[Federal Register: November 4, 2010 (Volume 75, Number 213)]
[Rules and Regulations]
[Page 67909-67910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no10-1]                         
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Rules and Regulations
                                                Federal Register
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[[Page 67909]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0082]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security Office of the Inspector General-002 Investigative
Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of an updated and reissued
system of records titled, ``Department of Homeland Security Office of
the Inspector General--002 Investigative Records System of Records''
from one or more provisions of the Privacy Act because of criminal,
civil, and administrative enforcement requirements.
DATES: Effective Date: This final rule is effective November 4, 2010.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Melinda D. Holliday McDonald, Esq. (202-254-4284), Privacy Officer,
Office of the Inspector General, Mail Stop 2600, 245 Murray Drive, SW.,
Building 410, Washington, DC 20528; or by facsimile (202) 254-4299. For
privacy issues please contact: Mary Ellen Callahan (703-235-0780),
Chief Privacy Officer, Privacy Office, Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
    The Department of Homeland Security (DHS) Office of Inspector
General (OIG) published a notice of proposed rulemaking in the Federal
Register, 74 FR 55482, October 28, 2009, 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,
74 FR 55569, October 28, 2009, and comments were invited on both the
Notice of Proposed Rulemaking (NPRM) and System of Records Notice
(SORN).
Public Comments
    DHS received one comment on the NPRM and no comments on the SORN.
NPRM
    The one comment received on the NPRM noted the inability to correct
personal information contained within the DHS/OIG-002 Investigative
Records System of Records and the inability to obtain legal and/or
civil remedy to dispute incorrect information contained within the
system of records. The commenter acknowledged that the overall
exemptions DHS seeks from the Privacy Act are necessary and consistent
with common exemptions sought by law enforcement agencies nationally.
However, the commenter expressed concern with the exemptions in
subsection (e)(5) of the Privacy Act (Collection of Information),
coupled with exemption in subsection (g). The commenter stated that
information contained in a file that is inaccurate should not be in
that file when the effects could damage that individual. The commenter
stated that on a case-by-case basis there must be an opportunity to
remedy incomplete and irrelevant information to make that person's
character whole.
    DHS/OIG believes that there is a need for the exemptions provided
for in this document. However, DHS/OIG recognizes that there may be
instances where such exemptions can be waived as stated in the NPRM and
implemented in the Final Rule. In appropriate circumstances, where
compliance would not appear to interfere with, or adversely affect, the
law enforcement and national security purposes of the system and the
overall law enforcement and security process, the applicable exemptions
may be waived.
    In the case of access requests from the DHS/OIG-002 Investigative
Records System of Records, each access request will be evaluated on a
case-by-case basis and if no harm to law enforcement interests or
national security would ensue from disclosure, the exemption may be
waived and the records (or portions of the records) may be disclosed.
    In the case of amendment requests from the DHS/OIG-002
Investigative Records System of Records, such requests would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated and could disclose security-sensitive
information that could be detrimental to homeland security; therefore,
the exemption from amendment requests is necessary.
SORN
    No SORN comments were received.
    After consideration of public comments, the Department will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
    Freedom of information; Privacy.
0
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 paragraph ``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 used by the DHS OIG. 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; and national security and intelligence
activities. 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 components and
[[Page 67910]]
may contain personally identifiable information collected by other
federal, state, local, tribal, foreign, or international government
agencies. The Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to
limitations set forth in 5 U.S.C. 552a(c)(3) and (c)(4); (d);
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f); and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); and
(f) pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5). 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 (c)(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 the
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/or 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, tamper with witnesses or
evidence, and avoid detection or apprehension, which would undermine
the entire investigative process.
    (b) From subsection (d) (Access 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 the
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, tamper
with witnesses or evidence, and avoid detection or apprehension.
Amendment of the records could interfere with ongoing investigations
and law enforcement activities and would impose an impossible
administrative burden by requiring investigations to be continuously
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 as to the
nature or existence of an investigation, thereby interfering with
the related investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise investigations by: revealing the existence
of an otherwise confidential investigation and thereby providing an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; revealing the identity of witnesses in
investigations thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; or revealing the identity of confidential
informants, which would negatively affect the informants' usefulness
in any ongoing or future investigations and discourage members of
the public from cooperating as confidential informants in any future
investigations.
    (f) From subsections (e)(4)(G) and (e)(4)(H) (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 rules or procedures with respect to such
access. Providing notice to individuals with respect to existence of
records pertaining to them in this 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,
potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because
in 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 (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' 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.
    (i) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore, DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's refusals to amend a record; refusal to
comply with a request for access to records; failure to maintain
accurate, relevant, timely, and complete records; or failure to
otherwise comply with an individual's right to access or amend
records.
* * * * *
    Dated: October 6, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-27830 Filed 11-3-10; 8:45 am]
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