosed
pursuant to a FOIA request (i.e., the facts leading to a nonjudicial
punishment are particularly newsworthy or the case involves a senior
official abusing the public trust through office-related misconduct,
such as embezzlement). Announcement of nonjudicial punishment
dispositions under JAGMAN, subsection 0107, is a proper exercise of
command authority and not a release of information under FOIA or this
subpart and subpart G of this part. Exceptions to this policy must be
coordinated with CNO (N09B30) or CMC (MI-3) prior to responding to
requesters, including all requests for this type of information from
members of Congress.
(3) Disclosures for established routine uses. (i) Records may be
disclosed outside the Department of the Navy if the disclosure is for
an established routine use.
(ii) A routine use shall:
(A) Be compatible with and related to the purpose for which the
record was created;
(B) Identify the persons or organizations to whom the record may be
disclosed;
(C) Identify specifically the uses for which the information may be
employed by the receiving person or organization; and
(D) Have been published previously in the Federal Register.
(iii) A routine use shall be established for each user of the
information outside the Department of the Navy who needs the
information for an official purpose.
(iv) Routine uses may be established, discontinued, or amended
without the consent of the individuals to whom the records pertain.
However, new and amended routine uses must be published in the Federal
Register at least 30 days before the information may be disclosed under
their provisions.
(v) In addition to the routine uses established by the Department
of the Navy for each system of records, common ``Blanket Routine
Uses,'' applicable to all record systems maintained with the Department
of the Navy, have been established. These ``Blanket Routine Uses'' are
published at the beginning of the Department of the Navy's Federal
Register compilation of record systems notices rather than at each
system notice and are also reflected in periodic Chief of Naval
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.''
Unless a system notice specifically excludes a system of records from a
``Blanket Routine Use,'' all ``Blanket Routine Uses'' apply to that
system.
(vi) If the recipient has not been identified in the Federal
Register or if the recipient, though identified, intends to employ the
information for a purpose not published in the Federal Register, the
written consent of the individual is required before the disclosure can
be made.
(4) Disclosures to the Bureau of the Census. Records may be
disclosed to the Bureau of the Census for purposes of planning or
carrying out a census, survey, or related activities authorized by 13
U.S.C. 8.
(5) Disclosures for statistical research or reporting. Records may
be disclosed to a recipient for statistical research or reporting if:
(i) Prior to the disclosure, the recipient has provided adequate
written assurance that the records shall be used solely for statistical
research or reporting; and
(ii) The records are transferred in a form that does not identify
individuals.
(6) Disclosures to the National Archives and Records
Administration. (i) Records may be disclosed to the National Archives
and Record Administration for evaluation to determine whether the
records have sufficient historical or other value to warrant
preservation by the Federal government. If preservation is warranted,
the records will be retained by the National Archives and Record
Administration, which becomes the official owner of the records.
(ii) Records may be disclosed to the National Archives and Record
Administration to carry out records management inspections required by
Federal law.
(iii) Records transferred to a Federal Records Center operated by
the National Archives and Record Administration for storage are not
within this category. Those records continue to be maintained and
controlled by the transferring naval activity. The Federal Records
Center is considered the agent of Department of the Navy and the
disclosure is made under Sec. 701.112(b)(1).
(7) Disclosures when requested for law enforcement purposes. (i) A
record may be disclosed to another agency or an instrumentality of any
governmental jurisdiction within or under the control of the U.S. for a
civil or criminal law enforcement activity if:
(A) The civil or criminal law enforcement activity is authorized by
law (federal, state or local); and
(B) The head of the agency (or his or her designee) has made a
written request to the naval activity specifying the particular record
or portion desired and the law enforcement purpose for which it is
sought.
(ii) Blanket requests for any and all records pertaining to an
individual shall not be honored. The requesting agency must specify
each record or portion desired and how each relates to the authorized
law enforcement activity.
(iii) If a naval activity discloses a record outside the Department
of Defense for law enforcement purposes without the individual's
consent and without an adequate written request, the disclosure must be
under an established routine use, such as the ``Blanket Routine Use''
for law enforcement.
(iv) Disclosure to foreign law enforcement agencies is not governed
by the provisions of 5 U.S.C. 552a and this paragraph, but may be made
only under established ``Blanket Routine Uses,'' routine uses published
in the individual record system notice, or to other governing
authority.
(8) Disclosure to protect the health or safety of an individual.
Disclosure may be made under emergency conditions involving
circumstances affecting the health and safety of an individual (i.e.,
when the time required to obtain the consent of the individual to whom
the records pertain might result in a delay which could impair the
health or safety of a person) provided notification of the disclosure
is sent to the record subject. Sending the notification to the last
known address is sufficient. In instances where information is
requested by telephone, an attempt will be made to verify the
inquirer's and medical facility's identities and the caller's telephone
number. The requested information, if then considered appropriate and
of an emergency nature, may be provided by return call.
(9) Disclosures to Congress. (i) A record may be disclosed to
either House of Congress at the request of either the Senate or House
of Representatives as a whole.
(ii) A record also may be disclosed to any committee, subcommittee,
or joint committee of Congress if the disclosure pertains to a matter
within the legislative or investigative jurisdiction of the committee,
subcommittee, or joint committee.
(iii) Disclosure may not be made to a Member of Congress requesting
in his or her individual capacity. However, for Members of Congress
making inquiries on behalf of individuals who are subjects of records,
a ``Blanket Routine Use'' has been established to permit disclosures to
individual Members of Congress.
(A) When responding to a congressional inquiry made on behalf of a
constituent by whose identifier the record is retrieved, there is no
need to verify that the individual has authorized the disclosure to the
Member of Congress.
