80 FR 58609 - Privacy Act; Implementation

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 189 (September 30, 2015)

The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 06, entitled ``Internal Affairs Records System,'' pertaining to open or closed investigatory material compiled for law enforcement purposes (under (j)(2) of the Act) to enable OSD to conduct certain internal affairs investigations, relay law enforcement information without compromise of the information, protect investigative techniques and efforts employed, as well as open or closed investigatory material compiled for law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential informants who might not otherwise come forward and who furnished information under an express promise that the informant's identity would be held in confidence. This exemption rule will allow the Pentagon Force Protection Agency to ensure the integrity of the Internal Affairs investigative process, including certain reciprocal investigations, by preventing the subject of the record from using the Privacy Act to learn of the existence of open investigations, thereby compromising investigative techniques, or open and closed investigations which place confidential informants in jeopardy who furnished information under an express promise that the informant's identity would be held in confidence. Further, requiring the Pentagon Force Protection Agency to grant access to records and amend these records would unfairly impede the investigation. To confirm or deny the existence of a record pertaining to an open investigation a requesting individual may in itself provide an answer to that individual. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.

[Federal Register Volume 80, Number 189 (Wednesday, September 30, 2015)]
[Rules and Regulations]
[Pages 58609-58610]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24631]



[[Page 58609]]

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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2015-OS-0071]

32 CFR Part 311


Privacy Act; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Direct final rule with request for comments.

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SUMMARY: The Office of the Secretary of Defense (OSD) is exempting 
those records contained in DPFPA 06, entitled ``Internal Affairs 
Records System,'' pertaining to open or closed investigatory material 
compiled for law enforcement purposes (under (j)(2) of the Act) to 
enable OSD to conduct certain internal affairs investigations, relay 
law enforcement information without compromise of the information, 
protect investigative techniques and efforts employed, as well as open 
or closed investigatory material compiled for law enforcement purposes 
(under (k)(2) of the Act), other than material within the scope of 
subsection (j)(2) of the Privacy Act to enable the protection of 
identities of confidential informants who might not otherwise come 
forward and who furnished information under an express promise that the 
informant's identity would be held in confidence. This exemption rule 
will allow the Pentagon Force Protection Agency to ensure the integrity 
of the Internal Affairs investigative process, including certain 
reciprocal investigations, by preventing the subject of the record from 
using the Privacy Act to learn of the existence of open investigations, 
thereby compromising investigative techniques, or open and closed 
investigations which place confidential informants in jeopardy who 
furnished information under an express promise that the informant's 
identity would be held in confidence. Further, requiring the Pentagon 
Force Protection Agency to grant access to records and amend these 
records would unfairly impede the investigation. To confirm or deny the 
existence of a record pertaining to an open investigation a requesting 
individual may in itself provide an answer to that individual. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.

DATES: The rule is effective on December 9, 2015 unless adverse 
comments are received by November 30, 2015. If adverse comment is 
received, the Department of Defense will publish a timely withdrawal of 
the rule in the Federal Register.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    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 http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Cindy Allard at (571) 372-0461.

SUPPLEMENTARY INFORMATION: This direct final rule makes non-substantive 
changes to the Office of the Secretary Privacy Program rules. These 
changes will allow the Department to add an exemption rule to the 
Office of the Secretary of Defense Privacy Program rules that will 
exempt applicable Department records and/or material from certain 
portions of the Privacy Act.
    This rule is being published as a direct final rule as the 
Department of Defense does not expect to receive any adverse comments, 
and so a proposed rule is unnecessary.

Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct 
final rule because it involves non-substantive changes dealing with 
DoD's management of its Privacy Programs. DoD expects no opposition to 
the changes and no significant adverse comments. However, if DoD 
receives a significant adverse comment, the Department will withdraw 
this direct final rule by publishing a notice in the Federal Register. 
A significant adverse comment is one that explains: (1) Why the direct 
final rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a comment necessitates withdrawal of this direct final rule, DoD will 
consider whether it warrants a substantive response in a notice and 
comment process.

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

    It has been determined that Privacy Act rules for the Department of 
Defense are not significant rules. This rule does not (1) Have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy; a sector of the economy; 
productivity; competition; jobs; the environment; public health or 
safety; or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another Agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs, or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in these Executive orders.

