Steven Gruenwald

985 Colony Lane

Hoffman Estates, IL 60195

[SteveG@swhi.net]{.underline}

Re: DHS-2005-0029

> Privacy Act of 1974: Implementation of Exemptions; Homeland Security
> Operations Center Database \[HSOC\]

I am a Federal Government agency attorney. However, this comment is
submitted in my capacity as a private citizen. I did not notice the
public notice until today and have not had an opportunity to research
the issue thoroughly, but I am extremely concerned that the proposed
exemptions (a) are without a sound basis in legal policy and (b) are
unnecessarily harmful to public trust in the Government.

1\. There is no valid justification presented for exempting the HSOC
database from the requirements of 5 USC §§552a(c)(3); (d); (e)(1);
(e)(4)(G), (H) and (I), and (e)(8), (f), and (g).

a\. §552a(c)(3): The statute as written exempts the Department from
making available to the subject of the record an accounting for
disclosures pursuant to paragraph (b)(7), and does not require an
accounting for disclosures made under paragraphs (b)(1) and (b)(2). The
rationale presented in the Notice is fully satisfied by those
exemptions. There is no valid reason given for allowing the Department
to make disclosures of personal information from a system of records to
any party, beyond those in the cited paragraphs, and not make accounting
to the subject of the record. The proposal would, for instance, allow
the Department to disclose personal information to the press or to an
opposing party in litigation and give no notice to the subject of the
record.

b\. §552a(d): No valid basis is given for the exemption. Materials that
are properly compiled for law enforcement investigation are already
addressed by paragraph (k). The proposed exemption would artificially
include within the category of law enforcement materials other records
that are not entitled to the exemption. The statue already satisfies the
legitimate needs of the Department and no further exemption is
warranted. By going beyond the valid exemption for law enforcement
materials, the proposed exemption is circular and seeks to undermine one
of the most central purposes of the Privacy Act. The proposal says \"
Amendment of the records would interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated.\"
This is equivalent to saying that the Department need not give the
subject of a record the opportunity to demonstrate that the record
material is wrong, because it might in fact be wrong and have to be
corrected. Obviously there is no harm to allowing persons to correct
information that is incorrect unless the Department wishes to be
entitled to act on the basis of incorrect information; nothing has to be
reinvestigated if an amendment proposed by the subject of a record is
not in fact correcting an inaccuracy.

c\. §552a(e)(1): The rationale offered for the exemption is circular and
seeks to undermine the other most central purpose of the Privacy Act.
The suggestion is made that the Department should be allowed to collect
personal information in a system of records without regard to whether
the material is relevant to any legitimate agency purpose because it is
sometimes difficult to determine whether the material is relevant. Such
an exemption would effectively eliminate all meaningful Privacy Act
control over the system of records; it would enable the system of
records to expand to include every conceivable kind of personal data on
individuals. This is an exemption that swallows the rule. The fact that
it is difficult to determine whether some information in relevant cannot
constitute a reasonable excuse to eliminate any requirement to make such
a determination.

d\. §552a(e)(4)(G), (H), (I) and (f): The proposal is unclear but
appears to exempt the entire system of records, at discretion of the
Department, from the essential notice requirements of the Act on the
basis that *some* records in it might be exempt under other sections. In
other words, subjects of records are not entitled to know whether there
are records on them which may be properly subject to correction,
amendment, or removal, because other records may not be subject to those
requirements.

2\. By making these proposals for exemption, and especially the proposed
exemptions to §552a(d) and (e)(1), the Department is seriously
endangering its credibility with the American public. Numerous
legislative and administrative acts in the aftermath of September 11,
2001 have created great fear in the public that the Government would
begin collecting large amounts of personal information and using it
carelessly. Rightly or wrongly, the handling of \"watch lists\" and the
recent enactment of the \"Real ID\" provisions of the supplemental
appropriations act have given rise to a strong suspicion that the
Government can no longer be trusted to maintain only that personal
information that it needs and to ensure that it is as accurate as
possible. The sole answer to most of these fears is that so long as the
Government is bound by the Privacy Act, whatever technical capabilities
it has, it must limit its data-gathering activities to those that serve
legitimate Government purposes; and if it demonstrably exceeds those
limits, the people have recourse in the courts. This proposed set of
exemptions completely wipes out any such basis for trust. The immediate
consequence will be a fear and distrust of all Government data-gathering
activities unprecedented since before World War II, with the possible
exception of the most notorious days of the House Committee on
Un-American Activities.

On the basis of the justifications offered in this Notice, there appears
to be no valid reason why the Department cannot fulfill its valid
functions within the existing ambit of the Privacy Act. Those records
that are exempt remain exempt; and there appears to be no valid reason
why the application of those exemptions should not be subject to legal
challenge where appropriate.

Respectfully,

STEVEN GRUENWALD