Privacy Act of 1974; New System of Records, Office of General Counsel E-Discovery Management System: Republication of System Description and Solicitation of Comment, 9721-9724 [2013-03071]
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Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Notices
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holder with the HTSUS number in lieu
of filing of entry papers each time. CBP
believes such frequent filing of entry
papers for these containers or holders
would be overly burdensome to the
importer or shipper.
19 CFR 10.41 provides that
substantial holders or containers are to
have prescribed markings in clear and
conspicuous letters of such a size that
they will be easily discernable. Section
10.41b of the CBP regulations eliminates
the need for an importer to file entry
documents by instead requiring the
marking of the containers or holders to
indicate under which item number of
the HTSUS the containers or holders are
entitled duty free entry.
In order to comply with 19 CFR
10.41b, the owner of the holder or
container is required to place the
markings on a metal tag or plate
containing the following information:
9801.00.10, HTSUS; the name of the
owner; and the serial number assigned
by the owner. In the case of serially
numbered holders or containers of
foreign manufacture for which free
clearance under the second provision of
item 9803.00.50 HTSUS is claimed, the
owner must place the following
markings containing the following
information: 9803.00.50 HTSUS; the
port code numbers of the port of entry;
the entry number; the last two digits of
the fiscal year of entry covering the
importation of the holders and
containers on which duty was paid; the
name of the owner; and the serial
number assigned by the owner.
Action: CBP proposes to extend the
expiration date of this information
collection with no change to the burden
hours or to the information collected.
Type of Review: Extension (without
change).
Affected Public: Businesses.
Estimated Number of Respondents:
20.
Estimated Number of Responses per
Respondent: 18.
Estimated Number of Total Annual
Responses: 360.
Estimated Total Annual Burden
Hours: 90.
Dated: February 6, 2013.
Tracey Denning,
Agency Clearance Officer, U.S. Customs and
Border Protection.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–5613–N–06–C]
Privacy Act of 1974; New System of
Records, Office of General Counsel EDiscovery Management System:
Republication of System Description
and Solicitation of Comment
Office of the Chief Information
Officer, HUD.
ACTION: Notice.
AGENCY:
Pursuant to the provision of
the Privacy Act of 1974, HUD is
providing notice of its formal adoption
of a new system of records for the Office
of General Counsel (OGC) E-Discovery
Management System (EDMS). The OGC
discovery productions typically require
the preservation, collection and analysis
of massive emails, word processing
documents, PDF files, spreadsheets,
presentations, database entries, and
other documents in a variety of
electronic file formats, as well as paper
records. EDMS is expected to improve
significantly the efficiency of OGC’s
processing of records during the
discovery and processing of litigation
requests and will dramatically reduce
the time spent on the document review
and production process.
DATES: Effective Date: December 18,
2012.
SUMMARY:
For
inquiries pertaining to Privacy Act
records, contact Donna RobinsonStaton, Chief Privacy Officer,
Department of Housing and Urban
Development, 451 7th Street SW.,
Washington, DC 20410 (Attention:
Capitol View Building, 4th Floor)
telephone number (202) 402–8073 (this
telephone number is not toll free). A
telecommunications device for hearingand speech-impaired persons (TTY) is
available by calling the Federal Relay
Service’s toll-free telephone number
(800) 877–8339.
SUPPLEMENTARY INFORMATION: Pursuant
to the Privacy Act of 1974 (5 U.S.C.
552a) (Privacy Act), HUD published in
the Federal Register on July 17, 2012, at
77 FR 41997, a notice that announced a
new system of records for OGC’s EDiscovery Management System (OGC–
EDMS), a system expected to
significantly improve the efficiency of
OGC’s processing of records during the
preservation, discovery, and processing
of litigation requests when litigation is
‘‘reasonably anticipated’’ 1 and reduce
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2013–02982 Filed 2–8–13; 8:45 am]
1 ‘‘Reasonably anticipated’’ is the legal test
articulating the standard for when the duty to
preserve electronically stored information begins. A
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the time HUD staff spend on the
document review and production
process. OGC–EDMS is in response to
and consistent with e-discovery
preservation and production
requirements in the Federal Rules of
Civil Procedure.
The July 17, 2012, notice solicited
public comment on OGC–EDMS for a
period of 30 days. The notice advised
that EDMS would carry a final effective
date of August 16, 2012, unless HUD
received comments which would result
in a contrary determination. HUD
received public comment in response to
the July 17, 2012, notice. On August 15,
2012, at 77 FR 49011, HUD published a
notice advising of a change in the final
effective date of OGC–EDMS, the
commitment to re-publish the
description of OGC–EDMS with certain
clarifications, and to respond to public
comments received in response to the
July 17, 2012, notice.
In response to public comments, a
notice expanding the description of
OGC–EDMS and soliciting further
public comments was published on
November 15, 2012, at 77 FR 68140.
