E9-5596. Privacy Act of 1974; System of Records

AGENCY:

Department of Veterans Affairs.

ACTION:

Notice of amendment to an existing system of records.

SUMMARY:

The Privacy Act of 1974 (5 U.S.C. 552(e)(4)) requires that all agencies publish in the Federal Register a notice of the existence and character of their systems of records. Notice is hereby given that the Department of Veterans Affairs (VA) is amending the system of records entitled “Litigant, Tort Claimant, EEO Complainant and Third Party Recovery Files—VA” (16VA026) as set forth in full in the Federal Register on January 13, 1982 [47 F.R. 1463]. This system was subsequently amended in the Federal Register on April 25, 1983 [48 F.R. 17687] to add several new routine uses.

VA is amending the system by revising the routine uses of records maintained in the system, combining three existing uses into one, deleting five old routine uses, and adding five new routine uses. The name of system of records is being changed to “Litigation Files—VA” to more closely encompass the complete scope of matters handled in VA litigation and administrative investigations carried out by OGC attorneys. This system contains records of Merit System Protection Board (MSPB) and Federal Labor Relations Authority (FLRA) disputes, contract litigation, Privacy Act and Freedom of Information Act litigation at the appellate level as well as EEO disputes, torts, and third party litigation. VA is republishing the system notice in its entirety.

DATES:

Interested persons are invited to submit comments, suggestions, or objections regarding these changes. To assure consideration, written comments on this revised system of records must be postmarked no later than April 15, 2009, and written comments hand delivered to the Department and comments submitted electronically must be received as provided below, no later than 5 p.m. Eastern Time on April 15, 2009. If no public comment is received, the system will become effective April 15, 2009.

ADDRESSES:

Written comments may be submitted through http://www.Regulations.gov;​; by mail or hand-delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to [phone]; or e-mail to “[e-mail].” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call [phone] for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS).

FOR FURTHER INFORMATION CONTACT:

Susan Sokoll, Privacy Officer, [phone], Office of the General Counsel (026H), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

SUPPLEMENTARY INFORMATION:

The system of records, “Litigation Files—VA” (16VA026), was amended and published in full January 13, 1982, at 47 Federal Register 1460. A subsequent amendment on April 25, 1983, at 48 Federal Register 17687, involved publication of proposed new routine uses.

I. Description of the System of Records

The VA Litigation Files contain the working files for OGC attorneys representing the agency in cases involving torts, contracts, personnel and labor issues, patents, real and intellectual property, Veterans' benefits and claims, and administrative investigations.

II. Proposed Amendments to Routine Use Disclosures of Data in the System

VA is amending, deleting, rewriting and reorganizing the order of the routine uses in this system of records. Accordingly, the following changes are made to the current routine uses and are incorporated into the amended system of records notice.

Current routine uses 2 through 4 are being combined and revised into new routine use 4. This routine use is amended to more accurately reflect the conditions under which VA, on its own initiative, may disclose information from this system of records for law enforcement purposes.

New routine use number 2 is being added to authorize disclosure to the National Archives and Records Administration and the General Services Administration in records management inspections conducted under authority of Title 44, Chapter 29, of the United States Code.

New routine use 3 is added to reflect VA's authorization to disclose individually-identifiable information to contractors or other entities that will provide services to VA for which the recipient needs that information in order to perform the services.

Current routine uses 5 through 8 are maintained as they are. In determining whether to disclose records under this routine use, VA will comply with the guidance promulgated by the Office of Management and Budget (OMB) in a May 24, 1985, memorandum entitled “Privacy Act Guidance—Update” currently posted at http://www.whitehouse.gov/​omb/​inforeg/​guidance1985.pdf.

VA is adding a new routine use 9 that authorizes the circumstances, and to whom, VA may disclose records in order to respond to, and minimize possible harm to, individuals as a result of a data breach. This routine use is promulgated in order to meet VA's statutory duties under 38 U.S.C. 5724 and the Privacy Act, 5 U.S.C. 552a, as amended.

VA is moving existing routine use 9 to routine use 12. This routine use allows VA to disclose information to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, or for other functions of the Commission as authorized by law or regulation.

VA is adding new routine use 11 to disclose information to the Merit Systems Protection Board or the Office of Special Counsel, where officials of those agencies determine, or VA determines the disclosure is necessary to perform duties imposed by 5 U.S.C. Sections 1205 and 1206, or as may be authorized by law.

VA is adding new routine use 13 to disclose information to the Federal Labor relations Authority, where officials of those agencies determine, or VA determines the disclosure is necessary to perform duties imposed by the enabling statutes and legislation of that agency.

