01-17418. Privacy Act of 1974, System of Records

AGENCY:

Office of Special Counsel.

ACTION:

Notice of technical revisions to system of records and proposed revision of system descriptions and routine uses.

SUMMARY:

Pursuant to the provisions of the Privacy Act of 1974, 5 USC 552a, notice is given that the U.S. Office of Special Counsel (OSC) is making non-substantive technical revisions to the Privacy Act system notice for the system of records designated “OSC/GOVT-1, OSC Complaint, Litigation and Political Activity Files;” proposing to change descriptions of certain features of the system of records; and proposing the amendment of two current routine uses, and the addition of a new routine use. The affected system of records is maintained in connection with OSC program responsibilities under 5 U.S.C. 1212, et seq., and 38 U.S.C. 4324.

SUPPLEMENTARY INFORMATION:

OSC is an independent investigative and prosecutorial agency. Its responsibilities include investigation of allegations of: (a) Prohibited personnel practices under 5 U.S.C. 2302(b), and other prohibited employment practices under 5 U.S.C. 1216; (b) prohibited political activity by federal and District of Columbia employees under 5 U.S.C. 7321-7326, and by certain state and local government employees under 5 U.S.C. 1501-1508; and (c) prohibited personnel practices in cases referred to OSC by the Merit Systems Protection Board (MSPB) under 5 U.S.C. 1221(f)(3). OSC is authorized to seek appropriate corrective and/or disciplinary action in these matters through litigation before the MSPB. Under 5 U.S.C. 1213, OSC operates a hotline channel for confidential whistleblower disclosures by current and former federal employees or former federal employees. Section 1212(f) of title 5 authorizes OSC to provide advisory opinions on request to government employees and others about whether or not they may engage in specific political activities under the Hatch Act. Finally, OSC is authorized to represent claimants in cases arising under provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), at 38 U.S.C. 4311, et seq.

Information developed in connection with these OSC responsibilities is maintained in the OSC/GOVT-1 system of records, which includes certain records subject to the Privacy Act. These include records in complaint files, disclosure files, Hatch Act advisory opinion files, and litigation files (in connection with litigation filed by or against OSC or its employees). The last full notice of the system was published at 64 FR 63359-63361 (November 19, 1999); minor numbering corrections were published at 65 FR 6436 (February 9, 2000).

OSC is revising the OSC/GOVT-1 system notice to: (1) Make non-substantive technical revisions; (2) propose changes in the descriptions of certain features of the system of records to update information shown in prior system notices; and (3) propose the amendment of current routine uses “p” and “q,” and the addition of a new routine use “r,” addressing disclosures in furtherance of OSC and U.S. Department of Labor (DOL) responsibilities for the protection of federal employment rights of veterans and reservists.

Non-substantive technical revisions are made in this notice to correct editorial errors in the November 1999 system notice; add useful citations; reflect changes in the administrative location of the system manager and the system of records; update OSC's official mailing address; and correct the description of routine use “o” by restoring the word “under” in place of “use.” (“[U]nder” had appeared in prior system notices, but was inadvertently changed to “use” in the November 1999 notice.)

This notice also proposes to change descriptions of categories of individuals covered by the system of records, retrievability of records in the system, and system safeguards, to update information shown in prior system notices.

Finally, this notice proposes to amend current routine use “p,” by deleting “and” at the end of the text, and current routine use “q,” by striking the period at the end and adding “; and”. The notice also proposes a new routine use “r,” to disclosures of information by OSC to DOL and others, in furtherance of OSC and DOL responsibilities for protection of federal employment rights under USERRA and the Veterans' Employment Opportunities Act of 1998 (VEOA) (amending title 5). Current routine uses cover OSC disclosures during the processing of all complaints within its jurisdiction, including for investigative and litigation purposes. OSC believes, however, that a routine use tailored to certain responsibilities of OSC and DOL in processing alleged violations of veterans' and reservists' federal employment rights will facilitate implementation of those responsibilities, consistent with procedures agreed to by OSC and DOL. A brief summary of the responsibilities addressed by the proposed new routine use follows:

Violations of veterans' preference requirements (5 U.S.C. 2302(b)(11)). OSC initially refers alleged violations of veterans' preference requirements to DOL for further action under the VEOA. (The MSPB lacks authority to order corrective action for violations alleged under 5 U.S.C. 2302(b)(11), which makes it a prohibited personnel practice to knowingly take, recommend, or approve, or fail to take, recommend, or approve any personnel action, if doing so would violate a veterans' preference requirement.) OSC has agreed to notify DOL of each such referral. DOL, in turn, will refer matters as appropriate to OSC for possible disciplinary action under 5 U.S.C. 1215.

