Privacy Act of 1974: Implementation of Exemptions; Redress and Response Records System, 38750-38753 [E7-13564]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 72, Number 135 (Monday, July 16, 2007)]
[Rules and Regulations]
[Pages 38750-38753]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13564]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket Number DHS-2007-0047]


Privacy Act of 1974: Implementation of Exemptions; Redress and 
Response Records System

AGENCY: Privacy Office, Office of the Secretary, 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 new system of records 
entitled the Redress and Response Records System from certain 
provisions of the Privacy Act. Specifically, the Department proposes to 
exempt portions of the Redress and Response Records 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 July 16, 2007.

FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528; telephone 703-235-0780; facsimile: 866-466-5370.

SUPPLEMENTARY INFORMATION:

Background

    On January 18, 2007, DHS published notice of a new Privacy Act 
system of records entitled ``Redress and Response Records System, DHS/
ALL-005.'' \1\ The DHS Redress and Response Records System maintains 
records for the DHS Traveler Redress Inquiry Program (TRIP), which is 
the traveler redress mechanism established by DHS in connection with 
the Rice-Chertoff Initiative, as well as in accordance with other 
policy and law. DHS TRIP will facilitate the public's ability to 
provide appropriate information to DHS for redress requests when they 
believe they have been denied entry, refused boarding for 
transportation, or identified for additional screening by DHS 
components or programs at their operational locations. Such locations 
include airports, seaports, train stations, and land borders. DHS TRIP 
will create a cohesive process to address these redress requests across 
DHS.
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    \1\ 72 FR 2296 (January 18, 2007).
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    DHS TRIP will serve as a mechanism to share redress-related 
information and facilitate communication of redress results across DHS 
components. It will also facilitate efficient adjudication of redress 
requests. Once the information intake is complete, DHS TRIP will 
facilitate the transfer of or access to this information for the DHS 
components or other agencies that will address the redress request.
    This system contains records pertaining to various categories of 
individuals, including: Individuals seeking redress or individuals on 
whose behalf redress is sought from DHS; individuals applying for 
redress on behalf of another individual; and DHS employees and 
contractors assigned to interact with the redress process.
    No exemption shall be asserted with respect to information 
submitted by and collected from individuals or their representatives in 
the course of any redress process associated with this System of 
Records.

[[Page 38751]]

    In conjunction with publication of the DHS Redress and Response 
Records System system of records notice, DHS initiated a rulemaking to 
exempt this system of records from a number of provisions of the 
Privacy Act,\2\ because this system may contain records or information 
recompiled from or created from information contained in other systems 
of records, which are exempt from certain provisions of the Privacy 
Act. For these records or information only, in accordance with 5 U.S.C. 
552a(j)(2), (k)(1), (k)(2), and (k)(5), DHS will also claim the 
original exemptions for these records or information from subsections 
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) 
through (I), (5), and (8); (f), and (g) of the Privacy Act of 1974, as 
amended, as necessary and appropriate to protect such information. Such 
exempt records or information may be law enforcement or national 
security investigation records, law enforcement activity and encounter 
records, or terrorist screening records.
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    \2\ 72 FR 2209 (January 18, 2007).
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Public Comments

