[Federal Register Volume 63, Number 227 (Wednesday, November 25, 1998)]
[Rules and Regulations]
[Pages 65060-65062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31502]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 155-98]
Exemption of System of Records Under the Privacy Act
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice, Federal Bureau of Investigation, is
exempting the National Instant Criminal Background Check System (NICS)
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 exemptions
are to maintain the confidentiality and security of information
compiled for purposes of criminal or other law enforcement
investigation, or of reports compiled at any stage of the law
enforcement process. The exemptions are necessary because some
information in NICS is from law enforcement records, and may (in the
case of NICS denials, for example) relate to additional law enforcement
interest. Therefore, to the extent that they may be subject to
exemption under subsections (j)(2), (k)(2), and (k)(3), these records
are not available under the Privacy Act and not subject to certain of
its procedures such as obtaining an accounting of disclosures,
notification, access, or amendment/correction.
EFFECTIVE DATE: November 25, 1998.
FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, Program Analyst
(202) 616-0178.
SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule
published in the Federal Register with an invitation to comment on June
4, 1998 (63 FR 30429). The FBI accepted comments on the proposed rule
from interested parties dated on or before July 6, 1998.
Significant Comments
A number of comments raised matters that were more pertinent to
other notices of proposed rulemaking relating to the NICS: The National
Instant Criminal Background Check System Regulation published in the
Federal Register on June 4, 1998 (63 FR 30430), and the National
Instant Criminal Background Check System User Fee Regulation, published
in the Federal Register on August 17, 1998 (63 FR 43893). Such comments
are addressed in the final NICS rule, the National Instant Criminal
Background Check System Regulation, published in the Federal Register
on October 30, 1998 (63 FR 58303). Other comments raised
[[Page 65061]]
matters that were more pertinent to the notice of the establishment of
the NICS as a new system of records, the National Instant Criminal
Background Check System (NICS) JUSTICE/FBI-018, published in the
Federal Register on June 4, 1998 (63 FR 30514). Such comments are
addressed in a revised NICS records system notice, the National Instant
Criminal Background Check System (NICS) JUSTICE/FBI-018, published in
the notices section of today's Federal Register.
Several comments questioned the authority for exempting records in
the NICS. One comment pointed out that certain records in the NICS
might not meet the Privacy Act's requirements for exemptions and should
therefore not be subject to exemptions. As in the proposed rule, the
final rule specifically states that exemptions will apply only to the
extent that information in the system is subject to exemption. The
comment questioned whether even records relating to criminal matters
would be exempt. Case law has established that criminal records do not
lose their exempt status even if replicated in a non-criminal law
system. (Likewise, other law enforcement records would retain any
exempt status even if replicated in a non-law enforcement system.) In
addition, however, to the extent it bears on possible violations of the
Brady Act, the Gun Control Act (19 U.S.C. Chapter 44), or the National
Firearms Act (26 U.S.C. Chapter 53), information in the NICS may
comprise law enforcement material in its own right. For instance, NICS
denials presumptively relate to an illegal attempt to acquire a firearm
in violation of federal law. Even information on approved transactions
(which the NICS destroys after a limited time) may implicate law
enforcement interests, for example, where audits identify instances in
which the NICS is used for unauthorized purposes, such as running
checks of people other than actual gun transferees, or where potential
handgun transferees or transferors have submitted false identification
information to thwart the name check system. One comment suggested that
the rule more clearly delineate which NICS records would be subject to
exemptions. The Privacy Act itself delineates exemption requirements,
and based on the FBI's long experience with similar provisions of other
FBI records systems, the proposed language is fully sufficient to guide
government officials and preclude adverse impact on individual rights.
Other comments addressed specific exemptions. Several comments
objected to the NICS being exempted from 5 U.S.C. 552a(c)(3), which
permits an individual to request access to an accounting of certain
disclosures of records about the individual. Release of an accounting
of disclosures would place an individual on notice of the existence of
an outside interest in his or her activities. This would be of
particular concern for situations involving NICS denials, which may
presumptively indicate an attempted violation of federal criminal law.
Even information on approved transactions (which the NICS destroys
after a limited time) may implicate law enforcement interests, for
example, where audits identify instances in which the NICS is used for
unauthorized purposes, such as running checks of people other than
actual gun transferees, or where potential handgun transferees or
transferors have submitted false identification information to thwart
the name check system. Releases of accountings could result in
destruction of evidence, intimidation or endangerment of witnesses and
victims, flight of the subject from the area, or other activities that
would seriously impede law enforcement investigations.
Several comments in essence objected to the NICS' being exempted
from 5 U.S.C. 552a(d) and (e)(4) (G) and (H), which permit an
individual to request access to (and amendment of) records about the
individual. Access to system records subject to exemption would
compromise ongoing investigations, reveal investigatory techniques and
confidential informants, invade the privacy of persons who provide
information in connection with a particular investigation, or
constitute a potential danger to the health or safety of law
enforcement personnel. In addition, requiring the FBI to amend
information thought to be not accurate, timely, relevant, and complete,
because of the nature of the information collected and the length of
time it is maintained, would create an impossible administrative burden
by forcing the agency to continuously update its investigations
attempting to resolve these issues. Individuals concerned with the
accuracy of records maintained about them remain free to avail
themselves of any means for access or amendment applicable to the
record sources, and record contributors have a continuing
responsibility to delete or update contributions determined to be
invalid or incorrect (see 28 CFR 25.5(b)). Moreover, the NICS itself
provides an alternate procedure for amending erroneous records
resulting in transfer denials (28 CFR 25.10).