Violations of employment/re-employment rights (USERRA). Upon request by a claimant, DOL refers unresolved complaints alleging violations of veterans' rights to OSC pursuant to 38 U.S.C. 4324. If OSC is reasonably satisfied that the claimant is entitled to relief under USERRA, it may represent that person in litigation seeking corrective action before the MSPB (and, as necessary, the Federal Circuit Court of Appeals). In reviewing issues identified in the initial referral, OSC may contact DOL or any agency or person as needed to obtain relevant information on the claimant's entitlement to relief, and may consult with DOL on representation issues. If OSC declines representation, it notifies the claimant. OSC may also notify the agency involved. (No information about the basis for OSC's decision or OSC's assessment of the case is provided to the agency.)

For ease of reference by other government entities and the public, the entire system notice is printed below. It includes all non-substantive technical revisions, proposed changes to descriptions of system features listed above, proposed revisions to routine uses “p” and “q,” and the proposed new routine use “r.”

In accordance with 5 U.S.C. 552a(r), OSC has provided a report to the Office of Management and Budget (OMB) and the Congress on significant changes proposed in this notice.

COMMENTS:

In accordance with 5 U.S.C. 552a(e)(4) and (11), members of the public are given a 30-day period in which to comment. (OMB, which has oversight responsibility under the Privacy Act, also requires an opportunity for its review of significant changes proposed in the notice.) Any comments should be submitted to OSC in writing by August 13, 2001. Comments should be sent by mail to Erin M. McDonnell, Planning and Advice Division, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 201, Washington DC 20036-4505; comments may also be sent to the same addressee by fax, at (202)-653-5161.

DATES:

The non-substantive technical revisions described in this notice are effective upon publication. Other changes proposed in the notice will become effective on [30 days after publication of this notice], unless comments received by OSC before then warrant further changes.

FOR FURTHER INFORMATION CONTACT:

Erin M. McDonnell, U.S. Office of Special Counsel, at [phone].

OSC/GOVT-1

SYSTEM NAME:

OSC/GOVT-1, OSC Complaint, Litigation and Political Activity Files.

SYSTEM LOCATION:

Human and Administrative Resources Management Branch, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

The principal categories of individuals covered by the system are persons filing allegations of prohibited personnel practices, improper political activity, or other prohibited activities; persons identified as engaging or participating in such practices or activities; persons filing disclosures of alleged wrongdoing by federal agencies, and persons identified as engaging or participating in such wrongdoing; persons requesting advisory opinions on political activity; persons charged by OSC in disciplinary action complaints filed by OSC with the Merit Systems Protection Board (MSPB); and plaintiffs seeking remedies against OSC in litigation related to the performance of its official functions.

CATEGORIES Of RECORDS IN THE SYSTEM:

Correspondence with persons (or their representatives) filing allegations of prohibited personnel practices, improper political activity, or other prohibited activities; correspondence with other agencies, entities, or individuals referring matters to OSC for review and/or investigation; exhibits and other documentation from complainants, governmental entities or other third parties; interview records, including notes, summaries, or transcripts; affidavits; reports or other summaries of investigation; factual and legal summaries and analyses; administrative determinations; referrals to other agencies for appropriate action; records created or compiled in connection with litigation by or against OSC, or pertinent to OSC operations; requests and decisions under the Freedom of Information and/or Privacy Acts; and other correspondence and documents arising out of the performance of official OSC functions under 5 U.S.C. 1211-1221, 1501-1508, and 7321-7326; 38 U.S.C. 4324, and other applicable law or regulation.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

