Privacy Act: System of records,

 
CONTENT

[Federal Register: November 25, 1998 (Volume 63, Number 227)]

[Rules and Regulations]

[Page 65060-65062]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr25no98-11]

DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 155-98]

Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: The Department of Justice, Federal Bureau of Investigation, is exempting the National Instant Criminal Background Check System (NICS) from 5 U.S.C. 552a (c) (3) and (4); (d); (e) (1), (2), and (3); (e)(4) (G) and (H); (e) (5) and (8); and (g). The purposes of the exemptions are to maintain the confidentiality and security of information compiled for purposes of criminal or other law enforcement investigation, or of reports compiled at any stage of the law enforcement process. The exemptions are necessary because some information in NICS is from law enforcement records, and may (in the case of NICS denials, for example) relate to additional law enforcement interest. Therefore, to the extent that they may be subject to exemption under subsections (j)(2), (k)(2), and (k)(3), these records are not available under the Privacy Act and not subject to certain of its procedures such as obtaining an accounting of disclosures, notification, access, or amendment/correction.

EFFECTIVE DATE: November 25, 1998.

FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, Program Analyst (202) 616-0178.

SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule published in the Federal Register with an invitation to comment on June 4, 1998 (63 FR 30429). The FBI accepted comments on the proposed rule from interested parties dated on or before July 6, 1998.

Significant Comments

A number of comments raised matters that were more pertinent to other notices of proposed rulemaking relating to the NICS: The National Instant Criminal Background Check System Regulation published in the Federal Register on June 4, 1998 (63 FR 30430), and the National Instant Criminal Background Check System User Fee Regulation, published in the Federal Register on August 17, 1998 (63 FR 43893). Such comments are addressed in the final NICS rule, the National Instant Criminal Background Check System Regulation, published in the Federal Register on October 30, 1998 (63 FR 58303). Other comments raised

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matters that were more pertinent to the notice of the establishment of the NICS as a new system of records, the National Instant Criminal Background Check System (NICS) JUSTICE/FBI-018, published in the Federal Register on June 4, 1998 (63 FR 30514). Such comments are addressed in a revised NICS records system notice, the National Instant Criminal Background Check System (NICS) JUSTICE/FBI-018, published in the notices section of today's Federal Register.

Several comments questioned the authority for exempting records in the NICS. One comment pointed out that certain records in the NICS might not meet the Privacy Act's requirements for exemptions and should therefore not be subject to exemptions. As in the proposed rule, the final rule specifically states that exemptions will apply only to the extent that information in the system is subject to exemption. The comment questioned whether even records relating to criminal matters would be exempt. Case law has established that criminal records do not lose their exempt status even if replicated in a non-criminal law system. (Likewise, other law enforcement records would retain any exempt status even if replicated in a non-law enforcement system.) In addition, however, to the extent it bears on possible violations of the Brady Act, the Gun Control Act (19 U.S.C. Chapter 44), or the National Firearms Act (26 U.S.C. Chapter 53), information in the NICS may comprise law enforcement material in its own right. For instance, NICS denials presumptively relate to an illegal attempt to acquire a firearm in violation of federal law. Even information on approved transactions (which the NICS destroys after a limited time) may implicate law enforcement interests, for example, where audits identify instances in which the NICS is used for unauthorized purposes, such as running checks of people other than actual gun transferees, or where potential handgun transferees or transferors have submitted false identification information to thwart the name check system. One comment suggested that the rule more clearly delineate which NICS records would be subject to exemptions. The Privacy Act itself delineates exemption requirements, and based on the FBI's long experience with similar provisions of other FBI records systems, the proposed language is fully sufficient to guide government officials and preclude adverse impact on individual rights.

Other comments addressed specific exemptions. Several comments objected to the NICS being exempted from 5 U.S.C. 552a(c)(3), which permits an individual to request access to an accounting of certain disclosures of records about the individual. Release of an accounting of disclosures would place an individual on notice of the existence of an outside interest in his or her activities. This would be of particular concern for situations involving NICS denials, which may presumptively indicate an attempted violation of federal criminal law. Even information on approved transactions (which the NICS destroys after a limited time) may implicate law enforcement interests, for example, where audits identify instances in which the NICS is used for unauthorized purposes, such as running checks of people other than actual gun transferees, or where potential handgun transferees or transferors have submitted false identification information to thwart the name check system. Releases of accountings could result in destruction of evidence, intimidation or endangerment of witnesses and victims, flight of the subject from the area, or other activities that would seriously impede law enforcement investigations.

Several comments in essence objected to the NICS' being exempted from 5 U.S.C. 552a(d) and (e)(4) (G) and (H), which permit an individual to request access to (and amendment of) records about the individual. Access to system records subject to exemption would compromise ongoing investigations, reveal investigatory techniques and confidential informants, invade the privacy of persons who provide information in connection with a particular investigation, or constitute a potential danger to the health or safety of law enforcement personnel. In addition, requiring the FBI to amend information thought to be not accurate, timely, relevant, and complete, because of the nature of the information collected and the length of time it is maintained, would create an impossible administrative burden by forcing the agency to continuously update its investigations attempting to resolve these issues. Individuals concerned with the accuracy of records maintained about them remain free to avail themselves of any means for access or amendment applicable to the record sources, and record contributors have a continuing responsibility to delete or update contributions determined to be invalid or incorrect (see 28 CFR 25.5(b)). Moreover, the NICS itself provides an alternate procedure for amending erroneous records resulting in transfer denials (28 CFR 25.10).

