[Federal Register Volume 77, Number 137 (Tuesday, July 17, 2012)]
[Notices]
[Pages 41997-41999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17365]


-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5613-N-06]


Privacy Act of 1974; Notice of a New System of Records, Office of 
General Counsel E-Discovery Management System

AGENCY: Office of the Chief Information Officer.

ACTION: Notification of New Privacy Act System of Records, E-Discovery 
Management System.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the provision of the Privacy Act of 1974, as 
amended (5 U.S.C. 552a), the Department of Housing and Urban 
Development (HUD) is providing notice of its intent to establish a new 
system of records for the Office of General Counsel (OGC) E-Discovery 
Management System (EDMS). The OGC discovery productions typically 
require the preservation, collection and analysis of massive emails, 
word processing documents, PDF files, spreadsheets, presentations, 
database entries, and other documents in a variety of electronic file 
formats, as well as paper records. EDMS is expected to improve 
significantly the efficiency of OGC's processing of records during the 
discovery and processing of litigation requests and will dramatically 
reduce the time spent on the document review and production process. 
The Department will be issuing a Final Rule on the exemptions elsewhere 
in the Federal Register concurrent with the publishing of this updated 
System of Records Notice.

DATES: Effective Date: This proposal shall become effective, without 
further notice, August 16, 2012, unless comments are received during or 
before this period which would result in a contrary determination.
    Comments Due Date: August 16, 2012.

ADDRESSES: Interested persons are invited to submit comments regarding 
this notice to the Rules Docket Clerk, Office of General Counsel, 
Department of Housing and Urban Development, 451 Seventh Street SW., 
Room 10276, Washington, DC 20410-3000. Communications should refer to 
the above docket number and title. FAX comments are not acceptable. A 
copy of each communication submitted will be available for public 
inspection and copying between 8:00 a.m. and 5:00 p.m. weekdays at the 
above address.

FOR FURTHER INFORMATION CONTACT: Inquiries pertaining to Privacy Act 
records, contact Donna Robinson-Staton, Chief Privacy Officer, 
telephone number (202) 402-8073, 451 Seventh Street SW., Washington, DC 
20410 (Attention: Capitol View Building, 4th Floor) [The above 
telephone numbers are not toll free numbers.] A telecommunications 
device for hearing- and speech-impaired persons (TTY) is available by 
calling the Federal Information Relay Service's toll-free telephone 
number (800) 877-8339.

SUPPLEMENTARY INFORMATION: Pursuant to the Privacy Act of 1974 (5 
U.S.C. 552a), Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as 
amended, notice is given that HUD proposes to establish a new system of 
records identified as the Office of General Counsel E-Discovery 
Management System notice. The system report was submitted to the Office 
of Management and Budget (OMB), the Senate Committee on Homeland 
Security and Governmental Affairs, and the House Committee on 
Government Reform pursuant to Paragraph 4c of Appendix l to OMB 
Circular No. A-130, ``Federal Agencies Responsibilities for Maintaining 
Records About Individuals,'' July 25, 1994 (59 FR 37914).

    Authority: 5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).

    Dated: June 27, 2012.
Kevin R. Cooke,
Deputy Chief Information Officer.
OGC.CAGC.01

SYSTEM NAME:
    Office General Counsel Electronic Discovery Management System.

SYSTEM LOCATIONS:
    The Electronic Discovery Management System (EDMS) application will 
be stored on servers located at 4701 Forbes Boulevard, Lanham, MD 20706 
and on HUD workstations at 451 Seventh Street SW., Washington, DC 
20410. Custodian data to be retrieved is stored on servers and HUD 
Field Office workstations located throughout the country. (See also on 
HUD's privacy Web site, Appendix II for the addresses of the Field 
Offices where Privacy Act records may in some cases be maintained or 
accessed.)

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
    The federal regulation(s)/statute(s) that gives OGC the authority 
to collect and store this information is Federal Rules of Civil 
Procedure (FRCP) 16(b) which allows the court to establish rules around 
disclosure, privilege, methods and work product prior to electronic 
discovery commencing. In this context, disclosure is the collection of 
data. Other relevant regulations surrounding the collection and 
management of electronic discovery are FRCP 26(f), 26(b)(2), 
26(b)(5)(B), 33(d), 34(a), 34(b), 37(f), and 45.

