[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45088-45090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20756]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0047]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Secret Service--003 Non-Criminal Investigation 
Information System of Records

AGENCY: Privacy Office, DHS.

[[Page 45089]]


ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a Department of Homeland 
Security U.S. Secret Service system of records entitled the 
``Department of Homeland Security U.S. Secret Service--003 Non-Criminal 
Investigation Information System of Records'' from certain provisions 
of the Privacy Act. Specifically, the Department exempts portions of 
the Department of Homeland Security U.S. Secret Service--003 Non-
Criminal Investigation Information system 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 31, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Latita Payne (202-406-6370), Privacy Point of Contact, United States 
Secret Service, Washington, DC 20223. For privacy issues contact: Mary 
Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, 
U.S. 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, 73 FR 77546, December 19, 
2008, proposing to exempt portions of the system of records from one or 
more provisions of the Privacy Act because of the U.S. Secret Service's 
(Secret Service) protective functions and its criminal, civil, and 
administrative enforcement responsibilities. The system of records is 
the DHS/Secret Service--003 Non-Criminal Investigation Information 
system. The DHS/Secret Service--003 Non-Criminal Investigation 
Information system of records notice was published concurrently in the 
Federal Register, 73 FR 77813, December 19, 2008, and comments were 
invited on both the notice of proposed rulemaking and the system of 
records notice. No comments were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS 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.; Public Law 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. Add at the end of Appendix C to Part 5, the following new paragraph 
``36'':

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

* * * * *
    36. The DHS/Secret Service--003 Non-Criminal Investigation 
Information system of records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/Secret 
Service--003 Non-Criminal Investigation Information system 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; criminal, civil, 
protective and background investigations and inquiries, and 
proceedings thereunder; the protection of the President of the 
United States or other individuals and locations pursuant to Section 
3056 and 3056A of Title 18; and the hiring of employees through an 
application process which includes the use of polygraph 
examinations. The DHS/Secret Service--003 Non-Criminal Investigation 
Information system 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, as well as private corporate, 
educational and other entities. The Secretary of Homeland Security 
has exempted this system from the following provisions of the 
Privacy Act, subject to the 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) and (e)(8); (f), and (g) 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 the 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. 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 the 
investigation, or protective inquiry, 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 the Secret Service's 
protective mission. Disclosure of the accounting would also permit 
the individual who is the subject of a record to impede the 
investigation or inquiry, to tamper with witnesses or evidence, and 
to avoid detection or apprehension, which would undermine the entire 
investigative or inquiry 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, or protective inquiry to the 
existence of the investigation or inquiry, 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 or inquiry, to tamper with witnesses or evidence, 
and to avoid detection or apprehension. Amendment of the records 
could interfere with ongoing investigations and law enforcement or 
protective activities and/or could disclose security-sensitive 
information that could be detrimental to homeland security or the 
protective mission of the Secret Service.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law or protective inquiries, 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 or protective inquiry. In the interests of 
effective law enforcement and/or the protective mission of the 
Secret Service, it is appropriate to retain all information that may 
aid in establishing patterns of unlawful activity, or a threat to an 
individual, location or event protected or secured by the Secret 
Service.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation or protective inquiry would alert 
the subject to the nature or existence of an investigation or 
inquiry, thereby interfering with the related investigation or 
inquiry and law enforcement or protective activities.
    (e) From subsection (e)(3) (Notice to Individuals Providing 
Information) because providing such detailed information would 
impede law enforcement or protective activities in that it could 
compromise investigations or inquiries by: Revealing the existence 
of an otherwise confidential investigation or inquiry and thereby 
provide an opportunity for the subject of an investigation or 
inquiry to conceal evidence, alter patterns of behavior, or take 
other actions that could thwart investigative or protective efforts; 
reveal the identity of witnesses in investigations or inquiries, 
thereby providing an opportunity for the subjects of the 
investigations or inquiries or others to harass, intimidate, or 
otherwise interfere with the collection of evidence or other 
information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the

[[Page 45090]]

informant's usefulness in any ongoing or future investigations or 
protective activities and discourage members of the public from 
cooperating as confidential informants in any future investigations 
or protective activities.
    (f) From subsections (e)(4)(G), (H), and (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 the 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 or protective efforts and 
reveal the identities of witnesses, and potential witnesses, and 
confidential informants.
    (g) From subsection (e)(5) (Maintenance of Information Used in 
Making any Determination) because in the collection of information 
for law enforcement and protective purposes it is impossible to 
determine in advance what information is accurate, relevant, timely, 
and complete. Compliance with (e)(5) would preclude Secret Service 
agents from using their investigative and protective training, and 
exercising good judgment to both conduct and report on 
investigations or other protective activities.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal, or could result in disclosure of 
investigative or protective techniques, procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's: Refusal to amend a record; refusal to 
comply with a request for access to records; failure to maintain 
accurate, relevant, timely and complete records; or failure to 
otherwise comply with an individual's right to access or amend 
records.

    Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20756 Filed 8-28-09; 8:45 am]
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