[Federal Register Volume 67, Number 230 (Friday, November 29, 2002)]
[Proposed Rules]
[Pages 71119-71120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29814]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Administrative Instruction 81]


Privacy Act; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

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SUMMARY: The Office of the Secretary of Defense is proposing to add an 
exemption rule to an existing system of records. The exemption will 
protect the privacy of individuals identified in the system of records.

DATES: Comments must be received on or before January 28, 2003, to be 
considered by this agency.

ADDRESSES: Send comments to OSD Privacy Act Coordinator, Directives and 
Records Branch, Washington Headquarters Services, 1155 Defense 
Pentagon, Washington, DC 20301-1155.

FOR FURTHER INFORMATION CONTACT: Mr. David Bosworth at (703) 601-4728.

SUPPLEMENTARY INFORMATION: 

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

    It has been determined 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)

    It has been determined 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 concerned 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)

    It has been determined that Privacy Act rules for the Department of 
Defense impose 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.

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

    It has been determined that Privacy Act rulemaking for the 
Department 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''

    It has been determined that Privacy Act rules for the Department 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 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

PART 311--OSD PRIVACY PROGRAM

    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. Section 311.8 is amended by adding paragraph (c)(14) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) Specific exemptions. * * *
    (14) System identifier and name: DHRA 02, PERSEREC Research Files.
    (i) Exemptions: Investigative 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

[[Page 71120]]

the identity of a confidential source. Therefore, portions of this 
system of records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from 
the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (H) and (I), and (f).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: (A) From subsection (c)(3) because to grant access 
to the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the Department of Defense 
or other agencies. This could seriously compromise case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or 
other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing 
out of the investigation or proceeding.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. The Office of the 
Secretary of Defense will, nevertheless, continue to publish such a 
notice in broad generic terms, as is its current practice.
    (F) Consistent with the legislative purpose of the Privacy Act of 
1974, OSD will grant access to nonexempt material in the records being 
maintained. Disclosure will be governed by OSD Administrative 
Instruction 81, 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 or civil 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 in this paragraph. The decisions to release information 
from these systems will be made on a case-by-case basis.

    Dated: November 18, 2002.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 02-29814 Filed 11-27-02; 8:45 am]
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