[Federal Register Volume 71, Number 63 (Monday, April 3, 2006)]
[Proposed Rules]
[Pages 16519-16520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4693]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 71, No. 63 / Monday, April 3, 2006 / Proposed
Rules
[[Page 16519]]
DEPARTMENT OF HOMELAND SECURITY
United States Immigration and Customs Enforcement
6 CFR Part 5
[DHS-2006-0012]
Privacy Act of 1974: Implementation of Exemptions
AGENCY: Office of the Principal Legal Advisor, United States
Immigration and Customs Enforcement, Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security, Bureau of Immigration and
Customs Enforcement, is giving notice of a new system of records
pursuant to the Privacy Act of 1974 for the Office of the Principal
Legal Advisor, the General Counsel Electronic Management System. In
this proposed rulemaking, the Department proposes to exempt portions of
this system of records from one or more provisions of the Privacy Act
because of criminal, civil and administrative enforcement requirements.
DATES: Comments must be received on or before May 3, 2006.
ADDRESSES: You may submit comments, identified by docket number DHS-
2006-0012, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Fax: 202-514-0455.
Mail: William C. Birkett, Chief, Knowledge Management Division,
Office of the Principal Legal Advisor, Immigration and Customs
Enforcement, 425 I Street, NW., Washington, DC 20536 Hand Delivery.
Courier: William C. Birkett, Chief, Knowledge Management Division,
Office of the Principal Legal Advisor, Immigration and Customs
Enforcement, 425 I Street, NW., Washington, DC 20536.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: William C. Birkett, Chief, Knowledge
Management Division, Office of the Principal Legal Advisor, Immigration
and Customs Enforcement, 425 I Street, NW., Washington, DC 20536;
Maureen Cooney, Acting Chief Privacy Officer, Department of Homeland
Security, 601 South 12th Street, Arlington, VA 22202 by telephone (571)
227-3813 or facsimile (571) 227-4171.
SUPPLEMENTARY INFORMATION:
Background
The Privacy Act requires each agency to publish in the Federal
Register a description of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system in order to make agency record keeping
practices transparent, to notify individuals regarding the uses to
which personally identifiable information is put, and to assist
individuals in finding such files within the agency. That description
appears elsewhere in today's Federal Register.
The Privacy Act allows government agencies to exempt certain
records from its access and amendment and certain other provisions. If
an agency claims an exemption, however, it must issue a Notice of
Proposed Rulemaking to make clear to the public the reasons why a
particular exemption is claimed.
The Bureau of Immigration and Customs Enforcement (ICE) of the
Department of Homeland Security (DHS) is publishing a new system of
records under the Privacy Act of 1974, 5 U.S.C. 552a. This system, the
General Counsel Electronic Management System (GEMS), will consist of
information that is created or acquired and used by attorneys working
in ICE in the preparation and presentation of cases for a court or
adjudicative body before which ICE or DHS is authorized or required to
appear. Attorneys for the Department of Justice will also be able to
access the system if they have a need for the information in the
performance of their official duties.
ICE attorneys work closely with investigators throughout the
process of adjudicating immigration cases. ICE attorneys must have
access to investigative documents and related materials in order to
inform their decisions about how to handle particular cases.
Additionally, of course, ICE attorneys create attorney work product
associated with immigration proceedings. The GEMS system will
facilitate the collection and maintenance of materials used by ICE
attorneys in immigration adjudications. It will supplement and
ultimately replace the current attorney work product paper files that
are primarily stored and managed in the hardcopy alien file commonly
known as the ``A-file.''
In this notice of proposed rulemaking, DHS is proposing to exempt
this system, in part, from certain provisions of the Privacy Act and to
add that exemption to Appendix C to Part 5, DHS Systems of Records
Exempt from the Privacy Act. Given the nature and purpose of the
proposed system of records, a significant portion of the records are
likely to be exempt from disclosure under the Privacy Act pursuant to 5
U.S.C. 552a(d)(5). This record system, however, will also derive
information or incorporate investigative materials from Privacy Act
exempt files. In order to ensure that the exemptions applicable to such
investigative materials carry over when those materials are
incorporated into the GEMS system, DHS is claiming those exemptions in
this notice of proposed rulemaking. In appropriate circumstances, where
compliance would not appear to interfere with or adversely affect the
litigation-related purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived.
List of Subjects in 6 CFR Part 5
Privacy; Freedom of information.
For the reasons stated in the preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
[[Page 16520]]
Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et
seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. At the end of Appendix C to Part 5, which was proposed to be
added at 70 FR 14428, March 22, 2005, add the following new paragraph
``4'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
4. The General Counsel Electronic Management System (GEMS) consists
of records and information created or collected by attorneys for the
Bureau of Immigration and Customs Enforcement, which will be used in
the preparation and presentation of cases before a court or other
adjudicative body. ICE attorneys work closely with their investigators
throughout the process of adjudicating immigration cases. GEMS allows
ICE attorneys to store all the materials pertaining to immigration
adjudications, including documents related to investigations, case
notes and other hearing related information, and briefs and memoranda
of law related to cases. Having this information in one system should
not only facilitate the work of the ICE attorneys involved in the
particular case, but also will provide a legal resource for other
attorneys who are adjudicating similar cases. The system will also
provide management capabilities for tracking time and effort expended
in the preparation and presentation of cases.
Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a (k)(1) and
(k)(2), this system is exempt from the following provisions of the
Privacy Act, subject to the limitations set forth in those subsections:
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
Exemptions from these particular subsections are justified, on a case-
by-case basis to be determined at the time a request is made, for the
following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation, to the existence of the investigation, which in some cases
may be classified, and reveal investigative interest on the part of DHS
or ICE. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the accounting would also permit the
individual who is the subject of a record to impede the investigation,
tamper with witnesses or evidence, and avoid detection or apprehension,
which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
an investigation pertaining to an immigration matter, which in some
cases may be classified, and prematurely reveal investigative interest
on the part of DHS or another agency. Access to the records could
permit the individual who is the subject of a record to impede the
investigation, tamper with witnesses or evidence, and avoid detection
or apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
federal immigration law, the accuracy of information obtained or
introduced occasionally may be unclear or the information may not be
strictly relevant or necessary to a specific investigation. In the
interests of effective law enforcement and for the protection of
national security, it is appropriate to retain all information that may
aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject of the nature or
existence of an investigation, which could cause interference with the
investigation, a related inquiry or other law enforcement activities,
some of which may be classified.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f)
(Agency Rules), and (g) (Civil Remedies) because portions of this
system are exempt from the individual access provisions of subsection
(d).
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with ICE's ability to obtain, serve, and
issue subpoenas, warrants and other law enforcement mechanisms that may
be filed under seal, and could result in disclosure of investigative
techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Dated: March 23, 2006.
Maureen Cooney,
Acting Chief Privacy Officer.
[FR Doc. E6-4693 Filed 3-31-06; 8:45 am]
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