[Federal Register Volume 64, Number 177 (Tuesday, September 14, 1999)]
[Rules and Regulations]
[Pages 49660-49667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23824]
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DEPARTMENT OF DEFENSE
Defense Security Service
32 CFR Part 321
[Defense Security Service Reg. 01-13]
Defense Security Service Privacy Program
AGENCY: Defense Security Service, DOD.
ACTION: Final rule, with comments.
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SUMMARY: The Defense Investigative Service (DIS) has changed its name
to the `Defense Security Service (DSS)'. This agency name change
demands administrative updates to 32 CFR part 321. Therefore, DIS is
being changed to DSS throughout the rule, addresses are being updated,
and two exemption rules are being consolidated into one rule.
EFFECTIVE DATE: September 14, 1999. However, comments received on or
before October 14, 1999, will be considered by this agency.
FOR FURTHER INFORMATION CONTACT: Mr. Leslie Blake (703) 325-9450.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, `Regulatory Planning and Review'
It has been determined that 32 CFR part 321 is not a significant
regulatory action. The rule does not:
(1) Have an annual effect to the economy of $100 million or more;
or adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, `Regulatory Flexibility Act' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 96-511, `Paperwork Reduction Act' (44 U.S.C. Chapter 35)
It has been certified that this part does not impose any reporting
or record keeping requirements under the Paperwork Reduction Act of
1995.
List of Subjects in 32 CFR Part 321
Privacy.
Accordingly, 32 CFR part 321 is revised to read as follows:
PART 321--DEFENSE SECURITY SERVICE PRIVACY PROGRAM
Sec.
321.1 Purpose and applicability.
321.2 Definitions.
321.3 Information and procedures for requesting notification.
321.4 Requirements for identification.
321.5 Access by subject individuals.
321.6 Medical records.
321.7 Request for correction or amendment.
321.8 DSS review of request for amendment.
321.9 Appeal of initial amendment decision.
321.10 Disclosure to other than subject.
321.11 Fees.
321.12 Penalties.
321.13 Exemptions.
321.14 DSS implementation policies.
[[Page 49661]]
Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
Sec. 321.1 Purpose and applicability.
(a) This part establishes rules, policies and procedures for the
disclosure of personal records in the custody of the Defense Security
Service (DSS) to the individual subjects, the handling of requests for
amendment or correction of such records, appeal and review of DSS
decisions on these matters, and the application of general and specific
exemptions, under the provisions of the Privacy Act of 1974. It also
prescribes other policies and procedures to effect compliance with the
Privacy Act of 1974 and DoD Directive 5400.11 \1\.
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\1\ Copies may be obtained via internet at http://
web7.whs.osd.mil/corres.htm
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(b) The procedures set forth in this part do not apply to DSS
personnel seeking access to records pertaining to themselves which
previously have been available. DSS personnel will continue to be
granted ready access to their personnel, security, and other records by
making arrangements directly with the maintaining office. DSS personnel
should contact the Office of Freedom of Information and Privacy, DSSHQ,
for access to investigatory records pertaining to themselves or any
assistance in obtaining access to other records pertaining to
themselves, and may follow the procedures outlined in these rules in
any case.
Sec. 321.2 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part, the term agency means the Defense
Security Service.
Sec. 321.3 Information and procedures for requesting notification.
(a) General. Any individual may request and receive notification of
whether he is the subject of a record in any system of records
maintained by DSS using the information and procedures described in
this section.
(1) Paragraphs (b) and (c) of this section give information that
will assist an individual in determining in what systems of DSS records
(if any) he may be the subject. This information is presented as a
convenience to the individual in that he may avoid consulting the
lengthy systems notices elsewhere in the Federal Register.
(2) Paragraph (d) of this section details the procedure an
individual should use to contact DSS and request notification. It will
be helpful if the individual states what his connection with DSS has or
may have been, and about what record system(s) he is inquiring. Such
information is not required, but its absence may cause some delay.
(b) DSS Records Systems. A list of DSS records systems is available
by contacting Defense Security Service, Office of FOI and Privacy, 1340
Braddock Place, Alexandria, VA, 22314-1551.
(c) Categories of individuals in DSS Record Systems. (1) Any person
who is the subject or co-subject of an ongoing or completed
investigation by DSS should have an investigative case file/record in
system V5-01, if the record meets retention criteria. An index to such
files should be in V5-02.
(2) If an individual has ever made a formal request to DSS under
the Freedom of Information Act or the Privacy Act of 1974, a record
pertaining to that request under the name of the requester, or subject
matter, will be in system V1-01.
