[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Proposed Rules]
[Pages 58226-58227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22837]


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 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. 201 / Thursday, October 21, 2021 / 
Proposed Rules  

[[Page 58226]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2021-0042]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security Office of Inspector General 
Investigative Records System of Records

AGENCY: Office of Inspector General, U.S. Department of Homeland 
Security.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The U.S. Department of Homeland Security (DHS) is giving 
concurrent notice of an updated and reissued system of records pursuant 
to the Privacy Act of 1974 for the ``DHS/Office of Inspector General 
(OIG)-002 Investigative Records 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 November 22, 2021.

ADDRESSES: You may submit comments, identified by docket number DHS-
2021-0042, 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 notice. 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, Chief Privacy 
Officer, U.S. Department of Homeland Security, Washington, DC 20528-
0655.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the U.S. Department of 
Homeland Security (DHS), Office of Inspector General (OIG), is 
modifying and reissuing this system of records notice. DHS OIG is 
responsible for a wide range of oversight functions, including to 
initiate, conduct, supervise, and coordinate audits, investigations, 
inspections, and other reviews relating to the programs and operations 
of DHS. DHS OIG promotes economy, efficiency, and effectiveness within 
DHS and prevents, detects, and investigates employee corruption, fraud, 
waste, and abuse in its programs and operations. DHS OIG is responsible 
for investigating allegations of criminal, civil, and administrative 
misconduct involving DHS employees, contractors, grantees, and DHS 
programs and activities. These investigations can result in criminal 
prosecutions, fines, civil monetary penalties, and administrative 
sanctions. While DHS OIG is operationally a part of DHS, it operates 
independently of DHS and all offices within it.
    The DHS/OIG-002 Investigative Records System of Records assists DHS 
OIG with receiving and processing allegations of misconduct, including 
violations of criminal and civil laws, as well as administrative 
policies and regulations pertaining to DHS employees, contractors, 
grantees, and other individuals and entities within DHS. The system 
includes complaints and investigation-related files. DHS OIG manages 
information provided during the course of its investigations to: Create 
records showing dispositions of allegations; audit actions taken by DHS 
management regarding employee misconduct; audit legal actions taken 
following referrals to the U.S. Department of Justice (DOJ) for 
criminal prosecution or civil action; calculate and report statistical 
information; manage OIG investigators' training; and manage Government-
issued investigative property and other resources used for 
investigative activities.
    DHS is issuing this notice of proposed rulemaking to exempt this 
system of records from certain provisions of the Privacy Act.
    A fuller description of this modified SORN can be found herein the 
Federal Register.

II. Privacy Act

    The Privacy Act codifies fair information practice principles in a 
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 to encompass U.S. citizens and lawful 
permanent residents. Additionally, and similarly, 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/OIG-002 Investigative Records System of Records. Some 
information DHS/OIG-002 Investigative Records System of Records relates 
to official DHS national security, law enforcement, immigration, 
intelligence activities, and protective services to the President of 
the U.S. or other individuals pursuant to Section 3056 and 3056A of 
Title 18. These exemptions are needed to protect information relating 
to DHS activities from disclosure to subjects or others related to 
these activities. Specifically,

[[Page 58227]]

the exemptions are required to preclude subjects of these activities 
from frustrating these processes; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS' 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; to safeguard classified 
information; and to safeguard records in connection with providing 
protective services to the President of the U.S. or other individuals 
pursuant to Section 3056 and 3056A of Title 18. Disclosure of 
information to the subject of the inquiry could also permit the subject 
to avoid detection or apprehension.
    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/OIG-002 Investigative Records 
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, paragraph 5 is revised to read as follows:

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

* * * * *
    5. The DHS/OIG-002 Investigative Records System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/OIG-002 Investigative 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 there under; national 
security and intelligence activities; and protection of the 
President of the U.S. or other individuals pursuant to Section 3056 
and 3056A of Title 18. The DHS/OIG-002 Investigative 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, pursuant to 5 U.S.C. 
552a(j)(2), has exempted this system from the following provisions 
of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), 
(f); and (g)(1). Additionally, the Secretary of Homeland Security, 
pursuant to 5 U.S.C. 552a(k)(1), (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).
    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) and (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 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 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 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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G), (H), and (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 
with 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 subsection (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's 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.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
* * * * *

Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-22837 Filed 10-20-21; 8:45 am]
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