Specifically, HUD clarified in the notice
published on November 15, 2012 that
when litigation is ‘‘reasonably
anticipated,’’ related electronic data is
forensically copied and maintained in a
secure server environment separate from
HUD’s network servers as part of the
OGC–EDMS. In this secure server
environment, electronic data is
preserved in a way that prevents
metadata spoliation by the system or the
owner of the data. HUD further clarified
that electronic data is properly retained
on network servers and other sources as
mandated by the HUD’s Office of
General Counsel Records Disposition
Schedule 2—Legal Records, 2225.6
REV–1, CHG–APPENDIX 2 2 and HUD’s
Office of the Chief Information Officer
Electronic Mail Policy, 2400.1 REV01,
CHG.3 These handbooks are available on
HUD’s Web pages through hudclips.
The public comment period for the
November 15, 2012, notice closed on
December 17, 2012. HUD received no
public comments in response to the
November 2012 additional solicitation
of comment. In this notice, HUD
provides a complete summary of the
location, purposes, and operational
description of EDMS. The summary is
key case is Pension Comm. of the Univ. of Montreal
Pension Plan v. Banc of Am. Secs., LLC, 05 Civ.
9016 (SAS), 2010 U.S. Dist. LEXIS 4546, at *14–15
(S.D.N.Y. Jan. 15, 2010).
2 https://portal.hud.gov/hudportal/HUD?src=/
program_offices/administration/hudclips/
handbooks/admh/2225.6.
3 https://www.hud.gov/offices/adm/hudclips/
handbooks/cioh/.
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Office General Counsel Electronic
Discovery Management System. (OGC–
EDMS)
‘‘reasonably anticipates’’ litigation, he/
she must suspend any document
alteration or destruction to ensure the
preservation of relevant documents and
electronically stored information,
including emails.
EDMS and its various capabilities will
allow OGC to streamline and automate
the document and data reviews it
conducts, allow the attorneys to analyze
the information in different formats,
conduct the analysis in bulk more
efficiently, and protect unwarranted
disclosure of information by flagging
files that contain information therein
that is protected from disclosure.
SYSTEM LOCATIONS:
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
The EDMS application will be stored
on servers located at 4701 Forbes
Boulevard, Lanham, MD 20706.
Custodian data to be retrieved is stored
on servers and HUD workstations
located throughout the country.4
The federal regulation(s)/statute(s)
that gives OGC the authority to collect
and store this information is Federal
Rules of Civil Procedure (FRCP) 16(b)
which allows the court to establish rules
around disclosure, privilege, methods
and work product prior to electronic
discovery commencing. In this context,
disclosure is the collection of data.
Other relevant regulations surrounding
the collection and management of
electronic discovery are FRCP 26(b)(2),
26(b)(5)(B), 26(f), 33(d), 34(a), 34(b),
37(f), and 45.
the same as that provided in the
November 15, 2012, notice. HUD has
made no further changes.
Authority: 5 U.S.C. 552a; 88 Stat. 1896; 42
U.S.C. 3535(d).
Dated: February 5, 2013.
Jerry E. Williams,
Chief Information Officer.
Summary Description of EDMS
OGC.CAGC.01
SYSTEM NAME:
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PURPOSES:
OGC–EDMS provides OGC with a
method to initiate, track, and manage
the collection, organization, and
production of paper and electronic
documents for discovery requests, such
as litigation hold memoranda, EDiscovery certifications, electronically
stored information (ESI) search requests,
closure letters, and any other documents
and data relevant to the discovery
process requiring analysis, review,
redaction, and production to respond to
litigation discovery requirements. The
purpose of this system is to assist HUD
to collect electronically stored
information and data of any individual
who is, or will be, in litigation with
HUD, as well as the attorneys
representing the plaintiff(s) and
defendant(s) in response to claims by
employees, former employees, and other
individuals; to assist in the settlement of
claims against the government; to
represent HUD during litigation, and to
maintain internal statistics. A new
software component is being added to
HUD’s EDMS process that will
streamline the collection, storage, and
analysis of case data to be responsive to
requests to HUD.
On December 1, 2006, the Federal
Rules of Civil Procedure were amended
to create and clarify responsibility for
preserving and accessing ESI. The
obligation to preserve ESI, as well as
paper records, begins when an
individual ‘‘reasonably anticipates’’
litigation and concludes that the
evidence may be relevant to such future
litigation. Once an individual
4 https://portal.hud.gov/hudportal/documents/
huddoc?id=append2.pdf.
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CATEGORIES OF INDIVIDUALS COVERED BY THE
SYSTEM:
Categories of individuals covered by
this system include: (1) all persons
subject to a litigation hold due to a
‘‘reasonable anticipation of litigation’’ as
determined by HUD’s OGC; (2) all
persons deemed a participant of past or
present litigation, investigations, or
arbitration where HUD is involved; and
(3) specified individuals impacted by
FOIA requests, litigation, and other
cases in HUD.