(3) Persons of Counterintelligence interest who have solicited from
industrial contractors/DoD installations information which may appear
to be sensitive in nature may have a record in system V5-04.
(4) Individuals who have been applicants for employment with DSS,
or nominees for assignment to DSS, but who have not completed their DSS
affiliation, may be subjects in systems V4-04, V5-01, V5-02, V5-03, or
V6-01.
(5) Any individual who is a subject, victim or cross-referenced
personally in an investigation by an investigative element of any DoD
component, may be referenced in the Defense Clearance and
Investigations Index, system V5-02, in an index to the location, file
number, and custodian of the case record.
(6) Individuals who have ever presented a complaint to or have been
connected with a DSS Inspector General inquiry may be subjects of
records in system V2-01.
(7) If an individual has ever attended the Defense Industrial
Security Institute or completed training with the DSS Training Office
he should be subject of a record in V7-01.
(8) If an individual has ever been a guest speaker or instructor at
the Defense Industrial Security Institute, he should be the subject of
a record in V7-01.
(9) If an individual is an employee or major stockholder of a
government contractor or other DoD-affiliated company or agency and has
been issued, now possesses or has been processed for a security
clearance, he may be subject to a record in V5-03.
(d) Procedures. The following procedures should be followed to
determine if an individual is a subject of records maintained by DSS,
and to request notification and access.
(1) Individuals should submit inquiries in person or by mail to the
Defense Security Service, Office of FOI and Privacy, 1340 Braddock
Place, Alexandria, VA 22314-1651. Inquiries by personal appearance
should be made Monday through Friday from 8:30 to 11:30 a.m. and 1:00
to 4:00 p.m. The information requested in Sec. 321.4 must be provided
if records are to be accurately identified. Telephonic requests for
records will not be honored. In a case where the system of records is
not specified in the request, only systems that would reasonably
contain records of the individual will be checked, as described in
paragraph (b) of this section.
(2) Only the Director or Chief, Office of FOI and Privacy may
authorize exemptions to notification of individuals in accordance with
Sec. 321.13.
Sec. 321.4 Requirements for identification.
(a) General. Only upon proper identification, made in accordance
with the provisions of this section, will any individual be granted
notification concerning and access to all releasable records pertaining
to him which are maintained in a DSS system.
(b) Identification. Identification of individuals is required both
for accurate record identification and to verify identity in order to
avoid disclosing records to unauthorized persons. Individuals who
request notification of, access to, or amendment of records pertaining
to themselves, must provide their full name (and additional names such
as aliases, maiden names, alternate spellings, etc., if a check of
these variants is desired), date and place of birth, and social
security number (SSN).
(1) Where reply by mail is requested, a mailing address is
required, and a telephone number is recommended to expedite certain
matters. For military requesters residing in the United States, home
address or P.O. Box number is preferred in lieu of duty assignment
address.
(2) Signatures must be notarized on requests received by mail.
Exceptions may be made when the requester is well known to releasing
officials. For requests made in person, a photo identification card,
such as military ID, driver's license or building pass, must be
presented.
(3) While it is not required as a condition of receiving
notification, in many cases the SSN may be necessary to obtain an
accurate search of DCII (V5-02) records.
[[Page 49662]]
(c) A DSS Form 30 (Request for Notification of/Access to Personal
Records) will be provided to any individual inquiring about records
pertaining to himself whose mailed request was not notarized. This form
is also available at the DSS Office of FOI and Privacy, 1340 Braddock
Place, Alexandria, VA 22314-1651, for those who make their requests in
person.
Sec. 321.5 Access by subject individuals.
(a) General. (1) Individuals may request access to records
pertaining to themselves in person or by mail in accordance with this
section. However, nothing in this section shall allow an individual
access to any information compiled or maintained by DSS in reasonable
anticipation of a civil or criminal action or proceeding, or otherwise
exempted under the provisions of Sec. 321.13.
(2) A request for a pending personnel security investigation will
be held in abeyance until completion of the investigation and the
requester will be so notified.
(b) Manner of access. (1) Requests by mail or in person for access
to DSS records should be made to the DSS Office of FOI and Privacy,
1340 Braddock Place, Alexandria, VA 22314-1651.
(2) Any individual who makes a request for access in person shall:
(i) Provide identification as specified in Sec. 321.4.
(ii) Complete and sign a request form.
