[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50902-50903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23525]



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Part III





Department of Homeland Security





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6 CFR Part 5



Privacy Act of 1974: Implementation of Exemptions; Final Rules

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

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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.

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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 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.

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, 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

[[Page 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]
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