[Federal Register: October 28, 2009 (Volume 74, Number 207)]
[Proposed Rules]
[Page 55484-55485]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc09-18]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0097]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL-001 Freedom of Information Act and Privacy Act
Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of an updated and reissued system of records pursuant to the
Privacy Act of 1974 for the Department of Homeland Security/ALL-001
Freedom of Information Act and Privacy Act Records System of Records
and this proposed rulemaking. In this proposed rulemaking, the
Department proposes 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.
DATES: Comments must be received on or before November 27, 2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0097, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer and Chief
Freedom of Information Act Officer, Privacy Office, Department of
Homeland Security, Washington, DC 20528.
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: For general questions and privacy
issues please contact: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer and Chief Freedom of Information Act Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background: The Department of Homeland Security (DHS) and its
components and offices rely on the Privacy Act system of records
notice, DHS/ALL-001 Freedom of Information Act and Privacy Act Records
System of Records (69 FR 70460, December 6, 2004) for the collection
and maintenance of records that concern the Department's Freedom of
Information Act (FOIA) and Privacy Act (PA) records.
As part of its efforts to maintain its Privacy Act records systems,
DHS is updating and reissuing a Department-wide system of records under
the Privacy Act (5 U.S.C. 552a) for DHS FOIA and PA records. This will
ensure that all components of DHS follow the same privacy rules for
collecting and handling FOIA and PA records. The collection and
maintenance of this information will assist DHS in managing the
Department's FOIA and PA records.
The Privacy Act embodies fair information principles in a statutory
framework governing the means by which the United States Government
collects, maintains, uses, and disseminates personally identifiable
information. The Privacy Act applies to information that is maintained
in a ``system of records.'' A ``system of records'' is a group of any
records under the control of an agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual.
Individuals may request their own records that are maintained in a
system of records in the possession or under the control of DHS by
complying with DHS Privacy Act regulations, 6 CFR part 5.
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 recordkeeping
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.
The Privacy Act allows Government agencies to exempt certain
records from the access and amendment 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.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/ALL-001 Freedom of Information Act and Privacy Act Records
System of Records. Some information in DHS/ALL-001 Freedom of
Information Act and Privacy Act Records System of Records relates to
official DHS national security, law enforcement, immigration,
intelligence activities, and protective services to the President of
the United States or other individuals pursuant to Section 3056 and
3056A of Title 18, investigatory records related to suitability and
Federal service exams and test materials. These exemptions are needed
to protect information relating to DHS activities from disclosure to
subjects or others related to these activities. Specifically, the
exemptions are required to preclude subjects of these activities from
frustrating these processes; to avoid disclosure of activity
techniques; to protect the identities and physical safety of
confidential informants and law enforcement personnel; to ensure DHS's
ability to obtain information from third parties and other sources; to
protect the privacy of third parties; to safeguard classified
information; and to safeguard records in connection with providing
protective services to the President of the United States or other
individuals pursuant to Section 3056 and 3056A of Title 18. Disclosure
of information to the subject of the inquiry could also permit the
subject to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where compliance would not appear to interfere with or adversely affect
the law enforcement purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived on a case
by case basis.
A notice of system of records for DHS/ALL-001 Freedom of
Information Act and Privacy Act Records is also published in this issue
of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
[[Page 55485]]
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:
Authority: 6 U.S.C. 101 et seq.; Public Law 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.
2. Add at the end of Appendix C to Part 5, the following new
paragraph ``1'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
1. DHS/ALL-001 Freedom of Information Act and Privacy Act
Records System of Records consists of electronic and paper records
and will be used by DHS and its components. DHS/ALL-001 Freedom of
Information Act and Privacy Act Records System of Records 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; national security and intelligence
activities; and protection of the President of the United States or
other individuals pursuant to Section 3056 and 3056A of Title 18.
DHS/ALL-001 Freedom of Information Act and Privacy Act Records
System of Records 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 limitations set forth in 5 U.S.C. Sec.
552a(c)(3) and (4): (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(5), (e)(8); (f); and (g) pursuant to 5 U.S.C. Sec.
552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy
Act, subject to limitations set forth in 5 U.S.C. Sec. 552a(c)(3):
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5
U.S.C. Sec. 552a(k)(1), (k)(2), (k)(3), (k)(5), and (k)(6).
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) and (4) (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 that
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 violation to the existence of that
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
unreasonable administrative burden by requiring investigations to be
continually 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 subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (I) and (f) (Agency
Requirements) because portions of this system are exempt from the
individual access provisions of subsection (d) and thus would not
require DHS to apply rules for records or portions of records which
are exempted from access or amendment upon request. Access to, and
amendment of, system records that are not exempt or for which
exemption is waived may be obtained under procedures described in
the related system of records notice (SORN) or Subpart B of this
Part.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their investigative training
and exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS'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) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: October 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-25933 Filed 10-27-09; 8:45 am]
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