[Federal Register Volume 65, Number 171 (Friday, September 1, 2000)]
[Rules and Regulations]
[Pages 53168-53171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22405]



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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[OSD Privacy Program]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule, with comments.

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SUMMARY: When the Secretary of Defense Privacy Program (32 CFR part 
311) was amended on April 28, 1999, at 65 FR 22784, the `Procedures for 
exemptions' section was inadvertently dropped. Therefore, this section 
is being republished to incorporate it into the current 32 CFR part 
311. There have been no changes made to this section.

DATES: Effective: April 28, 1999. Comments must be received by October 
31, 2000.

ADDRESSES: Send comments to the OSD Privacy Act Officer, Washington 
Headquarter Services, Correspondence and Directives Division, Records 
Management Division, 1155 Defense Pentagon, Washington, DC 20301-1155.

FOR FURTHER INFORMATION CONTACT: Mr. David Bosworth at (703) 695-0970.

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.

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, and 44 U.S.C. Chapter 35.

List of Subjects in 32 CFR Part 311

    Privacy.


    1. The authority citation for 32 CFR Part 311 continues to read as 
follows:

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).


    2. Accordingly, 32 CFR part 311 is amended by adding Sec. 311.8 as 
follows:


Sec. 311.8  Procedures for exemptions.

    (a) General information. The Secretary of Defense designates those 
Office of the Secretary of Defense (OSD) systems of records which will 
be exempt from certain provisions of the Privacy Act. There are two 
types of exemptions, general and specific. The general exemption 
authorizes the exemption of a system of records from all but a few 
requirements of the Act. The specific exemption authorizes exemption of 
a system of records or portion thereof, from only a few specific 
requirements. If an OSD Component originates a new system of records 
for which it proposes an exemption, or if it proposes an additional or 
new exemption for an existing system of records, it shall submit the 
recommended exemption with the records system notice as outlined in 
Sec. 311.6. No exemption of a system of records shall be considered 
automatic for all records in the system. The systems manager shall 
review each requested record and apply the exemptions only when this 
will serve significant and legitimate Government purpose.
    (b) General exemptions. The general exemption provided by 5 U.S.C. 
552a(j)(2) may be invoked for protection of systems of records 
maintained by law enforcement activities. Certain functional records of 
such activities are not subject to access provisions of the Privacy Act 
of 1974. Records identifying criminal offenders and alleged offenders 
consisting of identifying data and notations of arrests, the type and 
disposition of criminal charges, sentencing, confinement, release, 
parole, and probation status of individuals are protected from 
disclosure. Other records and reports compiled during criminal 
investigations, as well as any other records developed at any stage of 
the criminal law enforcement process from arrest to indictment through 
the final release from parole supervision are excluded from release.
    (1) System identifier and name: DWHS P42.0, DPS Incident Reporting 
and Investigations Case Files.
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
Sections (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); 
(e)(5); (f)(1) through (f)(5); (g)(1) through (g)(5); and (h) of the 
Act.
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reason: The Defense Protective Service is the law enforcement 
body for the jurisdiction of the Pentagon and immediate environs. The 
nature of certain records created and maintained by the DPS requires 
exemption from access provisions of the Privacy Act of 1974. The 
general exemption, 5 U.S.C. 552a(j)(2), is invoked to protect ongoing 
investigations and to protect from access criminal investigation 
information contained in this record system, so as not to jeopardize 
any subsequent judicial or administrative process taken as a result of 
information contained in the file.
    (2) System identifier and name: JS006.CND, Department of Defense 
Counternarcotics C4I System.
    (i) Exemption: Portions of this system that fall within 5 U.S.C. 
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
section (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); 
(e)(4)(G) and (e)(4)(H); (e)(5); (f)(1) through (f)(5); (g)(1) through 
(g)(5) of the Act.
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reason: From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the 
nature of the investigation and the coordinated investigative efforts 
and techniques employed by the cooperating agencies. This would greatly 
impede USSOUTHCOM's criminal law enforcement.
    (iv) For subsections (c)(4) and (d) because notification would 
alert a subject to the fact that an investigation of that individual is 
taking place, and might weaken the on-going investigation, reveal 
investigatory techniques, and place confidential informants in 
jeopardy.
    (v) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the access provisions of subsection (d) pursuant 
to subsection (j).
    (vi) From subsection (f) because the agency's rules are 
inapplicable to those portions of the system that are exempt and would 
place the burden on the agency of either confirming or denying