A wide variety of individuals are
covered by the system including:
individuals who either file
administrative complaints with HUD or
are the subject of administrative
complaints initiated by HUD;
individuals who are named parties in
cases in which HUD believes it will or
may become involved; individuals
involved in matters within the
jurisdiction of HUD 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;
individuals who are the subject of an
action requiring approval or action by a
HUD official, such as appeals, actions,
training, awards, promotions, selections,
grievances and delegations, including
the OGC attorneys to whom cases are
assigned, and attorneys and authorized
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representatives for whom HUD has
received complaints regarding their
practices before HUD.
CATEGORIES OF RECORDS IN THE SYSTEM:
Categories of records in this system
include: (1) Custodian name; (2)
Custodian work address; (3) Custodian
email address; (4) Case Name; (5) Case
number; (6) Custodian email data,
including messages among other HUD
employees and/or personnel of other
federal agencies or outside entities, and
attachments; (7) Custodian local/shared
drive data of information collected or
compiled from law enforcement or other
agency databases; (8) Spreadsheets
including data collections, often
including personally identifiable
information and sensitive law
enforcement data used to track the
process or investigations or focus
investigative priorities; 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 HUD cases and legal actions
that HUD either is involved in or in
which it believes it will or may become
involved; claims by or against the U.S.
Government, other than litigation cases,
arising from a transaction with HUD,
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 of 1973
(26 U.S.C. 701); personnel matters;
contracts; foreclosures; actions against
HUD officials; records relating to
requests for HUD records other than
requests under the Freedom of
Information Act and the Privacy Act of
1974; testimonies of HUD 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; security clearance information;
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.
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ROUTINE USES OF RECORDS MAINTAINED IN THE
SYSTEM, INCLUDING CATEGORIES OF USERS AND
PURPOSES OF SUCH USES:
1. 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 records pertain;
2. To the National Archives and
Records Administration for use in its
records management inspections and its
role as an Archivist;
3. To the Department of Justice (DOJ)
when seeking legal advice for a HUD
initiative or in response to DOJ’s request
for the information, after either HUD or
DOJ determine that such information is
relevant to DOJ’s representatives of the
United States or any other component in
legal proceedings before a court or
adjudicative body, provided that, in
each case, the agency also determines
prior to disclosure that disclosure of the
records to the DOJ is a use of the
information contained in the records
that is compatible with the purpose for
which HUD collected the records. HUD
on its own may disclose records in this
system of records in legal proceedings
before a court or administrative body
after determining that the disclosure of
the records to the court or
administrative body is a use of the
information contained in the records
that is compatible with the purpose for
which HUD collected the records; or to
another agency or to an instrumentality
of any governmental jurisdiction within
or under the control of the United States
for a civil or criminal law enforcement
activity if the activity is authorized by
law, and if the head of the agency or
instrumentality has made a written
request to the agency which maintains
the record specifying the particular
portion desired and the law
enforcement activity for which the
record is sought;
4. To third parties during the course
of a law enforcement investigation to
the extent necessary to obtain
information pertinent to the
investigation;
5. To contractors, grantees, experts,
consultants, and the agents thereof, and
others performing or working on a
contract, service, grant, cooperative
agreement, or other assignment for
HUD, when necessary to accomplish an
agency function related to its 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 HUD
officers and employees;
6. To third parties during the course
of a law enforcement investigation to
the extent necessary to obtain
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information pertinent to the
investigation, provided disclosure is
appropriate to the proper performance
of the official duties of the officer
making the disclosure;
7. 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;
8. To a grand jury agent pursuant
either to a federal or state grand jury
subpoena, or to a prosecution request
that such record be released for the
purpose of its introduction to a grand
jury, where the subpoena or request has
been specifically approved by a court;
and
9. To appropriate agencies, entities,
and persons when: a) HUD suspects or
has confirmed that the security or
confidentiality of information in a
system of records has been
compromised; b) HUD 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 systems or
programs (whether maintained by HUD
or another agency or entity) that rely
upon the compromised information; and
c) the disclosure made to such agencies,
entities, and persons is reasonably
necessary to assist in connection with
HUD’s efforts to respond to the
suspected or confirmed compromise
and prevent, minimize, or remedy such
harm for purposes of facilitating
responses and remediation efforts in the
event of a data breach.
POLICIES FOR STORING, RETRIEVING, AND
DISPOSING OF SYSTEM RECORDS:
STORAGE:
Data collected by OGC–EDMS is
stored electronically in a Storage Area
Network/Network Attached. There are
no manual records stored or maintained
outside the system. Storage is at a secure
Lockheed Martin facility, and backed up
via an Avamar Backup Storage system.
