E8-14678. Office of Inspector General; Privacy Act of 1974; System of Records

AGENCY:

Office of Inspector General, U.S. Election Assistance Commission.

ACTION:

Notice of Privacy Act system of records.

SUMMARY:

The U.S. Election Assistance Commission Office of Inspector General is establishing a new system or records, “Office of Inspector General Investigative Records,” subject to the Privacy Act of 1974, as amended. The new system of records is necessary to fulfill the duties of the Office of Inspector General, including, but not limited to (1) investigations of complaints; investigations of cases referred to OIG; and reports and correspondence in conjunction with any such investigation.

DATES:

Effective Date: The proposed amendments will be effective without further notice on July 30, 2008 unless comments received require a contrary determination.

ADDRESSES:

Send written comments to Curtis Crider, Inspector General, Office of Inspector General, 1225 New York Avenue, NW., Suite 1100, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT:

Curtis Crider, Inspector General [phone].

SUPPLEMENTARY INFORMATION:

5 U.S.C. 552a(e)(4) and (11) provides that the public be afforded a 30-day period in which to comment on this creation of a system of records. Additionally, a copy of this notice has been submitted to the Committee on Government Reform of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to 5 U.S.C. 552a(r).

The Office of Inspector General Investigative Files consists of paper records maintained in folders, binders and logbooks; and various records in electronic form. The folders, binders and logbooks are stored in the Office of Inspector General's file cabinets and offices. The electronic records are maintained on a file server and backup tapes. The records are retrieved by the name of the subject of the investigation or inquiry, Records are only accessible to OIG staff authorized to review such records and only for the purpose of performing investigations.

System name:

Office of Inspector General (OIG) Investigative Records.

Security Classification:

Records in this system are sensitive but unclassified.

System location:

Office of Inspector General, EAC, 1225 New York Avenue, Suite 150, Washington DC 20005.

Categories of individuals covered by the system:

Subjects of investigation, complainants, and witnesses referred to in complaints or actual investigative cases, reports, accompanying documents, and correspondence prepared by, compiled by, or referred to the OIG.

Categories of records in the system:

The system is comprised of paper and electronic files of OIG investigative reports, correspondence, cases, matters, cross-indices, memoranda, materials, legal papers, evidence, exhibits, data, and workpapers pertaining to all closed and pending investigations and inspections.

Authority for maintenance of the system:

The Inspector General Act of 1978, as amended, 5 U.S.C. App.3.

Purpose:

These records are used to document the conduct and outcome of inquiries, complaints, and investigations concerning allegations of fraud, waste, and abuse that affect the EAC. The information is used to report the results of investigations to EAC management, contractors, grantees, prosecutors, law enforcement agencies, Congress, and others for an action deemed appropriate. These records are used also to retain sufficient information to fulfill reporting requirements and to maintain records related to the OIG's activities.

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

Information from this system of records may be disclosed:

1. To any other Federal agency or any foreign, State, tribal, or local government agency responsible for enforcing, investigating, or prosecuting violations of administrative, civil, or criminal law or regulation where that information is relevant to an enforcement proceeding, investigation, or prosecution within the agency's jurisdiction.

2. To (1) The Department of Justice in connection with requests for legal advice and in connection with actual or potential criminal prosecutions or civil litigation pertaining to the Office of Inspector General, and (2) a Federal or State grand jury, a Federal or State court, administrative tribunal, opposing counsel, or witnesses in the course of civil or criminal proceedings pertaining to the Office of Inspector General.

3. To a Federal, State, tribal, or local agency maintaining civil, criminal or other relevant enforcement records or other pertinent records, such as current licenses, if necessary to obtain a record relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a license, grant or other benefit.

4. To a Federal agency in response to its request in connection with 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 by the requesting agency, to the extent that the record is relevant and necessary to the requesting agency's decision on the matter.

5. To the news media and general public where there exists a legitimate public interest, e.g., to provide information on events in the criminal process, such as indictments, and where necessary, for protection from imminent threat to life or property.

6. To Federal agencies' issuing a subpoena, such as the Internal Revenue Service.

7. To independent auditors or other private firms with which the Office of the Inspector General has contracted to carry out an independent audit or investigation, or to collate, aggregate, or otherwise refine data collected in the system or records. These contractors will be required to maintain Privacy Act safeguards with respect to such records.