(3) Any individual making a request for access to records by mail
shall include a signed and notarized statement to verify his identity,
which may be the DSS request form if he has received one.
(4) Any individual requesting access to records in person may be
accompanied by an identified person of his own choosing while reviewing
the record. If the individual elects to be accompanied, he shall make
this known in his written request, and include a statement authorizing
disclosure of the record contents to the accompanying person. Without
written authorization of the subject individual, records will not be
disclosed to third parties accompanying the subject.
(5) During the course of official business, members of DSS field
elements may be given access to records maintained by the field
elements/Operations Center without referral to the Office of FOI and
Privacy. An account of such access will be kept for reporting purposes.
(6) In all requests for access, the requester must state whether he
or she desires access in person or mailed copies of records. During
personal access, where copies are made for retention, a fee for
reproduction and postage may be assessed as provided in Sec. 321.11.
Where copies are mailed because personal appearance is impractical,
there will be no fee.
(7) All individuals who are not affiliates of DSS will be given
access to records, if authorized, in the Office of FOI and Privacy, or
by means of mailed copies.
Sec. 321.6 Medical records.
General. Medical records that are part of DSS records systems will
generally be included with those records when access is granted to the
subject to which they pertain. However, if it is determined that such
access could have an adverse effect upon the individual's physical or
mental health, the medical record in question will be released only to
a physician named by the requesting individual.
Sec. 321.7 Request for correction or amendment.
(a) General. Upon request and proper identification by any
individual who has been granted access to DSS records pertaining to
himself or herself, that individual may request, either in person or
through the mail, that the record be amended. Such a request must be
made in writing and addressed to the Defense Security Service, Office
of FOI and Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651.
(b) Content. The following information must be included to insure
effective action on the request:
(1) Description of the record. Requesters should specify the number
of pages and documents, the titles of the documents, form numbers if
there are any, dates on the documents and names of individuals who
signed them. Any reasonable description of the document is acceptable.
(2) Description of the items to be amended. The description of the
passages, pages or documents to be amended should be as clear and
specific as possible.
(i) Page, line and paragraph numbers should be cited where they
exist.
(ii) A direct quotation of all or a portion of the passage may be
made if it isn't otherwise easily identifiable. If the passage is long,
a quotation of its beginning and end will suffice.
(iii) In appropriate cases, a simple substantive request may be
appropriate, e.g., `delete all references to my alleged arrest in July
1970.'
(iv) If the requester has received a copy of the record, he may
submit an annotated copy of documents he wishes amended.
(3) Type of amendment. The requester must clearly state the type of
amendment he is requesting.
(i) Deletion or expungement, i.e., a complete removal from the
record of data, sentences, passages, paragraphs or documents.
(ii) Correction of the information in the record to make it more
accurate, e.g., rectify mistaken identities, dates, data pertaining to
the individual, etc.
(iii) Additions to make the record more relevant, accurate or
timely may be requested.
(iv) Other changes may be requested; they must be specifically and
clearly described.
(4) Reason for amendment. Requests for amendment must be based on
specific reasons, included in writing. Categories of reasons are as
follows:
(i) Accuracy. Amendment may be requested where matters of fact are
believed incorrectly recorded, e.g., dates, names, addresses,
identification numbers, or any other information concerning the
individual. The request, whenever possible, should contain the accurate
information, copies of verifying documents, or indication of how the
information can be verified.
(ii) Relevance. Amendment may be requested when information in a
record is believed not to be relevant or necessary to the purposes of
the record system.
(iii) Timeliness. Amendment may be requested when information is
thought to be so old as to no longer be pertinent to the stated
purposes of the records system. It may also be requested when there is
recent information of a pertinent type that is not included in the
record.
(iv) Completeness. Amendment may be requested where information in
a record is incomplete with respect to its purpose. The data thought to
have been omitted should be included or identified with the request.
(v) Fairness. Amendment may be requested when a record is thought
to be unfair concerning the subject, in terms of the stated purposes of
the record. In such cases, a source of additional information to
increase the fairness of the record should be identified where
possible.
(vi) Other reasons. Reasons for requesting amendment are not
limited to those cited above. The content of the records is authorized
in terms of their stated purposes which should be the basis for
evaluating them. However, any matter believed appropriate may be
submitted as a basis of an amendment request.
(vii) Court orders and statutes may require amendment of a file.
While they do not require a Privacy Act request for
[[Page 49663]]
execution, such may be brought to the attention of DSS by these
procedures.