RETRIEVABILITY:
Records will be retrieved by the (1)
Custodian name; (2) Work address; (3)
Custodian email address; (4) Case name;
(5) Case number; (6) Custodian email
data; (7) Custodian local drive data; (8)
Custodian home/shared drive data; (9)
Litigation hold closures; (10) Litigation
hold memoranda; (11) Litigation
preservation notices; (12) Litigation
hold reminder notices; and (13) ESI
identification email notifications. E-
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Discovery notifications data is only
accessed by individually assigned legal
counsel on a case by case basis.
SAFEGUARDS:
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 are authorized to
access by appropriate security
clearances and user ID/password
permissions. Only assigned users with a
need-to-know are allowed access, on a
case-by-case basis, after going through
HUD’s background investigation
process.
RETENTION AND DISPOSAL:
In response to the FRCP 16(b), when
litigation is ‘‘reasonably anticipated,’’
related electronic data is copied and
maintained in a secure server
environment separate from HUD’s
network servers as part of the EDMS.5
Upon authorization from a HUD
Associate General Counsel, Regional
Counsel, or other designated official,
OGC closes a case. The closed case and
related electronic litigation data that has
been copied and secured in a
production environment for the
purposes of litigation is purged
electronically from the EDMS. The
purging process does not extend to
purging electronic data from its original
source, such as network servers.
Electronic data is properly retained on
network servers and other sources as
required by HUD’s Office of General
Counsel Records Disposition Schedule
2—Legal Records, 2225.6 REV–1, CHG–
APPENDIX 2 6 and the Electronic Mail
Policy, 2400.1 REV01, CHG.7
SYSTEM MANAGERS AND ADDRESSES:
Office of General Counsel (OGC)
Tenille Washburn, Assistant General
Counsel, Field Management and IT
Division, Department of Housing and
Urban Development, 1250 Maryland
Avenue SW., Suite 200, Washington, DC
20024. The phone contact information is
(202) 402–6536. This is not a toll free
number.
NOTIFICATION AND RECORD ACCESS
PROCEDURES:
Individuals seeking to determine
whether this system of records contains
5 Other relevant regulations surrounding the
collection and management of electronic discovery
are FRCP 26(b)(2), 26(b)(5)(B), 26(f), 33(d), 34(a),
34(b), 37(f), and 45.
6 https://portal.hud.gov/hudportal/HUD?src=/
program_offices/administration/hudclips/
handbooks/admh/2225.6.
7 https://www.hud.gov/offices/adm/hudclips/
handbooks/cioh/.
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Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Notices
information about them, or those
seeking access to such records, should
address inquiries to Donna StatonRobinson, Chief Privacy Officer,
Department of Housing and Urban
Development, 451 7th Street SW., Room
4156, Washington, DC 20410.
(Attention: Capitol View Building, 4th
Floor.) The phone contact information is
(202) 708–5495. This is not a toll free
number. Provide verification of your
identity by providing two proofs of
official identification. Your verification
of identity must include your original
signature and must be notarized.
CONTESTING RECORD PROCEDURES:
HUD’s rules for contesting the
contents of records and appealing initial
denials by the individual concerned
appear in 24 CFR part 16. If additional
information or assistance is needed, it
may be obtained by contacting HUD
officials as follows:
(i) Contesting contents of records: The
Department of Housing and Urban
Development, Chief Privacy Officer, 451
Seventh Street SW., Washington, DC
20410;
(ii) Appeals of initial HUD
determinations: In relation to contesting
contents of records, the HUD
Departmental Privacy Appeals Officers,
Office of General Counsel, Department
of Housing and Urban Development,
451 Seventh Street SW., Washington,
DC 20410.
RECORD SOURCE CATEGORIES:
Documents and records in this system
originate from HUD and its components,
courts, subpoenas, law enforcement
agencies, other federal, state, and local
agencies, inquiries and/or complaints
from witnesses or members of the
general public.
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EXEMPTIONS:
The records in EDMS are maintained
for use in civil rather than criminal
actions. For that reason, the relevant
provision of the Privacy Act is 5 U.S.C.
552a(d)(5) which states ‘‘nothing in this
[Act] shall allow an individual access to
any information compiled in reasonable
anticipation of a civil action or
proceeding.’’ (See U.S. Department of
Justice, Office of Privacy and Civil
Liberties, Overview of the Privacy Act of
1974 (2010) 212.8)
[FR Doc. 2013–03071 Filed 2–8–13; 8:45 am]
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8 https://www.justice.gov/opcl/
1974tenexemp.htm#one.
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Invasive Species Advisory Committee;
Meetings
Office of the Secretary, Interior.
Notice of public meetings of the
Invasive Species Advisory Committee.
