Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security Office of Inspector General-002 Investigative Records System of Records, 55482-55484 [E9-25944]
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55482
Proposed Rules
Federal Register
Vol. 74, No. 207
Wednesday, October 28, 2009
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0095]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security Office of Inspector General—
002 Investigative Records System of
Records
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
mstockstill on DSKH9S0YB1PROD with PROPOSALS
SUMMARY: The Department of Homeland
Security is giving concurrent notice of
an updated and reissued system of
records pursuant to the Privacy Act of
1974 for the Department of Homeland
Security Office of Inspector General—
002 Investigative Records System of
Records and this proposed rulemaking.
In this proposed rulemaking, the
Department proposes to exempt
portions of this system of records from
one or more provisions of the Privacy
Act because of criminal, civil, and
administrative enforcement
requirements.
DATES: Comments must be received on
or before November 27, 2009.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2009–0095, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
VerDate Nov<24>2008
16:11 Oct 27, 2009
Jkt 220001
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact: Doris
A. Wojnarowski (202–254–4211),
Department of Homeland Security,
Office of Inspector General, Mail Stop
2600, 245 Murray Drive, SW., Building
410, Washington, DC 20528; or by
facsimile (202) 254–4299. For privacy
issues please contact: Mary Ellen
Callahan (703–235–0780), Chief Privacy
Officer, Privacy Office, Department of
Homeland Security, 245 Murray Drive,
SW., Building 410, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
Background: Concurrently with the
publication of this notice of proposed
rulemaking, the Department of
Homeland Security (DHS) is publishing
a revised system of records notice that
is subject to the Privacy Act of 1974, 5
U.S.C. 552a. The system is titled, DHS/
Office of Inspector General (OIG)—002
Investigations Data Management System
of Records (IDMS) (70 FR 58448–58451,
October 6, 2005). DHS is now updating
and revising the systems notice under a
new name titled, DHS/OIG–002
Investigative Records System of
Records, to cover the same records. DHS
is proposing to continue to exempt this
system, in part, from certain provisions
of the Privacy Act.
The OIG is responsible for conducting
and supervising independent and
objective audits, inspections, and
investigations of the programs and
operations of DHS. The OIG promotes
economy, efficiency, and effectiveness
within the Department and prevents and
detects fraud, waste, and abuse in its
programs and operations. The OIG’s
Office of Investigations, investigates
allegations of criminal, civil, and
administrative misconduct involving
DHS employees, contractors, grantees,
and Departmental programs and
activities. These investigations can
result in criminal prosecutions, fines,
civil monetary penalties, and
administrative sanctions. Additionally,
the Office of Investigations provides
oversight and monitors the investigative
activity of DHS’ various internal affairs
offices.
The DHS/OIG–002 Investigative
Records System of Records assists the
OIG with receiving and processing
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Fmt 4702
Sfmt 4702
allegations of violation of criminal,
civil, and administrative laws and
regulations relating to DHS employees,
contractors, grantees, and other
individuals and entities associated with
DHS. The system includes both paper
investigative files and the Enforcement
Data System (EDS), an electronic case
management and tracking information
system, which also generates reports.
EDS allows the OIG to manage
information provided during the course
of its investigations, and, in the process,
to facilitate its management of
investigations and investigative
resources.
The Privacy Act embodies fair
information principles in a statutory
framework governing the means by
which the United States Government
collects, maintains, uses, and
disseminates personally identifiable
information. The Privacy Act applies to
information that is maintained in a
‘‘system of records.’’ A ‘‘system of
records’’ is a group of any records under
the control of an agency from which
information is retrieved by the name of
the individual or by some identifying
number, symbol, or other identifying
particular assigned to the individual.
Individuals may request their own
records that are maintained in a system
of records in the possession or under the
control of DHS by complying with DHS
Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency
to publish in the Federal Register a
description of the type and character of
each system of records that the agency
maintains, and the routine uses that are
contained in each system in order to
make agency recordkeeping practices
transparent, to notify individuals
regarding the uses to which personally
identifiable information is put, and to
assist individuals in finding such files
within the agency.
