Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-025 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security, 50902-50903 [E9-23525]
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50902
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0068]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL—025 Law Enforcement
Authority in Support of the Protection
of Property Owned or Occupied by the
Department of Homeland Security
Privacy Office, DHS.
ACTION: Final rule.
AGENCY:
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—025 Law Enforcement Authority
in Support of the Protection of Property
Owned or Occupied by the Department
of Homeland Security System of
Records’’ from certain provisions of the
Privacy Act. Specifically, the
Department exempts portions of the
Department of Homeland Security/
ALL—025 Law Enforcement Authority
in Support of the Protection of Property
Owned or Occupied by the Department
of Homeland Security 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.
jlentini on DSKJ8SOYB1PROD with RULES2
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 74 FR 2903, 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—025 Law
Enforcement Authority in Support of
the Protection of Property Owned or
Occupied by the Department of
Homeland Security system. The DHS/
ALL—025 Law Enforcement Authority
in Support of the Protection of Property
VerDate Nov<24>2008
20:38 Sep 30, 2009
Jkt 217001
Owned or Occupied by the Department
of Homeland Security system of records
notice was published concurrently in
the Federal Register, 74 FR 3088,
January 16, 2009, and comments were
invited on both the notice of proposed
rulemaking and system of records
notice. Public comments were received
on the notice of proposed rulemaking
and the system of records notice.
Public Comments
DHS received two public comments
on the notice of proposed rulemaking
and one public comment on the system
of records notice.
The two public comments received on
the notice of proposed rulemaking were
in support of the use of exemptions for
this system of records noting that
exemptions are needed at times to
refrain from informing those who may
be criminally or civilly prosecuted that
may tamper with the investigation.
Permitting access to certain documents
would disclose information that would
put homeland security at risk. Further,
public comments stated that classified
information must be safeguarded in
order for DHS to operate efficiently.
DHS concurs with these two public
comments on the notice of proposed
rulemaking and further establishes the
rationale to make this proposed rule
final.
The one public comment received on
the system of records notice focused on
concern over the Department collecting
‘‘bias-related’’ information unless the
public has an opportunity to see what
criteria are utilized to establish the bias,
the bias-ratings, and the groups which
the Federal government seeks to
monitor. The Department is unsure of
what the author means by ‘‘bias-related’’
information. Information collected will
only be within the parameter of this
authority, by those delegated the
authority from the Secretary of
Homeland Security, without a
premeditated bias-related focus. The
purpose of this system is to maintain
and record the results of law
enforcement activities in support of the
protection of property owned or
occupied by DHS. The Secretary of
Homeland Security was given this
authority through the Homeland
Security Act of 2002. The Department
will appropriately safeguard all
information collected pursuant to this
system of records notice. 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:
■
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
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 38 to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
38. The DHS/ALL—025 Law Enforcement
Authority in Support of the Protection of
Property Owned or Occupied by the
Department of Homeland Security system of
records consists of electronic and paper
records and will be used by DHS and its
components. The DHS/ALL—025 Law
Enforcement Authority in Support of the
Protection of Property Owned or Occupied
by the Department of Homeland Security
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 there under; and national
security and intelligence activities. The DHS/
ALL—025 Law Enforcement Authority in
Support of the Protection of Property Owned
or Occupied by the Department of Homeland
Security 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), 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
E:\FR\FM\01OCR2.SGM
01OCR2
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations
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), (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.
Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–23525 Filed 9–30–09; 8:45 am]
BILLING CODE 9110–9B–P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
jlentini on DSKJ8SOYB1PROD with RULES2
[Docket No. DHS–2009–0066]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL—017 General Legal
Records System of Records
Privacy Office, DHS.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of a
SUMMARY:
VerDate Nov<24>2008
20:38 Sep 30, 2009
Jkt 217001
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,
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
50903
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.
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: Pub. L. 107–296, 116 Stat.
2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301.
E:\FR\FM\01OCR2.SGM
01OCR2
]]>Agencies
[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50902-50903]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23525]
[[Page 50901]]
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Part III
Department of Homeland Security
-----------------------------------------------------------------------
6 CFR Part 5
Privacy Act of 1974: Implementation of Exemptions; Final Rules
Federal Register / Vol. 74 , No. 189 / Thursday, October 1, 2009 /
Rules and Regulations
[[Page 50902]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0068]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security
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--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security System of Records'' from certain provisions of the Privacy
Act. Specifically, the Department exempts portions of the Department of
Homeland Security/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security 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, 74 FR 2903, 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--025 Law Enforcement Authority in Support of the Protection of
Property Owned or Occupied by the Department of Homeland Security
system. The DHS/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security system of records notice was published concurrently in the
Federal Register, 74 FR 3088, January 16, 2009, and comments were
invited on both the notice of proposed rulemaking and system of records
notice. Public comments were received on the notice of proposed
rulemaking and the system of records notice.
Public Comments
DHS received two public comments on the notice of proposed
rulemaking and one public comment on the system of records notice.
The two public comments received on the notice of proposed
rulemaking were in support of the use of exemptions for this system of
records noting that exemptions are needed at times to refrain from
informing those who may be criminally or civilly prosecuted that may
tamper with the investigation. Permitting access to certain documents
would disclose information that would put homeland security at risk.
Further, public comments stated that classified information must be
safeguarded in order for DHS to operate efficiently. DHS concurs with
these two public comments on the notice of proposed rulemaking and
further establishes the rationale to make this proposed rule final.
The one public comment received on the system of records notice
focused on concern over the Department collecting ``bias-related''
information unless the public has an opportunity to see what criteria
are utilized to establish the bias, the bias-ratings, and the groups
which the Federal government seeks to monitor. The Department is unsure
of what the author means by ``bias-related'' information. Information
collected will only be within the parameter of this authority, by those
delegated the authority from the Secretary of Homeland Security,
without a premeditated bias-related focus. The purpose of this system
is to maintain and record the results of law enforcement activities in
support of the protection of property owned or occupied by DHS. The
Secretary of Homeland Security was given this authority through the
Homeland Security Act of 2002. The Department will appropriately
safeguard all information collected pursuant to this system of records
notice. 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 38 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
38. The DHS/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of
Homeland Security system of records consists of electronic and paper
records and will be used by DHS and its components. The DHS/ALL--025
Law Enforcement Authority in Support of the Protection of Property
Owned or Occupied by the Department of Homeland Security 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 there under; and national security and
intelligence activities. The DHS/ALL--025 Law Enforcement Authority
in Support of the Protection of Property Owned or Occupied by the
Department of Homeland Security 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), 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
[[Page 50903]]
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), (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.
Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23525 Filed 9-30-09; 8:45 am]
BILLING CODE 9110-9B-P
