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14 November 2008

[Federal Register: November 14, 2008 (Volume 73, Number 221)]
[Proposed Rules]               
[Page 67422-67423]
From the Federal Register Online via GPO Access []

Proposed Rules
                                                Federal Register

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.


[[Page 67422]]


6 CFR Part 5

[Docket No. DHS-2008-0096]

Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Internal Affairs

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.


SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a revised and updated system of records pursuant to the 
Privacy Act of 1974 for the Department of Homeland Security Internal 
Affairs 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 

DATES: Comments must be received on or before December 15, 2008.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0096, by one of the following methods:
     Federal e-Rulemaking Portal: 
Follow the instructions for submitting comments.
     Fax: 1-866-466-5370.
     Mail: Hugo Teufel III, Chief Privacy Officer, 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, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues, please contact: Hugo Teufel III (703-235-0780), Chief Privacy 
Officer, Privacy Office, U.S. Department of Homeland Security, 
Washington, DC 20528.

    Background: Pursuant to the savings clause in the Homeland Security 
Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November 
25, 2002), the Department of Homeland Security (DHS) and its components 
and offices have relied on preexisting Privacy Act systems of records 
notices for the collection and maintenance of records that concern 
internal affairs records.
    As part of its efforts to streamline and consolidate its Privacy 
Act record systems, DHS is establishing a new agency-wide system of 
records under the Privacy Act (5 U.S.C. 552a) for DHS internal affairs 
records. This will ensure that all components of DHS follow the same 
privacy rules for collecting and handling internal affairs records. DHS 
will use this system to collect and maintain internal affairs records 
submitted by DHS personnel and others. In this notice of proposed 
rulemaking, DHS now is proposing to exempt Internal Affairs, in part, 
from certain provisions of the Privacy Act.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. 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. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    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 
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for Internal Affairs. Some information in Internal Affairs relates 
to official DHS national security, law enforcement, immigration, 
intelligence activities, and protective services to the President of 
the United States 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, 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 United States 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 
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of Federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where 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 notice of system of records for Internal Affairs is also 
published in this issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

[[Page 67423]]

    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:


    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.

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``12'':

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

* * * * *
    12. The Department of Homeland Security Internal Affairs system 
of records consists of electronic and paper records and will be used 
by DHS and its components. Internal Affairs 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 United States or 
other individuals pursuant to Section 3056 and 3056A of Title 18. 
Internal Affairs 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. Pursuant to exemption 5 U.S.C. 
552a(j)(2) of the Privacy Act, portions of this system are exempt 
from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g). 
Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this system is 
exempt from the following provisions of the Privacy Act, subject to 
the limitations set forth in those subsections: 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 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, to tamper with witnesses or 
evidence, and to 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, 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 
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 
    (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 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 provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal 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 reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
    (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 
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 
    (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) 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: refusal 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: November 6, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E8-27093 Filed 11-13-08; 8:45 am]