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.

Proposed Rules Federal Register

70402

Vol. 69, No. 233

Monday, December 6, 2004

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

DHS–2004–0016 

Privacy Act of 1974: Implementation of 

Exemptions

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Homeland 

Security is concurrently establishing 

three new systems of records pursuant 

to the Privacy Act of 1974. In this 

proposed rulemaking, DHS proposes to 

exempt portions of two of those systems 

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 January 5, 2005.

ADDRESSES: You may submit comments, 

identified by docket number DHS–

2004–0016, by one of the following 

methods: 

• EPA Federal Partner EDOCKET 

Web site: http://www.epa.gov/

feddocket. Follow instructions for 

submitting comments on the Web site. 

• DHS has joined the Environmental 

Protection Agency (EPA) online public 

docket and comment system on its 

Partner Electronic Docket System 

(Partner EDOCKET). DHS and its 

components (excluding the United 

States Coast Guard (USCG) and 

Transportation Security Administration 

(TSA)) will use the EPA Federal Partner 

EDOCKET system. The USCG and TSA 

(which are legacy Department of 

Transportation (DOT) agencies) will 

continue to use the DOT Docket 

Management System until full migration 

to the electronic rulemaking federal 

docket management system in 2005. 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 202–772–5036 (This is not a 

toll-free number). 

• Mail: Department of Homeland 

Security, Attn: Privacy Office/Nuala 

O’Connor Kelly, Chief Privacy Officer/

202–772–9848, Washington, DC 20528. 

• Hand Delivery / Courier: 

Department of Homeland Security, Attn: 

Privacy Office/Nuala O’Connor Kelly, 

Chief Privacy Officer/202–772–9848, 

Anacostia Navel Annex, 245 Murray 

Lane, SW, Building 410, Washington, 

DC 20528, 7:30 a.m. to 4 p.m. 

Instructions: All submissions received 

must include the agency name and 

docket number for this rulemaking. All 

comments received will be posted 

without change to http://www.epa.gov/

feddocket, including any personal 

information provided.

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.epa.gov/feddocket. You may also 

access the Federal eRulemaking Portal 

at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Nuala O’Connor Kelly, DHS Chief 

Privacy Officer, Department of 

Homeland Security, Washington, DC 

20528 by phone 202–772–9848 or 

facsimile 202–772–5036.

SUPPLEMENTARY INFORMATION: 

Background 

Concurrently with the publication of 

this notice of proposed rulemaking, the 

Department of Homeland Security 

(DHS) is publishing a Notice 

establishing three new systems of 

records that are subject to the Privacy 

Act of 1974, 5 U.S.C. 552a. DHS is 

proposing to exempt two of those 

systems, in part, from certain provisions 

of the Privacy Act. Those systems are 

the DHS Freedom of Information Act 

and Privacy Act Records System (DHS/

ALL 001), which will contain records 

related to requests and appeals made 

under the Freedom of Information Act, 

5 U.S.C. 552, and the Privacy Act; and 

the Civil Rights and Civil Liberties 

Matters System (DHS–CRCL–001), 

which will cover allegations of abuses of 

civil rights and civil liberties that are 

submitted to and investigated by the 

DHS Officer for Civil Rights and Civil 

Liberties. 

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 Homeland Security Act of 2002 

requires the Secretary of DHS to appoint 

a senior official to oversee 

implementation of the Privacy Act and 

to undertake other privacy-related 

activities. Pub. L. 107–296, § 222, 116 

Stat. 2135, 2155 (Nov. 25, 2002) (HSA). 

The systems of records being published 

today help to carry out the DHS Chief 

Privacy Officer’s statutory activities. 

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 to more easily find 

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 

exemption from certain requirements of 

the Privacy Act. In the case of DHS/All 

001, which consists of Freedom of 

Information Act and Privacy Act 

request, appeals and litigation records, 

it is possible that the information in the 

record system may be copied from 

record systems that pertain to national 

security or law enforcement matters. In 

such cases, allowing access to the 

information that is derived from these 

files could alert the subject of the 

information to an investigation of an 

actual or potential criminal, civil, or 

regulatory violation and reveal 

investigative interest on the part of DHS 

Federal Register / Vol. 69, No. 233 / Monday, December 6, 2004 / Proposed Rules 70403

or another agency. Disclosure of the 

information would therefore present a 

serious impediment to law enforcement 

efforts and/or efforts to preserve 

national security. Disclosure of the 

information would also permit the 

individual who is the subject of a record 

to impede the investigation and avoid 

detection or apprehension, which 

undermines the entire system. This 

exemption is a standard law 

enforcement and national security 

exemption utilized by numerous law 

enforcement and intelligence agencies. 