One comment objected to the NICS being exempted from 5 U.S.C.
552a(e)(1) and (5), which require that an agency maintain only relevant
records necessary to accomplish the system's purpose and with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual. Without this exemption,
the NICS might be prevented from acquiring data not shown to be
accurate, relevant, timely, and complete at the moment of its
acquisition by the NICS. This exemption is necessary because it is
impossible to predict when and for whom it will be necessary to use the
information in the NICS, and, accordingly, it is not possible to
determine in advance when the records will be timely or relevant.
Relevance and necessity are questions of circumstance and timing, and
it is only after the information is evaluated that the relevance and
necessity of the information can be established. In addition, since
most of the records are from state, local, and other federal agency
record systems, it would be impossible to review all of the records as
they are submitted to verify their accuracy. However, as previously
discussed, affected persons remain free to avail themselves of any
means for addressing accuracy, timeliness, or completeness applicable
to the record sources, and record contributors have a continuing
responsibility to delete or update contributions determined to be
invalid or incorrect (see 28 CFR 25.5(b)). In addition, the Department
and the FBI have made efforts to enhance the quality of NICS records.
Using funding authorized by the Brady Act, section 106(b), the
Department has provided substantial assistance to the states for the
purpose of improving their criminal history record systems. The FBI
will be responsible for maintaining data integrity during NICS
operations managed and carried out by the FBI, including the conduct of
periodic quality control checks to verify that the information provided
to the NICS Index remains valid and correct (28 CFR 25.5(a)). Finally,
the NICS itself provides an alternate procedure for amending erroneous
records resulting transfer denials (28 CFR 25.10).
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 this 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 procedures, Courts, Freedom of
[[Page 65062]]
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 793-78, 28
CFR part 16 is amended as set forth below.
Dated: November 19, 1998.
Stephen R. Colgate,
Assistant Attorney General for Administration.
PART 16--[AMENDED]
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; 31 U.S.C. 3717, 9701.
2. 28 CFR 16.96 is amended by adding paragraphs (p) and (q) to read
as follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation (FBI)
Systems--limited access.
* * * * *
(p) The National Instant Criminal Background Check System (NICS),
(JUSTICE/FBI-018), a Privacy Act system of records, is exempt:
(1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and
(4); (d); (e) (1), (2) and (3); (e)(4) (G) and (H); (e) (5) and (8);
and (g); and
(2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections
(c)(3), (d), (e)(1), and (e)(4) (G) and (H).
(q) 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),
(k)(2), and (k)(3). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) because the release of the accounting of
disclosures would place the subject on notice that the subject is or
has been the subject of investigation and result in a serious
impediment to law enforcement.
(2) From subsection (c)(4) to the extent that it is not applicable
since an exemption is claimed from subsection (d).
(3)(i) From subsections (d) and (e)(4) (G) and (H) because these
provisions concern an individual's access to records which concern the
individual and such access to records in the system would compromise
ongoing investigations, reveal investigatory techniques and
confidential informants, invade the privacy of persons who provide
information in connection with a particular investigation, or
constitute a potential danger to the health or safety of law
enforcement personnel.
(ii) In addition, from subsection (d)(2) because, to require the
FBI to amend information thought to be not accurate, timely, relevant,
and complete, because of the nature of the information collected and
the essential length of time it is maintained, would create an
impossible administrative burden by forcing the agency to continuously
update its investigations attempting to resolve these issues.
(iii) Although the Attorney General is exempting this system from
subsections (d) and (e)(4) (G) and (H), an alternate method of access
and correction has been provided in 28 CFR, part 25, subpart A.
(4) From subsection (e)(1) because it is impossible to state with
any degree of certainty that all information in these records is
relevant to accomplish a purpose of the FBI, even though acquisition of
the records from state and local law enforcement agencies is based on a
statutory requirement. In view of the number of records in the system,
it is impossible to review them for relevancy.
(5) From subsections (e) (2) and (3) because the purpose of the
system is to verify information about an individual. It would not be
realistic to rely on information provided by the individual. In
addition, much of the information contained in or checked by this
system is from Federal, State, and local criminal history records.
(6) From subsection (e)(5) because it is impossible to predict when
it will be necessary to use the information in the system, and,
accordingly, it is not possible to determine in advance when the
records will be timely. Since most of the records are from State and
local or other Federal agency records, it would be impossible to review
all of them to verify that they are accurate. In addition, an alternate
procedure is being established in 28 CFR, part 25, subpart A, so the
records can be amended if found to be incorrect.
(7) From subsection (e)(8) because the notice requirement could
present a serious impediment to law enforcement by revealing
investigative techniques and confidential investigations.
(8) From subsection (g) to the extent that, pursuant to subsections
(j)(2), (k)(2), and (k)(3), the system is exempted from the other
subsections listed in paragraph (p) of this section.
[FR Doc. 98-31502 Filed 11-24-98; 8:45 am]
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