(B) The oral or written statement of a Congressional staff member
is sufficient to establish that a request has been received from the
individual to whom the record pertains.
(C) If the constituent inquiry is made on behalf of an individual
other than the record subject, provide the Member of Congress only that
information releasable under 5 U.S.C. 552. Advise the Member of
Congress that the written consent of the record subject is required
before additional information may be disclosed. Do not contact the
record subject to obtain consent for the disclosure to the Member of
Congress unless the Congressional office specifically requests it be
done.
(10) Disclosures to the Comptroller General for the General
Accounting Office (GAO). Records may be disclosed to the Comptroller
General of the U.S., or authorized representative, in the course of the
performance of the duties of the GAO.
(11) Disclosures under court orders. (i) Records may be disclosed
under the order of a court of competent jurisdiction.
(ii) When a record is disclosed under this provision and the
compulsory legal process becomes a matter of public record, make
reasonable efforts to notify the individual to whom the record
pertains. Notification sent to the last known address of the individual
is sufficient. If the order has not yet become a matter of public
record, seek to be advised as to when it will become public. Neither
the identity or the party to whom the disclosure was made nor the
purpose of the disclosure shall be made available to the record subject
unless the court order has become a matter of public record.
(iii) The court order must bear the signature of a federal, state,
or local judge. Orders signed by court clerks or attorneys are not
deemed to be orders of a court of competent jurisdiction. A photocopy
of the order, regular on its face, will be sufficient evidence of the
court's exercise of its authority of the minimal requirements of
SECNAVINST 5820.8A\9\, ``Release of Official Information for Litigation
Purposes and Testimony by Department of the Navy Personnel.''
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\9\Copies available from the Judge Advocate General, Navy
Department, (Code 34), 200 Stovall Street, Alexandria, VA 22332-
2400.
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(12) Disclosures to consumer reporting agencies. Certain
information may be disclosed to consumer reporting agencies (i.e.,
credit reference companies such as TRW and Equifax, etc.) as defined by
the Federal Claims Collection Act of 1966 (31 U.S.C. 952d). Under the
provisions of that Act, the following information may be disclosed to a
consumer reporting agency:
(i) Name, address, taxpayer identification number (SSN), and other
information necessary to establish the identity of the individual;
(ii) The amount, status, and history of the claim; and
(iii) The agency or program under which the claim arose. 31 U.S.C.
952d specifically requires that the Federal Register notice for the
system of records from which the information will be disclosed indicate
that the information may be disclosed to a consumer reporting agency.
(c) Disclosures to commercial enterprises. Records may be disclosed
to commercial enterprises only under the criteria established by
Secretary of the Navy Instruction 5720.42E and 42 U.S.C. 653, Parent
Locator Service for Enforcement of Child Support.
(1) Any information required to be disclosed by Secretary of the
Navy Instruction 5720.42E and 42 U.S.C. 653, Parent Locator Service for
Enforcement of Child Support may be disclosed to a requesting
commercial enterprise.
(2) Commercial enterprises may present a consent statement signed
by the individual indicating specific conditions for disclosing
information from a record. Statements such as the following, if signed
by the individual, are considered sufficient to authorize the
disclosure: I hereby authorize the Department of the Navy to verify my
SSN or other identifying information and to disclose my home address
and telephone number to authorized representatives of (name of
commercial enterprise) to be used in connection with my commercial
dealings with that enterprise. All information furnished will be used
in connection with my financial relationship with (name of commercial
enterprise).
(3) When a consent statement as described in the preceding
subsection is presented, provide the information to the commercial
enterprise, unless the disclosure is prohibited by another regulation
or Federal law.
(4) Blanket consent statements that do not identify the Department
of Defense or Department of the Navy, or that do not specify exactly
the information to be disclosed, may be honored if it is clear that the
individual, in signing the consent statement, was seeking a personal
benefit (i.e., loan for a house or automobile) and was aware of the
type of information necessary to obtain the benefit sought.
(5) Do not honor requests from commercial enterprises for official
evaluations of personal characteristics such as personal financial
habits.
(d) Disclosure of Health Care Records to the Public. This paragraph
applies to disclosure of information to the news media and the public
concerning individuals treated or hospitalized in Department of the
Navy medical facilities and, when the cost of care is paid by the
Department of the Navy, in non-Federal facilities.
(1) Disclosures without the individual's consent. Normally, the
following information may be disclosed without the individual's
consent:
(i) Information required to be released by Secretary of the Navy
Instruction 5720.42E and OPM Regulations and the Federal Personnel
Manual, as well as the information listed in Sec. 701.112(b)(2)(v) for
military personnel and in Sec. 701.112(b)(2).
(ii) For civilian employees; and
(iii) General information concerning medical conditions, i.e., date
of admission or disposition; present medical assessment of the
individual's condition if the medical practitioner has volunteered the
information, i.e., the individual's condition presently is (stable)
(good) (fair) (serious) (critical), and the patient is (conscious)
(semi-conscious) (unconscious).
(2) Disclosures with the individual's consent. With the
individual's informed consent, any information about the individual may
be disclosed. If the individual is a minor or has been declared
incompetent by a court of competent jurisdiction, the parent of the
minor or appointed legal guardian of the incompetent may give consent
on behalf of the individual.
(e) Disclosure of Personal Information on Group/Bulk Orders. Do not
use personal information including complete SSNs, home addresses and
phone numbers, dates of birth, etc., on group/bulk orders. This
personal information should not be posted on lists that everyone listed
on the orders sees. Such a disclosure of personal information violates
the Privacy Act and this subpart and subpart G of this part.
