Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-023 Personnel Security Management System of Records, 50904-50906 [E9-23524]
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50904
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations
Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
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
jlentini on DSKJ8SOYB1PROD with RULES2
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*
*
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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
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20:38 Sep 30, 2009
Jkt 217001
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
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
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]
BILLING CODE 9110–9B–P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0069]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL—023 Personnel Security
Management System of Records
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
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—023 Personnel Security
Management System of Records’’ from
certain provisions of the Privacy Act.
Specifically, the Department exempts
portions of the Department of Homeland
Security/ALL—023 Personnel Security
Management 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.
E:\FR\FM\01OCR2.SGM
01OCR2
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations
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.
they were submitted under the new
docket number.
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 74 FR 2904, January 16, 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—023
Personnel Security Management system.
The DHS/ALL—023 Personnel Security
Management system of records notice
was published concurrently in the
Federal Register, 74 FR 3084, January
16, 2009, and comments were invited on
both the notice of proposed rulemaking
and system of records notice. No
comments were received on the notice
of proposed rulemaking or system of
records notice published on January 16,
2009.
Prior to the January 16, 2009
publishing, DHS published a notice of
proposed rulemaking and system of
records notice for the DHS–OS–001
Office of Security File System on
September 12, 2006. The notice of
proposed rulemaking published in the
Federal Register, 71 FR 53609,
September 12, 2006, proposed 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
notice published concurrently in the
Federal Register, 71 FR 53700,
September 12, 2006, and comments
were invited on both the notice of
proposed rulemaking and system of
records notice. The notice of proposed
rulemaking received four public
comments and system of records notice
received one public comment but were
never addressed after the publication
period expired.
Because the DHS–OS–001 Office of
Security File System notice of proposed
rulemaking and system of records
notice, published on September 12,
2006, have been superseded by the
DHS/ALL—023 Personnel Security
Management notice of proposed
rulemaking and system of records notice
published on January 16, 2009, the
Department will respond to previous
public comments in this final rule as if
Public Comments
DHS received no public comments on
the DHS/ALL—023 Personnel Security
Management system notice of proposed
rulemaking and system of records notice
published on January 16, 2009. As
described above, DHS received four
public comments on DHS–OS–001
Office of Security File System notice of
proposed rulemaking and one public
comment on the system of records
notice published on September 12,
2006.
Notice of Proposed Rulemaking 71 FR
53609, September 12, 2006
Public comments noted that the
functions of law enforcement and
personnel security should be two
separate systems of records, not
commingled systems. In January 2009,
the Department published two new
system of records notices: (1) DHS/
ALL—023 Personnel Security
Management system, 74 FR 3084,
January 16, 2009; and (2) DHS/ALL—
025 Law Enforcement Authority in
Support of the Protection of Property
Owned or Occupied by the Department
of Homeland Security system, 74 FR
3088, January 16, 2009. Publishing these
two systems of records notices provides
transparency to the public of the
Department’s security authorities and
exemptions for personnel security and
law enforcement activities and
addresses the concerns expressed in the
public comments.
Final exemptions for the DHS/ALL—
023 Personnel Security Management
system of records are published below
under PART 5—DISCLOSURE OF
RECORDS AND INFORMATION. The
Department’s authorities for use of these
exemptions are provided therein. The
Department, through the Freedom of
Information Act and Privacy Act, wishes
to remain transparent in providing as
much information as possible to the
public when formally requesting
information.
Having addressed the issues
published in response to this notice of
proposed rulemaking and after receiving
no public comment on the DHS notice
of proposed rulemaking published in
the Federal Register, 74 FR 2904,
January 16, 2009, DHS will implement
the rulemaking as proposed.
jlentini on DSKJ8SOYB1PROD with RULES2
SUPPLEMENTARY INFORMATION:
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20:38 Sep 30, 2009
Jkt 217001
System of Records Notice 71 FR 53700,
September 12, 2006
Public comments noted that the
functions of law enforcement and
personnel security should be two
separate systems of records, not
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
50905
commingled systems. In January 2008,
the Department published two new
system of records notices: (1) DHS/
ALL—023 Personnel Security
Management system, 74 FR 3084,
January 16, 2009; and (2) DHS/ALL—
025 Law Enforcement Authority in
Support of the Protection of Property
Owned or Occupied by the Department
of Homeland Security system, 74 FR
3088, January 16, 2008. Each of the
above cited systems of records contains
a law enforcement and/or a
counterintelligence component. Both
personnel and physical security systems
of records necessarily require law
enforcement or counterintelligence
information in order to protect the
Department from infiltration or
compromise. As complementary
information collections, both systems
ensure the security and integrity of DHS
personnel and facilities. Considering
those purposes, it is appropriate for the
systems of records to take exemptions
available under (k)(1), (k)(2), (k)(3) and/
or (k)(5) as all of the functions covered
by these exemptions are directly
relevant to the investigations of threats
to the Department’s personnel and
facilities. Publishing these two systems
of records notices provides transparency
to the public of the Department’s
security authorities and exemptions for
personnel security and law enforcement
activities.
