Privacy Act of 1974; Department of Homeland Security/ALL-017 General Legal Records System of Records, 72428-72431 [2011-30175]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Notices]
[Pages 72428-72431]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30175]



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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[Docket No. DHS-2011-0094]


Privacy Act of 1974; Department of Homeland Security/ALL--017 
General Legal Records System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of Privacy Act system of records.

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SUMMARY: In accordance with the Privacy Act of 1974, the Department of 
Homeland Security proposes to update and reissue a Department-wide 
system of records notice titled, ``Department of Homeland Security/
ALL--017 General Legal Records System of Records.'' This system will 
assist attorneys in providing legal advice to the Department of 
Homeland Security on a wide variety of legal issues. As a result of the 
biennial review of this system, updates have been made to the routine 
uses within this notice and other administrative non-substantive 
changes. The subsections of the exemptions have been updated for 
accuracy and a new Notice of Proposed Rulemaking has been published. 
Until a new Final Rule is published, the Final Rule published on 
October 1, 2009 remains active and in place. This system will continue 
to be included in the Department of Homeland Security's inventory of 
record systems.

DATES: Submit comments on or before December 23, 2011. The new system 
of records will be effective December 23, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0094 by one of the following methods:
     Federal e-Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-(866) 466-5370.
     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 rulemaking. 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 and privacy 
issues please contact: Mary Ellen Callahan (703) 235-0780, Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    In accordance with the Privacy Act of 1974, the Department of 
Homeland Security (DHS) proposes to update and reissue a Department-
wide system of records notice titled, ``DHS/ALL--017 General Legal 
Records System of Records.'' This system will assist attorneys in 
providing legal advice to DHS on a wide variety of legal issues.
    As a result of the biennial review of this system, updates have 
been made to the routine uses within this notice and other 
administrative non-substantive changes. It also reflects that in some 
cases, the records in the system will be classified. The subsections of 
the exemptions have also been updated for accuracy and a new Notice of 
Proposed Rulemaking (NPRM) has been published. Until a new Final Rule 
is published, the Final Rule published on October 1, 2009 remains 
active and in place. Additions were made to the routine uses to include 
sharing with federal, state, local, tribal, territorial, foreign, or 
international agency, regarding individuals who pose or are suspected 
of posing a risk to transportation or national security; to former 
employees to respond to government agencies or licensing authorities or 
for personnel matters; to the Department of Justice, United States 
Attorney's Office, or other federal agencies to collect debt; to the 
Department of Transportation for certain purposes; and to third-parties 
regarding their employees, applicants, contractors, and individuals to 
whom the third-party issues credentials or clearance to secured areas.
    The purpose of this system is to assist DHS attorneys in providing 
legal advice to DHS personnel 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) response to claims by employees, 
former employees, and other individuals; to assist in the settlement of 
claims against the government; to represent DHS during litigation, and 
to maintain internal statistics. DHS is authorized to implement this 
program primarily through 5 U.S.C. 301; The Federal Records Act, 44 
U.S.C. 3101; The Homeland Security Act of 2002, Public Law 107-296; and 
The Aviation and Transportation Security Act, Public Law 107-71. This 
system has an affect on individual privacy that is balanced by the need 
to collect and maintain information related to legal advice issued. 
Routine uses contained in this notice include sharing with the 
Department of Justice (DOJ) for legal advice and representation; to a 
congressional office at the request of an individual; to the National 
Archives and Records Administration (NARA) for records management; to 
contractors in support of their contract assignment to DHS; to 
agencies, organizations or individuals for the purpose of audit; to 
agencies, entities, or persons during a security or information 
compromise or breach; to an agency, organization, or individual when 
there could potentially be a risk of harm to an individual; to an 
appropriate federal, state, tribal, local, international, or foreign 
law enforcement agency or other appropriate authority charged with 
investigating or prosecuting a violation or enforcing or implementing a 
law, rule, regulation, or order; to a court, magistrate, or 
administrative tribunal for hearings; to third parties during the 
course of an investigation; to a federal, state, local, tribal, 
foreign, or international agency, where such agency has requested 
information relevant or necessary for the hiring or retention of an 
individual; to international and foreign governmental entities in 
accordance with law and formal or informal international agreement; to 
State Bar Grievance Committees and local Attorney General offices for 
disbarment or disciplinary proceedings; to unions recognized as 
exclusive bargaining representatives; To a former employee of HDS, in 
accordance with applicable regulations; to the DOJ, United States 
Attorney's Office, or other federal agencies for further collection 
action on any delinquent debt; and to the news media in the interest of 
the public. This system will remain in constant review to ensure that 
if information is collected from the public that the practice is done 
so in compliance with Paperwork Reduction Act (PRA).
    This system will continue to be included in DHS's inventory of 
record systems.