(f) Disclosure Accounting. Keep an accurate record of all
disclosures made from a record (including those made with the consent
of the individual) except those made to DoD personnel for use in
performing their official duties; and those made under the FOIA.
Disclosure accounting is to permit the individual to determine what
agencies or persons have been provided information from the record,
enable Department of the Navy activities to advise prior recipients of
the record of any subsequent amendments or statements of dispute
concerning the record, and provide an audit trial of Department of the
Navy's compliance with 5 U.S.C. 552a.
(1) Disclosure accountings shall contain the date of the
disclosure; a description of the information disclosed; the purpose of
the disclosure; and the name and address of the person or agency to
whom the disclosure was made.
(2) The record subject has the right of access to the disclosure
accounting except when the disclosure was made at the request of a
civil or criminal law enforcement agency under Sec. 701.112(b)(7); or
when the system of records has been exempted from the requirement to
provide access to the disclosure accounting.
(g) Methods of disclosure accounting. Since the characteristics of
various records maintained within the Department of the Navy vary
widely, no uniform method for keeping disclosure accountings is
prescribed. The primary criteria are that the selected method be one
which will:
(1) Enable an individual to ascertain what persons or agencies have
received disclosures pertaining to him/her;
(2) Provide a basis for informing recipients of subsequent
amendments or statements of dispute concerning the record; and
(3) Provide a means to prove, if necessary that the activity has
complied with the requirements of 5 U.S.C. 552a and this subpart and
subpart G of this part.
(h) Retention of Disclosure Accounting. Maintain a disclosure
accounting of the life of the record to which the disclosure pertains,
or 5 years after the date of the disclosure, whichever is longer.
Disclosure accounting records are normally maintained with the record,
as this will ensure compliance with Sec. 701.112(f).
Sec. 701.113 Exemptions.
(a) Using exemptions. No system of records is automatically exempt
from all provisions of 5 U.S.C. 552a. A system of records is exempt
from only those provisions of 5 U.S.C. 552a that are identified
specifically in the exemption rule for the system. Subpart G of this
part contains the systems designated as exempt, the types of exemptions
claimed, the authority and reasons for invoking the exemptions and the
provisions of 5 U.S.C. 552a from which each system has been exempt.
Exemptions are discretionary on the part of Department of the Navy and
are not effective until published as a final rule in the Federal
Register. The naval activity maintaining the system of records shall
make a determination that the system is one for which an exemption may
be established and then propose an exemption rule for the system.
Submit the proposal to CNO (N09B30) for approval and publication in the
Federal Register.
(b) Types of exemptions. There are two types of exemptions
permitted by 5 U.S.C. 552a.
(1) General exemptions. Those that authorize the exemption of a
system of records from all but specifically identified provisions of 5
U.S.C. 552a.
(2) Specific exemptions. Those that allow a system of records to be
exempt from only a few designated provisions of 5 U.S.C. 552a.
(c) Establishing exemptions. (1) 5 U.S.C. 552a authorizes the
Secretary of the Navy to adopt rules designating eligible systems of
records as exempt from certain requirements. The Secretary of the Navy
has delegated the CNO (N09B30) to make a determination that the system
is one for which an exemption may be established and then propose and
establish an exemption rule for the system. No system of records within
Department of the Navy shall be considered exempt until the CNO
(N09B30) has approved the exemption and an exemption rule has been
published as a final rule in the Federal Register. A system of records
is exempt from only those provisions of 5 U.S.C. 552a that are
identified specifically in the Department of the Navy exemption rule
for the system.
(2) No exemption may be established for a system of records until
the system itself has been established by publishing a notice in the
Federal Register, at least 30 days prior to the effective date,
describing the system. This allows interested persons an opportunity to
comment. An exemption may not be used to deny an individual access to
information that he or she can obtain under Secretary of the Navy
Instruction 5720.42E, ``Department of the Navy Freedom of Information
Act Program.''
(d) Exemption for classified material. All systems of records
maintained by the Department of the Navy shall be exempt under section
(k)(1) of 5 U.S.C. 552a, to the extent that the systems contains any
information properly classified under E.O. 12356 and that is required
by that E.O. to be kept secret in the interest of national defense or
foreign policy. This exemption is applicable to parts of all systems of
records including those not otherwise specifically designated for
exemptions herein which contain isolated items of properly classified
information.
NOTE: Department of the Navy Privacy Act systems of records which
contain classified information automatically qualify for a (k)(1)
exemption, without establishing an exemption rule.
(e) Exempt records in nonexempt systems. (1) An exemption rule
applies to the system of records for which it was established. If a
record from an exempt system is incorporated intentionally into a
system that has not been exempt, the published notice and rules for the
nonexempt system will apply to the record and it will not be exempt
from any provisions of 5 U.S.C. 552a.
(2) A record from one component's (i.e., Department of the Navy)
exempted system that is temporarily in the possession of another
component (i.e., Army) remains subject to the published system notice
and rules of the originating component's (i.e., Department of the
Navy). However, if the non-originating component incorporates the
record into its own system of records, the published notice and rules
for the system into which it is incorporated shall apply. If that
system of records has not been exempted, the record shall not be exempt
from any provisions of 5 U.S.C. 552a.
(3) A record accidentally misfiled into a system of records is
governed by the published notice and rules for the system of records in
which it actually should have been filed.
(f) General exemptions--(1) Central Intelligence Agency (CIA). The
Department of the Navy is not authorized to establish an exemption for
records maintained by the CIA under subsection (j)(1) of 5 U.S.C. 552a.
(2) Law enforcement. (i) The general exemption provided by
subsection (j)(2) of 5 U.S.C. 552a may be established to protect
criminal law enforcement records maintained by Department of the Navy.