AGENCY:
ACTION:
Pursuant to the provisions of
the Federal Advisory Committee Act,
notice is hereby given of meetings of the
Invasive Species Advisory Committee
(ISAC). Comprised of 31 nonfederal
invasive species experts and
stakeholders from across the nation, the
purpose of the Advisory Committee is to
provide advice to the National Invasive
Species Council, as authorized by
Executive Order 13112, on a broad array
of issues related to preventing the
introduction of invasive species and
providing for their control and
minimizing the economic, ecological,
and human health impacts that invasive
species cause. The Council is co-chaired
by the Secretary of the Interior, the
Secretary of Agriculture, and the
Secretary of Commerce. The duty of the
Council is to provide national
leadership regarding invasive species
issues.
Purpose of Meeting: The meeting will
be held on March 7–8, 2013 in
Arlington, Virginia, and will focus on
the changing approaches to invasive
species. The purpose of the meeting is
to convene the full ISAC and consider
strategies and methodologies for
implementing performance elements
outlined in the 2008–2012 National
Invasive Species Management Plan. The
meeting agenda is now available on the
NISC Web site, www.invasivespecies
.gov. Supplemental materials will be
uploaded to the site on or before Friday,
February 22, 2013.
The full committee meeting on
Thursday, February 7, 2013 and Friday,
February 8, 2013 is open to the public.
An orientation session will be held on
Wednesday, February 06, 2013 for the
14 new ISAC members appointed by
Secretary Ken Salazar on January 22,
2013. Note: There will be no committee
business conducted during the
orientation session, which is closed to
the public.
DATES: ISAC New Member Orientation
(CLOSED): Wednesday, February 6,
2013; 9:00 a.m.–1:45 p.m. Meeting of the
Invasive Species Advisory Committee
(OPEN): Thursday, February 7, 2013
through Friday, March 8, 2013, 8:00
a.m. to 5:00 p.m.
ADDRESSES: Sheraton Pentagon City, 900
South Orme Street, Arlington, VA
SUMMARY:
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22204–4520. The general session on
Thursday, February 7, 2013, and Friday,
February 8, 2013 will be held in the
Galaxy Ballroom.
FOR FURTHER INFORMATION CONTACT:
Kelsey Brantley, National Invasive
Species Council Program Specialist and
ISAC Coordinator, Phone: (202) 513–
7243; Fax: (202) 371–1751; email:
Kelsey_Brantley@ios.doi.gov. Additional
information can also be obtained from
the NISC Web site,
www.invasivespecies.gov.
Dated: February 6, 2013.
Lori Williams,
Executive Director, National Invasive Species
Council.
[FR Doc. 2013–03062 Filed 2–8–13; 8:45 am]
BILLING CODE 4310–RK–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–R4–ES–2013–N015;
FXES11130400000EA–123–FF04EF1000]
Endangered and Threatened Wildlife
and Plants; Receipt of Application for
Incidental Take Permit; Availability of
Proposed Low-Effect Habitat
Conservation Plan; Florida Power
Corporation, Progress Energy Florida
Inc., Lake County, FL
Fish and Wildlife Service,
Interior.
ACTION: Notice of availability; request
for comment/information.
AGENCY:
We, the Fish and Wildlife
Service (Service), have received an
application from Florida Power
Corporation, Progress Energy Florida
Inc. (applicant), for an incidental take
permit (ITP). The applicant requests a
20-year ITP under the Endangered
Species Act of 1973, as amended (Act).
We request public comment on the
permit application (#TE93592A–0) and
accompanying proposed habitat
conservation plan (HCP), as well as on
our preliminary determination that the
plan qualifies as low-effect under the
National Environmental Policy Act
(NEPA). To make this determination, we
used our environmental action
statement and low-effect screening form,
which are also available for review.
DATES: To ensure consideration, please
send your written comments by March
13, 2013.
ADDRESSES: If you wish to review the
application and HCP, you may request
documents by email, U.S. mail, or
phone (see below). These documents are
also available for public inspection by
appointment during normal business
SUMMARY:
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]]>Agencies
[Federal Register Volume 78, Number 28 (Monday, February 11, 2013)]
[Notices]
[Pages 9721-9724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03071]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5613-N-06-C]
Privacy Act of 1974; New System of Records, Office of General
Counsel E-Discovery Management System: Republication of System
Description and Solicitation of Comment
AGENCY: Office of the Chief Information Officer, HUD.
ACTION: Notice.
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SUMMARY: Pursuant to the provision of the Privacy Act of 1974, HUD is
providing notice of its formal adoption of a new system of records for
the Office of General Counsel (OGC) E-Discovery Management System
(EDMS). The OGC discovery productions typically require the
preservation, collection and analysis of massive emails, word
processing documents, PDF files, spreadsheets, presentations, database
entries, and other documents in a variety of electronic file formats,
as well as paper records. EDMS is expected to improve significantly the
efficiency of OGC's processing of records during the discovery and
processing of litigation requests and will dramatically reduce the time
spent on the document review and production process.
DATES: Effective Date: December 18, 2012.