II. Privacy Act

    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 individuals' records. 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 for which information is retrieved by

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the name of an individual or by some identifying number, symbol, or 
other identifying particular assigned to the individual. In the Privacy 
Act, an individual is defined to encompass United States citizens and 
legal permanent residents. As a matter of policy, DHS extends 
administrative Privacy Act protections to all individuals where systems 
of records maintain information on U.S. citizens, lawful permanent 
residents, and visitors. Individuals may request access to 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 that each agency publish in the Federal 
Register a description denoting the type and character of each system 
of records in order to make agency recordkeeping practices transparent, 
to notify individuals about the use of their records, and to assist the 
individual to more easily find files within the agency. Below is a 
description of the General Legal Records System of Records.
    In accordance with 5 U.S.C. 552a(r), DHS has provided a report of 
this revised system of records to the Office of Management and Budget 
and to the Congress.

System of Records:
    Department of Homeland Security (DHS)/ALL--017.

System name:
    DHS/ALL--017 General Legal Records System of Records.

Security classification:
    Classified and Unclassified.

System location:
    Records are maintained at DHS and component locations in 
Washington, DC and field offices.

Categories of individuals covered by the system:
    Categories of individuals covered by this system include DHS 
employees and former employees, other federal agency employees and 
former employees, members of the public, individuals involved in 
litigation with DHS or involving DHS, individuals who either file 
administrative complaints with DHS or are the subjects of 
administrative complaints initiated by DHS, individuals who are named 
parties in cases in which DHS believes it will or may become involved, 
matters within the jurisdiction of the Department either as plaintiffs 
or as defendants in both civil and criminal matters, witnesses, and to 
the extent not covered by any other system, tort and property claimants 
who have filed claims against the Government and individuals who are 
subject of an action requiring approval or action by a DHS official, 
such as appeals, actions, training, awards, foreign travel, promotions, 
selections, grievances and delegations, OGC attorneys to whom cases are 
assigned, and attorneys and authorized representatives for whom DHS has 
received complaints regarding their practices before DHS and/or the 
Executive Office for Immigration Review (EOIR).