(ii) To be eligible for the (j)(2) exemption, the system of records
must be maintained by an element that performs, as one of its principal
functions, the enforcement of criminal laws. The Naval Investigative
Service, Naval Inspector General, and military police activities
qualify for this exemption.
(iii) Criminal law enforcement includes police efforts to detect,
prevent, control, or reduce crime, or to apprehend criminals, and the
activities of prosecution, court, correctional, probation, pardon, or
parole authorities.
(iv) Information that may be protected under the (j)(2) exemption
includes:
(A) Information compiled for the purpose of identifying criminal
offenders and alleged criminal offenders consisting of only identifying
data and notations of arrests; the nature and disposition of criminal
charges; and sentencing, confinement, release, parole, and probation
status;
(B) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; and
(C) Reports identifiable to an individual, compiled at any stage of
the enforcement process, from arrest, apprehension, indictment, or
preferral of charges through final release from the supervision that
resulted from the commission of a crime.
(v) The (j)(2) exemption does not apply to:
(A) Investigative records maintained by a naval activity having no
criminal law enforcement duties as one of its principle functions, or
(B) Investigative records compiled by any element concerning
individual's suitability, eligibility, or qualification for duty,
employment, or access to classified information, regardless of the
principle functions of the naval activity that compiled them.
(vi) The (j)(2) exemption established for a system of records
maintained by a criminal law enforcement activity cannot protect law
enforcement records incorporated into a nonexempt system of records or
any system of records maintained by an activity not principally tasked
with enforcing criminal laws. All system managers, therefore, are
cautioned to comply strictly with Department of the Navy regulations or
instructions prohibiting or limiting the incorporation of criminal law
enforcement records into systems other than those maintained by
criminal law enforcement activities.
(g) Specific exemptions. Specific exemptions permit certain
categories of records to be exempted from specific provisions of 5
U.S.C. 552a. Subsections (k)(1)-(7) of 5 U.S.C. 552a allow exemptions
for seven categories of records. To be eligible for a specific
exemption, the record must meet the corresponding criteria.
NOTE: Department of the Navy Privacy Act systems of records which
contain classified information automatically qualify for a (k)(1)
exemption, without an established exemption rule.
(1) (k)(1) exemption: Information properly classified under
Secretary of the Navy Instruction 5720.42E, ``Department of the Navy
Freedom of Information Act Program'' and E.O. 12356, in the interest of
national defense or foreign policy.
(2) (k)(2) exemption: Investigatory information (other than that
information within the scope of Sec. 701.113(f)(2) compiled for law
enforcement purposes. If maintaining the information causes an
individual to be ineligible for or denied any right, benefit, or
privilege that he or she would otherwise be eligible for or entitled to
under Federal law, then he or she shall be given access to the
information, except for the information that would identify a
confidential source (see Sec. 701.113(h), ``confidential source'').
The (k)(2) exemption, when established, allows limited protection on
investigative records maintained for use in personnel and
administrative actions.
(3) (k)(3) exemption: Records maintained in connection with
providing protective services to the President of the United States and
other individuals under 18 U.S.C. 3056.
(4) (k)(4) exemption: Records required by Federal law to be
maintained and used solely as statistical records that are not used to
make any determination about an identifiable individual, except as
provided by 13 U.S.C. 8.
(5) (k)(5) exemption: Investigatory material compiled solely for
the purpose of determining suitability, eligibility, or qualifications
for Federal civilian employment, military service, Federal contracts,
or access to classified information, but only to the extent such
material would reveal the identity of a confidential source. (See
Sec. 701.113(h), ``confidential source''). This exemption allows
protection of confidential sources in background investigations,
employment inquiries, and similar inquiries used in personnel screening
to determine suitability, eligibility, or qualifications.
(6) (k)(6) exemption: Testing or examination material used solely
to determine individual qualifications for appointment or promotion in
the Federal or military service if the disclosure would compromise the
objectivity or fairness of the testing or examination process.
(7) (k)(7) exemption: Evaluation material used to determine
potential for promotion in the military services, but only to the
extent that disclosure would reveal the identity of a confidential
source. (See Sec. 701.113(h), ``confidential source''.)
(h) Confidential Source. Promises of confidentiality are to be
given on a limited basis and only when essential to obtain the
information sought. Establish appropriate procedures for granting
confidentiality and designate those categories of individuals
authorized to make such promises.
Sec. 701.114 Enforcement actions.
(a) Administrative remedies. An individual who alleges he or she
has been affected adversely by a naval activity's violation of 5 U.S.C.
552a or this subpart and subpart G of this part shall be permitted to
seek relief from SECNAV through proper administrative channels.
(b) Civil court actions. After exhausting all administrative
remedies, an individual may file suit in Federal court against a naval
activity for any of the following acts:
(1) Denial of an amendment request. The activity head, or his or
her designee wrongfully refuses the individual's request for review of
the initial denial of an amendment or, after review, wrongfully refuses
to amend the record;
(2) Denial of access. The activity wrongfully refuses to allow the
individual to review the record or wrongfully denies his or her request
for a copy of the record;
(3) Failure to meet recordkeeping standards. The activity fails to
maintain an individual's record with the accuracy, relevance,
timeliness, and completeness necessary to assure fairness in any
determination about the individual's rights, benefits, or privileges
and, in fact, makes an adverse determination based on the record; or
(4) Failure to comply with Privacy Act. The activity fails to
comply with any other provision of 5 U.S.C. 552a or any rule or
regulation promulgated under 5 U.S.C. 552a and thereby causes the
individual to be adversely affected.
