[Federal Register: October 31, 2008 (Volume 73, Number 212)]
[Proposed Rules]
[Page 64889-64890]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc08-20]
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Proposed Rules
Federal Register
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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.
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[[Page 64889]]
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 5
[Docket No. DHS-2008-0115]
Privacy Act of 1974: Implementation of Exemptions; United States
Coast Guard Courts Martial Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent
notice of a revised and updated system of records pursuant to the
Privacy Act of 1974 for the Department of Homeland Security/United
States Coast Guard Courts Martial 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 December 1, 2008.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0115, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, 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 questions and privacy
issues, please contact: Hugo Teufel III (703-235-0780), Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528.
SUPPLEMENTARY INFORMATION:
Background: Pursuant to the savings clause in the Homeland Security
Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November
25, 2002), the Department of Homeland Security (DHS)/United States
Coast Guard (USCG) have relied on preexisting Privacy Act systems of
records notices for the collection and maintenance of records
pertaining to courts martial records regarding USCG military personnel.
As part of its efforts to streamline and consolidate its record
systems, DHS is establishing a component system of records under the
Privacy Act (5 U.S.C. 552a) for USCG that deals with courts martial
records. This records system will allow DHS/USCG to collect and
maintain records regarding military justice administration and the
documentation of DHS/USCG courts martial. In this notice of proposed
rulemaking, DHS now is proposing to exempt DHS/USCG Courts Martial
Records, in part, from certain provisions of the Privacy Act.
The Privacy Act embodies fair information principles in a statutory
framework governing the means by which the United States Government
collects, maintains, uses, and disseminates 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. Individuals may
request their own records that are maintained in a system of records in
the possession or under the control of DHS by complying with DHS
Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the Federal
Register a description of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system in order to make agency recordkeeping
practices transparent, to notify individuals regarding the uses of
their records, and to assist individuals in finding such files within
the agency.
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/USCG Courts Martial Records. Some information in DHS/USCG
Courts Martial Records relates to official DHS national security, law
enforcement, and intelligence activities. These exemptions are needed
to protect information relating to DHS/USCG activities from disclosure
to subjects or others related to these activities. Specifically, 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/
USCG'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.
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 on a case
by case basis.
A notice of system of records for DHS/USCG Courts Martial 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:
[[Page 64890]]
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.
Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to Part 5, Exemption of Record
Systems under the Privacy Act, the following new paragraph ``12'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
12. The Department of Homeland Security/United States Coast
Guard Courts Martial Records System of Records consists of
electronic and paper records and will be used by DHS/USCG. DHS/USCG
Courts Martial Records System of Records is a repository of
information held by DHS/USCG 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; and national security and intelligence
activities. DHS/USCG Courts Martial Records contains information
that is collected by, on behalf of, in support of, or in cooperation
with DHS/USCG and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies. Pursuant to exemption 5 U.S.C.
552a(j)(2) of the Privacy Act, portions of this system are exempt
from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g).
Pursuant to 5 U.S.C. 552a(k)(1) and (2) of the Privacy Act, 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), (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 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 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 an investigation, thereby interfering with
the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise investigations by: Revealing the existence
of an otherwise confidential investigation and thereby provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; or reveal the identity of confidential informants,
which would negatively affect the informant's usefulness in any
ongoing or future investigations and discourage members of the
public from cooperating as confidential informants in any future
investigations.
(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
in 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 (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' 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) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in
the system. Therefore DHS is not required to establish rules or
procedures pursuant to which individuals may seek a civil remedy for
the agency's: refusal to amend a record; refusal to comply with a
request for access to records; failure to maintain accurate,
relevant timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
Dated: October 22, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-25966 Filed 10-30-08; 8:45 am]
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