Privacy Act of 1974; Implementation, 42776-42777 [E9-20364]

Agencies

• Department of Justice

[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Rules and Regulations]
[Pages 42776-42777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20364]



[[Page 42776]]

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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 003-2009]


Privacy Act of 1974; Implementation

AGENCY: Criminal Division, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Criminal Division (CRM), Department of Justice, issued a 
proposed rule to amend its Privacy Act regulations (Title 28 of the 
Code of Federal Regulations, Part 16), to revise the exemptions for the 
following newly modified Privacy Act system of records entitled 
``Organized Crime Drug Enforcement Task Force Fusion Center and 
International Organized Crime Intelligence and Operations Center 
System,'' JUSTICE/CRM-028, 74 FR 26598 (June 3, 2009). The ``Organized 
Crime Drug Enforcement Task Force Fusion Center and International 
Organized Crime Intelligence and Operations Center System,'' JUSTICE/
CRM-028, is exempt 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 matters of law enforcement, and the 
exemptions are necessary to avoid interference with law enforcement 
responsibilities and to protect the privacy of third parties.

DATES:  Effective Date: August 25, 2009.

FOR FURTHER INFORMATION CONTACT: Rena Y. Kim, Chief FOIA/PA Unit 
Criminal Division, Department of Justice, Suite 1127, Keeney Building, 
Washington, DC 20530-0001 on (202) 616-0370.

SUPPLEMENTARY INFORMATION: The notice of the proposed rule with 
invitation to comment was published on June 3, 2009, at 74 FR 26598. No 
comments were received. The Department of Justice is exempting JUSTICE/
CRM-028 from 5 U.S.C. 552a (c)(3), and (4); (d)(1), (2), (3), and (4); 
(e)(1), (2), (3), (4)(G), (H), and (I), (e)(5) and (e)(8); (f) and (g).
    This order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, this order will not have a 
significant economic impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
Information, Sunshine Act and Privacy.


0
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 
552a and delegated to me by Attorney General Order No. 2940-2008, this 
rule amends 28 CFR part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b (g), and 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717 and 9701.


0
2. Section 16.91 is amended by revising paragraphs (u) and (v) to read 
as follows:


Sec.  16.91  Exemption of Criminal Division Systems--limited access, as 
indicated.

* * * * *
    (u) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) and/or (k) from subsections (c)(3) and 
(4); (d)(1), (d)(2), (d)(3) and (d)(4); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (H) and (I), (e)(5) and (e)(8); (f), and (g) of 5 U.S.C. 
552a: Organized Crime Drug Enforcement Task Force Fusion Center and 
International Organized Crime Intelligence and Operations Center System 
(JUSTICE/CRM-028). 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/or (k).
    (v) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because to provide the subject with an 
accounting of disclosures of records in this system could inform that 
individual of the existence, nature, or scope of an actual or potential 
law enforcement or counterintelligence investigation by the Organized 
Crime Drug Enforcement Task Force Fusion Center, the International 
Organized Crime Intelligence and Operations Center, or the recipient 
agency, and could permit that individual to take measures to avoid 
detection or apprehension, to learn the identity of witnesses and 
informants, or to destroy evidence, and would therefore present a 
serious impediment to law enforcement or counterintelligence efforts. 
In addition, disclosure of the accounting would amount to notice to the 
individual of the existence of a record. Moreover, release of an 
accounting may reveal information that is properly classified pursuant 
to Executive Order and could compromise the national defense or foreign 
policy.
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed from subsections 
(d)(1), (2), (3), and (4).
    (3) From subsection (d)(1) because disclosure of records in the 
system could alert the subject of an actual or potential criminal, 
civil, or regulatory investigation of the existence of that 
investigation, of the nature and scope of the information and evidence 
obtained as to his activities, of the identity of confidential 
witnesses and informants, of the investigative interest of the 
Organized Crime Drug Enforcement Task Force Fusion Center, 
International Organized Crime Intelligence and Operations Center, and 
other intelligence or law enforcement agencies (including those 
responsible for civil proceedings related to laws against drug 
trafficking or related financial crimes or international organized 
crime); lead to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; 
reveal the details of a sensitive investigative or intelligence 
technique, or the identity of a confidential source; or otherwise 
impede, compromise, or interfere with investigative efforts and other 
related law enforcement and/or intelligence activities. In addition, 
disclosure could invade the privacy of third parties and/or endanger 
the life, health, and physical safety of law enforcement personnel, 
confidential informants, witnesses, and potential crime victims. Access 
to records could also result in the release of information properly 
classified pursuant to Executive Order, thereby compromising the 
national defense or foreign policy.
    (4) From subsection (d)(2) because amendment of the records thought 
to be incorrect, irrelevant, or untimely would also interfere with 
ongoing investigations, criminal or civil law enforcement proceedings, 
and other law enforcement activities and impose an impossible 
administrative burden by requiring investigations, analyses, and 
reports to be continuously reinvestigated and revised, as well as 
impact information properly classified pursuant to Executive Order.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (6) From subsection (e)(1) because, in the course of its 
acquisition, collation, and analysis of information under the statutory 
authority granted to them, both the Organized Crime Drug Enforcement 
Task Force Fusion Center and International Organized Crime Intelligence 
and Operations Center will occasionally obtain information, including 
information properly classified pursuant to Executive Order, that 
concern actual or potential

[[Page 42777]]

violations of law that are not strictly within its statutory or other 
authority or may compile information in the course of an investigation 
which may not be relevant to a specific prosecution. It is impossible 
to determine in advance what information collected during an 
investigation will be important or crucial to the apprehension of 
fugitives. In the interests of effective law enforcement, it is 
necessary to retain such information in this system of records because 
it can aid in establishing patterns of criminal activity and can 
provide valuable leads for federal and other law enforcement agencies. 
This consideration applies equally to information acquired from, or 
collated or analyzed for, both law enforcement agencies and agencies of 
the U.S. foreign intelligence community and military community.
    (7) From subsection (e)(2) because in a criminal, civil, or 
regulatory investigation, prosecution, or proceeding, the requirement 
that information be collected to the greatest extent practicable from 
the subject individual would present a serious impediment to law 
enforcement because the subject of the investigation, prosecution, or 
proceeding would be placed on notice as to the existence and nature of 
the investigation, prosecution, and proceeding and would therefore be 
able to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony. Moreover, 
thorough and effective investigation and prosecution may require 
seeking information from a number of different sources.
    (8) From subsection (e)(3) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants and endanger their lives, health, 
and physical safety. The individual could seriously interfere with 
undercover investigative techniques and could take appropriate steps to 
evade the investigation or flee a specific area.
    (9) From subsections (e)(4)(G), (H) and (I) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (10) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes from various 
agencies does not permit a determination in advance or a prediction of 
what information will be matched with other information and thus 
whether it is accurate, relevant, timely and complete. 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 often only be determined in a 
court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators, intelligence analysts, 
and government attorneys to exercise their judgment in collating and 
analyzing information and would impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (11) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement by revealing investigative techniques, procedures, 
evidence, or interest and interfering with the ability to issue 
warrants or subpoenas, and could give persons sufficient warning to 
evade investigative efforts.
    (12) From subsections (f) and (g) because these subsections are 
inapplicable to the extent that the system is exempt from other 
specific subsections of the Privacy Act.

    Dated: August 18, 2009.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer.
[FR Doc. E9-20364 Filed 8-24-09; 8:45 am]
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