DoD Seeks Comments on Privacy Act Exemptions for Inspector General Criminal Investigation Records

Content

ACTION:

Proposed rule.

SUMMARY:

The Department of Defense (Department or DoD) is giving notice of a proposed rulemaking to exempt portions of the “Inspector
General Criminal Investigation Records,” CIG-04, system of records from certain provisions of the Privacy Act because of national
security and law enforcement requirements and to avoid interference during the conduct of criminal investigations. The DoD
is giving concurrent notice of a modified system of records elsewhere in today's issue of the
Federal Register
.

DATES:

Send comments on or before June 9, 2026.

ADDRESSES:

You may submit comments, identified by docket number, Regulation Identifier Number (RIN), and title, by any of the following
methods.

Federal Rulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Department of Defense, Office of the Director of Administration and Management, Privacy, Civil Liberties, and Transparency
Directorate, Regulatory Division, 4800 Mark Center Drive, Attn: Mailbox #24, Suite 05F16, Alexandria, VA 22350-1700.

Instructions: All submissions received must include the agency name and docket number or RIN for this
Federal Register
document. The general policy for comments and other submissions from members of the public is to make these submissions available
for public viewing on the internet at https://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Ms. Rahwa Keleta, Chief, Privacy and Civil Liberties Division, osd.mc-alex.oatsd-pclt.mbx.pcld-sorn@mail.mil; (703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

In accordance with the Privacy Act of 1974, the Office of Inspector General (OIG) is modifying and reissuing a current system
of records titled, “Case Reporting and Information Management System Records,” CIG-04. The system of records is being retitled,
“Inspector General Criminal Investigation Records (IGCIR).”

The system consists of both electronic and paper records and will be used by the DoD OIG to maintain records about individuals
suspected of criminal misconduct and investigated pursuant to the Inspector General Act of 1978, as amended.

II. Privacy Act Exemption

The Privacy Act permits Federal agencies to exempt eligible records in a system of records from certain provisions of the
Act, including those that provide individuals with a right to request access to and amendment of their own records. If an
agency intends to exempt a particular system of records, it must first go through the rulemaking process pursuant to 5 U.S.C.
553(b)(1)-(3), (c), and (e). This proposed rule explains why an exemption is being claimed for this system of records and
invites public comment, which the DoD will consider before the issuance of a final rule implementing the exemption.

The DoD OIG proposes to modify 32 CFR part 310 to update the existing Privacy Act exemption rule for CIG-04, “Case Control
System,” to change the system name and to add exemptions for this system of records from certain provisions of the Privacy
Act because information in this system of records may fall within the scope of the following Privacy Act exemptions: 5 U.S.C.
552a(k)(1) and (k)(2). The existing exemption under 5 U.S.C. 552a(j)(2) will continue to be claimed for this system. This
rulemaking seeks public comment on the addition of exemptions under 5 U.S.C. 552a(k)(1) and (k)(2).

The DoD OIG proposes this exemption because certain records may contain classified national security information, and as a
result, notice, access, amendment, and disclosure (to include accounting for those records) to an individual and certain record-keeping
requirement may cause damage to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to
claim an exemption for systems of records that contain information properly classified pursuant to executive order. The DoD
OIG is proposing to claim an exemption from several provisions of the Privacy Act, including various access, amendment, disclosure
of accounting, and certain record-keeping and notice requirements pursuant to 5 U.S.C. 552a(k)(1), to prevent disclosure of
any information properly classified pursuant to executive order, as implemented by DoD Instruction 5200.01 and DoD Manual
5200.01, Volumes 1 and 3.

The DoD OIG also proposes to exempt this system of records because these records support the conduct of criminal law enforcement
activities, and certain requirements of the Privacy Act may interfere with the effective execution of these activities and
undermine good order and discipline. Pursuant to 5 U.S.C. 552a(k)(2), agencies may exempt a system of records from certain
provisions of the Privacy Act if it contains investigatory material compiled for law enforcement purposes, other than materials
within the scope of 5 U.S.C. 552a(j)(2). The DoD OIG is proposing to claim exemptions from several provisions of the Privacy
Act, including various access, amendment, disclosure of accounting, and certain record-keeping and notice requirements, pursuant
to 5 U.S.C. 552a(k)(2), to prevent the harms articulated in this rule from occurring.

