OSD Privacy Program

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

OSD Privacy Program

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule updates and implements procedures of the Privacy Act

Program in the Office of the Secretary of Defense (OSD) and

organizations provided Privacy Act administrative support by Washington

Headquarters Services (WHS).

DATES: This rule is effective February 4, 1999. Comments must be

received by June 28, 1999.

ADDRESSES: Forward comments to: DoD, WHS(C&D)D&R(records), 1155 Defense

Pentagon, Washington, DC 20301-1155.

FOR FURTHER INFORMATION CONTACT:

David Bosworth, 703-588-0159.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

It has been determined that 32 CFR part 311 is not a significant

regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more or

adversely affect in a material way the economy; a section of the

economy; productivity; competition; jobs; the environment; public

health or safety; or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligations of

recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive Order.

[[Page 22785]]

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

It has been certified that this rule is not subject to the

Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if

promulgated, have a significant economic impact on a substantial number

of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter

35)

It has been certified that this part does not impose any reporting

or recordkeeping requirements under the Paperwork Reduction Act of

1995.

List of Subjects in 32 CFR Part 311

Privacy.

Accordingly, 32 CFR part 311 is revised to read as follows:

PART 311--OSD PRIVACY PROGRAM

Sec.

311.1 Purpose.

311.2 Applicability and scope.

311.3 Definitions.

311.4 Policy.

311.5 Responsibilities.

311.6 Procedures.

311.7 Information requirements.

Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

Sec. 311.1 Purpose.

This part updates and implements basic policies and procedures

outlined in 5 U.S.C. 552a, OMB Circular A-130,\1\ and DoD 5400.11-R \2\

and provides guidance and procedures for use in establishing the

Privacy Program in the Office of the Secretary of Defense (OSD) and

those organizations assigned to OSD for administrative support.

---------------------------------------------------------------------------

\1\ Copies may be obtained by contacting EOP Publications, 725

16th Street, NW., NEOB, Washington, DC 20503.

\2\ Copies may be obtained via internet at http://

web7.whs.osd.mil/corres.htm.

---------------------------------------------------------------------------

Sec. 311.2 Applicability and scope.

This part:

(a) Applies to the OSD, the Chairman of the Joint Chiefs of Staff,

Uniformed Services University of the Health Sciences (USUHS) and other

activities assigned to OSD for administrative support hereafter

referred to collectively as ``OSD Components.''

(b) Covers record systems maintained by OSD Components and governs

the maintenance, access, change, and release of information contained

in OSD Component record systems, from which information about an

individual is retrieved by a personal identifier.

Sec. 311.3 Definitions.

Access. Any individual's review of a record or a copy of a record

or parts of a system of records.

Disclosure. The transfer of any personal information from a system

of records by any means of oral, written, electronic, mechanical, or

other communication, to any person, private entity, or Government

agency, other than the subject of the record, the subject's designated

agent, or the subject's guardian.

Individual. A living citizen of the United States or an alien

lawfully admitted to the United States for permanent residence. The

legal guardian of an individual has the same rights as the individual

and may act on his or her behalf.

Individual access. Access to personal information pertaining to the

individual, by the individual, his or her designated agent or legal

guardian.

Maintain. Includes maintenance, collection, use or dissemination.

Personal information. Information about an individual that is

intimate or private, as distinguished from information related solely

to the individual's official functions or public life.

Sec. 311.4 Policy.

(a) It is DoD policy to safeguard personal information contained in

any system of records maintained by any DoD Component and to permit any

individual to know what existing records pertain to him or her in any

OSD Component covered by this part.

(b) Each office maintaining records and information about

individuals shall ensure that their privacy is protected from

unauthorized disclosure of personal information. These offices shall

permit individuals to have access to, and to have a copy made of all,

or any portion of records about them, except as provided in Chapters 3

and 5, DoD 5400.11-R, and to have an opportunity to request that such

records be amended as provided by the Privacy Act of 1974 and Chapter 3

of DoD 5400.11-R. Individuals requesting access to their records shall

receive concurrent consideration under 5 U.S.C. 552a and the Freedom of

Information Act, as amended, if appropriate.

