[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Notices]
[Pages 72586-72589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27710]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2021-OS-0128]


Privacy Act of 1974; System of Records

AGENCY: Department of Defense (DoD).

ACTION: Notice of a new system of records.

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SUMMARY: In accordance with the Privacy Act of 1974, the DoD proposes 
to establish a new Department-wide system of records titled, ``Freedom 
of Information Act and Privacy Act Records,'' DoD-0008. This system of 
records covers DoD's maintenance of records about individuals who 
submit access requests and administrative appeals under the Freedom of 
Information Act, and who submit access and amendment requests and 
administrative appeals under the Privacy Act. This system of records 
data includes information regarding the individual requesters and their 
attorneys or representatives, the original request for access and any 
administrative appeal, and other supporting documentation to include 
related memoranda, correspondence, notes, and, in some instances, 
copies of requested records and records under administrative appeal. 
Additionally, DoD is issuing a Notice of Proposed Rulemaking, which 
proposes to exempt this system of records from certain provisions of 
the Privacy Act, elsewhere in today's issue of the Federal Register.

DATES: This system of records is effective upon publication; however, 
comments on the Routine Uses will be accepted on or before January 21, 
2022. The Routine Uses are effective at the close of the comment 
period.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
    * Federal Rulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    * Mail: 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 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. Rahwa Keleta, Defense Privacy, 
Civil Liberties, and FOIA Directorate, Office of the Assistant to the 
Secretary of Defense for Privacy, Civil Liberties, and Transparency, 
Department of Defense, 1155 Defense Pentagon, Washington, DC 20301-
1155, [email protected]; (703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is establishing the ``Freedom of Information Act and Privacy 
Act Records'' system of records as a DoD-wide Privacy Act system of 
records. A DoD-wide system of records notice (SORN) supports multiple 
DoD paper or electronic recordkeeping systems operated by more than one 
DoD component that maintain the same kind of information about 
individuals for the same purpose. Establishment of DoD-wide SORNs help 
DoD standardize the rules governing the collection, maintenance, use, 
and sharing of personal information in key areas across the enterprise. 
DoD-wide SORNs also reduce duplicative and overlapping SORNs published 
by separate DoD components. The creation of DoD-wide SORNs is expected 
to make locating relevant SORNs easier for DoD personnel and the 
public, and create efficiencies in the operation of the DoD privacy 
program.
    This system of records concerns access requests and administrative 
appeals under the Freedom of Information Act (FOIA), and access and 
amendment requests and administrative appeals under the Privacy Act. 
The system consists of both electronic and paper records and will be 
used by DoD components and offices to maintain records about 
individuals who submit FOIA access requests, Privacy Act access and 
amendment requests,

[[Page 72587]]

administrative appeals to the Department under either the FOIA or 
Privacy Act, and FOIA and Privacy Act requests referred to DoD by other 
agencies. These records may include information regarding the 
individual requesters and their attorneys or representatives, the 
original request for access, amendment, or administrative appeal, and 
other supporting documentation to include related memoranda, 
correspondence, notes, statements of disagreement, and, in some 
instances, copies of requested records and records under administrative 
appeal.
    Additionally, DoD is issuing a Notice of Proposed Rulemaking to 
exempt this system of records from certain provisions of the Privacy 
Act elsewhere in today's issue of the Federal Register. DoD SORNs have 
been published in the Federal Register and are available from the 
address in FOR FURTHER INFORMATION CONTACT or at the Defense Privacy, 
Civil Liberties, and Transparency Division website at https://dpcld.defense.gov.

II. Privacy Act

    Under the Privacy Act, a ``system of records'' is a group of 
records under the control of an agency from which information is 
retrieved by the name of an individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. In 
the Privacy Act, an individual is defined as a U.S. citizen or lawful 
permanent resident.
    In accordance with 5 U.S.C. 552a(r) and Office of Management and 
Budget (OMB) Circular No. A-108, DoD has provided a report of this 
system of records to the OMB and to Congress.