    DHS received four comments on the proposed rule and two on the DHS 
Redress and Response Records System system of records notice.
    With regard to the comments received on the proposed rule, two of 
the four comments received via the docket did not address this 
particular proposed rule and appear to be mistaken submissions. One 
comment received did not specifically provide comments, but posed a 
number of questions. The remaining comment provided observations with 
regard to the DHS Traveler Redress Inquiry Program (DHS TRIP) and 
watchlists, and comments regarding the system of records notice and the 
proposed rule.
    With regard to the two comments received on the system of records 
notice, one comment was a duplicate of the last noted comment on the 
proposed rule. The remaining comment was a general comment regarding 
the DHS TRIP program and did not address issues concerning the system 
or records notice or the proposed rule.
    A discussion for response to the applicable comments received is 
below.
    The comments received questioned the use of exemptions to 
provisions of the Privacy Act of 1974 as proposed. Generally, DHS 
proposed to use the exemptions in order to protect information relating 
to law enforcement investigations from disclosure to subjects of 
investigations and others who could interfere with investigatory and 
law enforcement activities. Specifically, the exemptions are required 
to: Preclude subjects of investigations from frustrating the 
investigative process; avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure DHS's and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information.
    Nevertheless, under the proposed rule, these exemptions will only 
be claimed for information coming into this system of records from 
systems that already claim exemptions on such information, and no 
exemptions would be claimed over information collected directly from an 
individual for input into this system of records. In fact, both the 
system of records notice and the proposed rule indicate that as part of 
the process for responding to requests, if information about an 
individual contained in this system of records comes from a system 
claiming exemptions, a review will occur to determine if the need to 
claim exemption from provisions of the Privacy Act with regard to a 
particular individual's information continues to be necessary. This 
approach to claiming exemptions will not only provide better access to 
information and directly resolve the concerns raised in the comments 
received, but it will also serve to enhance the redress process by 
ensuring the accuracy and relevancy of information in underlying 
systems of records.
    One comment suggested that this provision is meaningless; however, 
due to the appropriate routine uses included in the system of records 
notice, because the routine uses regarding the sharing of information 
for law enforcement or counter-intelligence/counter-terrorism purposes 
work independently of whether or not information is disclosed back to 
the individual and therefore is not meaningless. As noted above, DHS 
seeks only to protect information from inappropriate disclosure that 
originates from systems already claiming exemptions; however, on a 
case-by-case basis, DHS will examine whether or not the exemptions 
continue to be necessary with regard to the particular individual's 
information.
    Additionally, one comment suggests that the exemptions are 
unnecessary because, in the context of the information potentially held 
in this system of records, an individual will ``know'' that he or she 
is under investigation and therefore the underlying reason for needing 
the exemptions is moot; however, an individual's mere belief that his 
or her perceived delay or inconvenience while traveling does not 
provide that individual with definitive knowledge of whether or not he 
or she was the subject of an investigation, even if that individual 
already sought resolution through the DHS TRIP.
    The comments received questioned the general need for exempting 
some records of this system from the provisions of the Privacy Act. 
Because information in this system of records may be related to 
investigations that may arise out of DHS programs and activities, such 
information may pertain to national security and/or law enforcement 
matters. In such cases, allowing access to such information could alert 
subjects of such investigations of actual or potential criminal, civil, 
or regulatory violations, and could reveal, in an untimely manner, 
DHS's and other agencies' investigative interests in law enforcement 
efforts to preserve national security.
    Additionally, DHS needs to have the ability to claim these 
exemptions in order to protect information relating to investigations 
from disclosure to subjects of investigations and others who could 
interfere with investigatory activities. Specifically, the exemptions 
are required to: Withhold information to the extent it identifies 
witnesses promised confidentiality as a condition of providing 
information during the course of an investigation; prevent subjects of 
investigations from frustrating the investigative process; avoid 
disclosure of investigative techniques; protect the privacy of third 
parties; ensure DHS' and other federal agencies' ability to obtain 
information from third parties and other sources; and safeguard 
sensitive information. The exemptions proposed here are standard law 
enforcement and national security exemptions exercised by federal law 
enforcement and intelligence agencies.
    One comment asserts that this rule will create new exemptions for 
other systems of records. Nonetheless, this rule cannot exempt other 
existing systems of records from provisions of the Privacy Act. The 
purpose of this rule is to protect appropriately information coming 
into this system of records from systems that independently claim 
exemptions.
    Further, the comment indicates that there is no ``alternative 
venue'' for individuals regarding their information; however, the DHS 
TRIP provides individuals with appropriate redress mechanisms in 
connection with travel-

[[Page 38752]]

related encounters or circumstances, including the correction or 
updating of an individual's information. Furthermore, when an 
individual requests access to his or her information, DHS will examine 
each request on a case-by-case basis, and, after conferring with the 
appropriate component or agency, may waive applicable exemptions in 
appropriate circumstances where it would not appear to interfere with 
or adversely affect the law enforcement or national security purposes 
of the systems from which the information is recompiled or in which it 
is contained.
    Again, DHS shall not assert any exemption with respect to 
information submitted by and collected from the individual or the 
individual's representative in the course of any redress process 
associated with the underlying system of records.

Regulatory Requirements

A. Regulatory Impact Analyses

    Changes to Federal regulations must undergo several analyses. In 
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
    This rule is not a significant regulatory action under Executive 
Order 12866, ``Regulatory Planning and Review'' (as amended). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB). Nevertheless, DHS has reviewed this 
rulemaking, and concluded that there will not be any significant 
economic impact.
2. Regulatory Flexibility Act Assessment
    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement 
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will 
not have a significant impact on a substantial number of small 
entities. The rule would impose no duties or obligations on small 
entities. Further, the exemptions to the Privacy Act apply to 
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
    This rulemaking will not constitute a barrier to international 
trade. The exemptions relate to criminal investigations and agency 
documentation and, therefore, do not create any new costs or barriers 
to trade.
4. Unfunded Mandates Assessment
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. 
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments, and the private sector. This rulemaking will not impose an 
unfunded mandate on State, local, or tribal governments, or on the 
private sector.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DHS consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. DHS has determined 
that there are no current or new information collection requirements 
associated with this rule.

C. Executive Order 13132, Federalism

    This action will not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore will not have federalism 
implications.

D. Environmental Analysis

    DHS has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

E. Energy Impact

    The energy impact of this action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, 
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory 
action under the provisions of the EPCA.

List of Subjects in 6 CFR Part 5

    Sensitive information, Privacy, Freedom of information.

