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
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