Privacy Act of 1974; Implementation
| Published date | 24 June 2020 |
| Citation | 85 FR 37748 |
| Record Number | 2020-11386 |
| Section | Rules and Regulations |
| Court | Justice Department |
Federal Register, Volume 85 Issue 122 (Wednesday, June 24, 2020)
[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Rules and Regulations]
[Pages 37748-37751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11386]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 003-2020]
Privacy Act of 1974; Implementation
AGENCY: Federal Bureau of Investigation, United States Department of
Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Bureau of lnvestigation (FBI), a component of the
United States Department of Justice (DOJ or Department), is finalizing
without changes its Privacy Act exemption regulations for the system of
records titled, ``National Crime Information Center (NCIC),'' JUSTICE/
FBI-001, which were published as a Notice of Proposed Rulemaking (NPRM)
on September 18, 2019. Specifically, the Department's regulations will
exempt the records maintained in JUSTICE/FBI-001 from one or more
provisions of the Privacy Act. The exemptions are necessary to avoid
interference with the FBI's law enforcement and national security
functions and responsibilities. The Department received only one
substantive comment on the proposed rule.
DATES: This final rule is effective July 24, 2020.
FOR FURTHER INFORMATION CONTACT: Katherine M. Bond, Assistant General
Counsel, Privacy and Civil Liberties Unit, Office of the General
Counsel, FBI, Washington, DC, telephone 202-324-3000.
SUPPLEMENTARY INFORMATION: On September 10, 2019, the FBI published in
the Federal Register a modified System of Records Notice (SORN) for an
FBI system of records titled, ``National Crime Information Center
(NCIC),'' JUSTICE/FBI-001, 84 FR 47533. The NCIC is a national criminal
justice information system linking criminal (and authorized non-
criminal) justice agencies located in the 50 states, the District of
Columbia, U.S. territories and possessions, and selected foreign
countries to facilitate the cooperative sharing of criminal justice
information. The NCIC provides a system to receive and maintain
information contributed by participating agencies relating to criminal
justice and national security. Information maintained in the NCIC is
readily accessible for authorized criminal justice purposes by
authorized users via text-based queries (i.e., using names and other
descriptive data).
On September 18, 2019, the FBI published a Notice of Proposed
Rulemaking (NPRM) proposing to amend its existing regulations exempting
records maintained in JUSTICE/FBI-001 from certain provisions of the
Privacy Act pursuant to 5 U.S.C. 552aG) and (k), and inviting public
comment on the proposed exemptions. 84 FR 49073. The comment period was
open through October 18, 2019. DOJ received only one substantive
comment responsive to the proposed exemptions. That comment, from the
Electronic Privacy Information Center (EPIC), urged that ``[a]ll of
these proposals should be withdrawn,'' so that the Department claims no
Privacy Act exemptions at all for NCIC system of records. EPIC makes a
number of claims, among which are the following:
``The over collection and maintenance of information that
is unverified and unaccountable with no system for redress leaves
personal data at a risk.''
``The FBI sets forward no reason that it should be able to
maintain records irrelevant or unnecessary to accomplish a purpose of
the agency.''
``[T]he categories of sources of records at minimum are
essential in order to keep the government accountable throughout their
data collection and law enforcement activities.''
``The exemptions as currently proposed are needlessly
overbroad.''
``The NCIC has been known to have inaccurate and
unreliable records, making it particularly unsuitable for vast
exemptions from regulations designed to protect and optimize the
accuracy and reliability of information held on people.''
After consideration of the statements in this public comment from
EPIC, the Department has determined that, to protect the ability of the
FBI to properly engage in its law enforcement and national security
functions, the exemptions as proposed in the NPRM are codified in this
final rule for the reasons stated below.
Response to Public Comments
As stated above, the one substantive comment the FBI received
regarding its NPRM urged the FBI to withdraw its proposed Privacy Act
exemptions. While, generically, it might be true that ``[t]he over
collection and maintenance of information that is unverified and
[[Page 37749]]
unaccountable with no system for redress leaves personal data at a
risk,'' the Department does not agree with this characterization of the
FBI's activities. Rather than ``over collect,'' the FBI works with
local, state, federal, and tribal criminal justice partners to
determine what information is necessary to collect and share to ensure
that the NCIC contains only information relevant and necessary to
assist criminal justice agencies in fulfilling their missions. At
times, due to the reality of law enforcement investigations, it may not
be possible to know in advance what information is relevant and
necessary for law enforcement and intelligence purposes. That is one
reason that Congress, in the Privacy Act, provided for the ability of
agencies to exempt themselves from certain Privacy Act requirements.
