[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45088-45090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20756]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0047]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Secret Service--003 Non-Criminal Investigation
Information System of Records
AGENCY: Privacy Office, DHS.
[[Page 45089]]
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 a Department of Homeland
Security U.S. Secret Service system of records entitled the
``Department of Homeland Security U.S. Secret Service--003 Non-Criminal
Investigation Information System of Records'' from certain provisions
of the Privacy Act. Specifically, the Department exempts portions of
the Department of Homeland Security U.S. Secret Service--003 Non-
Criminal Investigation Information system 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 August 31, 2009.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Latita Payne (202-406-6370), Privacy Point of Contact, United States
Secret Service, Washington, DC 20223. For privacy issues contact: Mary
Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office,
U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 73 FR 77546, December 19,
2008, proposing to exempt portions of the system of records from one or
more provisions of the Privacy Act because of the U.S. Secret Service's
(Secret Service) protective functions and its criminal, civil, and
administrative enforcement responsibilities. The system of records is
the DHS/Secret Service--003 Non-Criminal Investigation Information
system. The DHS/Secret Service--003 Non-Criminal Investigation
Information system of records notice was published concurrently in the
Federal Register, 73 FR 77813, December 19, 2008, and comments were
invited on both the notice of proposed rulemaking and the system of
records notice. No comments were received.
Public Comments
DHS received no comments on the notice of proposed rulemaking or
the system of records notice. DHS will implement the rulemaking as
proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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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
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1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Public Law 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.
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2. Add at the end of Appendix C to Part 5, the following new paragraph
``36'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
36. The DHS/Secret Service--003 Non-Criminal Investigation
Information system of records consists of electronic and paper
records and will be used by DHS and its components. The DHS/Secret
Service--003 Non-Criminal Investigation Information system 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; criminal, civil,
protective and background investigations and inquiries, and
proceedings thereunder; the protection of the President of the
United States or other individuals and locations pursuant to Section
3056 and 3056A of Title 18; and the hiring of employees through an
application process which includes the use of polygraph
examinations. The DHS/Secret Service--003 Non-Criminal Investigation
Information system 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, as well as private corporate,
educational and other entities. The Secretary of Homeland Security
has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (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 the 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), (k)(5), and (k)(6).
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 (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, or protective inquiry, 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 the Secret Service's
protective mission. Disclosure of the accounting would also permit
the individual who is the subject of a record to impede the
investigation or inquiry, to tamper with witnesses or evidence, and
to avoid detection or apprehension, which would undermine the entire
investigative or inquiry 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, or protective inquiry to the
existence of the investigation or inquiry, 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 or inquiry, to tamper with witnesses or evidence,
and to avoid detection or apprehension. Amendment of the records
could interfere with ongoing investigations and law enforcement or
protective activities and/or could disclose security-sensitive
information that could be detrimental to homeland security or the
protective mission of the Secret Service.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of Federal law or protective inquiries, 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 or protective inquiry. In the interests of
effective law enforcement and/or the protective mission of the
Secret Service, it is appropriate to retain all information that may
aid in establishing patterns of unlawful activity, or a threat to an
individual, location or event protected or secured by the Secret
Service.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation or protective inquiry would alert
the subject to the nature or existence of an investigation or
inquiry, thereby interfering with the related investigation or
inquiry and law enforcement or protective activities.
(e) From subsection (e)(3) (Notice to Individuals Providing
Information) because providing such detailed information would
impede law enforcement or protective activities in that it could
compromise investigations or inquiries by: Revealing the existence
of an otherwise confidential investigation or inquiry and thereby
provide an opportunity for the subject of an investigation or
inquiry to conceal evidence, alter patterns of behavior, or take
other actions that could thwart investigative or protective efforts;
reveal the identity of witnesses in investigations or inquiries,
thereby providing an opportunity for the subjects of the
investigations or inquiries or others to harass, intimidate, or
otherwise interfere with the collection of evidence or other
information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the
[[Page 45090]]
informant's usefulness in any ongoing or future investigations or
protective activities and discourage members of the public from
cooperating as confidential informants in any future investigations
or protective activities.
(f) From subsections (e)(4)(G), (H), and (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 the 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 or protective efforts and
reveal the identities of witnesses, and potential witnesses, and
confidential informants.
(g) From subsection (e)(5) (Maintenance of Information Used in
Making any Determination) because in the collection of information
for law enforcement and protective purposes it is impossible to
determine in advance what information is accurate, relevant, timely,
and complete. Compliance with (e)(5) would preclude Secret Service
agents from using their investigative and protective training, and
exercising good judgment to both conduct and report on
investigations or other protective activities.
(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, or could result in disclosure of
investigative or protective 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: Refusal 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: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20756 Filed 8-28-09; 8:45 am]
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