Federal Register: October 1, 2009 (Volume 74, Number 189)
DOCID: fr01oc09-22 FR Doc E9-23524
DEPARTMENT OF HOMELAND SECURITY
United States Institute of Peace
CFR Citation: 6 CFR Part 5
Docket ID: [Docket No. DHS-2009-0069]
NOTICE: Part III
DOCID: fr01oc09-22
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL--023 Personnel Security Management System of Records
DATES: Effective Date: This final rule is effective October 1, 2009. [[Page 50905]]
DOCUMENT SUMMARY:
The Department of Homeland Security is issuing a final rule to amend its regulations to exempt portions of a Department of Homeland Security system of records entitled the ``Department of Homeland Security/ALL023 Personnel Security Management System of Records'' from certain provisions of the Privacy Act. Specifically, the Department exempts portions of the Department of Homeland Security/ ALL023 Personnel Security Management system from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
SUMMARY:
Homeland Security Department,
SUPPLEMENTAL INFORMATION
Background
The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register, 74 FR 2904, January 16, 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/ALL023 Personnel Security Management system. The DHS/ALL023 Personnel Security Management system of records notice was published concurrently in the Federal Register, 74 FR 3084, January 16, 2009, and comments were invited on both the notice of proposed rulemaking and system of records notice. No comments were received on the notice of proposed rulemaking or system of records notice published on January 16, 2009.
Prior to the January 16, 2009 publishing, DHS published a notice of proposed rulemaking and system of records notice for the DHSOS001 Office of Security File System on September 12, 2006. The notice of proposed rulemaking published in the Federal Register, 71 FR 53609, September 12, 2006, proposed 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 notice published concurrently in the Federal Register, 71 FR 53700, September 12, 2006, and comments were invited on both the notice of proposed rulemaking and system of records notice. The notice of proposed rulemaking received four public comments and system of records notice received one public comment but were never addressed after the publication period expired.
Because the DHSOS001 Office of Security File System notice of proposed rulemaking and system of records notice, published on September 12, 2006, have been superseded by the DHS/ALL023 Personnel Security Management notice of proposed rulemaking and system of records notice published on January 16, 2009, the Department will respond to previous public comments in this final rule as if they were submitted under the new docket number.
Public Comments
DHS received no public comments on the DHS/ALL023 Personnel
Security Management system notice of proposed rulemaking and system of
records notice published on January 16, 2009. As described above, DHS
received four public comments on DHSOS001 Office of Security File
System notice of proposed rulemaking and one public comment on the system of records notice published on September 12, 2006.
Notice of Proposed Rulemaking 71 FR 53609, September 12, 2006
Public comments noted that the functions of law enforcement and personnel security should be two separate systems of records, not commingled systems. In January 2009, the Department published two new system of records notices: (1) DHS/ALL023 Personnel Security Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL025 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security system, 74 FR 3088, January 16, 2009. Publishing these two systems of records notices provides transparency to the public of the Department's security authorities and exemptions for personnel security and law enforcement activities and addresses the concerns expressed in the public comments.
Final exemptions for the DHS/ALL023 Personnel Security Management system of records are published below under PART 5DISCLOSURE OF RECORDS AND INFORMATION. The Department's authorities for use of these exemptions are provided therein. The Department, through the Freedom of Information Act and Privacy Act, wishes to remain transparent in providing as much information as possible to the public when formally requesting information.
Having addressed the issues published in response to this notice of proposed rulemaking and after receiving no public comment on the DHS notice of proposed rulemaking published in the Federal Register, 74 FR 2904, January 16, 2009, DHS will implement the rulemaking as proposed. System of Records Notice 71 FR 53700, September 12, 2006
Public comments noted that the functions of law enforcement and personnel security should be two separate systems of records, not commingled systems. In January 2008, the Department published two new system of records notices: (1) DHS/ALL023 Personnel Security Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL025 Law Enforcement Authority in Support of the Protection of Property Owned or Occupied by the Department of Homeland Security system, 74 FR 3088, January 16, 2008. Each of the above cited systems of records contains a law enforcement and/or a counterintelligence component. Both personnel and physical security systems of records necessarily require law enforcement or counterintelligence information in order to protect the Department from infiltration or compromise. As complementary information collections, both systems ensure the security and integrity of DHS personnel and facilities. Considering those purposes, it is appropriate for the systems of records to take exemptions available under (k)(1), (k)(2), (k)(3) and/or (k)(5) as all of the functions covered by these exemptions are directly relevant to the investigations of threats to the Department's personnel and facilities. Publishing these two systems of records notices provides transparency to the public of the Department's security authorities and exemptions for personnel security and law enforcement activities.
Public comments also noted concern over Routine Use H and Routine Use I of the system of records notice. Routine Use H permits release of information to Congress. It may be necessary, from time to time, for the Department to release information to a Member of Congress working on behalf of a constituent. While such a disclosure might be acceptable under consent of the constituent, Office of Management and Budget guidance recommends additional notice through the published routine use be given. As such, DHS continues to keep this routine use in the SORN.
Routine Use I releases information to contractors, which includes
students. One commenter stated that it was inappropriate for DHS to
share information with any contractor or student working officially on
behalf of the Department. Contractors, including students, are subject
to the same screening as full time employees. The Department relies on
contractors and students in the course of its day to day activities and
it may become necessary for information to be released to them for
official government use just as it would be for a DHS employee. The
decision to allow students access to DHS facilities and a certain information
[[Page 50906]]
level rests solely with the DHS Office of Security and component
security offices. Employees, contractors, students, detailees,
grantees, experts and any other person working at a DHS facility and
accessing DHS information are required to undergo the same background
investigation as it pertains to their required classification level.
Those decisions are left to the discretion of the Office of Security
and the component or office to which the employee, contractor, student,
detailee, grantee, expert, or other person is assigned. As such, DHS shall maintain this routine use.
Having addressed the issues published in response to this system of
records notice and after receiving no public comment on the DHS system
of records notice published in the Federal Register, 74 FR 3084,
January 16, 2009, DHS 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 5DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107296, 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. In Appendix C to Part 5, add a new paragraph 40 to read as follows:
Appendix C to Part 5DHS Systems of Records Exempt From the Privacy Act
* * * * *
40. The DHS/ALL023 Personnel Security Management system of
records consists of electronic and paper records and will be used by DHS and its components. The DHS/ALL023 Personnel Security
Management system 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 thereunder;
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. The DHS/ALL023 Personnel
Security Management system 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 has exempted this system from the following provisions of
the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f)
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
Exemptions from these particular subsections are justified, on a
casebycase 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 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 securitysensitive
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), (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.
Dated: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E923524 Filed 93009; 8:45 am]
BILLING CODE 91109BP
FOR FURTHER INFORMATION CONTACT
For general questions and privacy issues, please contact: Mary Ellen Callahan (7032350780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.