2011-17548. Privacy Act of 1974; Department of Homeland Security/ALL-033 Reasonable Accommodations 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, the Department of Homeland Security proposes to establish a new system of records titled, “Department of Homeland Security/ALL-033 Reasonable Accommodations Records System of Records.” This system will allow the Department to collect and maintain records on applicants for employment as well as employees with disabilities who requested or received reasonable accommodations by the Department as required by the Rehabilitation Act of 1973 and the Americans with Disabilities Act Amendments of 2008. Reasonable accommodations provide modifications or adjustments to: (1) The job application process that enables a qualified applicant or individual with a disability to enjoy equal employment opportunities available to persons without a disability; (2) the work environment; and/or (3) the manner in which a position is customarily performed. This system will be included in the Department of Homeland Security's inventory of record systems.

DATES:

Submit comments on or before August 12, 2011. This new system will be effective August 12, 2011.

ADDRESSES:

You may submit comments, identified by docket number [DHS-2011-0044] by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone].
• Mail: Mary Ellen Callahan, 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 please contact: Reasonable Accommodations Coordinator (202-254-8200), Office for Civil Rights and Civil Liberties, Department of Homeland Security, Washington, DC 20528. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) proposes to establish a new system of records titled, “DHS/ALL-033 Reasonable Accommodations Records System of Records.”

This system will allow the Department to collect and maintain records on applicants for employment as well as employees with disabilities who requested or received reasonable accommodations by the Department as required by the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) Amendments of 2008. Reasonable accommodations provide modifications or adjustments to: (1) The job application process that enables a qualified applicant or individual with a disability to enjoy equal employment opportunities available to persons without a disability; (2) the work environment; and/or (3) the manner in which a position is customarily performed.

Sections 501, 504, and 701 of the Rehabilitation Act of 1973 and the ADA Amendments of 2008 require federal agencies to provide reasonable accommodation to qualified applicants for employment and employees with disabilities if known or requested, unless the accommodation would impose an undue hardship. The purpose of reasonable accommodations is to provide modifications or adjustments to: (1) The job application process that enables a qualified applicant or individual with a disability to enjoy equal employment opportunities available to persons without a disability; (2) the work environment; and/or (3) the manner in which a position is customarily performed. Reasonable accommodations may include, but are not limited to: (1) Making existing facilities readily accessible to and usable by individuals with disabilities; (2) job restructuring, modification of work schedules or place of work, extended leave, telecommuting, or reassignment to a vacant position; and/or (3) acquisition or modification of equipment or devices, including computer software and hardware, appropriate adjustments or modifications of examinations, training materials or policies, the provision of qualified readers and/or interpreters, personal assistants, service animals, and other similar accommodations.

The purpose of this system is to allow the Department to collect and maintain records on applicants for employment as well as employees with disabilities who requested or received reasonable accommodations by the Department as required by the Rehabilitation Act of 1973 and the ADA Amendments of 2008. The purpose of this system is also to track processing of requests for reasonable accommodation Department-wide to comply with applicable law and regulations and to preserve and maintain the confidentiality of medical information. DHS is authorized to implement this reasonable accommodation program primarily through Sections 501, 504, and 701 of the Rehabilitation Act of 1973 and the ADA Amendments Act of 2008. This system has an effect on individual privacy that is balanced by the need to collect and maintain information on applicants and employees with disabilities requiring reasonable accommodations. Routine uses contained in this notice include sharing information with the Department of Justice (DOJ) for legal advice and representation; to a congressional office at the request of an individual; to the National Archives and Records Administration (NARA) for records management; to contractors in support of their contract assignment to DHS; to agencies, organizations, or individuals for the purpose of audit; to agencies, entities, or persons during a security or information compromise or breach; to an agency, organization, or individual when there could potentially be a risk of harm to an individual; 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; to other Federal agencies when seeking advice or assistance on issues related to reasonable accommodations; to third parties contracted by the Department to facilitate mediation or other dispute resolution procedures or programs; and to the news media in the interest of the public. A review of this system is being conducted to determine if the system of records collects information under the Paperwork Reduction Act (PRA). This system will be included in the DHS 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 lawful 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 each agency to publish in the Federal Register a description denoting the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency recordkeeping practices transparent, to notify individuals regarding the uses to which their records are put, and to assist individuals to more easily find such files within the agency. Below is the description of the DHS/ALL-033 Reasonable Accommodations Records System of Records.

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

System of Records

Department of Homeland Security (DHS)/ALL-033

System name:

DHS/ALL-033 Reasonable Accommodations Records System of Records.

