E6-15046. Privacy Act of 1974: Implementation of Exemptions

AGENCY:

Office of Security, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security is concurrently establishing a new system of records pursuant to the Privacy Act of 1974 for the Office of Security entitled the “Office of Security File System.” This system of records will support the administration of a program that provides security for the Department by safeguarding and protecting the Department's personnel, property, facilities and information.

In this proposed rulemaking, the Department proposes to exempt portions of this 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 October 12, 2006.

ADDRESSES:

You may submit comments, identified by docket number DHS-2006-0027, by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Fax: [phone] (not a toll-free number).

Mail: Marc E. Frey, Senior Advisor, Office of Security, 245 Murray Lane, SW., Building 410, Washington, DC 20528; Hugo Teufel III, Chief Privacy Officer, 601 S. 12th Street, Arlington, VA 22202-4220.

Instructions: All submissions received must include the agency name and docket number for this notice. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Marc E. Frey, Senior Advisor, Office of Security, 245 Murray Lane, SW., Building 410, Washington, DC 20528 by telephone [phone] or facsimile [phone]; Hugo Teufel III, Chief Privacy Officer, 601 S. 12th Street, Arlington, VA 22202-4220 by telephone [phone] or facsimile [phone].

SUPPLEMENTARY INFORMATION:

Background

Elsewhere in the Federal Register, the Department of Homeland Security (DHS) is publishing a Privacy Act system of records notice describing records in the file system of its Office of Security. DHS established the Office of Security to protect and safeguard the Department's personnel, property, facilities, and information. The Office of Security develops, coordinates, implements, and oversees the Department's security policies, programs, and standards; delivers security training and education to DHS personnel; and provides security support to DHS components when necessary. In addition, the Office of Security coordinates and collaborates with the Intelligence Community on security issues and the protection of information. The Office of Security works to integrate security into every aspect of the Department's operations.

The Office of Security File System consists of records relating to the management and operation of the DHS personnel security and suitability program, including but not limited to, completed standard form questionnaires issued by the Office of Personnel Management and other information related to an individual's eligibility for access to classified or sensitive information.

This system contains records pertaining to numerous categories of individuals including DHS personnel who may be a subject of a counter-terrorism, or counter-espionage, or law enforcement investigation; senders of unsolicited communications that raise a security concern to the Department or its personnel; state and local government personnel and private-sector individuals who serve on an advisory committee and board sponsored by DHS; and state and local government personnel and private-sector individuals who are authorized by DHS to access sensitive or classified homeland security information, classified facilities, communications security equipment, and information technology systems that process national or homeland security classified information. The information in this system also relates to official Security investigations and law enforcement activities.

Accordingly, DHS proposes to exempt this system, in part, from certain provisions of the Privacy Act and to add that exemption to Appendix C to Part 5, DHS Systems of Records Exempt from the Privacy Act. The DHS Office of Security needs this exemption in order to protect information relating to Security investigations from disclosure to subjects of investigations and others who could interfere with the Office of Security's investigatory and law enforcement activities. Specifically, the exemptions are required to preclude subjects of investigations from frustrating the investigative process; to avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure the Office of Security's ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

In addition, because the Office of Security investigations arise out of DHS programs and activities, information in this system of records may pertain to national security and related law enforcement matters. In such cases, allowing access to such information could alert subjects of the Office of Security investigations into actual or potential criminal, civil, or regulatory violations, and could reveal in an untimely manner, the Office of Security's and other agencies' investigative interests in law enforcement efforts to preserve national security.

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.

List of Subjects in 6 CFR Part 5

• Classified information
• Privacy
• Freedom of information

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

1. The authority citation for part 5 continues to read as follows:

Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.

2. At the end of Appendix C to Part 5, add the following new paragraph:

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

* * * * *

4. DHS-OS-001, Office of Security File System. This system and its records are used in the management and implementation of Office of Security programs and activities that safeguard and support the protection of the Department's personnel, property, facilities, and information. Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), 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), (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) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation into an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation, which in some cases may be classified, and which could reveal investigative interest on the part of DHS or the Office of Security. 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 and Amendment of Records) because access to the records contained in this system of records could inform the subject of an investigation, which in some cases may be classified, and prematurely 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 national security or information breaches, 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 and for the protection of national security, 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 access and amendment provisions of subsection (d).

(e) From subsection (g) to the extent that the system is exempt from other specific subsections of the Privacy Act.

Dated: September 1, 2006.

Hugo Teufel III,

Chief Privacy Officer.