FEMA SAR Privacy Exemption NPRM

Yesterday I wrote about a new Privacy Act system of records being established by the Federal Emergency Management Administration (FEMA) to support that agency’s implementation of the Department of Homeland Security’s ‘See Something Say Something’ program. Today, FEMA published in the Federal Register (76 FR 60387-60388) the notice of proposed rulemaking (NPRM) that I mentioned in that posting proposing the standard law enforcement Privacy Act exemptions for disclosure of personal information be applied to this new system of records.

Generally the Privacy Act provides that if a Federal government agency is keeping personal information on an individual that agency has a responsibility for notifying the individual of that record keeping, allowing the individual access to the information in those records, and providing a method for the individual to correct any incorrect information in that record.

The Privacy Act provides guidance on when those rules may legitimately be ignored by Federal agencies upon notice of proposed rulemaking. One of the typical examples is for records maintained for law enforcement or national security related investigations. Obviously law enforcement and intelligence type agencies cannot be forced to disclose information obtained in the process of an investigation while that investigation is on-going; that would allow subjects of investigation to better hide their illegal activities.

This NPRM is proposing that the FEMA Suspicious Activity Reporting system of records be exempted from four specific requirements related to the processing of requests for information under the Privacy Act. Those exemptions would be applied on a case-by-case basis when such requests are received by FEMA. Those exemptions cover:

• Accounting for disclosure of information to other Federal, State and local investigational agencies;

• Allowing individuals access to personal information being held about them in the system of records;

• Justifying the relevancy and necessity of the information being held in the system of records; and

• Maintaining rules and procedures for allowing access to the information being exempted.

As with all NPRM’s, public comments are being solicited. Comments may be posted to the Federal eRulemaking Portal (www.regulations.gov; Docket Number: DHS-2011-0091) and need to be submitted by October 31, 2011.