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

    It has been determined that this Privacy Act rule for the 
Department of Defense does not have significant economic impact on a 
substantial number of small entities because it is concerned only with 
the administration of Privacy Act systems of records within the 
Department of Defense. A Regulatory Flexibility Analysis is not 
required.

Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this Privacy Act rule for the 
Department of Defense imposes no information requirements beyond the 
Department of Defense and that the information collected within the 
Department of Defense is necessary and consistent with 5 U.S.C. 552a, 
known as the Privacy Act of 1974.

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

    It has been determined that this Privacy Act rule for the 
Department of Defense 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 this rulemaking will not significantly or uniquely affect small 
governments.

[[Page 58610]]

Executive Order 13132, ``Federalism''

    It has been determined that this Privacy Act rule for the 
Department of Defense 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. Therefore, no Federalism assessment is required.

List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

PART 311--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF 
PRIVACY PROGRAM

0
1. The authority citation for 32 CFR part 311 continues to read as 
follows:

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


0
2. Section 311.8 is amended by adding paragraph (c)(24) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (24) System identifier and name: DPFPA 06, Internal Affairs Records 
System.
    (i) Exemptions: Portions of this system that fall within 5 U.S.C. 
552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 
U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); 
(e)(4)(G) through (I); (e)(5); (f) and (g) of the Act, as applicable.
    (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons:
    (A) From subsections (c)(3) and (4) because making available to a 
record subject the accounting of disclosure of investigations 
concerning him or her would specifically reveal an investigative 
interest in the individual. Revealing this information would reasonably 
be expected to compromise open or closed administrative or civil 
investigation efforts to a known or suspected offender by notifying the 
record subject that he or she is under investigation. This information 
could also permit the record subject to take measures to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses, 
or flee the area to avoid or impede the investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of open or closed investigation records 
contained in this system, including law enforcement and investigatory 
records. Compliance with these provisions would provide the subject of 
an investigation of the fact and nature of the investigation, and/or 
the investigative interest of the Pentagon Force Protection Agency; 
compromise sensitive information related to national security; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential informant or disclose information which would constitute 
an unwarranted invasion of another's personal privacy; reveal a 
sensitive investigative or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of investigative records would interfere with open 
or closed administrative or civil law enforcement investigations and 
analysis activities and impose an excessive administrative burden by 
requiring investigations, analyses, and reports to be continuously 
reinvestigated and revised.
    (C) From subsections (e)(1) through (e)(3) because it is not always 
possible to determine what information is relevant and necessary in 
open or closed investigations.
    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and 
amendment provisions of subsection (d).
    (E) From subsection (e)(5) because the requirement that 
investigative records be maintained with attention to accuracy, 
relevance, timeliness, and completeness would unfairly hamper the 
criminal, administrative, or civil investigative process. It is the 
nature of Internal Affairs investigations to uncover the commission of 
illegal acts and administrative violations. It is frequently impossible 
to determine initially what information is accurate, relevant, timely, 
and least of all complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significant as 
further investigation brings new details to light.
    (F) From subsection (f) because requiring the Agency to grant 
access to records and establishing agency rules for amendment of 
records would compromise the existence of any criminal, civil, or 
administrative enforcement activity. To require the confirmation or 
denial of the existence of a record pertaining to a requesting 
individual may in itself provide an answer to that individual relating 
to the existence of an on-going investigation. The investigation of 
possible unlawful activities would be jeopardized by agency rules 
requiring verification of the record, disclosure of the record to the 
subject, and record amendment procedures.
    (G) From subsection (g) for compatibility with the exemption 
claimed from subsection (f), the civil remedies provisions of 
subsection (g) must be suspended for this record system. Because of the 
nature of criminal, administrative and civil investigations, standards 
of accuracy, relevance, timeliness and completeness cannot apply to 
open or closed investigations in this record system. Information 
gathered in criminal investigations is often fragmentary and leads 
relating to an individual in the context of one investigation may 
instead pertain to a second investigation.

    Dated: July 23, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-24631 Filed 9-29-15; 8:45 am]
 BILLING CODE 5001-06-P