(c) Heads of OSD Components shall maintain any necessary record of

a personal nature that is individually identifiable in a manner that

complies with the law and DoD policy. Any information collected must be

as accurate, relevant, timely, and complete as is reasonable to ensure

fairness to the individual. Adequate safeguards must be provided to

prevent misuse or unauthorized release of such information.

Sec. 311.5 Responsibilities.

(a) The Director of Administration and Management, Office of the

Secretary of Defense (DA&M, OSD) shall:

(1) Direct and administer the DoD Privacy Program for OSD

Components.

(2) Establish standards and procedures to ensure implementation of

and compliance with the Privacy Act of 1974, OMB Circular No. A-130,

and DoD 5400.11-R.

(3) Designate the Director for Freedom of Information and Security

Review as the point of contact for individuals requesting information

of access to records and copies about themselves.

(4) Serve as the appellate authority within OSD when a requester

appeals a denial for access to records under the Privacy Act.

(5) Serve as the appellate authority within OSD when a requester

appeals a denial for amendment of a record or initiates legal action to

correct a record.

(6) Evaluate and decide, in coordination with The General Counsel

of the Department of Defense (GC, DoD), appeals resulting from denials

of access or amendments to records by the OSD Components.

(7) Designate the Directives and Records Division, Correspondence

and Directives Directorate, Washington Headquarters Services (WHS) as

the office responsible for all aspects of the Privacy Act, except that

portion about receiving and acting on public requests for personal

records. As such, the Directives and Records Division shall:

(i) Exercise oversight and administrative control of the Privacy

Act Program in OSD and those organizations assigned to OSD for

administrative support.

(ii) Provide guidance and training to organizational entities as

required by 5 U.S.C. 552a and OMB Circular A-130.

(iii) Collect and consolidate data from OSD Components, and submit

an annual report to the Defense Privacy Office, as required by 5 U.S.C.

552a, OMB Circular A-130, and DoD 5400.11-R.

(iv) Coordinate and consolidate information for reporting all

record systems, as well as changes to approved systems, to the OMB, the

Congress, and the Federal Register, as required by 5 U.S.C. 552a, OMB

Circular A-130, and DoD 5400.11-R.

(v) Collect information from OSD Components, and prepare

consolidated reports required by 5 U.S.C. 552a and DoD 5400.11-R.

(b) The Director for Freedom of Information and Security Review

shall:

(1) Forward requests for information or access to records to the

appropriate OSD Component having primary

[[Page 22786]]

responsibility for any pertinent system of records under 5 U.S.C. 552a,

or to OSD Components, under the Freedom of Information Act, as amended.

(2) Maintain deadlines to ensure that responses are made within the

time limits prescribed in DoD 5400.7-R,\3\ DoD Instruction 5400.10,\4\

and this part.

---------------------------------------------------------------------------

\3\ See footnote 2 to Sec. 311.1.

\4\ See footnote 2 to Sec. 311.1.

---------------------------------------------------------------------------

(3) Collect fees charged and assessed for reproducing requested

materials.

(4) Refer all matters about amendments of records and general and

specific exemptions under the 5 U.S.C. 552a to the proper OSD

Components.

(c) The General Counsel of the Department of Defense shall:

(1) Coordinate all OSD final denials of appeals for amending

records, and review actions to confirm denial of access to records, as

appropriate.

(2) Provide advice and assistance to the DA&M, OSD in the discharge

of appellate and review responsibilities, and to the DFOISR on all

access matters.

(3) Provide advice and assistance to OSD Components on legal

matters pertaining to the Privacy Act of 1974.

(d) The Heads of the OSD Components shall:

(1) Designate an individual as the point of contact for Privacy Act

matters; designate an official to deny initial requests for access to

an individual's records or changes to records; and advise both DA&M,

OSD and DFOISR of names of officials so designated.

(2) Report any new record system, or changes to an existing system,

to the Chief, Directives and Records Division, WHS, at least 90 days

before the intended use of the system.