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:  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.


0
2. At the end of Appendix C to Part 5, add a new section 3 to read as 
follows:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    3. DHS-ALL-005, Redress and Response Records System. A portion 
of the following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), 
(4)(G) through (I), (5), and (8); (f), and (g); however, these 
exemptions apply only to the extent that information in this system 
records is recompiled or is created from information contained in 
other systems of records subject to such exemptions pursuant to 5 
U.S.C. 552a(j)(2), (k)(1), (k)(2), and (k)(5). Further, no exemption 
shall be asserted with respect to information submitted by and 
collected from the individual or the individual's representative in 
the course of any redress process associated with this system of 
records. After conferring with the appropriate component or agency, 
DHS may waive applicable exemptions in appropriate circumstances and 
where it would not appear to interfere with or adversely affect the 
law enforcement or national security purposes of the systems from 
which the information is recompiled or in which it is contained. 
Exemptions from the above particular subsections are justified, on a 
case-by-case basis to be determined at the time a request is made, 
when information in this system records is recompiled or is created 
from information contained in other systems of records subject to 
exemptions for the following reasons:
    (a) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him or 
her would specifically reveal any investigative interest in the 
individual. Revealing this information could reasonably be expected 
to compromise ongoing efforts to investigate a known or suspected 
terrorist by notifying the record subject that he or she is under 
investigation. This information could also permit the record subject 
to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid 
or impede the investigation.
    (b) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (c) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of certain 
records contained in this system, including law enforcement 
counterterrorism, investigatory, and intelligence records. 
Compliance with these provisions could alert the subject of an 
investigation of the fact and nature of the investigation, and/or 
the investigative interest of intelligence or law enforcement 
agencies; compromise sensitive information related to national 
security; interfere with the overall law enforcement process by 
leading to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; 
could identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another's personal

[[Page 38753]]

privacy; reveal a sensitive investigative or intelligence technique; 
or constitute a potential danger to the health or safety of law 
enforcement personnel, confidential informants, and witnesses. 
Amendment of these records would interfere with ongoing 
counterterrorism, law enforcement, or intelligence investigations 
and analysis activities and impose an impossible administrative 
burden by requiring investigations, analyses, and reports to be 
continuously reinvestigated and revised.
    (d) From subsection (e)(1) because it is not always possible for 
DHS or other agencies to know in advance what information is 
relevant and necessary for it to complete an identity comparison 
between the individual seeking redress and a known or suspected 
terrorist. Also, because DHS and other agencies may not always know 
what information about an encounter with a known or suspected 
terrorist will be relevant to law enforcement for the purpose of 
conducting an operational response.
    (e) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law 
enforcement, or intelligence efforts in that it would put the 
subject of an investigation, study, or analysis on notice of that 
fact, thereby permitting the subject to engage in conduct designed 
to frustrate or impede that activity. The nature of 
counterterrorism, law enforcement, or intelligence investigations is 
such that vital information about an individual frequently can be 
obtained only from other persons who are familiar with such 
individual and his/her activities. In such investigations it is not 
feasible to rely upon information furnished by the individual 
concerning his own activities.
    (f) From subsection (e)(3), to the extent that this subsection 
is interpreted to require DHS to provide notice to an individual if 
DHS or another agency receives or collects information about that 
individual during an investigation or from a third party. Should the 
subsection be so interpreted, exemption from this provision is 
necessary to avoid impeding counterterrorism, law enforcement, or 
intelligence efforts by putting the subject of an investigation, 
study, or analysis on notice of that fact, thereby permitting the 
subject to engage in conduct intended to frustrate or impede that 
activity.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency 
Requirements) because portions of this system are exempt from the 
access and amendment provisions of subsection (d).
    (h) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other 
domestic and foreign agency record systems and therefore it is not 
possible for DHS to vouch for their compliance with this provision; 
however, the DHS has implemented internal quality assurance 
procedures to ensure that data used in the redress process is as 
thorough, accurate, and current as possible. In addition, in the 
collection of information for law enforcement, counterterrorism, and 
intelligence purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details 
to light. The restrictions imposed by (e)(5) would limit the ability 
of those agencies' trained investigators and intelligence analysts 
to exercise their judgment in conducting investigations and impede 
the development of intelligence necessary for effective law 
enforcement and counterterrorism efforts. The DHS has, however, 
implemented internal quality assurance procedures to ensure that the 
data used in the redress process is as thorough, accurate, and 
current as possible.
    (i) From subsection (e)(8) because to require individual notice 
of disclosure of information due to compulsory legal process would 
pose an impossible administrative burden on DHS and other agencies 
and could alert the subjects of counterterrorism, law enforcement, 
or intelligence investigations to the fact of those investigations 
when not previously known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of 
subsection (d).
    (k) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: July 5, 2007.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. E7-13564 Filed 7-13-07; 8:45 am]
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