[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
[Proposed Rules]
[Pages 28047-28049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10366]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2021-OS-0004]
RIN 0790-AL20


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense (OSD), Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (Department or DoD) is giving 
concurrent notice of a new Department-wide system of records pursuant 
to the Privacy Act of 1974 for the DoD 0006, ``Military Justice and 
Civilian Criminal Case Records'' system of records and this proposed 
rulemaking. In this proposed rulemaking, the Department proposes to 
exempt portions of this system of records from certain provisions of 
the Privacy Act because of national security and law enforcement 
requirements.

DATES: Send comments on or before July 26, 2021.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
    * Federal eRulemaking Portal: https://www.regulations.gov.
    Follow the instructions for submitting comments.
    * Mail: The DoD cannot receive written comments at this time due to 
the COVID-19 pandemic. Comments should be sent electronically to the 
docket listed above.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the internet at https://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Lyn Kirby, Defense Privacy, Civil 
Liberties, and Transparency Division, Directorate for Oversight and 
Compliance, Department of Defense, 4800 Mark Center Drive, Mailbox #24, 
Suite 08D09, Alexandria, VA 22350-1700; [email protected]; (703) 571-
0070.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the Department of 
Defense (DoD) is establishing a new system of records titled, 
``Military Justice and Civilian Criminal Case Records,'' DoD 0006. This 
system of records describes DoD's collection, use, and maintenance of 
records for the handling of Uniform Code of Military Justice (UCMJ) and 
disciplinary cases within the authority of the DoD. This system of 
records also includes records created when DoD legal practitioners, in 
support of the U.S. Department of Justice, prosecute in U.S. District 
Courts crimes that occurred on military installations or property. 
Individuals covered by this system of records include armed forces 
members and others identified in Article 2 of the UCMJ, as well as 
civilians who are alleged to have engaged in criminal acts on DoD 
installations and properties.
    The purpose of this system of records is to support the collection, 
maintenance, use, and sharing of records compiled by the DoD for the 
adjudication and litigation of cases conducted under the Uniform Code 
of Military Justice, as well as criminal proceedings brought in U.S. 
District Courts for offenses occurring on DoD installations or 
property. This system contains information, records, and filings 
publicly accessible on the Department's court docket. It also supports 
the compilation of internal statistics and reports related to these 
activities.
    The collection and maintenance of this information by the DoD is 
necessary to meet its statutory obligations and to ensure good order 
and discipline.

II. Privacy Act Exemption

    The Privacy Act allows federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
those that provide individuals with a right to request access to and 
amendment of their own records. If an agency intends to exempt a 
particular system of records, it must first go through the rulemaking 
process to provide public notice and an opportunity to comment on the 
proposed exemption. This proposed rule explains why an exemption is 
being claimed for this system of records and invites public comment, 
which DoD will consider before the issuance of a final rule 
implementing the exemption.
    The DoD proposes to modify 32 CFR part 310 to add a new Privacy Act 
exemption rule for the DoD 0006, ``Military Justice and Civilian 
Criminal Case Records'' system of records. The DoD proposes this 
exemption because some of its records may contain classified national 
security information and notice, access, amendment and disclosure (to 
include accounting for those records) to an individual may cause damage 
to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), 
authorizes agencies to claim an exemption for systems of records that 
contain information properly classified pursuant to executive order. 
The DoD is proposing to claim an exemption from several provisions of 
the Privacy Act, including various access, amendment, disclosure of 
accounting, and certain record-keeping and notice requirements pursuant 
to 5 U.S.C. 552a(k)(1), to prevent disclosure of any information 
properly classified pursuant to executive order, as implemented by DoD 
Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.
    The DoD also proposes to exempt this system of records because 
these records support the conduct of criminal law enforcement 
activities, and certain requirements of the Privacy Act may interfere 
with the effective execution of these activities, and undermine good 
order and discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), 
authorizes agencies with a principal law enforcement function 
pertaining to the

[[Page 28048]]

enforcement of criminal laws (including activities of prosecutors, 
courts, etc.) to claim an exemption for systems of records that contain 
information identifying criminal offenders and alleged offenders, 
information compiled for the purpose of criminal investigation, or 
reports compiled during criminal law enforcement proceedings. 
Additionally, the Privacy Act, pursuant to 5 U.S.C. 552a(k)(2), 
authorizes agencies to compile investigatory material for law 
enforcement purposes, other than materials within the scope of 5 U.S.C. 
552a(j)(2). The DoD is proposing to claim exemptions from several 
provisions of the Privacy Act, including various access, amendment, 
disclosure of accounting, and certain record-keeping and notice 
requirements, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to 
prevent the harms articulated in this rule from occurring.
    In addition, records in this system of records are only exempt from 
the Privacy Act to the extent the purposes underlying the exemption 
pertain to the record. A notice of a new system of records for DoD 
0006, ``Military Justice and Civilian Criminal Case Records,'' is 
published elsewhere in today's issue of the Federal Register.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. It has been determined that this rule is not a significant 
regulatory action.

Congressional Review Act

    This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been certified that Privacy Act rules for the DoD 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 DoD.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this rule does not impose additional 
information collection requirements on the public under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

    It has been determined that this rule 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 it will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that this rule does not have federalism 
implications. This rule does 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 310

    Privacy.