(c) Assistance. Individuals seeking to request amendment of records
pertaining to themselves that are maintained by DSS will be assisted as
necessary by DSS officials. Where a request is incomplete, it will not
be denied, but the requester will be contacted for the additional
information necessary to his request.
(d) This section does not permit the alteration of evidence
presented to courts, boards and other official proceedings.
Sec. 321.8 DSS review of request for amendment.
(a) General. Upon receipt from any individual of a request to amend
a record pertaining to himself and maintained by the Defense Security
Service, Office of FOI and Privacy will handle the request as follows:
(1) A written acknowledgment of the receipt of a request for
amendment of a record will be provided to the individual within 10
working days, unless final action regarding approval or denial can be
accomplished within that time. In that case, the notification of
approval or denial will constitute adequate acknowledgment.
(2) Where there is a determination to grant all or a portion of a
request to amend a record, the record shall be promptly amended and the
requesting individual notified. Individuals, agencies or components
shown by accounting records to have received copies of the record, or
to whom disclosure has been made, will be notified, if necessary, of
the amendment by the responsible official. Where a DoD recipient of an
investigative record cannot be located, the notification, if necessary,
will be sent to the personnel security element of the parent Component.
(3) Where there is a determination to deny all or a portion of a
request to amend a record, the office will promptly:
(i) Advise the requesting individual of the specifics of the
refusal and the reasons;
(ii) Inform the individual that he may request a review of the
denial(s) from `Director, Defense Security Service, 1340 Braddock
Place, Alexandria, VA 22314-1651.' The request should be brief, in
writing, and enclose a copy of the denial correspondence.
(b) DSS determination to approve or deny. Determination to approve
or deny and request to amend a record or portion thereof may
necessitate additional investigation or inquiry be made to verify
assertions of individuals requesting amendment. Coordination will be
made with the Director for Investigations and the Director of the
Personnel Investigations Center in such instances.
Sec. 321.9 Appeal of initial amendment decision.
(a) General. Upon receipt from any individual of an appeal to
review a DSS refusal to amend a record, the Defense Security Service,
Office of FOI and Privacy will assure that such appeal is handled in
compliance with the Privacy Act of 1974 and DoD Directive 5400.11 and
accomplish the following:
(1) Review the record, request for amendment, DSS action on the
request and the denial, and direct such additional inquiry or
investigation as is deemed necessary to make a fair and equitable
determination.
(2) Recommend to the Director whether to approve or deny the
appeal.
(3) If the determination is made to amend a record, advise the
individual and previous recipients (or an appropriate office) where an
accounting of disclosures has been made.
(4) Where the decision has been made to deny the individual's
appeal to amend a record, notify the individual:
(i) Of the denial and the reason;
(ii) Of his right to file a concise statement of reasons for
disagreeing with the decision not to amend the record;
(iii) That such statement may be sent to the Defense Security
Service, Office of FOI and Privacy, (GCF), 1340 Braddock Place,
Alexandria, VA 22314-1651, and that it will be disclosed to users of
the disputed record;
(iv) That prior recipients of the disputed record will be provided
a copy of the statement of disagreement, or if they cannot be reached
(e.g., through deactivation) the personnel security element of their
DoD component;
(v) And, that he may file a suit in a Federal District Court to
contest DSS's decision not to amend the disputed record.
(b) Time limit for review of appeal. If the review of an appeal of
a refusal to amend a record cannot be accomplished within 30 days, the
Office of FOI and Privacy will notify the individual and advise him of
the reasons, and inform him of when he may expect the review to be
completed.
Sec. 321.10 Disclosure to other than subject.
(a) General. No record contained in a system of records maintained
by DSS shall be disclosed by any means to any person or agency outside
the Department of Defense, except with the written consent or request
of the individual subject of the record, except as provided in this
section. Disclosures that may be made without the request or consent of
the subject of the record are as follows:
(1) To those officials and employees of the Department of Defense
who have a need for the record in the performance of their duties, when
the use is compatible with the stated purposes for which the record is
maintained.
(2) Required to be disclosed by the Freedom of Information Act.
(3) For a routine use as described in DoD Directive 5400.11.
(4) To the Census Bureau, National Archives, the U.S. Congress, the
Comptroller General or General Accounting Office under the conditions
specified in DoD Directive 5400.11.
(5) At the written request of the head of an agency outside DoD for
a law enforcement activity as authorized by DoD Directive 5400.11.
(6) For statistical purposes, in response to a court order, or for
compelling circumstances affecting the health or safety of an
individual as described in DoD Directive 5400.11.