PURPOSES:
    The Office of General Counsel (OGC) Electronic Discovery Management 
System (EDMS) provides OGC with a method to initiate, track, and manage 
the collection, organization, and production of paper and electronic 
documents for discovery requests, such as litigation hold memoranda, E-
Discovery certifications, ESI search requests, closure letters, and any 
other documents and data relevant to the discovery process requiring 
analysis, review, redaction, and production to respond to litigation 
discovery requirements. The purpose of this system is to assist HUD to 
collect electronically stored information and data of any individual 
who is, or will be, in litigation with the Department, as well as the 
attorneys representing the plaintiff(s) and defendant(s) in response to 
claims by employees, former employees, and other individuals; to assist 
in the settlement of claims against the government; to represent HUD 
during litigation, and to maintain internal statistics. A new software 
component is being added to HUD's EDMS process that will streamline the 
collection, storage, and analysis of case data in response to HUD 
requests. On December 1, 2006, the Federal Rules of Civil Procedure 
(FRCP) were amended to create and clarify responsibility for preserving 
and accessing electronically stored information (ESI). The obligation 
to preserve ESI, as well as paper records, begins when an individual 
``reasonably anticipates'' litigation and concludes that the evidence 
may be relevant to such future litigation. Once an individual 
reasonably anticipates litigation, he/she must suspend any document 
alteration or destruction to ensure the preservation of relevant 
documents and electronically stored information, including emails. EDMS 
and its various capabilities will allow OGC to streamline and automate 
the

[[Page 41998]]

document and data reviews it conducts, allow the attorneys to analyze 
the information in different formats, conduct the analysis in bulk more 
efficiently, and to protect unwarranted disclosure of information by 
flagging files that contain information therein that is protected from 
disclosure.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    Categories of individuals covered by this system include: (1) All 
persons subject to a litigation hold due to a ``reasonable anticipation 
of litigation'' as determined by HUD/HUD's Office of General Counsel; 
(2) All persons deemed a participant of past or present litigation, 
investigations, or arbitration where the Department of HUD is involved; 
(3) Specified parties in litigation and cases in Department of HUD--
Office of General Counsel.
    Individuals covered by the system include individuals who either 
file administrative complaints with HUD or are the subject 
administrative complaints initiated by HUD, individuals who are named 
parties in cases in which HUD believes it will or may become involved, 
matters within the jurisdiction of the Department either as plaintiffs 
or as defendants in both civil and criminal matters, witnesses, and to 
the extent not covered by any other system, tort and property claimants 
who have filed claims against the Government and individuals who are 
subject of an action requiring approval or action by a HUD official, 
such as appeals, actions, training, awards, promotions, selections, 
grievances and delegations, including the OGC attorneys to whom cases 
are assigned, and attorneys and authorized representatives for whom HUD 
has received complaints regarding their practices before HUD.

