31 October 2001
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: October 31, 2001 (Volume 66, Number 211)]
[Rules and Regulations]
[Page 54925-54928]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc01-8]

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DEPARTMENT OF DEFENSE

32 CFR Part 326


National Reconnaissance Office; NRO Privacy Act Program

AGENCY: National Reconnaissance Office, DOD.

ACTION: Final rule.

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SUMMARY: The National Reconnaissance Office (NRO) is exempting two
Privacy Act systems of records. The systems of records are QNRO-10,
Inspector General Investigative Records and QNRO-15, Facility Security
Files. The exemptions are intended to increase the value of the system
of records for law enforcement purposes, to comply with prohibitions
against the disclosure of certain kinds of information, and to protect
the privacy of individuals identified in the systems of records.

EFFECTIVE DATE: October 16, 2001.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Freimann at (703) 808-
5029.

SUPPLEMENTARY INFORMATION: The proposed rules were previously published
on August 17, 2001, at 66 FR 43138. No comments were received;
therefore, the National Reconnaissance Office is adopting the rules as
final.

Executive Order 12866, ``Regulatory Planning and Review''

    The Director of Administration and Management, Office of the
Secretary of Defense, hereby determines that Privacy Act rules for the
Department of Defense are not significant rules. The rules do

[[Page 54926]]

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 this Executive
order.

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

    The Director of Administration and Management, Office of the
Secretary of Defense, hereby certifies that Privacy Act rules for the
Department of Defense do not have significant economic impact on a
substantial number of small entities because they are concerned only
with the administration of Privacy Act systems of records within the
Department of Defense.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)

    The Director of Administration and Management, Office of the
Secretary of Defense, hereby certifies that Privacy Act rules for the
Department of Defense impose 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''

    The Director of Administration and Management, Office of the
Secretary of Defense, hereby certifies that the Privacy Act rulemaking
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 such rulemaking will not significantly or uniquely affect small
governments.

Executive Order 13132, ``Federalism''

    The Director of Administration and Management, Office of the
Secretary of Defense, hereby certifies that the Privacy Act rules for
the Department of Defense do not have federalism implications. The
rules do 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.

List of Subjects in 32 CFR part 326

    Privacy.
    32 CFR part 326 is amended as follows:

PART 326--[AMENDED]

    1. The authority citation for 32 CFR part 326 continues to read as
follows:

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
    2. Section 326.17 is amended by adding paragraphs (f) and (g) to
read as follows:

Sec. 326.17  Exemptions.

* * * * *
    (f) QNRO-10, Inspector General Investigative Files--(1) Exemption:
This system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the
information is compiled and maintained by a component of the agency
which performs as its principle function any activity pertaining to the
enforcement of criminal laws. Any portion of this system which falls
within the provisions of 5 U.S.C. 552a(j)(2) may be exempt from the
following subsections of 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), (f), and (g).

(2) Authority: 5 U.S.C. 552a(j)(2)

(3) Reasons

    (i) From subsection (c)(3) because the release of accounting of
disclosure would inform a subject that he or she is under
investigation. This information would provide considerable advantage to
the subject in providing him or her with knowledge concerning the
nature of the investigation and the coordinated investigative efforts
and techniques employed by the cooperating agencies. This would greatly
impede the NRO IG's criminal law enforcement.
    (ii) From subsection (c)(4) and (d), because notification would
alert a subject to the fact that an open investigation on that
individual is taking place, and might weaken the on-going
investigation, reveal investigative techniques, and place confidential
informants in jeopardy.
    (iii) From subsection (e)(1) because the nature of the criminal
and/or civil investigative function creates unique problems in
prescribing a specific parameter in a particular case with respect to
what information is relevant or necessary. Also, due to NRO IG's close
liaison and working relationships with other Federal, state, local and
foreign country law enforcement agencies, information may be received
which may relate to a case under the investigative jurisdiction of
another agency. The maintenance of this information may be necessary to
provide leads for appropriate law enforcement purposes and to establish
patterns of activity, which may relate to the jurisdiction of other
cooperating agencies.
    (iv) From subsection (e)(2) because collecting information to the
fullest extent possible directly from the subject individual may or may
not be practical in a criminal and/or civil investigation.
    (v) From subsection (e)(3) because supplying an individual with a
form containing a Privacy Act Statement would tend to inhibit
cooperation by many individuals involved in a criminal and/or civil
investigation. The effect would be somewhat adverse to established
investigative methods and techniques.
    (vi) From subsection (e)(4) (G) through (I) because this system of
records is exempt from the access provisions of subsection (d).
    (vii) From subsection (e)(5) because the requirement that records
be maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the investigative process. It is the
nature of law enforcement for investigations to uncover the commission
of illegal acts at diverse stages. 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 significance as further
investigation brings new details to light. (viii) From subsection
(e)(8) because the notice requirements of this provision could present
a serious impediment to law enforcement by revealing investigative
techniques, procedures, and existence of confidential investigations.
    (ix) From subsection (f) because the agency's rules are
inapplicable to those portions of the system that are exempt and would
place the burden on the agency of either confirming or denying the
existence of a record pertaining to a requesting individual might in
itself provide an answer to that individual relating to an on-going
investigation. The conduct of a successful investigation leading to the
indictment of a criminal offender precludes the applicability of
established agency rules relating to verification of record, disclosure
of the record to that individual, and record amendment procedures for
this record system.

