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###### Department of Homeland Security

###### Office of the Secretary

          - 6 CFR Part 5
          - [Docket No. DHS-2008-0164]

# AGENCY:

Privacy Office, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Department of Homeland Security (DHS) is giving concurrent notice of a revised and updated system of records pursuant to the Privacy Act of 1974 for the Department of Homeland Security Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security 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 February 17, 2009.

# ADDRESSES:

You may submit comments, identified by docket number DHS-2008-0164, 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:                          Hugo Teufel III, Chief Privacy Officer, 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: Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

# SUPPLEMENTARY INFORMATION:

*Background:*                     Pursuant to the savings clause in the Homeland Security Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November 25, 2002), the Department of Homeland Security (DHS) and its components and offices have relied on preexisting Privacy Act systems of records notices for the collection and maintenance of records that pertain to Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security activities.                

As part of its efforts to streamline and consolidate its Privacy Act record systems, DHS is establishing a new agency-wide system of records under the Privacy Act (5 U.S.C. 552a) for DHS Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security records. The Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security system of records is the baseline system for investigative activities. This will ensure that all components of DHS follow the same privacy rules for collecting and handling Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security records.

In this notice of proposed rulemaking, DHS now is proposing to exempt Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security, in part, from certain provisions of the 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.                

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 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security. Some information in Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security relates to official DHS national security, law enforcement, immigration, and intelligence activities. 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; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.                          ( print page 2904)    

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 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security 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 at the end of Appendix C to Part 5, the following new paragraph “14”:

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

* * * * *

14. The Department of Homeland Security—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. DHS/All—025 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security 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. DHS/All—025 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security 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. Pursuant to 5 U.S.C. 552a(k)(1), (2), and (5), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). 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), (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: December 22, 2008.

Hugo Teufel III,

Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E9-926 Filed 1-15-09; 8:45 am]

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