[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Rules and Regulations]
[Pages 66125-66128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27798]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 006-2018]
Privacy Act of 1974; Implementation
AGENCY: Office of the Inspector General, United States Department of
Justice.
ACTION: Final rule.
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SUMMARY: The Office of the Inspector General (OIG), a component within
the United States Department of Justice (DOJ or Department), is
finalizing its Privacy Act exemption regulations for the system of
records titled, ``Data Analytics Program Records System,'' JUSTICE/OIG-
006, which were published as a Notice of Proposed Rulemaking (NPRM) on
March 28, 2018. Specifically, the Department's regulations will exempt
the records maintained in JUSTICE/OIG-006 from one or more provisions
of the Privacy Act and implement other administrative changes. The
exemptions are necessary to avoid interference with the law enforcement
functions and responsibilities of OIG. The Department received 21
comments on the NPRM, none of which addressed the substance of the
proposed Privacy Act exemption regulations for JUSTICE/OIG-006.
DATES: This final rule is effective January 25, 2019.
FOR FURTHER INFORMATION CONTACT: Jonathan M. Malis, General Counsel,
Office of the Inspector General, Department of Justice, 950
Pennsylvania Avenue NW, Washington, DC 20530, phone: (202) 514-3435.
SUPPLEMENTARY INFORMATION: Pursuant to the Inspector General Act of
1978, as amended, Inspectors General, including the DOJ Inspector
General, are responsible for conducting, supervising, and coordinating
audits and investigations to recognize and mitigate fraud, waste, and
abuse by programs and operations of the Federal agency for which their
office is established. On March 28, 2018, OIG published a System of
Records Notice (SORN) for its system of records titled, ``Data
Analytics Program Records System,'' JUSTICE/OIG-006, 83 FR 13309 (March
28, 2018), for the records collected to implement its data analytics
(DA) program. The DA program will assist with the performance of OIG
audits, investigations, and reviews, and accommodate the requirements
of the Digital Accountability and Transparency Act of 2014, Public Law
113-101, 128 Stat. 1146. Specifically, the DA program will provide OIG:
timely insights from the data already stored in DOJ databases that OIG
has legal authorization to access and maintain; the ability to monitor
and analyze data for patterns and correlations that signal wasteful,
fraudulent, or abusive activities impacting Department performance and
operations; the ability to find, acquire, extract, manipulate, analyze,
connect, and visualize data; the capability to manage vast amounts of
data; the ability to identify significant information that can improve
decision quality; and the ability to mitigate risk of waste, fraud, and
abuse.
[[Page 66126]]
On the same day OIG published JUSTICE/OIG-006, OIG published a
Notice of Proposed Rulemaking (NPRM), 83 FR 13208 (March 28, 2018),
proposing to exempt records maintained in JUSTICE/OIG-006 from certain
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k).
Additionally, as an administrative matter, OIG proposed replacing the
current regulations promulgated in paragraphs (c) and (d) of 28 CFR
16.75 with the proposed regulations for JUSTICE/OIG-006. The current
regulations promulgated in paragraphs (c) and (d) exempt from certain
provisions of the Privacy Act a previously rescinded OIG SORN, ``Office
of the Inspector General, Freedom of Information/Privacy Acts (FOI/PA)
Records,'' JUSTICE/OIG-003, 66 FR 29994 (June 4, 2001), and are no
longer needed. The Department invited public comment on the proposed
regulations. The comment period was open through April 27, 2018. DOJ
received 21 comments on the NPRM, none of which addressed the substance
of the proposed Privacy Act exemption regulations for JUSTICE/OIG-006.
Two of the comments mentioned concerns with ``data mining,'' but those
concerns were expressed in the context of applications on web servers
collecting information about shoppers' and users' habits, which is not
relevant to the use or purpose of the DA program. The remaining
comments touched on numerous other, unrelated topics such as the
Environmental Protection Agency and environmental concerns, Russia's
attempt to stop American oil and gas drilling, the commodities
exchange, and the Consumer Financial Protection Bureau.
After consideration of these public comments, the Department will
codify in this final rule the regulations proposed in the NPRM to
protect the ability of the OIG to properly engage in its law
enforcement functions. Three administrative changes have been made to
the regulations proposed in the NPRM. First, in Sec. 16.75(d)(1), the
term ``interest'' in the second sentence is revised to read,
``interests.'' Second, in Sec. 16.75(d)(3), the term ``his'' in the
first sentence is revised to read, ``the subject's.'' Third, in Sec.
16.75(d)(8), a duplicative use of the word ``could'' has been removed.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation, and Executive Order 13563 ``Improving
Regulation and Regulatory Review'' section 1(b), General Principles of
Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this final rule has not been reviewed by the
Office of Management and Budget, Office of Information and Regulatory
Affairs, in accordance with Executive Order 12866.
Regulatory Flexibility Act
This regulation will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This regulation will not impact Indian Tribal governments. More
specifically, it does not have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. Therefore, the
consultation requirements of Executive Order 13175 do not apply.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000, as adjusted for inflation, or more in any one year, and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804 of the
Congressional Review Act.
