Privacy Act Systems of Records, 57163-57167 [2010-23320]

Download as PDF Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/ AMSv1.0/ams.fetchTemplate Data.do?template=TemplateN&page= MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the 2010–2011 fiscal period begins October 1, 2010, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable tart cherries handled during such fiscal period and the Board incurs expenses on a continuing basis. Further, handlers are aware of this action which was unanimously recommended by the Board at a public meeting. Also, a 60-day comment period was provided for the proposed rule. List of Subjects in 7 CFR Part 930 Marketing agreements, Reporting and recordkeeping requirements, Tart cherries. For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows: PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN 1. The authority citation for 7 CFR part 930 continues to read as follows: ■ Authority: 7 U.S.C. 601–674. 2. Section 930.200 is revised to read as follows: ■ jdjones on DSK8KYBLC1PROD with RULES § 930.200 On and after October 1, 2010, the assessment rate imposed on handlers shall be $0.0075 per pound of tart cherries grown in the production area and utilized in the production of tart cherry products. Included in this rate is $0.005 per pound of cherries to cover the cost of the research and promotion program and $0.0025 per pound of 13:28 Sep 17, 2010 OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Dated: September 13, 2010. David R. Shipman, Acting Administrator, Agricultural Marketing Service. 32 CFR Part 1701 [FR Doc. 2010–23336 Filed 9–17–10; 8:45 am] BILLING CODE 3410–02–P Jkt 220001 Privacy Act Systems of Records Office of the Director of National Intelligence. ACTION: Final rule. AGENCY: The Office of the Director of National Intelligence (ODNI) is issuing a final rule exempting fourteen (14) new systems of records from subsections (c)(3); (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), (H), (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k). The ODNI published a notice and a proposed rule implementing these exemptions on April 2, 2010. The enumerated exemptions will be invoked on a case-by-case basis, as necessary to preclude interference with investigatory, intelligence and counterterrorism functions and responsibilities of the ODNI. This document addresses comments received regarding the proposed rule as applied to the fourteen new systems of records. DATES: This final rule is effective September 20, 2010. FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Director, Information Management, 703–275–2215. SUPPLEMENTARY INFORMATION: SUMMARY: DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [Docket No. TD–9497] RIN 1545–BI97 Guidance Regarding Deferred Discharge of Indebtedness Income of Corporations and Deferred Original Issue Discount Deductions Correction In rule document 2010–20060 beginning on page 49394 in the issue of Friday, August 13, 2010 make the following corrections: 1. On page 49397, in the third column, the heading should read ‘‘2. Exception for Distributions and Charitable Contributions Consistent with Historical Practice —In General’’. 2. On page 49400, in the third column, in the second full paragraph, in line six ‘‘occurring prior to August 11, 2010 by taking a return position consistent with these provisions’’ should read ‘‘occurring prior to August 11, 2010, by taking a return position consistent with these provisions’’. §1.108(i)–0T [Corrected] 3. On page 49402, in the second column, (b)(2)(i), on the fifth line, ‘‘2010 However, an electing corporation ’’ should read ‘‘2010. However, an electing corporation’’. §1.108(i)–1T Assessment rate. VerDate Mar<15>2010 cherries to cover administrative expenses. 57163 [Corrected] 4. On page 49403, in the first column, (b)(2)(B)(iv), in line six ‘‘deemed dividend all the earnings and’’ should read ‘‘deemed dividend the all earnings and’’. [FR Doc. C1–2010–20060 Filed 9–17–10; 8:45 am] BILLING CODE 1505–01–D PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 Background On April 2, 2010, the Office of the Director of National Intelligence (ODNI) published notice of fourteen new Privacy Act systems of records: Manuscript, Presentation and Resume Review Records (ODNI–01), Executive Secretary Action Management System Records (ODNI–02), Public Affairs Office Records (ODNI–03), Office of Legislative Affairs Records (ODNI–04), ODNI Guest Speaker Records (ODNI– 05), Office of General Counsel Records (ODNI–06), Analytic Resources Catalog (ODNI–07), Intelligence Community Customer Registry Records, (ODNI–09), EEO and Diversity Office Records (ODNI–10), Office of Protocol Records (ODNI–11), IC Security Clearance and Access Approval Repository (ODNI–12), Security Clearance Reform Research Records (ODNI–13), Civil Liberties and Privacy Office Complaint Records (ODNI–14), National Intelligence Council Consultation Records (ODNI– 15). These systems of records contain records that range from Unclassified to Top Secret. Accordingly, in conjunction with publication of these systems notices, the ODNI initiated a rulemaking to exempt the systems, in relevant part, from various provisions of the Privacy E:\FR\FM\20SER1.SGM 20SER1 57164 Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations Act (enumerated above), pursuant to exemption authority afforded the head of the agency by subsection (j) of the Privacy Act. The systems notices and proposed exemption rule are published at 75 FR 16853 and 16698. jdjones on DSK8KYBLC1PROD with RULES Public Comments The ODNI received comments on its proposed rule and notice of fourteen systems of records from the Electronic Privacy Information Center (EPIC). EPIC’s concerns and ODNI’s responses are set forth below. The full text of EPIC’s comments are posted at that organization’s Web site, http:// www.EPIC.org. In general, EPIC questions the appropriateness of the ODNI’s proposal on national security grounds to exempt these systems of records from various provisions of the Privacy Act that embody fundamental tenets of information privacy. In light of EPIC’s comments, the ODNI re-examined the systems notices, the nature of the records maintained, and the exemptions proposed. ODNI is sensitive to EPIC’s view that the fourteen new system notices on their face do not obviously implicate intelligence equities, including the counterterrorism mission of one of ODNI’s major components, the National Counterterrorism Center (NCTC). However we conclude that EPIC has not considered the possible inclusion of classified records in these systems, which the exemptions invoked are intended to protect. ODNI has determined that the comments received do not warrant changing the proposed exemptions or systems notices prior to implementation. Read in conjunction with the ODNI’s Exemption Policies, as set forth in section 1701.20 of the ODNI’s Privacy Act Regulations, published at 32 CFR part 1701, the fourteen new systems notices reflect that ODNI seeks to serve, whenever feasible, the dual imperatives of maximizing individual record subjects’ participation in maintenance of the records and of protecting important intelligence equities. Detailed Response EPIC’s comments reflect