Similarly, the records in the Civil Rights 

and Civil Liberties System of Records 

may reflect sensitive law enforcement or 

national security matters, the disclosure 

of which would result in comparable 

harms.

List of Subjects in 6 CFR Part 5 

Classified information; Courts; 

Freedom of information; Government 

employees; 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: Pub. L. 107–296, 116 Stat. 2135, 

6 U.S.C. 101 et seq.; 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 Appendix C to Part 5 to read 

as follows:

Appendix C to Part 5—DHS Systems of 

Records Exempt from the Privacy Act 

This Appendix implements provisions of 

the Privacy Act of 1974 that permit the 

Department of Homeland Security (DHS) to 

exempt its systems of records from 

provisions of the Act. During the course of 

normal agency operations, exempt materials 

from other systems of records may become 

part of the records in these and other DHS 

systems. To the extent that copies of records 

from other exempt systems of records are 

entered into any DHS system, DHS hereby 

claims the same exemptions for those records 

that are claimed for the original primary 

systems of records from which they 

originated and claims any additional 

exemptions in accordance with this rule. 

Portions of the following DHS systems of 

records are exempt from certain provisions of 

the Privacy Act pursuant to 5 U.S.C. 552(j) 

and (k): 

1. DHS/ALL 001, Department of Homeland 

Security (DHS) Freedom of Information Act 

(FOIA) and Privacy Act (PA) Record System 

allows the DHS and its components to 

maintain and retrieve FOIA and Privacy Act 

files by personal identifiers associated with 

the persons submitting requests for 

information under each statute. Pursuant to 

exemptions (j)(2), (k)(1), (k)(2) and (k)(5) of 

the Privacy Act, portions of this system are 

exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); 

(e)(4)(G), (H) and (I). Exemptions from the 

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 and avoid detection or 

apprehension, which undermines the entire 

system. 

(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 would permit the individual who is 

the subject of a record to impede the 

investigation and avoid detection or 

apprehension. 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. The information contained in 

the system may also include properly 

classified information, the release of which 

would pose a threat to national defense and/

or foreign policy. In addition, permitting 

access and amendment to such information 

also 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 enforcement of federal 

laws, it is appropriate to retain all 

information that may aid in establishing 

patterns of unlawful activity. 

(d) From subsections (e)(4)(G), (H) and (I) 

(Agency Requirements), and (f) (Agency 

Rules), because portions of this system are 

exempt from the access provisions of 

subsection (d). 

2. DHS–CRCL–001, Civil Rights and Civil 

Liberties Matters, which will cover 

allegations of abuses of civil rights and civil 

liberties that are submitted to the Office of 

CRCL. Pursuant to exemptions (k)(1), (k)(2) 

and (k)(5) of the Privacy Act, portions of this 

system are exempt from 5 U.S.C. 552a(c)(3); 

(d); (e)(1); (e)(4)(G), (H) and (I). Exemptions 

from the 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 or another agency. Disclosure of the 

accounting would therefore present a serious 

impediment to law enforcement efforts and 

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 and 

avoid detection or apprehension, which 

undermines the entire system. 

(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 as well as the recipient agency. 

Access to the records would permit the 

individual who is the subject of a record to 

impede the investigation and avoid detection 

or apprehension. 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. The information contained in 

the system may also include properly 

classified information, the release of which 

would pose a threat to national defense and/

or foreign policy. In addition, permitting 

access and amendment to such information 

also 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 enforcement of federal 

laws, it is appropriate to retain all 

information that may aid in establishing 

patterns of unlawful activity. 

(d) From subsections (e)(4)(G), (H) and (I) 

(Agency Requirements), and (f) (Agency 

Rules), because this system is exempt from 

the access provisions of subsection (d).

Dated: December 1, 2004. 

Nuala O’Connor Kelly, 

Chief Privacy Officer.

[FR Doc. 04–26743 Filed 12–3–04; 8:45 am] 

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