§ 310.30 - DoD-wide exemptions.

§ 310.30 DoD-wide exemptions.

(a) Use of DoD-wide exemptions. DoD-wide exemptions for DOD-wide systems of records are established pursuant to 5 U.S.C. 552a(j) and (k) of the Privacy Act.

(b) Promises of confidentiality.

(1) Only the identity of sources that have been given an express promise of confidentiality may be protected from disclosure under this section. However, the identity of sources who were given implied promises of confidentiality in inquiries conducted before September 27, 1975, also may be protected from disclosure.

(2) Ensure promises of confidentiality are not automatically given but are used sparingly. Establish appropriate procedures and identify fully categories of individuals who may make such promises. Promises of confidentiality shall be made only when they are essential to obtain the information sought (see 5 CFR part 736).

(c) Access to records for which DOD-wide exemptions are claimed. Deny the individual access only to those portions of the records for which the claimed exemption applies.

(d) Exempt records. Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent that such provisions have been identified and an exemption claimed for the record and the purposes underlying the exemption for the record pertain to the record.

(e) DoD-wide exemptions. The following exemptions are applicable to all components of the Department of Defense for the following system(s) of records:

(1) System identifier and name. DUSDI 01-DoD “Department of Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD Component Insider Threat Records System.”

(i) Exemption: This system of records is exempted from subsections (c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (4)(G)(H) and (I), (5) and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(1), (2), (4), (5), (6), and (7).

(ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(1), (2), (3), (5), (6), and (7).

(iii) Exemption from the particular subsections. Exemption from the particular subsections is justified for the following reasons:

(A) Subsection (c)(3). To provide the subject with an accounting of disclosures of records in this system could inform that individual of the existence, nature, or scope of an actual or potential law enforcement or counterintelligence investigation, and thereby seriously impede law enforcement or counterintelligence efforts by permitting the record subject and other persons to whom he might disclose the records to avoid criminal penalties, civil remedies, or counterintelligence measures. Access to the accounting of disclosures could also interfere with a civil or administrative action or investigation which may impede those actions or investigations. Access also could reveal the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations.

(B) Subsection (c)(4). This subsection is inapplicable to the extent that an exemption is being claimed for subsection (d).

(C) Subsection (d)(1). Disclosure of records in the system could reveal the identity of confidential sources and result in an unwarranted invasion of the privacy of others. Disclosure may also reveal information relating to actual or potential criminal investigations. Disclosure of classified national security information would cause damage to the national security of the United States. Disclosure could also interfere with a civil or administrative action or investigation; reveal the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations; and reveal the confidentiality and integrity of Federal testing materials and evaluation materials used for military promotions when furnished by a confidential source.

(D) Subsection (d)(2). Amendment of the records could interfere with ongoing criminal or civil law enforcement proceedings and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated.

(E) Subsections (d)(3) and (4). These subsections are inapplicable to the extent exemption is claimed from (d)(1) and (2).

(F) Subsection (e)(1). It is often impossible to determine in advance if investigatory records contained in this system are accurate, relevant, timely and complete, but, in the interests of effective law enforcement and counterintelligence, it is necessary to retain this information to aid in establishing patterns of activity and provide investigative leads.

(G) Subsection (e)(2). To collect information from the subject individual could serve notice that he or she is the subject of a criminal investigation and thereby present a serious impediment to such investigations.

(H) Subsection (e)(3). To inform individuals as required by this subsection could reveal the existence of a criminal investigation and compromise investigative efforts.

(I) Subsection (e)(4)(G), (H), and (I). These subsections are inapplicable to the extent exemption is claimed from (d)(1) and (2).

(J) Subsection (e)(5). It is often impossible to determine in advance if investigatory records contained in this system are accurate, relevant, timely and complete, but, in the interests of effective law enforcement, it is necessary to retain this information to aid in establishing patterns of activity and provide investigative leads.

(K) Subsection (e)(8). To serve notice could give persons sufficient warning to evade investigative efforts.

(L) Subsection (g). This subsection is inapplicable to the extent that the system is exempt from other specific subsections of the Privacy Act.