The Privacy Act allows government
agencies to exempt certain records from
the access and amendment provisions. If
an agency claims an exemption,
however, it must issue a Notice of
Proposed Rulemaking to make clear to
the public the reasons why a particular
exemption is claimed.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for the DHS/OIG–002 Investigative
Records System of Records. Some
information in the DHS/OIG–002
Investigative Records System of Records
E:\FR\FM\28OCP1.SGM
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Federal Register / Vol. 74, No. 207 / Wednesday, October 28, 2009 / Proposed Rules
relates to official DHS national security,
immigration, intelligence, and law
enforcement activities. These
exemptions are needed to protect
information relating to DHS activities
from disclosure to subjects of
investigations and others related to
these activities. Specifically, the
exemptions are required to preclude
subjects of investigations from
frustrating the investigative process; to
avoid disclosure of investigative
techniques; to protect the identities and
physical safety of confidential
informants and law enforcement
personnel; to ensure DHS’ ability to
obtain information from third parties
and other sources; to protect the privacy
of third parties; and to safeguard
classified information. Disclosure of
information to the subject of the inquiry
could also permit the subject to avoid
detection or apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. In appropriate
circumstances, where compliance
would not appear to interfere with or
adversely affect the law enforcement
purposes of this system and the overall
law enforcement process, the applicable
exemptions may be waived on a case by
case basis.
A revised notice of a system of
records for the Investigative Records
System is also published in this issue of
the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the
preamble, DHS proposes to amend
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.; Public Law
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.
mstockstill on DSKH9S0YB1PROD with PROPOSALS
2. Add at the end of Appendix C to
Part 5, the following paragraph ‘‘5’’:
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
5. The DHS/OIG–002 Investigative Records
System of Records consists of electronic and
paper records used by the DHS OIG. The
DHS/OIG–002 Investigative 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
VerDate Nov<24>2008
16:11 Oct 27, 2009
Jkt 220001
criminal laws; investigations, inquiries, and
proceedings thereunder; and national
security and intelligence activities. The DHS/
OIG–002 Investigative Records System of
Records contains information that is
collected by, on behalf of, in support of, or
in cooperation with DHS 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 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)(5) and (e)(8); (f);
and (g) pursuant to 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 limitations set forth in 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), and (e)(4)(H);
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, tamper
with witnesses or evidence, and 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, tamper with
witnesses or evidence, and 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
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
55483
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 as 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
providing an opportunity for the subject of an
investigation to conceal evidence, alter
patterns of behavior, or take other actions
that could thwart investigative efforts;
revealing 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 revealing 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) and
(H)(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
rules or procedures with respect to such
access. Providing notice to individuals with
respect to existence of records pertaining to
them in this 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, 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)(Civil Remedies) 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
E:\FR\FM\28OCP1.SGM
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55484
Federal Register / Vol. 74, No. 207 / Wednesday, October 28, 2009 / Proposed Rules
agency’s refusals 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: October 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–25944 Filed 10–27–09; 8:45 am]
BILLING CODE 9110–9B–P
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
general questions and privacy issues
please contact: Mary Ellen Callahan
(703–235–0780), Chief Privacy Officer
and Chief Freedom of Information Act
Officer, Privacy Office, Department of
Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0097]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL–001 Freedom of
Information Act and Privacy Act
Records System of Records
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
mstockstill on DSKH9S0YB1PROD with PROPOSALS
SUMMARY: The Department of Homeland
Security is giving concurrent notice of
an updated and reissued system of
records pursuant to the Privacy Act of
1974 for the Department of Homeland
Security/ALL–001 Freedom of
Information Act and Privacy Act
Records System of Records and this
proposed rulemaking. In this proposed
rulemaking, the Department proposes 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.
DATES: Comments must be received on
or before November 27, 2009.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2009–0097, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer and Chief Freedom of
Information Act Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
VerDate Nov<24>2008
16:11 Oct 27, 2009
Jkt 220001
Background: The Department of
Homeland Security (DHS) and its
components and offices rely on the
Privacy Act system of records notice,
DHS/ALL–001 Freedom of Information
Act and Privacy Act Records System of
Records (69 FR 70460, December 6,
2004) for the collection and
maintenance of records that concern the
Department’s Freedom of Information
Act (FOIA) and Privacy Act (PA)
records.
