4 November 2010

DHS Big Brother Records Exempt From the Privacy Act

[Federal Register: November 4, 2010 (Volume 75, Number 213)]
[Rules and Regulations]               
[Page 67909-67910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no10-1]                         


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[[Page 67909]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0082]

 
Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Office of the Inspector General-002 Investigative 
Records System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of an updated and reissued 
system of records titled, ``Department of Homeland Security Office of 
the Inspector General--002 Investigative 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 November 4, 2010.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Melinda D. Holliday McDonald, Esq. (202-254-4284), Privacy Officer, 
Office of the Inspector General, Mail Stop 2600, 245 Murray Drive, SW., 
Building 410, Washington, DC 20528; or by facsimile (202) 254-4299. For 
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) Office of Inspector 
General (OIG) published a notice of proposed rulemaking in the Federal 
Register, 74 FR 55482, October 28, 2009, 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/OIG-002 Investigative 
Records System of Records. The DHS/OIG-002 Investigative Records System 
of Records notice was published concurrently in the Federal Register, 
74 FR 55569, October 28, 2009, and comments were invited on both the 
Notice of Proposed Rulemaking (NPRM) and System of Records Notice 
(SORN).

Public Comments

    DHS received one comment on the NPRM and no comments on the SORN.

NPRM

    The one comment received on the NPRM noted the inability to correct 
personal information contained within the DHS/OIG-002 Investigative 
Records System of Records and the inability to obtain legal and/or 
civil remedy to dispute incorrect information contained within the 
system of records. The commenter acknowledged that the overall 
exemptions DHS seeks from the Privacy Act are necessary and consistent 
with common exemptions sought by law enforcement agencies nationally. 
However, the commenter expressed concern with the exemptions in 
subsection (e)(5) of the Privacy Act (Collection of Information), 
coupled with exemption in subsection (g). The commenter stated that 
information contained in a file that is inaccurate should not be in 
that file when the effects could damage that individual. The commenter 
stated that on a case-by-case basis there must be an opportunity to 
remedy incomplete and irrelevant information to make that person's 
character whole.
    DHS/OIG believes that there is a need for the exemptions provided 
for in this document. However, DHS/OIG recognizes that there may be 
instances where such exemptions can be waived as stated in the NPRM and 
implemented in the Final Rule. In appropriate circumstances, where 
compliance would not appear to interfere with, or adversely affect, the 
law enforcement and national security purposes of the system and the 
overall law enforcement and security process, the applicable exemptions 
may be waived.
    In the case of access requests from the DHS/OIG-002 Investigative 
Records System of Records, each access request will be evaluated on a 
case-by-case basis and if no harm to law enforcement interests or 
national security would ensue from disclosure, the exemption may be 
waived and the records (or portions of the records) may be disclosed.
    In the case of amendment requests from the DHS/OIG-002 
Investigative Records System of Records, such requests would impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated and could disclose security-sensitive 
information that could be detrimental to homeland security; therefore, 
the exemption from amendment requests is necessary.

SORN

    No SORN comments were received.
    After consideration of public comments, the Department will 
implement the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

0
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. 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 ``5'' to read as follows:

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

* * * * *
    5. The DHS/OIG-002 Investigative Records System of Records 
consists of electronic and paper records used by the DHS OIG. The 
DHS/OIG-002 Investigative 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 there under; and national security and intelligence 
activities. The DHS/OIG-002 Investigative Records System of Records 
contains information that is collected by, on behalf of, in support 
of, or in cooperation with DHS components and

[[Page 67910]]

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) and (c)(4); (d); 
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); 
(f); and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, 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); and 
(f) pursuant to 5 U.S.C. 552a(k)(1), (k)(2) 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) and (c)(4) (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 investigations by: revealing the existence 
of an otherwise confidential investigation and thereby providing an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; revealing the identity of witnesses in 
investigations thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or revealing the identity of confidential 
informants, which would negatively affect the informants' usefulness 
in any ongoing or future investigations and discourage members of 
the public from cooperating as confidential informants in any future 
investigations.
    (f) From subsections (e)(4)(G) and (e)(4)(H) (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 rules or procedures with respect to such 
access. Providing notice to individuals with respect to existence of 
records pertaining to them in this 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, 
potential witnesses, and confidential informants.
    (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 DHS 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 DHS' 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) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore, DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's refusals to amend a record; refusal to 
comply with a request for access to records; failure to maintain 
accurate, relevant, timely, and complete records; or failure to 
otherwise comply with an individual's right to access or amend 
records.
* * * * *

    Dated: October 6, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-27830 Filed 11-3-10; 8:45 am]
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