[Federal Register: January 16, 2009 (Volume 74, Number 11)]
[Proposed Rules]
[Page 2904-2906]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja09-37]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0151]
Privacy Act of 1974: Department of Homeland Security--023
Personnel Security Management
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent
notice of a revised and updated system of records pursuant to the
Privacy Act of 1974 for the Department of Homeland Security--023
Personnel Security Management 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 February 17, 2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0151, 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: Hugo Teufel III, Chief Privacy Officer, 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: Hugo Teufel III (703-235-0780), Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528.
SUPPLEMENTARY INFORMATION:
[[Page 2905]]
Background: Pursuant to the savings clause in the Homeland Security
Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November
25, 2002), the Department of Homeland Security (DHS) and its components
and offices have relied on preexisting Privacy Act systems of records
notices for the collection and maintenance of records that pertain to
personnel security management.
As part of its efforts to streamline and consolidate its Privacy
Act record systems, DHS is establishing a new agency-wide system of
records under the Privacy Act (5 U.S.C. 552a) for DHS personnel
security management records. The personnel security management system
of records is the baseline system for personnel security activities, as
led by the DHS Office of the Chief Security Officer, for the
Department. This will ensure that all DHS components follow the same
privacy rules for collecting and handling personnel security management
records. In this notice of proposed rulemaking, DHS now is proposing to
exempt Personnel Security Management, in part, from certain provisions
of the Privacy Act.
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 Personnel Security Management. Some information in Personnel
Security Management 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. 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'
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 Personnel Security Management is
also published in this issue of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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.; 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.
2. Add at the end of Appendix C to Part 5, the following new
paragraph ``14'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
14. The Department of Homeland Security--023 Personnel Security
Management system of records consists of electronic and paper
records and will be used by DHS and its components. DHS/All--023
Personnel Security Management 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. Personnel Security Management
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.
Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), 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), (e)(4)(I), 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, 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 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
[[Page 2906]]
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), (H), and (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: December 22, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-925 Filed 1-15-09; 8:45 am]
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