(c) Criminal penalties. Subsection (i)(1) of 5 U.S.C. 552a
authorizes three criminal penalties against individuals for violations
of its provisions. All three are misdemeanors punishable by fines of
$5,000.
(1) Wrongful disclosure. Any member or employee of Department of
the Navy who, by virtue of his or her employment or position, has
possession of or access to records and willfully makes a disclosure
knowing that disclosure is in violation of 5 U.S.C. 552a or this
subpart and subpart G of this part.
(2) Maintaining unauthorized records. Any member or employee of
Department of the Navy who willfully maintains a system of records for
which a notice has not been published under periodic Chief of Naval
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.''
(3) Wrongful requesting or obtaining records. Any person who
knowingly and willfully requests or obtains information concerning an
individual under false pretenses.
Sec. 701.115 Computer matching program.
(a) General. 5 U.S.C. 552a and this subpart and subpart G of this
part are applicable to certain types of computer matching, i.e., the
computer comparison of automated systems of records. There are two
specific kinds of matching programs that are fully governed by 5 U.S.C.
552a and this subpart and subpart G of this part:
(1) Matches using records from Federal personnel or payroll systems
of records;
(2) Matches involving Federal benefit programs to accomplish one or
more of the following purposes:
(i) To determine eligibility for a Federal benefit.
(ii) To comply with benefit program requirements.
(iii) To effect recovery of improper payments or delinquent debts
from current or former beneficiaries.
The record comparison must be a computerized one. Manual
comparisons are not covered, involving records from two or more
automated systems of records (i.e., systems of records maintained by
Federal agencies that are subject to 5 U.S.C. 552a); or a Department of
the Navy automated systems of records and automated records maintained
by a non-Federal agency (i.e., State or local government or agent
thereof). A covered computer matching program entails not only the
actual computerized comparison, but also preparing and executing a
written agreement between the participants, securing approval of the
Defense Data Integrity Board, publishing a matching notice in the
Federal Register before the match begins, ensuring that investigation
and due process are completed, and taking ultimate action, if any.
Subpart G-Privacy Act Exemptions
Sec. 701.116 Purpose.
Subparts F and G of this part contain rules promulgated by the
Secretary of the Navy, pursuant to 5 U.S.C. 552a (j) and (k), and
subpart F, Sec. 70l.113, to exempt certain systems of Department of the
Navy records from specified provisions of 5 U.S.C. 552a.
Sec. 70l.117 Exemption for classified records.
All systems of records maintained by the Department of the Navy
shall be exempt from the requirements of the access provision of the
Privacy Act (5 U.S.C. 552a(d)) under the (k)(1) exemption, to the
extent that the system contains information properly classified under
E.O. 12356 and that is required by that E.O. to be kept secret in the
interest of national defense or foreign policy. This exemption is
applicable to parts of all systems of records including those not
otherwise specifically designated for exemptions herein which contain
isolated items of properly classified information.
Sec. 701.118 Exemptions for specific Navy record systems.
(a) System Identifier and Name: N01070-9, White House Support
Program.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)
(G) through (I), and (f).
Authority: 5 U.S.C. 552a(k) (1), (2), (3), and (5).
Reasons: Exempted portions of this system contain information which
has been properly classified under E.O. 12356, and which is required to
be kept secret in the interest of national defense or foreign policy.
Exempted portions of this system may also contain information
considered relevant and necessary to make a determination as to
qualifications, eligibility, or suitability for access to classified
information, and which was obtained by providing an express or implied
promise to the source that his or her identity would not be revealed to
the subject of the record. Exempted portions of this system may also
contain information collected and maintained in connection with
providing protective services to the President and other individuals
protected pursuant to 18 U.S.C. 3056. Exempted portions of this system
may also contain investigative records compiled for law enforcement
purposes, the disclosure of which could reveal the identity of sources
who provide information under an express or implied promise of
confidentiality, compromise investigative techniques and procedures,
jeopardize the life or physical safety of law-enforcement personnel, or
otherwise interfere with enforcement proceedings or adjudications.
(b) System Identifier and Name: N01131-1, Officer Selection and
Appointment System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G) through (I), and (f).
Authority: 5 U.S.C. 552a(k)(1), (5), (6), and (7).
Reasons: Granting individuals access to portions of this system of
records could result in the disclosure of classified material, or the
identification of sources who provided information to the government
under an express or implied promise of confidentiality. Material will
be screened to permit access to unclassified material and to
information that does not disclose the identity of a confidential
source.
(c) System Identifier and Name: N01133-2, Recruiting Enlisted
Selection System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G) through (I), and (f).
Authority: 5 U.S.C. 552a(k)(1), (5), (6), and (7).
Reasons: Granting individuals access to portions of this system of
records could result in the disclosure of classified material, or the
identification of sources who provided information to the government
under an express or implied promise of confidentiality. Material will
be screened to permit access to unclassified material and to
information that does not disclose the identity of a confidential
source.
(d) System Identifier and Name: N01640-1, Individual Correctional
Records.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2),
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
Authority: 5 U.S.C. 552a(j)(2).
Reason: Granting individuals access to portions of these records
pertaining to or consisting of, but not limited to, disciplinary
reports, criminal investigations, and related statements of witnesses,
and such other related matter in conjunction with the enforcement of
criminal laws, could interfere with the orderly investigations, with
the orderly administration of justice, and possibly enable suspects to
avoid detection or apprehension. Disclosure of this information could
result in the concealment, destruction, or fabrication of evidence, and
jeopardize the safety and well-being of informants, witnesses and their
families, and law enforcement personnel and their families. Disclosure
of this information could also reveal and render ineffectual
investigative techniques, sources, and methods used by these components
and could result in the invasion of the privacy of individuals only
incidentally related to an investigation. The exemption of the
individual's right of access to portions of these records, and the
reasons therefor, necessitate the exemption of this system of records
from the requirement of the other cited provisions.
