[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Rules and Regulations]
[Pages 44451-44452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18832]



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  Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules 
and Regulations  

[[Page 44451]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0051]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-029 Civil Rights and Civil Liberties Records 
System of Records

AGENCY: Privacy Office, DHS.
AGENCY: Final rule.
SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a newly established system 
of records titled, ``Department of Homeland Security/ALL-029 Civil 
Rights and Civil Liberties Records System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the ``Department of Homeland Security/ALL-029 Civil Rights 
and Civil Liberties Records 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 July 26, 2011.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking (NPRM) in the Federal Register, 75 FR 39184, July 
8, 2010, 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/ALL-029 Civil Rights and Civil Liberties Records System of Records. 
The DHS/ALL-029 Civil Rights and Civil Liberties Records system of 
records notice (SORN) was published concurrently in the Federal 
Register, 75 FR 39266, July 8, 2010, and comments were invited on both 
the NPRM and SORN.

Public Comments

    DHS received one comment on the NPRM and one comment on the SORN.

NPRM

    Public Comment: The commenter asked that DHS ``consider then the 
longevity of your agency's [DHS] decision to classify civil rights 
records; pent up negativity tends to torrentially destroy future 
objectives, and undermines the legitimacy of the work done to bring 
justice to those who deserve its retribution.''
    DHS Response: DHS is not seeking, through the proposed rule, to 
classify civil rights records. Rather, DHS has exempted certain records 
within this system of records from release under the Privacy Act 
because they are classified records, investigatory records compiled for 
law enforcement purposes, records related to the protection of the 
President and others, and investigatory records used for employee and 
contractor suitability determinations.

SORN

    Public Comment: The commenter noted that ``many persons affected by 
these programs are afraid to complain about misconduct because they 
fear that the personally identifying information that they provide will 
not be kept confidential or that they will be retaliated against by the 
agencies about which they complain. The SORN does nothing to alleviate 
these fears. In fact, it makes explicit that identifying information 
will be shared among government agencies, including state and local 
agencies. This was a missed opportunity to ensure that complaints may 
be made without fear of reprisal. It does not provide any meaningful 
opportunity for complainants to learn the results of their 
complaints.''
    DHS Response: The purpose of a Privacy Act SORN is to provide 
reasonable notice to the public on information that the Department is 
collecting, maintaining, and retrieving by personal identifier related 
directly to an individual in an agency system. The purpose is also to 
state the purpose, information on records and individuals covered, 
information sharing with other entities, records retention, and redress 
on information within that system. It is not intended to be a mechanism 
for complainants to learn the results of their complaints. There is a 
separate process for that. Information received within these systems of 
records must be protected by government agencies as outlined in 
statutes, executive orders, regulations, and DHS policy; in this case, 
records related to civil rights and civil liberties. There are limits 
to sharing information in a Privacy Act system of records, this 
includes between Federal, state, and local agencies including law 
enforcement. Sharing must be done in accordance with the routine uses 
in the Privacy Act system of records as published in the Federal 
Register. Routine uses apply to information sharing external to DHS. 
The term ``routine use'' is defined, with respect to the disclosure of 
a record, as the use of such record for a purpose which is compatible 
with the purpose for which the record was collected. This ensures the 
public receives adequate notice of the Department's planned uses of the 
information in the system of records.
    DHS will implement this 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:  6 U.S.C. Sec.  101 et seq.; Pub. L. 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.

0
2. In Appendix C to Part 5, revise paragraph 2 to read as follows:

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

* * * * *
    2. The DHS/ALL-029 Civil Rights and Civil Liberties Records 
System of Records consists of electronic and paper records and

[[Page 44452]]

will be used by DHS and its components. The DHS/ALL-029 Civil Rights 
and Civil Liberties 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; national security and intelligence 
activities; and protection of the President of the United States or 
other individuals pursuant to Section 3056 and 3056A of Title 18. 
The DHS/ALL-029 Civil Rights and Civil Liberties Records System of 
Records 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. 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), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. Sec.  
552a(k)(1), (k)(2), (k)(3), 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 individual 
who is the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of that 
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 
individual who is the subject of an investigation of an actual or 
potential criminal, civil, or regulatory violation to the existence 
of that 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 unreasonable administrative burden by requiring 
investigations to be continually 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 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.
* * * * *

    Dated: June 9, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-18832 Filed 7-25-11; 8:45 am]
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