[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 27847-27848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11689]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and
Regulations
[[Page 27847]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0031]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/U.S. Coast Guard--008 Courts Martial Case Files
System of Records
AGENCY: Privacy Office, DHS.
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. Coast Guard system of records titled, ``Department of
Homeland Security/U.S. Coast Guard--008 Courts Martial Case Files
System of Records'' from certain provisions of the Privacy Act.
Specifically, the Department exempts portions of the Department of
Homeland Security/U.S. Coast Guard--008 Courts Martial Case Files
System of Records 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 May 13, 2011.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Eileen Yenikaliotis (202-475-3530), Acting Privacy Officer, U.S. Coast
Guard. For privacy issues please 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) U.S. Coast Guard (USCG)
published a notice of proposed rulemaking (NPRM) in the Federal
Register, 73 FR 64899, October 31, 2008, proposing 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. The system of records is the DHS/USCG--008 Courts Martial
Case Files System of Records. The DHS/USCG--008 Courts Martial Case
Files system of records notice (SORN) was published concurrently in the
Federal Register, 73 FR 64961, October 31, 2008. Comments were invited
on both the NPRM and the SORN. Public comments were received on the
NPRM. No comments were received on the SORN.
Public Comments
DHS/USCG received two public comments on the NPRM. The first
comment focused on the rights of an individual stating that ``in all
criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the state and district where
in the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.'' This system
will be used by the DHS/USCG to collect and maintain records on
military and civilian employees of the DHS/USCG who are tried by, or
involved with, a courts martial in the DHS/USCG. By issuing these
exemptions, DHS/USCG is not abdicating its duty to conduct fair and
impartial courts martial proceedings. Rather, these exemptions only
apply to the Privacy Act and would not limit the ability of an
individual to obtain records pursuant to other authorities, such as
applicable rules for courts martial.
The second public comment received focused on withholding
information from a member of the DHS/USCG uniformed service as a result
of the exemptions claimed in the proposed rule. Exemptions claimed in
the proposed rule are neither designed nor intended, without reason, to
withhold information from anyone. However, it is occasionally necessary
and appropriate for the DHS/USCG to protect material compiled for law
enforcement purposes, including some records pertaining to
investigations, inquiries, and criminal proceedings, as well as
national security and intelligence activities. No comments were
received on the system of records notice. DHS will implement the
rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
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
0
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.
0
2. Add at the end of Appendix C to part 5, Exemption of Record Systems
under the Privacy Act, paragraph 54 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
12. The DHS/USCG--008 Courts Martial Case Files System of
Records consists of electronic and paper records and will be used by
DHS/USCG. The DHS/USCG--008 Courts Martial Case Files System of
Records is a repository of information held by DHS/USCG 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/USCG--008
Courts Martial Case Files System of Records contains information
that is collected by, on behalf of, in support of, or in cooperation
with DHS/USCG 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 the limitations set forth in 5 U.S.C.
552a(c)(3) and (c)(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) and (k)(2). Exemptions from these
particular subsections are justified, on a case-
[[Page 27848]]
by-case basis to be determined at the time a request is made, for
the following reasons:
(a) From subsection (c)(3) and (c)(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, 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
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, 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
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 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 provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal 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 reveal 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), (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.
(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) 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: April 19, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-11689 Filed 5-12-11; 8:45 am]
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