As part of its efforts to maintain its
Privacy Act records systems, DHS is
updating and reissuing a Departmentwide system of records under the
Privacy Act (5 U.S.C. 552a) for DHS
FOIA and PA records. This will ensure
that all components of DHS follow the
same privacy rules for collecting and
handling FOIA and PA records. The
collection and maintenance of this
information will assist DHS in managing
the Department’s FOIA and PA records.
The Privacy Act embodies fair
information principles in a statutory
framework governing the means by
which the United States Government
collects, maintains, uses, and
disseminates personally identifiable
information. The Privacy Act applies to
information that is maintained in a
‘‘system of records.’’ A ‘‘system of
records’’ is a group of any records under
the control of an agency from which
information is retrieved by the name of
the individual or by some identifying
number, symbol, or other identifying
particular assigned to the individual.
Individuals may request their own
records that are maintained in a system
of records in the possession or under the
control of DHS by complying with DHS
Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency
to publish in the Federal Register a
description of the type and character of
each system of records that the agency
maintains, and the routine uses that are
contained in each system in order to
make agency recordkeeping practices
transparent, to notify individuals
regarding the uses to which personally
identifiable information is put, and to
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
assist individuals in finding such files
within the agency.
The Privacy Act allows Government
agencies to exempt certain records from
the access and amendment provisions. If
an agency claims an exemption,
however, it must issue a Notice of
Proposed Rulemaking to make clear to
the public the reasons why a particular
exemption is claimed.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for DHS/ALL–001 Freedom of
Information Act and Privacy Act
Records System of Records. Some
information in DHS/ALL–001 Freedom
of Information Act and Privacy Act
Records System of Records relates to
official DHS national security, law
enforcement, immigration, intelligence
activities, and protective services to the
President of the United States or other
individuals pursuant to Section 3056
and 3056A of Title 18, investigatory
records related to suitability and Federal
service exams and test materials. These
exemptions are needed to protect
information relating to DHS activities
from disclosure to subjects or others
related to these activities. Specifically,
the exemptions are required to preclude
subjects of these activities from
frustrating these processes; to avoid
disclosure of activity techniques; to
protect the identities and physical safety
of confidential informants and law
enforcement personnel; to ensure DHS’s
ability to obtain information from third
parties and other sources; to protect the
privacy of third parties; to safeguard
classified information; and to safeguard
records in connection with providing
protective services to the President of
the United States or other individuals
pursuant to Section 3056 and 3056A of
Title 18. Disclosure of information to
the subject of the inquiry could also
permit the subject to avoid detection or
apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. In appropriate
circumstances, where compliance
would not appear to interfere with or
adversely affect the law enforcement
purposes of this system and the overall
law enforcement process, the applicable
exemptions may be waived on a case by
case basis.
A notice of system of records for DHS/
ALL–001 Freedom of Information Act
and Privacy Act Records is also
published in this issue of the Federal
Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
E:\FR\FM\28OCP1.SGM
28OCP1
]]>Agencies
[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Proposed Rules]
[Pages 55482-55484]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25944]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 74, No. 207 / Wednesday, October 28, 2009 /
Proposed Rules
[[Page 55482]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0095]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security Office of Inspector General--002 Investigative
Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is giving concurrent
notice of an updated and reissued system of records pursuant to the
Privacy Act of 1974 for the Department of Homeland Security Office of
Inspector General--002 Investigative Records System of Records and this
proposed rulemaking. In this proposed rulemaking, the Department
proposes to exempt portions of this system of records from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements.
DATES: Comments must be received on or before November 27, 2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0095, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to https://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Doris A. Wojnarowski (202-254-4211), Department of Homeland Security,
Office of Inspector General, Mail Stop 2600, 245 Murray Drive, SW.,
Building 410, Washington, DC 20528; or by facsimile (202) 254-4299. For
privacy issues please contact: Mary Ellen Callahan (703-235-0780),
Chief Privacy Officer, Privacy Office, Department of Homeland Security,
245 Murray Drive, SW., Building 410, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background: Concurrently with the publication of this notice of
proposed rulemaking, the Department of Homeland Security (DHS) is
publishing a revised system of records notice that is subject to the
Privacy Act of 1974, 5 U.S.C. 552a. The system is titled, DHS/Office of
Inspector General (OIG)--002 Investigations Data Management System of
Records (IDMS) (70 FR 58448-58451, October 6, 2005). DHS is now
updating and revising the systems notice under a new name titled, DHS/
OIG-002 Investigative Records System of Records, to cover the same
records. DHS is proposing to continue to exempt this system, in part,
from certain provisions of the Privacy Act.
