[Federal Register Volume 71, Number 63 (Monday, April 3, 2006)]
[Proposed Rules]
[Pages 16519-16520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4693]


 ========================================================================
 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. 71, No. 63 / Monday, April 3, 2006 / Proposed 
Rules  

[[Page 16519]]



DEPARTMENT OF HOMELAND SECURITY

United States Immigration and Customs Enforcement

6 CFR Part 5

[DHS-2006-0012]


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Office of the Principal Legal Advisor, United States 
Immigration and Customs Enforcement, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security, Bureau of Immigration and 
Customs Enforcement, is giving notice of a new system of records 
pursuant to the Privacy Act of 1974 for the Office of the Principal 
Legal Advisor, the General Counsel Electronic Management System. In 
this proposed rulemaking, the Department proposes to exempt portions of 
this 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 May 3, 2006.

ADDRESSES: You may submit comments, identified by docket number DHS-
2006-0012, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Fax: 202-514-0455.
    Mail: William C. Birkett, Chief, Knowledge Management Division, 
Office of the Principal Legal Advisor, Immigration and Customs 
Enforcement, 425 I Street, NW., Washington, DC 20536 Hand Delivery. 
Courier: William C. Birkett, Chief, Knowledge Management Division, 
Office of the Principal Legal Advisor, Immigration and Customs 
Enforcement, 425 I Street, NW., Washington, DC 20536.
    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: William C. Birkett, Chief, Knowledge 
Management Division, Office of the Principal Legal Advisor, Immigration 
and Customs Enforcement, 425 I Street, NW., Washington, DC 20536; 
Maureen Cooney, Acting Chief Privacy Officer, Department of Homeland 
Security, 601 South 12th Street, Arlington, VA 22202 by telephone (571) 
227-3813 or facsimile (571) 227-4171.

SUPPLEMENTARY INFORMATION:

Background

    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 record keeping 
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. That description 
appears elsewhere in today's Federal Register.
    The Privacy Act allows government agencies to exempt certain 
records from its access and amendment and certain other 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.
    The Bureau of Immigration and Customs Enforcement (ICE) of the 
Department of Homeland Security (DHS) is publishing a new system of 
records under the Privacy Act of 1974, 5 U.S.C. 552a. This system, the 
General Counsel Electronic Management System (GEMS), will consist of 
information that is created or acquired and used by attorneys working 
in ICE in the preparation and presentation of cases for a court or 
adjudicative body before which ICE or DHS is authorized or required to 
appear. Attorneys for the Department of Justice will also be able to 
access the system if they have a need for the information in the 
performance of their official duties.
    ICE attorneys work closely with investigators throughout the 
process of adjudicating immigration cases. ICE attorneys must have 
access to investigative documents and related materials in order to 
inform their decisions about how to handle particular cases. 
Additionally, of course, ICE attorneys create attorney work product 
associated with immigration proceedings. The GEMS system will 
facilitate the collection and maintenance of materials used by ICE 
attorneys in immigration adjudications. It will supplement and 
ultimately replace the current attorney work product paper files that 
are primarily stored and managed in the hardcopy alien file commonly 
known as the ``A-file.''
    In this notice of proposed rulemaking, DHS is proposing to exempt 
this system, in part, from certain provisions of the Privacy Act and to 
add that exemption to Appendix C to Part 5, DHS Systems of Records 
Exempt from the Privacy Act. Given the nature and purpose of the 
proposed system of records, a significant portion of the records are 
likely to be exempt from disclosure under the Privacy Act pursuant to 5 
U.S.C. 552a(d)(5). This record system, however, will also derive 
information or incorporate investigative materials from Privacy Act 
exempt files. In order to ensure that the exemptions applicable to such 
investigative materials carry over when those materials are 
incorporated into the GEMS system, DHS is claiming those exemptions in 
this notice of proposed rulemaking. In appropriate circumstances, where 
compliance would not appear to interfere with or adversely affect the 
litigation-related purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived.

List of Subjects in 6 CFR Part 5

    Privacy; Freedom of information.

    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:


[[Page 16520]]


    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. At the end of Appendix C to Part 5, which was proposed to be 
added at 70 FR 14428, March 22, 2005, add the following new paragraph 
``4'':

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

* * * * *
    4. The General Counsel Electronic Management System (GEMS) consists 
of records and information created or collected by attorneys for the 
Bureau of Immigration and Customs Enforcement, which will be used in 
the preparation and presentation of cases before a court or other 
adjudicative body. ICE attorneys work closely with their investigators 
throughout the process of adjudicating immigration cases. GEMS allows 
ICE attorneys to store all the materials pertaining to immigration 
adjudications, including documents related to investigations, case 
notes and other hearing related information, and briefs and memoranda 
of law related to cases. Having this information in one system should 
not only facilitate the work of the ICE attorneys involved in the 
particular case, but also will provide a legal resource for other 
attorneys who are adjudicating similar cases. The system will also 
provide management capabilities for tracking time and effort expended 
in the preparation and presentation of cases.
    Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); 
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a (k)(1) and 
(k)(2), this system is exempt from the following provisions of the 
Privacy Act, subject to the limitations set forth in those subsections: 
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). 
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 subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation, to the existence of the investigation, which in some cases 
may be classified, and reveal investigative interest on the part of DHS 
or ICE. 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 pertaining to an immigration matter, which in some 
cases may be classified, and prematurely 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 immigration 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 and for the protection of 
national security, 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 of the nature or 
existence of an investigation, which could cause interference with the 
investigation, a related inquiry or other law enforcement activities, 
some of which may be classified.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f) 
(Agency Rules), and (g) (Civil Remedies) because portions of this 
system are exempt from the individual access provisions of subsection 
(d).
    (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.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with ICE's 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) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: March 23, 2006.
Maureen Cooney,
Acting Chief Privacy Officer.
[FR Doc. E6-4693 Filed 3-31-06; 8:45 am]
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