Further, regarding the assertion that the FBI will be maintaining
``unverified'' information, NCIC policy includes strict validation
requirements ensuring that criminal justice agencies periodically
review their records to ensure to the extent feasible that they are
accurate, timely, relevant, and complete. If a record is not timely
validated, it is purged from the active NCIC file and retired.
Additionally, NCIC policy requires that before any user can take
official action on active records within the NCIC (e.g., arrest an
individual, detain a missing person, seize stolen property, charge an
individual with violation of a protection order, deny the purchase of a
firearm, deny access to explosives), the user must confirm the validity
and accuracy of the record with the agency that submitted the record to
the NCIC. This ensures that agencies do not take action without
verifying information from the NCIC. In addition, the FBI conducts
triennial audits of all federal, state, and territorial repositories
and a representative sample of local agencies to ensure compliance with
policy. Findings of non-compliance are submitted to the Criminal
Justice Information Services (CJIS) Advisory Policy Board for review.
NCIC access is subject to termination for egregious violations of
policy provisions. The NCIC also creates and maintains transaction
logs, which can be reviewed to detect potential misuse of system data.
And, regarding redress, the FBI in fact has had in place for many years
a system for lawful access and amendment of records, detailed at 28 CFR
part 16.
In the context of all of these steps taken by the FBI to promote
data quality and appropriate data use, EPIC states that ``NCIC has been
known to have inaccurate and unreliable records''--citing its own past
assertions as support for this statement--and concludes that EPIC's
allegations make NCIC ``particularly unsuitable for vast [Privacy Act]
exemptions.'' When establishing the Privacy Act exemptions for law
enforcement agencies, Congress considered and recognized the potential
risks of law enforcement systems having inaccurate and unreliable
records. Due to the nature of the type of work law enforcement agencies
do and the type of information they must collect to do that work, it is
not always possible to ensure the accuracy of records when collected.
What is important is not whether a law enforcement agency may have
inaccurate or unreliable records in its holdings; rather it is the
steps taken by the law enforcement agency to promote data quality and
appropriate data use under the circumstances. As detailed above, FBI
efforts in this area are eminently reasonable, appropriate, and
sufficient.
In response to EPIC's claim that ``[t]he FBI sets forward no reason
that it should be able to maintain records irrelevant or unnecessary to
accomplish a purpose of the agency,'' the FBI has not made this claim.
Nowhere does the FBI assert that it ``should be able to maintain
records irrelevant or unnecessary to accomplish a purpose of the
agency.'' The FBI merely states the fact that it is a law enforcement
agency and must act according to the realities and requirements of law
enforcement investigations. As stated in the NPRM, relevance and
necessity are questions of judgment and timing. Information that
appears relevant and necessary when collected may, after further
investigation and analysis, be deemed unnecessary. It is only after
information is placed in the context of a fully completed investigation
and assessed in that light that its relevancy and necessity to a
specific investigative activity can be established.
EPIC states that ``the categories of sources of records at minimum
are essential in order to keep the government accountable throughout
their data collection and law enforcement activities.'' This statement
fails to account for the wealth of public information, including
information published by the Department and FBI, detailing types of
information maintained in the NCIC as well as indicating the state,
local, federal, and tribal law enforcement agency contributors of that
information. This plethora of publicly available information already
exists and allows the public to keep the government accountable
regarding this system of records. As information detailing sources
becomes more discrete, however, the realities of law enforcement
agencies and investigations again come into play, including the fact
that information frequently comes from sensitive sources. As stated in
the NPRM, should subsection (e)(4)(!) be interpreted to require more
detail regarding the record sources in this system than has already
been published in the Federal Register through the SORN documentation,
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.
EPIC states that ``[t]he exemptions as currently proposed are
needlessly overbroad.'' On the contrary, in the NPRM and here in the
Final Rule, the Department explains the need for each exemption. The
exemptions as taken by FBI are as intended by Congress when it passed
the Privacy Act, in order to ensure that law enforcement can continue
to properly function in the face of the many requirements of the
statute. After careful consideration, Congress allowed for exemptions
from some requirements and not from others. Rather than acting counter
to the Privacy Act, the Department and FBI are acting pursuant to it.
