[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Proposed Rules]
[Pages 67931-67933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21952]


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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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Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / 
Proposed Rules

[[Page 67931]]



DEPARTMENT OF HOMELAND SECURITY

Office of Inspector General

6 CFR Part 5

[DHS-2005-0065]


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Office of Investigations, Office of Inspector General, 
Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving notice of a 
revised and updated system of records pursuant to the Privacy Act of 
1974 for the Office of Inspector General, Office of Investigations. In 
this proposed rulemaking, the Department proposes to exempt portions of 
this 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 December 9, 2005.

ADDRESSES: You may submit comments, identified by docket number DHS-
2005-0065, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Fax: (202) 254-4285 (This is not a toll-free number).
    Mail: Richard N. Reback, DHS, Office of Inspector General/STOP 
2600, 245 Murray Drive, SW., Building 410, Washington, DC 20528.
    Hand Delivery / Courier: Richard N. Reback, DHS, Office of 
Inspector General/STOP 2600, 245 Murray Drive, SW., Building 410, 
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: Richard N. Reback, Department of 
Homeland Security, Office of Inspector General/STOP 2600, 245 Murray 
Drive, SW., Building 410, Washington, DC 20528 by telephone (202) 254-
4100 or facsimile (202) 254-4285; Maureen Cooney, Acting Chief Privacy 
Officer, Department of Homeland Security, 601 South 12th Street, 
Arlington, VA 22202-4220 by telephone (571) 227-3813 or facsimile (571) 
227-4171.

SUPPLEMENTARY INFORMATION:

Background

    On October 6, 2005, the Department of Homeland Security (DHS) 
updated and republished under the Privacy Act of 1974, 5 U.S.C. 552a, a 
system of records within Office of Inspector General (OIG), United 
States Department of Homeland Security (DHS) Headquarters for its 
investigative files. (See 70 FR 58448.) Pursuant to the savings clause 
in the Homeland Security Act of 2002, Public Law 107-296, sec. 1512, 
116 Stat. 2310 (Nov. 25, 2002) (6 U.S.C. 552), DHS components and 
offices could continue to rely on completed administrative actions 
after creation of the Department until those actions were amended, 
modified, superseded, terminated, set aside, or revoked. Two system 
notices previously supported the collection of investigation 
information by the DHS OIG--FEMA/IG-1 (General Investigative Files) and 
Treasury/DO .190 (Investigation Data Management System). In its Federal 
Register notice of October 6, 2005, the DHS OIG updated and republished 
under its own nomenclature, the system notice to cover these records. 
The system is the DHS OIG ``Investigations Data Management System'' 
(IDMS). In this notice of proposed rulemaking, DHS now is proposing to 
exempt this system, in part, from certain provisions of the Privacy Act 
and to add that exemption to its proposed Appendix C to Part 5, DHS 
Systems of Records Exempt from 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 record keeping 
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 OIG is claiming exemption from certain requirements of the 
Privacy Act for IDMS. Information in this system relates to official 
OIG investigations and law enforcement activities. These exemptions are 
needed to protect information relating to OIG investigations from 
disclosure to subjects of investigations and others who could interfere 
with OIG's law enforcement activities. Specifically, the exemptions are 
required to preclude subjects of investigations from frustrating the 
investigative process; to avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure OIG's ability to obtain 
information from third parties and other sources; protect the privacy 
of third parties; and safeguard classified information. Disclosure of 
information to the subject of the inquiry could also permit the subject 
to avoid detection or apprehension.

[[Page 67932]]

    In addition, because OIG investigations arise out of DHS programs 
and activities, information in this records system may pertain to 
national security and related law enforcement matters. In such cases, 
allowing access to such information could alert subjects of OIG 
investigations into actual or potential criminal, civil, or regulatory 
violations, and could reveal in an untimely manner, OIG's and other 
agencies' investigative interests in law enforcement efforts to 
preserve national security.
    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.

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

    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: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et 
seq.; 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. At the end of Appendix C to Part 5, which was proposed to be 
added at 70 FR 14428, March 22, 2005, add the following new paragraph 
``2'' to read as follows:
    Appendix C to Part 5--DHS Systems of Records Exempt From the 
Privacy Act
* * * * *
    2. DHS-OIG-2005-002, the Office of Inspector General Investigations 
Data Management System (IDMS) consists of records and information 
collected and maintained to receive and process allegations of 
violations of criminal, civil, and administrative laws and regulations 
relating to DHS programs, operations, and employees, as well as 
contractors and other individuals and entities associated with the DHS. 
The system allows the DHS Office of Inspector General to monitor case 
assignments, disposition, status, and results; manage investigations 
and information provided during the course of such investigations; 
track actions taken by management regarding misconduct; track legal 
actions taken following referrals to the United States Department of 
Justice for prosecution or litigation; provide information relating to 
any adverse action or other proceeding that may occur as a result of 
the findings of an investigation; retrieve investigation results; 
provide a system for creating and reporting statistical information; 
and to provide a system to track Office of Inspector General 
investigators' firearms qualification records and property records. 
Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, portions 
of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f)(2) 
through (5); and (g). Pursuant to 5 U.S.C. 552a (k)(1), (k)(2) and 
(k)(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), 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, 
tamper with witnesses or evidence, and 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, tamper with witnesses or evidence, and 
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 as 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 the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f) 
(Agency Rules), and (g) (Civil Remedies) because portions of this 
system are exempt from the individual access provisions of subsection 
(d).
    (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 
OIG special 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 OIG's 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.


[[Page 67933]]


    Dated: October 28, 2005.
Maureen Cooney,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 05-21952 Filed 11-8-05; 8:45 am]
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