02-27596. Privacy Act of 1974; Implementation

AGENCY:

Department of Justice.

ACTION:

Proposed rule.

SUMMARY:

The Department of Justice, Office of the Pardon Attorney (OPA), proposes to exempt the Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001) system of records from subsections (c)(3), (c)(4), (d)(1), (d) (2), (d)(3), (d)(4), and (e)(5) of the Privacy Act, 5 U.S.C. 552a. Information in this system relates to the investigation and evaluation of applicants for executive clemency and case-related correspondence regarding such applicants and the clemency process. The exemptions are necessary to avoid interference with clemency investigations and decision-making, when such interference could impair the Department of Justice's ability to provide candid recommendations to the President for his ultimate decisions on clemency matters, and to prevent unwarranted invasions of the personal privacy of third parties.

DATES:

Submit any comments by December 2, 2002.

ADDRESSES:

Address all comments to Mary Cahill, Management and Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530 (Room 1400, National Place Building).

FOR FURTHER INFORMATION CONTACT:

Mary Cahill, [phone].

SUPPLEMENTARY INFORMATION:

In the notice section of today's Federal Register, the Department of Justice provides a description of the Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001).

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 impact on a substantial number of small entities.”

List of Subjects in Part 16

• Administrative practices and procedures
• Courts
• Freedom of Information
• Sunshine Act, and Privacy

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 delete the current language of 28 CFR 16.79 and substitute the following:

1. The authority citation 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. Section 16.79 is revised to read as follows:

§ 16.79

Exemption of Pardon Attorney Systems.

(a) The following system of records is exempt from 5 U.S.C. 552a, subsections (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(5): Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001). These exemptions apply only to the extent that information in this system of records is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).

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

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

(i) The purpose of the creation and maintenance of the Executive Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001) is to enable the Justice Department to prepare reports and recommendations to the President for his ultimate decisions on clemency matters, which are committed to exclusive discretion of the President pursuant to Article II, Section 2, Clause 1 of the Constitution.

(ii) Release of the disclosure accounting, for disclosures pursuant to the routine uses published for this system, would permit the requester to obtain valuable information concerning the nature and scope of a clemency investigation, invade the right of candid and confidential communications among officials concerned with making recommendations to the President in clemency matters, and disclose the identity of persons who furnished information to the Government under an express or implied promise that their identities would be held in confidence.

(2) From subsection (c)(4) because the exemption from subsections (d)(1), (d)(2), (d)(3), and (d)(4) will make notification of disputes inapplicable.

(3) From subsections (d)(1), (d)(2), (d)(3), and (d)(4) is justified for the reasons stated in paragraph (1) above.

(4) From subsection (e)(5) is justified for the reasons stated in paragraph (1) above.

Dated: October 22, 2002.

Robert F. Diegelman,

Acting Assistant Attorney General for Administration.