2011-4353. Submission for Review: Extension of an Expiring Information Collection 3206-0165; General Request for Investigative Information (INV 40) on Employment Data and Supervisor Information (INV 41), Personal Information (INV 42), Educational ...

AGENCY:

U.S. Office of Personnel Management.

ACTION:

30-Day notice and request for comments.

SUMMARY:

The Federal Investigative Services (FIS), U.S. Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on the extension of an expiring information collection request (ICR), Office of Management and Budget (OMB) Control No. 3206-0165, for the General Request for Investigative Information (INV 40), the Investigative Request for Employment Data and Supervisor Information (INV 41), the Investigative Request for Personal Information (INV 42), the Investigative Request for Educational Registrar and Dean of Students Record Data (INV 43), and the Investigative Request for Law Enforcement Data (INV 44). As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget (OMB) is particularly interested in comments that:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected; and

4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

DATES:

Comments are encouraged and will be accepted until March 30, 2011. This process is conducted in accordance with 5 CFR 1320.1.

ADDRESSES:

Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to [e-mail] or faxed to [phone]; and Federal Investigative Services, U.S. Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415, Attention: Lisa Loss or sent via electronic mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Federal Investigative Services, U.S. Office of Personnel Management, 1900 E. Street, NW., Washington, DC 20415, Attention: Lisa Loss or sent via electronic mail to [e-mail].

SUPPLEMENTARY INFORMATION:

Section 3(a) of Executive Order (E.O.) 10450, as amended, states that with specified exceptions, “the appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to investigation,” and that “in no event shall the investigation consist of less than a national agency check * * * and written inquiries to appropriate local law enforcement agencies, former employers and supervisors, references, and schools attended by the persons under investigation.” This minimum investigation for appointment in the civil service is called the National Agency Check with Inquiries (NACI).

The INV 40, 41, 42, 43, and 44 are used to conduct the “written inquiries” portion of the NACI. They are also used in any investigation requiring the same written inquiries, including suitability investigations under E.O. 10577, as amended and 5 CFR part 731, for employment in positions defined in 5 CFR 731.101(b); investigations for employment in a sensitive national security position under E.O. 10450, as amended and 5 CFR part 732; certain investigations for eligibility for access to classified information pursuant to standards promulgated under E.O. 12968, as amended; certain investigations for fitness for employment in the excepted service or as a contract employee, pursuant to investigative requirements prescribed by employing and contracting agencies; and investigations for identity credentials for long-term physical and logical access to Federally-controlled facilities and information systems, pursuant to standards promulgated under the Federal Information Security Management Act. The INV forms 40 and 44, in particular, facilitate OPM's access to criminal history record information under 5 U.S.C. 9101.

The content of the INV forms is also designed to meet notice requirements for personnel investigations specified by 5 CFR 736.102(c). These notice requirements apply to any “investigation * * * to determine the suitability, eligibility, or qualifications of individuals for Federal employment, for work on Federal contracts, or for access to classified information or restricted areas.”

None of the forms is used for any purpose other than a personnel background investigation, as described above. The completed forms are maintained by OPM subject to the protections of the Privacy Act of 1974, as amended.

Procedurally, the subject of a personnel background investigation discloses the identity of relevant sources, such as supervisors, coworkers, neighbors, friends, current or former spouses, instructors, relatives, or schools attended, on the standard form (SF) 85, Questionnaire for Non-Sensitive Positions; the SF 85P, Questionnaire for Public Trust Positions; or the SF 86, Questionnaire for National Security Positions. After OPM receives a completed SF 85, SF 85P, or SF 86, the INV forms are distributed to the provided source contacts through an automated mailing operation.

The INV 40 is used to collect records from a Federal or State record repository or a credit bureau. The INV 44 is used to collect law enforcement data from a criminal justice agency. The INV 41, 42, and 43 are sent to employment references, associates, and schools attended. The forms disclose that the source's name was provided by the subject to assist in completing a background investigation to help determine the subject's suitability for employment or security clearance, and request that the source complete the form with information to help in this determination. Generally the subject of the investigation will identify these employment references, associates, and schools on his or her SF 85, SF 85P, or SF 86 questionnaire. If information is omitted on the questionnaire, however, the information may be provided in a follow-up contact between the subject and an investigator. By their terms, the INV 41, 42, and 43 forms are not to be sent to employment references, associates, and schools that have not been identified by the subject of the investigation.