    Accordingly, 32 CFR part 310 is proposed to be amended as follows:

PART 310--[AMENDED]

0
1. The authority citation for 32 CFR part 310 continues to read as 
follows:

    Authority: 5 U.S.C. 552a.

0
2. Section 310.13 is amended by adding paragraph (e)(3) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (3) System identifier and name: DoD 0006, ``Military Justice and 
Civilian Criminal Case Records''
    (i) Exemptions: This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); 
(e)(4)(G), (H), and (I); (e)(5); (e)(8); (f); and (g) of the Privacy 
Act to the extent the records are subject to exemption pursuant to 5 
U.S.C. 552a(j)(2). This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f) of the Privacy Act to the extent the records are subject to 
exemption pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3), (d)(1), and (d)(2).
    (1) Exemption (j)(2). Records in this system of records may contain 
investigatory material compiled for criminal law enforcement purposes 
to include information identifying criminal offenders and alleged 
offenders, information compiled for the purpose of criminal 
investigation, or reports compiled during criminal law enforcement 
proceedings. Application of exemption (j)(2) may be necessary because 
access to, amendment of, or release of the accounting of disclosures of 
such records could inform the record subject of an investigation of the 
existence, nature, or scope of an actual or potential law enforcement 
or disciplinary investigation, and thereby seriously impede law 
enforcement or prosecutorial efforts by permitting the record subject 
and other persons to whom he might disclose the records to avoid 
criminal penalties or disciplinary measures; reveal confidential 
sources who might not have otherwise come forward to assist in an 
investigation and thereby hinder DoD's ability to obtain information 
from future confidential sources and result in an unwarranted invasion 
of the privacy of others.
    (2) Exemption (k)(1). Records in this system of records may contain 
information concerning DoD personnel or disciplinary activities that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) may be necessary because access to and amendment of 
the records, or release of the accounting of disclosures for such 
records, could reveal classified information. Disclosure of classified 
records to an individual may cause damage to national security.
    (3) Exemption (k)(2). Records in this system of records may contain 
investigatory material compiled for law enforcement purposes other than 
material within the scope of 5 U.S.C. 552a(j)(2). Application of 
exemption (k)(2) may be necessary because access to, amendment of, or 
release of the accounting of disclosures of such records could inform 
the record subject of an investigation of the existence, nature, or 
scope of an actual or potential law enforcement or disciplinary 
investigation, and thereby seriously impede law enforcement or 
prosecutorial efforts by permitting the record subject and other 
persons to whom he might disclose the records or

[[Page 28049]]

the accounting of records to avoid criminal penalties, civil remedies, 
or disciplinary measures; interfere with a civil or administrative 
action or investigation which may impede those actions or 
investigations; reveal confidential sources who might not have 
otherwise come forward to assist in an investigation and thereby hinder 
DoD's ability to obtain information from future confidential sources; 
and result in an unwarranted invasion of the privacy of others.
    (B) Subsection (c)(4), (d)(3) and (4). These subsections are 
inapplicable to the extent that an exemption is being claimed from 
subsections (d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory or law enforcement purposes, it is not always possible to 
conclusively determine the relevance and necessity of particular 
information in the early stages of the investigation or adjudication. 
In some instances, it will be only after the collected information is 
evaluated in light of other information that its relevance and 
necessity for effective investigation and adjudication can be assessed. 
Collection of such information permits more informed decision-making by 
the Department when making required disciplinary and prosecutorial 
determinations. Additionally, records within this system may be 
properly classified pursuant to executive order. Accordingly, 
application of exemptions (j)(2), (k)(1) and (k)(2) may be necessary.
    (D) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations. Collection of information only from the individual 
accused of criminal activity or misconduct could also subvert discovery 
of relevant evidence and subvert the course of justice. Accordingly, 
application of exemption (j)(2) may be necessary.
    (E) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts. Accordingly, application of exemption 
(j)(2) may be necessary.
    (F) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent an exemption is claimed from subsections 
(d)(1) and (2).
    (G) Subsection (e)(4)(I). 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 the privacy and physical safety of 
witnesses and informants. Accordingly, application of exemptions 
(j)(2), (k)(1), and (k)(2) may be necessary.
    (H) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to maintain an 
accurate record of the investigatory activity to preserve the integrity 
of the investigation and satisfy various Constitutional and evidentiary 
requirements, such as mandatory disclosure of potentially exculpatory 
information in the investigative file to a defendant. It is also 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light and 
the accuracy of such information can only be determined through 
judicial processes. Accordingly, application of exemption (j)(2) may be 
necessary.
    (I) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts. Accordingly, 
application of exemption (j)(2) may be necessary.
    (J) Subsection (f). ``The agency's rules are inapplicable to those 
portions of the system that are exempt. Accordingly, application of 
exemptions (j)(2), (k)(1), and (k)(2) may be necessary.''
    (K) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the 
Privacy Act.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid 
and necessary.
* * * * *

    Dated: May 12, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-10366 Filed 5-24-21; 8:45 am]
BILLING CODE 5001-06-P