(7) Legal guardians recognized by the Act.
(b) Accounting of disclosures. Except for disclosures made to
members of the DoD in connection with their routine duties, and
disclosures required by the Freedom of Information Act, an accounting
will be kept of all disclosures of records maintained in DSS systems.
(1) Accounting entries will normally be kept on a DSS form, which
will be maintained in the record file jacket, or in a document that is
part of the record.
(2) Accounting entries will record the date, nature and purpose of
each disclosure, and the name and address of the person or agency to
whom the disclosure is made.
(3) An accounting of disclosures made to agencies outside the DoD
of records in the Defense Clearance and Investigations Index (V5-02)
will be kept as prescribed by the Director of Systems, DSS.
(4) Accounting records will be maintained for at least 5 years
after the last disclosure, or for the life of the record, whichever is
longer.
(5) Subjects of DSS records will be given access to associated
accounting records upon request, except as exempted under Sec. 321.13.
Sec. 321.11 Fees.
Individuals may request copies for retention of any documents to
which they are granted access in DSS records pertaining to them.
Requestors will not be charged for the first copy of any
[[Page 49664]]
records provided; however, duplicate copies will require a charge to
cover costs of reproduction. Such charges will be computed in
accordance with DoD Directive 5400.11.
Sec. 321.12 Penalties.
(a) An individual may bring a civil action against the DSS to
correct or amend the record, or where there is a refusal to comply with
an individual request or failure to maintain any record with accuracy,
relevance, timeliness and completeness, so as to guarantee fairness, or
failure to comply with any other provision of 5 U.S.C. 552a. The court
may order correction or amendment. It may assess against the United
States reasonable attorney fees and other costs, or may enjoin the DSS
from withholding the records and order the production to the
complainant.
(b) Where it is determined that the action was willful or
intentional with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United
States shall be liable for the actual damages sustained, but in no case
less than the sum of $1,000 and the costs of the action with attorney
fees.
(c) Criminal penalties may be imposed against an officer or
employee of the DSS who fully discloses material, which he knows is
prohibited from disclosure, or who willfully maintains a system of
records without the notice requirements; or against any person who
knowingly and willfully requests or obtains any record concerning an
individual from an agency under false pretenses. These offenses shall
be misdemeanors with a fine not to exceed $5,000.
Sec. 321.13 Exemptions.
(a) General. The Director of the Defense Security Service
establishes the following exemptions of records systems (or portions
thereof) from the provisions of these rules, and other indicated
portions of Pub. L. 93-579, in this section. They may be exercised only
by the Director, Defense Security Service and the Chief of the Office
of FOI and Privacy. Exemptions will be exercised only when necessary
for a specific, significant and legitimate reason connected with the
purpose of a records system, and not simply because they are authorized
by statute. Personal records releasable under the provisions of 5
U.S.C. 552 will not be withheld from subject individuals based on these
exemptions.
(b) All systems of records maintained by DSS shall be exempt from
the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to
the extent that the system contains any information properly classified
under Executive Order 12958 and which is required by the Executive
Order to be withheld in the interest of national defense of foreign
policy. This exemption, which may be applicable to parts of all systems
of records, is necessary because certain record systems not otherwise
specifically designated for exemptions herein may contain items of
information that have been properly classified.
(c) System identifier: V1-01.
(1) System name: Privacy and Freedom of Information Request
Records.
(2) Exemptions: (i) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit
for which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(ii) Records maintained in connection with providing protective
services to the President and other individuals under 18 U.S.C. 3506,
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iii) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source.
(iv) Any portion of this system that falls under the provisions of
5 U.S.C. 552a(k)(2), (k)(3), (k)(5) may be exempt from the following
subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and
(I); and (f).
(3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), (k)(5).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS
to conduct certain investigations and relay law enforcement information
without compromise of the information, protection of investigative
techniques and efforts employed, and identities of confidential sources
who might not otherwise come forward and who furnished information
under an express promise that the sources' identity would be held in
confidence (or prior to the effective date of the Act, under an implied
promise);
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it
will provide protection against notification of investigatory material
including certain reciprocal investigations and counterintelligence
information, which might alert a subject to the fact that an
investigation of that individual is taking place, and the disclosure of
which would weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy who furnished
information under an express promise that the sources' identity would
be held in confidence (or prior to the effective date of the Act, under
an implied promise);
(iii) From subsections (d) and (f) because requiring DSS to grant
access to records and agency rules for access and amendment of records
would unfairly impede the agency's investigation of allegations of
unlawful activities. To require DSS to confirm or deny the existence of
a record pertaining to a requesting individual may in itself provide an
answer to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of record, disclosure of the record
to the subject, and record amendment procedures.
