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Defense Privacy Board Advisory Opinions
THE PRIVACY ACT GENERAL EXEMPTION DOES NOT FOLLOW THE RECORD
A record created and maintained in a criminal law enforcement system of records and properly exempted under the general exemption of the Privacy Act, 5 U.S.C. § 552a(j)(2), may not retain that exemption when a copy of the record is permanently filed in a system of records maintained by a non–criminal law enforcement activity. Specifically, copies of records otherwise afforded a general exemption will lose their exempt character when permanently filed in nonexempt systems.
Invoking the general exemption should be limited to certain systems of records maintained by only Department of Defense (DoD) criminal law enforcement activities. Such activities include police efforts to prevent, control and reduce crime or to apprehend criminals and the activities of prosecutors, courts, correctional, probation, pardon or parole authorities. The general exemption is not for systems of records maintained by any other DoD activity that may have copies of reports of criminal investigations. Congress intended that only activities which perform criminal law enforcement functions are entitled to this general exemption for a record system. Merely filing a few criminal law enforcement records in one of its records systems will not entitle an activity not involved in criminal law enforcement to invoke a general exemption for the entire system.
Individuals seeking access under the Privacy Act to criminal law enforcement records in the temporary custody of a command or activity should be directed to the organization that created the records. However, any activity's files concerning adjudication or other personnel actions based on criminal law enforcement records are the records, without the general exemption, of the using activity which shall respond to all Privacy Act requests other than those seeking access to or amendment of the criminal law enforcement record.