One comment objected to the NICS being exempted from 5 U.S.C. 552a(e)(1) and (5), which require that an agency maintain only relevant records necessary to accomplish the system's purpose and with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual. Without this exemption, the NICS might be prevented from acquiring data not shown to be accurate, relevant, timely, and complete at the moment of its acquisition by the NICS. This exemption is necessary because it is impossible to predict when and for whom it will be necessary to use the information in the NICS, and, accordingly, it is not possible to determine in advance when the records will be timely or relevant. Relevance and necessity are questions of circumstance and timing, and it is only after the information is evaluated that the relevance and necessity of the information can be established. In addition, since most of the records are from state, local, and other federal agency record systems, it would be impossible to review all of the records as they are submitted to verify their accuracy. However, as previously discussed, affected persons remain free to avail themselves of any means for addressing accuracy, timeliness, or completeness applicable to the record sources, and record contributors have a continuing responsibility to delete or update contributions determined to be invalid or incorrect (see 28 CFR 25.5(b)). In addition, the Department and the FBI have made efforts to enhance the quality of NICS records. Using funding authorized by the Brady Act, section 106(b), the Department has provided substantial assistance to the states for the purpose of improving their criminal history record systems. The FBI will be responsible for maintaining data integrity during NICS operations managed and carried out by the FBI, including the conduct of periodic quality control checks to verify that the information provided to the NICS Index remains valid and correct (28 CFR 25.5(a)). Finally, the NICS itself provides an alternate procedure for amending erroneous records resulting transfer denials (28 CFR 25.10).

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, it is hereby stated that 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

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Information Act, Government in the Sunshine Act, 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 793-78, 28 CFR part 16 is amended as set forth below.

Dated: November 19, 1998. Stephen R. Colgate, Assistant Attorney General for Administration.

PART 16--[AMENDED]

  1. The authority for part 16 continues to read as follows:

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

  2. 28 CFR 16.96 is amended by adding paragraphs (p) and (q) to read as follows:

    Sec. 16.96 Exemption of Federal Bureau of Investigation (FBI) Systems--limited access.

    * * * * *

    (p) The National Instant Criminal Background Check System (NICS), (JUSTICE/FBI-018), a Privacy Act system of records, is exempt:

    (1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and (4); (d); (e) (1), (2) and (3); (e)(4) (G) and (H); (e) (5) and (8); and (g); and

    (2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections (c)(3), (d), (e)(1), and (e)(4) (G) and (H).

    (q) These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and (k)(3). Exemptions from the particular subsections are justified for the following reasons:

    (1) From subsection (c)(3) because the release of the accounting of disclosures would place the subject on notice that the subject is or has been the subject of investigation and result in a serious impediment to law enforcement.

    (2) From subsection (c)(4) to the extent that it is not applicable since an exemption is claimed from subsection (d).

    (3)(i) From subsections (d) and (e)(4) (G) and (H) because these provisions concern an individual's access to records which concern the individual and such access to records in the system would compromise ongoing investigations, reveal investigatory techniques and confidential informants, invade the privacy of persons who provide information in connection with a particular investigation, or constitute a potential danger to the health or safety of law enforcement personnel.

    (ii) In addition, from subsection (d)(2) because, to require the FBI to amend information thought to be not accurate, timely, relevant, and complete, because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative burden by forcing the agency to continuously update its investigations attempting to resolve these issues.

    (iii) Although the Attorney General is exempting this system from subsections (d) and (e)(4) (G) and (H), an alternate method of access and correction has been provided in 28 CFR, part 25, subpart A.

    (4) From subsection (e)(1) because it is impossible to state with any degree of certainty that all information in these records is relevant to accomplish a purpose of the FBI, even though acquisition of the records from state and local law enforcement agencies is based on a statutory requirement. In view of the number of records in the system, it is impossible to review them for relevancy.

    (5) From subsections (e) (2) and (3) because the purpose of the system is to verify information about an individual. It would not be realistic to rely on information provided by the individual. In addition, much of the information contained in or checked by this system is from Federal, State, and local criminal history records.

    (6) From subsection (e)(5) because it is impossible to predict when it will be necessary to use the information in the system, and, accordingly, it is not possible to determine in advance when the records will be timely. Since most of the records are from State and local or other Federal agency records, it would be impossible to review all of them to verify that they are accurate. In addition, an alternate procedure is being established in 28 CFR, part 25, subpart A, so the records can be amended if found to be incorrect.

    (7) From subsection (e)(8) because the notice requirement could present a serious impediment to law enforcement by revealing investigative techniques and confidential investigations.

    (8) From subsection (g) to the extent that, pursuant to subsections (j)(2), (k)(2), and (k)(3), the system is exempted from the other subsections listed in paragraph (p) of this section.

    [FR Doc. 98-31502Filed11-24-98; 8:45 am]

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