Exempt from PrivacyAct

[Federal Register: April 21, 2006 (Volume 71, Number 77)]
[Rules and Regulations]
[Page 20523-20524]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ap06-1]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[DHS-2005-0048]


Privacy Act of 1974; Systems of Records

AGENCY: Privacy Office; Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to
exempt two Privacy Act systems of records from certain provisions of
the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). These systems are
the Freedom of Information Act and Privacy Act System of Records and
the Civil Rights and Civil Liberties Matters System of Records.

DATES: This final rule is effective April 21, 2006.

FOR FURTHER INFORMATION CONTACT: Maureen Cooney, Acting Chief Privacy
Officer, Department of Homeland Security, Washington, DC, by telephone
(571) 227-3813 or by facsimile (571) 227-4171.

SUPPLEMENTARY INFORMATION: On December 4, 2004, the Department of
Homeland Security (DHS) published a notice of proposed rulemaking (69
FR 70402) to exempt two Privacy Act systems of records from the
following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I), and (f). The first system of records,
DHS/ALL 001, DHS Freedom of Information Act (FOIA) and Privacy Act
Records Systems, allows the Department and its components to maintain
and retrieve FOIA and Privacy Act files by the personal identifiers of
the individuals who have submitted requests for records under either
statute. The second system of records, DHS-CRCL-001, Civil Rights and
Civil Liberties Matters, covers records alleging abuses of civil rights
and civil liberties that are submitted to the Office for Civil Rights
and Civil Liberties.
Two comments from one individual were received on this notice of
proposed rulemaking. The comments discussed the importance of the
transparency that comes from compliance with the FOIA and appeared to
take issue generally with DHS's proposal to exempt the two record
systems covered by the proposed rule, DHS/ALL 001 and CRCL-001, Civil
Rights and Civil Liberties Matters, from certain provisions of the
Privacy Act.
While DHS agrees that the FOIA serves important transparency
purposes, it nevertheless believes that the exemptions it has sought
for these two record systems are narrowly tailored to protect agency
interests. Because it is possible that either system of records will
contain information that comes from law enforcement or national
security files, which are themselves exempt from the Privacy Act,
allowing access to that information derived from such files could
result in harm to the government. In appropriate circumstances,
however, the applicable exemptions may be waived if no harm to the law
enforcement or national security interests of DHS would result.
Accordingly, with the exception of two non-substantive edits to
correct an error, DHS is implementing the rule as proposed.
Pursuant to the requirements of the Regulatory Flexibility Act, 5
U.S.C. 601-612, DHS certifies that these regulations will not
significantly affect a substantial number of small entities. The final
rule imposes no duties or obligations on small entities. Further, in
accordance with the provisions of the Paperwork Reduction Act of 1995,
44 U.S.C. 3501, DHS has determined that this final rule would not
impose new recordkeeping, application, reporting, or other types of
information collection requirements.

List of Subjects in 6 CFR Part 5

Classified information, Courts, Freedom of information, Government
employees, Privacy.


0
For the reasons stated in the preamble, DHS is amending 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: 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.


0
2. Add Appendix C to part 5 to read as follows:

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

This Appendix implements provisions of the Privacy Act of 1974
that permit the Department of Homeland Security (DHS) to exempt its
systems of records from provisions of the Act. During the course of
normal agency operations, exempt materials from other systems of
records may become part of the records in these and other DHS
systems. To the extent that copies of records from other exempt
systems of records are entered into any DHS system, DHS hereby
claims the same exemptions for those records that are claimed for
the original primary systems of records from which they originated
and claims any additional exemptions in accordance with this rule.
Portions of the following DHS systems of records are exempt from
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j)
and (k):
1. DHS/ALL 001, Department of Homeland Security (DHS) Freedom of
Information Act (FOIA) and Privacy Act (PA) Record System allows the
DHS and its components to maintain and retrieve FOIA and Privacy Act
files by personal identifiers associated with the persons submitting
requests for information under each statute. Pursuant to exemptions
(j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of
this system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1);
(e)(4)(G), (H) and (I) and (f). Exemptions from the 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 and avoid detection or apprehension, which
undermines the entire system.

[[Page 20524]]

(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 would permit the individual who is the
subject of a record to impede the investigation and avoid detection
or apprehension. Amendment of the records would interfere with
ongoing investigations and law enforcement activities and impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. The information contained in the system
may also include properly classified information, the release of
which would pose a threat to national defense and/or foreign policy.
In addition, permitting access and amendment to such information
also 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 enforcement of federal laws, it is
appropriate to retain all information that may aid in establishing
patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency
Requirements), and (f) (Agency Rules), because portions of this
system are exempt from the access provisions of subsection (d).
2. DHS-CRCL-001, Civil Rights and Civil Liberties Matters, which
will cover allegations of abuses of civil rights and civil liberties
that are submitted to the Office of CRCL. Pursuant to exemptions
(k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this
system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G),
(H) and (I) and (f). Exemptions from the 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 or another agency.
Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and 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 and avoid detection or apprehension, which undermines
the entire system.
(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 as well as the
recipient agency. Access to the records would permit the individual
who is the subject of a record to impede the investigation and avoid
detection or apprehension. Amendment of the records would interfere
with ongoing investigations and law enforcement activities and
impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated. The information
contained in the system may also include properly classified
information, the release of which would pose a threat to national
defense and/or foreign policy. In addition, permitting access and
amendment to such information also 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 enforcement of federal laws, it is
appropriate to retain all information that may aid in establishing
patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency
Requirements), and (f) (Agency Rules), because this system is exempt
from the access provisions of subsection (d).

Dated: April 13, 2006.
Maureen Cooney,
Acting Chief Privacy Officer.
[FR Doc. 06-3791 Filed 4-20-06; 8:45 am]

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