[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Proposed Rules]
[Pages 15951-15953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06938]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 004-2014]


Privacy Act of 1974; Implementation

AGENCY: Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: As described in the notice section of this issue of the 
Federal Register, the Department of Justice (Department or DOJ) has 
published a notice of a new Department-wide Privacy Act system of 
records, ``Department of Justice, Giglio Information Files,'' JUSTICE/
DOJ-017. This system has been established to enable DOJ investigative 
agencies to collect and maintain records of potential impeachment 
information and to disclose such information to DOJ prosecuting offices 
in order to ensure that prosecutors receive sufficient information to 
meet their obligations under Giglio v. United States, 405 U.S. 150 
(1972), as well as to enable DOJ prosecuting offices to maintain 
records of potential impeachment information obtained from DOJ 
investigative agencies, other federal agencies, and state and local 
agencies and to disclose such information in accordance with the Giglio 
decision. For the reasons provided below, the Department proposes to 
amend its Privacy Act regulations by establishing an exemption for 
records in this system from certain provisions of the Privacy Act 
pursuant to 5 U.S.C. 552a(j) and (k).

DATES: Comments must be received by April 27, 2015.

ADDRESSES: Address all comments to the Privacy Analyst, Office of 
Privacy and Civil Liberties, National Place Building, 1331 Pennsylvania 
Avenue NW., Suite 1000, Washington, DC 20530, or by facsimile to (202) 
307-0693. To ensure proper handling, please reference the CPCLO Order 
Number on your correspondence. You may review an electronic version of 
the proposed rule at http://www.regulations.gov, and you may also 
comment by using that Web site's comment form for this regulation. 
Please include the CPCLO Order Number in the subject box.
    Please note that the Department is requesting that electronic 
comments be submitted before midnight Eastern Time on the day the 
comment period closes because this is when http://www.regulations.gov 
terminates the public's ability to submit comments. Commenters in time 
zones other than Eastern Time may want to consider this so that their 
electronic comments are received. All comments sent via regular or 
express mail will be considered timely if postmarked on or before the 
day the comment period closes.
    Posting of Public Comments: Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov and in the Department's 
public docket. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online or made available in the public docket, you must 
include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You must also place all the personally 
identifying information you do not want posted online or made available 
in the public docket in the first paragraph of your comment and 
identify what information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personally identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, will be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.

FOR FURTHER INFORMATION CONTACT: Tricia Francis, Executive Office for 
United States Attorneys, FOIA/Privacy Act Staff, 600 E Street NW., 
Suite 7300, Washington, DC 20530, or by facsimile at (202) 252-6047.

SUPPLEMENTARY INFORMATION: In the notices section of this issue of the 
Federal Register, the Department of Justice has published a system of 
records notice for the system entitled, ``Department of Justice Giglio 
Information Files,'' JUSTICE/DOJ-017. This Department-wide system 
notice replaces the notice for the system entitled, ``United States 
Attorney's Office, Giglio Information Files,'' JUSTICE/USA-018, 65 FR 
75308 (Dec. 1, 2000). That system of records was exempt from certain 
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). 
Those exemptions are codified in the Code of Federal Regulations (CFR) 
section for Exemption of United States Attorneys Systems (28 CFR 
16.81(g) and (h)). The Department is now proposing to establish a new 
CFR section for exemptions of the JUSTICE/DOJ-017 system (28 CFR 
16.136) and to

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amend 28 CFR 16.81 by removing paragraphs (g) and (h). The Department 
intends that the exemptions previously established in 28 CFR 16.81(g) 
and (h) will continue to apply to the JUSTICE/USA-018 system and all 
its records until the effective date of 28 CFR 16.136.

Regulatory Flexibility Act

    This proposed rule relates to individuals as opposed to small 
business entities. Pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, the proposed rule will not have a 
significant economic impact on a substantial number of small entities.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 801 et seq., requires the Department to comply with 
small entity requests for information and advice about compliance with 
statutes and regulations within the Department's jurisdiction. Any 
small entity that has a question regarding this document may contact 
the person listed in FOR FURTHER INFORMATION CONTACT. Persons can 
obtain further information regarding SBREFA on the Small Business 
Administration's Web site at http://www.sba.gov/advocacy/825.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires 
that the Department consider the impact of paperwork and other 
information-collection burdens imposed on the public. There are no 
current or new information-collection requirements associated with this 
proposed rule. The records that are contributed to this system would be 
created in any event by law enforcement entities, and their sharing of 
this information electronically will not increase the paperwork burden 
on these entities.

