[Federal Register Volume 69, Number 233 (Monday, December 6, 2004)]
[Proposed Rules]
[Pages 70402-70403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26743]


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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. 69, No. 233 / Monday, December 6, 2004 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

DHS-2004-0016


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is concurrently 
establishing three new systems of records pursuant to the Privacy Act 
of 1974. In this proposed rulemaking, DHS proposes to exempt portions 
of two of those systems 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 January 5, 2005.

ADDRESSES: You may submit comments, identified by docket number DHS-
2004-0016, by one of the following methods:
     EPA Federal Partner EDOCKET Web site: http://www.epa.gov/feddocket. Follow instructions for submitting comments on the Web site.
     DHS has joined the Environmental Protection Agency (EPA) 
online public docket and comment system on its Partner Electronic 
Docket System (Partner EDOCKET). DHS and its components (excluding the 
United States Coast Guard (USCG) and Transportation Security 
Administration (TSA)) will use the EPA Federal Partner EDOCKET system. 
The USCG and TSA (which are legacy Department of Transportation (DOT) 
agencies) will continue to use the DOT Docket Management System until 
full migration to the electronic rulemaking federal docket management 
system in 2005.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-772-5036 (This is not a toll-free number).
     Mail: Department of Homeland Security, Attn: Privacy 
Office/Nuala O'Connor Kelly, Chief Privacy Officer/202-772-9848, 
Washington, DC 20528.
     Hand Delivery / Courier: Department of Homeland Security, 
Attn: Privacy Office/Nuala O'Connor Kelly, Chief Privacy Officer/202-
772-9848, Anacostia Navel Annex, 245 Murray Lane, SW, Building 410, 
Washington, DC 20528, 7:30 a.m. to 4 p.m.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.epa.gov/feddocket, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nuala O'Connor Kelly, DHS Chief 
Privacy Officer, Department of Homeland Security, Washington, DC 20528 
by phone 202-772-9848 or facsimile 202-772-5036.

SUPPLEMENTARY INFORMATION:

Background

    Concurrently with the publication of this notice of proposed 
rulemaking, the Department of Homeland Security (DHS) is publishing a 
Notice establishing three new systems of records that are subject to 
the Privacy Act of 1974, 5 U.S.C. 552a. DHS is proposing to exempt two 
of those systems, in part, from certain provisions of the Privacy Act. 
Those systems are the DHS Freedom of Information Act and Privacy Act 
Records System (DHS/ALL 001), which will contain records related to 
requests and appeals made under the Freedom of Information Act, 5 
U.S.C. 552, and the Privacy Act; and the Civil Rights and Civil 
Liberties Matters System (DHS-CRCL-001), which will cover allegations 
of abuses of civil rights and civil liberties that are submitted to and 
investigated by the DHS Officer for Civil Rights and Civil Liberties.
    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 Homeland Security Act of 2002 requires the Secretary of DHS to 
appoint a senior official to oversee implementation of the Privacy Act 
and to undertake other privacy-related activities. Pub. L. 107-296, 
Sec.  222, 116 Stat. 2135, 2155 (Nov. 25, 2002) (HSA). The systems of 
records being published today help to carry out the DHS Chief Privacy 
Officer's statutory activities.
    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 to more easily find 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 is claiming exemption from certain requirements of the 
Privacy Act. In the case of DHS/All 001, which consists of Freedom of 
Information Act and Privacy Act request, appeals and litigation 
records, it is possible that the information in the record system may 
be copied from record systems that pertain to national security or law 
enforcement matters. In such cases, allowing access to the information 
that is derived from these files could alert the subject of the 
information to an investigation of an actual or potential criminal, 
civil, or regulatory violation and reveal investigative interest on the 
part of DHS

[[Page 70403]]

or another agency. Disclosure of the information would therefore 
present a serious impediment to law enforcement efforts and/or efforts 
to preserve national security. Disclosure of the information 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. This exemption is a standard law enforcement and 
national security exemption utilized by numerous law enforcement and 
intelligence agencies. Similarly, the records in the Civil Rights and 
Civil Liberties System of Records may reflect sensitive law enforcement 
or national security matters, the disclosure of which would result in 
comparable harms.

List of Subjects in 6 CFR Part 5

    Classified information; Courts; Freedom of information; Government 
employees; 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: 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. Add Appendix C to Part 5 to read as follows:

Appendix C to Part 5--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). 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.
    (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). 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: December 1, 2004.
Nuala O'Connor Kelly,
Chief Privacy Officer.

[FR Doc. 04-26743 Filed 12-3-04; 8:45 am]
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