[Federal Register Volume 77, Number 195 (Tuesday, October 9, 2012)]
[Rules and Regulations]
[Pages 61275-61276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24753]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 014-2012]
Privacy Act of 1974: Implementation
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (DOJ or Department) is issuing a
final rule for the new Federal Bureau of Investigation (FBI) Privacy
Act system of records titled FBI Data Warehouse System, JUSTICE/FBI-
022. This system is being exempted from the subsections of the Privacy
Act listed below for the reasons set forth in the following text.
Information in this system of records relates to law enforcement
matters, and the exemptions are necessary to avoid interference with
the national security and criminal law enforcement functions and
responsibilities of the FBI.
DATES: Effective Date: October 9, 2012.
FOR FURTHER INFORMATION CONTACT: Kristin Meinhardt, Assistant General
Counsel, Privacy and Civil Liberties Unit, Office of the General
Counsel, FBI, Washington, DC 20535-0001, telephone 202-324-3000.
SUPPLEMENTARY INFORMATION: Notice of the proposed rule with invitation
to comment was published on July 10, 2012, at 77 FR 40539. The
Department received one comment from a member of the public questioning
the legality and appropriateness of the proposed exemptions. The
Department has carefully considered the comment but has declined to
adopt it because these exemptions are expressly authorized by the
Privacy Act and are appropriate and justified for the reasons set forth
in the rule.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
Information, Privacy, Sunshine Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 28
CFR part 16 is amended as follows:
PART 16--[AMENDED]
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
Subpart E--Exemption of Records Systems Under the Privacy Act
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2. Amend Sec. 16.96 to revise paragraphs (v) and (w) to read as
follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--
limited access.
* * * * *
(v) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4);
[[Page 61276]]
(d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), and (I), (5),
and (8); (f); and (g) of the Privacy Act:
(1) FBI Data Warehouse System, (JUSTICE/FBI-022).
(2) These exemptions apply only to the extent that information in
this system is subject to exemption pursuant to 5 U.S.C. 552a(j) and
(k). Where compliance with an exempted provision could not appear to
interfere with or adversely affect interests of the United States or
other system stakeholders, the Department of Justice (DOJ) in its sole
discretion may waive an exemption in whole or in part; exercise of this
discretionary waiver prerogative in a particular matter shall not
create any entitlement to or expectation of waiver in that matter or
any other matter. As a condition of discretionary waiver, the DOJ in
its sole discretion may impose any restrictions deemed advisable by the
DOJ (including, but not limited to, restrictions on the location,
manner, or scope of notice, access, or amendment).
(w) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because this system is
exempt from the access provisions of subsection (d). Also, because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any law
enforcement or national security investigative interest in the
individual by the FBI or agencies that are recipients of the
disclosures. Revealing this information could compromise ongoing,
authorized law enforcement and intelligence efforts, particularly
efforts to identify and defuse any potential acts of terrorism or other
potential violations of criminal law. Revealing this information could
also permit the record subject to obtain valuable insight concerning
the information obtained during any investigation and to take measures
to circumvent the investigation.
(2) From subsection (c)(4) notification requirements because this
system is exempt from the access and amendment provisions of subsection
(d) as well as the accounting of disclosures provision of subsection
(c)(3).
(3) From subsections (d)(1), (2), (3), and (4) and (e)(4)(G) and
(H) because these provisions concern individual access to and amendment
of law enforcement, intelligence and counterintelligence, and
counterterrorism records, and compliance could alert the subject of an
authorized law enforcement or intelligence activity about that
particular activity and the investigative interest of the FBI or other
law enforcement or intelligence agencies. Providing access could
compromise sensitive information classified to protect national
security; disclose information that would constitute an unwarranted
invasion of another's personal privacy; reveal a sensitive
investigative or intelligence technique; could provide information that
would allow a subject to avoid detection or apprehension; or constitute
a potential danger to the health or safety of law enforcement
personnel, confidential sources, and witnesses. The FBI takes seriously
its obligation to maintain accurate records despite its assertion of
this exemption, and to the extent it, in its sole discretion, agrees to
permit amendment or correction of FBI records, it will share that
information in appropriate cases with subjects of the information.
(4) From subsection (e)(1) because it is not always possible to
know in advance what information is relevant and necessary for law
enforcement and intelligence purposes. The relevance and utility of
certain information that may have a nexus to terrorism or other crimes
may not always be evident until and unless it is vetted and matched
with other sources of information that are necessarily and lawfully
maintained by the FBI.
(5) From subsections (e)(2) and (3) because application of these
provisions could present a serious impediment to efforts to solve
crimes and improve national security. Application of these provisions
would put the subject of an investigation on notice of that fact and
allow the subject an opportunity to engage in conduct intended to
impede that activity or avoid apprehension.
(6) From subsection (e)(4)(I), to the extent that this subsection
is interpreted to require more detail regarding the record sources in
this system than has been published in the Federal Register. Should the
subsection be so interpreted, exemption from this provision is
necessary to protect the sources of law enforcement and intelligence
information and to protect the privacy and safety of witnesses and
informants and others who provide information to the FBI. Further,
greater specificity of properly classified records could compromise
national security.
(7) From subsection (e)(5) because in the collection of information
for authorized law enforcement and intelligence purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely and complete. With time, seemingly irrelevant or
untimely information may acquire new significance when new details are
brought to light. Additionally, the information may aid in establishing
patterns of activity and providing criminal or intelligence leads. It
could impede investigative progress if it were necessary to assure
relevance, accuracy, timeliness and completeness of all information
obtained during the scope of an investigation. Further, some of the
records in this system come from other agencies and it would be
administratively impossible for the FBI to vouch for the compliance of
these agencies with this provision.
(8) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on the FBI and may alert the subjects
of law enforcement investigations, who might be otherwise unaware, to
the fact of those investigations.
(9) From subsections (f) and (g) to the extent that the system is
exempt from other specific subsections of the Privacy Act.
Dated: September 27, 2012.
Joo Y. Chung,
Acting Chief Privacy and Civil Liberties Officer.
[FR Doc. 2012-24753 Filed 10-5-12; 8:45 am]
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