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[Federal Register: July 8, 2010 (Volume 75, Number 130)]
[Proposed Rules]               
[Page 39184-39185]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy10-24]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 39184]]

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0034]

 
Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--029 Civil Rights and Civil Liberties Records 
System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of an updated and reissued system of records pursuant to the 
Privacy Act of 1974 for the Department of Homeland Security/ALL--029 
Civil Rights and Civil Liberties Records System of Records and this 
proposed rulemaking. In this proposed rulemaking, the Department 
proposes 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.

DATES: Comments must be received on or before August 9, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0034, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer and Chief 
Freedom of Information Act Officer, Privacy Office, Department of 
Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Department of Homeland Security (DHS) civil rights and civil 
liberties staff, including components, as well as staff of components 
who do not have a designated civil rights and civil liberties office, 
but who do perform related functions (civil rights and civil liberties 
staff), rely on the DHS/Civil Rights and Civil Liberties--001 Matters 
System of Records (69 FR 70464, December 6, 2004) and other component 
specific systems of records, for the collection and maintenance of 
records that concern the Department's civil rights and civil liberties 
records. The system name is being changed to ``DHS/ALL--029 Civil 
Rights and Civil Liberties Records System of Records'' to reflect that 
the system is a Department-wide system of records and that all DHS 
civil rights and civil liberties records will now be covered by the 
DHS/ALL--029 Civil Rights and Civil Liberties Records System of 
Records. This name change, along with other changes to the system, are 
made to capture the expansion of the overall system of records 
including the Department Office for Civil Rights and Civil Liberties 
(CRCL) as well as component civil rights and civil liberties staff, 
staff of component offices that perform civil rights and civil 
liberties functions, and staff of components who do not have a 
designated civil rights and civil liberties office but who do perform 
investigative and reporting responsibilities related civil rights and 
civil liberties functions (collectively referred to as ``civil rights 
and civil liberties staff''). The DHS/ALL--029 Civil Rights and Civil 
Liberties Records System of Records is the baseline system for 
Departmental civil rights and civil liberties activities, as led by the 
DHS Officer for Civil Rights and Civil Liberties. The Department's 
civil rights and civil liberties staff advise Departmental and/or 
component leadership, personnel, and partners about civil rights and 
civil liberties issues, ensuring respect for civil rights and civil 
liberties in policy decisions and implementation of those decisions. 
Civil rights and civil liberties staff also review and assess 
information concerning abuses of civil rights, civil liberties, such as 
profiling on the basis of race, ethnicity, or religion, by employees 
and officials of the Department of Homeland Security. The Department's 
civil rights and civil liberties staff also ensure that all federally-
assisted and federally-conducted programs or activities of the 
Department comply with the provisions of Title VI of the Civil Rights 
Act of 1964. The Department's civil rights and civil liberties staff 
investigate complaints, including: allegations that individuals acted 
under color of law or otherwise abused their authority; discrimination; 
profiling; violations of the confidentiality provisions of the Violence 
Against Women Act; conditions of detention; treatment; due process; and 
watch list issues.

II. Privacy Act

    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.

[[Page 39185]]

    The Privacy Act allows Government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ALL--029 Civil Rights and Civil Liberties Records System of 
Records. Some information in DHS/ALL--029 Civil Rights and Civil 
Liberties Records System of Records relates to official DHS national 
security, law enforcement, immigration, intelligence activities, and 
protective services to the President of the United States or other 
individuals pursuant to Section 3056 and 3056A of Title 18. These 
exemptions are needed to protect information relating to DHS activities 
from disclosure to subjects or others related to these activities. 
Specifically, the exemptions are required to preclude subjects of these 
activities from frustrating these processes; to avoid disclosure of 
activity techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS' 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; to safeguard classified 
information; and to safeguard records in connection with providing 
protective services to the President of the United States or other 
individuals pursuant to Section 3056 and 3056A of Title 18. Disclosure 
of information to the subject of the inquiry could also permit the 
subject to avoid detection or apprehension.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived on a case 
by case basis.
    A notice of system of records for DHS/ALL--029 Civil Rights and 
Civil Liberties Records System of Records is also published in this 
issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
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. Add to Appendix C to Part 5 the following new paragraph ``49'':

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

* * * * *
    49. The DHS/ALL--029 Civil Rights and Civil Liberties Records 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/ALL--029 Civil Rights and 
Civil Liberties 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--029 Civil Rights and Civil Liberties 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 
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 individual 
who is the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of that 
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 
individual who is the subject of an investigation of an actual or 
potential criminal, civil, or regulatory violation to the existence 
of that 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 unreasonable administrative burden by requiring 
investigations to be continually 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: June 30, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2010-16580 Filed 7-7-10; 8:45 am]
BILLING CODE 9110-9B-P
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