Existing routine uses 11 through 15 have been eliminated as they no longer are legally valid.

III. Compatibility of the Proposed Routine Uses

Release of information from these records, pursuant to routine uses, will be made only in accordance with the provisions of the Privacy Act of 1974. The Privacy Act of 1974 permits agencies to disclose information about individuals, without their consent, for a routine use when the information will be used for a purpose for which the information was collected. VA has determined that the disclosure of information for the above purposes in the proposed amendment to routine uses is a proper and necessary use of the information collected by the Litigation Files.

The report of intent to publish and an advance copy of the system notice have been sent to the appropriate Congressional committees and to the Director of the Office of Management and Budget (OMB) as required by 5 U.S.C. 552a(r) (Privacy Act) and guidelines issued by OMB (65 FR 77677), December 12, 2000.

Approved: February 24, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

SYSTEM NAME:

Litigation Files—VA (16VA026).

SYSTEM LOCATION:

The system of records is located in the Office of the General Counsel, Professional Staff Group VI (026), U.S. Department of Veterans Affairs (VA), 810 Vermont Avenue, NW., Washington, DC 20420.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

The following categories of individuals are covered by this system: (1) Veterans; (2) their beneficiaries and their dependents; (3) VA employees; (4) insurance companies; (5) business entities; (6) Veteran Service Organizations; (7) attorneys representing litigants; and (8) other litigants.

CATEGORIES OF RECORDS IN THE SYSTEM:

Records (or information contained in records) may include (1) pleadings; (2) opinions; (3) briefs; (4) decisions; (5) evidentiary and nonevidentiary matter relating to a case or controversy in an administrative or litigation proceeding.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

42 U.S.C. 2651 et seq.; 31 U.S.C. 3911; 28 U.S.C. 1346; 29 CFR 1600-1699; 38 U.S.C. 311.

PURPOSE(S):

This system stores VA litigation and administrative investigations managed by Office of General Counsel, other than Veterans' appeals before the U.S. Court of Appeals for Veterans Claims, from the date of closure of the case to the final expiration of the period during which an appeal could be filed.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEMS, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

1. VA may disclose information to a congressional office in response to an inquiry from the congressional office on behalf of and at the request of that individual.

2. VA may disclose information to the National Archives and Records Administration (NARA) and to the General Services Administration (GSA) as required complying with statutory requirements to disclose information to NARA and GSA for them to perform their statutory records management activities and inspections under authority of title 44, Chapter 29, of the United States Code.

3. VA may disclose information to individuals, organizations, private or public agencies, other entities with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor, subcontractor, public or private agency, or other entity or individuals with whom VA has contract or agreement. This routine use includes disclosures by the individual or entity performing the service for VA to any secondary entity or individual to perform an activity that is necessary for individuals, organizations, private or public agencies, or other entities or individuals with whom VA has a contract or agreement to provide the service to VA.

4. VA may disclose on its own initiative any information in this system, except the names, home addresses or other personally identifiable information of Veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal or regulatory in nature and whether arising by general or program statute or by regulation, rule or order issued pursuant thereto, to a Federal State, local, tribal, or foreign agency charged with the responsibility of investigating or prosecuting such violation, or charged with enforcing or implementing the statute, regulation, rule, or order. On its own initiative, VA may also disclose the names and addresses of Veterans and their dependents to a Federal agency charged with the responsibility of investigating or prosecuting civil, criminal or regulatory violations of law, or charged with enforcing or implementing the statute, regulation, rule or order issued pursuant thereto.

5. Pleadings, opinions, briefs, decisions and evidentiary and nonevidentiary matters may be disclosed to a Federal agency upon its official request to enable that agency to properly prepare a particular case or controversy regarding an administrative claim filed under the Federal Tort Claims Act or a debt collection proceeding under the Federal Medical Care Recovery Act.

6. Pleadings, opinions, briefs, decisions and evidentiary and nonevidentiary matter may be disclosed to a Federal agency to enable the VA to obtain records necessary for the VA to properly prepare a particular case or controversy under the Federal Tort Claims Act or a proceeding under the Federal Medical Care Recovery Act.

7. Pleadings, opinions, briefs, decisions and evidentiary and nonevidentiary matter may be disclosed to a Federal or a State court to enable the VA to file pleadings, comply with rules and procedures of the court, or to respond to a request from the court in any case or controversy.

