[Federal Register Volume 75, Number 159 (Wednesday, August 18, 2010)]
[Rules and Regulations]
[Pages 50846-50847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20478]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0056]
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: 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 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'' from certain provisions of
the Privacy Act. Specifically, the Department exempts portions of the
``Department of Homeland Security/ALL--001 Freedom of Information Act
and Privacy Act Records System of Records'' 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 August 18, 2010.
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) published a notice of
proposed rulemaking in the Federal Register, (74 FR 55484, October 28,
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--001 Freedom of Information Act and Privacy Act Records System
of Records. The DHS/ALL--001 Freedom of Information Act and Privacy Act
Records system of records notice was published concurrently in the
Federal Register, (74 FR 55572, October 28, 2009) and comments were
invited on both the Notice of Proposed Rulemaking (NPRM) and System of
Records Notice (SORN).
Public Comments
DHS received four comments on the NPRM and no comments on the SORN.
NPRM
DHS received four comments on the NPRM from two separate
commenters. Two comments received were from the same commenter and
supported the proposed rule. The remaining two comments were from a
separate commenter and also supported the proposed rule.
SORN
No comments were received on the SORN.
After consideration of public comments, the Department will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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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
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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, revise paragraph ``1'' to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
1. The 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. The 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;
[[Page 50847]]
and protection of the President of the United States or other
individuals pursuant to Section 3056 and 3056A of Title 18. The 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. 552a(c)(3) and (4): (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8),
(e)(12); (f); (g)(1); and (h) pursuant to 5 U.S.C. 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. 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), (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.
(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 (e)(12) (Computer Matching) if the agency is
a recipient agency or a source agency in a matching program with a
non-Federal agency, with respect to any establishment or revision of
a matching program, at least 30 days prior to conducting such
program, publish in the Federal Register notice of such
establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
(k) From subsection (h) (Legal Guardians) the parent of any
minor, or the legal guardian of any individual who has been declared
to be incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, may act on behalf of the
individual.
* * * * *
Dated: August 3, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-20478 Filed 8-17-10; 8:45 am]
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