2011-23599. Privacy Act of 1974; System of Records

AGENCY:

Office of the Pardon Attorney (OPA), Department of Justice.

ACTION:

Notice of a Modification of a System of Records.

SUMMARY:

Pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), notice is given that the Department of Justice proposes to modify a system of records notice, specifically the “Executive Clemency Case Files/Executive Clemency Tracking System,” JUSTICE/OPA-001, last published in the Federal Register on October 31, 2002 (67 FR 66417). This system notice is modified to include the following: (1) The system name has been changed to reflect OPA's new case tracking system, the Executive Clemency Records Database (ECRD), which replaces the Executive Clemency Tracking System; (2) removal and addition of, and changes to, routine uses of records maintained in the system; (3) clarification that the system contains records concerning persons who have been denied executive clemency, in addition to those who have applied for or been granted such clemency; and (4) other modifications to reflect current practices for the system of records. The entire notice is republished for the convenience of the public.

DATES:

In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is given a 30-day period in which to comment. Therefore, please submit any comments by October 17, 2011.

ADDRESSES:

The public, Office of Management and Budget (OMB), and the Congress are invited to submit any comments to the Privacy Analyst, Office of Privacy and Civil Liberties, Department of Justice, National Place Building, 1331 Pennsylvania Avenue, NW., Suite 1070, Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT:

Linda M. V. Bowe, Paralegal Specialist, 202.616.6070, Office of the Pardon Attorney, U.S. Department of Justice, Washington, DC 20530.

SUPPLEMENTARY INFORMATION:

The change in the text of the notice entitled “Executive Clemency Records Database (ECRD)/Executive Clemency Case Files” is shown below.

In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and the Congress on the modified system of records.

Dated: August 12, 2011.

Nancy C. Libin,

Chief Privacy and Civil Liberties Officer, United States Department of Justice.

JUSTICE/OPA-001

System Name:

Executive Clemency Records Database (ECRD)/Executive Clemency Case Files.

Security Classification:

Unclassified.

System Location:

Office of the Pardon Attorney (OPA), U.S. Department of Justice, Washington, DC 20530.

Categories Of Individuals Covered By The System:

Individuals who have applied for or have been granted or denied executive clemency, and individuals who have corresponded with OPA, either directly or by referral, concerning persons who have applied for or have been granted or denied executive clemency. In addition, the categories of individuals covered by this system also include DOJ personnel, to include DOJ contractors, authorized to access and use the system.

Categories of Records in the System:

The system contains data, documents and correspondence, in hard copy and/or electronic format, concerning the individual case files of persons who have applied for or been granted or denied executive clemency, which may include the following: The clemency petition; character affidavits; investigatory material; court-related documents (e.g., presentence reports, judgments of conviction, and court opinions); official court-martial documents (in military cases); prison progress reports and U.S. Parole Commission notices of action; media reports (e.g., newspaper and magazine articles); and official and other correspondence (both generated and received, whether solicited or unsolicited), including correspondence received by OPA concerning an individual who has filed a clemency petition or is granted or denied clemency. Additionally, the system contains inter-agency and intra-agency reports as well as case notes, recommendations, and decisional documents generated throughout the deliberative process to assist OPA in formulating clemency recommendations to the President or otherwise performing its duties more efficiently. The system contains records regarding authorized system users, including audit log information and records relating to verification or authorization of an individual's access to the system.

Authority for Maintenance of the System:

The system is established and maintained in order to carry out the duties assigned by the President, pursuant to the power granted him under the United States Constitution, Article II, section 2, to the Department of Justice (DOJ) in Executive Order of the President 30-1, dated June 16, 1893; and Executive Order of the President No. 11878 (published at 40 FR 42731), as delegated by the Attorney General to OPA in 28 CFR 0.35 and 0.36 (Attorney General Order No. 1012-83, published at 48 FR 22290), and as described in 28 CFR 1.1 through 1.11 (Attorney General Order No. 1798-93, published at 58 FR 53658); and 44 U.S.C. 3101.

Purpose(s):

Executive clemency case files and the records contained within ECRD are maintained by the Attorney General or his designee to facilitate and document the functions of the Attorney General or his designee in receiving, investigating, and evaluating requests for executive clemency; preparing the necessary reports and recommendations from the DOJ to the President in clemency matters; serving as a liaison with clemency applicants and the public on clemency matters; and advising the President on the historical exercise of the clemency power. The system's use of computerized records facilitates an increased level of efficiency and automation with regard to the maintenance and use of information contained therein.

Routine Uses of Records Maintained in the System, Including Categories of Users and Purposes of Such Uses:

Information contained in this system may be disclosed as follows:

(a) To the President, and members of his staff, in order to assist him in the exercise of his constitutional clemency power.

(b) To any person or entity, whose comments on a particular clemency matter are solicited by OPA in connection with its investigation and review of a case, to the extent deemed by OPA to be necessary in order to enable such persons to respond to the request.

(c) To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.

(d) To a private contractor or federal agency for the purpose of preparing bound and indexed volumes containing originals and/or photocopies of the official warrant of clemency granted each clemency recipient as a public and official record of Presidential action.

(e) Where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, territorial, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.