5 U.S.C. 552, 552a, 1211-1221, 1501-1508, and 7321-7326; and 38 U.S.C. 4324.

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

a. To disclose the fact that an allegation of prohibited personnel practices or other prohibited activity has been filed;

b. To disclose information to the Office of Personnel Management (OPM) pursuant to Civil Service Rule 5.4 (5 CFR 5.4), or to obtain an advisory opinion concerning the application or effect of civil service laws, rules, regulations or OPM guidelines in particular situations;

c. To disclose to the Equal Employment Opportunity Commission or any other agency or office concerned with the enforcement of the anti-discrimination laws, information concerning any allegation or complaint of discrimination based on race, color, religion, sex, national origin, age, or handicapping condition;

d. To disclose information to the MSPB or the President upon the filing or referral of a disciplinary action complaint against an employee on the basis of an OSC investigation;

e. To disclose information to an agency, the MSPB, OPM, and the President reporting, under 5 U.S.C. 1214, the results of investigations which disclose reasonable grounds to believe a prohibited personnel practice has occurred, exists, or is to be taken;

f. To disclose information to Congress in connection with the submission of an annual report on activities of the Special Counsel;

g. To disclose information to any agency or person regarding allegations of prohibited personnel practices or other prohibited activity or prohibited political activity filed against an agency or any employee thereof, for the purposes of conducting an investigation, in transmitting information to an agency under 5 U.S.C. 1213(c)(1) and the OSC procedures established thereunder; or to give notice of the status or outcome of the investigation;

h. To disclose information to any source from which additional information is requested (to the extent necessary to identify the individual, inform the source of the purpose(s) of the request, and to identify the type of information requested), where necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit;

i. To disclose information to the Office of Management and Budget (OMB) at any stage in the legislative coordination and clearance process in connection with private relief legislation, as set forth in OMB Circular No. A-19;

j. To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office (made at the request of that individual);

k. To furnish information to the National Archives and Records Administration (NARA) in records management inspections conducted under authority of 44 U.S.C. 2904 and 2906;

l. To produce summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained or for related work force studies;

m. To disclose records to the Department of Justice (DOJ) when:

(1) The OSC, or

(2) Any employee of the OSC in his or her official capacity, or

(3) Any employee of the OSC in his or her individual capacity where the DOJ has agreed to represent the employee, or

(4) The United States, where the OSC determines that litigation is likely to affect the OSC, is a party to litigation or has an interest in such litigation, and the use of such records by the DOJ is deemed by the OSC to be relevant and necessary to the litigation, provided, however, that the OSC determines that disclosure of the records to the DOJ is a use of the information contained in the records that is compatible with the purpose for which the records were collected;

n. To disclose records maintained by the OSC in a proceeding before a court or adjudicative body before which the OSC is authorized to appear, when:

(1) The OSC, or

(2) Any employee of the OSC in his or her official capacity,

(3) Any employee of the OSC in his or her individual capacity where the OSC has agreed to represent the employee, or

(4) The United States, where the OSC determines that litigation is likely to affect the OSC, is a party to litigation or has an interest in such litigation, and the OSC determines that use of such records is relevant and necessary to the litigation, provided, however, that the OSC determines that disclosure of the records is a use of the information contained in the records that is compatible with the purpose for which the records were collected;

o. To disclose information to the MSPB to aid in the conduct of special studies by the Board under 5 U.S.C. 1204(a)(3);

p. To disclose information to the Office of Inspector General (OIG) or comparable internal inspection, audit, or oversight office of an agency for the purpose of facilitating the coordination and conduct of investigations and review of allegations within the purview of both the OSC and the agency OIG or comparable office;

q. To disclose information to the news media and the public when (1) the matter under investigation has become public knowledge, (2) the Special Counsel determines that disclosure is necessary to preserve confidence in the integrity of the OSC investigative process or is necessary to demonstrate the accountability of OSC officers, employees, or individuals covered by this system, or (3) the Special Counsel determines that there exists a legitimate public interest (e.g., to demonstrate that the law is being enforced, or to deter the commission of prohibited personnel practices, prohibited political activity, and other prohibited activity within the OSC's jurisdiction), except to the extent that the Special Counsel determines in any of these situations that disclosure of specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy; and

r. To disclose information to the U.S. Department of Labor (DOL) about OSC's referral of a complaint alleging a violation of veterans preference requirements to DOL for further action under the Veterans' Employment Opportunities Act of 1998 further; action under the Veterans' Employment Opportunities Act of 1998 (VEOA); to disclose information to DOL or any agency or person as needed to develop relevant information about matters referred by DOL to OSC under 38 U.S.C. 4324 (the Uniformed Services Employment and Reemployment Rights Act of 1994)the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA); to disclose information to DOL or any agency or person as needed to advise on the status or disposition of matters referred by DOL to OSC for disciplinary action under 5 U.S.C. 1215, or corrective action litigation under 538 U.S.C. 4324.