FOR FURTHER INFORMATION CONTACT: For inquiries pertaining to Privacy
Act records, contact Donna Robinson-Staton, Chief Privacy Officer,
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410 (Attention: Capitol View Building, 4th Floor)
telephone number (202) 402-8073 (this telephone number is not toll
free). A telecommunications device for hearing- and speech-impaired
persons (TTY) is available by calling the Federal Relay Service's toll-
free telephone number (800) 877-8339.
SUPPLEMENTARY INFORMATION: Pursuant to the Privacy Act of 1974 (5
U.S.C. 552a) (Privacy Act), HUD published in the Federal Register on
July 17, 2012, at 77 FR 41997, a notice that announced a new system of
records for OGC's E-Discovery Management System (OGC-EDMS), a system
expected to significantly improve the efficiency of OGC's processing of
records during the preservation, discovery, and processing of
litigation requests when litigation is ``reasonably anticipated'' \1\
and reduce the time HUD staff spend on the document review and
production process. OGC-EDMS is in response to and consistent with e-
discovery preservation and production requirements in the Federal Rules
of Civil Procedure.
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\1\ ``Reasonably anticipated'' is the legal test articulating
the standard for when the duty to preserve electronically stored
information begins. A key case is Pension Comm. of the Univ. of
Montreal Pension Plan v. Banc of Am. Secs., LLC, 05 Civ. 9016 (SAS),
2010 U.S. Dist. LEXIS 4546, at *14-15 (S.D.N.Y. Jan. 15, 2010).
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The July 17, 2012, notice solicited public comment on OGC-EDMS for
a period of 30 days. The notice advised that EDMS would carry a final
effective date of August 16, 2012, unless HUD received comments which
would result in a contrary determination. HUD received public comment
in response to the July 17, 2012, notice. On August 15, 2012, at 77 FR
49011, HUD published a notice advising of a change in the final
effective date of OGC-EDMS, the commitment to re-publish the
description of OGC-EDMS with certain clarifications, and to respond to
public comments received in response to the July 17, 2012, notice.
In response to public comments, a notice expanding the description
of OGC-EDMS and soliciting further public comments was published on
November 15, 2012, at 77 FR 68140. Specifically, HUD clarified in the
notice published on November 15, 2012 that when litigation is
``reasonably anticipated,'' related electronic data is forensically
copied and maintained in a secure server environment separate from
HUD's network servers as part of the OGC-EDMS. In this secure server
environment, electronic data is preserved in a way that prevents
metadata spoliation by the system or the owner of the data. HUD further
clarified that electronic data is properly retained on network servers
and other sources as mandated by the HUD's Office of General Counsel
Records Disposition Schedule 2--Legal Records, 2225.6 REV-1, CHG-
APPENDIX 2 \2\ and HUD's Office of the Chief Information Officer
Electronic Mail Policy, 2400.1 REV01, CHG.\3\ These handbooks are
available on HUD's Web pages through hudclips.
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\2\ https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
\3\ https://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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The public comment period for the November 15, 2012, notice closed
on December 17, 2012. HUD received no public comments in response to
the November 2012 additional solicitation of comment. In this notice,
HUD provides a complete summary of the location, purposes, and
operational description of EDMS. The summary is
[[Page 9722]]
the same as that provided in the November 15, 2012, notice. HUD has
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made no further changes.
Authority: 5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
Dated: February 5, 2013.
Jerry E. Williams,
Chief Information Officer.
Summary Description of EDMS
OGC.CAGC.01
SYSTEM NAME:
Office General Counsel Electronic Discovery Management System.
(OGC-EDMS)
SYSTEM LOCATIONS:
The EDMS application will be stored on servers located at 4701
Forbes Boulevard, Lanham, MD 20706. Custodian data to be retrieved is
stored on servers and HUD workstations located throughout the
country.\4\
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\4\ https://portal.hud.gov/hudportal/documents/huddoc?id=append2.pdf.
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PURPOSES:
OGC-EDMS provides OGC with a method to initiate, track, and manage
the collection, organization, and production of paper and electronic
documents for discovery requests, such as litigation hold memoranda, E-
Discovery certifications, electronically stored information (ESI)
search requests, closure letters, and any other documents and data
relevant to the discovery process requiring analysis, review,
redaction, and production to respond to litigation discovery
requirements. The purpose of this system is to assist HUD to collect
electronically stored information and data of any individual who is, or
will be, in litigation with HUD, as well as the attorneys representing
the plaintiff(s) and defendant(s) in response to claims by employees,
former employees, and other individuals; to assist in the settlement of
claims against the government; to represent HUD during litigation, and
to maintain internal statistics. A new software component is being
added to HUD's EDMS process that will streamline the collection,
storage, and analysis of case data to be responsive to requests to HUD.
