[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50902-50903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23525]
[[Page 50901]]
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Part III
Department of Homeland Security
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6 CFR Part 5
Privacy Act of 1974: Implementation of Exemptions; Final Rules
Federal Register / Vol. 74 , No. 189 / Thursday, October 1, 2009 /
Rules and Regulations
[[Page 50902]]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0068]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a Department of Homeland
Security system of records entitled the ``Department of Homeland
Security/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security System of Records'' from certain provisions of the Privacy
Act. Specifically, the Department exempts portions of the Department of
Homeland Security/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security system from one or more provisions of the Privacy Act because
of criminal, civil, and administrative enforcement requirements.
DATES: Effective Date: This final rule is effective October 1, 2009.
FOR FURTHER INFORMATION CONTACT: For general questions and privacy
issues, please contact: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer, Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 74 FR 2903, January 16,
2009, proposing to exempt portions of the system of records from one or
more provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. The system of records is the
DHS/ALL--025 Law Enforcement Authority in Support of the Protection of
Property Owned or Occupied by the Department of Homeland Security
system. The DHS/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security system of records notice was published concurrently in the
Federal Register, 74 FR 3088, January 16, 2009, and comments were
invited on both the notice of proposed rulemaking and system of records
notice. Public comments were received on the notice of proposed
rulemaking and the system of records notice.
Public Comments
DHS received two public comments on the notice of proposed
rulemaking and one public comment on the system of records notice.
The two public comments received on the notice of proposed
rulemaking were in support of the use of exemptions for this system of
records noting that exemptions are needed at times to refrain from
informing those who may be criminally or civilly prosecuted that may
tamper with the investigation. Permitting access to certain documents
would disclose information that would put homeland security at risk.
Further, public comments stated that classified information must be
safeguarded in order for DHS to operate efficiently. DHS concurs with
these two public comments on the notice of proposed rulemaking and
further establishes the rationale to make this proposed rule final.
The one public comment received on the system of records notice
focused on concern over the Department collecting ``bias-related''
information unless the public has an opportunity to see what criteria
are utilized to establish the bias, the bias-ratings, and the groups
which the Federal government seeks to monitor. The Department is unsure
of what the author means by ``bias-related'' information. Information
collected will only be within the parameter of this authority, by those
delegated the authority from the Secretary of Homeland Security,
without a premeditated bias-related focus. The purpose of this system
is to maintain and record the results of law enforcement activities in
support of the protection of property owned or occupied by DHS. The
Secretary of Homeland Security was given this authority through the
Homeland Security Act of 2002. The Department will appropriately
safeguard all information collected pursuant to this system of records
notice. DHS will implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
0
For the reasons stated in the preamble, DHS amends Chapter I of Title
6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 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.
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2. In Appendix C to Part 5, add a new paragraph 38 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
38. The DHS/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of
Homeland Security system of records consists of electronic and paper
records and will be used by DHS and its components. The DHS/ALL--025
Law Enforcement Authority in Support of the Protection of Property
Owned or Occupied by the Department of Homeland Security system is a
repository of information held by DHS in connection with its several
and varied missions and functions, including, but not limited to:
The enforcement of civil and criminal laws; investigations,
inquiries, and proceedings there under; and national security and
intelligence activities. The DHS/ALL--025 Law Enforcement Authority
in Support of the Protection of Property Owned or Occupied by the
Department of Homeland Security system contains information that is
collected by, on behalf of, in support of, or in cooperation with
DHS and its components and may contain personally identifiable
information collected by other Federal, State, local, tribal,
foreign, or international government agencies. The Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to the limitations set forth
in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I), and (f) pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and
(k)(5). 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, and
reveal investigative interest on the part of DHS as well as the
recipient agency. 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, to tamper with witnesses or evidence, and
to 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 of an actual or potential criminal,
civil, or regulatory
[[Page 50903]]
violation, to the existence of the investigation, and 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, to tamper with witnesses or
evidence, and to 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 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, it is appropriate to retain
all information that may aid in establishing patterns of unlawful
activity.
(d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements), and (f) (Agency Rules) because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23525 Filed 9-30-09; 8:45 am]
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