(d) System identifier: V5-01.
(1) System name: Investigative Files System
(2) Exemption: (i) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit
for which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(ii) Records maintained in connection with providing protective
services to the President and other individuals under 18 U.S.C. 3506,
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iii) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source.
(iv) Any portion of this system that falls under the provisions of
5 U.S.C. 552a(k)(2), (k)(3), or (k)(5) may be
[[Page 49665]]
exempt from the following subsections of 5 U.S.C. 552a(c)(3); (d);
(e)(1); (e)(4)(G), (H), and (I); and (f).
(3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS
to conduct certain investigations and relay law enforcement information
without compromise of the information, protection of investigative
techniques and efforts employed, and identities of confidential sources
who might not otherwise come forward and who furnished information
under an express promise that the sources' identity would be held in
confidence (or prior to the effective date of the Act, under an implied
promise).
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it
will provide protection against notification of investigatory material
including certain reciprocal investigations and counterintelligence
information, which might alert a subject to the fact that an
investigation of that individual is taking place, and the disclosure of
which would weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy who furnished
information under an express promise that the sources' identity would
be held in confidence (or prior to the effective date of the Act, under
an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant
access to records and agency rules for access and amendment of records
would unfairly impede the agency's investigation of allegations of
unlawful activities. To require DSS to confirm or deny the existence of
a record pertaining to a requesting individual may in itself provide an
answer to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of record, disclosure of the record
to the subject, and record amendment procedures.
(e) System identifier: V5-02.
(1) System name: Defense Clearance and Investigations Index (DCII).
(2) Exemption: Investigatory material compiled for law enforcement
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he
would otherwise be entitled by Federal law or for which he would
otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source. Any portion of this system that falls under the
provisions of 5 U.S.C. 552a(k)(2) may be exempt from the following
subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and
(I), and (f).
(3) Authority: 5 U.S.C. 552a(k)(2).
(4) Reasons: (i) From subsection (c)(3) because it will enable DSS
to conduct certain investigations and relay law enforcement information
without compromise of the information, protection of investigative
techniques and efforts employed, and identities of confidential sources
who might not otherwise come forward and who furnished information
under an express promise that the sources' identity would be held in
confidence (or prior to the effective date of the Act, under an implied
promise).
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it
will provide protection against notification of investigatory material
including certain reciprocal investigations and counterintelligence
information, which might alert a subject to the fact that an
investigation of that individual is taking place, and the disclosure of
which would weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy who furnished
information under an express promise that the sources' identity would
be held in confidence (or prior to the effective date of the Act, under
an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant
access to records and agency rules for access and amendment of records
would unfairly impede the agency's investigation of allegations of
unlawful activities. To require DSS to confirm or deny the existence of
a record pertaining to a requesting individual may in itself provide an
answer to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of record, disclosure of the record
to the subject, and record amendment procedures.
(f) System identifier: V5-03.
(1) System name: Case Control Management System (CCMS).
(2) Exemption: (i) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit
for which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(ii) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source. Any portion of this system that falls under the
provisions of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3); (d); (e)(1); (e)(4)(G),
(H), and (I); and (f).
(3) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
(4) Reasons. (i) From subsection (c)(3) because it will enable DSS
to conduct certain investigations and relay law enforcement information
without compromise of the information, protection of investigative
techniques and efforts employed, and identities of confidential sources
who might not otherwise come forward and who furnished information
under an express promise that the sources' identity would be held in
confidence (or prior to the effective date of the Act, under an implied
promise).
(ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it
will provide protection against notification of investigatory material
including certain reciprocal investigations and counterintelligence
information, which might alert a subject to the fact that an
investigation of that individual is taking place, and the disclosure of
which would weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy who furnished
information under an express promise that the sources' identity would
be held in confidence (or prior to the effective date of the Act, under
an implied promise).
(iii) From subsections (d) and (f) because requiring DSS to grant
access to records and agency rules for access and amendment of records
would unfairly impede the agency's investigation of allegations of
unlawful activities. To require DSS to confirm or deny the existence of
a record pertaining to a requesting individual may in itself provide an
answer to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of
[[Page 49666]]
record, disclosure of the record to the subject, and record amendment
procedures.
(g) System identifier: V5-04.
(1) System name: Counterintelligence Issues Database (CII-DB).
