[Federal Register Volume 87, Number 91 (Wednesday, May 11, 2022)]
[Rules and Regulations]
[Pages 28774-28776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10127]


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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: Final rule.

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SUMMARY: The Department of Defense (Department or DoD) is issuing a 
final rule to amend its regulations to exempt portions of the system of 
records titled DoD-0006, ``Military Justice and Civilian Criminal Case 
Records,'' from certain provisions of the Privacy Act of 1974.

DATES: This rule is effective on June 10, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, Privacy and Civil 
Liberties Division, Directorate for Privacy, Civil Liberties and 
Freedom of Information, Office of the Assistant to the Secretary of 
Defense for Privacy, Civil Liberties, and Transparency, Department of 
Defense, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, 
VA 22350-1700; [email protected]; (703) 571-0070.

SUPPLEMENTARY INFORMATION:

Discussion of Comments and Changes

    The proposed rule published in the Federal Register on May 25, 2021 
(86 FR 28047-28049). Comments were accepted for 60 days until July 26, 
2021. A total of one comment regarding the proposed rule was received. 
Please see a summary of the comment and the Department's response as 
follows:
    DoD received one substantive comment on the notice of proposed 
rulemaking (NPRM). The substantive comment on the NPRM objected to the 
exemptions as undermining the goal of ensuring records are kept and 
preserved for access at any time. The Privacy Act (5 U.S.C. 552a) 
generally provides that any person has a right (enforceable in court) 
of access to federal agency records about themselves that are 
maintained in a system of records, except to the extent that the 
information is protected from disclosure by one of ten exemptions. 
Exempting a system of records does not cause information to be 
destroyed or deleted but allows the agency to withhold records from 
first-party access for particular reasons as articulated by the 
exemption rule. Records, even those with applicable exemption rules, 
are retained in accordance with the requirements of the Federal Records 
Act and records schedules approved by the National Archives and Records 
Administration. Having considered the public comment, the Department 
will implement the rulemaking as proposed.

Background

    In finalizing this rule, DoD will exempt portions of the system of 
records titled, DoD-0006, ``Military Justice and Civilian Criminal Case 
Records,'' from certain provisions of the Privacy Act. 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 UCMJ, 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 ensure good order and discipline.
    The DoD is amending 32 CFR part 310 to add a new Privacy Act 
exemption rule for DoD-0006, ``Military Justice and Civilian Criminal 
Case Records.'' Some of the records that are part of this system of 
records may contain classified national security information, and the 
disclosure of 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 claiming 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 is exempting 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 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 claiming 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

[[Page 28775]]

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 establishing this system of records was published in the 
Federal Register on May 25, 2021 (86 FR 28086-28090). This system of 
records went into effect on May 25, 2021; however, comments on the 
Routine Uses were accepted through June 24, 2021. At the end of the 
comment period, one non-substantive comment was received. The Routine 
Uses went into effect at the close of the comment period.

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)

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency certified that this rule does not have 
significant economic impact on a substantial number of small entities 
because it is concerned only with the administration of a Privacy Act 
system 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.

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct compliance costs on one or 
more Indian tribes, preempts tribal law, or effects the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes. This rule will not have a substantial effect on Indian tribal 
governments.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is 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)(5) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (5) 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 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 the accounting of 
records to avoid criminal penalties, civil remedies, or disciplinary 
measures; interfere with a civil or administrative action or

[[Page 28776]]

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 6, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-10127 Filed 5-10-22; 8:45 am]
BILLING CODE 5001-06-P