[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Rules and Regulations]
[Pages 44451-44452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18832]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules
and Regulations
[[Page 44451]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0051]
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.
AGENCY: Final rule.
SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a newly established system
of records titled, ``Department of Homeland Security/ALL-029 Civil
Rights and Civil Liberties Records System of Records'' from certain
provisions of the Privacy Act. Specifically, the Department exempts
portions of the ``Department of Homeland Security/ALL-029 Civil Rights
and Civil Liberties Records System of Records'' 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 July 26, 2011.
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:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking (NPRM) in the Federal Register, 75 FR 39184, July
8, 2010, 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-029 Civil Rights and Civil Liberties Records System of Records.
The DHS/ALL-029 Civil Rights and Civil Liberties Records system of
records notice (SORN) was published concurrently in the Federal
Register, 75 FR 39266, July 8, 2010, and comments were invited on both
the NPRM and SORN.
Public Comments
DHS received one comment on the NPRM and one comment on the SORN.
NPRM
Public Comment: The commenter asked that DHS ``consider then the
longevity of your agency's [DHS] decision to classify civil rights
records; pent up negativity tends to torrentially destroy future
objectives, and undermines the legitimacy of the work done to bring
justice to those who deserve its retribution.''
DHS Response: DHS is not seeking, through the proposed rule, to
classify civil rights records. Rather, DHS has exempted certain records
within this system of records from release under the Privacy Act
because they are classified records, investigatory records compiled for
law enforcement purposes, records related to the protection of the
President and others, and investigatory records used for employee and
contractor suitability determinations.
SORN
Public Comment: The commenter noted that ``many persons affected by
these programs are afraid to complain about misconduct because they
fear that the personally identifying information that they provide will
not be kept confidential or that they will be retaliated against by the
agencies about which they complain. The SORN does nothing to alleviate
these fears. In fact, it makes explicit that identifying information
will be shared among government agencies, including state and local
agencies. This was a missed opportunity to ensure that complaints may
be made without fear of reprisal. It does not provide any meaningful
opportunity for complainants to learn the results of their
complaints.''
DHS Response: The purpose of a Privacy Act SORN is to provide
reasonable notice to the public on information that the Department is
collecting, maintaining, and retrieving by personal identifier related
directly to an individual in an agency system. The purpose is also to
state the purpose, information on records and individuals covered,
information sharing with other entities, records retention, and redress
on information within that system. It is not intended to be a mechanism
for complainants to learn the results of their complaints. There is a
separate process for that. Information received within these systems of
records must be protected by government agencies as outlined in
statutes, executive orders, regulations, and DHS policy; in this case,
records related to civil rights and civil liberties. There are limits
to sharing information in a Privacy Act system of records, this
includes between Federal, state, and local agencies including law
enforcement. Sharing must be done in accordance with the routine uses
in the Privacy Act system of records as published in the Federal
Register. Routine uses apply to information sharing external to DHS.
The term ``routine use'' is defined, with respect to the disclosure of
a record, as the use of such record for a purpose which is compatible
with the purpose for which the record was collected. This ensures the
public receives adequate notice of the Department's planned uses of the
information in the system of records.
DHS will implement this 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
0
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. Sec. 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, revise paragraph 2 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
2. The DHS/ALL-029 Civil Rights and Civil Liberties Records
System of Records consists of electronic and paper records and
[[Page 44452]]
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. Sec.
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 9, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-18832 Filed 7-25-11; 8:45 am]
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