Exemption of System of Records Under the Privacy Act

DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 120-96]

Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice, Federal Bureau of Investigation,

proposes to exempt the National DNA Index System (NDIS) 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 exemption are to maintain

the confidentiality and security of information compiled for purposes

of criminal investigation, or of reports compiled at any stage of the

criminal law enforcement process. Therefore, to the extent that these

records may be subject to the Privacy Act, they are subject to

exemption under subsection (j)(2) and are not available under the

Privacy Act.

DATES: All comments must be received by August 19, 1996.

ADDRESSES: All comments should be addressed to Patricia E. Neely,

Program Analyst, Information Management and Security Staff, Information

Resources Management, Department of Justice, Washington, DC 20530 (Room

850, WCTR Building).

FOR FURTHER INFORMATION CONTACT:

Patricia E. Neely, Program Analyst (202-616-0178).

SUPPLEMENTARY INFORMATION: In the Notice Section of today's Federal

Register, there is a description of this system of records.

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 the 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 Procedure, Courts, Freedom of

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 No. 793-78,

it is proposed to amend 28 CFR part 16 as set forth below.

Dated: July 8, 1996.

Stephen R. Colgate,

Assistant Attorney General for Administration.

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; and 31 U.S.C. 3717, 9701.

2. It is proposed to amend 28 CFR 16.96 by removing the heading

``National Crime Information Center (NCIC) (Justice/FBI-001)'' and the

undesignated paragraph which follows paragraph (k)(4); and by adding

paragraphs (n) and (o) as set forth below.

Sec. 16.96 Exemptions of Federal Bureau of Investigation Systems--

Limited Access, as indicated

* * * * *

(n) The following system of records is exempt 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):

(1) National DNA Index System (NDIS) (JUSTICE/FBI-017).

(o) 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).

Exemptions from the particular subsections are justified for the

following reasons:

(1) From subsection (c)(3) because making available the accounting

of disclosures from records to the subject of the record would

prematurely place the subject on notice of the investigative interest

of law enforcement agencies, provide the subject with significant

information concerning the nature of the investigation, or permit the

subject to take measures to impede the investigation (e.g., destroy or

alter evidence, intimidate potential witnesses, or flee the area to

avoid investigation and prosecution), and result in a serious

impediment to law enforcement.

(2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g)

because these provisions concern an individual's access to records

which concern him/her and access to records in this system would

compromise ongoing investigations. Such access is directed at allowing

the subject of the record to correct inaccuracies in it. The vast

majority of records in this system are from the DNA records of local

and State NDIS agencies which would be inappropriate and not feasible

for the FBI to undertake to correct. Nevertheless, an alternate method

to access and/or amend records in this system is available to an

individual who is the subject of a record pursuant to procedures and

requirements specified in the Notice of Systems of Records compiled by

the National Archives and Records Administration and published in the

Federal Register under the designation: National DNA Index System

(NDIS) (JUSTICE/FBI-017).

(ii) In addition, from paragraph (d)(2) of this section, because to

require the FBI to amend information thought to be incorrect,

irrelevant, or ultimately, because of the nature of the information

collected and the essential length of time it is maintained, would

create an impossible administrative and investigative burden by forcing

the agency to continuously retrograde investigations attempting to

resolve questions of accuracy, etc.

(iii) In addition, from subsection (g) to the extent that the

system is exempt from the access and amendment provisions of subsection

(d).

(3) From subsection (e)(1) because:

(i) Information in this system is primarily from State and local

records and it is for the official use of agencies outside the Federal

Government.

(ii) It is not possible in all instances to determine the relevancy

or necessity of specific information in the early stages of the

criminal investigation process.

(iii) Relevance and necessity are questions of judgment and timing;

what appears relevant and necessary when collected ultimately may be

deemed unnecessary, and vice versa. It is only after the information is

assessed that its relevancy in a specific investigative activity can be

established.

(iv) Although the investigative process could leave in doubt the

relevancy and necessity of evidence which had been properly obtained,

the same information could be relevant to another investigation or

investigative activity under the jurisdiction of the FBI or another law

enforcement agency.

(4) From subsections (e) (2) and (3) because it is not feasible to

comply with these provisions given the nature of this system. Most of

the records in this system are necessarily furnished by State and local

criminal justice agencies and not by individuals due to the very nature

of the records and the system.

(5) From subsection (e)(5) because the vast majority of these

records come from State and local criminal justice agencies and because

it is administratively impossible for them and the FBI to insure that

the records comply with this provision. Submitting agencies are urged

and make every effort to insure records are accurate and complete;

however, since it is not possible to predict when information in the

indexes of the system (whether submitted by

State and local criminal justice agencies or generated by the FBI) will

be matched with other information, it is not possible to determine when

most of them are relevant or timely.

(6) From subsection (e)(8) because the FBI has no logical manner to

determine whenever process has been made public and compliance with

this provision would provide an impediment to law enforcement by

interfering with ongoing investigations.

[FR Doc. 96-18326 Filed 7-17-96; 8:45 am]

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