Paperwork Reduction Act
This rule imposes no information collection or recordkeeping
requirements.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
information, and the 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 2940-2008,
the Department of Justice amends 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
Subpart E--Exemption of Records Systems Under the Privacy Act
0
2. Amend Sec. 16.75 by revising paragraphs (c) and (d) to read as
follows:
Sec. 16.75 Exemption of the Office of the Inspector General Systems/
Limited Access.
* * * * *
(c) The Data Analytics Program Records System (JUSTICE/OIG-006)
system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d);
(e)(1), (2), (3), (5) and (8); 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). Where
compliance would not appear to interfere with or adversely affect the
law enforcement process, and/or where it may be appropriate to permit
individuals to contest the accuracy of the information collected, e.g.,
public source materials, the applicable
[[Page 66127]]
exemption may be waived, either partially or totally, by OIG.
(d) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because release of
disclosure accounting could alert the subject of an investigation of an
actual or potential criminal, civil, or regulatory violation to the
existence of an investigation and the fact that the individual is the
subject of the investigation. Such a disclosure could also reveal
investigative interests by not only OIG, but also by the recipient
agency or component. Since release of such information to the subjects
of an investigation would provide them with significant information
concerning the nature of the investigation, release could result in the
destruction of documentary evidence, improper influencing of witnesses,
endangerment of the physical safety of confidential sources, witnesses,
and law enforcement personnel, the fabrication of testimony, flight of
the subject from the area, and other activities that could impede or
compromise the investigation. In addition, providing the individual an
accounting for each disclosure could result in the release of properly
classified information which would compromise the national defense or
disrupt foreign policy.
(2) From subsection (c)(4) notification requirements, for the same
reasons that justify exempting this system from the access and
amendment provisions of subsection (d), and similarly, from the
accounting of disclosures provision of subsection (c)(3). The DOJ takes
seriously its obligation to maintain accurate records despite its
assertion of this exemption, and to the extent it, in its sole
discretion, agrees to permit amendment or correction of DOJ records, it
will share that information in appropriate cases.
(3) From subsection (d), the access and amendment provisions,
because access to the records contained in this system of records could
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation, of the existence of the
investigation; of the nature and scope of the information and evidence
obtained as to the subject's activities; of the identity of
confidential sources, witnesses, and law enforcement personnel, and of
information that may enable the subject to avoid detection or
apprehension. These factors would present a serious impediment to
effective law enforcement where they prevent the successful completion
of the investigation, endanger the physical safety of confidential
sources, witnesses, and law enforcement personnel, and/or lead to the
improper influencing of witnesses, the destruction of evidence, or the
fabrication of testimony. In addition, granting access to such
information could disclose security-sensitive or confidential business
information or information that would constitute an unwarranted
invasion of the personal privacy of third parties. Finally, access to
the records could result in the release of properly classified
information that would compromise the national defense or disrupt
foreign policy. Amendment of the records would interfere with ongoing
investigations and law enforcement activities and impose an impossible
administrative burden by requiring investigations to be continuously
reinvestigated.
(4) From subsection (e)(1), because the application of this
provision could impair investigations and interfere with the law
enforcement responsibilities of the OIG for the following reasons:
(i) It is not possible to determine the relevance or necessity of
specific information in the early stages of a civil, criminal or other
law enforcement investigation, case, or matter, including
investigations in which use is made of properly classified information.
Relevance and necessity are questions of judgment and timing, and it is
only after the information is evaluated that the relevance and
necessity of such information can be established.
(ii) During the course of any investigation, the OIG may obtain
information concerning actual or potential violations of laws other
than those within the scope of its jurisdiction. In the interest of
effective law enforcement, the OIG should retain this information in
accordance with applicable record retention procedures, as it may aid
in establishing patterns of criminal activity, and can provide valuable
leads for Federal and other law enforcement agencies.
(iii) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may also relate to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(5) From subsection (e)(2), because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to
destroy evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation
cannot be required to provide information to investigators, and
information relating to a subject's illegal acts, violations of rules
of conduct, or any other misconduct must be obtained from other
sources.
(iii) In any investigation it is necessary to obtain evidence from
a variety of sources other than the subject of the investigation in
order to verify the evidence necessary for successful litigation.
(6) From subsection (e)(3), because the application of this
provision would provide the subject of an investigation with
substantial information which could impede or compromise the
investigation. Providing such notice to a subject of an investigation
could interfere with an undercover investigation by revealing its
existence, and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) From subsection (e)(5), because the application of this
provision would prevent the collection of any data not shown to be
accurate, relevant, timely, and complete at the moment it is collected.
In the collection of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Material that may seem unrelated,
irrelevant, or incomplete when collected may take on added meaning or
significance as an investigation progresses. The restrictions of this
provision could interfere with the preparation of a complete
investigative report, and thereby impede effective law enforcement.
(8) From subsection (e)(8), because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on OIG and may alert the subjects of
law enforcement investigations, who might be otherwise unaware, to the
fact of those investigations. Such notice could also reveal
investigative techniques, procedures, or evidence.
(9) From subsection (g), to the extent that this system is exempt
from the access and amendment provisions of subsection (d), pursuant to
subsections
[[Page 66128]]
(j)(2), (k)(1), and (k)(2) of the Privacy Act.
Dated: December 18, 2018.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2018-27798 Filed 12-21-18; 8:45 am]
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