(iv) Exempt records from other systems. In addition, in the course of carrying out analysis for insider threats, exempt records from other systems of records may in turn become part of the case records maintained in this system. To the extent that copies of exempt records from those other systems of records are maintained into this system, the DoD claims the same exemptions for the records from those other systems that are entered into this system, as claimed for the original primary system of which they are a part.

(2) System identifier and name. DUSDI 02-DoD “Personnel Vetting Records System.”

(i) Exemption. This system of records is exempted from subsections 5 U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(1) of the Privacy Act.

(ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7).

(iii) Exemption from the particular subsections. Exemption from the particular subsections is justified for the following reasons:

(A) Subsections (c)(3), (d)(1), and (d)(2)-(1) Exemption (k)(1). Personnel investigations and vetting records may contain information properly classified pursuant to Executive Order. Application of exemption (k)(1) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could disclose classified information that could be detrimental to national security.

(2) Exemption (k)(2). Personnel investigations and vetting records may contain investigatory material compiled for law enforcement purposes other than material within the scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could: Inform the record subject of an investigation of the existence, nature, or scope of an actual or potential law enforcement or counterintelligence investigation, and thereby seriously impede law enforcement or counterintelligence efforts by permitting the record subject and other persons to whom he might disclose the records to avoid criminal penalties, civil remedies, or counterintelligence measures; interfere with a civil or administrative action or investigation which may impede those actions or investigations; and result in an unwarranted invasion of the privacy of others. Amendment of such records could also impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(3) Exemption (k)(3). Personnel investigations and vetting records may contain information pertaining to providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056. Application of exemption (k)(3) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could compromise the safety of the individuals protected pursuant to 18 U.S.C. 3056 and compromise protective services provided to the President and other individuals. Amendment of such records could also impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(4) Exemption (k)(5). Personnel investigations and vetting records may contain investigatory material compiled solely for determining suitability, eligibility, and qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. In some cases, such records may contain information pertaining to the identity of a source who furnished information to the Government under an express promise that the source's identity would be held in confidence (or prior to the effective date of the Privacy Act, under an implied promise). Application of exemption (k)(5) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could identify these confidential sources who might not have otherwise come forward to assist the Government, could hinder the Government's ability to obtain information from future confidential sources, and result in an unwarranted invasion of the privacy of others. Amendment of such records could also impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(5) Exemption (k)(6). Personnel investigations and vetting records may contain information relating to testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service. Application of exemption (k)(6) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could compromise the objectivity and fairness of the testing or examination process. Amendment of such records could also impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(6) Exemption (k)(7). Personnel investigations and vetting records may contain evaluation material used to determine potential for promotion in the armed services. In some cases, such records may contain information pertaining to the identity of a source who furnished information to the Government under an express promise that the source's identity would be held in confidence (or prior to the effective date of the Privacy Act, under an implied promise). Application of exemption (k)(7) for such records may be necessary because access to, amendment of, or release of the accounting of disclosures of such records could identify these confidential sources who might not have otherwise come forward to assist the Government, hinder the Government's ability to obtain information from future confidential sources, and result in an unwarranted invasion of the privacy of others. Amendment of such records could also impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(B) Subsections (d)(3) and (4). These subsections are inapplicable to the extent an exemption is claimed from (d)(1) and (2). Moreover, applying the amendment appeal procedures toward background investigation and vetting records could impose a highly impracticable administrative burden by requiring investigations to be continuously reinvestigated.

(C) Subsection (e)(1). In the collection of information for authorized vetting purposes, it is not always possible to conclusively determine the relevance and necessity of particular information in the early stages of the investigation or adjudication. In some instances, it will be only after the collected information is evaluated in light of other information that its relevance and necessity for effective investigation and adjudication can be assessed. Collection of such information permits more informed decision-making by the Department when making required suitability, eligibility, fitness, and credentialing determinations. Accordingly, application of exemptions (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7) may be necessary.

(iv) Exempt records from other systems. In addition, in the course of carrying out personnel vetting, including records checks for continuous vetting, exempt records from other systems of records may in turn become part of the records maintained in this system. To the extent that copies of exempt records from those other systems of records are maintained into this system, the DoD claims the same exemptions for the records from those other systems that are entered into this system, as claimed for the original primary system of which they are a part.

[81 FR 71380, Oct. 17, 2016, as amended at 83 FR 52318, Oct. 17, 2018]