    Dated: December 16, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

SYSTEM NAME AND NUMBER:
    Freedom of Information Act and Privacy Act Records (FOIA/PA 
Records) DoD-0008.

SECURITY CLASSIFICATION:
    Unclassified; Classified

SYSTEM LOCATION:
    Department of Defense (Department or DoD), located at 1000 Defense 
Pentagon, Washington, DC 20301-1000, and other Department 
installations, offices, or mission locations. Information may also be 
stored within a government-certified cloud, implemented and overseen by 
the Department's Chief Information Officer (CIO), 6000 Defense 
Pentagon, Washington, DC 20301-6000.

SYSTEM MANAGER(S):
    A. Chief, Defense Privacy, Civil Liberties, and Transparency 
Division, Office of the Director of Administration and Management, 4800 
Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700; 
[email protected]; phone (703) 571-0070.
    B. The contact information for the DoD Component FOIA Offices is 
found on the FOIA.gov website. The contact information for individual 
DoD Component Privacy Offices is found at this website: https://dpcld.defense.gov/Privacy/Privacy-Contacts/.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
    10 U.S.C. 113, Secretary of Defense; 5 U.S.C. 552, Freedom of 
Information Act, as amended; 5 U.S.C. 552a, Privacy Act of 1974, as 
amended; 32 CFR part 286, DoD Freedom of Information Act (FOIA) 
Program; 32 CFR part 310, Protection of Privacy and Access and 
Amendment of Individual Records Under the Privacy Act of 1974; DoD 
Directive, 5400.07, DoD Freedom of Information Act (FOIA) Program; DoD 
Instruction 5400.11, DoD Privacy and Civil Liberties Programs; DoD 
Manual 5400.07, DoD Freedom of Information Act (FOIA) Program; DoD 
5400.11-R, DoD Privacy Program; and Executive Order 9397 (SSN), as 
amended.

PURPOSE(S) OF THE SYSTEM:
    A. To report, track, and process access requests and administrative 
appeals under the FOIA, and access and amendment requests and 
administrative appeals under the Privacy Act.
    B. To participate in and support litigation that may arise from a 
FOIA and/or Privacy Act access request, amendment request, or 
administrative appeal.
    C. To assist DoD in carrying out any other responsibilities under 
the FOIA or the access or amendment provisions of the Privacy Act.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    (a) Individuals who submit access requests and appeals to the DoD 
for records under the provisions of the FOIA and the Privacy Act; (b) 
individuals who submit access requests to other Federal agencies whose 
requests have been referred to the DoD for processing or consultation; 
(c) individuals who request amendment of their records in a DoD system 
of records under the provisions of the Privacy Act and related appeals; 
and (d) attorneys or other representatives of the individuals listed 
above who carry out all or some of these activities on the individuals' 
behalf.

CATEGORIES OF RECORDS IN THE SYSTEM:
    Records created or compiled in response to FOIA access and Privacy 
Act access and amendment requests, and administrative appeals, 
including:
    A. Original requests and administrative appeals (including 
requester's name, mailing address, case number, date and subject of the 
request, with some requesters also voluntarily submitting additional 
information such as SSNs, telephone numbers, email addresses, and other 
identifying information) and responses to such requests and 
administrative appeals.
    B. Correspondence with the individuals or entities that submitted 
the requested records and copies of the requested records, including 
records that might contain confidential business information or 
personal information.
    C. Intra or interagency memoranda, referrals, correspondence, 
notes, fee schedules, assessments, cost calculations, and other 
documentation related to the processing of the FOIA and/or Privacy Act 
request or appeal.
    D. Correspondence related to fee determinations and collection of 
fees owed under the FOIA or Privacy Act.
    E. All related memoranda, correspondence, notes, statements of 
disagreement following a denial of an appeal of a Privacy Act record 
amendment request, and other related or supporting documentation;
    F. Records concerning lawsuits brought under the FOIA and the 
Privacy Act including those obtained from the Department of Justice 
(DOJ) and other government attorneys; and
    G. Types of personal information in the records may include: (1) 
Requesters' and their attorneys' or representatives' identifying and 
contact information, such as name, address, email, telephone numbers, 
facsimile numbers, and FOIA/PA case numbers; (2) names and other 
identifying, descriptive, or contextual information about the 
individual(s) who is the subject of the request(s); (3) fee category, 
payment or non-payment information; (4) explanations or justifications 
provided in support of amendment requests, including supporting 
documentation; (5) other identifiers that may be provided by or on 
behalf of a requester or appellant, such as Social Security number 
(SSN), driver's license number, DoD ID Number (EDI-PI), or other DoD-
assigned number.
    H. In some instances, copies of the requested records, if any; 
records subject to an amendment request; or such records when reviewed 
under administrative appeal. Note: Depending on the nature of the 
records subject to the appeal request, these may not be