The OIG is responsible for conducting and supervising independent
and objective audits, inspections, and investigations of the programs
and operations of DHS. The OIG promotes economy, efficiency, and
effectiveness within the Department and prevents and detects fraud,
waste, and abuse in its programs and operations. The OIG's Office of
Investigations, investigates allegations of criminal, civil, and
administrative misconduct involving DHS employees, contractors,
grantees, and Departmental programs and activities. These
investigations can result in criminal prosecutions, fines, civil
monetary penalties, and administrative sanctions. Additionally, the
Office of Investigations provides oversight and monitors the
investigative activity of DHS' various internal affairs offices.
The DHS/OIG-002 Investigative Records System of Records assists the
OIG with receiving and processing allegations of violation of criminal,
civil, and administrative laws and regulations relating to DHS
employees, contractors, grantees, and other individuals and entities
associated with DHS. The system includes both paper investigative files
and the Enforcement Data System (EDS), an electronic case management
and tracking information system, which also generates reports. EDS
allows the OIG to manage information provided during the course of its
investigations, and, in the process, to facilitate its management of
investigations and investigative resources.
The Privacy Act embodies fair information principles in a statutory
framework governing the means by which the United States Government
collects, maintains, uses, and disseminates personally identifiable
information. The Privacy Act applies to information that is maintained
in a ``system of records.'' A ``system of records'' is a group of any
records under the control of an agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual.
Individuals may request their own records that are maintained in a
system of records in the possession or under the control of DHS by
complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the Federal
Register a description of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system in order to make agency recordkeeping
practices transparent, to notify individuals regarding the uses to
which personally identifiable information is put, and to assist
individuals in finding such files within the agency.
The Privacy Act allows government agencies to exempt certain
records from the access and amendment provisions. If an agency claims
an exemption, however, it must issue a Notice of Proposed Rulemaking to
make clear to the public the reasons why a particular exemption is
claimed.
DHS is claiming exemptions from certain requirements of the Privacy
Act for the DHS/OIG-002 Investigative Records System of Records. Some
information in the DHS/OIG-002 Investigative Records System of Records
[[Page 55483]]
relates to official DHS national security, immigration, intelligence,
and law enforcement activities. These exemptions are needed to protect
information relating to DHS activities from disclosure to subjects of
investigations and others related to these activities. Specifically,
the exemptions are required to preclude subjects of investigations from
frustrating the investigative process; to avoid disclosure of
investigative techniques; to protect the identities and physical safety
of confidential informants and law enforcement personnel; to ensure
DHS' ability to obtain information from third parties and other
sources; to protect the privacy of third parties; and to safeguard
classified information. Disclosure of information to the subject of the
inquiry could also permit the subject to avoid detection or
apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where compliance would not appear to interfere with or adversely affect
the law enforcement purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived on a case
by case basis.
A revised notice of a system of records for the Investigative
Records System is also published in this issue of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS proposes to amend
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.; Public Law 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. Add at the end of Appendix C to Part 5, the following paragraph
``5'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
5. The DHS/OIG-002 Investigative Records System of Records
consists of electronic and paper records used by the DHS OIG. The
DHS/OIG-002 Investigative 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; and national security and intelligence
activities. The DHS/OIG-002 Investigative Records System of Records
contains information that is collected by, on behalf of, in support
of, or in cooperation with DHS 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 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)(5) and (e)(8); (f); and (g) pursuant to 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 limitations set forth in 5 U.S.C. 552a(c)(3); (d);
(e)(1), (e)(4)(G), and (e)(4)(H); 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, tamper with witnesses or evidence, and
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, tamper with witnesses or
evidence, and 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 as 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 providing an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; revealing 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 revealing 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) and (H)(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 rules or
procedures with respect to such access. Providing notice to
individuals with respect to existence of records pertaining to them
in this 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, 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)(Civil Remedies) 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
[[Page 55484]]
agency's refusals 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: October 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-25944 Filed 10-27-09; 8:45 am]
BILLING CODE 9110-9B-P
