§ 16.138 Exemption of the Department of Justice Information Technology, Information System, and Network Activity and Access Records, JUSTICE/DOJ-002. ( a ) The Department of Justice Information Technology, Information System, and Network Activity and Access Records (JUSTICE/DOJ-002) system of records is exempted from subsections (c)(3); (d)(1), (2), (3) and (4); (e)(1), (e)(4)(G), (H), and (I); and (f) of the Privacy Act of 1974, as amended. The exemptions in this paragraph (a) apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(1) or (k)(2). The applicable exemption may be waived by the DOJ in its sole discretion where DOJ determines compliance with the exempted provisions of the Act would not interfere with or adversely affect the purpose of this system of records to ensure that the Department can track information system access and implement information security protections commensurate with the risk and magnitude of harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of DOJ information and DOJ information systems.
( b ) Exemptions from the particular subsections listed in paragraph (a) of this section are justified for the following reasons: ( 1 ) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because this system of records is exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures of records concerning the subject would specifically reveal investigative interests in the records by the DOJ or other entities that are recipients of the disclosures. Revealing this information could compromise sensitive information classified in the interest of national security, or interfere with the overall law enforcement process by revealing a pending sensitive cybersecurity investigation. Revealing this information could also permit the record subject to obtain valuable insight concerning the information obtained during any investigation and to take measures to impede the investigation, *e.g.,* destroy evidence or alter techniques to evade discovery.
( 2 ) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H), and (f) because these provisions concern individual access to and amendment of records, compliance with which regarding certain law enforcement and classified records could alert the subject of an authorized law enforcement activity about that particular activity and the interest of the DOJ and/or other law enforcement or intelligence agencies. Providing access could compromise information classified to protect national security, or reveal sensitive cybersecurity investigative techniques; provide information that would allow a subject to avoid detection; or constitute a potential danger to the health or safety of law enforcement personnel or confidential sources.
( 3 ) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for law enforcement and intelligence purposes. The relevance and utility of certain information that may have a nexus to cybersecurity threats may not always be fully evident until and unless it is vetted and matched with other information lawfully maintained by the DOJ or other entities.
( 4 ) From subsection (e)(4)(I), to the extent that this subsection is interpreted to require more detail regarding the record sources in this system than has been published in the Federal Register. Should the subsection be so interpreted, exemption from this provision is necessary to protect the sources of law enforcement and intelligence information. Further, greater specificity of sources of properly classified records could compromise national security.
[CPCLO Order No. 010-2021, 86 FR 61689, Nov. 8, 2021]