[Federal Register Volume 77, Number 195 (Tuesday, October 9, 2012)]
[Rules and Regulations]
[Pages 61275-61276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24753]



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.


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:


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

2. Amend Sec.  16.96 to revise paragraphs (v) and (w) to read as 

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 
    (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]