E8-24741. Privacy Act of 1974; Department of Homeland Security Grievances, Appeals, and Disciplinary Action Records System of Records

AGENCY:

Privacy Office; DHS.

ACTION:

Notice of Privacy Act system of records.

SUMMARY:

In accordance with the Privacy Act of 1974 and as part of the Department of Homeland Security's ongoing effort to review and update legacy system of record notices, the Department of Homeland Security proposes to consolidate four legacy record systems: Treasury/CS.077 Disciplinary Action Grievance and Appeal Case Files, October 18, 2001, Treasury/CS.159 Notification of Personnel Management Division When an Employee is Placed Under Investigation by the Office of Internal Affairs, October 18, 2001, FEMA/NETC-3 Records of Alleged Misconduct of Students Attending Training Courses at the National Emergency Training Center, September 7, 1990, and FEMA/PER-1 Grievance Records, September 7, 1990, into one Department of Homeland Security-wide system of records. The Department of Homeland Security also proposes to partially consolidate Treasury/USSS.002 Chief Counsel Record System, August 28, 2001, into this system. This system will allow the Department of Homeland Security to document all current and former Department of Homeland Security personnel who have been the subject of proposed or final disciplinary action, have filed a grievance or appeal, or have been suspected of misconduct. Categories of individuals, categories of records, and the routine uses of these legacy systems of records notices have been consolidated and updated to better reflect the Department's grievances, appeals, and disciplinary action record systems. DHS is issuing a Notice of Proposed Rulemaking (NPRM) concurrent with this SORN elsewhere in the Federal Register. The exemptions for the legacy system of records notices will continue to be applicable until the final rule for this SORN has been completed. This consolidated system, titled Grievances, Appeals, and Disciplinary Action, will be included in the Department's inventory of record systems.

DATES:

Submit comments on or before November 17, 2008. This new system will be effective November 17, 2008.

ADDRESSES:

You may submit comments, identified by docket number DHS-2008-0012 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone].
• Mail: Hugo Teufel III, 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 rulemaking. 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:

I. 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) and its components and offices have relied on preexisting Privacy Act systems of records notices for the collection and maintenance of records concerning files relating to employee grievances, appeals, and disciplinary action.

As part of its efforts to streamline and consolidate its Privacy Act record systems, DHS is establishing a new agency-wide system of records under the Privacy Act (5 U.S.C. 552a) for DHS grievances, appeals, and disciplinary actions. This will ensure that all components of DHS follow the same privacy rules for collecting and maintaining grievances, appeals, and disciplinary action records. DHS will use this system to collect and maintain records submitted to it by DHS personnel and others.

In accordance with the Privacy Act of 1974 and as part of DHS's ongoing effort to review and update legacy system of record notices, DHS proposes to consolidate four legacy record systems: Treasury/CS.077 Disciplinary Action Grievance and Appeal Case Files (66 FR 52984 October 18, 2001), Treasury/CS.159 Notification of Personnel Management Division When an Employee is Placed Under Investigation by the Office of Internal Affairs (66 FR 52984 October 18, 2001), FEMA/NETC-3 Records of Alleged Misconduct of Students Attending Training Courses at the National Emergency Training Center (55 FR 37182 September 7, 1990) and FEMA/PER-1 Grievance Records (55 FR 37182 September 7, 1990) into one DHS-wide system of records. DHS also proposes to partially consolidate Treasury/USSS.002 Chief Counsel Record System (66 FR 45362 August 28, 2001) into this system. This system will allow DHS to document all current and former DHS personnel who have been the subject of proposed or final disciplinary action, have filed a grievance or appeal, or have been suspected of misconduct. Categories of individuals, categories of records, and the routine uses of these legacy system of records notices have been consolidated and updated to better reflect the Department's grievances, appeals, and disciplinary action record systems. DHS is issuing a Notice of Proposed Rulemaking (NPRM) concurrent with this SORN elsewhere in the Federal Register. The exemptions for the legacy system of records notices will continue to be applicable until the final rule for this SORN has been completed. This consolidated system, titled Grievances, Appeals, and Disciplinary Action, will be included in the Department's inventory of record systems.

II. 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 for which information is retrieved by the name of an 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 United States citizens and legal permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to 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 that each agency publish in the Federal Register a description denoting the type and character of each system of records in order to make agency recordkeeping practices transparent, to notify individuals about the use of their records, and to assist the individual to more easily find files within the agency. Below is a description of the Grievances, Appeal, and Disciplinary Action System of Records.