On December 1, 2006, the Federal Rules of Civil Procedure were
amended to create and clarify responsibility for preserving and
accessing ESI. The obligation to preserve ESI, as well as paper
records, begins when an individual ``reasonably anticipates''
litigation and concludes that the evidence may be relevant to such
future litigation. Once an individual ``reasonably anticipates''
litigation, he/she must suspend any document alteration or destruction
to ensure the preservation of relevant documents and electronically
stored information, including emails.
EDMS and its various capabilities will allow OGC to streamline and
automate the document and data reviews it conducts, allow the attorneys
to analyze the information in different formats, conduct the analysis
in bulk more efficiently, and protect unwarranted disclosure of
information by flagging files that contain information therein that is
protected from disclosure.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
The federal regulation(s)/statute(s) that gives OGC the authority
to collect and store this information is Federal Rules of Civil
Procedure (FRCP) 16(b) which allows the court to establish rules around
disclosure, privilege, methods and work product prior to electronic
discovery commencing. In this context, disclosure is the collection of
data. Other relevant regulations surrounding the collection and
management of electronic discovery are FRCP 26(b)(2), 26(b)(5)(B),
26(f), 33(d), 34(a), 34(b), 37(f), and 45.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Categories of individuals covered by this system include: (1) all
persons subject to a litigation hold due to a ``reasonable anticipation
of litigation'' as determined by HUD's OGC; (2) all persons deemed a
participant of past or present litigation, investigations, or
arbitration where HUD is involved; and (3) specified individuals
impacted by FOIA requests, litigation, and other cases in HUD.
A wide variety of individuals are covered by the system including:
individuals who either file administrative complaints with HUD or are
the subject of administrative complaints initiated by HUD; individuals
who are named parties in cases in which HUD believes it will or may
become involved; individuals involved in matters within the
jurisdiction of HUD 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; individuals who are the subject of an action requiring
approval or action by a HUD official, such as appeals, actions,
training, awards, promotions, selections, grievances and delegations,
including the OGC attorneys to whom cases are assigned, and attorneys
and authorized representatives for whom HUD has received complaints
regarding their practices before HUD.
CATEGORIES OF RECORDS IN THE SYSTEM:
Categories of records in this system include: (1) Custodian name;
(2) Custodian work address; (3) Custodian email address; (4) Case Name;
(5) Case number; (6) Custodian email data, including messages among
other HUD employees and/or personnel of other federal agencies or
outside entities, and attachments; (7) Custodian local/shared drive
data of information collected or compiled from law enforcement or other
agency databases; (8) Spreadsheets including data collections, often
including personally identifiable information and sensitive law
enforcement data used to track the process or investigations or focus
investigative priorities; 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 HUD
cases and legal actions that HUD either is involved in or in which it
believes it will or may become involved; claims by or against the U.S.
Government, other than litigation cases, arising from a transaction
with HUD, 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 of 1973 (26 U.S.C. 701); personnel
matters; contracts; foreclosures; actions against HUD officials;
records relating to requests for HUD records other than requests under
the Freedom of Information Act and the Privacy Act of 1974; testimonies
of HUD 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;
security clearance information; 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.
[[Page 9723]]
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND PURPOSES OF SUCH USES:
1. 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 records pertain;
2. To the National Archives and Records Administration for use in
its records management inspections and its role as an Archivist;
3. To the Department of Justice (DOJ) when seeking legal advice for
a HUD initiative or in response to DOJ's request for the information,
after either HUD or DOJ determine that such information is relevant to
DOJ's representatives of the United States or any other component in
legal proceedings before a court or adjudicative body, provided that,
in each case, the agency also determines prior to disclosure that
disclosure of the records to the DOJ is a use of the information
contained in the records that is compatible with the purpose for which
HUD collected the records. HUD on its own may disclose records in this
system of records in legal proceedings before a court or administrative
body after determining that the disclosure of the records to the court
or administrative body is a use of the information contained in the
records that is compatible with the purpose for which HUD collected the
records; or to another agency or to an instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the activity
is authorized by law, and if the head of the agency or instrumentality
has made a written request to the agency which maintains the record
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
4. To third parties during the course of a law enforcement
investigation to the extent necessary to obtain information pertinent
to the investigation;
5. To contractors, grantees, experts, consultants, and the agents
thereof, and others performing or working on a contract, service,
grant, cooperative agreement, or other assignment for HUD, when
necessary to accomplish an agency function related to its 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 HUD officers and employees;
6. To third parties during the course of a law enforcement
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;
7. 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;
8. To a grand jury agent pursuant either to a federal or state
grand jury subpoena, or to a prosecution request that such record be
released for the purpose of its introduction to a grand jury, where the
subpoena or request has been specifically approved by a court; and
9. To appropriate agencies, entities, and persons when: a) HUD
suspects or has confirmed that the security or confidentiality of
information in a system of records has been compromised; b) HUD 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 systems or
programs (whether maintained by HUD or another agency or entity) that
rely upon the compromised information; and c) the disclosure made to
such agencies, entities, and persons is reasonably necessary to assist
in connection with HUD's efforts to respond to the suspected or
confirmed compromise and prevent, minimize, or remedy such harm for
purposes of facilitating responses and remediation efforts in the event
of a data breach.
