[Federal Register Volume 87, Number 162 (Tuesday, August 23, 2022)]
[Rules and Regulations]
[Pages 51611-51614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17977]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2021-OS-0048]
RIN 0790-AL13


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-0008, ``Freedom of Information Act and Privacy Act 
Records,'' from certain provisions of the Privacy Act of 1974.

DATES: This rule is effective September 22, 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 (86 FR 72536-
72540) on December 22, 2021. Comments were accepted for 60 days until 
February 22, 2022. A total of two comments regarding the proposed rule 
were received. Please see a summary of the comments and the 
Department's response below:
    DoD received one substantive comment and one non-substantive 
comment on the NPRM. The substantive comment expressed a concern that 
the application of exemptions to this system of records would globally 
shield all FOIA case processing records from disclosure. This 
rulemaking would not globally or improperly shield a requester's 
ability to seek access to the case processing of records of a FOIA or 
Privacy Act case. 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, except to the extent that the 
information is protected from disclosure by one of ten exemptions. To 
the extent that the case processing records are ``records'' as defined 
in the Privacy Act to which an individual has a Privacy Act right of 
access, this rule will deny the individual access to those records only 
to the extent a claimed exemption applies. In addition, records in the 
DoD-0008 Freedom of Information Act and Privacy Act Records system of 
records are only exempt from the Privacy Act to the extent the purposes 
underlying the exemption pertain to the record. Applying Privacy Act 
exemptions allows agencies to withhold records from access for 
particular reasons as articulated by the exemption rule. Having 
considered the public comment, the Department will implement the 
rulemaking as proposed.

I. Background

    In finalizing this rule, DoD is seeking to exempt portions of this 
system of records titled, DoD-0008 Freedom of Information Act and 
Privacy Act Records, from certain provisions of the Privacy Act. 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.

II. Privacy Exemption

    The Privacy Act permits Federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
the provisions providing individuals with a right to request access to 
and amendment of their own records and accountings of disclosures of 
such 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. 
The OSD is amending 32 CFR part 310 to add a new Privacy Act exemption 
rule for this system of records. The DoD is adding an exemption for 
this system of records because some of its records may contain 
investigatory material compiled for law enforcement purposes, 
classified national security information, protective services 
information pursuant to 18 U.S.C. 3056, and testing or examination 
information pursuant to 5 U.S.C.

[[Page 51612]]

552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7). The DoD 
is claiming an exemption from several provisions of the Privacy Act, 
including various access, amendment, disclosure of accounting, and 
certain recordkeeping and notice requirements, to avoid, among other 
harms, frustrating the underlying purposes for which the information 
was gathered.

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 under these Executive Orders.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. DoD will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule may take effect no earlier than 60 calendar days after 
Congress receives the rule report or the rule is published in the 
Federal Register, whichever is later. 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 is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule is concerned only with the administration 
of Privacy Act systems of records within the DoD. Therefore, the 
Regulatory Flexibility Act, as amended, does not require DoD to prepare 
a regulatory flexibility analysis.

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''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates may result in the expenditure by 
State, local and tribal governments in the aggregate, or by the private 
sector, in any one year of $100 million in 1995 dollars, updated 
annually for inflation. This rule will not mandate any requirements for 
State, local, or tribal governments, nor will it affect private sector 
costs.

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 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--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF 
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974

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)(7) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (7) System identifier and name: DoD-0008, ``Freedom of Information 
Act and Privacy Act 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).
    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), 
(k)(5), (k)(6), and (k)(7).
    (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 information recompiled 
from other systems of records maintained by a DoD component or other 
agency which performs as its principal function activities pertaining 
to the enforcement of criminal laws and contain investigatory material 
compiled for criminal law enforcement purposes, including 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 or the 
other agency's ability to obtain information from future confidential 
sources and result in an unwarranted invasion of the privacy of others. 
Amendment of such records could also impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (2) Exemption (k)(1). Records in this system of records may contain 
information that is properly classified pursuant to executive order.