Security classification:

Unclassified.

System location:

Records are maintained at DHS and component locations in Washington, DC and field offices.

Categories of individuals covered by the system:

Categories of individuals covered by this system include applicants for employment and employees who request or receive reasonable accommodations under Sections 501, 504, and 701 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) Amendments of 2008. This also includes authorized individuals or representatives (e.g., family member or attorney) who file requests for reasonable accommodation on behalf of an applicant for employment or employee as well as former employees who requested or received reasonable accommodation during their employment with the Department.

Categories of records in the system:

• Requester's name;
• Requester's status (applicant or current employee);
• Requester's contact information (work address, phone, and e-mail);
• Date request was initiated;
• Jobs (occupational series, grade level, and agency component) for which reasonable accommodation had been requested;
• Information concerning the nature of the disability and the need for accommodation, including appropriate medical documentation when the disability and/or need for accommodation is not obvious;
• Details of reasonable accommodation request, such as:

○ Type(s) of accommodation requested;

○ Whether the accommodation requested was pre-employment or during their employment with the Department;

○ How the requested accommodation would assist in job performance;

○ The amount of time taken to process the request;

○ Whether the request was granted or denied and, if denied, the reason for the denial; and

○ The sources of technical assistance consulted in trying to identify possible reasonable accommodation.

Authority for maintenance of the system:

Sections 501, 504, and 701 of the Rehabilitation Act of 1973; ADA Amendments of 2008; Executive Order 13164 (July 28, 2000); and Executive Order 13548 (July 10, 2010).

Purpose(s):

The purpose of this system is to allow the Department to collect and maintain records on applicants for employment as well as employees with disabilities who requested or received reasonable accommodation by the Department as required by Sections 501, 504, and 701 of the Rehabilitation Act of 1973 and the ADA Amendments of 2008. The purpose of this system is also to track and report the processing of requests for reasonable accommodation Department-wide to comply with applicable law and regulations and to preserve and maintain the confidentiality of medical information.

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 (DOJ), (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 DOJ 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 a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.

C. To the National Archives and Records Administration (NARA) or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.

D. 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.

E. 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 that rely 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.

F. 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 is subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.

G. 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.

H. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena from a court of competent jurisdiction.

I. To another federal agency or commission with responsibility for labor or employment relations or other issues, including equal employment opportunity and reasonable accommodation issues, when that agency or commission has jurisdiction over reasonable accommodation.

J. To the Office of Management and Budget (OMB), DOJ, Department of Labor (DOL), Office of Personnel Management (OPM), Equal Employment Opportunity Commission (EEOC), or Office of Special Counsel (OSC) to obtain advice regarding statutory, regulatory, policy, and other requirements related to reasonable accommodation.

K. To appropriate third parties contracted by the Department to facilitate mediation or other dispute resolution procedures or programs.

L. To the Department of Defense (DOD) for purposes of procuring assistive technologies and services through the Computer/Electronic Accommodation Program in response to a request for reasonable accommodation.

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:

Records may be retrieved by name of requester, employing component or directorate, or any unique identifying number assigned to the request if applicable.

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 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:

In accordance with NARA General Records Schedule (GRS) 1 Section 24 “Reasonable Accommodation Request Records” must be kept for three years from the employee's separation from the agency or after all appeals have concluded, whichever is longer. This includes individual records as well as cumulative records used to track the agency's performance with regard to reasonable accommodations.

All medical information, including information about functional limitations and reasonable accommodation needs obtained in connection with a request for reasonable accommodation must be kept confidential and shall be maintained in files separate from the individual's official personnel file. Additionally, employees who obtain or receive such information are strictly bound by these confidentiality requirements. Whenever medical information is disclosed, the individual disclosing the information must inform the recipients of the information about the confidentiality requirements that attach to it.

System Manager and address:

Reasonable Accommodations Coordinator (202-254-8200), Office for Civil Rights and Civil Liberties, Department of Homeland Security, Washington, DC 20528.

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 CRCL 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 and Chief Freedom of Information Act Officer, Department of Homeland Security, 245 Murray Drive, SW., Building 410, STOP-0655, 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 Chief Privacy Officer and Chief Freedom of Information Act Officer, 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; and
• 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 is obtained from applicants for employment as well as employees with disabilities who requested or received reasonable accommodations by the Department as required by the Rehabilitation Act of 1973 and the ADA Amendments of 2008.

Exemptions claimed for the system:

None.

Dated: June 9, 2011.

Mary Ellen Callahan,

Chief Privacy Officer, Department of Homeland Security.