concern about ODNI’s action to exempt the new systems of records from the accounting, access, amendment, redress and accuracy provisions of the Privacy Act, as well as from the requirements to establish and make public the procedures by which individuals may seek access to records about themselves. EPIC observes that the referenced provisions of the Privacy Act fulfill the important objective of promoting VerDate Mar<15>2010 13:28 Sep 17, 2010 Jkt 220001 accountability, responsibility, oversight and openness with respect to the federal government’s maintenance of personal information. The ODNI also supports fair information principles and, as a matter of published policy, honors these principles to the full extent circumstances permit. ODNI maintains that its proposed rule is consistent with privacy principles for the following reasons: 1. ODNI policy is to apply exemptions narrowly. EPIC’s main concern is that ODNI will rely on the stated exemptions to exempt apparently non-sensitive records on a blanket basis, thus denying record subjects important provisions of the Privacy Act. On initial review, and as confirmed on re-examination, we have determined that these systems of records may contain sensitive records. Therefore, in practice, claiming the exemption is a prophylactic measure enabling the ODNI to protect intelligence equities (e.g., sources, methods, subjects of intelligence interest) when national security considerations dictate. However, record subjects will still be able to obtain access to non-sensitive records. Each published system notice expansively describes notification procedures, record access procedures, contesting record procedures and record source categories. In addition, each systems notice references the ODNI Privacy Act Regulation, which also fully describes these procedures. 32 CFR Part 1701. Published ODNI policy on exercising exemptions provides that an asserted exemption applies only to records that meet the exemption criteria, and that, even then, discretion is retained to supersede the exemption where complying with a request for access would not interfere with or adversely affect a counterterrorism or law enforcement interest, or otherwise violate applicable law.1 The ODNI Office of Information Management (IM) conducts access/ disclosure reviews under the Privacy Act and the Freedom of Information Act, as well as pre-publication review pursuant to IC elements’ secrecy 1 See § 1701.20 of ODNI’s Privacy Act Regulation (32 CFR). Additionally, in its Notice to Establish Systems of Records (75 FR 16853, April 2, 2010), ODNI indicated in the Supplementary Information section of the Notice that it would apply the exemption only as specifically necessary, and not as a blanket exclusion: ‘‘To protect classified and sensitive personnel or law enforcement information contained in these systems, the Director of National Intelligence is proposing to exempt these systems of records from certain portions of the Privacy Act where necessary, as permitted by law.’’ PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 agreements. IM personnel are trained classification specialists who conduct detailed reviews to ensure record subject/requester access to information in accordance with this policy and fair information principles, to include an accounting of disclosures under subsection (c)(3). The systems notices, read in conjunction with the Privacy Act regulation, show that ODNI intends to provide record subjects access to records about them to the extent feasible on a case-by-case basis, and not to rely on a blanket assertion of an exemption to preclude access. 2. Material may be classified for national security reasons pursuant to Executive Order. As noted, the fourteen new system notices potentially include records specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy or that are in fact properly classified pursuant to such Executive order. Such records are exempt from the operation of Section 552 of Title 5 of the United States Code, see 5 U.S.C. 552(b)(1), and subsection (k)(1) of the Privacy Act specifically contemplates exemption under this circumstance. EPIC cites the Public Affairs Office Records, the Executive Secretary Action Management System Records and the Civil Liberties and Privacy Office Complaint Records as examples of ODNI’s excessive use of exemption authority. Our review has determined that each of these systems of records, as well as the other eleven, could contain classified records retrieved by a record subject’s name or unique identifier. The exemption permits ODNI to protect access to the classified material and thereby prevent compromise of sensitive national security-related information. ODNI policy would be to provide the record subject access to the entirety of non-classified records (subject to the ‘‘mosaic’’ analysis),2 as well as to portions of classified records that, upon line-by-line review, have been determined not to implicate national security interests. 3. No per se exclusion from redress. EPIC comments that ODNI inappropriately seeks to bar record subjects from challenging denial of an access request. The Privacy Act, subsection (g)(1)(B), does not permit agencies to exempt themselves from access challenges; ODNI agrees that 2 Non-classified data points that, taken together, create a mosaic disclosing a matter properly classifiable under an Executive Order would be withheld from access. E:\FR\FM\20SER1.SGM 20SER1 jdjones on DSK8KYBLC1PROD with RULES Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations precluding individuals from challenging the basis of a denial to a request for access to information would violate information fairness principles. Subsection (g)(3)(A) of the Privacy Act provides for de novo review of such denial, including in camera examination of records to ensure consistency with the claimed basis for exemption from access, i.e., that the records reflect a national security interest subject to classification under Executive order, or that access would disclose to the subject the identity of a confidential source of information in the record (judgments contemplated by subsections (k)(1), (2) and (5) of the Act). ODNI does not seek to deny record subjects the basic right to challenge access determinations. However, EPIC’s position that ODNI should afford redress for all amendment denials demands the impractical result of requiring the agency to permit ‘‘correction’’ of records to which it properly has denied the subject access based on expert judgments regarding national security or witness/source identification. This practice would afford individuals ‘‘back-door’’ access to records via amendment challenges. Accordingly, ODNI will narrowly construe the proposed exemption from redress to apply only to denials to amend exempt records (i.e., records that are classified, or determined to be not disclosable under other provisions of subsection (k)). 