2020-15513. Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-045 Statistical Immigration Data Production and Reporting System of Records

AGENCY:

Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security is issuing a final rule to amend its regulations to exempt portions of a newly established system of records titled, “Department of Homeland Security/ALL-045 Statistical Immigration Data Production and Reporting System of Records” from certain provisions of the Privacy Act. Specifically, the Department exempts portions of the “Department of Homeland Security/ALL-045 Statistical Immigration Data Production and Reporting 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 July 31, 2020.

FOR FURTHER INFORMATION CONTACT:

For general and privacy questions please contact: Constantina Kozanas [phone], [e-mail], Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register, (85 FR 14174, March 11, 2020), 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 associated system of records with this rulemaking is DHS/ALL-045 Statistical Immigration Data Production and Reporting System of Records, published concurrently in the Federal Register at 85 FR 14223 on March 11, 2020, which permits DHS/Office of Immigration Statistics (OIS) to collect and maintain records on members of the public for whom federal agencies have collected information related to individuals' interactions with the federal government's immigration system.

Comments were invited on both the Notice of Proposed Rulemaking (NPRM) and System of Records Notice (SORN).

Public Comments

DHS received two comments on the NPRM and one comment on the SORN.

NPRM

DHS received two comments on the published NPRM: One regarding the need for a database of law enforcement investigations other law agencies may have access to and the other regarding the need for collection in a transparent and non-discriminatory manner. DHS appreciates the public comments. First, DHS does not collect information in this system of records for law enforcement purposes for itself nor for other federal agencies. Second, DHS always strives to be transparent regarding its collection of immigration data for statistical purposes and does so in conformance with law.

SORN

DHS received one non-substantive comment on the published SORN.

After consideration of the public comments, DHS has determined that the exemptions should remain in place and 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

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. Amend Appendix C to Part 5 by adding paragraph 82 to read as follows:

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

* * * * *

82. The DHS/ALL-045 Statistical Immigration Data Production and Reporting System of Records consists of electronic and paper records and will be used by DHS and its Components. The DHS/ALL-045 Statistical Immigration Data Production and Reporting 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. The DHS/ALL-045 Statistical Immigration Data Production and Reporting System of 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.

For records created and aggregated by DHS OIS, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(4), 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). In addition to the reasons stated below, the reason for exempting the system of records is that disclosure of statistical records (including release of accounting for disclosures) would in most instances be of no benefit to a particular individual since the records do not have a direct effect on a given individual.

Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2) or (k)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.

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) (Accounting for Disclosures) because release of the accounting of disclosures for records derived from DHS operational systems 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 that are derived from records from DHS operational systems 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, including statistics records covered by this system that derived from records originating from DHS operational systems.

(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(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.

Constantina Kozanas,

Chief Privacy Officer, Department of Homeland Security.