CATEGORIES OF RECORDS IN THE SYSTEM:
    Categories of records in this system include: (1) Custodian name; 
(2) Custodian work address; (3) Custodian email address, (4) Case Name; 
(5) Case number; (6) Custodian email data, including messages among 
other HUD employees and/or personnel of other federal agencies or 
outside entities, and attachments; (7) Custodian local/shared drive 
data of information collected or compiled from law enforcement or other 
agency databases; (8) Spreadsheets including data collections, often 
including PII and sensitive law enforcement data used to track the 
process or investigations or focus investigative priorities; including 
records relating to litigation by or against the U.S. Government (or 
litigation in which the U.S. Government is not a party, but has an 
interest) resulting from questions concerning HUD cases and legal 
actions that the Department either is involved in or in which it 
believes it will or may become involved; claims by or against the 
Government, other than litigation cases, arising from a transaction 
with HUD, and documents related thereto, including demographic 
information, vouchers, witness statements, legal decisions, and related 
material pertaining to such claims; investigation reports; legal 
authority; legal opinions and memoranda; criminal actions; criminal 
conviction records; claims and records regarding discrimination, 
including employment and sex discrimination; claims and records 
regarding the Rehabilitation Act; claims against non-HUD attorneys and/
or representatives who engage in unethical activities or exhibit 
unprofessional behavior; copies of petitions filed with HUD; personnel 
matters; contracts; foreclosures; actions against HUD officials; 
records relating to requests for HUD records other than requests under 
the Freedom of Information Act and the Privacy Act of 1974; testimonies 
of HUD employees in federal, state, local, or administrative criminal 
or civil litigation; documentary evidence; supporting documents 
including the legal and programmatic issues of the case, 
correspondence, legal opinions and memoranda and related records; State 
Bar grievance/discipline proceedings records; security clearance 
information; any type of legal document, including but not limited to 
complaints, summaries, affidavits, litigation reports, motions, 
subpoenas, and any other court filing or administrative filing or 
evidence; employee and former employee ethics question forms and 
responses; and court transcripts.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES 
OF USERS AND PURPOSES OF SUCH USES:
    1. To a Congressional office from the record of an individual in 
response to an inquiry from that Congressional office made at the 
request of the individual to whom the records pertain;
    2. To the National Archives and Records Administration (NARA) for 
use in its records management inspections and its role as an Archivist;
    3. To the Department of Justice (DOJ) when seeking legal advice for 
a HUD initiative or in response to DOJ's request for the information, 
after either HUD or DOJ determine that such information is relevant to 
DOJ's representatives of the United States or any other component in 
legal proceedings before a court or adjudicative body, provided that, 
in each case, the agency also determines prior to disclosure that 
disclosure of the records to the DOJ is a use of the information 
contained in the records that is compatible with the purpose for which 
HUD collected the records. HUD on its own may disclose records in this 
system of records in legal proceedings before a court or administrative 
body after determining that the disclosure of the records to the court 
or administrative body is a use of the information contained in the 
records that is compatible with the purpose for which HUD collected the 
records; or to another agency or to an instrumentality of any 
governmental jurisdiction within or under the control of the United 
States for a civil or criminal law enforcement activity if the activity 
is authorized by law, and if the head of the agency or instrumentality 
has made a written request to the agency which maintains the record 
specifying the particular portion desired and the law enforcement 
activity for which the record is sought.
    4. To third parties during the course of a law enforcement 
investigation to the extent necessary to obtain information pertinent 
to the investigation;
    5. To contractors, grantees, experts, consultants, and the agents 
thereof, and others performing or working on a contract, service, 
grant, cooperative agreement, or other assignment for HUD, when 
necessary to accomplish an agency function related to its system of 
records. Individuals provided information under this routine use are 
subject to the same Privacy Act requirements and limitations on 
disclosure as are applicable to HUD officers and employees;
    6. To third parties during the course of a law enforcement 
investigation to the extent necessary to obtain information pertinent 
to the investigation, provided disclosure is appropriate to the proper 
performance of the official duties of the officer making the 
disclosure;
    7. To a court, magistrate, or administrative tribunal in the course 
of presenting evidence, including disclosures to opposing counsel or 
witnesses in the course of civil discovery, litigation, or settlement 
negotiations or in connection with criminal law proceedings or in 
response to a subpoena;
    8. To a grand jury agent pursuant either to a federal or state 
grand jury subpoena, or to a prosecution request that such record be 
released for the purpose of its introduction to a grand

[[Page 41999]]

jury, where the subpoena or request has been specifically approved by a 
court;
    9. To appropriate agencies, entities, and persons when: (a) HUD 
suspects or has confirmed that the security or confidentiality of 
information in a system of records has been compromised; (b) HUD has 
determined that as a result of the suspected or confirmed compromise 
there is a risk of harm to economic or property interests, identity 
theft or fraud, or harm to the security or integrity of systems or 
programs (whether maintained by HUD or another agency or entity) that 
rely upon the compromised information; and (c) the disclosure made to 
such agencies, entities, and persons is reasonably necessary to assist 
in connection with HUD's efforts to respond to the suspected or 
confirmed compromise and prevent, minimize, or remedy such harm for 
purposes of facilitating responses and remediation efforts in the event 
of a data breach.