(3) Review all contracts that provide for maintaining records

systems, by or on behalf of his or her office, to ensure within his or

her authority, that language is included that provides that such

systems shall be maintained in a manner consistent with 5 U.S.C. 552a.

(4) Revise procurement guidance to ensure that any contract

providing for the maintenance of a records system, by or on behalf of

his or her office, includes language that ensures that such system

shall be maintained in accordance with 5 U.S.C. 552a.

(5) Revise computer and telecommunications procurement policies to

ensure that agencies review all proposed contracts for equipment and

services to comply with 5 U.S.C. 552a.

(6) Coordinate with Automatic Data Processing (ADP) and word

processing managers providing services to ensure that an adequate risk

analysis is conducted to comply with DoD 5400.11-R.

(7) Review all Directives that require forms or other methods used

to collect information about individuals to ensure that they are in

compliance with 5 U.S.C. 552a.

(8) Establish administrative systems in OSD Component organizations

to comply with the procedures listed in this part and DoD 5400.11-R.

(9) Coordinate with the GC, DoD on all proposed denials of access

to records.

(10) Provide justification to the DFOISR when access to a record is

denied in whole or in part.

(11) Provide the record to the DFOISR when the initial denial of a

request for access to such record has been appealed by the requester,

or at the time of initial denial when appeal seems likely.

(12) Maintain an accurate account of the actions resulting in a

denial for access to a record or for the correction of a record. This

account should be maintained so that it can be readily certified as the

complete record of proceedings if litigation occurs.

(13) Ensure that all personnel who either have access to the system

of records, or who are engaged in developing or supervising procedures

for handling records in the system, are aware of their responsibilities

for protecting personal information as established in the Privacy Act

and DoD 5400.11-R.

(14) Forward all requests for access to records received directly

from an individual to the DFOISR for appropriate suspense control and

recording.

(15) Provide DFOISR with a copy of the requested record when the

request is granted.

(e) The requester who desires to submit a request is responsible

for:

(1) Determining whether to submit the request in writing or in

person. A requester who seeks access to records pertaining to himself

or herself which are filed by his or her name or personal identifier:

(i) May make such a request in person to the custodian of the

records. If the requester is not satisfied with the response, however,

in order to invoke any provision of 5 U.S.C. 552a, DoD 5400.11-R, or

this part, the requester must file a request in writing as provided in

Sec. 311.6(b)(10). The requester must provide proof of identify by

showing drivers license or similar credentials.

(ii) Describing the record sought, and providing sufficient

information to enable the material to be located (e.g., identification

of system of records, approximate date it was initiated, originating

organization, and type of document).

(iii) Complying with procedures provided in DoD 5400.11-R for

inspecting and/or obtaining copies of requested records.

(iv) Submitting a written request to amend the record to the system

manager or to the office designated in the system notice.

Sec. 311.6 Procedures.

(a) Publication of notice in the Federal Register. (1) A notice

shall be published in the Federal Register of any record system meeting

the definition of a system of records in DoD 5400.11-R.

(2) Regarding new or revised records systems, each OSD Component

shall provide the Chief, Directives and Records Division with 90 days

advance notice of any anticipated new or revised system of records.

This material shall be submitted to the OMB and to Congress at least 60

days before use and to the Federal Register at least 30 days before

being put into use, to provide an opportunity for interested persons to

submit written data, views, or arguments to the OSD Components.

Instructions on content and preparation are outlined in DoD 5400.11-R.

(b) Access to information on records systems. (1) Upon request, and

as provided by the Privacy Act, records shall be disclosed only to the

individual they pertain to and under whose individual name or

identifier they are filed, unless exempted by provisions stated in DoD

5400.11-R.

(2) There is not requirement under 5 U.S.C. 552a that a record be

created or that an individual be given access to records that are not

in a group of records that meet this definition of a system of records

in 5 U.S.C. 552a.

(3) Granting access to a record containing personal information

shall not be conditioned upon any requirement that the individual state

a reason or otherwise justify the need to gain access.

(4) No verification of identity shall be required of an individual

seeking access to records that are otherwise available to the public.