Public comments also noted concern
over Routine Use H and Routine Use I
of the system of records notice. Routine
Use H permits release of information to
Congress. It may be necessary, from time
to time, for the Department to release
information to a Member of Congress
working on behalf of a constituent.
While such a disclosure might be
acceptable under consent of the
constituent, Office of Management and
Budget guidance recommends
additional notice through the published
routine use be given. As such, DHS
continues to keep this routine use in the
SORN.
Routine Use I releases information to
contractors, which includes students.
One commenter stated that it was
inappropriate for DHS to share
information with any contractor or
student working officially on behalf of
the Department. Contractors, including
students, are subject to the same
screening as full time employees. The
Department relies on contractors and
students in the course of its day to day
activities and it may become necessary
for information to be released to them
for official government use just as it
would be for a DHS employee. The
decision to allow students access to
DHS facilities and a certain information
E:\FR\FM\01OCR2.SGM
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50906
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations
level rests solely with the DHS Office of
Security and component security
offices. Employees, contractors,
students, detailees, grantees, experts
and any other person working at a DHS
facility and accessing DHS information
are required to undergo the same
background investigation as it pertains
to their required classification level.
Those decisions are left to the discretion
of the Office of Security and the
component or office to which the
employee, contractor, student, detailee,
grantee, expert, or other person is
assigned. As such, DHS shall maintain
this routine use.
Having addressed the issues
published in response to this system of
records notice and after receiving no
public comment on the DHS system of
records notice published in the Federal
Register, 74 FR 3084, January 16, 2009,
DHS will implement the rulemaking as
proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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
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. In Appendix C to Part 5, add a new
paragraph 40 to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
jlentini on DSKJ8SOYB1PROD with RULES2
40. The DHS/ALL—023 Personnel Security
Management system of records consists of
VerDate Nov<24>2008
20:38 Sep 30, 2009
Jkt 217001
electronic and paper records and will be used
by DHS and its components. The DHS/ALL—
023 Personnel Security Management system
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—023
Personnel Security Management system
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), (d), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(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) (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
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
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 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: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–23524 Filed 9–30–09; 8:45 am]
BILLING CODE 9110–9B–P
E:\FR\FM\01OCR2.SGM
01OCR2
]]>Agencies
[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50904-50906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23524]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0069]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL--023 Personnel Security Management System of
Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
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--023 Personnel Security Management System of Records''
from certain provisions of the Privacy Act. Specifically, the
Department exempts portions of the Department of Homeland Security/
ALL--023 Personnel Security Management 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.
[[Page 50905]]
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, 74 FR 2904, January 16,
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--023 Personnel Security Management system. The DHS/ALL--023
Personnel Security Management system of records notice was published
concurrently in the Federal Register, 74 FR 3084, January 16, 2009, and
comments were invited on both the notice of proposed rulemaking and
system of records notice. No comments were received on the notice of
proposed rulemaking or system of records notice published on January
16, 2009.
Prior to the January 16, 2009 publishing, DHS published a notice of
proposed rulemaking and system of records notice for the DHS-OS-001
Office of Security File System on September 12, 2006. The notice of
proposed rulemaking published in the Federal Register, 71 FR 53609,
September 12, 2006, proposed 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 notice published concurrently in the Federal
Register, 71 FR 53700, September 12, 2006, and comments were invited on
both the notice of proposed rulemaking and system of records notice.
The notice of proposed rulemaking received four public comments and
system of records notice received one public comment but were never
addressed after the publication period expired.
Because the DHS-OS-001 Office of Security File System notice of
proposed rulemaking and system of records notice, published on
September 12, 2006, have been superseded by the DHS/ALL--023 Personnel
Security Management notice of proposed rulemaking and system of records
notice published on January 16, 2009, the Department will respond to
previous public comments in this final rule as if they were submitted
under the new docket number.
