[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Rules and Regulations]
[Pages 49486-49487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16775]


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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: Final rule.

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SUMMARY: The Department of the Army is exempting those records 
contained in A0195-2c USACIDC DoD, entitled ``DoD Criminal 
Investigation Task Force (CITF) Files'' when the records are compiled 
in furtherance of activities pertaining to the enforcement of criminal 
laws.

DATES: Effective August 24, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Janice Thornton at (703) 428-6503.

SUPPLEMENTARY INFORMATION: The proposed rule was published on February 
25, 2005, at 70 FR 9261-9262. One public comment was received which has 
prompted a change in the final rule. The rule, as changed, is being 
adopted as final.
    The commenter expressed two principal concerns. First, the 
commenter observes that the Department is attempting to establish a new 
exemption, a prerogative that only Congress possesses. We disagree. As 
provided by law, the Department may promulgate a rule exempting a 
system of records from provisions of the Act if the system of records 
is maintained by a Component of the Agency that performs as its 
principal function the enforcement of criminal laws. Because the 
principal function of the DoD Criminal Investigation Task Force is law 
enforcement (i.e., criminal investigations into acts of terrorism and 
war crimes), the Department is authorized to adopt an exemption rule 
that will serve to preserve the integrity of the investigative process. 
And second, the commenter observes that adoption of the exemption will 
enable the Department to shield documents that heretofore were 
available to the public, thereby potentially resulting in the denial of 
access to individuals who, for example, are innocent members of the 
Armed Forces or individuals who have witnessed an act of terrorism or 
war crime. We disagree that the rule will deny access to all documents. 
As provided by law, the rule provides a basis for the Department to 
exempt certain records from the access provisions of the Act. It does 
not act to suspend any rights the individual otherwise may be entitled 
to under the law. Moreover, to the extent the documents may be 
disclosed without prejudicing the investigative process, the rule does 
not bar release. To eliminate any potential ambiguity that may exist 
regarding release of nonexempt documents from the system of records, 
the rule has been revised to make clear that only those records, the 
disclosure of which would have a deleterious impact on the 
investigative process, are shielded by the rule.

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 certified 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 certified 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 certified that the 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 certified that the 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.

    Dated: August 18, 2005.
Jeannette Owings-Ballard,
OSD Federal Register Liaison Officer, Department of Defense.

List of Subjects in 32 CFR Part 505

    Privacy.


0
Accordingly, 32 CFR part 505 is to be amended to read as follows:

PART 505--ARMY PRIVACY ACT PROGRAM

0
1. The authority citation for 32 CFR part 505 continues to read as 
follows:


[[Page 49487]]


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


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2. In Sec.  505.5, paragraph (e)(20) is added to read as follows:


Sec.  505.5  Exemptions.

* * * * *
    (e) Exempt Army records. * * *
* * * * *
    (20) System identifier and name: A0195-2c USACIDC DoD, DoD Criminal 
Investigation Task Force (CITF) 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. 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 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, 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 that 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.
    (K) 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 necessary for effective law enforcement.
* * * * *
[FR Doc. 05-16775 Filed 8-23-05; 8:45 am]
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