(2) Exemption: (i) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(ii) Investigatory material compiled for law enforcement purposes
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he
would otherwise be entitled by Federal law or for which he would
otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(iii) Records maintained in connection with providing protective
services to the President and other individuals under 18 U.S.C. 3506,
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(iv) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of
a confidential source.
(v) Any portion of this system that falls within the provisions of
5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5) may be exempt from the
following subsections (c)(3); (d)(1) through (d)(5); (e)(1); (e)(4)(G),
(H), and (I); and (f).
(3) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5).
(4) Reasons. (i) From subsection (c)(3) because giving the
individual access to the disclosure accounting could alert the subject
of an investigation to the existence and nature of the investigation
and reveal investigative or prosecutive interest by other agencies,
particularly in a joint-investigation situation. This would seriously
impede or compromise the investigation and case preparation by
prematurely revealing its existence and nature; compromise or interfere
with witnesses or make witnesses reluctant to cooperate with the
investigators; lead to suppression, alteration, fabrication, or
destruction of evidence; and endanger the physical safety of
confidential sources, witnesses, law enforcement personnel and their
families.
(ii) From subsection (d) because the application of these
provisions could impede or compromise an investigation or prosecution
if the subject of an investigation had access to the records or were
able to use such rules to learn of the existence of an investigation
before it would be completed. In addition, the mere notice of the fact
of an investigation could inform the subject and others that their
activities are under or may become the subject of an investigation and
could enable the subjects to avoid detection or apprehension, to
influence witnesses improperly, to destroy evidence, or to fabricate
testimony.
(iii) From subsection (e)(1) because during an investigation it is
not always possible to detect the relevance or necessity of each piece
of information in the early stages of an investigation. In some cases,
it is only after the information is evaluated in light of other
evidence that its relevance and necessity will be clear. In other
cases, what may appear to be a relevant and necessary piece of
information may become irrelevant in light of further investigation. In
addition, during the course of an investigation, the investigator may
obtain information that related primarily to matters under the
investigative jurisdiction of another agency, and that information may
not be reasonably segregated. In the interest of effective law
enforcement, DSS investigators should retain this information, since it
can aid in establishing patterns of criminal activity and can provide
valuable leads for Federal and other law enforcement agencies.
(iv) From subsections (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f)
because this system is exempt from subsection (d) of the Act,
concerning access to records. These requirements are inapplicable to
the extent that these records will be exempt from these subsections.
However, DSS has published information concerning its notification and
access procedures, and the records source categories because under
certain circumstances, DSS could decide it is appropriate for an
individual to have access to all or a portion of his/her records in
this system of records.
Sec. 321.14 DSS implementation policies.
(a) General. The implementation of the Privacy Act of 1974 within
DSS is as prescribed by DoD Directive 5400.11. This section provides
special rules and information that extend or amplify DoD policies with
respect to matters of particular concern to the Defense Security
Service.
(b) Privacy Act rules application. Any request which cites neither
Act, concerning personal record information in a system or records, by
the individual to whom such information pertains, for access,
amendment, correction, accounting of disclosures, etc., will be
governed by the Privacy Act of 1974, DoD Directive 5400.11 and these
rules exclusively. Requests for like information which cite only the
Freedom of Information Act will be governed by the Freedom of
Information Act, DoD Regulation 5400.7R \2\. Any denial or exemption of
all or part of a record from notification, access, disclosure,
amendment or other provision, will also be processed under these rules,
unless court order or other competent authority directs otherwise.
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\2\ See footnote 1 to 321.1.
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(c) First amendment rights. No DSS official or element may maintain
any information pertaining to the exercise by an individual of his
rights under the First Amendment without the permission of that
individual unless such collection is specifically authorized by statute
or necessary to and within the scope of an authorized law enforcement
activity.
(d) Standards of accuracy and validation of records. (1) All
individuals or elements within DSS which create or maintain records
pertaining to individuals will insure that they are reasonably
accurate, relevant, timely and complete to serve the purpose for which
they are maintained and to assure fairness to the individual to whom
they pertain. Information that is not pertinent to a stated purpose of
a system of records will not be maintained within those records.
Officials compiling investigatory records will make every reasonable
effort to assure that only reports that are impartial, clear, accurate,
complete, fair and relevant with respect to the authorized purpose of
such records are included, and that reports not meeting these standards
or serving such purposes are not included in such records.