POLICIES FOR STORING, RETRIEVING, AND DISPOSING OF SYSTEM RECORDS:
STORAGE:
Data collected by OGC-EDMS is stored electronically in a Storage
Area Network/Network Attached. There are no manual records stored or
maintained outside the system. Storage is at a secure Lockheed Martin
facility, and backed up via an Avamar Backup Storage system.
RETRIEVABILITY:
Records will be retrieved by the (1) Custodian name; (2) Work
address; (3) Custodian email address; (4) Case name; (5) Case number;
(6) Custodian email data; (7) Custodian local drive data; (8) Custodian
home/shared drive data; (9) Litigation hold closures; (10) Litigation
hold memoranda; (11) Litigation preservation notices; (12) Litigation
hold reminder notices; and (13) ESI identification email notifications.
E-Discovery notifications data is only accessed by individually
assigned legal counsel on a case by case basis.
SAFEGUARDS:
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 are authorized to access by appropriate security
clearances and user ID/password permissions. Only assigned users with a
need-to-know are allowed access, on a case-by-case basis, after going
through HUD's background investigation process.
RETENTION AND DISPOSAL:
In response to the FRCP 16(b), when litigation is ``reasonably
anticipated,'' related electronic data is copied and maintained in a
secure server environment separate from HUD's network servers as part
of the EDMS.\5\ Upon authorization from a HUD Associate General
Counsel, Regional Counsel, or other designated official, OGC closes a
case. The closed case and related electronic litigation data that has
been copied and secured in a production environment for the purposes of
litigation is purged electronically from the EDMS. The purging process
does not extend to purging electronic data from its original source,
such as network servers. Electronic data is properly retained on
network servers and other sources as required by HUD's Office of
General Counsel Records Disposition Schedule 2--Legal Records, 2225.6
REV-1, CHG-APPENDIX 2 \6\ and the Electronic Mail Policy, 2400.1 REV01,
CHG.\7\
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\5\ Other relevant regulations surrounding the collection and
management of electronic discovery are FRCP 26(b)(2), 26(b)(5)(B),
26(f), 33(d), 34(a), 34(b), 37(f), and 45.
\6\ https://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
\7\ https://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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SYSTEM MANAGERS AND ADDRESSES:
Office of General Counsel (OGC) Tenille Washburn, Assistant General
Counsel, Field Management and IT Division, Department of Housing and
Urban Development, 1250 Maryland Avenue SW., Suite 200, Washington, DC
20024. The phone contact information is (202) 402-6536. This is not a
toll free number.
NOTIFICATION AND RECORD ACCESS PROCEDURES:
Individuals seeking to determine whether this system of records
contains
[[Page 9724]]
information about them, or those seeking access to such records, should
address inquiries to Donna Staton-Robinson, Chief Privacy Officer,
Department of Housing and Urban Development, 451 7th Street SW., Room
4156, Washington, DC 20410. (Attention: Capitol View Building, 4th
Floor.) The phone contact information is (202) 708-5495. This is not a
toll free number. Provide verification of your identity by providing
two proofs of official identification. Your verification of identity
must include your original signature and must be notarized.
CONTESTING RECORD PROCEDURES:
HUD's rules for contesting the contents of records and appealing
initial denials by the individual concerned appear in 24 CFR part 16.
If additional information or assistance is needed, it may be obtained
by contacting HUD officials as follows:
(i) Contesting contents of records: The Department of Housing and
Urban Development, Chief Privacy Officer, 451 Seventh Street SW.,
Washington, DC 20410;
(ii) Appeals of initial HUD determinations: In relation to
contesting contents of records, the HUD Departmental Privacy Appeals
Officers, Office of General Counsel, Department of Housing and Urban
Development, 451 Seventh Street SW., Washington, DC 20410.
RECORD SOURCE CATEGORIES:
Documents and records in this system originate from HUD and its
components, courts, subpoenas, law enforcement agencies, other federal,
state, and local agencies, inquiries and/or complaints from witnesses
or members of the general public.
EXEMPTIONS:
The records in EDMS are maintained for use in civil rather than
criminal actions. For that reason, the relevant provision of the
Privacy Act is 5 U.S.C. 552a(d)(5) which states ``nothing in this [Act]
shall allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding.'' (See U.S.
Department of Justice, Office of Privacy and Civil Liberties, Overview
of the Privacy Act of 1974 (2010) 212.\8\)
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\8\ https://www.justice.gov/opcl/1974tenexemp.htm#one.
[FR Doc. 2013-03071 Filed 2-8-13; 8:45 am]
BILLING CODE 4210-67-P