8. Pleadings, opinions, briefs, decisions and matters of evidentiary and nonevidentiary matter may be disclosed to a Federal, State, local, or foreign agency, insurance carriers, other individuals from whom the VA is seeking reimbursement and other parties litigant or having an interest in administrative, prelitigation, litigation and post-litigation phases of a case or controversy, provided, that the name and address of a Veteran can only be disclosed under this routine use if the release is for a VA debt collection proceeding, or if the name and address has been provided to the VA by the party seeking the information.

9. VA may, on its own initiative, disclose any information or records to appropriate agencies, entities, or persons when (1) VA suspects or has confirmed that the integrity 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 embarrassment or harm to the reputation of the record subjects, harm to economic or property interests, identity theft or fraud, or harm to the security, confidentiality, or integrity of this system or other systems of programs (whether maintained by the Department or another agency or entity) that rely upon potentially compromised information; and (3) the disclosure is to agencies, entities, or persons whom VA determines are reasonably necessary to assist or carry out the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. This routine use permits disclosures by the Department to respond to a suspected or confirmed data breach, including the provision of credit protection services or any risk analysis services when necessary to respond to, and if necessary, mitigate damages that might arise from a data breach involving data covered by this system of records.

10. VA may provide Department of Justice (DoJ) with information needed to represent the United States in litigation. VA may also disclose the information for this purpose in proceedings in which DoJ is not representing the Agency.

11. VA may disclose information to officials of the Merit Systems Protection Board or the Office of Special Counsel when requested in connection with appeals, special studies of the civil service and other merit systems, review of rules and regulations, investigation of alleged or possible prohibited personnel practices, and such other functions promulgated in Title 5, United States Code, Sections 1205 and 1206, or as may be authorized by law.

12. VA may disclose information to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, compliance with the Uniform Guidelines of Employee Selection Procedures, or for other functions vested in the Commission as authorized by law or regulation.

13. VA may disclose to the Federal Labor Relations Authority (including its General Counsel) information related to the establishment of jurisdiction, the investigation and resolution of allegations of unfair labor practices, or information in connection with the resolution of exceptions to arbitration awards when a question of material fact is raised; to disclose information in matters properly before the Federal Services Impasses Panel, and to investigate representation petitions and conduct or supervise representation elections.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

Records are maintained in individual file folders organized by the OGC Professional Staff Group (PSG) handling the litigation.

RETRIEVABILITY:

The individual litigation folders are sorted by the OGC Professional Staff Group (PSG) handling the matter. Within each PSG section the records are maintained in alphabetical order by last name of an individual, business or organization involved in the litigation.

SAFEGUARDS:

Records are maintained in a manned room during working hours. During nonworking hours, the file area is locked, and the building is protected by the Federal Protective Service. Access to the records is only authorized to VA personnel on a “need to know” basis.

RETENTION AND DISPOSAL:

Upon completion of a case, except for precedent-setting cases (which are maintained permanently), records are treated as follows:

In Central Office, litigation files other than EEO records are maintained in the OGC Docket Room for two years, retired to the Washington National Federal Records Center for four years and then destroyed. EEO complainant records are maintained in the OGC Docket Room for four years, and then destroyed.

In Regional Counsel Offices, litigation files other than EEO records are maintained in the respective Regional Counsel Office for six years, and then destroyed. EEO complainant records are maintained in the Regional Counsel Office for four years, then destroyed. A Regional Counsel Office may choose to transfer records to the VA Records Center and Vault in Neosho, MO.

SYSTEM MANAGER(S) AND ADDRESS(ES):

Assistant General Counsel, Professional Staff Group VI (026), Office of General Counsel, United States Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

NOTIFICATION PROCEDURE:

An individual who wishes to determine whether a record is being maintained in this system under his or her name or other personal identifier, or wants to determine the contents of such record, should submit a written request to the Assistant General Counsel, Professional Staff Group VI (026), Office of General Counsel, U.S. Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Such requests must contain a reasonable description of the records requested. All inquiries must reasonably identify the information involved and should include the individual's full name, return address, and telephone number.

RECORD ACCESS PROCEDURES:

Individuals, businesses or organizations seeking information regarding access to VA information maintained by the Office of General Counsel Central Office or Regional Counsel Offices may send a request by mail to the Assistant General Counsel, Professional Staff Group VI (026), Office of the General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

CONTESTING RECORD PROCEDURES:

Individuals, businesses or organizations seeking information regarding access to VA information maintained by the Office of General Counsel Central Office or Regional Counsel Offices may send a request by mail to the Assistant General Counsel, Professional Staff Group VI (026), Office of the General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

RECORDS SOURCE CATEGORIES:

Courts, Veterans, beneficiaries and dependents of Veterans, litigants and their attorneys, Federal and state agencies, insurance carriers, witnesses, or any other interested participants to the proceedings.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.