82 FR 27218 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-025 Law Enforcement Authority in Support of the Protection of Property Owned, Occupied, or Secured by the Department of Homeland Security System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 82, Issue 113 (June 14, 2017)

The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the ``Department of Homeland Security/ALL-025 Law Enforcement Authority in Support of the Protection of Property Owned, Occupied, or Secured by the Department of Homeland Security System of Records'' and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from additional provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

[Federal Register Volume 82, Number 113 (Wednesday, June 14, 2017)]
[Proposed Rules]
[Pages 27218-27219]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-12253]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2017-0019]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-025 Law Enforcement Authority in Support of the 
Protection of Property Owned, Occupied, or Secured by the Department of 
Homeland Security System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of an updated and reissued system of records pursuant to the 
Privacy Act of 1974 for the ``Department of Homeland Security/ALL-025 
Law Enforcement Authority in Support of the Protection of Property 
Owned, Occupied, or Secured by the Department of Homeland Security 
System of Records'' and this proposed rulemaking. In this proposed 
rulemaking, the Department proposes to exempt portions of the system of 
records from additional provisions of the Privacy Act because of 
criminal, civil, and administrative enforcement requirements.

DATES: Comments must be received on or before July 14, 2017.

ADDRESSES: You may submit comments, identified by docket number DHS-
2017-0019, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Jonathan R. Cantor, Acting Chief Privacy Officer, 
Privacy Office, 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 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: For general and privacy questions 
please contact: Jonathan R. Cantor, (202-343-1717), Acting Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) proposes a new Privacy Act 
exemption to an existing DHS system of records titled, ``DHS/ALL-025 
Law Enforcement Authority in Support of the Protection of Property 
Owned, Occupied, or Secured by DHS System of Records.'' The DHS/ALL-025 
Law Enforcement Authority in Support of the Protection of Property 
Owned, Occupied, or Secured by DHS System of Records covers the 
collection, use, maintenance, and dissemination of records relating to 
the protection of property owned, occupied, or secured by DHS. The 
existing Privacy Act exemptions that became effective upon publication 
of the Final Rule at 74 FR 50901, continue to apply to this system of 
records. DHS is issuing a Notice of Proposed Rulemaking to add a new 
exemption from certain provisions of the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate 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. 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 an additional exemption from certain requirements 
of the Privacy Act for DHS/ALL-025 Law Enforcement Authority in Support 
of the Protection of Property Owned, Occupied, or Secured by DHS System 
of Records, under 5 U.S.C. 552a(j)(2). Information in DHS/ALL-025 Law 
Enforcement Authority in Support of the Protection of Property Owned, 
Occupied, or Secured by DHS System of Records relates to official DHS 
law enforcement activities. This new exemption is needed to protect 
information relating to DHS activities from disclosure to subjects or 
others related to these activities. Specifically, the additional 
exemptions are required to preclude subjects of these activities from 
frustrating ongoing operations; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS's 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; and to safeguard classified 
information. 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 notice of an updated system of records for DHS/ALL-025 Law 
Enforcement Authority in Support of the Protection of Property Owned, 
Occupied, or Secured by DHS 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.

0
2. In appendix C to part 5, revise paragraph 38 to read as follows:

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

* * * * *

[[Page 27219]]

    38. The DHS/ALL-025 Law Enforcement Authority in Support of the 
Protection of Property Owned or Occupied by the Department of 
Homeland Security system of records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/ALL-025 
Law Enforcement Authority in Support of the Protection of Property 
Owned or Occupied by the Department of Homeland Security system is a 
repository of information held by DHS in connection with its several 
and varied missions and functions, including: The enforcement of 
civil and criminal laws; investigations, inquiries, and proceedings 
there under; and national security and intelligence activities. The 
DHS/ALL-025 Law Enforcement Authority in Support of the Protection 
of Property Owned or Occupied by the Department of Homeland Security 
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, 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), (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). When a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(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) 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/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 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), (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 the 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.
    (i) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: June 8, 2017.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2017-12253 Filed 6-13-17; 8:45 am]
BILLING CODE 9110-9B-P