POLICIES AND PRACTICES FOR STORAGE, RETRIEVAL, ACCESS CONTROLS, RETENTION AND DISPOSAL OF RECORDS IN THE SYSTEM:

Storage:

These records are stored in a variety of media, primarily consisting of file folders, and computer storage equipment.

RETRIEVABILITY:

Files in this system of records are retrievable by the names of key individuals or agencies involved (e.g., complainants or requesters; subjects identified in corrective action or disciplinary proceedings, warning letters, or other determinations; legal, congressional, or other representatives or points of contact; or key witnesses), although files are generally retrieved by the name of: (a) The complainant alleging a prohibited personnel practice, or other prohibited activity; (b) the alleged subject of a complaint about prohibited political activity; (c) the person filing an allegation through the OSC whistleblower disclosure channel; (d) the name of the person filing a request for an advisory opinion on political activity; (e) the name of the person on whose behalf OSC seeks corrective action, or the person against whom OSC seeks disciplinary action, in litigation before the MSPB; and (f) the plaintiff in litigation against OSC.

SAFEGUARDS:

These records are located in lockable file cabinets or in secured areas. The required use of computer password protection identification features and other system protection methods also restrict access. Access is limited to those agency personnel who have an official need for access to perform their duties.

RETENTION AND DISPOSAL:

NARA keeps records about prohibited personnel practices and other prohibited activity for three years after the matter or case is closed, or for six years if the file has been the subject of a Freedom of Information Act request. NARA is responsible for disposal of OSC records pursuant to law and regulation.

SYSTEM MANAGER(S) AND ADDRESS:

The official responsible for records management functions associated with OSC program and administrative files, including those in the OSC/GOVT-1 system of records, is the Records Management Officer, Human and Administrative Resources Management Branch, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

NOTIFICATION PROCEDURE:

Individuals who wish to inquire whether this system contains information about them should contact the system manager. To assist in the process of locating and identifying records, individuals should furnish the following:

a. Name and address;

b. Date and place of birth;

c. Social Security number;

d. A description of the circumstances under which records may have been included in the system.

RECORD ACCESS PROCEDURES:

Same as notification procedure, above.

CONTESTING RECORD PROCEDURES:

Individuals who wish to contest records about them should contact the system manager, identify any information they believe should be corrected, and furnish a statement of the basis for the requested correction along with all available supporting documents and materials.

RECORD SOURCE CATEGORIES:

Information in this system of records is obtained from a variety of sources, consisting of complainants or others on whose behalf allegations, or requests for information, have been submitted or referred to OSC; legal, congressional, or other representatives or points of contact; other government bodies; witnesses and subjects in matters under review; principals involved in litigation matters, including parties and their representatives; and other persons or entities furnishing information pertinent to the discharge of functions for which OSC is responsible.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

a. Complaint, Litigation and Political Activity files containing investigatory material compiled by OSC for law enforcement purposes are exempt to the extent allowed under subsections (k)(2) and (5) of the Privacy Act. This exemption is necessary to protect confidential sources and facilitate the voluntary cooperation of witnesses during inquiries into allegations of prohibited personnel practices or other prohibited activities.

b. Testing or examination material compiled by OSC solely to determine individual qualifications for appointment or promotion in the Federal service is exempt to the extent allowed under subsection (k)(6) of the Privacy Act. This exemption is necessary to prevent the disclosure of information that would potentially give an individual an unfair competitive advantage or diminish the utility of established examination procedures.

c. OSC reserves the right to assert exemptions for records received from another agency that could be properly claimed by that agency in responding to a request, and OSC may refuse access to information compiled in reasonable anticipation of a civil action or proceeding, pursuant to subsection (d)(5) of the Privacy Act.

Dated: June 29, 2001.

Elaine Kaplan,

Special Counsel.