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the existence of a record pertaining to a requesting individual might 
in itself provide an answer to that individual relating to an on-going 
criminal investigation. The conduct of a successful investigation 
leading to the indictment of a criminal offender precludes the 
applicability of established agency rules relating to verification of 
record, disclosure of the record to that individual, and record 
amendment procedures for this record system.
    (vii) For compatibility with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness and 
completeness cannot apply to this record system. Information gathered 
in criminal investigations is often fragmentary and leads relating to 
an individual in the context of one investigation may instead pertain 
to a second investigation.
    (viii) From subsection (e)(1) because the nature of the criminal 
investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what 
information is relevant or necessary. Also, due to USSOUTHCOM's close 
liaison and working relationships with the other Federal, as well as 
state, local and foreign country law enforcement agencies, information 
may be received which may relate to a case under the investigative 
jurisdiction of another agency. The maintenance of this information may 
be necessary to provide leads for appropriate law enforcement purposes 
and to establish patterns of activity which may relate to the 
jurisdiction of other cooperating agencies.
    (ix) From subsection (e)(2) because collecting information to the 
greatest extent possible directly from the subject individual may or 
may not be practicable in a criminal investigation. The individual may 
choose not to provide information and the law enforcement process will 
rely upon significant information about the subject from witnesses and 
informants.
    (x) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat inimical to established investigative 
methods and techniques.
    (xi) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the criminal investigative process. 
It is the nature of criminal law enforcement for investigations to 
uncover the commission of illegal acts at diverse stages. It is 
frequently impossible to determine initially what information is 
accurate, relevant, timely, and least of all complete. With the passage 
of time, seemingly irrelevant or untimely information may acquire new 
significant as further investigation brings new details to light.
    (xii) From subsection (e)(8) because the notice requirements of 
this provision could present a serious impediment to criminal law 
enforcement by revealing investigative techniques, procedures, and 
existence of confidential investigations.
    (c) Specific exemptions. All systems of records maintained by any 
OSD Component shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to subsection (k)(1) of that section to the extent that the 
system contains any information properly classified under Executive 
Order 11265, `National Security Information,' dated June 28, 552a(d) 
pursuant to subsection (k)(1) of that section to the extent that the 
system contains any information properly classified under E.O. 11265, 
`National Security Information,' dated June 28, 1979, as amended, and 
required by the Executive Order to be kept classified in the interest 
of national defense or foreign policy. This exemption, which may be 
applicable to parts of all systems of records, is necessary because 
certain record systems not otherwise specifically designated for 
exemptions may contain isolated information which has been properly 
classified. The Secretary of Defense has designated the following OSD 
system of records described below specifically exempted from the 
appropriate provisions of the Privacy Act pursuant to the designated 
authority contained therein:
    (1) System identifier and name: DGC 16, Political Appointment 
Vetting Files.
    (i) Exemption. Portions of this system of records that fall within 
the provisions of 5 U.S.C. 552a(k)(5) may be exempt from the following 
subsections (d)(1) through (d)(5).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. From (d)(1) through (d)(5) because the agency is 
required to protect the confidentiality of sources who furnished 
information to the Government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source.
    (2) System identifier and name: DWHS P28, The Office of the 
Secretary of Defense Clearance File.
    (i) Exemption. This system of records is exempt from subsections 
(c)(3) and (d) of 5 U.S.C. 552a, which would require the disclosure of 
investigatory material compiled solely for the purpose of determining 
access to classified information but only to the extent that disclosure 
of such material would reveal the identity of a source who furnished 
information to the Government under an expressed promise that the 
identity of the source would be held in confidence or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. A determination will be made at the 
time of the request for a record concerning the specific information 
which would reveal the identity of the source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. This exemption is required to protect the 
confidentiality of the sources of information compiled for the purpose 
of determining access to classified information. This confidentiality 
helps maintain the Government's continued access to information from 
persons who would otherwise refuse to give it.
    (3) System identifier and name: DGC 04, Industrial Personnel 
Security Clearance Case Files.
    (i) Exemption. All portions of this system which fall under 5 
U.S.C. 552a(k)(5) are exempt from the following provisions of Title 5 
U.S.C. 552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. This system of records is exempt from subsections 
(c)(3) and (d) of section 552a of 5 U.S.C. which would require the 
disclosure of investigatory material compiled solely for the purpose of 
determining access to classified information, but only to the extent 
that the disclosure of such material would reveal the identity of a 
source who furnished information to the Government under an expressed 
promise that the identity of the source would be held in confidence, or 
prior to September 27, 1975, under an implied promise that the identity 
of the source would be held in confidence. A determination will be made 
at the time of the request for a record concerning whether specific 
information would reveal the identity of a source. This exemption is 
required in order to