4. ODNI does not use these systems of records for decision-making about record subjects. EPIC articulates a concern that subjects’ inability to access and amend exempt records undermines the fundamental principle (under subsection (e)(5) of the Privacy Act) that records used in making agency determinations about record subjects must be sufficiently accurate, relevant, timely and complete to ensure fairness to the individual. ODNI does not in fact propose to exempt its fourteen new SORNs from the (e)(5) requirement. Indeed, subsection (k) of the Privacy Act does not permit exemption from subsection (e)(5).3 Additionally, records maintained in these systems are not used in personalized agency determinations of the kind for which access and amendment rights are intended to ensure data accuracy and relevance. With the possible exception of the Civil Liberties and Privacy Office Complaint Records, the Equal Employment Opportunity and Diversity Office Records and the Office of General Counsel records, the recently published notices reflect agency internal administrative functions, but not activities ‘‘affecting the rights, benefits, entitlements or opportunities (including employment) of the individual).’’ 4 By and large, the systems at issue permit the agency to track communications and external relations using the record subjects’ name as an easy ‘‘handle.’’ They are record-keeping files, not decision-making files. Where claims are involved (civil liberties/privacy, disability accommodations, or actions against the agency), it is the record subject who determines what facts to report in the first instance, obviating his/her need for a check on accuracy. Nonetheless, the claimant/litigant would receive all official administrative or court filings, and obtain access to other non-exempt records in the pertinent system. 5. ‘‘Necessary and relevant’’ is a fluid standard, properly subject to exemption. The provision from which ODNI does seek exemption is (e)(1): ‘‘Maintain [in agency] records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.’’ The purposes which these systems serve are authorized by the National Security Act of 1947 as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, and generally reflect routine agency functions. Because of the transactional nature of most of these systems, relevance is a function of happenstance, i.e., whatever communication is received or transmitted, and can not be determined once and for all time. The information collected will not likely be the same for every individual who is the subject of a record in the system. With respect to claims requiring investigation (e.g., Civil Liberties/Privacy complaints) relevance often can not be determined until all materials have been collected and analyzed. Moreover, because these systems of records generally are housekeeping-type files, and not likely to be disclosed outside the agency or serve for decision-making purposes, the importance of ‘‘relevance’’ as a data quality criterion is diminished. 6. Exemptions do not curtail subjects’ access to complaint status or disposition. 3 Subsection (k) states that the head of any agency may promulgate rules to exempt any system of records with the agency from subsection (c)(3). (d). (e)(1), (e)(4)(G)(H), and (I) and (f) of that section. 4 Office of Management and Budget, Privacy Act Implementation, Guidelines and Responsibilities, Standards of Accuracy, Subsection (e)(5), 40 FR 28948, 28964 (July 9, 1975). VerDate Mar<15>2010 13:28 Sep 17, 2010 Jkt 220001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 57165 EPIC is especially troubled by ODNI’s proposal to exempt the Civil Liberties and Privacy Office Complaint Records (alleging violations of civil liberties or privacy arising from an ODNI or IC program or activity), and argues that: [A]n individual who submitted a complaint would not be able to view any records pertaining to his complaint, such as records of review, investigation, or acknowledgement or disposition of allegations received. A complainant would be left without any means to inquire about the status of his complaint or to help facilitate the resolution of his complaint. EPIC posits that, by virtue merely of their being maintained in the exempt system, all records would be shielded from the subject’s access, including the agency’s acknowledgment of receipt of the complaint and any disposition of the complaint. However, complainants routinely receive acknowledgement of receipt of their complaints, a copy of which is maintained as part of the complainants’ official records in the noticed Privacy Act system of records. Similarly, complainants receive notice of resolution or disposition of their cases, with as much specificity as is feasible under the circumstances. The Civil Liberties and Privacy Office articulates in writing why the allegation is, or is not, sustained by the facts as presented by the complainant and as investigated by the agency, and what the ODNI’s follow-on action may be (for example, remedying a flaw or gap in agency process that the complaint has brought to light). The written disposition is also maintained as part of the official record in the noticed Privacy Act system of records. ODNI would provide access to these acknowledgement and disposition records at the complainant’s request. The complainant would obtain access to other portions of the complaint file as well, to the extent they do not implicate national security interests, and do not reveal the identity of individuals providing statements or information to the investigation pursuant to assurances of confidentiality. ODNI believes that current policies address EPIC’s concern that ‘‘the complainant is left without any means to inquire about the status of his complaint.’’ Complainants may at any time amend their statements, provide additional facts or seek explanation about the operative law, regulation or policy allegedly violated. Indeed, the exemption framework does not preclude a complainant from inquiring about, or learning of, the status of his complaint. Nor does it preclude the ODNI from seeking additional input from claimants. E:\FR\FM\20SER1.SGM 20SER1 57166 Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations Final Rule: Implementation of Exemption Rule and Systems Notices After consideration of the public comments, the ODNI has determined to issue the proposed exemption rule in final form and to implement the fourteen new systems of records without change. The exemptions proposed for the fourteen noticed systems of records are necessary and appropriate to protect intelligence equities undergirding ODNI’s mission and functions and narrowly applied, they do so consistent with privacy principles. By restrictively construing the exemptions to apply only to records that satisfy thresholds articulated in subsection (k), ODNI achieves the goal of balancing intelligence-related equities with fair information principles and values. recipients thereof; or raise legal or policy issues arising out of legal mandates, the President’s priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required. Regulatory Flexibility Act This rule affects only the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking does not impact small entities and that analysis under the Regulatory flexibility Act, 5 U.S.C. 601–612, is not required. Executive Order 13132, Federalism Small Entity Inquiries The Small Business Regulatory enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration’s web page at