50902 Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0068] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/ALL—025 Law Enforcement 

Authority in Support of the Protection 

of Property Owned or Occupied by the 

Department of Homeland Security 

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—025 Law Enforcement Authority 

in Support of the Protection of Property 

Owned or Occupied by the Department 

of Homeland Security System of 

Records’’ from certain provisions of the 

Privacy Act. Specifically, the 

Department exempts portions of the 

Department of Homeland Security/ 

ALL—025 Law Enforcement Authority 

in Support of the Protection of Property 

Owned or Occupied by the Department 

of Homeland Security 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. 

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 2903, 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—025 Law 

Enforcement Authority in Support of 

the Protection of Property Owned or 

Occupied by the Department of 

Homeland Security system. The DHS/ 

ALL—025 Law Enforcement Authority 

in Support of the Protection of Property 

Owned or Occupied by the Department 

of Homeland Security system of records 

notice was published concurrently in 

the Federal Register, 74 FR 3088, 

January 16, 2009, and comments were 

invited on both the notice of proposed 

rulemaking and system of records 

notice. Public comments were received 

on the notice of proposed rulemaking 

and the system of records notice. 

Public Comments 

DHS received two public comments 

on the notice of proposed rulemaking 

and one public comment on the system 

of records notice. 

The two public comments received on 

the notice of proposed rulemaking were 

in support of the use of exemptions for 

this system of records noting that 

exemptions are needed at times to 

refrain from informing those who may 

be criminally or civilly prosecuted that 

may tamper with the investigation. 

Permitting access to certain documents 

would disclose information that would 

put homeland security at risk. Further, 

public comments stated that classified 

information must be safeguarded in 

order for DHS to operate efficiently. 

DHS concurs with these two public 

comments on the notice of proposed 

rulemaking and further establishes the 

rationale to make this proposed rule 

final. 

The one public comment received on 

the system of records notice focused on 

concern over the Department collecting 

‘‘bias-related’’ information unless the 

public has an opportunity to see what 

criteria are utilized to establish the bias, 

the bias-ratings, and the groups which 

the Federal government seeks to 

monitor. The Department is unsure of 

what the author means by ‘‘bias-related’’ 

information. Information collected will 

only be within the parameter of this 

authority, by those delegated the 

authority from the Secretary of 

Homeland Security, without a 

premeditated bias-related focus. The 

purpose of this system is to maintain 

and record the results of law 

enforcement activities in support of the 

protection of property owned or 

occupied by DHS. The Secretary of 

Homeland Security was given this 

authority through the Homeland 

Security Act of 2002. The Department 

will appropriately safeguard all 

information collected pursuant to this 

system of records notice. 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 38 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

38. The DHS/ALL—025 Law Enforcement 

Authority in Support of the Protection of 

Property Owned or Occupied by the 

Department of Homeland Security system of 

records consists of electronic and paper 

records and will be used by DHS and its 

components. The DHS/ALL—025 Law 

Enforcement Authority in Support of the 

Protection of Property Owned or Occupied 

by the Department of Homeland Security 

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 there under; and national 

security and intelligence activities. The DHS/ 

ALL—025 Law Enforcement Authority in 

Support of the Protection of Property Owned 

or Occupied by the Department of Homeland 

Security 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), 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 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 74, No. 189 / Thursday, October 1, 2009 / Rules and Regulations 50903 

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), (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. 

Dated: September 23, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–23525 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–2009–0066] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/ALL—017 General Legal 

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 a 

Department of Homeland Security 

system of records entitled the 

‘‘Department of Homeland Security/ 

ALL—017 General Legal Records 

System of Records’’ from certain 

provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the Department of Homeland 

Security/ALL—017 General Legal 

Records 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. 

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, 73 FR 63084, October 23, 2008, 

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—017 General 

Legal Records system. The DHS/ALL— 

017 General Legal Records system of 

records notice was published 

concurrently in the Federal Register, 73 

FR 63175, October 23, 2008, and 

comments were invited on both the 

notice of proposed rulemaking and 

system of records notice. Comments 

were received on the notice of proposed 

rulemaking and no comments were 

received on the system of records 

notice. 

Public Comments 

DHS received one comment on the 

notice of proposed rulemaking. The 

comment received focused on the 

expansiveness of the exemptions, 

specifically subsection (e)(2) ‘‘Collection 

of Information from Individuals.’’ The 

public comment recommended that 

DHS rely on the Freedom of Information 

Act (FOIA) when screening information 

for release and not Privacy Act 

exemptions because the FOIA would 

potentially allow for higher probability 

of information release. Although the 

comment was intended to be helpful, 

current FOIA processing practices 

eliminate the requester’s concern. If a 

first party requester makes a request for 

records under the Privacy Act and those 

records are exempt from disclosure, 

DHS will automatically process that 

request under the FOIA. Should the 

record be releasable under FOIA, 

despite not being releasable under the 

Privacy Act, the record will be released 

to the first party requester. This is 

consistent with Department of Justice 

guidance and directives, including the 

Overview of the Privacy Act of 1974, 

2004 Edition (http://www.usdoj.gov/oip/ 

1974indrigacc.htm). The same 

commenter observed that the notice in 

question states that ‘‘applicable 

exemptions may be waived on a case by 

case basis.’’ This is standard language 

for all proposed and final exemptions at 

DHS to ensure that where it is possible 

to release records, DHS will do so. In 

application to this system of records, 

though, the commenter acknowledges 

the legitimate need to exempt some 

records due to national security, 

investigations, and other reasons, but 

that other records would not be of such 

concern such as records relating to 

‘‘foreclosures, titles to property, copies 

of petitions filed with DHS, and some 

records of discrimination.’’ The 

commenter is concerned that DHS could 

refuse record requests for the latter 

types of records by simply including 

them in this exempted system of records 

notice. 

The process in place to review 

records, to ensure they meet specifically 

requested records, today addresses the 

comments. 

DHS carefully reviewed the public 

comment received on the notice of 

proposed rulemaking and the 

recommendations within the public 

comment. DHS has determined that 

since this system is to assist DHS 

attorneys in providing legal advice to 

DHS senior leadership and management 

on a wide variety of legal issues, to 

collect the information of any 

individual who is, or will be, in 

litigation with the Department, as well 

as the attorneys representing the 

plaintiff(s) and defendant(s), it is 

important that the exemptions remain in 

place. 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: Pub. L. 107–296, 116 Stat. 

2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. 


jlentini on DSKJ8SOYB1PROD with RULES2