[[Page 54927]]

    (x) From subsection (g) because this system of records should be
exempt to the extent that the civil remedies relate to provisions of 5
U.S.C. 552a from which this rule exempts the system.

(4) Exemptions

    (i) Investigative material compiled for law enforcement purposes,
other than material within the scope of subsection (j)(2), may be
exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is
denied any right, privilege, or benefit for which he would otherwise be
entitled by Federal law or for which he would otherwise be eligible, as
a result of the maintenance of such information, the individual will be
provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
    (ii) Investigative material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source.
    (iii) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and
(I), and (f).

(5) Authority

    5 U.S.C. 552a(k)(2) and (k)(5).

(6) Reasons

    (i) From subsection (c)(3) because to grant access to the
accounting for each disclosure as required by the Privacy Act,
including the date, nature, and purpose of each disclosure and the
identity of the recipient, could alert the subject to the existence of
the investigation or prosecutable interest by the NRO or other
agencies. This could seriously compromise case preparation by
prematurely revealing its existence and nature; compromise or interfere
with witnesses or make witnesses reluctant to cooperate; and lead to
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d) and (f) because providing access to
investigative records and the right to contest the contents of those
records and force changes to be made to the information contained
therein would seriously interfere with and thwart the orderly and
unbiased conduct of the investigation and impede case preparation.
Providing access rights normally afforded under the Privacy Act would
provide the subject with valuable information that would allow
interference with or compromise of witnesses or render witnesses
reluctant to cooperate; lead to suppression, alteration, or destruction
of evidence; enable individuals to conceal their wrongdoing or mislead
the course of the investigation; and result in the secreting of or
other disposition of assets that would make them difficult or
impossible to reach in order to satisfy any Government claim growing
out of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of each piece of information in the
early stages of an investigation. In some cases, it is only after the
information is evaluated in light of other evidence that its relevance
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of
records is compiled for investigative purposes and is exempt from the
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because 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 privacy and
physical safety of witnesses and informants. NRO will, nevertheless,
continue to publish such a notice in broad generic terms as is its
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of
1974, the NRO will grant access to nonexempt material in the records
being maintained. Disclosure will be governed by NRO's Privacy
Regulation, but will be limited to the extent that the identity of
confidential sources will not be compromised; subjects of an
investigation of an actual or potential criminal or civil violation
will not be alerted to the investigation; the physical safety of
witnesses, informants and law enforcement personnel will not be
endangered, the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of the above nature will be deleted from
the requested documents and the balance made available. The controlling
principle behind this limited access is to allow disclosures except
those indicated above. The decisions to release information from these
systems will be made on a case-by-case basis.
    (g) QNRO-15, Facility Security Files.

(1) Exemptions

    (i) Investigative material compiled for law enforcement purposes
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he
would otherwise be entitled by Federal law or for which he would
otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
    (ii) Investigative material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source.
    (iii) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and
(I), and (f).

(2) Authority

    5 U.S.C. 552a(k)(2) and (k)(5).

(3) Reasons

    (i) From subsection (c)(3) because to grant access to the
accounting for each disclosure as required by the Privacy Act,
including the date, nature, and purpose of each disclosure and the
identity of the recipient, could alert the subject to the existence of
the investigation or prosecutable interest by the NRO or other
agencies. This could seriously compromise case preparation by
prematurely revealing its existence and nature; compromise or interfere
with witnesses or make witnesses reluctant to cooperate; and lead to
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because
providing access to investigative records and the right to contest the
contents of those records and force changes to be made to the
information contained therein would seriously interfere with and thwart
the orderly and unbiased conduct of the investigation and impede case
preparation. Providing access rights normally afforded under the
Privacy Act would provide the subject with valuable information that
would allow interference with or compromise of witnesses or render
witnesses reluctant to cooperate; lead to suppression, alteration, or
destruction of evidence;

[[Page 54928]]

enable individuals to conceal their wrongdoing or mislead the course of
the investigation; and result in the secreting of or other disposition
of assets that would make them difficult or impossible to reach in
order to satisfy any Government claim growing out of the investigation
or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of each piece of information in the
early stages of an investigation. In some cases, it is only after the
information is evaluated in light of other evidence that its relevance
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of
records is compiled for investigative purposes and is exempt from the
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because 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 privacy and
physical safety of witnesses and informants. NRO will, nevertheless,
continue to publish such a notice in broad generic terms as is its
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of
1974, the NRO will grant access to nonexempt material in the records
being maintained. Disclosure will be governed by NRO's Privacy
Regulation, but will be limited to the extent that the identity of
confidential sources will not be compromised; subjects of an
investigation of an actual or potential criminal or civil violation
will not be alerted to the investigation; the physical safety of
witnesses, informants and law enforcement personnel will not be
endangered; the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of the above nature will be deleted from
the requested documents and the balance made available. The controlling
principle behind this limited access is to allow disclosures except
those indicated above. The decisions to release information from these
systems will be made on a case-by-case basis.

    Dated: October 19, 2001.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 01-27185 Filed 10-30-01; 8:45 am]
BILLING CODE 5001-08-P