http:// www.sba.gov/advo/laws/law-lib.html. jdjones on DSK8KYBLC1PROD with RULES Paperwork Reduction Act The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d)) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this rule and therefore no analysis of burden is required. Executive Order 12866, Regulatory Planning and Review This rule is not a ‘‘significant regulatory action,’’ within the meaning of Executive Order 12866. This rule will not adversely affect the economy or a sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the right and obligations of VerDate Mar<15>2010 13:28 Sep 17, 2010 Jkt 220001 Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local and tribal governments, and the private sector. This rule imposes no Federal mandate on any State, local or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required. Executive Order 13132 requires agencies to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from their rules. ODNI concludes that this rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit state policymaking discretion. This rule has no federalism implications as defined by the Executive Order. Environmental Impact This rulemaking will not have a significant effect on the human environment under the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321–4347. Energy Impact This rulemaking is not a major regulatory action under the provisions of the Energy Policy and Conservation Act (EPCA), Public Law 94–163) as amended, 42 U.S.C. 6362. List of Subjects in 32 CFR Part 1701 Records and Privacy Act. For the reasons set forth above, ODNI amends 32 CFR part 1701 as follows: ■ PART 1701—ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974 1. The authority citation for part 1701 continues to read as follows: ■ Authority: 50 U.S.C. 401–442; 5 U.S.C. 552a. Subpart B—[AMENDED] 2. Add § 1701.24 to subpart B to read as follows: ■ PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 § 1701.24 Exemption of Office of the Director of National Intelligence (ODNI) systems of records. (a) The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1); (e)(4)(G),(H),(I); and (f) of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1), (k)(2) or (k)(5) of the Act as noted in the individual systems notices: (1) Manuscript, Presentation and Resume Review Records (ODNI–01). (2) Executive Secretary Action Management System Records (ODNI– 02). (3) Public Affairs Office Records (ODNI–03). (4) Office of Legislative Affairs Records (ODNI–04). (5) ODNI Guest Speaker Records (ODNI–05). (6) Office of General Counsel Records (ODNI–06). (7) Analytic Resources Catalog (ODNI–07). (8) Intelligence Community Customer Registry (ODNI–09). (9) EEO and Diversity Office Records (ODNI–10). (10) Office of Protocol Records (ODNI–11). (11) IC Security Clearance and Access Approval Repository (ODNI–12). (12) Security Clearance Reform Research Records (ODNI–13). (13) Civil Liberties and Privacy Office Complaint Records (ODNI–14). (14) National Intelligence Council Records (ODNI–15). (b) Exemption of records in theses systems from any or all of the enumerated requirements may be necessary for the following reasons: (1) From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an intelligence or investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information. (2) From subsections (d)(1), (2), (3) and (4) (record subject’s right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption, records in this system may be exempted from access and amendment to the extent necessary to honor promises of E:\FR\FM\20SER1.SGM 20SER1 jdjones on DSK8KYBLC1PROD with RULES Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate’s qualifications and suitability. (3) From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed. (4) From subsections (e)(4)(G) and (H) (publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection (d) provisions regarding access and amendment, and from the subsection (f) requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records. (5) From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records. (6) From subsection (f) (agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection (d) provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record VerDate Mar<15>2010 13:28 Sep 17, 2010 Jkt 220001 pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject’s access request. Dated: September 10, 2010. John F. Kimmons, Lieutenant General, USA, Director of the Intelligence Staff. [FR Doc. 2010–23320 Filed 9–17–10; 8:45 am] BILLING CODE P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2010–0842] RIN 1625–AA00 Safety Zone; CLS Fall Championship Hydroplane Race, Lake Sammamish, WA Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: The Coast Guard is establishing a temporary safety zone on the waters of Lake Sammamish, WA for the Composite Laminate Specialties (CLS) Fall Championship Hydroplane Race. This action is necessary to ensure public safety from the intrinsic dangers associated with high-speed races while ensuring unencumbered access for rescue personnel in the event of an emergency. During the enforcement period, no person or vessel will be allowed to enter the safety zone without the permission of the Captain of the Port or Designated Representative. DATES: This rule is effective from 9 a.m. on October 1, 2010, through 7 p.m. on October 3, 2010. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG–2010– 0842 and are available online by going to http://www.regulations.gov, inserting USCG–2010–0842 in the ‘‘Keyword’’ box, and then clicking ‘‘Search.’’ They are also available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call or e-mail LTJG Ashley M. Wanzer, Sector Puget Sound Waterways SUMMARY: PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 57167 Management Division, Coast Guard; telephone 206–217–6175, e-mail SectorSeattleWWM@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be impracticable since the Hydroplane Races would be over by the time the notice could be published and comments taken. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. In addition to the reasons stated above, this rule is intended to ensure the safety of the event participants, spectators and other waterway users; thus any delay in the rule’s effective date would cause a safety hazard to the public. Basis and Purpose This temporary safety zone is necessary to ensure the safety of participants, vessels and spectators from hazards associated with high-speed hydroplane races. Hydroplane races have the potential to result in serious injuries or fatalities. This rule is intended to restrict vessels, vessel operators, and swimmers from entering the designated hydroplane race area during times of enforcement of this zone. Discussion of Rule Hydroplane races pose significant risks to participants, spectators and the boating public because of the large number of spectators, and vessel congestion occurring in the vicinity of the hydroplane race course. This rule establishes a safety zone on Lake Sammamish, WA encompassed by all waters south to land from a line starting at 47° 33.810′ N. 122° 04.810′ W. then east to 47° 33.810′ N. 122° 03.674′ W. This temporary safety zone is necessary E:\FR\FM\20SER1.SGM 20SER1