Further, even though the FBI is authorized under the Privacy Act to
maintain certain exemptions in all cases, the FBI takes seriously the
privacy interests of the public. As stated in the proposed rulemaking,
where the FBI determines compliance with an exempted Privacy Act
provision--including access and amendment provisions--would not appear
to interfere with or adversely affect interests of the United States or
other system stakeholders, the FBI at its sole discretion may waive
such exemption in that circumstance in whole or in part. In each
circumstance, the FBI considers whether the facts of the request merit
compliance with an exempted Privacy Act provision(s). In appropriate
circumstances, as indicated in the Final Rule, the FBI may waive such
exemptions at its discretion.
The Department has considered the submitted comment; however, for
the reasons set forth above and the rationales included in the
regulations, the Department adopts in this Final Rule the exemptions
and rationales proposed in the NPRM.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive
[[Page 37750]]
Order 12866, ``Regulatory Planning and Review'' section l(b),
Principles of Regulation, and Executive Order 13563 ``Improving
Regulation and Regulatory Review'' section 1(b), General Principles of
Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this rule has not been reviewed by the Office of
Information and Regulatory Affairs within the Office of Management and
Budget pursuant to Executive Order 12866.
Regulatory Flexibility Act
This regulation will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Executive Order 13132 Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This regulation will have no implications for Indian Tribal
governments. More specifically, it does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175 do
not apply.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000, as adjusted for inflation, or more in any one year, and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804 of the
Congressional Review Act.
Paperwork Reduction Act
This rule imposes no information collection or recordkeeping
requirements.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
information, and the Privacy 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--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, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
0
2. AmendSec. 16.96 by:
0
a. Revising paragraphs (g) and (h) and
0
b. Removing paragraph (i).
The revisions read as follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems-
limited access.
* * * * *
(g) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4), (d), (e)(l), (e)(2), (e)(3), (e)(4)(G), (H), and
(I), (e)(5), (e)(8), (f), and (g):
(I) National Crime Information Center (NCIC) (JUSTICE/FBI-001).
(2) These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552aG) and (k).
Where the FBI determines compliance with an exempted provision would
not appear to interfere with or adversely affect interests of the
United States or other system stakeholders, the FBI 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 FBI in
its sole discretion may impose any restrictions deemed advisable by the
FBI (including, but not limited to, restrictions on the location,
manner, or scope of notice, access or amendment).
(h) Exemptions from the particular subsections are justified for
the following reasons:
(I) 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 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
(e.g., destroy evidence or flee the area to avoid 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 disclosures provision of subsection
(c)(3). 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.
(3) From subsection (d), (e)(4)(G) and (H), (e)(8), (f), and (g)
because these provisions concern individual access to and amendment of
law enforcement and intelligence 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 and/
or other law enforcement or intelligence agencies. Providing access
could compromise sensitive law enforcement information; disclose
information that could constitute an unwarranted invasion of another's
personal privacy;
[[Page 37751]]
reveal a sensitive investigative or intelligence technique; 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)(l) because it is not always possible to
know in advance what information is relevant and necessary for law
enforcement and intelligence purposes. Relevance and necessity are
questions of judgment and timing. For example, what appears rekvant and
necessary when collected ultimately may be deemed unnecessary. It is
only after information is assessed that its relevancy and necessity in
a specific investigative activity can be established.
(5) From subsections (e)(2) and (3) because it is not feasible to
comply with these provisions given the nature of this system. The
majority of the records in this system come from other federal, state,
local, joint, foreign, tribal, and international agencies; therefore,
it is not feasible for the FBI to collect information directly from the
individual or to provide notice. Additionally, the application of this
provision could present a serious impediment to the FBI's
responsibilities to detect, deter, and prosecute crimes and to protect
the 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 already been published in the Federal Register
through the SORN documentation. 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.
(7) From subsection (e)(S) 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, additional facts, or
analysis, information may acquire new significance. The restrictions
imposed by subsection (e)(S) would limit the ability of trained
investigators and intelligence analysts to exercise their judgment in
reporting on investigations and impede the development of criminal
intelligence necessary for effective law enforcement. Although the FBI
has claimed this exemption, it continuously works with its federal,
state, local, tribal, and international partners to maintain the
accuracy of records to the greatest extent practicable. The FBI does so
with established policies and practices. The criminal justice and
national security communities have a strong operational interest in
using up-to-date and accurate records and will foster relationships
with partners to further this interest.
Dated: May 21, 2020.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2020-11386 Filed 6-23-20; 8:45 am]
BILLING CODE 4410-02-P
