[Federal Register Volume 86, Number 169 (Friday, September 3, 2021)]
[Proposed Rules]
[Pages 49490-49491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18797]


 ========================================================================
 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. 86, No. 169 / Friday, September 3, 2021 / 
Proposed Rules  

[[Page 49490]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2021-0029]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security/Office of the Immigration Detention 
Ombudsman-001 Office of the Immigration Detention Ombudsman System of 
Records

AGENCY: Office of the Immigration Detention Ombudsman, U.S. Department 
of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY:  The U.S. Department of Homeland Security (DHS) is giving 
concurrent notice of a newly established system of records pursuant to 
the Privacy Act of 1974 for the ``DHS/Office of the Immigration 
Detention Ombudsman (OIDO)-001 Office of the Immigration Detention 
Ombudsman System of Records'' and this proposed rulemaking. In this 
proposed rulemaking, the Department proposes 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.

DATES:  Comments must be received on or before October 4, 2021.

ADDRESSES:  You may submit comments, identified by docket number DHS-
2021-0029, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Lynn Parker Dupree, Chief Privacy Officer, Privacy 
Office, U.S. Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this document. 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 and privacy questions, 
please contact: Lynn Parker Dupree, (202) 343-1717, [email protected], 
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland 
Security, Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION: 

I. Background

    The U.S. Department of Homeland Security (DHS) Office of the 
Immigration Detention Ombudsman (OIDO) is giving notice that it 
proposes to establish a new DHS system of records notice (SORN) titled, 
``DHS/OIDO-001 Office of the Immigration Detention Ombudsman System of 
Records.'' OIDO is an independent component within DHS tasked with 
reviewing and resolving individual complaints and providing independent 
oversight of immigration detention facilities, including conducting 
announced and unannounced inspections, reviewing contract terms for 
immigration detention facilities and services, and making 
recommendations and reporting to Congress on findings. OIDO is creating 
this system of records to collect and maintain records related to 
individual complaints from or about individuals in immigration 
detention regarding potential violations of law, individual rights, 
standards of professional conduct, contract terms, or policy related to 
immigration detention by any officer or employee of CBP or ICE, or any 
contracted, subcontracted, or cooperating entity personnel.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/OIDO-001 Office of the Immigration Detention 
Ombudsman System of Records may be shared with other DHS Components 
that have a need to know the information to carry out their national 
security, law enforcement, immigration, intelligence, or other homeland 
security functions. In addition, DHS/OIDO may share information with 
appropriate federal, state, local, tribal, territorial, foreign, or 
international government agencies consistent with the routine uses set 
forth in this system of records notice.
    A full description of this new SORN can be found in the Federal 
Register.

II. Privacy Act

    The fair information practice principles found in the Privacy Act 
underpin the statutory framework governing the means by which Federal 
Government agencies collect, maintain, use, and disseminate 
individuals' records. 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. In the Privacy Act, an individual is defined as U.S. 
citizens and lawful permanent residents. Additionally, the Judicial 
Redress Act (JRA) provides a statutory right to covered persons to make 
requests for access and amendment to covered records, as defined by the 
JRA, along with judicial review for denials of such requests. In 
addition, the JRA prohibits disclosures of covered records, except as 
otherwise permitted by the Privacy Act.
    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 DHS/OIDO-001 Office of the Immigration Detention Ombudsman 
System of Records. Information covered by this system of records notice 
relates to official DHS national security and law enforcement missions, 
and exemptions are needed to protect information relating to DHS 
activities from disclosure to subjects or others related to these 
activities. Specifically, the exemptions are required to preclude 
subjects of these activities from frustrating these processes; to avoid 
disclosure of activity techniques; ensure DHS's ability to obtain 
information from third parties and other sources; and to protect the 
privacy of third parties. Disclosure of information to the subject of 
the inquiry could also undermine the entire investigative process.

[[Page 49491]]

    In appropriate circumstances, when 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 system of records notice for DHS/OIDO-001 Office of the 
Immigration Detention Ombudsman System of Records 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

0
1. The authority citation for part 5 continues to read as follows:

    Authority:  6 U.S.C. 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, add paragraph 86 to read as follows:

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

* * * * *
    86. The DHS/OIDO-001 Office of the Immigration Detention 
Ombudsman System of Records consists of electronic and paper records 
and will be used by DHS and its components. The DHS/OIDO-001 Office 
of the Immigration Detention Ombudsman 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, and investigations, 
inquiries, and proceedings there under. The DHS/OIDO-001 Office of 
the Immigration Detention Ombudsman 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, pursuant to 5 U.S.C. 
552a(k)(2) and (k)(5), has exempted this system from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Where a record received 
from another system has been exempted in that source system under 5 
U.S.C. 552a(j)(2), (k)(2), or (k)(5), DHS will claim the same 
exemptions for those records that are claimed for the original 
primary systems of records from which they originated and claims any 
additional exemptions set forth here.
    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 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 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. When an investigation has been completed, 
information on disclosures made may continue to be exempted if the 
fact that an investigation occurred remains sensitive after 
completion.
    (b) From subsection (d) (Access and Amendment 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 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. Further, 
permitting amendment to counterintelligence records after an 
investigation has been completed would impose an unmanageable 
administrative burden. 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.

Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.

[FR Doc. 2021-18797 Filed 9-2-21; 8:45 am]
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