```

[Federal Register: August 18, 2010 (Volume 75, Number 159)]
[Rules and Regulations]               
[Page 50846-50847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au10-2]                         

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0056]

 
Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--001 Freedom of Information Act and Privacy Act 
Records System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of an updated and reissued 
system of records pursuant to the Privacy Act of 1974 for the 
``Department of Homeland Security/ALL--001 Freedom of Information Act 
and Privacy Act Records System of Records'' from certain provisions of 
the Privacy Act. Specifically, the Department exempts portions of the 
``Department of Homeland Security/ALL--001 Freedom of Information Act 
and Privacy Act Records System of Records'' from one or more provisions 
of the Privacy Act because of criminal, civil, and administrative 
enforcement requirements.

DATES: Effective Date: This final rule is effective August 18, 2010.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer and Chief Freedom of Information Act Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register, (74 FR 55484, October 28, 
2009) proposing to exempt portions of the system of records from one or 
more provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. The system of records is the 
DHS/ALL--001 Freedom of Information Act and Privacy Act Records System 
of Records. The DHS/ALL--001 Freedom of Information Act and Privacy Act 
Records system of records notice was published concurrently in the 
Federal Register, (74 FR 55572, October 28, 2009) and comments were 
invited on both the Notice of Proposed Rulemaking (NPRM) and System of 
Records Notice (SORN).

Public Comments

    DHS received four comments on the NPRM and no comments on the SORN.

NPRM

    DHS received four comments on the NPRM from two separate 
commenters. Two comments received were from the same commenter and 
supported the proposed rule. The remaining two comments were from a 
separate commenter and also supported the proposed rule.

SORN

    No comments were received on the SORN.
    After consideration of public comments, the Department will 
implement the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

0
For the reasons stated in the preamble, DHS amends Chapter I of Title 
6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for Part 5 continues to read as follows:

    Authority:  6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 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.

0
2. In Appendix C to Part 5, revise paragraph ``1'' to read as follows:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    1. The DHS/ALL--001 Freedom of Information Act and Privacy Act 
Records System of Records consists of electronic and paper records 
and will be used by DHS and its components. The DHS/ALL--001 Freedom 
of Information Act and Privacy Act Records System of Records is a 
repository of information held by DHS in connection with its several 
and varied missions and functions, including, but not limited to the 
enforcement of civil and criminal laws; investigations, inquiries, 
and proceedings there under; national security and intelligence 
activities;

[[Page 50847]]

and protection of the President of the United States or other 
individuals pursuant to Section 3056 and 3056A of Title 18. The DHS/
ALL--001 Freedom of Information Act and Privacy Act Records System 
of Records contains information that is collected by, on behalf of, 
in support of, or in cooperation with DHS and its components and may 
contain personally identifiable information collected by other 
federal, state, local, tribal, foreign, or international government 
agencies. The Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to 
limitations set forth in 5 U.S.C. 552a(c)(3) and (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) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to 
limitations set forth in 5 U.S.C. 552a(c)(3): (d); (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. Sec.  
552a(k)(1), (k)(2), (k)(3), (k)(5), and (k)(6). Exemptions from 
these 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) and (4) (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 that 
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, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (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 that 
investigation and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information 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 law enforcement, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation would alert the subject to the 
nature or existence of the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system would 
undermine investigative efforts and reveal the identities of 
witnesses, and potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it 
is impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) 
would preclude DHS agents from using their investigative training 
and exercise of good judgment to both conduct and report on 
investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal and could result in disclosure of 
investigative techniques, procedures, and evidence.
    (i) From subsection (e)(12) (Computer Matching) if the agency is 
a recipient agency or a source agency in a matching program with a 
non-Federal agency, with respect to any establishment or revision of 
a matching program, at least 30 days prior to conducting such 
program, publish in the Federal Register notice of such 
establishment or revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
    (k) From subsection (h) (Legal Guardians) the parent of any 
minor, or the legal guardian of any individual who has been declared 
to be incompetent due to physical or mental incapacity or age by a 
court of competent jurisdiction, may act on behalf of the 
individual.
* * * * *

    Dated: August 3, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-20478 Filed 8-17-10; 8:45 am]
BILLING CODE 9110-9L-P
```