50904 Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations 

Subpart A also issued under 5 U.S.C. 552. 

Subpart B also issued under 5 U.S.C. 552a. 

■ 2. In Appendix C to Part 5, add a new 

paragraph 39 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

39. The DHS/ALL—017 General Legal 

Records system of records consists of 

electronic and paper records and will be used 

by DHS and its components. The DHS/ALL— 

017 General Legal 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 thereunder; national security 

and intelligence activities; and protection of 

the President of the United States or other 

individuals pursuant to Section 3056 and 

3056A of Title 18. The DHS/ALL—017 

General Legal 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 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 exemption 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), (I), and (f), pursuant to 5 U.S.C. 

552a(k)(1), (k)(2), (k)(3) and (k)(5). 

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, 

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 the 

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 impossible administrative burden 

by requiring investigations to be 

continuously 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 an 

investigation, thereby interfering with the 

related investigation and law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise investigations 

by: Revealing the existence of an otherwise 

confidential investigation and thereby 

provide an opportunity for the subject of an 

investigation to conceal evidence, alter 

patterns of behavior, or take other actions 

that could thwart investigative efforts; reveal 

the identity of witnesses in investigations, 

thereby providing an opportunity for the 

subjects of the investigations 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 

informant’s usefulness in any ongoing or 

future investigations and discourage 

members of the public from cooperating as 

confidential informants in any future 

investigations. 

(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 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 in 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 (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’ 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 (g) 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: September 23, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–23514 Filed 9–30–09; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0069] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/ALL—023 Personnel Security 

Management 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 a 

Department of Homeland Security 

system of records entitled the 

‘‘Department of Homeland Security/ 

ALL—023 Personnel Security 

Management System of Records’’ from 

certain provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the Department of Homeland 

Security/ALL—023 Personnel Security 

Management 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 October 1, 2009. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations 50905 

FOR FURTHER INFORMATION CONTACT: For 

general questions and privacy issues, 

please 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, 74 FR 2904, January 16, 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—023 

Personnel Security Management system. 

The DHS/ALL—023 Personnel Security 

Management system of records notice 

was published concurrently in the 

Federal Register, 74 FR 3084, January 

16, 2009, and comments were invited on 

both the notice of proposed rulemaking 

and system of records notice. No 

comments were received on the notice 

of proposed rulemaking or system of 

records notice published on January 16, 

2009. 

Prior to the January 16, 2009 

publishing, DHS published a notice of 

proposed rulemaking and system of 

records notice for the DHS–OS–001 

Office of Security File System on 

September 12, 2006. The notice of 

proposed rulemaking published in the 

Federal Register, 71 FR 53609, 

September 12, 2006, proposed 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 

notice published concurrently in the 

Federal Register, 71 FR 53700, 

September 12, 2006, and comments 

were invited on both the notice of 

proposed rulemaking and system of 

records notice. The notice of proposed 

rulemaking received four public 

comments and system of records notice 

received one public comment but were 

never addressed after the publication 

period expired. 

Because the DHS–OS–001 Office of 

Security File System notice of proposed 

rulemaking and system of records 

notice, published on September 12, 

2006, have been superseded by the 

DHS/ALL—023 Personnel Security 

Management notice of proposed 

rulemaking and system of records notice 

published on January 16, 2009, the 

Department will respond to previous 

public comments in this final rule as if 

they were submitted under the new 

docket number. 

Public Comments 

DHS received no public comments on 

the DHS/ALL—023 Personnel Security 

Management system notice of proposed 

rulemaking and system of records notice 

published on January 16, 2009. As 

described above, DHS received four 

public comments on DHS–OS–001 

Office of Security File System notice of 

proposed rulemaking and one public 

comment on the system of records 

notice published on September 12, 

2006. 

Notice of Proposed Rulemaking 71 FR 

53609, September 12, 2006 

Public comments noted that the 

functions of law enforcement and 

personnel security should be two 

separate systems of records, not 

commingled systems. In January 2009, 

the Department published two new 

system of records notices: (1) DHS/ 

ALL—023 Personnel Security 

Management system, 74 FR 3084, 

January 16, 2009; and (2) DHS/ALL— 

025 Law Enforcement Authority in 

Support of the Protection of Property 

Owned or Occupied by the Department 

of Homeland Security system, 74 FR 

3088, January 16, 2009. Publishing these 

two systems of records notices provides 

transparency to the public of the 

Department’s security authorities and 

exemptions for personnel security and 

law enforcement activities and 

addresses the concerns expressed in the 

public comments. 

