[Federal Register Volume 65, Number 97 (Thursday, May 18, 2000)]
[Proposed Rules]
[Pages 31505-31506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10053]


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DEPARTMENT OF DEFENSE

Department of the Navy,

32 CFR Part 701

[Secretary of the Navy Instruction 5211.5]


Privacy Act; Implementation

AGENCY: Department of the Navy, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy is proposing to add an exemption 
rule for a Privacy Act system of records. The exemption is intended to 
increase the value of the system of records for law enforcement 
purposes, to comply with prohibitions against the disclosure of certain 
kinds of information, and to protect the privacy of individuals 
identified in the system of records.

DATES: Comments must be received on or before July 17, 2000 to be 
considered by this agency.

FOR FURTHER INFORMATION CONTACT: Mrs. Doris Lama at (202) 685-6545 or 
DSN 325-6545.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    It has been 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

    It has been determined 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

    It has been determined 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.
    1. The authority citation for 32 CFR part 701, Subpart G continues 
to read as follows:

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
    2. Section 701.118, is amended by adding paragraph (u) as follows:


Sec. 701.118   Exemptions for specific Navy record systems.

    (u) System identifier and name: (1) N05813-4, Trial/Government 
Counsel Files.
    (i) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records that may be exempt pursuant to subsection 5 
U.S.C. 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(5), (e)(4)(G), (H), and (I), (e)(8), (f), and (g).
    (ii) Exemption. Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (iii) Exemption. Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit 
for which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source. Portions of this system of records that may be 
exempt pursuant to subsections 5 U.S.C. 552a(k)(1) and (k)(2) are 
(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).
    (iv) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (v) Reason: (1) From subsection (c)(3) because release of 
accounting of disclosure could place the subject of an investigation on 
notice that he/she is under investigation and provide him/her with 
significant information concerning the nature of the investigation, 
resulting in a serious impediment to law enforcement investigations.
    (2) From subsections (c)(4), (d), (e)(4)(G), and (e)(4)(H) because 
granting individuals access to information collected and maintained for 
purposes relating to the enforcement of laws could interfere with 
proper investigations and orderly administration of justice. Granting 
individuals access to information relating to the preparation and 
conduct of criminal prosecution would impair the development and 
implementation of legal strategy. Amendment is inappropriate because 
the trial/government counsel files contain official records including 
transcripts, court orders, and investigatory materials such as 
exhibits, decisional memorandum and other case-related papers. 
Disclosure of this information could result in the concealment, 
alteration or destruction of evidence, the identification of offenders 
or alleged offenders, nature and disposition of charges; 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 ineffective investigation 
techniques, sources, and methods used by law enforcement personnel, and 
could result in the invasion of privacy of individuals only 
incidentally related to an investigation.
    (3) From subsection (e)(1) because it is not always possible in all 
instances to determine relevancy or necessity of specific information 
in the early stages of case development. Information collected during 
criminal investigations and prosecutions and not used during the 
subject case is often retained to provide leads in other cases.
    (4) From subsection (e)(2) because in criminal or other law 
enforcement investigations, the requirement that information be 
collected to the greatest extent practicable from the subject 
individual would alert the subject as to the nature or existence of an 
investigation, presenting a serious impediment to law enforcement 
investigations.
    (5) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (6) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of

[[Page 31506]]

criminal and other law enforcement information. This exemption is 
further necessary to protect the privacy and physical safety of 
witnesses and informants.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the 
development of intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because compliance would provide an 
impediment to law enforcement by interfering with the ability to issue 
warrants or subpoenas and by revealing investigative techniques, 
procedures, or evidence.
    (9) From subsections (f) and (g) because this record system is 
exempt from the individual access provisions of subsection (d).
    (10) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Navy will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed 
by the Department of the Navy's Privacy Regulation, but will be limited 
to the extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal violation will not be alerted to the investigation; the 
physical safety of witnesses, informants and law enforcement personnel 
will not be endangered, the privacy of third parties will not be 
violated; and that the disclosure would not otherwise impede effective 
law enforcement. Whenever possible, information of the above nature 
will be deleted from the requested documents and the balance made 
available. The controlling principle behind this limited access is to 
allow disclosures except those indicated above. The decisions to 
release information from these systems will be made on a case-by-case 
basis.
* * * * *

    Dated: March 29, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 00-10053 Filed 5-17-00; 8:45 am]
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