(5) Individuals shall not be denied access to a record in a system

of records about themselves because those records are exempted from

disclosure under DoD 5400.7-R. Individuals may only be denied access to

a record in a system of records about themselves when those records are

exempted from the access provisions of the Privacy Act under DoD

5400.11-R, Chapter 5.

(6) Individuals shall not be denied access to their records for

refusing to disclose their Social Security Numbers

[[Page 22787]]

(SSNs), unless disclosure of the SSN is required by statute, by

regulation adopted before January 1, 1975, or if the record's filing

identifier and only means of retrieval is by SSN.

(7) Individuals may request access to their records, in person or

by mail, in accordance with the procedures outlined in paragraph (b)(8)

of this section.

(8) Information necessary to identify a record is: the individual's

name, date of birth, place of birth, identification of the records

system as listed in the Federal Register, or sufficient information to

identify the type of records being sought, and the approximate date the

records might have been created. Any individual making a request for

access to records in person shall come to the Directorate for Freedom

of Information and Security Review (DFOISR), Room 2C757, Pentagon,

Washington, DC 20301-1155; and shall provide personal identification

acceptable to the Director, DFOISR, to verify the individual's identity

(e.g., driver's license, other licenses, permits, or passes used for

routine identification purposes).

(9) If an individual wishes to be accompanied by a third party when

seeking access to records or wishes to have the record released

directly to a third party, the individual may be required to furnish a

signed access authorization granting the third party access.

(10) Any individual submitting a request by mail for access to

information shall address such request to the Directorate for Freedom

of Information and Security Review, Pentagon, Room 2C757, Washington,

DC 20301-1155. To verify the identity of the individual, the request

shall include either a signed notarized statement or an unsworn

declaration in the format specified by 28 U.S.C. 1746.

(11) The following procedures shall apply to requests for access to

records or information complied for law enforcement purposes:

(i) Individuals requesting access to records or information about

themselves and complied for law enforcement purposes are processed

under DoD 5400.11-R and DoD 5400.7-R to give them the greater degree of

access.

(ii) Individual requests for access to records or information about

themselves and compiled for law enforcement purposes (and in the

custody of law enforcement activities) that have been incorporated into

the records system, exempted from the access provisions of 5 U.S.C.

552a, will be processed in accordance with subsection C1.5.13 and

Chapter 5, DoD 5400.7-R. Individuals shall not be denied access to

records solely because they are in the exempt system, but they will

have the same access that they would receive under DoD 5400.7-R. (Also

see subsection A.10., Chapter 3, DoD 5400.11-R).)

(iii) Requests by the individuals for access to records or

information about themselves and compiled for law enforcement purposes

that are in records systems exempted from access provisions will be

processed under subsection C.1., Chapter 5 of DoD 5400.11-R or DoD

5400.7-R, depending upon which regulation gives the greater degree of

access. (See also subsection A. 10., Chapter 3, DoD 5400.1-R)

(iv) Individual requests for access to records or information about

themselves and complied for law enforcement purposes exempted from

access under Section B, Chapter 5 of DoD 54.11-R, that are temporarily

in the hands of a non-law enforcement element for adjudicative or

personnal actions, shall be referred to the originating agency. The

requester will be informed in writing of these referrals.

(12) The following procedures shall apply to requests for

illegible, incomplete, or partially exempt records:

(i) An individual shall not be denied access to a record or a copy

of a record solely because the physical condition or format of the

record does not make it readily available (e.g., deteriorated state or

on magnetic tape). The document will be prepared as an extract, or it

will be exactly recopied.

(ii) If a portion of the record contains information that is exempt

from access, an extract or summary containing all of the information in

the record that is releasable shall be prepared.

(iii) When the physical condition to the record makes it necessary

to prepare an extract for release, the extract shall be prepared so

that the requester will understand it.

(iv) The requester shall be informed of all deletions or changes to

records.

(13) Medical records shall be disclosed to the individual they

pertain to, unless a determination is made in consultation with a

medical doctor, that the disclosure could have adverse effects on the

individual's physical or mental health. Such information may be

transmitted to a medical doctor named by the individual concerned. If

the named medical doctor declines to provide the record to the

individual, the OSD Components shall take positive action to ensure

that the requested records are provided the individual.