[[Page 51613]]

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 
information recompiled from other systems of records pertaining to 
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 
investigation by allowing the subject to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which may undermine 
the entire investigatory process; 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. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (4) Exemption (k)(3). Records in this system of records may contain 
information recompiled from other systems of records pertaining to 
providing protective services to the President of the United States or 
other individuals pursuant to 18 U.S.C. 3056. Application of exemption 
(k)(3) for such records may be necessary because access to, amendment 
of, or release of the accounting of disclosures of such records could 
compromise the effectiveness of protective services, the safety of the 
individuals protected pursuant to 18 U.S.C. 3056, and the safety of the 
personnel providing protective services.
    (5) Exemption (k)(5). Records in this system of records may contain 
information recompiled from other systems of records concerning 
investigatory material compiled solely for determining suitability, 
eligibility, and qualifications for Federal civilian employment, 
military service, Federal contracts, or access to classified 
information. In some cases, such records may contain information 
pertaining to the identity of a source who furnished information to the 
Government under an express promise that the source's identity would be 
held in confidence (or prior to the effective date of the Privacy Act, 
under an implied promise). Application of exemption (k)(5) may be 
necessary because access to, amendment of, or release of the accounting 
of disclosures of such records could identify these confidential 
sources who might not have otherwise come forward to assist the 
Government; hinder the Government's ability to obtain information from 
future confidential sources; and result in an unwarranted invasion of 
the privacy of others. Amendment of such records could also impose a 
highly impracticable administrative burden by requiring investigations 
to be continuously reinvestigated.
    (6) Exemption (k)(6). Records in this system of records may contain 
information recompiled from other systems of records relating to 
testing or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service. 
Application of exemption (k)(6) may be necessary when access to and 
amendment of the records, or release of the accounting of disclosure 
for such records, may compromise the objectivity and fairness of the 
testing or examination process. Amendment of such records could also 
impose a highly impracticable administrative burden by requiring 
testing and examinations to be continuously re-administered.
    (7) Exemption (k)(7). Records in this system of records may contain 
evaluation material recompiled from other systems of records used to 
determine potential for promotion in the Armed Forces of the United 
States. In some cases, such records may contain information pertaining 
to the identity of a source who furnished information to the Government 
under an express promise that the source's identity would be held in 
confidence (or prior to the effective date of the Privacy Act, under an 
implied promise). Application of exemption (k)(7) may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could identify these confidential sources 
who might not have otherwise come forward to assist the Government; 
hinder the Government'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. Further, it is not 
always possible to determine relevancy or necessity of specific 
information in the earlier stages of responding to a FOIA or Privacy 
Act request or in litigation case development, including with respect 
to records pertaining to suitability determinations or armed services 
promotion evaluations that contain information about sources who were 
granted an express promise of confidentiality, or pertaining to testing 
or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service, the 
disclosure of which would compromise the objectivity or fairness of the 
testing or examination process. Such information may later be deemed 
unnecessary upon further assessment. Accordingly, application of 
exemptions (j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or (k)(7) 
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.

[[Page 51614]]

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 
information currently published in the system notice concerning 
categories of sources of records in the system, an exemption from this 
provision is necessary to protect the confidentiality of sources of 
information, the privacy and physical safety of witnesses and 
informants, and testing or examination material used solely to 
determine individual qualifications for appointment of promotion in the 
Federal service. Accordingly, application of exemptions (j)(2), (k)(1), 
(k)(2), (k)(5), (k)(6), and (k)(7) 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). To the extent that portions of the system are 
exempt from the provisions of the Privacy Act concerning individual 
access and amendment of records, DoD is not required to establish rules 
concerning procedures and requirements relating to such provisions. 
Accordingly, application of exemptions (j)(2), (k)(1), (k)(2), (k)(5), 
(k)(6), and (k)(7) 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 to which the civil remedies provisions pertain.
    (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: August 16, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-17977 Filed 8-22-22; 8:45 am]
BILLING CODE 5001-06-P