Privacy Act of 1974; Systems of Records, 20523-20524 [06-3791]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 71, Number 77 (Friday, April 21, 2006)]
[Rules and Regulations]
[Pages 20523-20524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3791]



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Federal Register / Vol. 71, No. 77 / Friday, April 21, 2006 / Rules 
and Regulations

[[Page 20523]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[DHS-2005-0048]


Privacy Act of 1974; Systems of Records

AGENCY: Privacy Office; Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
exempt two Privacy Act systems of records from certain provisions of 
the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). These systems are 
the Freedom of Information Act and Privacy Act System of Records and 
the Civil Rights and Civil Liberties Matters System of Records.

DATES: This final rule is effective April 21, 2006.

FOR FURTHER INFORMATION CONTACT: Maureen Cooney, Acting Chief Privacy 
Officer, Department of Homeland Security, Washington, DC, by telephone 
(571) 227-3813 or by facsimile (571) 227-4171.

SUPPLEMENTARY INFORMATION: On December 4, 2004, the Department of 
Homeland Security (DHS) published a notice of proposed rulemaking (69 
FR 70402) to exempt two Privacy Act systems of records from the 
following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f). The first system of records, 
DHS/ALL 001, DHS Freedom of Information Act (FOIA) and Privacy Act 
Records Systems, allows the Department and its components to maintain 
and retrieve FOIA and Privacy Act files by the personal identifiers of 
the individuals who have submitted requests for records under either 
statute. The second system of records, DHS-CRCL-001, Civil Rights and 
Civil Liberties Matters, covers records alleging abuses of civil rights 
and civil liberties that are submitted to the Office for Civil Rights 
and Civil Liberties.
    Two comments from one individual were received on this notice of 
proposed rulemaking. The comments discussed the importance of the 
transparency that comes from compliance with the FOIA and appeared to 
take issue generally with DHS's proposal to exempt the two record 
systems covered by the proposed rule, DHS/ALL 001 and CRCL-001, Civil 
Rights and Civil Liberties Matters, from certain provisions of the 
Privacy Act.
    While DHS agrees that the FOIA serves important transparency 
purposes, it nevertheless believes that the exemptions it has sought 
for these two record systems are narrowly tailored to protect agency 
interests. Because it is possible that either system of records will 
contain information that comes from law enforcement or national 
security files, which are themselves exempt from the Privacy Act, 
allowing access to that information derived from such files could 
result in harm to the government. In appropriate circumstances, 
however, the applicable exemptions may be waived if no harm to the law 
enforcement or national security interests of DHS would result.
    Accordingly, with the exception of two non-substantive edits to 
correct an error, DHS is implementing the rule as proposed.
    Pursuant to the requirements of the Regulatory Flexibility Act, 5 
U.S.C. 601-612, DHS certifies that these regulations will not 
significantly affect a substantial number of small entities. The final 
rule imposes no duties or obligations on small entities. Further, in 
accordance with the provisions of the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501, DHS has determined that this final rule would not 
impose new recordkeeping, application, reporting, or other types of 
information collection requirements.

List of Subjects in 6 CFR Part 5

    Classified information, Courts, Freedom of information, Government 
employees, Privacy.


0
For the reasons stated in the preamble, DHS is amending 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: 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.


0
2. Add Appendix C to part 5 to read as follows:

Appendix C--DHS Systems of Records Exempt From the Privacy Act

    This Appendix implements provisions of the Privacy Act of 1974 
that permit the Department of Homeland Security (DHS) to exempt its 
systems of records from provisions of the Act. During the course of 
normal agency operations, exempt materials from other systems of 
records may become part of the records in these and other DHS 
systems. To the extent that copies of records from other exempt 
systems of records are entered into any DHS system, DHS hereby 
claims the same exemptions for those records that are claimed for 
the original primary systems of records from which they originated 
and claims any additional exemptions in accordance with this rule.
    Portions of the following DHS systems of records are exempt from 
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) 
and (k):
    1. DHS/ALL 001, Department of Homeland Security (DHS) Freedom of 
Information Act (FOIA) and Privacy Act (PA) Record System allows the 
DHS and its components to maintain and retrieve FOIA and Privacy Act 
files by personal identifiers associated with the persons submitting 
requests for information under each statute. Pursuant to exemptions 
(j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of 
this system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); 
(e)(4)(G), (H) and (I) and (f). Exemptions from the 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 and avoid detection or apprehension, which 
undermines the entire system.

[[Page 20524]]

    (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 would permit the individual who is the 
subject of a record to impede the investigation and avoid detection 
or apprehension. Amendment of the records would interfere with 
ongoing investigations and law enforcement activities and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated. The information contained in the system 
may also include properly classified information, the release of 
which would pose a threat to national defense and/or foreign policy. 
In addition, permitting access and amendment to such information 
also 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 enforcement of federal laws, 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 access provisions of subsection (d).
    2. DHS-CRCL-001, Civil Rights and Civil Liberties Matters, which 
will cover allegations of abuses of civil rights and civil liberties 
that are submitted to the Office of CRCL. Pursuant to exemptions 
(k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this 
system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), 
(H) and (I) and (f). Exemptions from the 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 or another agency. 
Disclosure of the accounting would therefore present a serious 
impediment to law enforcement efforts and 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 and avoid detection or apprehension, which undermines 
the entire system.
    (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 as well as the 
recipient agency. Access to the records would permit the individual 
who is the subject of a record to impede the investigation and avoid 
detection or apprehension. Amendment of the records would interfere 
with ongoing investigations and law enforcement activities and 
impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated. The information 
contained in the system may also include properly classified 
information, the release of which would pose a threat to national 
defense and/or foreign policy. In addition, permitting access and 
amendment to such information also 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 enforcement of federal laws, 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 this system is exempt 
from the access provisions of subsection (d).

    Dated: April 13, 2006.
Maureen Cooney,
Acting Chief Privacy Officer.
[FR Doc. 06-3791 Filed 4-20-06; 8:45 am]
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