(14) The individual may be charged reproduction fees for copies or

records as outlined in DoD 5400.11-R.

(c) Requested to amend personal information in records systems and

disputes. (1) The Head of an OSD Component, or the designated official,

shall allow individuals to request amendment to their records to the

extent that such records are not accurate, relevant, timely, or

complete. Requests should be as brief and as simple as possible and

should contain, as a minimum, identifying information to locate the

record, as description of the items to be amended, and the reason for a

change. A request shall not be rejected nor required to be resubmitted

unless additional information is essential to process the request.

Requesters shall be required to provide verification of their identify

as stated in paragraph (b)(8) of this section, to ensure that they are

seeking to amend records about themselves, and not, inadvertently or

intentially, the records of others.

(1) The appropriate system manager shall mail a written

acknowledgement to an individual's request to amend a record within 10

days after receipt, excluding Saturdays, Sundays, and legal public

holidays. Such acknowledgement shall identify the request and may, if

necessary, request any additional information needed to make a

determination. No acknowledgment is necessary if the request can be

reviewed, processed, and if the individual can be notified of

compliance or denial within the 10-day period. Whenever practical, the

decision shall be made within 30 working days. For requests presented

in person, written acknowledgment may be provided at the time the

request is presented.

(3) The Head of an OSD Component, or designated official, shall

promptly take one of the following actions on requests to amend the

records:

(i) If the OSD Component official agrees with any portion or all of

an individual's request, he or she will proceed to amend the records in

accordance with existing statutes, requlations, or administrative

procedures, and inform the requester of the action taken. The OSD

Component official shall also notify all previous holders of the record

that the amendment has been made, and shall explain the substance of

the correction.

(ii) If the OSD Component official disagrees with all or any

portion of a request, the individual shall be informed promptly of the

refusal to amend a record, the reason for the refusal, and the

procedure established by OSD for an appeal as outlined in paragraph

(c)(6) of this section.

(iii) If the request for an amendment pertains to a record

controlled and maintained by another Federal Agency,

[[Page 22788]]

the request shall be referred to the appropriate Agency, and the

requester advised of this:

(4) The following procedures shall be used when reviewing records

under dispute:

(i) In response to a request for an amendment to records, officials

shall determine whether the requester has adequately supported their

claim that the record is inaccurate, irrelevant, untimely, or

incomplete.

(ii) The Head of an OSD Component, or designated official, shall

limit the review of a record of those items of information that clearly

bear on any determination to amend the records and shall ensure that

all those elements are present before determination is made.

(5) If the Head of an OSD Component, or designated official, after

an initial review of a request to amend a record, disagrees with all or

any portion of a record, he or she shall:

(i) Advise the individual of the denial and the reason for it.

(ii) Inform the individual that he or she may appeal the denial.

(iii) Describe the procedures for appealing the denial including

the name and address of the official to whom the appeal should be

directed. The procedures should be as brief and simple as possible.

(iv) Furnish a copy of the justification of any denial to amend a

record to the DA&M, OSD.

(6) If an individual disagrees with the initial OSD determination,

he or she may file an appeal. The request should be sent to the

Director of Administration and Management, Office of the Secretary of

Defense (DA&M, OSD), 1950 Defense Pentagon, Washington, D.C. 20301-

1950, if the record is created and maintained by an OSD Component.

(7) If, after review, the DA&M, OSD further refuses to amend the

record as requested, he shall advise the individual:

(i) Of the refusal and the reason and authority for the denial.

(ii) Of his or her right to file a statement of the reason for

disagreeing with the DA&M's decision.

(iii) Of the procedures for filing a statement of disagreements.

(iv) That the statement filed shall be made available to anyone the

record is dislosed to, together with a brief statement, at the

discretion of the OSD Component, summarizing its reasons for refusing

to amend the records.

(v) That prior recipients of copies of disputed records by provided

by a copy of any statement of dispute to the extent that an accounting

of disclosure is maintained.

