November 18, 2008

Department of Homeland Security Privacy Office,

Thank you for allowing me to comment on your notice of proposed
rulemaking. I am writing in response to a proposed rule that would
exempt the DHS from portions of the Privacy Act of 1974. I applaud the
DHS' efforts to protect classified information that could undermine
national security, ongoing cases, and the safety of certain individuals.
However, I feel that there are ways in which the proposed rule could be
improved, specifically in its exemption from subsection (d) of the
Privacy act, which regards access to information.

As a proud American, I respect and fully understand the need to protect
some information from the general public for a number of safety
concerns. I recognize that there are many documents that could interfere
with the procedures and activities of the DHS or could affect the safety
and privacy of informants if they were leaked to the public. However, it
is also necessary to establish the importance of public access to
information of government activities. The availability of this
information is crucial for effective public participation and an equal
distribution of power in our society. A more open government, by which I
mean a government that is more lenient in permitting the distribution of
information, also allows less opportunity for corruption caused by
government secrecy. The relationship between a government and its
citizens is improved when citizens feel that they are not being lied to
or that their government is keeping information from them. It is
essential for there to be a balance between privacy and public access.
There are aspects of this proposed rule that I think may tip this
balance unfairly towards privacy.

My main problem with this proposed rule is that a full exemption is not
necessary to maintain the listed goals of the rule. The Freedom of
Information Act covers each of these goals with its ten exemptions. The
goals described in the notice and the exemptions of the FOIA that
correspond with them are as follows:

1.  "To preclude subjects of these activities from frustrating these
    processes" applies to exemption (b)(7)(A).

2.  "To avoid disclosure of activity techniques" applies to exemption
    (b)(7)(E).

3.  "To protect the identities and physical safety of confidential
    informants and law enforcement personnel" applies to exemption
    (b)(7)(D).

4.  "To ensure DHS' ability to obtain information from third parties and
    other sources" applies to exemptions (b)(3) and (b)(4)

5.  "To protect the privacy of third parties" applies to exemption
    (b)(7)(D) and (b)(4)

6.  "To safeguard classified information" applies to exemption (b)(1)

7.  "To safeguard records in connection with providing protective
    services to the President of the United States" applies to
    exemptions (b)(1) and (b)(3)

8.  To prevent subjects of inquiry from avoiding detection or
    apprehension applies to exemption (b)(7)(E).

Therefore, the FOIA already exempts the selected sections of the Privacy
Act. So, my question is: why is this additional overall exemption
necessary?

The Freedom of Information Act was created so that all citizens would
have to right to access any public records they want to view. The
exemptions it provides are tools that allow various agencies to protect
certain information. The ideal situation is for an agency to view each
request to access information individually. The proposed general
exemption, however, gives agencies the opportunity to turn down a
request simply because it is for "general legal records" held by the
DHS. Hypothetically, the DHS could use this exemption to their advantage
to deny any request they want. This would allow the agency to save time
and effort. Although I do not mean to offend the integrity of the DHS,
it is necessary to look at every possible outcome of the proposed rule.
There is always potential for corruption and laziness in democracy, and
it is important to make every attempt to avoid these common problems.

In the proposed rule it states that "the applicable exemptions may be
waived on a case by case basis." I commend the DHS for including this
statement because it suggests that the overall exemption will not
prohibit citizens from viewing records that do not fall under the listed
categories. However, I am not confident that this point is guaranteed or
emphasized enough. If exemptions can be waved on a case-by-case basis,
then why does the DHS not look at each case individually rather than
exempting all of their "general legal records" from the Privacy Act?
Although general legal records held by the DHS include information that
should not be leaked to the public such as names of witnesses, names of
individuals involved in legal cases, and investigation reports, there
are many general legal records that pose no threat to national security,
witness safety, etc., and therefore this exemption must be accessible to
the public according to the FOIA. These records include, among others,
foreclosures, titles to property, copies of petitions filed with the
DHS, and some records of discrimination. Citizens should also be able to
view any closed cases that are not related to pending cases. With this
new proposed rule, the DHS could refuse requests for access to
information more easily by simply saying that the information being
requested is a "general legal record".

The proposed rule is an unnecessary addition to laws we have already
established regarding this matter. There is therefore room to speculate
that this proposed rule could be used as a mechanism to increase
government power rather than a mechanism to protect legal records that
should not be seen by the public for legitimate reasons. By further
limiting what information the public has access to the government is
essentially acting without the consent of the public, defeating the main
purpose of democracy. In a democracy, the people are fairly represented
and take a role in the political process. Americans have a right to know
what their government is doing and to respond accordingly. Denying this
right in any way is anti-democratic.

This rule would be satisfactory if the DHS would guarantee to consider
each request on a case-by-case basis without exception. I think it is
also necessary for the rule to explain what "general legal records" are
and which general legal records can be viewed and which cannot. However,
despite this description, because some requested information cannot be
categorized easily as acceptable or as not acceptable to be viewed by
the public, each case must still be considered individually.

I appreciate being able to comment on this proposed law, and I hope you
take into consideration the concerns I have regarding the proposed
exemptions.

Sincerely,

Lila Baker

Macalester College

1600 Grand Ave

St. Paul, MN 55105