[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Proposed Rules]
[Pages 41814-41817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19815]


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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 505

[Army Regulation 340-21]


Privacy Act; Implementation

AGENCY: Department of the Army, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Army is proposing to revise four 
existing exemption rules. The exemption rules are being revised to add 
reasons from which information may be exempt, and to update the reasons 
for taking the exemptions.

DATES: Comments must be received on or before October 9, 2001 to be 
considered by this agency.

ADDRESSES: Records Management Division, U.S. Army Records

[[Page 41815]]

Management and Declassification Agency, ATTN: TAPC-PDD-RP, Stop 5603, 
600 6th Street, Ft. Belvoir, VA 22060-5603.

FOR FURTHER INFORMATION CONTACT: Ms. Janice Thornton at (703) 806-4390 
or DSN 656-4390 or Ms. Christie King at (703) 806-3711 or DSN 656-3711.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    The Director of Administration and Management, Office of the 
Secretary of Defense, hereby determines that Privacy Act rules for the 
Department of Defense are not significant rules. The rules do not (1) 
Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a sector of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another Agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
order.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 
6)

    The Director of Administration and Management, Office of the 
Secretary of Defense, hereby certifies that Privacy Act rules for the 
Department of Defense do not have significant economic impact on a 
substantial number of small entities because they are cocnerned only 
with the administration of Privacy Act systems of records within the 
Department of Defense.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    The Director of Administration and Management, Office of the 
Secretary of Defense, hereby certifies that Privacy Act rules for the 
Department of Defense impose no information requirements beyond the 
Deaprtment of Defense is necessary and consistent with 5 U.S.C. 552a, 
known as the Privacy Act of 1974.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    The Director of Administration and Management, Office of the 
Secretary of Defense, hereby certifies that Privacy Act rulemaking for 
the Deaprtment of Defense does not involve a Federal mandate that may 
result in the expenditure by State, local and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more and 
that such rulemaking will not significantly or uniquely affect small 
governments.

Executive Order 13132, ``Federalism''

    The Director of Administration and Management, Office of the 
Secretary of Defense, hereby certifies that Privacy Act rules for the 
Deaprtment of Defense do not have federalism implications. The rules do 
not have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 505

    Privacy.

    Accordingly, it is proposed that 32 CFR part 505 be amended as 
follows:
    1. The authority citation for 32 CFR part 505 continues to read as 
follows:

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

    2. Section 505.5, is amended by revising paragraphs (e)(1), (e)(5), 
(e)(6), and (e)(19) as follows:


Sec. 505.5  Exemptions.

* * * * *
    (e) Exempt Army records.
    (1) System identifier: A0020-1a SAIG
    (i) System name: Inspector General Investigative Files.
    (ii) Exemptions: (A) 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.
    (B) 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 may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of 
a confidential source. Therefore, portions of the system of records may 
be exempt pursuant to 5 U.S.C. 552a(c)(3), (d), (e)(4)(G) and (H), and 
(f).
    (iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (iv) Reason: (A) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsection (k)(2) 
of the Privacy Act of 1974.
    (D) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (E) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Army will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed 
by the Department of the Army'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 this 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 in this paragraph. The decisions to 
release information from these systems will be made on a case-by-case 
basis.
* * * * *
    (5) System identifier: A0027-10a DAJA
    (i) System name: Prosecutorial Files.
    (ii) Exemptions: 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. Therefore, 
portions of the system of records may be exempt pursuant to 5

[[Page 41816]]

U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) 
and (I), (e)(5), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reason: (A) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed 
for subsection (d), this subsection will not be applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case 
or matter. In the interests of effective law enforcement, it is 
necessary that this valuable information be retained since it can aid 
in establishing patterns of activity and provide valuable leads for 
other agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.
    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsection (j)(2) 
of the Privacy Act of 1974.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) 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 reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue 
search authorizations and could reveal investigative techniques and 
procedures.
    (K) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (L) From subsection (g) because this system of records is compiled 
for law enforcement purposes and has been exempted from the access 
provisions of subsections (d) and (f).
    (M) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department to the Army will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed 
by the Department of the Army's Privacy Regulation (this part 505), 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, information 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 this 
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 in this paragraph. The 
decisions to release information from these systems will be made on a 
case-by-case basis.
    (6) System identifier: A0027-10b DAJA.
    (i) System name: Courts--Martial Records and Reviews.
    (ii) Exemptions: 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. Therefore, 
portions of this system of records may be exempt pursuant to 5 U.S.C. 
552a(j)(2) from the following subsection of 5 U.S.C.a(c)(3), (c)(4), 
(d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8), 
(f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reason: (A) From subsection (c)(3) because the release of the 
disclosure accounting, for disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed 
for subsection (d), this subsection will not be applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(1) because in the course of criminal 
investigations information is often obtained concerning the violation 
of laws or civil obligations of others not relating to an active case 
or matter. In the interests of effective law enforcement, it is 
necessary that this information be retained since it can aid in 
establishing patterns of activity and provide valuable leads for other 
agencies and future cases that may be brought.
    (E) From subsection (e)(2) because in a criminal investigation that 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection.

[[Page 41817]]

    (F) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it would compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (G) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsection (j)(2) 
of the Privacy Act of 1974.
    (H) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (I) 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.
    (J) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue 
search authorizations and could reveal investigative techniques and 
procedures.
    (K) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (L) From subsection (g) because this system of records is compiled 
for law enforcement purposes and has been exempted from the access 
provisions of subsections (d) and (f).
    (M) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Army will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed 
by the Department of the Army's Privacy Regulation (this part 505), 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 this 
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 in this paragraph. The 
decisions to release information from these systems will be made on a 
case-by-case basis.
* * * * *
    (19) System identifier: A0340-21 TAPC
    (i) System name: Privacy Case Files.
    (ii) Exemption: During the processing of a Privacy Act request 
(which may include access requests, amendment requests, and requests 
for review for initial denials of such requests), exempt materials from 
other systems of records may in turn become part of the case record in 
this system. To the extent that copies of exempt records from those 
`other' systems of records are entered into this system, the Department 
of the Army hereby claims the same exemptions for the records from 
those `other' systems that are entered into this system, as claimed for 
the original primary system of which they are part. Therefore, 
information within this system of records may be exempt pursuant to 5 
U.S.C. 552a, subsection (d).
    (iii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), 
(k)(4), (k)(5), (k)(6), and (k)(7).
    (iv) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Army will grant access to nonexempt 
material in the records being maintained. Disclosure will be governed 
by the Department of the Army'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: August 1, 2001.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 01-19815 Filed 8-8-01; 8:45 am]
BILLING CODE 5001-08-M