Agencies

[Federal Register Volume 75, Number 181 (Monday, September 20, 2010)]
[Rules and Regulations]
[Pages 57163-57167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23320]


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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1701


Privacy Act Systems of Records

AGENCY: Office of the Director of National Intelligence.

ACTION: Final rule.

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SUMMARY: The Office of the Director of National Intelligence (ODNI) is 
issuing a final rule exempting fourteen (14) new systems of records 
from subsections (c)(3); (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), 
(H), (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k). The 
ODNI published a notice and a proposed rule implementing these 
exemptions on April 2, 2010. The enumerated exemptions will be invoked 
on a case-by-case basis, as necessary to preclude interference with 
investigatory, intelligence and counterterrorism functions and 
responsibilities of the ODNI. This document addresses comments received 
regarding the proposed rule as applied to the fourteen new systems of 
records.

DATES: This final rule is effective September 20, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Director, 
Information Management, 703-275-2215.

SUPPLEMENTARY INFORMATION:

Background

    On April 2, 2010, the Office of the Director of National 
Intelligence (ODNI) published notice of fourteen new Privacy Act 
systems of records: Manuscript, Presentation and Resume Review Records 
(ODNI-01), Executive Secretary Action Management System Records (ODNI-
02), Public Affairs Office Records (ODNI-03), Office of Legislative 
Affairs Records (ODNI-04), ODNI Guest Speaker Records (ODNI-05), Office 
of General Counsel Records (ODNI-06), Analytic Resources Catalog (ODNI-
07), Intelligence Community Customer Registry Records, (ODNI-09), EEO 
and Diversity Office Records (ODNI-10), Office of Protocol Records 
(ODNI-11), IC Security Clearance and Access Approval Repository (ODNI-
12), Security Clearance Reform Research Records (ODNI-13), Civil 
Liberties and Privacy Office Complaint Records (ODNI-14), National 
Intelligence Council Consultation Records (ODNI-15). These systems of 
records contain records that range from Unclassified to Top Secret. 
Accordingly, in conjunction with publication of these systems notices, 
the ODNI initiated a rulemaking to exempt the systems, in relevant 
part, from various provisions of the Privacy

[[Page 57164]]

Act (enumerated above), pursuant to exemption authority afforded the 
head of the agency by subsection (j) of the Privacy Act. The systems 
notices and proposed exemption rule are published at 75 FR 16853 and 
16698.

Public Comments

    The ODNI received comments on its proposed rule and notice of 
fourteen systems of records from the Electronic Privacy Information 
Center (EPIC). EPIC's concerns and ODNI's responses are set forth 
below. The full text of EPIC's comments are posted at that 
organization's Web site, http://www.EPIC.org. In general, EPIC 
questions the appropriateness of the ODNI's proposal on national 
security grounds to exempt these systems of records from various 
provisions of the Privacy Act that embody fundamental tenets of 
information privacy.
    In light of EPIC's comments, the ODNI re-examined the systems 
notices, the nature of the records maintained, and the exemptions 
proposed. ODNI is sensitive to EPIC's view that the fourteen new system 
notices on their face do not obviously implicate intelligence equities, 
including the counterterrorism mission of one of ODNI's major 
components, the National Counterterrorism Center (NCTC). However we 
conclude that EPIC has not considered the possible inclusion of 
classified records in these systems, which the exemptions invoked are 
intended to protect.
    ODNI has determined that the comments received do not warrant 
changing the proposed exemptions or systems notices prior to 
implementation. Read in conjunction with the ODNI's Exemption Policies, 
as set forth in section 1701.20 of the ODNI's Privacy Act Regulations, 
published at 32 CFR part 1701, the fourteen new systems notices reflect 
that ODNI seeks to serve, whenever feasible, the dual imperatives of 
maximizing individual record subjects' participation in maintenance of 
the records and of protecting important intelligence equities.

Detailed Response

    EPIC's comments reflect concern about ODNI's action to exempt the 
new systems of records from the accounting, access, amendment, redress 
and accuracy provisions of the Privacy Act, as well as from the 
requirements to establish and make public the procedures by which 
individuals may seek access to records about themselves. EPIC observes 
that the referenced provisions of the Privacy Act fulfill the important 
objective of promoting accountability, responsibility, oversight and 
openness with respect to the federal government's maintenance of 
personal information. The ODNI also supports fair information 
principles and, as a matter of published policy, honors these 
principles to the full extent circumstances permit.
    ODNI maintains that its proposed rule is consistent with privacy 
principles for the following reasons:
    1. ODNI policy is to apply exemptions narrowly.
    EPIC's main concern is that ODNI will rely on the stated exemptions 
to exempt apparently non-sensitive records on a blanket basis, thus 
denying record subjects important provisions of the Privacy Act.
    On initial review, and as confirmed on re-examination, we have 
determined that these systems of records may contain sensitive records. 
Therefore, in practice, claiming the exemption is a prophylactic 
measure enabling the ODNI to protect intelligence equities (e.g., 
sources, methods, subjects of intelligence interest) when national 
security considerations dictate. However, record subjects will still be 
able to obtain access to non-sensitive records. Each published system 
notice expansively describes notification procedures, record access 
procedures, contesting record procedures and record source categories. 
In addition, each systems notice references the ODNI Privacy Act 
Regulation, which also fully describes these procedures. 32 CFR Part 
1701.
    Published ODNI policy on exercising exemptions provides that an 
asserted exemption applies only to records that meet the exemption 
criteria, and that, even then, discretion is retained to supersede the 
exemption where complying with a request for access would not interfere 
with or adversely affect a counterterrorism or law enforcement 
interest, or otherwise violate applicable law.\1\
---------------------------------------------------------------------------

