[Federal Register Volume 69, Number 3 (Tuesday, January 6, 2004)]
[Rules and Regulations]
[Pages 507-508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24]


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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 806b

[Air Force Instruction 37-132]


Privacy Act; Implementation

AGENCY: Department of the Air Force, DoD.

ACTION: Final rule.

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SUMMARY: The Department of the Air Force is revising a (j)(2) exemption 
to an existing exemption rule for the Privacy Act system of records 
notice F090 AF IG B, Inspector General Records. The (j)(2) exemption 
will increase the value of the system of records for law enforcement 
purposes.

EFFECTIVE DATE: March 12, 2002.

FOR FURTHER INFORMATION CONTACT: Mrs. Anne Rollins at (703) 601-4043.

SUPPLEMENTARY INFORMATION: The proposed rule was previously published 
on January 11, 2002, at 67 FR 1423. No comments were received; 
therefore, the rule is being adopted as final.

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 806b

    Privacy.

0
Accordingly, 32 CFR part 806b is amended as follows:

PART 806b--AIR FORCE PRIVACY ACT PROGRAM

0
1. The authority citation for 32 CFR part 806b continues to read as 
follows:

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


0
2. Appendix C to section 806b is amended by adding paragraph a.(6) to 
read as follows:

Appendix C to Part 806b--General and Specific Exemptions

* * * * *
    a. * * *
    (6) System identifier and name: F090 AF IG B, Inspector General 
Records.
    (i) Exemption: (A) Parts of this system of records 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.
    (B) Any portion of this system of records which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 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).
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reasons: (A) 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 the Air Force IG's criminal law 
enforcement.
    (B) From subsection (c)(4) and (d), because notification would 
alert a subject to the fact that an open investigation on that 
individual is taking place, and might weaken the on-going 
investigation, reveal investigative techniques, and place 
confidential informants in jeopardy.
    (C) From subsection (e)(1) because the nature of the criminal 
and/or civil investigative function creates unique problems in 
prescribing a specific parameter in a particular case with respect 
to what information is relevant or necessary. Also,

[[Page 508]]

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.
    (D) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or 
may not be practical in a criminal and/or civil investigation.
    (E) 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 and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (F) From subsections (e)(4)(G), (H), and (I) because this system 
of records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records 
be maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is 
the nature of 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 
significance as further investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of 
this provision could present a serious impediment to law enforcement 
by revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (I) 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 
the existence of a record pertaining to a requesting individual 
might in itself provide an answer to that individual relating to an 
on-going 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.
    (J) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 
5 U.S.C. 552a from which this rule exempts the system.
    (iv) Authority: (A) Investigative material compiled for law 
enforcement purposes, other than material within the scope of 
subsection 5 U.S.C. 552a(j)(2), 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 the information, the individual will be 
provided access to the information exempt to the extent that 
disclosure would reveal the identity of a confidential source. NOTE: 
When claimed, this exemption allows limited protection of 
investigative reports maintained in a system of records used in 
personnel or administrative actions.
    (B) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) from the following subsections of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
    (v) 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. 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.
    (F) Consistent with the legislative purpose of the Privacy Act 
of 1974, the AF will grant access to nonexempt material in the 
records being maintained. Disclosure will be governed by AF'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 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 above. 
The decisions to release information from these systems will be made 
on a case-by-case basis.
* * * * *

    Dated: December 24, 2003.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-24 Filed 1-5-04; 8:45 am]
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