Records in this system of records are only exempt from the Privacy Act to the extent that the purposes underlying the exemption
pertain to the record. A modified system of records for CIG-04 is also published in this issue of the
Federal Register
.

Regulatory Analysis

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review”

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that
this rulemaking is not a significant regulatory action.

Executive Order 14192, “Unleashing Prosperity Through Deregulation”

This rule is not subject to Executive Order 14192, because this rule is not a significant regulatory action under Executive
Order 12866.

Congressional Review Act (5 U.S.C. 804(2))

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. DoD will submit a report
containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. A major rule may take effect no earlier than 60 calendar days after Congress receives the rule
report or the

  rule is published in the 
  Federal Register
  , whichever is later. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 202, Public Law 104-4, “Unfunded Mandates Reform Act”

Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532(a)) requires agencies to assess anticipated
costs and benefits before issuing any rule whose mandates may result in the expenditure by State, local and Tribal governments
in the aggregate, or by the private sector, in any one year of $100 million in 1995 dollars, updated annually for inflation.
This rulemaking will not mandate any requirements for State, local, or Tribal governments, nor will it affect private sector
costs.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601 et seq.)

The Director of Administration and Management has certified that this rulemaking is not subject to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This
rulemaking is concerned only with the administration of Privacy Act systems of records within the DoD. Therefore, the Regulatory
Flexibility Act, as amended, does not require DoD to prepare a regulatory flexibility analysis.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. 3501 et seq.)

The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) was enacted to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions;
Federal contractors; State, local and Tribal governments; and other persons resulting from the collection of information by
or for the Federal Government. The Act requires agencies obtain approval from the Office of Management and Budget before using
identical questions to collect information from ten or more persons. This rulemaking does not impose reporting or recordkeeping
requirements on the public.

Executive Order 13132, “Federalism”

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that has federalism
implications, imposes substantial direct requirement costs on State and local governments, and is not required by statute,
or has federalism implications and preempts State law. This rulemaking will not have a substantial effect on State and local
governments.

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments”

Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or affects
the distribution of power and responsibilities between the Federal Government and Indian tribes. This rulemaking will not
have a substantial effect on Indian tribal governments.

List of Subjects in 32 CFR Part 310

Privacy.

Accordingly, 32 CFR part 310 is proposed to be amended as follows:

PART 310—PROTECTION OF PRIVACY AND ACCESS TO AND AMENDMENT OF INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974

1. The authority citation for 32 CFR part 310 continues to read as follows:

Authority:

5 U.S.C. 552a.

1. Amend § 310.28 by revising paragraph (c)(1) to read as follows:

§ 310.28 Office of the Inspector General (OIG) exemptions. * * * * *

(c) * * *

(1) System identifier and name. CIG-04, Inspector General Criminal Investigation Records.

(i) Exemptions. This system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); (e)(4)(G),
(H), and (I); (e)(5); (e)(8); (f) and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). This system of records is exempt
from 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f) of the Privacy Act pursuant
to 5 U.S.C. 552a(k)(1) and (k)(2).

(ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).

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

(A) Subsections (c)(3), (d)(1), and (d)(2).

(1) Exemption (j)(2). Records in this system of records may contain investigatory material compiled for criminal law enforcement purposes to include
information identifying criminal offenders and alleged offenders, information compiled for the purpose of criminal investigation,
or reports compiled during criminal law enforcement proceedings. Application of exemption (j)(2) may be necessary because
access to, amendment of, or release of the accounting of disclosures of such records could inform the record subject of an
investigation of the existence, nature, or scope of an actual or potential law enforcement or disciplinary investigation,
and thereby seriously impede law enforcement or prosecutorial efforts by permitting the record subject and other persons to
whom he might disclose the records to avoid criminal penalties or disciplinary measures; reveal confidential sources who might
not have otherwise come forward to assist in an investigation and thereby hinder DoD's ability to obtain information from
future confidential sources and result in an unwarranted invasion of the privacy of others.

(2) Exemption (k)(1). Records in this system of records may contain information that is properly classified pursuant to executive order. Application
of exemption (k)(1) may be necessary because access to and amendment of the records, or release of the accounting of disclosures
for such records, could reveal classified information. Disclosure of classified records to an individual may cause damage
to national security.

