[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37424-37426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18326]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 120-96]


Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice, Federal Bureau of Investigation, 
proposes to exempt the National DNA Index System (NDIS) from 5 U.S.C. 
552a(c) (3) and (4); (d); (e) (1), (2), and (3); (e)(4) (G) and (H); 
(e) (5) and (8); and (g). The purposes of the exemption are to maintain 
the confidentiality and security of information compiled for purposes 
of criminal investigation, or of reports compiled at any stage of the 
criminal law enforcement process. Therefore, to the extent that these 
records may be subject to the Privacy Act, they are subject to 
exemption under subsection (j)(2) and are not available under the 
Privacy Act.

DATES: All comments must be received by August 19, 1996.

ADDRESSES: All comments should be addressed to Patricia E. Neely, 
Program Analyst, Information Management and Security Staff, Information 
Resources Management, Department of Justice, Washington, DC 20530 (Room 
850, WCTR Building).

FOR FURTHER INFORMATION CONTACT:
Patricia E. Neely, Program Analyst (202-616-0178).

SUPPLEMENTARY INFORMATION: In the Notice Section of today's Federal 
Register, there is a description of this system of records.
    This order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order 
will not have ``a significant economic impact on a substantial number 
of small entities.''

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedure, Courts, Freedom of 
Information Act, Government in the Sunshine Act, and the Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, 
it is proposed to amend 28 CFR part 16 as set forth below.

    Dated: July 8, 1996.
Stephen R. Colgate,
Assistant Attorney General for Administration.

    1. The authority for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; and 31 U.S.C. 3717, 9701.

    2. It is proposed to amend 28 CFR 16.96 by removing the heading 
``National Crime Information Center (NCIC) (Justice/FBI-001)'' and the 
undesignated paragraph which follows paragraph (k)(4); and by adding 
paragraphs (n) and (o) as set forth below.


Sec. 16.96  Exemptions of Federal Bureau of Investigation Systems--
Limited Access, as indicated

* * * * *
    (n) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4); (d); (e) (1), (2), and (3); (e)(4) (G) and (H); (e) (5) 
and (8); and (g):
    (1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
    (o) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available the accounting 
of disclosures from records to the subject of the record would 
prematurely place the subject on notice of the investigative interest 
of law enforcement agencies, provide the subject with significant 
information concerning the nature of the investigation, or permit the 
subject to take measures to impede the investigation (e.g., destroy or 
alter evidence, intimidate potential witnesses, or flee the area to 
avoid investigation and prosecution), and result in a serious 
impediment to law enforcement.
    (2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records 
which concern him/her and access to records in this system would 
compromise ongoing investigations. Such access is directed at allowing 
the subject of the record to correct inaccuracies in it. The vast 
majority of records in this system are from the DNA records of local 
and State NDIS agencies which would be inappropriate and not feasible 
for the FBI to undertake to correct. Nevertheless, an alternate method 
to access and/or amend records in this system is available to an 
individual who is the subject of a record pursuant to procedures and 
requirements specified in the Notice of Systems of Records compiled by 
the National Archives and Records Administration and published in the 
Federal Register under the designation: National DNA Index System 
(NDIS) (JUSTICE/FBI-017).
    (ii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, 
irrelevant, or ultimately, because of the nature of the information 
collected and the essential length of time it is maintained, would 
create an impossible administrative and investigative burden by forcing 
the agency to continuously retrograde investigations attempting to 
resolve questions of accuracy, etc.
    (iii) In addition, from subsection (g) to the extent that the 
system is exempt from the access and amendment provisions of subsection 
(d).
    (3) From subsection (e)(1) because:
    (i) Information in this system is primarily from State and local 
records and it is for the official use of agencies outside the Federal 
Government.
    (ii) It is not possible in all instances to determine the relevancy 
or necessity of specific information in the early stages of the 
criminal investigation process.
    (iii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary, and vice versa. It is only after the information is 
assessed that its relevancy in a specific investigative activity can be 
established.
    (iv) Although the investigative process could leave in doubt the 
relevancy and necessity of evidence which had been properly obtained, 
the same information could be relevant to another investigation or 
investigative activity under the jurisdiction of the FBI or another law 
enforcement agency.
    (4) From subsections (e) (2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system. Most of 
the records in this system are necessarily furnished by State and local 
criminal justice agencies and not by individuals due to the very nature 
of the records and the system.
    (5) From subsection (e)(5) because the vast majority of these 
records come from State and local criminal justice agencies and because 
it is administratively impossible for them and the FBI to insure that 
the records comply with this provision. Submitting agencies are urged 
and make every effort to insure records are accurate and complete; 
however, since it is not possible to predict when information in the 
indexes of the system (whether submitted by

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State and local criminal justice agencies or generated by the FBI) will 
be matched with other information, it is not possible to determine when 
most of them are relevant or timely.
    (6) From subsection (e)(8) because the FBI has no logical manner to 
determine whenever process has been made public and compliance with 
this provision would provide an impediment to law enforcement by 
interfering with ongoing investigations.

[FR Doc. 96-18326 Filed 7-17-96; 8:45 am]
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