§ 16.139 Exemption of the Department of Justice Data Protection Review Court Records System, JUSTICE/OPCL-001. ( a ) The Department of Justice Data Protection Review Court system of records JUSTICE/OPCL-001 is exempted from subsections 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2) and (3); (e)(4)(G), (H) and (I); (e)(5) and (8); (f) and (g) of the Privacy Act. These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j) or (k). Where DOJ determines that compliance would not appear to interfere with or adversely affect the purpose of this system to address certain violations of United States law in the conduct of United States signals intelligence activities, and not interfere with national security or law enforcement operations, the applicable exemption may be waived by the DOJ in its sole discretion.
( b ) Exemptions from these particular subsections are justified for the following reasons: ( 1 ) From the subsection (c)(3) (accounting of disclosures) requirement that an accounting be made available to the named subject of a record, because this system is exempt from the access provisions of subsection (d). Where the individual is the subject of intelligence activities, to provide that individual with the disclosure accounting records would hinder authorized United States intelligence activities by informing that individual of the existence, nature, or scope of information that is properly classified pursuant to Executive Order 12958, as amended, and thereby cause damage to the national security. Revealing this information would also be contrary to Executive Order 14086 and could compromise ongoing, authorized law enforcement and intelligence efforts, particularly efforts to identify and/or mitigate national security threats.
( 2 ) From subsection (c)(4) (notice of amendment to record recipients) notification requirements because this system is exempt from the access and amendment provisions of subsection (d) as well as the provision for making the accounting of disclosures available to an individual in subsection (c)(3). The DOJ takes seriously its obligation to maintain accurate records despite its assertion of this exemption, and to the extent it, in its sole discretion, agrees to permit amendment or correction of DOJ records, it will share that information in appropriate cases.
( 3 ) From subsection (d)(1), (2), (3) and (4) (record subject's right to access and amend records), (e)(4)(G) and (H) (publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents), (e)(8) (notice of compelled disclosures), (f) (agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) and (g) (civil remedies) because these provisions concern individual access to and amendment of records containing national security, law enforcement, intelligence, counterintelligence and counterterrorism sensitive information that could alert the subject of an authorized law enforcement or intelligence activity about that particular activity and the interest of the DOJ and/or other law enforcement or intelligence agencies in the subject. Providing access could compromise information classified to protect national security; disclose information that would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigative or intelligence technique; provide information that would allow a subject to avoid detection or apprehension; or constitute a potential danger to the health or safety of law enforcement personnel, confidential sources, witnesses, or other individuals. Nevertheless, DOJ has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records, particularly if information pertaining to the individual has been declassified.
( 4 ) From subsection (e)(1) (maintain only relevant and necessary records) because the Data Protection Review Court (DPRC), in the course of receiving information pursuant to an application for review, including the Office of the Director of National Intelligence (ODNI) Civil Liberties Protection Officer's (CLPO) record of review, may receive records that are ultimately deemed irrelevant or unnecessary for the adjudication of the matter. Relevance and necessity are questions of judgment and timing; what appears relevant and necessary when collected ultimately may be deemed unnecessary. It is only after the information is assessed that its relevancy and necessity can be established. Even if the records received are ultimately determined to be irrelevant or unnecessary to the adjudication of an application for review, the Office of Privacy and Civil Liberties (OPCL) generally must nevertheless retain such records to maintain an accurate and complete record of the information reviewed by the DPRC.
( 5 ) From subsection (e)(2) (collection directly from the individual) and (3) (provide Privacy Act Statement to subjects furnishing information). The DPRC will rely on records received from the ODNI CLPO, including records that the ODNI CLPO received from other elements of the Intelligence Community. The collection efforts of agencies that supply information ultimately received by the DPRC would be thwarted if the agencies were required to collect information with the subject's knowledge. Application of these provisions would put the subject of United States signals intelligence activities on notice of the signals intelligence activities and allow the subject an opportunity to engage in conduct intended to impede the investigative activity or avoid apprehension.
( 6 ) From subsection (e)(4)(I) (identifying sources of records in the system of records), 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 disclosure of properly classified national security and law enforcement sensitive information. Further, greater specificity of sources of properly classified records could compromise national security.
( 7 ) From subsection (e)(5) (maintain timely, accurate, complete and up-to-date records) because many of the records in the system were derived from other domestic and foreign agency record systems over which DOJ exercises no control. It is often impossible to determine in advance if intelligence records contained in this system are accurate, relevant, timely and complete, but in the interest of maintaining a complete record of the information reviewed by the DPRC in each case, it is necessary to retain this information. The restrictions imposed by subsection (e)(5) would impede development of the record for review and limit the DPRC's ability to exercise independent judgment in the adjudication of applications for review.
( 8 ) Continue in effect and assert all exemptions claimed under 5 U.S.C. 552a(j) or (k) by an originating agency from which DOJ obtains records where the purposes underlying the original exemption remain valid and necessary to protect the contents of the record.
[88 FR 60585, Sept. 5, 2023]