Approximately 279,000 INV 40 inquiries are sent to Federal and non-Federal agencies annually. The INV 40 takes approximately five minutes to complete. The estimated annual burden is 23,250 hours. Approximately 2,243,000 INV 41 inquiries are sent to previous and present employers and supervisors. The INV 41 takes approximately five minutes to complete. The estimated annual burden is 186,900 hours. Approximately 1,882,000 INV 42 inquiries are sent to individuals annually. The INV 42 takes approximately five minutes to complete. The estimated annual burden is 156,800 hours. Approximately 464,000 INV 43 inquiries are sent to educational institutions annually. The INV 43 takes approximately five minutes to complete. The estimated annual burden is 38,700 hours. Approximately 1,546,000 INV 44 inquiries are sent to law enforcement agencies annually. The INV 44 takes approximately five minutes to complete. The estimated annual burden is 128,800 hours. The total number of respondents for the INV 40, INV 41, INV 42, INV 43, and INV 44 is 6,135,200 and the total estimated burden is 511,200 hours.

A notice of the proposed information collection was published in the Federal Register on February 2, 2010 (Federal Register Notices/Volume 75, Number 21, pages 5358-5359), as required by 5 CFR part 1320, affording the public an opportunity to comment on the form(s). Two (2) comments were received and are addressed as follows. The National Treasury Employees Union provided four areas of comment:

a. NTEU commented that INV 41, 42, and 43 solicit “adverse information” about the subject of the investigation that is not “relevant and necessary” to OPM's purposes. OPM believes that the forms are a reasonable means to collect information relevant to the investigations for which the forms are used. Open-ended questions are the most effective means to gather source information in an investigation, since leading questions will tend to distort responses. On January 19, 2011, the Supreme Court ruled in National Aeronautics and Space Administration v. Nelson, 131 S. Ct. 746, that the INV 42 form's “open-ended inquiries * * * are reasonably aimed at identifying capable employees who will faithfully conduct the Government's business” and that these inquiries “further the Government's interests in managing its internal operations.” 131 S. Ct. at 759, 761. The forms include instructions designed to prevent irrelevant responses. Moreover, since OPM is required by executive order to make these inquiries in connection with personnel investigations, retention of the forms in OPM's system of investigative records is consistent with Privacy Act requirements.

b. NTEU commented that the INV 41, 42, and 43 require disclosure of highly personal information that is not narrowly tailored to meet the government's needs. OPM rejects the commenter's assertion. The Supreme Court ruled in Nelson that the Government, “when it requests job-related personal information in an employment background check,” does not have “a constitutional burden to demonstrate that its questions are `necessary' or the least restrictive means of furthering its interests.” 131 S. Ct. at 760. OPM concludes that the information collection is appropriate for the investigations in which it may be used, namely investigations of suitability for Federal employment; investigations for employment in a sensitive national security position; investigations for eligibility for access to classified information; investigations for fitness for employment in the excepted service or as a contract employee; and investigations for identity credentials for long-term physical and logical access to Federally controlled facilities and information systems. Further, there are adequate protections against the unauthorized redisclosure of reports of investigation in the Privacy Act. See Nelson, 131 S. Ct. at 762-64. Additional protections are found in section 9(c) of E.O. 10450, as amended, and in agency restrictions on the release of personally identifiable information.

c. NTEU commented that the forms request information beyond that to which the employee has consented in the Authorization for Release of Information as there is no indication that information regarding general behavior and conduct will be solicited from individuals who might offer information regarding personal habits. The commenter is incorrect. The authorization is part of a questionnaire that specifically informs the subject that the investigative process is designed to develop information to show “whether you are reliable and trustworthy, and of good conduct and character.”

d. NTEU commented that the forms do not adequately explain the purpose for which the information is sought and its routine nature, and therefore allow the reference to infer that the subject is under suspicion of wrongdoing. OPM has received no evidence to support this suggestion during its longstanding use of these forms. The form instructions make clear that the form is part of a background vetting process, not part of a criminal or disciplinary proceeding.

An OPM investigator commented that the INV 44 should instruct responding law enforcement agencies to withhold traffic violations if the fine was less than $300 and did not involve alcohol or drugs, since subjects of national security investigations are not required to disclose such violations on their SF 86, Questionnaire for National Security Positions. OPM does not accept this recommendation at this time because (1) the INV 44 is used for investigations based on other investigative questionnaires (SF 85, SF 85P) which do not include exceptions for traffic violations that resulted in fines less than $300; and (2) subjecting responding law enforcement agencies to the burden of parsing such violations from their records when responding to OPM requests may deter responses or result in response errors.

OPM is proposing to modify INV forms 40, 41, and 42 to provide instruction to respondents to mark, by making a check, when the respondent requests confidentiality of his or her identity, and to call an office at OPM to receive approval of the request before completing the form. The purpose of this change is to more clearly establish the granting of confidentiality as permitted by the Privacy Act of 1974 and OPM's implementing regulations.

U.S. Office of Personnel Management.

John Berry,

Director.