8. In the course of employee discipline of competence determination proceedings.

9. To a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual.

10. To the Department of Justice, to a judicial or administrative tribunal, opposing counsel, and witnesses, in the course of proceedings involving EAC, an EAC employee (where the matter pertains to the employee's official duties), or the United States, or any agency thereof where the litigation is likely to affect EAC or EAC is a party or has an interest in the litigation and the use of the information is relevant and necessary to the litigation.

11. To a Federal, State, tribal or local agency maintaining pertinent records, if necessary, to obtain a record relevant to a Commission decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.

12. To third party contacts, including public and private organizations, in order to obtain information relevant and necessary to the investigation of potential violations in EAC programs and operations, or where disclosure would enable the OIG to identify violations in EAC programs or operations or otherwise assist the OIG in pursuing on-going investigations.

13. To any official charged with the responsibility to conduct qualitative assessment reviews of internal safeguards and management procedures employed in investigative operations. This disclosure category includes members of the President's Council on Integrity and Efficiency and the Executive Council on Integrity and Efficiency including officials and administrative staff within their investigative chain of command, as well as authorized officials of the Department of Justice and the Federal Bureau of Investigation. Recipients shall be required to comply with the requirements of the Privacy Act.

14. To a contractor, grantee or other direct recipient of federal funds to allow such entity to effect corrective action in agency's best interest. A record from a system of records may be disclosed, as a routine use, to any direct or indirect recipient of federal funds where such record reflects serious inadequacies with a recipient's personnel, and disclosure of the record is made to permit a recipient to take corrective action beneficial to the Government.

15. To a board of contract appeals, GAO or any other entity hearing a contractor protest or dispute. A record from a system of records may be disclosed, as a routine use, to the United States General Accounting Office, to a board of contract appeals, or to the claims court in bid protest cases or contract dispute cases involving procurement.

16. To OMB or DOJ regarding Freedom of Information Act and Privacy Act advice. Information from a system of records may be disclosed, as a routine use, to the Office of Management and Budget or the Department of Justice in order to obtain advice regarding statutory or other requirements under the Freedom of Information Act or Privacy Act.

17. To the White House in response to an inquiry made at the written request of the individual about whom the record is maintained. Disclosure will not be made until the White House has furnished appropriate documentation of the individual's request, such as a copy of the individual's written request.

18. To a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the written request of the individual about whom the record is maintained. Disclosure will not be made until the Congressional office has furnished appropriate documentation of the individual's request, such as a copy of the individual's written request.

19. To the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2903 and 2904.

20. To agency or OIG contractors (including employees of contractors), grantees, experts, or volunteers who have been engaged to assist the agency or OIG in the performance of a contract, service, grant, cooperative agreement, or other activity related to this system of records and who need to have access to the records in order to perform the activity for the agency or OIG. Recipients shall be required to comply with the requirements of the Privacy Act.

21. To officials who have been engaged to assist the Office of Inspector General in the conduct of inquiries, complaints, and investigations who need to have access to the records in order to perform the work. This disclosure category includes members of the President's Council on Integrity and Efficiency and the Executive Council on Integrity and Efficiency, and officials and administrative staff within their chain of command. Recipients shall be required to comply with the requirements of the Privacy Act.

22. To the Office of Personnel Management for matters concerned with oversight activities (necessary for the Office of Personnel Management to carry out its legally-authorized Government-wide personnel management programs and functions) and in their role as an investigation agency.

23. To debt collection contractors to collect debts owed to the Government, as authorized under the Debt Collection Act of 1982, 31 U.S.C. 3718, and subject to the Privacy Act safeguards.

24. To appropriate agencies, entities, and persons when (1) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Commission 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 the Commission or another agency or entity) that rely upon the compromised information; and (3) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

Disclosure To Consumer Reporting Agencies:

We may disclose the record or information from this system, pursuant to 5 U.S.C. 552a(b)(12), to consumer reporting agencies as defined in the Fair Credit Reporting Act, 15 U.S.C. 1681a(f) or the Federal Claims Collection Act of 1966, as amended, 31 U.S.C. 3701(a)(3), in accordance with section 3711(f) of Title 31.

Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:

Storage:

Records are stored in both a paper and electronic format.

Retrievability:

The records may be retrieved by the name of the subject of the complaint/ investigation or by a unique control number assigned to each complaint/ investigation.

Safeguards:

Access is limited to Office of Inspector General employees whose official duties require access. The paper records and electronic information not stored on computers are maintained in lockable cabinets. Information stored on computers is on a server located in a locked room. All electronic records are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include the application of appropriate access control mechanisms to ensure the confidentiality, integrity, and availability of those records are only accessed by those with a need to know and dictated by their official duties.

Retention and Disposal:

These records will be maintained permanently until disposition authority is granted by the National Archives and Records Administration. Upon approval, the records will be retained in accordance with NARA's schedule and disposed of in a secure manner.

System manager(s) and address:

Inspector General, Office of Inspector General, EAC, 1225 New York Avenue, Suite 150, Washington, DC 20005.

Notification procedure:

The OIG Investigative Files are generally exempt pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Any individual who wants to know whether this system of records contains a record about him or her, who wants access to his or her record, or who wants to contest the contents of a record, should make a written request to the System Manager. Requesters will be required to provide adequate identification, such as a driver's license, employee identification card, or other identifying document. Additional identification procedures may be required in some instances.

Record access procedures:

Same as “Notification procedure.”

Contesting record procedures:

Same as “Notification procedure.”

Record source categories:

The OIG collects information from many sources, including the subject individuals, employees of the EAC, other government employees, and witnesses and informants, and non-governmental sources.

Systems Exempted from Certain Provisions of the Act:

(a) Criminal Law Enforcement: Information compiled for this purpose is exempt from all of the provisions of the Act except the following sections: (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i). This material is exempt because the disclosure and other requirements of the Act would substantially compromise the efficacy and integrity of OIG operations in a number of ways. Indeed, disclosure of even the existence of these files would be problematic.

Disclosure could enable suspects to take action to prevent detection of criminal activities, conceal evidence, or escape prosecution. Required disclosure of information contained in this system could lead to the intimidation of, or harm to, informants, witnesses and their respective families or OIG personnel and their families.

Disclosure could invade the privacy of individuals other than subjects and disclose their identity when confidentiality was promised to them. Disclosures from these files could interfere with the integrity of other information which would otherwise be privileged, see, e.g., 5 U.S.C. 552(b)(5) and which could interfere with other important law enforcement concerns, see, e.g., 5 U.S.C. 552(b)(7).

The requirement that only relevant and necessary information be included in a criminal investigative file is contrary to good investigative practices which require a full and complete inquiry and exhaustion of all potential sources of information. 5 U.S.C. 552a(e)(1). Similarly, maintaining only those records which are accurate, relevant, timely and complete and which assure fairness in a determination is contrary to established investigative techniques. 5 U.S.C. 552a(e)(5). Requiring investigators to obtain information to the greatest extent practicable directly from the subject individual would be counterproductive to performance of a clandestine criminal investigation. 5 U.S.C. 552a(e)(2). Finally, providing notice to an individual interviewed of the authority of the interviewer, the purpose to which the information provided may be used, the routine uses of that information and the effect upon the individual should he choose not to provide the information sought could discourage the free flow of information in a criminal law enforcement inquiry 5 U.S.C. 552a(e)(3).

(b) Other Law Enforcement: In accordance with 5 U.S.C. 552a(k)(2), investigatory material compiled for law enforcement purposes (to the extent it is not already exempted by 5 U.S.C. 552a(j)(2)), is exempted from the following provisions of the ACT: (c)(3), (d), (e)(1), (e)(4)(G), (H), (I) and (f). This material is exempt because the disclosure and other requirements of the act could substantially compromise the efficacy and integrity of OIG operations. Disclosure could invade the privacy of other individuals and disclose their identity when they were expressly promised confidentiality.

Disclosure could interfere with the integrity of information which would otherwise be subject to privileges, see, e.g., 5 U.S.C. 552(b)(5), and which could interfere with other important law enforcement concerns. See, e.g., 5 U.S.C. 552(b)(7).

Signed:

Curtis Crider,

Inspector General, U.S. Election Assistance Commission.