[Federal Register Volume 77, Number 221 (Thursday, November 15, 2012)]
[Notices]
[Pages 68140-68144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27806]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

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


Privacy Act of 1974; New System of Records, Office of General 
Counsel E-Discovery Management System: Republication of System 
Description and Solicitation of Comment

AGENCY: Office of the Chief Information Officer, HUD.

ACTION: Notice.

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SUMMARY: This notice solicits additional comment on a new system of 
records for the Office of General Counsel (OGC) E- Discovery Management 
System (EDMS). EDMS was first announced and described in a July 17, 
2012, Federal Register notice, in which HUD solicited comment. Based on 
comment received, this notice makes certain revisions to the 
description of EDMS in the July 17, 2012, notice and solicits 
additional comment. Additional clarification is provided regarding the 
system of records: Category of Individuals Covered by the System; the 
Purpose Category; Retention Use and Disposal of Records Category, and 
System Location Category.

DATES: Comments Due Date: December 17, 2012.

ADDRESSES: Interested persons are invited to submit comments regarding 
this notice to the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW., Room 
10276, Washington, DC 20410-0500. Communications must refer to the 
above docket number and title. There are two methods for submitting 
public comments. All submissions must refer to the above docket number 
and title.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. HUD strongly encourages commenters to 
submit comments electronically. Electronic submission of comments 
allows the commenter maximum time to prepare and submit a comment, 
ensures timely receipt by HUD, and enables HUD to make them immediately 
available to the public. Comments submitted electronically through the 
http://www.regulations.gov Web site can be viewed by other commenters 
and interested members of the public. Commenters should follow the 
instructions provided on that Web site to submit comments 
electronically.

    Note:
    To receive consideration as public comments, comments must be 
submitted through one of the two methods specified above. Again, all 
submissions must refer to the docket number and title of the rule.

    No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
    Public Inspection of Public Comments. All properly submitted 
comments and communications submitted to HUD will be available for 
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the 
above address. Due to security measures at the HUD Headquarters 
building, an advance appointment to review the public comments must be 
scheduled by calling the Regulations Division at (202) 708-3055 (this 
is not a toll-free number). Individuals with speech or hearing 
impairments may access this number through TTY by calling the Federal 
Relay Service at (800) 877- 8339. Copies of all comments submitted are 
available for inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For inquiries pertaining to Privacy 
Act records, contact Donna Robinson-Staton, Chief Privacy Officer, 
Department of Housing and Urban Development, 451 7th Street SW., 
Washington, DC 20410 (Attention: Capitol View Building, 4th Floor) 
telephone number (202) 402-8073 (this telephone number is not toll 
free). A telecommunications device for hearing- and speech-impaired 
persons (TTY) is available by calling the Federal Relay Service's toll-
free telephone number (800) 877-8339.

[[Page 68141]]


SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) (Privacy Act), 
HUD published in the Federal Register on July 17, 2012, at 77 FR 41997, 
a notice that announced a new system of records for OGC's E-Discovery 
Management System (OGC-EDMS), a system expected to significantly 
improve the efficiency of OGC's processing of records during the 
preservation, discovery, and processing of litigation requests when 
litigation is ``reasonably anticipated'' \1\ and reduce the time HUD 
staff spend on the document review and production process. OGC-EDMS is 
in response to and consistent with e-discovery preservation and 
production requirements in the Federal Rules of Civil Procedure.
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    \1\ ``Reasonably anticipated'' is the legal test articulating 
the standard for when the duty to preserve electronically stored 
information begins. A key case is Pension Comm. of the Univ. of 
Montreal Pension Plan v. Banc of Am. Secs., LLC, 05 Civ. 9016 (SAS), 
2010 U.S. Dist. LEXIS 4546, at * 14-15 (S.D.N.Y. Jan. 15, 2010).
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    The July 17, 2012, notice solicited public comment on OGC-EDMS for 
a period of 30 days. The notice advised that EDMS would carry a final 
effective date of August 16, 2012, unless HUD received comments which 
would result in a contrary determination. HUD received public comment 
in response to the July 17, 2012, notice. On August 15, 2012, at 77 FR 
49011, HUD published a notice advising of a change the final effective 
date of OGC-EDMS, the commitment to re-publish the description of OGC-
EDMS with certain clarifications, respond to public comments received 
in response to the July 17, 2012, notice, and seek additional public 
comment.
    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).