Final exemptions for the DHS/ALL— 

023 Personnel Security Management 

system of records are published below 

under PART 5—DISCLOSURE OF 

RECORDS AND INFORMATION. The 

Department’s authorities for use of these 

exemptions are provided therein. The 

Department, through the Freedom of 

Information Act and Privacy Act, wishes 

to remain transparent in providing as 

much information as possible to the 

public when formally requesting 

information. 

Having addressed the issues 

published in response to this notice of 

proposed rulemaking and after receiving 

no public comment on the DHS notice 

of proposed rulemaking published in 

the Federal Register, 74 FR 2904, 

January 16, 2009, DHS will implement 

the rulemaking as proposed. 

System of Records Notice 71 FR 53700, 

September 12, 2006 

Public comments noted that the 

functions of law enforcement and 

personnel security should be two 

separate systems of records, not 

commingled systems. In January 2008, 

the Department published two new 

system of records notices: (1) DHS/ 

ALL—023 Personnel Security 

Management system, 74 FR 3084, 

January 16, 2009; and (2) DHS/ALL— 

025 Law Enforcement Authority in 

Support of the Protection of Property 

Owned or Occupied by the Department 

of Homeland Security system, 74 FR 

3088, January 16, 2008. Each of the 

above cited systems of records contains 

a law enforcement and/or a 

counterintelligence component. Both 

personnel and physical security systems 

of records necessarily require law 

enforcement or counterintelligence 

information in order to protect the 

Department from infiltration or 

compromise. As complementary 

information collections, both systems 

ensure the security and integrity of DHS 

personnel and facilities. Considering 

those purposes, it is appropriate for the 

systems of records to take exemptions 

available under (k)(1), (k)(2), (k)(3) and/ 

or (k)(5) as all of the functions covered 

by these exemptions are directly 

relevant to the investigations of threats 

to the Department’s personnel and 

facilities. Publishing these two systems 

of records notices provides transparency 

to the public of the Department’s 

security authorities and exemptions for 

personnel security and law enforcement 

activities. 

Public comments also noted concern 

over Routine Use H and Routine Use I 

of the system of records notice. Routine 

Use H permits release of information to 

Congress. It may be necessary, from time 

to time, for the Department to release 

information to a Member of Congress 

working on behalf of a constituent. 

While such a disclosure might be 

acceptable under consent of the 

constituent, Office of Management and 

Budget guidance recommends 

additional notice through the published 

routine use be given. As such, DHS 

continues to keep this routine use in the 

SORN. 

Routine Use I releases information to 

contractors, which includes students. 

One commenter stated that it was 

inappropriate for DHS to share 

information with any contractor or 

student working officially on behalf of 

the Department. Contractors, including 

students, are subject to the same 

screening as full time employees. The 

Department relies on contractors and 

students in the course of its day to day 

activities and it may become necessary 

for information to be released to them 

for official government use just as it 

would be for a DHS employee. The 

decision to allow students access to 

DHS facilities and a certain information 


jlentini on DSKJ8SOYB1PROD with RULES2
50906 Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations 

level rests solely with the DHS Office of 

Security and component security 

offices. Employees, contractors, 

students, detailees, grantees, experts 

and any other person working at a DHS 

facility and accessing DHS information 

are required to undergo the same 

background investigation as it pertains 

to their required classification level. 

Those decisions are left to the discretion 

of the Office of Security and the 

component or office to which the 

employee, contractor, student, detailee, 

grantee, expert, or other person is 

assigned. As such, DHS shall maintain 

this routine use. 

Having addressed the issues 

published in response to this system of 

records notice and after receiving no 

public comment on the DHS system of 

records notice published in the Federal 

Register, 74 FR 3084, January 16, 2009, 

DHS will implement the rulemaking as 

proposed. 

List of Subjects in 6 CFR Part 5 

Freedom of information; Privacy. 

■ 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 

■ 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. 

■ 2. In Appendix C to Part 5, add a new 

paragraph 40 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

40. The DHS/ALL—023 Personnel Security 

Management system of records consists of 

electronic and paper records and will be used 

by DHS and its components. The DHS/ALL— 

023 Personnel Security Management 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; investigations, inquiries, and 

proceedings thereunder; national security 

and intelligence activities; and protection of 

the President of the United States or other 

individuals pursuant to Section 3056 and 

3056A of Title 18. The DHS/ALL—023 

Personnel Security Management 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. 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), and (k)(5). 

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) (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, 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 the 

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 impossible administrative burden 

by requiring investigations to be 

continuously 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 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 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. 

Dated: September 23, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–23524 Filed 9–30–09; 8:45 am] 

BILLING CODE 9110–9B–P 


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