(f) To a federal, state, local, or tribal agency, including prosecution, corrections, sentencing, parole, or probation authorities, in order to assist it in the execution of appropriate actions necessary to implement a Presidential clemency decision or in the performance of its official duties.

(g) To federal, state, local, territorial, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.

(h) In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body, when the DOJ determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.

(i) To the news media and the public, including disclosures pursuant to 28 CFR § 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.

(j) To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.

(k) To the National Archives and Records Administration for purposes of records management inspections and accessions conducted under the authority of 44 U.S.C. 2904 and 2906.

(l) To former employees of the Department for purposes of: Responding to an official inquiry by a federal, state, local, or tribal government entity or professional licensing authority, in accordance with applicable Departmental regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.

(m) To appropriate agencies, entities, and persons when (1) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

(n) To appropriate officials and employees of a federal agency or entity when the information is relevant to a decision concerning the hiring, appointment, or retention of an employee; the assignment, detail, or deployment of an employee; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract; or the issuance of a grant or benefit.

Disclosure to Consumer Reporting Agencies:

None.

Policies and Practices for Storing, Retrieving, AcceSSING, Retaining, and Disposing of Records in the System:

Storage:

All records which are part of Executive Clemency Case Files are stored within OPA's work area in individual file folders in a secure file room or file cabinets with controlled access, and/or other appropriate GSA-approved security containers. All records which are part of ECRD are stored in electronic form in a secure client/server configuration.

Retrievability:

Individual case files which are part of Executive Clemency Case Files are retrieved primarily by the name of the person who applied for or was granted or denied executive clemency but also may be retrieved via any piece of uniquely identifying data (i.e., BOP register number, case file number, FBI number, or Social Security number).

Safeguards:

All records which are part of Executive Clemency Case Files are secured through the use of safes, locked file cabinets, and/or restricted access to the space in which they are located.

All records which are part of ECRD are safeguarded in accordance with DOJ rules and policies governing automated systems security and access; entry to the system takes place through individual login of OPA employees and other authorized DOJ personnel; mandatory training is required of all system users; and a thorough audit trail keeps track of user activity within ECRD.

Retention and Disposal:

All paper records are stored within OPA's work area while clemency is pending, and generally for up to two years after the date of final action. Closed case files are transferred to the Washington National Records Center in Suitland, Maryland one full year after the calendar year in which the case was closed. Except for copies of reports furnished to the President on particular clemency matters, clemency warrants and other documents reflecting the President's action in clemency cases, case files in any cases in which clemency is granted, case files in other cases designated by the Pardon Attorney as having significant public interest, and notices issued by OPA to the Office of Public Affairs of the DOJ, case files at the Washington National Records Center are destroyed no sooner than 25 years after the case is closed, in accordance with the Records Disposition Authority NC1-204-95-1, or successor Records Disposition Authority.

All records within ECRD are maintained within the system while a clemency petition is pending and for fifteen years after the year in which the case was closed. Copies of all records pertaining to cases closed in the previous calendar year contained within the system are sent to NARA on an annual basis. OPA maintains legal custody of these records until fifteen years have elapsed, at which point the records within ECRD are destroyed and NARA becomes the legal custodian of the records. This change occurs in accordance with Records Disposition Authority DA-204-2011-0001 or successor Records Disposition Authority.

System Manager(s) and Address:

Pardon Attorney, Office of the Pardon Attorney, U.S. Department of Justice, Washington, DC 20530.

Notification Procedure:

Address inquiries to the Pardon Attorney, Office of the Pardon Attorney, U.S. Department of Justice, Washington, DC 20530, or e-mail inquiries to [e-mail].

Record Access Procedures:

The Attorney General has exempted executive clemency records from various provisions of the Privacy Act, including the access and amendment provisions, to the extent such exemptions apply pursuant to 5 U.S.C. 552a(j)(2). Where compliance would not appear to interfere with or adversely affect the purposes of the system or the law enforcement process, the applicable exemption (in whole or in part) may be waived by the OPA in its sole discretion. These requests for discretionary releases of records shall be made either in writing or via email to the system manager listed above with the envelope and letter or subject line clearly marked “Privacy Access Request.” Include in the request the general subject matter of the document. Provide full name, current address, date and place of birth, signature, all of (which must be either be notarized or submitted under penalty of perjury), and a return address or email address for transmitting the information.

Contesting Record Procedures:

Same as Record Access Procedures.

Record Source Categories:

Sources of information include: individual applicants for clemency, their representatives, and persons who write, confer with, or orally advise OPA concerning those applicants; investigatory reports of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Internal Revenue Service, Immigration and Customs Enforcement agency of the Department of Homeland Security and other appropriate government agencies; records of the Federal Bureau of Prisons; reports of the Armed Forces; presentence reports provided by the Bureau of Prisons or the federal Probation Offices; reports of the U.S. Parole Commission; data provided by the Office of White House Counsel; comments and recommendations from current and former federal and state officials; and employees of the Department of Justice.

Exemptions Claimed for the System:

The Attorney General has exempted this system from subsections (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(5) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553 (b), (c), and (e) and have been published in the Federal Register.