(e) System Identifier and Name: N01754-3, Navy Child Development
Services Program.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3) and (d).
Authority: 5 U.S.C. 552a(k)(2).
Reasons: Exemption is needed in order to encourage persons having
knowledge of abusive or neglectful acts toward children to report such
information, and to protect such sources from embarrassment or
recrimination, as well as to protect their right to privacy. It is
essential that the identities of all individuals who furnish
information under an express promise of confidentiality be protected.
Additionally, granting individuals access to information relating to
criminal and civil law enforcement, as well as the release of certain
disclosure accountings, could interfere with ongoing investigations and
the orderly administration of justice, in that it could result in the
concealment, alteration, destruction, or fabrication of information;
could hamper the identification of offenders and the disposition of
charges; and could jeopardize the safety and well being of parents and
their children.
(f) System Identifier and Name: N03834-1, Special Intelligence
Personnel Access File.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)
(G) through (I), and (f).
Authority: 5 U.S.C. 552a(k) (1) and (5).
Reasons: Exempted portions of this system contain information that
has been properly classified under E.O. 12356, and that is required to
be kept secret in the interest of national defense or foreign policy.
Exempted portions of this system also contain information considered
relevant and necessary to make a determination as to qualifications,
eligibility, or suitability for access to classified information and
was obtained by providing an express or implied assurance to the source
that his or her identity would not be revealed to the subject of the
record.
(g) System Identifier and Name: N04060-1, Navy and Marine Corps
Exchange Security Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G)
through (I), and (f).
Authority: 5 U.S.C. 552a(k)(2).
Reasons: Granting individuals access to information collected and
maintained by these activities relating to the enforcement of criminal
laws could interfere with orderly investigations, with orderly
administration of justice, and possibly enable suspects to avoid
detection or apprehension. Disclosure of this information could result
in the concealment, destruction, or fabrication of evidence, and could
also reveal and render ineffectual investigative techniques, sources,
and methods used by these activities.
(h) System Identifier and Name: N04385-1, IG Investigatory System.
Exemption: Portions of this system or records are exempt from the
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2),
(e)(3), (e)(4) (G) through (I), (e)(5), (e)(8), (f), and (g).
Authority: 5 U.S.C. 552a(j) (2).
Reasons: Granting individuals access to information collected and
maintained by these activities relating to the enforcement of criminal
laws could interfere with orderly investigations, the orderly
administration of justice, and might enable suspects to avoid detection
and apprehension. Disclosures of this information could result in the
concealment, destruction, or fabrication of evidence, and possibly
jeopardize the safety and well being of informants, witnesses and their
families. Such disclosures could also reveal and render ineffectual
investigatory techniques and methods and sources of information and
could result in the invasion of the personal privacy of individuals
only incidentally related to an investigation. The exemption of the
individual's right of access to his or her records, and the reasons
therefore, necessitate the exemption of this system of records from the
provisions of the other cited sections of 5 U.S.C. 552a.
(i) System Identifier and Name: N04385-2, Hotline Program Case
Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G), (H), (I), and (f).
Authority: 5 U.S.C. 552a(k) (1), (2), (5), (6) and (7).
Reasons: Exempted portions of this system consist of information
compiled for the purpose of investigations, including reports of
informants and investigators. Such investigations may be associated
with identifiable individuals. Disclosure of files in this system would
interfere with orderly investigations, and possibly result in the
concealment, destruction, or fabrication of evidence, and possibly
jeopardize the safety and well-being of informants, witnesses and their
families. Such disclosures could also reveal and render ineffectual
investigatory techniques and methods and sources of information and
could further result in the invasion of the personal privacy of
individuals only incidentally related to an investigation. Depending on
the nature of the complaint, records may contain information that: is
currently and properly classified pursuant to E.O. and must be kept
secret in the interest of national defense or foreign policy, is
confidentially provided information located in investigatory records
compiled for the purposed of enforcement of non-criminal law, relates
to qualifications, eligibility, or suitability for Federal employment,
is test or examination material used to determine qualifications for
appointment or promotion in the Federal service, is confidentially
provided information used to determine potential for promotion in the
armed services.
(j) System Identifier and Name: N05300-3, Faculty Professional
Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) and
(H), and (f).
Authority: 5 U.S.C. 552a(k)(5).
Reasons: Exempted portions of this system contain information
considered relevant and necessary to make a release determination as to
qualifications, eligibility, or suitability for Federal employment, and
was obtained by providing an express or implied promise to the source
that his or her identity would not be revealed to the subject of the
record.
(k) System Identifier and Name: N05354-1, Equal Opportunity
Information Management System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G)
through (I), and (f).
Authority: 5 U.S.C. 552a(k)(1) and (5).
Reasons: Granting access to information in this system of records
could result in the disclosure of classified material, or reveal the
identity of a source who furnished information to the Government under
an express or implied promise of confidentiality. Material will be
screened to permit access to unclassified material and to information
that will not disclose the identity of a confidential source.
(l) System Identifier and Name: N05520-1, Personnel Security
Eligibility Information System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and
(I), and (f).
Authority: 5 U.S.C. 552a(k) (1), (2), (5), and (7).
Reasons: Granting individuals access to information collected and
maintained in this system of records could interfere with orderly
investigations; result in the disclosure of classified material;
jeopardize the safety of informants, witnesses, and their families;
disclose investigative techniques; and result in the invasion of
privacy of individuals only incidentally related to an investigation.