[[Page 72588]]

``records'' under the Privacy Act or alternatively, may be covered by a 
separate system of records.

    Note 1:  This System of Records may contain individually 
identifiable health information. DoD Instruction 6025.18 and DoD 
Manual 6025.18 or any successor DoD issuances issued pursuant to the 
Health Insurance Portability and Accountability Act of 1996 (HIPAA) 
and 45 CFR parts 160 and 164, Health and Human Services, General 
Administrative Requirements and Security and Privacy, respectively, 
apply to most such health information. DoD Manual 6025.18 or a 
successor issuance may place additional procedural requirements on 
the uses and disclosures of such information beyond those found in 
the Privacy Act of 1974, as amended, or mentioned in this System of 
Records Notice (SORN).


    Note 2:  Individuals who file access or amendment requests may 
provide their SSN unsolicited to DoD within their request or appeal, 
or other materials they provide related to their request. In some 
cases, DoD may request an SSN to properly search for a record 
subject to a request for access or amendment if the SSN is a unique 
identifier used to retrieve information from that system of records.


    Note 3:  In general, this system of records will not be deemed 
to cover the underlying records that are responsive to an access or 
amendment request or administrative appeal. Rather, this system of 
records covers initial access and amendment requests and 
administrative appeals; all related correspondence, notes, and 
memoranda created as a result of such requests and appeals; and the 
other categories of records itemized in paragraphs (A)-(G). In the 
case of a first-party Privacy Act request, underlying responsive 
records will typically be covered by a separate system of records.

