Proposed Rule2021-22837
Privacy Act of 1974: Implementation of Exemptions; U.S. Department of Homeland Security Office of Inspector General Investigative Records System of Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 21, 2021
Issuing agencies
Homeland Security Department
Abstract
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.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 201 (Thursday, October 21, 2021)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22837]
========================================================================
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.
========================================================================
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:
<bullet> Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: 202-343-4010.
<bullet> 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
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]
BILLING CODE 9110-9B-P
</pre></body>
</html>Indexed from Federal Register on October 21, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.