    \1\ See Sec.  1701.20 of ODNI's Privacy Act Regulation (32 CFR).
    Additionally, in its Notice to Establish Systems of Records (75 
FR 16853, April 2, 2010), ODNI indicated in the Supplementary 
Information section of the Notice that it would apply the exemption 
only as specifically necessary, and not as a blanket exclusion: ``To 
protect classified and sensitive personnel or law enforcement 
information contained in these systems, the Director of National 
Intelligence is proposing to exempt these systems of records from 
certain portions of the Privacy Act where necessary, as permitted by 
law.''
---------------------------------------------------------------------------

    The ODNI Office of Information Management (IM) conducts access/
disclosure reviews under the Privacy Act and the Freedom of Information 
Act, as well as pre-publication review pursuant to IC elements' secrecy 
agreements. IM personnel are trained classification specialists who 
conduct detailed reviews to ensure record subject/requester access to 
information in accordance with this policy and fair information 
principles, to include an accounting of disclosures under subsection 
(c)(3).
    The systems notices, read in conjunction with the Privacy Act 
regulation, show that ODNI intends to provide record subjects access to 
records about them to the extent feasible on a case-by-case basis, and 
not to rely on a blanket assertion of an exemption to preclude access.
    2. Material may be classified for national security reasons 
pursuant to Executive Order.
    As noted, the fourteen new system notices potentially include 
records specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense 
or foreign policy or that are in fact properly classified pursuant to 
such Executive order. Such records are exempt from the operation of 
Section 552 of Title 5 of the United States Code, see 5 U.S.C. 
552(b)(1), and subsection (k)(1) of the Privacy Act specifically 
contemplates exemption under this circumstance.
    EPIC cites the Public Affairs Office Records, the Executive 
Secretary Action Management System Records and the Civil Liberties and 
Privacy Office Complaint Records as examples of ODNI's excessive use of 
exemption authority. Our review has determined that each of these 
systems of records, as well as the other eleven, could contain 
classified records retrieved by a record subject's name or unique 
identifier.
    The exemption permits ODNI to protect access to the classified 
material and thereby prevent compromise of sensitive national security-
related information. ODNI policy would be to provide the record subject 
access to the entirety of non-classified records (subject to the 
``mosaic'' analysis),\2\ as well as to portions of classified records 
that, upon line-by-line review, have been determined not to implicate 
national security interests.
---------------------------------------------------------------------------

    \2\ Non-classified data points that, taken together, create a 
mosaic disclosing a matter properly classifiable under an Executive 
Order would be withheld from access.
---------------------------------------------------------------------------

    3. No per se exclusion from redress.
    EPIC comments that ODNI inappropriately seeks to bar record 
subjects from challenging denial of an access request. The Privacy Act, 
subsection (g)(1)(B), does not permit agencies to exempt themselves 
from access challenges; ODNI agrees that

[[Page 57165]]

precluding individuals from challenging the basis of a denial to a 
request for access to information would violate information fairness 
principles. Subsection (g)(3)(A) of the Privacy Act provides for de 
novo review of such denial, including in camera examination of records 
to ensure consistency with the claimed basis for exemption from access, 
i.e., that the records reflect a national security interest subject to 
classification under Executive order, or that access would disclose to 
the subject the identity of a confidential source of information in the 
record (judgments contemplated by subsections (k)(1), (2) and (5) of 
the Act). ODNI does not seek to deny record subjects the basic right to 
challenge access determinations.
    However, EPIC's position that ODNI should afford redress for all 
amendment denials demands the impractical result of requiring the 
agency to permit ``correction'' of records to which it properly has 
denied the subject access based on expert judgments regarding national 
security or witness/source identification. This practice would afford 
individuals ``back-door'' access to records via amendment challenges. 
Accordingly, ODNI will narrowly construe the proposed exemption from 
redress to apply only to denials to amend exempt records (i.e., records 
that are classified, or determined to be not disclosable under other 
provisions of subsection (k)).
    4. ODNI does not use these systems of records for decision-making 
about record subjects.
    EPIC articulates a concern that subjects' inability to access and 
amend exempt records undermines the fundamental principle (under 
subsection (e)(5) of the Privacy Act) that records used in making 
agency determinations about record subjects must be sufficiently 
accurate, relevant, timely and complete to ensure fairness to the 
individual.
    ODNI does not in fact propose to exempt its fourteen new SORNs from 
the (e)(5) requirement. Indeed, subsection (k) of the Privacy Act does 
not permit exemption from subsection (e)(5).\3\ Additionally, records 
maintained in these systems are not used in personalized agency 
determinations of the kind for which access and amendment rights are 
intended to ensure data accuracy and relevance. With the possible 
exception of the Civil Liberties and Privacy Office Complaint Records, 
the Equal Employment Opportunity and Diversity Office Records and the 
Office of General Counsel records, the recently published notices 
reflect agency internal administrative functions, but not activities 
``affecting the rights, benefits, entitlements or opportunities 
(including employment) of the individual).'' \4\ By and large, the 
systems at issue permit the agency to track communications and external 
relations using the record subjects' name as an easy ``handle.'' They 
are record-keeping files, not decision-making files. Where claims are 
involved (civil liberties/privacy, disability accommodations, or 
actions against the agency), it is the record subject who determines 
what facts to report in the first instance, obviating his/her need for 
a check on accuracy. Nonetheless, the claimant/litigant would receive 
all official administrative or court filings, and obtain access to 
other non-exempt records in the pertinent system.
---------------------------------------------------------------------------

