[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54368-54371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21340]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 009-2021]


Privacy Act of 1974; Implementation

AGENCY: Office of Legal Policy, United States Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The United States Department of Justice (DOJ or Department), 
is finalizing with changes its Privacy Act exemption regulations for 
the system of records titled, ``Judicial Nominations Files,'' JUSTICE/
OLP-002, which were published as a notice of proposed rulemaking (NPRM) 
on July 23, 2021. Specifically, the Department's regulations will 
exempt the records maintained in JUSTICE/OLP-002 from one or more 
provisions of the Privacy Act.

DATES: This final rule is effective November 1, 2021.

FOR FURTHER INFORMATION CONTACT: Matrina Matthews, Executive Officer, 
Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania 
Avenue NW, Room 4234, Washington, DC 20530-0001; telephone: (202) 616-
0040; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On July 14, 2021, the Office of Legal Policy (OLP) published in the 
Federal Register a System of Records Notice (SORN) for an OLP system of 
records titled, ``Judicial Nominations Files,'' JUSTICE/OLP-002. 86 FR 
37192. On July 23, 2021, the Department published

[[Page 54369]]

a notice of proposed rulemaking (NPRM) proposing to exempt records 
maintained in JUSTICE/OLP-002 from certain provisions of the Privacy 
Act pursuant to 5 U.S.C. 552a(k), and inviting public comment on the 
proposed exemptions. 86 FR 38955. The comment period was open through 
August 13, 2021, for the SORN and through August 23, 2021, for the 
NPRM. The Department received no comments on the proposed rule. After 
providing the opportunity for public comment, exemptions necessary to 
protect the ability of OLP to do its judicial nomination functions have 
been codified in this final rule as proposed in the NPRM.
    The exemptions are necessary because certain classified information 
may be maintained in JUSTICE/OLP-002, including but not limited to, 
records related to a potential nominee that maintained a previous or 
current position with access to classified information and/or assigned 
to a national security sensitive position. Moreover, given the law 
enforcement information that may be discovered as part of the 
nomination investigation and/or evaluations, certain investigatory 
materials for law enforcement purposes may be maintained in this system 
of records. In addition, investigatory material may also be used in 
determining suitability, eligibility, or qualification decisions, and 
such information may require exemption to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Department under an express promise that 
the identity of the source would be held in confidence. Finally, the 
Department also utilizes various examination materials to determine 
individual qualifications for appointment, which if disclosed, could 
compromise the objectivity or fairness of the Department's examination 
and vetting process.

Response to Public Comments

    In its Judicial Nominations Files SORN, published on July 14, 2021, 
and its Judicial Nominations Files NPRM, published on July 23, 2021, 
the Department invited public comment. The comment period for the SORN 
closed on August 13, 2021, and the comment period for the NPRM closed 
on August 23, 2021. The Department received no comments. Because no 
comments were submitted, and because OLP continues to assert the 
rationales in support of the exemptions as stated in the NPRM, the 
Department adopts in this final rule the exemptions and rationales 
proposed in the NPRM.

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 rule has not been reviewed by the Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget pursuant to 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 have no implications for 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, 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. Revise Sec.  16.73 to read as follows:


Sec.  16.73   Exemption of Office of Legal Policy Systems.

    (a) The Judicial Nominations Files (JUSTICE/OLP-002) system of 
records is exempt from subsections (c)(3); (d); (e)(1), (e)(4)(G), (H), 
and (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), 
(k)(2), (k)(5), and (k)(6). The exemptions in this paragraph (a) apply 
only to the extent that information in this system of records is 
subject to an exemption, pursuant to 5 U.S.C. 552a(k). Where compliance 
would not appear to

[[Page 54370]]

interfere with or adversely affect the Office of Legal Policy's (OLP's) 
processes, OLP may waive the applicable exemption.
    (b) Exemptions from the particular subsections in paragraph (a) of 
this section 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 accountings could alert the subject of an investigation and/
or evaluation to the extent of an investigation and/or evaluation. Such 
a disclosure could also reveal investigative interests by not only OLP, 
but also other recipient agencies or components. Since release of such 
information to the subjects of an investigation would provide them with 
significant information concerning the nature of the investigation and/
or evaluation, 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, and other activities that 
could impede or compromise the investigation and/or evaluation. 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 (d), the access and amendment provisions, 
because many persons are contacted who, without an assurance of 
anonymity, refuse to provide information concerning the subject of an 
investigation and/or evaluation. Access could reveal the identity of 
the source of the information and constitute a breach of the promised 
confidentiality on the part of the Department. Such breaches ultimately 
would restrict the free flow of information vital to the determination 
of a candidate's qualifications and suitability, among other 
determinations. The Department also relies on certain examination 
materials to assess and evaluate an individual's qualifications for an 
applicable position. Access and/or amendment to such material could 
reveal information about the examination and vetting process and could 
compromise its objectivity and/or fairness. Access and/or amendment to 
such material could also inappropriately advantage future candidates 
with knowledge of the examination materials. Finally, providing the 
individual access or amendment rights could result in the release of 
properly classified information which would compromise the national 
defense or disrupt foreign policy.
    (3) From subsection (e)(1), because in the collection of 
information for investigative and evaluative purposes, it is impossible 
to determine in advance what exact information may be of assistance in 
determining the qualifications and suitability of the subject of an 
investigation and/or evaluation. Information which may seem irrelevant, 
when combined with other seemingly irrelevant information, can on 
occasion provide a composite picture of a candidate which assists in 
determining whether that candidate should be nominated for appointment. 
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. In interviewing 
individuals or obtaining other forms of information during OLP 
processes, information may be supplied to OLP which relates to matters 
incidental to the primary purpose of OLP's processes, but also relate 
to matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated.
    (4) From subsections (e)(4)(G) and (H), and subsection (f), because 
this system is exempt from the access and amendment provisions of 
subsection (d).
    (c) The General Files System of the Office of Legal Policy 
(JUSTICE/OLP-003) system of records is exempt from subsections 
552a(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), and 
(e)(5); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), (k)(2) and (k)(5). The exemptions in this paragraph (c) apply 
only to the extent that information in this system is subject to 
exemption pursuant to 5 U.S.C. 552(j), (k). Where compliance would not 
appear to interfere with or adversely affect OLP's processes, the 
applicable exemption may be waived by OLP.
    (d) Exemptions from the particular subsections in paragraph (c) of 
this section are justified for the following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department as 
well as the recipient agency. This would permit record subjects to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid inquiries or apprehension by law 
enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this 
system relate to official Federal investigations. Individual access to 
these records might compromise ongoing investigations, reveal 
confidential informants, or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. Amendment of records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e)(1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
since it may aid in establishing patterns of criminal activity. 
Moreover, it would impede the specific investigation process if it were 
necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsections (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations and duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4)(G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.


[[Page 54371]]


    Dated: September 23, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2021-21340 Filed 9-30-21; 8:45 am]
BILLING CODE P