(3) Exemption (k)(2). Records in this system of records may contain investigatory material compiled for law enforcement purposes other than material
within the scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) may be necessary because access to, amendment of,
or release of the accounting of disclosures of such records could: inform the record subject of an investigation of the existence,
nature, or scope of an actual or potential law enforcement investigation, and thereby seriously impede law enforcement or
prosecutorial efforts by permitting the record subject and other persons to whom he might disclose the records or the accounting
of records to avoid criminal penalties; reveal confidential sources who might not have otherwise come forward to assist in
an investigation and thereby hinder DoD's ability to obtain information from future confidential sources; and result in an
unwarranted invasion of the privacy of others.

(B) Subsection (c)(4), (d)(3) and (4). These subsections are inapplicable to the extent that an exemption is being claimed from subsections (d)(1) and (2). Accordingly,
exemption from subsection (c)(4) is claimed pursuant to (j)(2) and exemptions from subsections (d)(3) and (d)(4) are claimed
pursuant to (j)(2), (k)(1) and (k)(2).

(C) Subsection (e)(1). In the collection of information for investigatory and law enforcement purposes it is not always possible to conclusively
determine the relevance and necessity of particular information in the early stages of the investigation or adjudication.
In some instances, it will be only after the collected information is evaluated in light of other information that its relevance
and necessity for effective investigation and adjudication can be assessed. Collection of such information permits more informed
decision-making by the Department when making required disciplinary and prosecutorial determinations. Additionally, records
within this system may be properly classified pursuant to executive order. Accordingly, application of exemptions (j)(2),
(k)(1) and (k)(2) may be necessary.

(D) Subsection (e)(2). To collect information from the subject individual could serve notice that he or she is the subject of a criminal investigation
and thereby present a serious impediment to such investigations. Collection of information only from the individual accused
of criminal activity or misconduct could also subvert discovery of relevant evidence and subvert the course of justice. Accordingly,
application of exemption (j)(2) may be necessary.

(E) Subsection (e)(3). To inform individuals as required by this subsection could reveal the existence of a criminal investigation and compromise
investigative efforts. Accordingly, application of exemption (j)(2) may be necessary.

(F) Subsection (e)(4)(G) and (H). These subsections are inapplicable to the extent exemption is claimed from subsections (d)(1) and (2). Accordingly, application
of exemptions (j)(2), (k)(1) and (k)(2) may be necessary.

(G) Subsection (e)(4)(I). To the extent that this provision is construed to require more detailed disclosure than the broad, generic information currently
published in the system notice, an exemption from this provision is necessary to protect the confidentiality of sources of
information and to protect the privacy and physical safety of witnesses and informants. Accordingly, application of exemptions
(j)(2), (k)(1) and (k)(2) may be necessary.

(H) Subsection (e)(5). It is often impossible to determine in advance if investigatory records contained in this system are accurate, relevant, timely
and complete, but, in the interests of effective law enforcement, it is necessary to retain this information to maintain an
accurate record of the investigatory activity, to preserve the integrity of the investigation, and satisfy various Constitutional
and evidentiary requirements, such as mandatory disclosure of potentially exculpatory information in the investigative file
to a defendant. It is also necessary to retain this information to aid in establishing patterns of activity and provide investigative
leads. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation
brings new details to light and the accuracy of such information can only be determined through judicial processes. Accordingly,
application of exemption (j)(2) may be necessary.

(I) Subsection (e)(8). To serve notice as required by this subsection could give the subject of an investigation sufficient warning to evade investigative
efforts. Accordingly, application of exemption (j)(2) may be necessary.

(J) Subsection (f). The agency's rules are inapplicable to those portions of the system that are exempt. Accordingly, application of exemptions
(j)(2), (k)(1) and (k)(2) may be necessary.

(K) Subsection (g). This subsection is inapplicable to the extent that the system is exempt from other specific subsections of the Privacy Act.
Accordingly, an exemption from subsection (g) is claimed pursuant to (j)(2).

(iv) Exempt records from other systems. In the course of carrying out the overall purpose for this system, exempt records from other systems of records may in turn
become part of the records maintained in this system. To the extent that copies of exempt records from those other systems
of records are maintained in this system, the DoD claims the same exemptions for the records from those other systems that
are entered into this system, as claimed for the prior system(s) of which they are a part, provided the reason for the exemption
remains valid and necessary.

---

Dated: April 7, 2026. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2026-06949 Filed 4-9-26; 8:45 am] BILLING CODE 6001-FR-P

Download File

Download