[Federal Register Volume 75, Number 130 (Thursday, July 8, 2010)]
[Proposed Rules]
[Pages 39184-39185]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16580]
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Proposed Rules
Federal Register
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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. 75, No. 130 / Thursday, July 8, 2010 /
Proposed Rules
[[Page 39184]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0034]
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.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of an updated and reissued system of records pursuant to the
Privacy Act of 1974 for the Department of Homeland Security/ALL--029
Civil Rights and Civil Liberties Records 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 August 9, 2010.
ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0034, 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: Mary Ellen Callahan, Chief Privacy Officer and Chief
Freedom of Information Act Officer, Privacy Office, 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: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer, Privacy Office, Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland Security (DHS) civil rights and civil
liberties staff, including components, as well as staff of components
who do not have a designated civil rights and civil liberties office,
but who do perform related functions (civil rights and civil liberties
staff), rely on the DHS/Civil Rights and Civil Liberties--001 Matters
System of Records (69 FR 70464, December 6, 2004) and other component
specific systems of records, for the collection and maintenance of
records that concern the Department's civil rights and civil liberties
records. The system name is being changed to ``DHS/ALL--029 Civil
Rights and Civil Liberties Records System of Records'' to reflect that
the system is a Department-wide system of records and that all DHS
civil rights and civil liberties records will now be covered by the
DHS/ALL--029 Civil Rights and Civil Liberties Records System of
Records. This name change, along with other changes to the system, are
made to capture the expansion of the overall system of records
including the Department Office for Civil Rights and Civil Liberties
(CRCL) as well as component civil rights and civil liberties staff,
staff of component offices that perform civil rights and civil
liberties functions, and staff of components who do not have a
designated civil rights and civil liberties office but who do perform
investigative and reporting responsibilities related civil rights and
civil liberties functions (collectively referred to as ``civil rights
and civil liberties staff''). The DHS/ALL--029 Civil Rights and Civil
Liberties Records System of Records is the baseline system for
Departmental civil rights and civil liberties activities, as led by the
DHS Officer for Civil Rights and Civil Liberties. The Department's
civil rights and civil liberties staff advise Departmental and/or
component leadership, personnel, and partners about civil rights and
civil liberties issues, ensuring respect for civil rights and civil
liberties in policy decisions and implementation of those decisions.
Civil rights and civil liberties staff also review and assess
information concerning abuses of civil rights, civil liberties, such as
profiling on the basis of race, ethnicity, or religion, by employees
and officials of the Department of Homeland Security. The Department's
civil rights and civil liberties staff also ensure that all federally-
assisted and federally-conducted programs or activities of the
Department comply with the provisions of Title VI of the Civil Rights
Act of 1964. The Department's civil rights and civil liberties staff
investigate complaints, including: allegations that individuals acted
under color of law or otherwise abused their authority; discrimination;
profiling; violations of the confidentiality provisions of the Violence
Against Women Act; conditions of detention; treatment; due process; and
watch list issues.
II. 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.
[[Page 39185]]
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 DHS/ALL--029 Civil Rights and Civil Liberties Records System of
Records. Some information in DHS/ALL--029 Civil Rights and Civil
Liberties Records System of Records relates to official DHS national
security, law enforcement, immigration, intelligence activities, and
protective services to the President of the United States or other
individuals pursuant to Section 3056 and 3056A of Title 18. 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; to safeguard classified
information; and to safeguard records in connection with providing
protective services to the President of the United States or other
individuals pursuant to Section 3056 and 3056A of Title 18. Disclosure
of information to the subject of the inquiry could also permit the
subject to avoid detection or apprehension.
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 DHS/ALL--029 Civil Rights and
Civil Liberties Records System of Records 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 to Appendix C to Part 5 the following new paragraph ``49'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
49. The DHS/ALL--029 Civil Rights and Civil Liberties Records
System of Records consists of electronic and paper records and 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.
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 30, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-16580 Filed 7-7-10; 8:45 am]
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