Material will be screened to permit access to unclassified information
that will not disclose the identity of sources who provide the
information to the government under an express or implied promise of
confidentiality.
(m) System Identifier and Name: N05520-4, NIS Investigative Files
System.
Exemption (1): Portions of this system of records are exempt from
the following subsections of the Privacy Act: (c)(3), (c)(4), (d),
(e)(2), (e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
Authority (1): 5 U.S.C. 552a(j)(2).
Reason (1): Granting individuals access to information collected
and maintained by this activity relating to the enforcement of criminal
laws could interfere with the orderly investigations, with the orderly
administration of justice, and possibly enable suspects to avoid
detection or apprehension. Disclosure of this information could result
in the concealment, destruction, or fabrication of evidence, and
jeopardize the safety and well-being of informants, witnesses and their
families, and law enforcement personnel and their families. Disclosure
of this information could also reveal and render ineffectual
investigative techniques, sources, and methods used by these components
and could result in the invasion of the privacy of individuals only
incidentally related to an investigation. The exemption of the
individual's right of access to portions of these records, and the
reasons therefor, necessitate the exemption of this system of records
from the requirement of the other cited provisions.
Exemption (2): Portions of this system of records are exempt from
the following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G) through (I), and (f).
Authority (2): 5 U.S.C. 552a(k) (1), (3), (4), (5) and (6).
Reason (2): The release of disclosure accountings would permit the
subject of an investigation to obtain valuable information concerning
the nature of that investigation, and the information contained, or the
identity of witnesses or informants, would therefor present a serious
impediment to law enforcement. In addition, disclosure of the
accounting would amount to notice to the individual of the existence of
a record. Access to the records contained in this system would inform
the subject of the existence of material compiled for law enforcement
purposes, the premature release of which could prevent the successful
completion of investigation, and lead to the improper influencing of
witnesses, the destruction of records, or the fabrication of testimony.
Exempt portions of this system also contain information that has been
properly classified under E.O. 12356, and that is required to be kept
secret in the interest of national defense or foreign policy.
Exempt portions of this system also contain information considered
relevant and necessary to make a determination as to qualifications,
eligibility, or suitability for Federal civilian employment, military
service, Federal contracts, or access to classified information, and
was obtained by providing an express or implied assurance to the source
that his or her identity would not be revealed to the subject of the
record. The notice of this system of records published in the Federal
Register sets forth the basic statutory or related authority for
maintenance of the system.
The categories of sources of records in this system have been
published in the Federal Register in broad generic terms. The identity
of specific sources, however, must be withheld in order to protect the
confidentiality of the source, of criminal and other law enforcement
information. This exemption is further necessary to protect the privacy
and physical safety of witnesses and informants.
This system of records is exempted from procedures for notice to an
individual as to the existence of records pertaining to him/her dealing
with an actual or potential civil or regulatory investigation, because
such notice to an individual would be detrimental to the successful
conduct and/or completion of an investigation, pending or future. Mere
notice of the fact of an investigation could inform the subject or
others that their activities are under, or may become the subject of,
an investigation. This could enable the subjects to avoid detection, to
influence witnesses improperly, to destroy records, or to fabricate
testimony.
Exempt portions of this system containing screening board reports.
Screening board reports set forth the results of oral examination of
applicants for a position as a special agent with the Naval
Investigation Service Command. Disclosure of these records would reveal
the areas pursued in the course of the examination and thus adversely
affect the result of the selection process. Equally important, the
records contain the candid views of the members composing the board.
Release of the records could affect the willingness of the members to
provide candid opinions and thus diminish the effectiveness of a
program which is essential to maintaining the high standard of the
Special Agent Corps., i.e., those records constituting examination
material used solely to determine individual qualifications for
appointment in the Federal service.
(n) System Identifier and Name: N05520-5, Navy Joint Adjudication
and Clearance System (NJACS).
Exemption: Portions of this system of records are exempt from the
following subsections of 5 U.S.C. 552a: (d)(1-5).
Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
Reasons: Granting individuals access to information collected and
maintained in this system of records could result in the disclosure of
classified material; and jeopardize the safety of informants, and their
families. Further, the integrity of the system must be ensured so that
complete and accurate records of all adjudications are maintained.
Amendment could cause alteration of the record of adjudication.
(o) System Identifier and Name: N05527-1, Security Incident System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2),
and (e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).
Authority: 5 U.S.C. 552a(j)(2).
Reasons: Granting individuals access to information collected and
maintained by this component relating to the enforcement of criminal
laws could interfere with orderly administration of justice, and
possibly enable suspects to avoid detection or apprehension. Disclosure
of this information could result in concealment, destruction, or
fabrication of evidence, and jeopardize the safety and well being of
informants, witnesses and their families, and of law enforcement
personnel and their families. Disclosure of this information could also
reveal and render ineffectual investigative techniques, sources, and
methods used by this component, and could result in the invasion of
privacy of individuals only incidentally related to an
investigation.The exemption of the individual's right of access to his
or her records, and the reason therefore, necessitate the exemption of
this system of records from the requirements of other cited provisions.
(p) System Identifier and Name: N05527-4, Naval Security Group
Personnel Security/Access Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G) through (I), and (f).Authority: 5 U.S.C. 552a(k)(1) through
(k)(5).
Reasons: Exempt portions of this system contain information that
has been properly classified under E.O. 12356, and that is required to
be kept secret in the interest of national defense or foreign policy.
Exempt portions of this system also contain information considered
relevant and necessary to make a determination as to qualification,
eligibility or suitability for access to classified special
intelligence information, and that was obtained by providing an express
or implied promise to the source that his or her identity would not be
revealed to the subject of the record.