    \3\ Subsection (k) states that the head of any agency may 
promulgate rules to exempt any system of records with the agency 
from subsection (c)(3). (d). (e)(1), (e)(4)(G)(H), and (I) and (f) 
of that section.
    \4\ Office of Management and Budget, Privacy Act Implementation, 
Guidelines and Responsibilities, Standards of Accuracy, Subsection 
(e)(5), 40 FR 28948, 28964 (July 9, 1975).
---------------------------------------------------------------------------

    5. ``Necessary and relevant'' is a fluid standard, properly subject 
to exemption.
    The provision from which ODNI does seek exemption is (e)(1): 
``Maintain [in agency] records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required to be accomplished by statute or by executive order of 
the President.'' The purposes which these systems serve are authorized 
by the National Security Act of 1947 as amended by the Intelligence 
Reform and Terrorism Prevention Act of 2004, and generally reflect 
routine agency functions. Because of the transactional nature of most 
of these systems, relevance is a function of happenstance, i.e., 
whatever communication is received or transmitted, and can not be 
determined once and for all time. The information collected will not 
likely be the same for every individual who is the subject of a record 
in the system. With respect to claims requiring investigation (e.g., 
Civil Liberties/Privacy complaints) relevance often can not be 
determined until all materials have been collected and analyzed. 
Moreover, because these systems of records generally are house-keeping-
type files, and not likely to be disclosed outside the agency or serve 
for decision-making purposes, the importance of ``relevance'' as a data 
quality criterion is diminished.
    6. Exemptions do not curtail subjects' access to complaint status 
or disposition.
    EPIC is especially troubled by ODNI's proposal to exempt the Civil 
Liberties and Privacy Office Complaint Records (alleging violations of 
civil liberties or privacy arising from an ODNI or IC program or 
activity), and argues that:

    [A]n individual who submitted a complaint would not be able to 
view any records pertaining to his complaint, such as records of 
review, investigation, or acknowledgement or disposition of 
allegations received. A complainant would be left without any means 
to inquire about the status of his complaint or to help facilitate 
the resolution of his complaint.

    EPIC posits that, by virtue merely of their being maintained in the 
exempt system, all records would be shielded from the subject's access, 
including the agency's acknowledgment of receipt of the complaint and 
any disposition of the complaint. However, complainants routinely 
receive acknowledgement of receipt of their complaints, a copy of which 
is maintained as part of the complainants' official records in the 
noticed Privacy Act system of records. Similarly, complainants receive 
notice of resolution or disposition of their cases, with as much 
specificity as is feasible under the circumstances. The Civil Liberties 
and Privacy Office articulates in writing why the allegation is, or is 
not, sustained by the facts as presented by the complainant and as 
investigated by the agency, and what the ODNI's follow-on action may be 
(for example, remedying a flaw or gap in agency process that the 
complaint has brought to light). The written disposition is also 
maintained as part of the official record in the noticed Privacy Act 
system of records. ODNI would provide access to these acknowledgement 
and disposition records at the complainant's request. The complainant 
would obtain access to other portions of the complaint file as well, to 
the extent they do not implicate national security interests, and do 
not reveal the identity of individuals providing statements or 
information to the investigation pursuant to assurances of 
confidentiality.
    ODNI believes that current policies address EPIC's concern that 
``the complainant is left without any means to inquire about the status 
of his complaint.'' Complainants may at any time amend their 
statements, provide additional facts or seek explanation about the 
operative law, regulation or policy allegedly violated. Indeed, the 
exemption framework does not preclude a complainant from inquiring 
about, or learning of, the status of his complaint. Nor does it 
preclude the ODNI from seeking additional input from claimants.

[[Page 57166]]

Final Rule: Implementation of Exemption Rule and Systems Notices

    After consideration of the public comments, the ODNI has determined 
to issue the proposed exemption rule in final form and to implement the 
fourteen new systems of records without change. The exemptions proposed 
for the fourteen noticed systems of records are necessary and 
appropriate to protect intelligence equities undergirding ODNI's 
mission and functions and narrowly applied, they do so consistent with 
privacy principles. By restrictively construing the exemptions to apply 
only to records that satisfy thresholds articulated in subsection (k), 
ODNI achieves the goal of balancing intelligence-related equities with 
fair information principles and values.

Regulatory Flexibility Act

    This rule affects only the manner in which ODNI collects and 
maintains information about individuals. ODNI certifies that this 
rulemaking does not impact small entities and that analysis under the 
Regulatory flexibility Act, 5 U.S.C. 601-612, is not required.

Small Entity Inquiries

    The Small Business Regulatory enforcement Fairness Act (SBREFA) of 
1996 requires the ODNI to comply with small entity requests for 
information and advice about compliance with statutes and regulations 
within the ODNI jurisdiction. Any small entity that has a question 
regarding this document may address it to the information contact 
listed above. Further information regarding SBREFA is available on the 
Small Business Administration's web page at http://www.sba.gov/advo/laws/law-lib.html.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d)) requires 
that the ODNI consider the impact of paperwork and other burdens 
imposed on the public associated with the collection of information. 
There are no information collection requirements associated with this 
rule and therefore no analysis of burden is required.