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protect the confidentiality of the sources of information compiled for 
the purpose of determining access to classified information. This 
confidentiality helps maintain the Government's continued access to 
information from persons who would otherwise refuse to give it.
    (4) System identifier and name: DWHS P32, Standards of Conduct 
Inquiry File.
    (i) Exemption. This system of records is exempted from subsections 
(c)(3) and (d) of 5 U.S.C. 552a, which would require the disclosure of: 
Investigatory material compiled for law enforcement purposes; or 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, or Federal contracts, but only to the 
extent that the disclosure of such material would reveal the identity 
of a source who furnished information to the Government under an 
express promise or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. If 
any individual is denied any right, privilege, or benefit that he would 
otherwise be entitled by Federal law, or otherwise be eligible, as a 
result of the maintenance of investigatory material compiled for law 
enforcement purposes, the material shall be provided to that 
individual, except to the extent that its disclosure would reveal the 
identity of a source who furnished information to the Government under 
an express promise or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. At 
the time of the request for a record, a determination will be made 
concerning whether a right, privilege, or benefit is denied or specific 
information would reveal the identity of a source.
    (ii) Authority. 5 U.S.C. 552a(k) (2) and (5).
    (iii) Reasons. These exemptions are necessary to protect the 
confidentiality of the records compiled for the purpose of: enforcement 
of the conflict of interest statutes by the Department of Defense 
Standards of Conduct Counselor, General Counsel, or their designees; 
and determining suitability, eligibility or qualifications for Federal 
civilian employment, military service, or Federal contracts of those 
alleged to have violated or caused others to violate the Standards of 
Conduct regulations of the Department of Defense.
    (5) System identifier and name: DUSDP 02, Special Personnel 
Security Cases.
    (i) Exemption: All portions of this system which fall under 5 
U.S.C. 552a(k)(5) are exempt from the following provisions of 5 U.S.C. 
552a: (c)(3); (d).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: This system of records is exempt from subsections 
(c)(3) and (d) of 5 U.S.C. 552a which would require the disclosure of 
investigatory material compiled solely for the purpose of determining 
access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an expressed promise that 
the identity of the source would be held in confidence or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. A determination will be made at the 
time of the request for a record concerning whether specific 
information would reveal the identity of a source. This exemption is 
required in order to protect the confidentiality of the sources of 
information compiled for the purpose of determining access to 
classified information. This confidentiality helps maintain the 
Government's continued access to information from persons who would 
otherwise refuse to give it.
    (6) System identifier and name: DODDS 02.0, Educator Application 
Files.
    (i) Exemption. All portions of this system which fall within 5 
U.S.C. 552a(k)(5) may be exempt from the following provisions of 5 
U.S.C. 552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. It is imperative that the confidential nature of 
evaluation and investigatory material on teacher application files 
furnished the Department of Defense Dependent Schools (DoDDS) under 
promises of confidentiality be exempt from disclosure to the individual 
to insure the candid presentation of information necessary to make 
determinations involving applicants suitability for DoDDS teaching 
positions.
    (7) [Reserved]
    (8) System identifier and name: DWHS P29, Personnel Security 
Adjudications File.
    (i) Exemption: Portions of this system of records that fall within 
the provisions of 5 U.S.C. 552a(k)(5) may be exempt from the following 
subsections (d)(1) through (d)(5).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons. From (d)(1) through (d)(5) because the agency is 
required to protect the confidentiality of sources who furnished 
information to the Government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source. At the time of the request for a 
record, a determination will be made concerning whether a right, 
privilege, or benefit is denied or specific information would reveal 
the identity of a source.
    (9) System identifier and name: JS004SECDIV, Joint Staff Security 
Clearance Files.
    (i) Exemption: Portions of this system of records are exempt 
pursuant to the provisions of 5 U.S.C. 552a(k)(5) from subsections 5 
U.S.C. 552a(d)(1) through (d)(5).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: From subsections (d)(1) through (d)(5) because the 
agency is required to protect the confidentiality of sources who 
furnished information to the government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source. At the time of the request for a 
record, a determination will be made concerning whether a right, 
privilege, or benefit is denied or specific information would reveal 
the identity of a source.
    (10) System identifier and name: DFMP 26, Vietnamese Commando 
Compensation Files.
    (i) Exemption: Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority: 5 U.S.C. 552a(k)(1).
    (iii) Reasons: From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
12958, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (11) System identifier and name: DUSP 11, POW/Missing Personnel 
Office Files.
    (i) Exemption: Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority: 5 U.S.C. 552a(k)(1).
    (iii) Reasons: From subsection 5 U.S.C. 552a(d) because granting 
access

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to information that is properly classified pursuant to E.O. 12958, as 
implemented by DoD 5200.1-R, may cause damage to the national security.

    Dated: August 28, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense
[FR Doc. 00-22405 Filed 8-31-00; 8:45 am]
BILLING CODE 5010-04-F