(q) System Identifier and Name: N05800-1, Legal Office Litigation/
Correspondence Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3),
and (4).
Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and (k)(7).
Reasons: Subsection (d) because granting individuals access to
information relating to the preparation and conduct of litigation would
impair the development and implementation of legal strategy.
Accordingly, such records are exempt under the attorney-client
privilege. Disclosure might also compromise on-going investigations and
reveal confidential informants. Additionally, granting access to the
record subject would seriously impair the Navy's ability to negotiate
settlements or pursue other civil remedies. Amendment is inappropriate
because the litigation files contain official records including
transcripts, court orders, investigatory materials, evidentiary
materials such as exhibits, decisional memorandum and other case-
related papers. Administrative due process could not be achieved by the
``exparte'' correction of such materials.
Subsection (e)(1) because it is not possible in all instances to
determine relevancy or necessity of specific information in the early
stages of case development. What appeared relevant and necessary when
collected, ultimately may be deemed unnecessary upon assessment in the
context of devising legal strategy. Information collected during civil
litigation investigations which is not used during subject case is
often retained to provide leads in other cases or to establish patterns
of activity.
Subsection (f)(2), (3), and (4) because this record system is
exempt from the individual access provisions of subsection (d).
(r) System Identifier and Name: N05819-3, Naval Clemency and Parole
Board Files.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and
(f).
Authority: 5 U.S.C. 552a(j)(2).
Reasons: Granting individuals access to records maintained by this
Board could interfere with internal processes by which Board personnel
are able to formulate decisions and policies with regard to clemency
and parole in cases involving naval prisoners and other persons under
the jurisdiction of the Board. Material will be screened to permit
access to all material except such records or documents as reflect
items of opinion, conclusion, or recommendation expressed by individual
board members or by the board as a whole.
The exemption of the individual's right to access to portions of
these records, and the reasons therefore, necessitate the partial
exemption of this system of records from the requirements of the other
cited provisions.
(s) System Identifier and Name: N06320-2, Family Advocacy Program
System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3) and (d).
Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
Reasons: Exemption is needed in order to encourage persons having
knowledge of abusive or neglectful acts toward children to report such
information, and to protect such sources from embarrassment or
recriminations, as well as to protect their right to privacy. It is
essential that the identities of all individuals who furnish
information under an express promise of confidentiality be protected.
Additionally, granting individuals access to information relating to
criminal and civil law enforcement, as well as the release of certain
disclosure accounting, could interfere with ongoing investigations and
the orderly administration of justice, in that it could result in the
concealment, alteration, destruction, or fabrication of information;
could hamper the identification of offenders or alleged offenders and
the disposition of charges; and could jeopardize the safety and well
being of parents and their children.
Exempted portions of this system also contain information
considered relevant and necessary to make a determination as to
qualifications, eligibility, or suitability for Federal employment and
Federal contracts, and that was obtained by providing an express or
implied promise to the source that his or her identity would not be
revealed to the subject of the record.
(t) System Identifier and Name: N12930-1, Human Resources Group
Personnel Records.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (d), (e)(4)(G) and (H), and
(f).
Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
Reasons: Exempted portions of this system contain information
considered relevant and necessary to make a determination as to
qualifications, eligibility, or suitability for Federal employment, and
was obtained by providing express or implied promise to the source that
his or her identity would not be revealed to the subject of the record.
Exempted portions of this system also contain test or examination
material used solely to determine individual qualifications for
appointment or promotion in the Federal service, the disclosure of
which would comprise the objectivity or fairness of the testing or
examination process.
Sec. 701.119 Exemptions for Specific Marine Corps Record Systems.
(a) System Identifier and Name: MMN00018, Base Security Incident
Reporting System.
Exemption: Portions of this system of records are exempt from the
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e) (2)
and (3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
Authority: 5 U.S.C. 552a(j)(2).
Reasons: Granting individuals access to information collected and
maintained by these activities relating to the enforcement of criminal
laws could interfere with orderly investigations, with the orderly
administration of justice, and might enable suspects to avoid detection
or apprehension. Disclosure of this information could result in the
concealment, destruction, or fabrication of evidence, and jeopardize
the safety and well being of informants, witnesses and their families,
and law enforcement personnel and their families. Disclosure of this
information could also reveal and render ineffectual investigative
techniques, sources, and methods used by this component, and could
result in the invasion of the privacy of individuals only incidentally
related to an investigation. The exemption of the individual's right of
access to his or her records, and the reasons therefore, necessitate
the exemption of this system of records from the requirements of other
cited provisions.
(b) System Identifier and Name: MIN00001, Personnel and Security
Eligibility and Access Information System.
Exemption: Portions of this system of records are exempt for the
following subsections of the Privacy Act: (c)(3), (d), (e)(1),
(e)(4)(G) through (I), and (f).
Authority: 5 U.S.C. 552a(k)(2), (k)(3), and (k)(5), as applicable.
Reasons: Exempt portions of this system contain information that
has been properly classified under E.O. 12356, and that is required to
be kept secret in the interest of national defense or foreign policy.
Exempt portions of this system also contain information considered
relevant and necessary to make a determination as to qualifications,
eligibility, or suitability for Federal civilian employment, military
service, Federal contracts, or access to classified, compartmented, or
otherwise sensitive information, and was obtained by providing an
expressed or implied assurance to the source that his or her identity
would not be revealed to the subject of the record.
Exempt portions of this system further contain information that
identifies sources whose confidentiality must be protected to ensure
that the privacy and physical safety of these witnesses and informants
are protected.
Dated: May 26, 1994.
L. M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-13279 Filed 05-31-94; 8:45 am]
BILLING CODE 3810-01-F