(2) Prior to dissemination to an individual or agency outside DoD
of any record about an individual (except for a Freedom of Information
Act action or access by a subject individual under these rules) the
disclosing DSS official will by review, make a reasonable effort to
assure that such record is accurate, complete, timely, fair and
relevant to the purpose for which they are maintained.
(e) The Defense Clearance and Investigations Index (DCII). It is
the policy of DSS, as custodian, that each DoD component or element
that has
[[Page 49667]]
direct access to or contributes records to the DCII (V5-02), is
individually responsible for compliance with the Privacy Act of 1974
and DoD Directive 5400.11 with respect to requests for notification,
requests for access by subject individuals, granting of such access,
request for amendment and corrections by subjects, making amendments or
corrections, other disclosures, accounting for disclosures and the
exercise of exemptions, insofar as they pertain to any record placed in
the DCII by that component or element. Any component or element of the
DoD that makes a disclosure of any record whatsoever to an individual
or agency outside the DoD, from the DCII, is individually responsible
to maintain an accounting of that disclosure as prescribed by the
Privacy Act of 1974 and DoD Directive 5400.11 and to notify the element
placing the record in the DCII of the disclosure. Use of and compliance
with the procedures of the DCII Disclosure Accounting System will meet
these requirements. Any component or element of DoD with access to the
DCII that, in response to a request concerning an individual, discovers
a record pertaining to that individual placed in the DCII by another
component or element, may refer the requester to the DoD component that
placed the record into the DCII without making an accounting of such
referral, although it involves the divulging of the existence of that
record. Generally, consultation with, and referral to, the component or
element placing a record in the DCII should be effected by any
component receiving a request pertaining to that record to insure
appropriate exercise of amendment or exemption procedures.
(f) Investigative operations. (1) DSS agents must be thoroughly
familiar with and understand these rules and the authorities, purposes
and routine uses of DSS investigative records, and be prepared to
explain them and the effect of refusing information to all sources of
investigative information, including subjects, during interview, in
response to questions that go beyond the required printed and oral
notices. Agents shall be guided by DSS Handbook for Personnel Security
Investigations in this respect.
(2) All sources may be advised that the subject of an investigative
record may be given access to it, but that the identities of sources
may be withheld under certain conditions. Such advisement will be made
as prescribed in DSS Handbook for Personnel Security Investigations,
and the interviewing agent may not urge a source to request a grant of
confidentiality. Such pledges of confidence will be given sparingly and
then only when required to obtain information relevant and necessary to
the stated purpose of the investigative information being collected.
(g) Non-system information on individuals. The following
information is not considered part of personal records systems
reportable under the Privacy Act of 1974 and may be maintained by DSS
members for ready identification, contact, and property control
purposes only. If at any time the information described in this
paragraph is to be used for other than these purposes, that information
must become part of a reported, authorized record system. No other
information concerning individuals except that described in the records
systems notice and this paragraph may be maintained within DSS.
(1) Identification information at doorways, building directories,
desks, lockers, name tags, etc.
(2) Identification in telephone directories, locator cards and
rosters.
(3) Geographical or agency contact cards.
(4) Property receipts and control logs for building passes,
credentials, vehicles, weapons, etc.
(5) Temporary personal working notes kept solely by and at the
initiative of individual members of DSS to facilitate their duties.
(h) Notification of prior recipients. Whenever a decision is made
to amend a record, or a statement contesting a DSS decision not to
amend a record is received from the subject individual, prior
recipients of the record identified in disclosure accountings will be
notified to the extent possible. In some cases, prior recipients cannot
be located due to reorganization or deactivations. In these cases, the
personnel security element of the receiving Defense Component will be
sent the notification or statement for appropriate action.
(i) Ownership of DSS Investigative Records. Personnel security
investigative reports shall not be retained by DoD recipient
organizations. Such reports are considered to be the property of the
investigating organization and are on loan to the recipient
organization for the purpose for which requested. All copies of such
reports shall be destroyed within 120 days after the completion of the
final personnel security determination and the completion of all
personnel action necessary to implement the determination. Reports that
are required for longer periods may be retained only with the specific
written approval of the investigative organization.
(j) Consultation and referral. DSS system of records may contain
records originated by other components or agencies which may have
claimed exemptions for them under the Privacy Act of 1974. When any
action that may be exempted is initiated concerning such a record,
consultation with the originating agency or component will be effected.
Where appropriate such records will be referred to the originating
component or agency for approval or disapproval of the action.
Dated: September 8, 1999.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 99-23824 Filed 9-13-99; 8:45 am]
BILLING CODE 5001-10-F