(vi) Of his or her right to seek judicial review of the DA&M's

refusal to amend a record.

(8) If, after the review, the DA&M, OSD, determines that the record

should be amended in accordance with the individual's request, the OSD

Component shall amend the record, advise the individual, and inform

previous recipients where an accounting of disclosure has been

maintained.

(9) All appeals should be processed within 30 days (excluding

Saturdays, Sundays, and legal public holidays) after receipt by the

proper office. If the DA&M determines that a fair and equitable review

cannot be made within that time, the individual shall be informed in

writing of the reasons for the delay and of the approximate date the

review is expected to be completed.

(d) Disclosure of disputed information. (1) If the DA&M, OSD, has

refused to amend a record and the individual has filed a statement

under paragraph (c)(7) of this section, the OSD Component shall clearly

annotate the disputed record so that it is apparent to any person to

whom the record is disclosed that a statement has been filed. Where

feasible, the notation itself shall be integral to the record. Where an

accounting of a disclosure has been made, the OSD Component shall

advise previous recipients that the record has been disputed and shall

provide a copy of the individual's statement.

(i) This statement shall be maintained to permit ready retrieval

whenever the disputed portion of the record is to be disclosed.

(ii) When information that is the subject of a statement of dispute

is subsequently disclosed, the OSD Component's designated official

shall note which information is disputed and provide a copy of the

individual's statement.

(2) The OSD Component shall include a brief summary of its reasons

for not making a correction when disclosing disputed information. Such

statement shall normally be limited to the reasons given to the

individual for not amending the record.

(3) Copies of the OSD Component's summary will be treated as part

of the individual's record; however, it will not be subject to the

amendment procedure outlined in paragraph (c)(3)(iii) of this section.

(e) Penalties--(1) Civil action. (i) An individual may file a civil

suit against the United States and may recover damages, for:

(A) Refusal to amend a record.

(B) Improper denial of the access to a record.

(C) Failure to maintain an accurate, relevant, timely, and complete

record that is used to make determinations adverse to the individual.

(ii) An individual may also file a suit against the United States

for failure to implement a provision of the Privacy Act when such

failure leads to an adverse determination.

(iii) If the individual's suit is upheld, the court may direct the

United States to pay the court costs and attorney's fees.

(2) Criminal action. (i) Criminal penalties may be imposed against

an OSD officer or employee for certain offenses listed in section (i)

of the Privacy Act, as follows: willful unauthorized disclosure of

protected information in the records; failure to publish a notice of

the existence of a record system in the Federal Register; requesting or

gaining access to the individual's record under false pretenses.

(ii) An OSD officer or employee may be fine up to $5,000 for a

violation as outlined in paragraph (e)(2)(i) of this section.

(3) Litigation status sheet. Whenever a complaint citing 5 U.S.C.

552a is filed in a U.S. District Court against the Department of

Defense, a DoD component, or any DoD employee, the responsible system

manager shall promptly notify the Defense Privacy Office. The

litigation status sheet in DoD 5400.II-R provides a standard format for

this notification. (The initial litigation status sheet shall, as a

minimum, provide the information required by items 1. through 6.) A

revised litigation status sheet shall be provided at each stage of the

litigation. When a court renders a formal opinion or judgment, copies

of the judgment or opinion shall be provided to the Defense Privacy

Office with the litigation status sheet reporting that judgment or

opinion.

(f) Computer matching programs. Paragraph B of Chapter 11 of DoD

5400.11-R prescribes that all requests for participation in a matching

program (either as a matching agency or a source agency) be submitted

to the Defense Privacy Office for review and compliance. OSD Components

shall submit these request through the Directives and Records Division.

Sec. 311.7 Information requirements.

The Defense Privacy Office shall establish requirements and

deadlines for DoD privacy reports. These reports shall be licensed in

accordance with DoD Directive 8910.1.\5\

\5\ See footnote 2 to Sec. 311.1.

---------------------------------------------------------------------------

[[Page 22789]]

Dated: April 22, 1999.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 99-10570 Filed 4-27-99; 8:45 am]

BILLING CODE 5001-10-M