Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-017 General Legal Records System of Records, 50903-50904 [E9-23514]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50903-50904]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23514]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0066]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--017 General Legal 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 a Department of Homeland 
Security system of records entitled the ``Department of Homeland 
Security/ALL--017 General Legal Records System of Records'' from 
certain provisions of the Privacy Act. Specifically, the Department 
exempts portions of the Department of Homeland Security/ALL--017 
General Legal 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 October 1, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues, please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, U.S. 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, 73 FR 63084, October 23, 
2008, 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--017 General Legal Records system. The DHS/ALL--017 General 
Legal Records system of records notice was published concurrently in 
the Federal Register, 73 FR 63175, October 23, 2008, and comments were 
invited on both the notice of proposed rulemaking and system of records 
notice. Comments were received on the notice of proposed rulemaking and 
no comments were received on the system of records notice.

Public Comments

    DHS received one comment on the notice of proposed rulemaking. The 
comment received focused on the expansiveness of the exemptions, 
specifically subsection (e)(2) ``Collection of Information from 
Individuals.'' The public comment recommended that DHS rely on the 
Freedom of Information Act (FOIA) when screening information for 
release and not Privacy Act exemptions because the FOIA would 
potentially allow for higher probability of information release. 
Although the comment was intended to be helpful, current FOIA 
processing practices eliminate the requester's concern. If a first 
party requester makes a request for records under the Privacy Act and 
those records are exempt from disclosure, DHS will automatically 
process that request under the FOIA. Should the record be releasable 
under FOIA, despite not being releasable under the Privacy Act, the 
record will be released to the first party requester. This is 
consistent with Department of Justice guidance and directives, 
including the Overview of the Privacy Act of 1974, 2004 Edition (https://www.usdoj.gov/oip/1974indrigacc.htm). The same commenter observed that 
the notice in question states that ``applicable exemptions may be 
waived on a case by case basis.'' This is standard language for all 
proposed and final exemptions at DHS to ensure that where it is 
possible to release records, DHS will do so. In application to this 
system of records, though, the commenter acknowledges the legitimate 
need to exempt some records due to national security, investigations, 
and other reasons, but that other records would not be of such concern 
such as records relating to ``foreclosures, titles to property, copies 
of petitions filed with DHS, and some records of discrimination.'' The 
commenter is concerned that DHS could refuse record requests for the 
latter types of records by simply including them in this exempted 
system of records notice.
    The process in place to review records, to ensure they meet 
specifically requested records, today addresses the comments.
    DHS carefully reviewed the public comment received on the notice of 
proposed rulemaking and the recommendations within the public comment. 
DHS has determined that since this system is to assist DHS attorneys in 
providing legal advice to DHS senior leadership and management on a 
wide variety of legal issues, to collect the information of any 
individual who is, or will be, in litigation with the Department, as 
well as the attorneys representing the plaintiff(s) and defendant(s), 
it is important that the exemptions remain in place. DHS will implement 
the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

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.

[[Page 50904]]

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, add a new paragraph 39 to read as follows:

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

* * * * *
    39. The DHS/ALL--017 General Legal Records system of records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/ALL--017 General Legal 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 thereunder; 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. The DHS/ALL--017 General Legal 
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 the 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) and (e)(8); (f), and (g), pursuant to 
exemption 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 the limitations set forth 
in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (I), and 
(f), pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5). 
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 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 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 an investigation, thereby interfering with 
the related investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information would impede law enforcement in 
that it could compromise investigations by: Revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
investigations.
    (f) 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.
    (g) From subsection (e)(5) (Collection of Information) because 
in 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 (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' 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) to the extent that the system is exempt 
from other specific subsections of the Privacy Act relating to 
individuals' rights to access and amend their records contained in 
the system. Therefore DHS is not required to establish rules or 
procedures pursuant to which individuals may seek a civil remedy for 
the agency's: Refusal to amend a record; refusal to comply with a 
request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise 
comply with an individual's right to access or amend records.

    Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23514 Filed 9-30-09; 8:45 am]
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