[Federal Register Volume 87, Number 18 (Thursday, January 27, 2022)]
[Rules and Regulations]
[Pages 4125-4126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01559]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 18 / Thursday, January 27, 2022 / 
Rules and Regulations  

[[Page 4125]]



 DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2022-0007]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security/Office of Inspector General-002 
Investigative Records System of Records

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

ACTION: Final rule.

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

SUMMARY:  The U.S. Department of Homeland Security (DHS) is issuing a 
final rule to amend its regulations to exempt portions of a modified 
system of records titled, ``DHS/Office of Inspector General (OIG)-002 
Investigative Records System of Records'' from certain provisions of 
the Privacy Act. Specifically, the Department exempts portions of the 
system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements.

DATES:  This final rule is effective January 27, 2022.

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:

Background

    The U.S. Department of Homeland Security (DHS) Office of Inspector 
General (OIG) published a notice of proposed rulemaking in the Federal 
Register, 86 FR 58226 (October 21, 2021), 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/OIG-002 Investigative 
Records System of Records. The DHS/OIG-002 Investigative Records System 
of Records notice was published concurrently in the Federal Register, 
86 FR 58292 (October 21, 2021), and comments were invited on both the 
Notice of Proposed Rulemaking (NPRM) and System of Records Notice 
(SORN).
    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. 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.

Public Comments

    DHS received one comment on the System of Records Notice and zero 
comments on the Notice of Proposed Rulemaking. The comment received was 
in agreement with the Department moving forward with the rulemaking and 
notice. As such, the Department will implement the 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. 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 section 5 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

[[Page 4126]]

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 P. Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2022-01559 Filed 1-26-22; 8:45 am]
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