(1) An individual may be denied access to a record pertaining to him or her only if the record:
(i) Was compiled in reasonable anticipation of a civil action or proceeding (see § 310.27).
(ii) Is in a system of records that has been exempted from the access provisions of this part under one of the permitted exemptions. (See § 310.28 and § 310.29.)
(iii) Contains classified information that has been exempted from the access provision of this part under the blanket exemption for such material claimed for all DoD records systems. (See § 310.26(c).).
(iv) Is contained in a system of records for which access may be denied under some other Federal statute that excludes the record from coverage of the Privacy Act (5 U.S.C. 552a).
(2) Where a basis for denial exists, do not deny the record, or portions of the record, if denial does not serve a legitimate governmental purpose.
(b)Other reasons to refuse access:
(1) An individual may be refused access if:
(i) The record is not described well enough to enable it to be located with a reasonable amount of effort on the part of an employee familiar with the file; or
(ii) Access is sought by an individual who fails or refuses to comply with the established procedural requirements, including refusing to name a physician to receive medical records when required (see paragraph (f) of § 310.17) or to pay fees (see § 310.20).
(2) Always explain to the individual the specific reason access has been refused and how he or she may obtain access.
(c)Notifying the individual. Formal denials of access must be in writing and include as a minimum:
(1) The name, title or position, and signature of a designated Component denial authority.
(2) The date of the denial.
(3) The specific reason for the denial, including specific citation to the appropriate sections of the Privacy Act (5 U.S.C. 552a) or other statutes, this part, DoD Component instructions, or CFR authorizing the denial;
(4) Notice to the individual of his or her right to appeal the denial through the Component appeal procedure within 60 calendar days; and
(5) The title or position and address of the Privacy Act appeals official for the Component.
(d)DoD Component appeal procedures. Establish internal appeal procedures that, as a minimum, provide for:
(1) Review by the Head of the Component or his or her designee of any appeal by an individual from a denial of access to Component records.
(2) Formal written notification to the individual by the appeal authority that shall:
(i) If the denial is sustained totally or in part, include as a minimum:
(A) The exact reason for denying the appeal to include specific citation to the provisions of the Act or other statute, this part, Component instructions or the CFR upon which the determination is based;
(B) The date of the appeal determination;
(C) The name, title, and signature of the appeal authority; and
(D) A statement informing the applicant of his or her right to seek judicial relief.
(ii) If the appeal is granted, notify the individual and provide access to the material to which access has been granted.
(3) The written appeal notification granting or denying access is the final Component action as regards access.
(4) The individual shall file any appeal from denial of access within no less than 60 calendar days of receipt of the denial notification.
(5) Process all appeals within 30 days of receipt unless the appeal authority determines that a fair and equitable review cannot be made within that period. Notify the applicant in writing if additional time is required for the appellate review. The notification must include the reasons for the delay and state when the individual may expect an answer to the appeal.
(e)Denial of appeals by failure to act. A requester may consider his or her appeal formally denied if the appeal authority fails:
(1) To act on the appeal within 30 days;
(2) To provide the requester with a notice of extension within 30 days; or
(3) To act within the time limits established in the Component's notice of extension (see paragraph (d)(5) of this section).
(f)Denying access to OPM records held by the DoD Components.
(1) The records in all systems of records maintained in accordance with the OPM Government-wide system notices are technically only in the temporary custody of the Department of Defense.
(2) All requests for access to these records must be processed in accordance with 5 CFR part 297 as well as applicable Component procedures.
(3) When a DoD Component refuses to grant access to a record in an OPM system, the Component shall advise the individual that his or her appeal must be directed to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, U.S. Office of Personnel Management, 1900 E Street, NW., Washington, DC, in accordance with the procedures of 5 CFR part 297.
Title 32 published on 2013-07-01
no entries appear in the Federal Register after this date.
This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.