In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.

System of Records:

DHS/ALL-018.

System name:

Department of Homeland Security Grievances, Appeals, and Disciplinary Action Records.

Security classification:

Unclassified.

System location:

Records are maintained at several Headquarters locations and in component offices of DHS, in both Washington, DC and field locations.

Categories of individuals covered by the system:

All current and former DHS personnel about whom disciplinary action has been proposed or has occurred, personnel who have filed grievances and/or appeals, and personnel suspected of misconduct.

Categories of records in the system:

Categories of records in this system include:

• Individual's name;
• Social security number;
• Addresses;
• Restriction letters;
• Reprimands;
• Suspensions;
• Adverse actions;
• Grievances;
• Appeals;
• Correspondence;
• Management requests for assistance;
• Evidentiary materials on which action is contemplated, proposed or taken;
• Regulatory materials;
• Reports of investigation into alleged employee misconduct; and
• Examiners' reports.

Authority for maintenance of the system:

5 U.S.C. 301; the Federal Records Act, 44 U.S.C. 3101; the Homeland Security Act of 2002, Public Law 107-296; and Executive Order 9373.

Purpose(s):

The purpose of this system is to document all current and former DHS personnel who have been the subject of proposed or final disciplinary action, have filed a grievance or appeal, or have been suspected of misconduct.

Routine uses of records maintained in the system, including categories of users and the purposes of such uses:

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

A. To the Department of Justice (including United States Attorney Offices) or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:

1. DHS or any component thereof;

2. Any employee of DHS in his/her official capacity;

3. Any employee of DHS in his/her individual capacity where the Department of Justice or DHS has agreed to represent the employee; or

4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.

B. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.

C. To appropriate agencies, entities, and persons when:

1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;

2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual who relies upon the compromised information; and

3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

D. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.

E. To an appropriate Federal, State, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.

F. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.

G. To the Office of Personnel Management, the Merit Systems Protection Board, Federal Labor Relations Authority, or the Equal Employment Opportunity Commission when requested in the performance of their authorized duties.

H. To any source or potential source from which information is requested in the course of an investigation concerning the retention of an employee or other personnel action (other than hiring), or the retention of a security clearance, contract, grant, license, or other benefit, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.

I. To an appropriate Federal, State, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit and when disclosure is appropriate to the proper performance of the official duties of the person making the request.

J. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.

Disclosure to consumer reporting agencies:

None.

Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:

Storage:

Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.

Retrievability:

Data may be retrieved alphabetically by individual's name.

Safeguards:

Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.

Retention and disposal:

Records are destroyed no sooner than 2 years but no later than 7 years after a case is closed, in accordance with National Archives and Records Administration General Records Schedule 1, Civilian Personnel Records, Item 30, and General Records Schedule 18, Security and Protective Services, Item 11.

System Manager and address:

For Headquarters and components of DHS, the System Manager is the Director of Departmental Disclosure, Department of Homeland Security, Washington, DC 20528. For components of DHS, the System Manager can be found at http://www.dhs.gov/​foia under “contacts.”

Notification procedure:

Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Headquarters' or component's FOIA Officer, whose contact information can be found at http://www.dhs.gov/​foia under “contacts.” If an individual believes more than one component maintains Privacy Act records concerning him or her the individual may submit the request to the Chief Privacy Officer, Department of Homeland Security, 245 Murray Drive, SW., Building 410, STOP-0550, Washington, DC 20528.

When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Director, Disclosure and FOIA, http://www.dhs.gov or 1-866-431-0486. In addition you should provide the following:

• An explanation of why you believe the Department would have information on you,
• Identify which component(s) of the Department you believe may have the information about you,
• Specify when you believe the records would have been created,
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records,
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.

Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.

Record access procedures:

See “Notification procedure” above.

Contesting record procedures:

See “Notification procedure” above.

Record Source Categories:

Information originates within DHS and its components, supervisors, union representatives, and employees who submit a grievance or appeal.

Exemptions claimed for the system:

The Secretary of Homeland Security has exempted this system from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In additional, the Secretary of Homeland Security has exempted this system from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), (I), and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (2), (3) and (5).

Dated: October 7, 2008.

Hugo Teufel III,

Chief Privacy Officer, Department of Homeland Security.