Categories of records in the system:
    Categories of records in this system include:
     Names of individuals involved in each legal case;
     Names of witnesses;
     Records relating to litigation by or against the U.S. 
Government (or litigation in which the U.S. Government is not a party, 
but has an interest) resulting from questions concerning DHS cases and 
legal actions that the Department either is involved in or in which it 
believes it will or may become involved;
     Claims by or against the Government, other than litigation 
cases, arising from a transaction with DHS, and documents related 
thereto, including demographic information, vouchers, witness 
statements, legal decisions, and related material pertaining to such 
claims;
     Investigation reports;
     Legal authority;
     Legal opinions and memoranda;
     Criminal actions;
     Criminal conviction records;
     Claims and records regarding discrimination, including 
employment and sex discrimination;
     Claims and records regarding the Rehabilitation Act;
     Claims against non-DHS attorneys and/or representatives 
who engage in unethical activities or exhibit unprofessional behavior;
     Copies of petitions filed with DHS;
     Personnel matters;
     Contracts;
     Foreclosures;
     Actions against DHS officials;
     Titles to real property;
     Records relating to requests for DHS records other than 
requests under the Freedom of Information Act and the Privacy Act of 
1974;
     Testimonies of DHS employees in federal, state, local, or 
administrative criminal or civil litigation;
     Documentary evidence;
     Supporting documents including the legal and programmatic 
issues of the case, correspondence, legal opinions and memoranda and 
related records;
     State Bar grievance/discipline proceedings records;
     Security Clearance Information
     Records concerning requests for information regarding the 
use of reproductions of obligations of the United States, including 
bonds, checks, coins, coupons, currencies (U.S. and foreign), 
fractional notes, postage stamps (U.S. and foreign), postal money 
orders, and postmarks;
     Any type of legal document, including but not limited to 
complaints, summaries, affidavits, litigation reports, motions, 
subpoenas, and any other court filing or administrative filing or 
evidence;
     Employee and former employee ethics question forms and 
responses; and
     Court transcripts.

Authority for maintenance of the system:
    5 U.S.C. 301; The Federal Records Act, 44 U.S.C. 3101; The Homeland 
Security Act of 2002, Public Law 107-296; The Aviation and 
Transportation Security Act, Public Law 107-71.

Purpose(s):
    The purpose of this system is to assist DHS attorneys in providing 
legal advice to DHS personnel 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) response to claims by employees, 
former employees, and other individuals; to assist in the settlement of 
claims against the government; to represent DHS during litigation, and 
to maintain internal statistics.

Routine uses of records maintained in the system, including categories 
of users and the purposes of such uses:
    In addition to those disclosures generally permitted under 5 U.S.C. 
552a(b) of the Privacy Act, all or a portion of the records or 
information contained in this system may be disclosed outside DHS as a 
routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
    A. To the Department of Justice (including United States Attorney 
Offices) or other federal agency or federal executive office conducting 
litigation or in anticipation of litigation before any court, 
adjudicative or administrative body, when it is necessary to the 
litigation and one of the following is a party to the litigation or has 
an interest in such litigation:
    1. DHS or any component thereof;

