[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Proposed Rules]
[Pages 55482-55484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25944]


 ========================================================================
 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. 74, No. 207 / Wednesday, October 28, 2009 / 
Proposed Rules  

[[Page 55482]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0095]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Office of Inspector General--002 Investigative 
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 Office of 
Inspector General--002 Investigative Records System of Records and this 
proposed rulemaking. 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 November 27, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0095, 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, 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 please contact: 
Doris A. Wojnarowski (202-254-4211), Department of Homeland Security, 
Office of 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, 
245 Murray Drive, SW., Building 410, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:
    Background: Concurrently with the publication of this notice of 
proposed rulemaking, the Department of Homeland Security (DHS) is 
publishing a revised system of records notice that is subject to the 
Privacy Act of 1974, 5 U.S.C. 552a. The system is titled, DHS/Office of 
Inspector General (OIG)--002 Investigations Data Management System of 
Records (IDMS) (70 FR 58448-58451, October 6, 2005). DHS is now 
updating and revising the systems notice under a new name titled, DHS/
OIG-002 Investigative Records System of Records, to cover the same 
records. DHS is proposing to continue to exempt this system, in part, 
from certain provisions of the Privacy Act.
    The OIG is responsible for conducting and supervising independent 
and objective audits, inspections, and investigations of the programs 
and operations of DHS. The OIG promotes economy, efficiency, and 
effectiveness within the Department and prevents and detects fraud, 
waste, and abuse in its programs and operations. The OIG's Office of 
Investigations, investigates allegations of criminal, civil, and 
administrative misconduct involving DHS employees, contractors, 
grantees, and Departmental programs and activities. These 
investigations can result in criminal prosecutions, fines, civil 
monetary penalties, and administrative sanctions. Additionally, the 
Office of Investigations provides oversight and monitors the 
investigative activity of DHS' various internal affairs offices.
    The DHS/OIG-002 Investigative Records System of Records assists the 
OIG with receiving and processing allegations of violation of criminal, 
civil, and administrative laws and regulations relating to DHS 
employees, contractors, grantees, and other individuals and entities 
associated with DHS. The system includes both paper investigative files 
and the Enforcement Data System (EDS), an electronic case management 
and tracking information system, which also generates reports. EDS 
allows the OIG to manage information provided during the course of its 
investigations, and, in the process, to facilitate its management of 
investigations and investigative resources.
    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.
    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 the DHS/OIG-002 Investigative Records System of Records. Some 
information in the DHS/OIG-002 Investigative Records System of Records

[[Page 55483]]

relates to official DHS national security, immigration, intelligence, 
and law enforcement activities. These exemptions are needed to protect 
information relating to DHS activities from disclosure to subjects of 
investigations and others related to these activities. Specifically, 
the exemptions are required to preclude subjects of investigations from 
frustrating the investigative process; to avoid disclosure of 
investigative 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; and to safeguard 
classified information. 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 revised notice of a system of records for the Investigative 
Records System 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.; 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.

    2. Add at the end of Appendix C to Part 5, the following paragraph 
``5'':

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 thereunder; 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 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 (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), and (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)(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 informant's 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 (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

[[Page 55484]]

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 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E9-25944 Filed 10-27-09; 8:45 am]
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