RECORD SOURCE CATEGORIES:
    A. Individuals who submit initial access requests and 
administrative appeals pursuant to the FOIA and individuals submitting 
access or amendment requests and administrative appeals under the 
Privacy Act;
    B. DoD personnel assigned to handle such requests and appeals, or 
related litigation arising therefrom;
    C. Other agencies that have referred to DoD requests or 
consultations concerning DoD records or who have consulted with DOJ 
regarding the handling of an access or amendment request; and
    D. Submitters of or subjects of information reflected in records 
subject to access requests that have provided assistance to the DoD in 
making access or amendment determinations.
    In addition, copies of records subject to the access or amendment 
request are obtained from agency systems of records and/or other paper 
and electronic record-keeping systems containing records searched or 
otherwise relevant to such requests.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES 
OF USERS AND PURPOSES OF SUCH USES:
    In addition to those disclosures generally permitted under 5 U.S.C. 
552a(b) of the Privacy Act of 1974, as amended, all or a portion of the 
records or information contained herein may specifically be disclosed 
outside the DoD as a Routine Use pursuant to 5 U.S.C. 552a(b)(3) as 
follows:
    A. To contractors, grantees, experts, consultants, students, and 
others performing or working on a contract, service, grant, cooperative 
agreement, or other assignment for the federal government when 
necessary to accomplish an agency function related to this system of 
records.
    B. To the appropriate Federal, State, local, territorial, tribal, 
foreign, or international law enforcement authority or other 
appropriate entity where a record, either alone or in conjunction with 
other information, indicates a violation or potential violation of law, 
whether criminal, civil, or regulatory in nature.
    C. To any component of the DOJ for the purpose of representing the 
DoD, or its components, officers, employees, or members in pending or 
potential litigation to which the record is pertinent.
    D. In an appropriate proceeding before a court, grand jury, or 
administrative or adjudicative body or official, when the DoD or other 
Agency representing the DoD determines that the records are relevant 
and necessary to the proceeding; or in an appropriate proceeding before 
an administrative or adjudicative body when the adjudicator determines 
the records to be relevant to the proceeding.
    E. To the National Archives and Records Administration (NARA) for 
the purpose of records management inspections conducted under the 
authority of 44 U.S.C. 2904 and 2906.
    F. To a Member of Congress or staff acting upon the Member's behalf 
when the Member or staff requests the information on behalf of, and at 
the request of, the individual who is the subject of the record.
    G. To appropriate agencies, entities, and persons when (1) the DoD 
suspects or confirms a breach of the system of records; (2) the DoD 
determines as a result of the suspected or confirmed breach there is a 
risk of harm to individuals, the DoD (including its information 
systems, programs, and operations), the Federal Government, or national 
security; and (3) the disclosure made to such agencies, entities, and 
persons is reasonably necessary to assist in connection with the DoD's 
efforts to respond to the suspected or confirmed breach or to prevent, 
minimize, or remedy such harm.
    H. To another Federal agency or Federal entity, when the DoD 
determines that information from this system of records is reasonably 
necessary to assist the recipient agency or entity in (1) responding to 
a suspected or confirmed breach or (2) preventing, minimizing, or 
remedying the risk of harm to individuals, the recipient agency or 
entity (including its information systems, programs and operations), 
the Federal Government, or national security, resulting from a 
suspected or confirmed breach.
    I. To such recipients and under such circumstances and procedures 
as are mandated by Federal statute or treaty.
    J. To the NARA, Office of Government Information Services (OGIS), 
to the extent necessary to fulfill its responsibilities in 5 U.S.C. 
552(h), to review administrative agency policies, procedures and 
compliance with the FOIA, and to facilitate OGIS's offering of 
mediation services to resolve disputes between persons making FOIA 
requests and administrative agencies.
    K. To a Federal agency or other Federal entity that furnished the 
record or information for the purpose of permitting that agency or 
entity to make a decision regarding access to or correction of the 
record or information, or to a Federal agency or entity for purposes of 
providing guidance or advice regarding the handling of particular 
requests.
    L. To the DOJ, to the Department of the Treasury, or to a consumer 
reporting agency for collection action on any delinquent debt when 
circumstances warrant.
    M. To the Office of Management and Budget (OMB) or the DOJ to 
obtain advice regarding statutory and other requirements under the FOIA 
or Privacy Act.

POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
    Records may be stored electronically or on paper in secure 
facilities in a locked drawer behind a locked door. Electronic records 
may be stored locally on digital media; in agency-owned cloud 
environments; or in vendor Cloud Service Offerings certified under the 
Federal Risk and Authorization Management Program (FedRAMP).

POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
    Records may be retrieved by full name of requestor; FOIA or Privacy 
Act case

[[Page 72589]]

number or appeal number; date and/or year of request or appeal; subject 
matter; and in some instances may be retrieved by other identifiers 
assigned by the component.

POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
    Retention and disposal of records in this system of records is 
governed by General Records Schedule 4.2, Information Access and 
Protection Records, as follows:
    A. Access request files. Case files created in response to requests 
for records under the FOIA and Privacy Act, including administrative 
appeals, are destroyed six years after final agency action (initial 
response or appeal) or three years after final adjudication by the 
courts if applicable, whichever is later. (Note: National Security 
Agency documents and supporting files created in response to FOIA 
requests and appeals are destroyed when 50 years old.)
    B. Privacy Act amendment request files. Files relating to an 
individual's request to amend a record subject to the Privacy Act and 
any appeal or civil action that follows are destroyed with the records 
for which amendment was requested or four years after the final 
determination by agency or final adjudication by the courts if 
applicable, whichever is later.

ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
    DoD safeguards records in this system of records according to 
applicable rules, policies, and procedures, including all applicable 
DoD automated systems security and access policies. DoD policies 
require the use of controls to minimize the risk of compromise of 
personally identifiable information (PII) in paper and electronic form 
and to enforce access by those with a need to know and with appropriate 
clearances. Additionally, DoD has established security audit and 
accountability policies and procedures which support the safeguarding 
of PII and detection of potential PII incidents. DoD routinely employs 
safeguards such as the following to information systems and paper 
recordkeeping systems: Multifactor log-in authentication including 
Common Access Card (CAC) authentication and password; Secret internet 
Protocol Router (SIPR) token as required; physical and technological 
access controls governing access to data; network encryption to protect 
data transmitted over the network; disk encryption securing disks 
storing data; key management services to safeguard encryption keys; 
masking of sensitive data as practicable; mandatory information 
assurance and privacy training for individuals who will have access; 
identification, marking, and safeguarding of PII; physical access 
safeguards including multifactor identification physical access 
controls, detection and electronic alert systems for access to servers 
and other network infrastructure; and electronic intrusion detection 
systems in DoD facilities.

RECORD ACCESS PROCEDURES:
    Individuals seeking access to their records should follow the 
procedures in 32 CFR part 310. Individuals should address written 
inquiries to the DoD office with oversight of the records. The public 
may identify the contact information for the appropriate DoD office 
through the following website: www.FOIA.gov. Signed written requests 
should contain the name and number of this system of records notice 
along with the full name, current address, email address, and telephone 
number of the individual. The individual should also include the FOIA 
or Privacy Act case identification number, if available. In addition, 
the requester must provide either a notarized statement or an unsworn 
declaration made in accordance with 28 U.S.C. 1746, in the appropriate 
format:
    If executed outside the United States: ``I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. Executed on 
(date). (Signature).''
    If executed within the United States, its territories, possessions, 
or commonwealths: ``I declare (or certify, verify, or state) under 
penalty of perjury that the foregoing is true and correct. Executed on 
(date). (Signature).''

    Note 4:  In general, this system of records will not be deemed 
to cover the underlying records that are responsive to an access or 
amendment request. Rather, this system of records covers the access, 
amendment, or appeal requests themselves, correspondence created as 
a result of such requests, and the other categories of records 
itemized in paragraphs (A)-(G) of the Categories of Records section. 
In the case of a first-party Privacy Act request, underlying 
responsive records will typically be covered by a separate system of 
records. Consistent with paragraph (H) in the Categories of Records 
section, this system of records does not confer to a FOIA requester 
access rights under the Privacy Act to copies of the requested 
records.

CONTESTING RECORD PROCEDURES:
    Individuals seeking to amend or correct the content of records 
about them should follow the procedures in 32 CFR part 310.

NOTIFICATION PROCEDURES:
    Individuals seeking to determine whether information about 
themselves is contained in this system of records should follow the 
instructions for Records Access Procedures above.

EXEMPTIONS PROMULGATED FOR THE SYSTEM:
    Pursuant to 5 U.S.C. 552a(j)(2), portions of this system are exempt 
from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) 
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5), (e)(8); (f); and (g). Additionally, pursuant to 5 U.S.C. 
552a(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7) portions of this 
system are exempt from the following provisions of the Privacy Act: 5 
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and 
(f). When DoD is processing Privacy Act and/or FOIA requests, 
responding to appeals, or participating in FOIA or Privacy Act 
litigation, exempt materials from other systems of record may become 
part of the records in this system. When exempt records received from 
other systems of records become part of this system, DoD also claims 
the same exemptions for those records that are claimed for the prior 
system(s) of records from which they originated and claims any 
additional exemptions set forth here. Exemption rules for this system 
have been promulgated in accordance with requirements of 5 U.S.C. 
553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 310.

HISTORY:
    None.

[FR Doc. 2021-27710 Filed 12-21-21; 8:45 am]
BILLING CODE 5001-06-P