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    2. any employee of DHS in his/her official capacity;
    3. any employee or former employee of DHS in his/her individual 
capacity where the Department of Justice or DHS has agreed to represent 
the employee; or
    4. the United States or any agency thereof, is a party to the 
litigation or has an interest in such litigation, and DHS determines 
that the records are both relevant and necessary to the litigation and 
the use of such records is compatible with the purpose for which DHS 
collected the records.
    B. To a congressional office from the record of an individual in 
response to an inquiry from that congressional office made at the 
request of the individual to whom the record pertains.
    C. To the National Archives and Records Administration or other 
federal government agencies pursuant to records management inspections 
being conducted under the authority of 44 U.S.C. 2904 and 2906.
    D. To an agency, organization, or individual for the purpose of 
performing audit or oversight operations as authorized by law, but only 
such information as is necessary and relevant to such audit or 
oversight function.
    E. To appropriate agencies, entities, and persons when:
    1. DHS suspects or has confirmed that the security or 
confidentiality of information in the system of records has been 
compromised;
    2. The Department has determined that as a result of the suspected 
or confirmed compromise there is a risk of harm to economic or property 
interests, identity theft or fraud, or harm to the security or 
integrity of this system or other systems or programs (whether 
maintained by DHS or another agency or entity) or harm to the 
individual who relies upon the compromised information; and
    3. The disclosure made to such agencies, entities, and persons is 
reasonably necessary to assist in connection with DHS's efforts to 
respond to the suspected or confirmed compromise and prevent, minimize, 
or remedy such harm.
    F. To contractors and their agents, grantees, experts, consultants, 
and others performing or working on a contract, service, grant, 
cooperative agreement, or other assignment for DHS, when necessary to 
accomplish an agency function related to this system of records. 
Individuals provided information under this routine use are subject to 
the same Privacy Act requirements and limitations on disclosure as are 
applicable to DHS officers and employees.
    G. To an appropriate federal, state, tribal, local, international, 
or foreign law enforcement agency or other appropriate authority 
charged with investigating or prosecuting a violation or enforcing or 
implementing a law, rule, regulation, or order, where a record, either 
on its face or in conjunction with other information, indicates a 
violation or potential violation of law, which includes criminal, 
civil, or regulatory violations and such disclosure is proper and 
consistent with the official duties of the person making the 
disclosure.
    H. To a court, magistrate, or administrative tribunal in the course 
of presenting evidence, including disclosures to opposing counsel or 
witnesses in the course of civil discovery, litigation, or settlement 
negotiations or in connection with criminal law proceedings or in 
response to a subpoena from a court of competent jurisdiction.
    I. To third parties during the course of an investigation to the 
extent necessary to obtain information pertinent to the investigation, 
provided disclosure is appropriate to the proper performance of the 
official duties of the officer making the disclosure.
    J. To a federal, state, local, tribal, foreign, or international 
agency, where such agency has requested information relevant or 
necessary for the hiring or retention of an individual, or the issuance 
of a security clearance, license, contract, grant, or other benefit, or 
if necessary to obtain information relevant to a DHS decision 
concerning the hiring or retention of an individual, the issuance of a 
security clearance, license, contract, grant, or other benefit.
    K. To international and foreign governmental entities in accordance 
with law and formal or informal international agreement.
    L. To State Bar Grievance Committees and local Attorney General 
offices for disbarment or disciplinary proceedings.
    M. To unions recognized as exclusive bargaining representatives 
under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114, the 
Merit Systems Protection Board, arbitrators, the Federal Labor 
Relations Authority, and other parties responsible for the 
administration of the Federal labor-management program for the purpose 
of processing any corrective actions, or grievances, or conducting 
administrative hearings or appeals, or if needed in the performance of 
other authorized duties.
    N. To the appropriate federal, state, local, tribal, territorial, 
foreign, or international agency, regarding individuals who pose or are 
suspected of posing a risk to transportation or national security.
    O. To a former employee of DHS, in accordance with applicable 
regulations, for purposes of responding to an official inquiry by a 
federal, state, or local government entity or professional licensing 
authority; or facilitating communications with a former employee that 
may be necessary for personnel--related or other official purposes 
where the Department requires information or consultation assistances 
from the former employee regarding a matter within that person's former 
area of responsibility.
    P. To the DOJ, United States Attorney's Office, or other federal 
agencies for further collection action on any delinquent debt when 
circumstances warrant, as well as to a debt collection agency for the 
purpose of debt collection.
    Q. To the news media and the public, with the approval of the Chief 
Privacy Officer in consultation with counsel, when there exists a 
legitimate public interest in the disclosure of the information or when 
disclosure is necessary to preserve confidence in the integrity of DHS 
or is necessary to demonstrate the accountability of DHS's officers, 
employees, or individuals covered by the system, except to the extent 
it is determined that release of the specific information in the 
context of a particular case would constitute an unwarranted invasion 
of personal privacy.
    R. To the Department of Transportation and its operating 
administrations when necessary or relevant to (1) Ensure safety and 
security in any mode of transportation, (2) enforce DHS regulations or 
requirements, or (3) the issuance, maintenance, or renewal of a 
license, certificate, contract, grant, or other benefit.
    S. To third parties about individuals who are their employees, job 
applicants, contractors, or any other individual who is issued 
credentials or granted clearances by the third party to secured areas 
when relevant to such employment, application, contract, or issuance of 
the credential or clearance.