POLICIES FOR STORING, RETRIEVING, AND DISPOSING OF SYSTEM RECORDS:
STORAGE:
    Data collected by the Office of General Counsel's E-Discovery 
Management System is stored electronically in a Storage Area Network/
Network Attached. There are no manual records stored or maintained 
outside the system. Storage at a secure Lockheed Martin facility, and 
backed up via an Avamar Backup Storage system.

RETRIEVABILITY:
    Records will be retrieved by the (1) Custodian name; (2) Work 
address; (3) Custodian email address; (4) Case name; (5) Case number; 
(6) Custodian email data; (7) Custodian local drive data; (8) Custodian 
home/shared drive data; (9) Litigation Hold closures; (10) Litigation 
hold memoranda; (11) Litigation preservation notices; (12) Litigation 
hold reminder notices; (13) ESI identification email notifications; 
(14) E-Discovery notifications data is only accessed by individually 
assigned legal counsel on a case by case basis.

SAFEGUARDS:
    Strict controls have been imposed to minimize the risk of 
compromising the information that is being stored. Access to the 
computer system containing the records in this system is limited to 
those individuals who are authorized to access by appropriate security 
clearances and user ID/password permissions. Only assigned users with a 
need-to-know are allowed access, on a case-by-case basis after going 
through HUD's background investigation process.

RETENTION AND DISPOSAL:
    When OGC requests a case to be closed after authorization is 
received, the case and related electronic litigation data is purged 
electronically. Active case data is held indefinitely. Records 
Disposition Schedule 2--Legal Records, 2225.6 REV-1, CHG-APPENDIX 2.

SYSTEM MANAGERS AND ADDRESSES:
    Office of General Counsel (OGC) Patrina Munson, Supervisory 
Management Information Specialist, Field Management and IT Division, 
1250 Maryland Avenue SW., Suite 200, Washington, DC 20024.

NOTIFICATION AND RECORD ACCESS PROCEDURES:
    Individuals seeking to determine whether this system of records 
contains information about them, or those seeking access to such 
records, should address inquiries to Donna Staton-Robinson, Chief 
Privacy Officer, Department of Housing and Urban Development, 451 
Seventh Street SW., Room 4156, Washington, DC 20410. (Attention: 
Capitol View Building, 4th Floor) Provide verification of your identity 
by providing two proofs of official identification. Your verification 
of identity must include your original signature and must be notarized.

CONTESTING RECORD PROCEDURES:
    Procedures for the amendment or correction of records and for 
applicants who want to appeal initial agency determination appear in 24 
CFR Part 16.
    (i) In relation to contesting contents of records, the Privacy Act 
Officer at HUD, 451 Seventh Street SW., Room 4178, Washington, DC 
20410; and,
    (ii) In relation to appeals of initial denials, HUD, Departmental 
Privacy Appeals Officer, Office of General Counsel, 451 Seventh Street 
SW., Washington, DC 20410.

CONTESTING RECORD PROCEDURES:
    The Department's rules for contesting the contents of records and 
appealing initial denials, by the individual concerned, appear in 24 
CFR Part 16. If additional information or assistance is needed, it may 
be obtained by contacting:
    (i) Contesting contents of records: U.S. Department of Housing and 
Urban Development, Chief Privacy Officer, 451 Seventh Street SW., 
Washington, DC 20410;
    (ii) Appeals of initial HUD determinations: In relation to 
contesting contents of records, the HUD Departmental Privacy Appeals 
Officers, Office of General Counsel, Department of Housing and Urban 
Development, 451 Seventh Street SW., Washington, DC 20410.

RECORD SOURCE CATEGORIES:
    Documents and records in this system originate from HUD and its 
components, courts, subpoenas, law enforcement agencies, other federal, 
state, and local agencies, inquiries and/or complaints from witnesses 
or members of the general public.

EXEMPTIONS FROM CERTAIN PROVISIONS OF THE ACT:
    Yes. The Department will be issuing a Final Rule on the exemptions 
elsewhere in the Federal Register concurrent with the publishing of 
this updated System of Records Notice.

[FR Doc. 2012-17365 Filed 7-16-12; 8:45 am]
BILLING CODE 4210-67-P