Executive Order 12866, Regulatory Planning and Review

    This rule is not a ``significant regulatory action,'' within the 
meaning of Executive Order 12866. This rule will not adversely affect 
the economy or a sector of the economy in a material way; will not 
create inconsistency with or interfere with other agency action; will 
not materially alter the budgetary impact of entitlements, grants, fees 
or loans or the right and obligations of recipients thereof; or raise 
legal or policy issues arising out of legal mandates, the President's 
priorities or the principles set forth in the Executive Order. 
Accordingly, further regulatory evaluation is not required.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to 
assess the effects of certain regulatory actions on State, local and 
tribal governments, and the private sector. This rule imposes no 
Federal mandate on any State, local or tribal government or on the 
private sector. Accordingly, no UMRA analysis of economic and 
regulatory alternatives is required.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to examine the implications 
for the distribution of power and responsibilities among the various 
levels of government resulting from their rules. ODNI concludes that 
this rule does not affect the rights, roles and responsibilities of the 
States, involves no preemption of State law and does not limit state 
policymaking discretion. This rule has no federalism implications as 
defined by the Executive Order.

Environmental Impact

    This rulemaking will not have a significant effect on the human 
environment under the provisions of the National Environmental Policy 
Act of 1969 (NEPA), 42 U.S.C. 4321-4347.

Energy Impact

    This rulemaking is not a major regulatory action under the 
provisions of the Energy Policy and Conservation Act (EPCA), Public Law 
94-163) as amended, 42 U.S.C. 6362.

List of Subjects in 32 CFR Part 1701

    Records and Privacy Act.

0
For the reasons set forth above, ODNI amends 32 CFR part 1701 as 
follows:

PART 1701--ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974

0
1. The authority citation for part 1701 continues to read as follows:

    Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a.

Subpart B--[AMENDED]

0
2. Add Sec.  1701.24 to subpart B to read as follows:


Sec.  1701.24  Exemption of Office of the Director of National 
Intelligence (ODNI) systems of records.

    (a) The ODNI exempts the following systems of records from the 
requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1); 
(e)(4)(G),(H),(I); and (f) of the Privacy Act to the extent that 
information in the system is subject to exemption pursuant subsections 
(k)(1), (k)(2) or (k)(5) of the Act as noted in the individual systems 
notices:
    (1) Manuscript, Presentation and Resume Review Records (ODNI-01).
    (2) Executive Secretary Action Management System Records (ODNI-02).
    (3) Public Affairs Office Records (ODNI-03).
    (4) Office of Legislative Affairs Records (ODNI-04).
    (5) ODNI Guest Speaker Records (ODNI-05).
    (6) Office of General Counsel Records (ODNI-06).
    (7) Analytic Resources Catalog (ODNI-07).
    (8) Intelligence Community Customer Registry (ODNI-09).
    (9) EEO and Diversity Office Records (ODNI-10).
    (10) Office of Protocol Records (ODNI-11).
    (11) IC Security Clearance and Access Approval Repository (ODNI-
12).
    (12) Security Clearance Reform Research Records (ODNI-13).
    (13) Civil Liberties and Privacy Office Complaint Records (ODNI-
14).
    (14) National Intelligence Council Records (ODNI-15).
    (b) Exemption of records in theses systems from any or all of the 
enumerated requirements may be necessary for the following reasons:
    (1) From subsection (c)(3) (accounting of disclosures) because an 
accounting of disclosures from records concerning the record subject 
would specifically reveal an intelligence or investigative interest on 
the part of the ODNI or recipient agency and could result in release of 
properly classified national security or foreign policy information.
    (2) From subsections (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records) because affording access and 
amendment rights could alert the record subject to the investigative 
interest of intelligence or law enforcement agencies or compromise 
sensitive information classified in the interest of national security. 
In the absence of a national security basis for exemption, records in 
this system may be exempted from access and amendment to the extent 
necessary to honor promises of

[[Page 57167]]

confidentiality to persons providing information concerning a candidate 
for position. Inability to maintain such confidentiality would restrict 
the free flow of information vital to a determination of a candidate's 
qualifications and suitability.
    (3) From subsection (e)(1) (maintain only relevant and necessary 
records) because it is not always possible to establish relevance and 
necessity before all information is considered and evaluated in 
relation to an intelligence concern. In the absence of a national 
security basis for exemption under subsection (k)(1), records in this 
system may be exempted from the relevance requirement pursuant to 
subsection (k)(5) because it is not possible to determine in advance 
what exact information may assist in determining the qualifications and 
suitability of a candidate for position. Seemingly irrelevant details, 
when combined with other data, can provide a useful composite for 
determining whether a candidate should be appointed.
    (4) From subsections (e)(4)(G) and (H) (publication of procedures 
for notifying subjects of the existence of records about them and how 
they may access records and contest contents) because the system is 
exempted from subsection (d) provisions regarding access and amendment, 
and from the subsection (f) requirement to promulgate agency rules. 
Nevertheless, the ODNI has published notice concerning notification, 
access, and contest procedures because it may in certain circumstances 
determine it appropriate to provide subjects access to all or a portion 
of the records about them in a system of records.
    (5) From subsection (e)(4)(I) (identifying sources of records in 
the system of records) because identifying sources could result in 
disclosure of properly classified national defense or foreign policy 
information, intelligence sources and methods, and investigatory 
techniques and procedures. Notwithstanding its proposed exemption from 
this requirement, ODNI identifies record sources in broad categories 
sufficient to provide general notice of the origins of the information 
it maintains in its systems of records.
    (6) From subsection (f) (agency rules for notifying subjects to the 
existence of records about them, for accessing and amending records, 
and for assessing fees) because the system is exempt from subsection 
(d) provisions regarding access and amendment of records by record 
subjects. Nevertheless, the ODNI has published agency rules concerning 
notification of a subject in response to his request if any system of 
records named by the subject contains a record pertaining to him and 
procedures by which the subject may access or amend the records. 
Notwithstanding exemption, the ODNI may determine it appropriate to 
satisfy a record subject's access request.

    Dated: September 10, 2010.
John F. Kimmons,
Lieutenant General, USA, Director of the Intelligence Staff.
[FR Doc. 2010-23320 Filed 9-17-10; 8:45 am]
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