Disclosure to consumer reporting agencies:
    Privacy Act information may be reported to consumer reporting 
agencies pursuant to 5 U.S.C. 552a(b)(12) collecting on behalf of the 
United States Government.

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Policies and practices for storing, retrieving, accessing, retaining, 
and disposing of records in the system:
Storage:
    Records in this system are stored electronically or on paper in 
secure facilities behind a locked door. The electronic records are 
stored on magnetic disc, tape, digital media, CD-ROM, and computer.

Retrievability:
    Data may be retrieved by individual's name.

Safeguards:
    Records in this system are safeguarded in accordance with 
applicable rules and policies, including all applicable DHS automated 
systems security and access policies. Strict controls have been imposed 
to minimize the risk of compromising the information that is being 
stored. Access to the computer system containing the records in this 
system is limited to those individuals who have a need to know the 
information for the performance of their official duties and who have 
appropriate clearances or permissions.

Retention and disposal:
    For DHS Headquarters, records are kept for 10 years, in accordance 
with National Archives and Records Administration General Records 
Schedule [schedule in process.] For components of DHS, retention may 
vary. Please contact the component system manager.

System Manager and address:
    The System Managers are the respective General Counsel/Chief 
Counsel for DHS and each of its components. Their addresses will vary 
according to each component.

Notification procedure:
    The Secretary of Homeland Security has exempted this system from 
the notification, access, and amendment procedures of the Privacy Act 
because it is a law enforcement system. However, DHS will consider 
individual requests to determine whether or not information may be 
released. Thus, individuals seeking notification of and access to any 
record contained in this system of records, or seeking to contest its 
content, may submit a request in writing to the Headquarters' or 
component's FOIA Officer, whose contact information can be found at 
https://www.dhs.gov/foia under ``contacts.'' If an individual believes 
more than one component maintains Privacy Act records concerning him or 
her the individual may submit the request to the Chief Privacy Officer, 
Department of Homeland Security, 245 Murray Drive, SW., Building 410, 
STOP-0665, Washington, DC 20528.
    When seeking records about yourself from this system of records or 
any other Departmental system of records your request must conform with 
the Privacy Act regulations set forth in 6 CFR part 5. You must first 
verify your identity, meaning that you must provide your full name, 
current address and date and place of birth. You must sign your 
request, and your signature must either be notarized or submitted under 
28 U.S.C. 1746, a law that permits statements to be made under penalty 
of perjury as a substitute for notarization. While no specific form is 
required, you may obtain forms for this purpose from the Director, 
Disclosure and FOIA, https://www.dhs.gov or 1-(866) 431-0486. In 
addition you should provide the following:
     An explanation of why you believe the Department would 
have information on you;
     Identify which component(s) of the Department you believe 
may have the information about you;
     Specify when you believe the records would have been 
created;
     Provide any other information that will help the FOIA 
staff determine which DHS component agency may have responsive records; 
and
     If your request is seeking records pertaining to another 
living individual, you must include a statement from that individual 
certifying his/her agreement for you to access his/her records.
    Without this bulleted information the component(s) may not be able 
to conduct an effective search, and your request may be denied due to 
lack of specificity or lack of compliance with applicable regulations.

Record access procedures:
    See ``Notification procedure'' above.

Contesting record procedures:
    See ``Notification procedure'' above.

Record Source Categories:
    Information originates with DHS and its components, court 
subpoenas, law enforcement agencies, other federal, state, and local 
courts, state bar licensing agencies, state bar grievance agencies, and 
inquiries and/or complaints from witnesses or members of the general 
public.

Exemptions claimed for the system:
    The Secretary of Homeland Security has exempted this system from 
subsections (c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (e)(12); (f); (g)(1); and (h) of 
the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In addition, the 
Secretary of Homeland Security has exempted this system from 
subsections (c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and 
(f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), 
and (k)(5).

    Dated: October 26, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-30175 Filed 11-22-11; 8:45 am]
BILLING CODE 9110-9L-P