Discussion of Public Comments

    In response to the July 17, 2012, notice, HUD received comments 
from a national professional association representing trial lawyers, 
and a coalition consisting of advocacy groups representing consumers, 
as well as advocacy groups fighting racial injustice and housing 
discrimination.
    Comment: HUD should comply with the Federal Rules of Civil 
Procedure and should not destroy original documents. The commenters 
stated that OGC-EDMS should be regulated by the Federal Rules of Civil 
Procedure. The commenters further stated that they had significant 
concerns about the proposed retention and disposal policy which allowed 
HUD's OGC to destroy litigation data when closing a case. The 
commenters requested that original documents not be destroyed as part 
of an electronic data purge, and that copies of the case data be made 
available in the event of a Freedom of Information Act (FOIA) request 
or the need to revisit a particular case or series of cases.
    HUD Response: In response to the commenters' concerns about the 
consistency of HUD's policies with the Federal Rules of Civil 
Procedure, HUD is providing additional operational information about 
EDMS and the other HUD electronic information systems. HUD is also 
clarifying that when litigation is ``reasonably anticipated,'' related 
electronic data is forensically copied and maintained in a secure 
server environment separate from HUD's network servers as part of the 
OGC-EDMS. In this secure server environment, electronic data is 
preserved in a way that prevents metadata spoliation by the system or 
the owner of the data. As part of the Electronic Discovery Reference 
Model, HUD users are able to review and analyze the relevant electronic 
data that has been forensically copied and maintained as part of the 
EDMS. Reviewing the forensically copied electronic data within the EDMS 
prevents users from altering or improperly handling original documents, 
which is in all parties' interests.
    After authorization from an OGC manager, such as an Associate 
General Counsel or Regional Counsel, is received, OGC requests a case 
to be closed within the EDMS. The case and related electronic 
litigation data that has been copied and secured in a production 
environment for the purposes of litigation, is purged electronically 
from the EDMS. This purging does not include purging of electronic data 
from its original source such as network servers. Electronic data is 
properly retained on network servers and other sources as mandated by 
the HUD's Office of General Counsel Records Disposition Schedule 2--
Legal Records, 2225.6 REV-1, CHG-APPENDIX 2 \2\ and HUD's Office of the 
Chief Information Officer Electronic Mail Policy, 2400.1 REV01, CHG.\3\ 
These handbooks are available on HUD's web pages through hudclips.
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    \2\ http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
    \3\ http://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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    In response to commenters' concerns, HUD is revising its System of 
Records notice for the EDMS to clarify that original documents are not 
destroyed as part of HUD's E-Discovery efforts. Revisions to the text 
of the Retention and Disposal Section that follows should clarify the 
process. For the convenience of the public, HUD is providing a complete 
summary within this notice of the location, purposes, and operational 
description of EDMS to facilitate comment.

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

    Dated: November 7, 2012.
Jerry E. Williams,
Chief Information Officer.
SUMMARY DESCRIPTION OF EDMS

OGC.CAGC.01

SYSTEM NAME:
    Office General Counsel Electronic Discovery Management System. 
(OGC-EDMS)

SYSTEM LOCATIONS:
    The EDMS application will be stored on servers located at 4701 
Forbes Boulevard, Lanham, MD 20706. Custodian data to be retrieved is 
stored on servers and HUD workstations located throughout the 
country.\4\
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    \4\ http://portal.hud.gov/hudportal/documents/huddoc?id=append2.pdf.
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PURPOSES:
    OGC-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, electronically stored information (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 HUD, as well as the attorneys representing 
the plaintiff(s) and defendant(s) in response to claims by

[[Page 68142]]

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 to be responsive to 
requests to HUD.
    On December 1, 2006, the Federal Rules of Civil Procedure were 
amended to create and clarify responsibility for preserving and 
accessing 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 document and data reviews it conducts, allow the attorneys 
to analyze the information in different formats, conduct the analysis 
in bulk more efficiently, and protect unwarranted disclosure of 
information by flagging files that contain information therein that is 
protected from disclosure.