Public Comments
DHS received no public comments on the DHS/ALL--023 Personnel
Security Management system notice of proposed rulemaking and system of
records notice published on January 16, 2009. As described above, DHS
received four public comments on DHS-OS-001 Office of Security File
System notice of proposed rulemaking and one public comment on the
system of records notice published on September 12, 2006.
Notice of Proposed Rulemaking 71 FR 53609, September 12, 2006
Public comments noted that the functions of law enforcement and
personnel security should be two separate systems of records, not
commingled systems. In January 2009, the Department published two new
system of records notices: (1) DHS/ALL--023 Personnel Security
Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL--025
Law Enforcement Authority in Support of the Protection of Property
Owned or Occupied by the Department of Homeland Security system, 74 FR
3088, January 16, 2009. Publishing these two systems of records notices
provides transparency to the public of the Department's security
authorities and exemptions for personnel security and law enforcement
activities and addresses the concerns expressed in the public comments.
Final exemptions for the DHS/ALL--023 Personnel Security Management
system of records are published below under PART 5--DISCLOSURE OF
RECORDS AND INFORMATION. The Department's authorities for use of these
exemptions are provided therein. The Department, through the Freedom of
Information Act and Privacy Act, wishes to remain transparent in
providing as much information as possible to the public when formally
requesting information.
Having addressed the issues published in response to this notice of
proposed rulemaking and after receiving no public comment on the DHS
notice of proposed rulemaking published in the Federal Register, 74 FR
2904, January 16, 2009, DHS will implement the rulemaking as proposed.
System of Records Notice 71 FR 53700, September 12, 2006
Public comments noted that the functions of law enforcement and
personnel security should be two separate systems of records, not
commingled systems. In January 2008, the Department published two new
system of records notices: (1) DHS/ALL--023 Personnel Security
Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL--025
Law Enforcement Authority in Support of the Protection of Property
Owned or Occupied by the Department of Homeland Security system, 74 FR
3088, January 16, 2008. Each of the above cited systems of records
contains a law enforcement and/or a counterintelligence component. Both
personnel and physical security systems of records necessarily require
law enforcement or counterintelligence information in order to protect
the Department from infiltration or compromise. As complementary
information collections, both systems ensure the security and integrity
of DHS personnel and facilities. Considering those purposes, it is
appropriate for the systems of records to take exemptions available
under (k)(1), (k)(2), (k)(3) and/or (k)(5) as all of the functions
covered by these exemptions are directly relevant to the investigations
of threats to the Department's personnel and facilities. Publishing
these two systems of records notices provides transparency to the
public of the Department's security authorities and exemptions for
personnel security and law enforcement activities.
Public comments also noted concern over Routine Use H and Routine
Use I of the system of records notice. Routine Use H permits release of
information to Congress. It may be necessary, from time to time, for
the Department to release information to a Member of Congress working
on behalf of a constituent. While such a disclosure might be acceptable
under consent of the constituent, Office of Management and Budget
guidance recommends additional notice through the published routine use
be given. As such, DHS continues to keep this routine use in the SORN.
Routine Use I releases information to contractors, which includes
students. One commenter stated that it was inappropriate for DHS to
share information with any contractor or student working officially on
behalf of the Department. Contractors, including students, are subject
to the same screening as full time employees. The Department relies on
contractors and students in the course of its day to day activities and
it may become necessary for information to be released to them for
official government use just as it would be for a DHS employee. The
decision to allow students access to DHS facilities and a certain
information
[[Page 50906]]
level rests solely with the DHS Office of Security and component
security offices. Employees, contractors, students, detailees,
grantees, experts and any other person working at a DHS facility and
accessing DHS information are required to undergo the same background
investigation as it pertains to their required classification level.
Those decisions are left to the discretion of the Office of Security
and the component or office to which the employee, contractor, student,
detailee, grantee, expert, or other person is assigned. As such, DHS
shall maintain this routine use.
Having addressed the issues published in response to this system of
records notice and after receiving no public comment on the DHS system
of records notice published in the Federal Register, 74 FR 3084,
January 16, 2009, 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: 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.
0
2. In Appendix C to Part 5, add a new paragraph 40 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
40. The DHS/ALL--023 Personnel Security Management system of
records consists of electronic and paper records and will be used by
DHS and its components. The DHS/ALL--023 Personnel Security
Management system 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--023 Personnel
Security Management system 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), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(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) (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 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: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23524 Filed 9-30-09; 8:45 am]
BILLING CODE 9110-9B-P