Analysis of Regulatory Impacts

    This proposed rule is not a ``significant regulatory action'' 
within the meaning of Executive Order 12866 and therefore further 
regulatory evaluation is not necessary. This proposed rule will not 
have a significant economic impact on a substantial number of small 
entities because it applies only to information about individuals.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, 109 Stat. 48, requires Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments and the private sector. UMRA requires a written statement 
of economic and regulatory alternatives for proposed and final rules 
that contain Federal mandates. A ``Federal mandate'' is a new or 
additional enforceable duty imposed on any State, local, or tribal 
government or the private sector. If any Federal mandate causes those 
entities to spend, in aggregate, $100 million or more in any one year, 
the UMRA analysis is required. This proposed rule would not impose 
Federal mandates on any State, local, or tribal government or the 
private sector.

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information Act, Government in the Sunshine Act, Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order No. 2940-2008 
the DOJ proposes to amend 28 CFR part 16 as follows:

PART 16 --[AMENDED]

0
1. The authority citation for part 16 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.

Subpart E--Exemption of Records Systems Under the Privacy Act


Sec.  16.81--[AMENDED]  

0
2. Amend Sec.  16.81 by removing paragraphs (g) and (h).


Sec.  16.136--[ADDED]  

0
3. Add Sec.  16.136 to subpart E to read as follows:


Sec.  16.136  Exemption of the Department of Justice, Giglio 
Information Files, JUSTICE/DOJ-017.

    (a) The Department of Justice, Giglio Information Files (JUSTICE/
DOJ-017) system of records is exempted from subsections (c)(3) and (4); 
(d)(1) through (4); (e)(1), (2), (3), (4)(G), (H), and (I), (5), and 
(8); (f); and (g) of the Privacy Act. These exemptions apply only to 
the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(j) and/or (k).
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) of the Privacy Act because this 
subsection is inapplicable to the extent that an exemption is being 
claimed for subsection (d) of the Privacy Act.
    (2) From subsection (c)(4) of the Privacy Act because this 
subsection is inapplicable to the extent that an exemption is being 
claimed for subsection (d) of the Privacy Act.
    (3) From subsection (d) of the Privacy Act because access to the 
records contained in this system may interfere with or impede an 
ongoing investigation as it may be related to allegations against an 
agent or witness who is currently being investigated. Further, other 
records that are derivative of the subject's employing agency files may 
be accessed through the employing agency's files.
    (4) From subsection (e)(1) of the Privacy Act because it may not be 
possible to determine in advance if potential impeachment records 
collected and maintained in order to sufficiently meet the Department's 
Giglio requirements and obligations are all relevant and necessary. In 
order to ensure that the Department's prosecutors and investigative 
agencies receive sufficient information to meet their obligations under 
Giglio, it is appropriate to maintain potential impeachment information 
in accordance with Department policy as such records could later be 
relevant and necessary in a different case in which the same witness or 
affiant subsequently testifies.
    (5) From subsection (e)(2) of the Privacy Act because collecting 
information directly from the subject individual could serve notice 
that the individual is the subject of investigation and because of the 
nature of the records in this system, which are used to impeach or 
demonstrate bias of a witness, requires that the information be 
collected from others.
    (6) From subsection (e)(3) of the Privacy Act because federal law 
enforcement officers receive notice from their supervisors and 
prosecuting attorneys that impeachment information may be used at 
trial. Law enforcement officers are also given notice by the Giglio 
decision itself.
    (7) From subsections (e)(4)(G), (H), and (I) of the Privacy Act 
because this system of records is exempt from the access and amendment 
provisions of subsection (d) of the Privacy Act.
    (8) From subsection (e)(5) of the Privacy Act because it may not be 
possible to determine in advance if all potential impeachment records 
collected and maintained in order to sufficiently meet the Department's 
Giglio requirements and obligations are all accurate, relevant, timely, 
and complete at the time of collection. Although the Department has 
policies in place to verify the records, the records may be originated 
from another agency,

[[Page 15953]]

third party, or open source media and it may be impossible to ensure 
the accuracy, relevance, timeliness, and completeness of potential 
impeachment information maintained prior to and during the process of 
being verified.
    (9) From subsection (e)(8) of the Privacy Act because the nature of 
the Giglio discovery process renders notice of compliance with the 
compulsory discovery process impractical.
    (10) From subsections (f) and (g) of the Privacy Act because these 
subsections are inapplicable to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: March 4, 2015.
Erika Brown Lee,
Chief Privacy and Civil Liberties Officer, United States Department of 
Justice.
[FR Doc. 2015-06938 Filed 3-25-15; 8:45 am]
 BILLING CODE 4410-FB-P