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(b)(2), 26(b)(5)(B), 
26(f), 33(d), 34(a), 34(b), 37(f), and 45.

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's OGC; (2) all persons deemed a 
participant of past or present litigation, investigations, or 
arbitration where HUD is involved; and (3) specified individuals 
impacted by FOIA requests, litigation, and other cases in HUD.
    A wide variety of individuals are covered by the system including: 
individuals who either file administrative complaints with HUD or are 
the subject of administrative complaints initiated by HUD; individuals 
who are named parties in cases in which HUD believes it will or may 
become involved; individuals involved in matters within the 
jurisdiction of HUD 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; individuals who are the 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 personally identifiable information and sensitive law 
enforcement data used to track the process or investigations or focus 
investigative priorities; 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 HUD either is involved in or in which it 
believes it will or may become involved; claims by or against the U.S. 
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 of 1973 (26 U.S.C. 701); 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; 
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 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

[[Page 68143]]

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 jury, where the 
subpoena or request has been specifically approved by a court; and
    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 OGC-EDMS is stored electronically in a Storage 
Area Network/Network Attached. There are no manual records stored or 
maintained outside the system. Storage is 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; and (13) ESI identification email notifications. 
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:
    In response to the FRCP 16(b), when litigation is ``reasonably 
anticipated,'' related electronic data is copied and maintained in a 
secure server environment separate from HUD's network servers as part 
of the EDMS.\5\ Upon authorization from a HUD Associate General 
Counsel, Regional Counsel, or other designated official, OGC closes a 
case. The closed case and related electronic litigation data that has 
been copied and secured in a production environment for the purposes of 
litigation is purged electronically from the EDMS. The purging process 
does not extend to purging electronic data from its original source, 
such as network servers. Electronic data is properly retained on 
network servers and other sources as required by HUD's Office of 
General Counsel Records Disposition Schedule 2--Legal Records, 2225.6 
REV-1, CHG-APPENDIX 2 \6\ and the Electronic Mail Policy, 2400.1 REV01, 
CHG.\7\
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    \5\ Other relevant regulations surrounding the collection and 
management of electronic discovery are FRCP 26(b)(2), 26(b)(5)(B), 
26(f), 33(d), 34(a), 34(b), 37(f), and 45.
    \6\ http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
    \7\ http://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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SYSTEM MANAGERS AND ADDRESSES:
    Office of General Counsel (OGC) Tenille Washburn, Assistant General 
Counsel, Field Management and IT Division, Department of Housing and 
Urban Development, 1250 Maryland Avenue SW., Suite 200, Washington, DC 
20024. The phone contact information is (202) 402-6536. This is not a 
toll free number.

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 7th 
Street SW., Room 4156, Washington, DC 20410. (Attention: Capitol View 
Building, 4th Floor.) The phone contact information is (202) 708-5495. 
This is not a toll free number. 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:
    HUD'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 HUD officials as follows:
    (i) Contesting contents of records: The 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.

[[Page 68144]]

EXEMPTIONS:
    The records in EDMS are maintained for use in civil rather than 
criminal actions. For that reason, the relevant provision of the 
Privacy Act is 5 U.S.C. 552a(d)(5) which states ``nothing in this [Act] 
shall allow an individual access to any information compiled in 
reasonable anticipation of a civil action or proceeding.'' (See U.S. 
Department of Justice, Office of Privacy and Civil Liberties, Overview 
of the Privacy Act of 1974 (2010) 212.\8\)
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    \8\ http://www.justice.gov/opcl/1974tenexemp.htm#one.

[FR Doc. 2012-27806 Filed 11-14-12; 8:45 am]
BILLING CODE 4210-67-P