# 61 FR 37424: Exemption of System of Records Under the Privacy Act > Federal · Regulations · In force URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_96-18326 ## Section - **Citation:** 61 FR 37424 - **Heading:** Exemption of System of Records Under the Privacy Act - **Jurisdiction:** Federal - **Kind:** Regulations - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Federal Register / Vol. 61 / 61 FR 37424 ## Text 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. ----------------------------------------------------------------------- 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. 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Check the current official text before relying on it. Not legal advice.