[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
[Notices]
[Pages 63359-63361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30180]


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OFFICE OF SPECIAL COUNSEL


Privacy Act of 1974, System of Records

AGENCY: Office of special Counsel.

ACTION: Notice of administrative changes in System of Records and 
Proposed Revision of Routine Uses.

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SUMMARY: Pursuant to the Privacy Act of 1974, as amended (5 U.S.C. 
552a), and 5 U.S.C. 553, the Office of Special Counsel (OSC) previously 
published notices in the Federal Register describing the system of 
records maintained in connection with OSC program responsibilities. The 
notice at 52 FR 29907 (1987) proposed the amendment of routine uses and 
identified specific exemptions from the act; the notice at 58 FR 62394 
(1993) designated the system as ``OSC/GOVT-1, OSC Complaint, Litigation 
and Political Activity Files,'' among other administrative changes. 
Pursuant to 5 U.S.C. 552a(e)(4) and (11), the OSC is revising the 
system notice for OSC/GOVT-1 to update information about individuals 
covered by the system, records in the system, authority for maintenance 
of the system, the system manager, retrievability of records, access 
controls, and records source categories; update legal citations; and 
make technical corrections. The OSC also proposes to revise the system 
notice by amending the description of two current routine uses, and by 
adding a new routine use.

SUPPLEMENTARY INFORMATION: The OSC is an independent investigative and 
prosecutorial agency, authorized to investigate allegations of: (a) 
Prohibited personnel practices under 5 U.S.C. 2302(b), as well as 
certain other matters listed at 5 U.S.C. 1216; (b) prohibited political 
activity under 5 U.S.C. 7321-7326 by federal and District of Columbia 
employees, and prohibited political activity under 5 U.S.C. 1501-1508 
by certain state and local government employees; (c) violations by 
federal agencies of certain employment and reemployment rights referred 
by the U.S. Department of Labor under 38 U.S.C. 4324; and (d) 
prohibited personnel practices referred by the Merit Systems Protection 
Board (MSPB) under 5 U.S.C. 1221(f)(3). The OSC is further authorized 
to seek appropriate corrective and/or disciplinary action in these 
matters through litigation before the MSPB. Also, under 5 U.S.C. 1213, 
the OSC operates a hotline channel through which current and former 
federal employees or employees or former federal employees can make 
confidential whistleblower disclosures.
    Information developed in connection with these OSC program 
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, generally retrieved by the name of 
the person filing an allegation of a prohibited personnel practice, 
improper political activity, or other prohibited activity; records in 
disclosure files, generally retrieved by the name of a person filing an 
allegation through the OSC whistleblower disclosure channel; records in 
disciplinary action litigation files, generally retrieved by the name 
of the person charged by the OSC in litigation before the MSPB; and 
records in defensive litigation files, generally retrieved by the name 
of the plaintiff in the action.
    The OSC is revising the OSC/GOVT-1 system of records to: (1) Update 
descriptions of individuals covered by the system, records in the 
system (including addition of specific reference to records maintained 
in connection with statutory referrals from the Labor Department under 
38 U.S.C. 4324, the MSPB, and requests and decisions under the Freedom 
of Information and privacy Acts), authority for maintenance of the 
system, system manager, retrievability of records, access controls, and 
records source categories; (2) update legal citations shown in prior 
Federal Register notices, and (3) make other technical corrections.
    The OSC also proposes to revise routine uses of information in the 
system of records by: (1) amending the description of current routine 
uses ``m'' and ``n'' (to conform them more closely to the guidance 
issued by the Office of Management from which they were derived, most 
notably by clarifying that disclosures may also be made in connection 
with litigation in which the OSC has an interest, after the required

[[Page 63360]]

determination described in the current routine uses); and (2) adding a 
new routine use, at ``q'' (allowing disclosures of information to the 
news media and the public in specified circumstances, except to the 
extent that the Special Counsel determines that disclosure of specific 
information in the context of a particular case would constitute an 
unwarranted invasion of personal privacy).

COMMENTS: Interested persons may submit comments in writing to the OSC 
on the proposed revisions and additions of routine uses shown in this 
notice. Comments should be sent to Marion S. Berman Bowytz, Planning 
and Advice Division, U.S. Office of Special Counsel, 1730 M Street, NW, 
Suite 300, Washington DC 20036-4505. The revised and new routine uses 
will become effective 30 days after publication of this notice, unless 
comments received by the OSC before then warrant further changes.

FOR FURTHER INFORMATION CONTACT: Marion S. Berman Bowytz, U.S. Office 
of Special Counsel, at (202) 653-8971.
OSC/GOVT-1

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

SYSTEM LOCATION:
    Management Division, U.S. Office of Special Counsel, 1730 M Street, 
NW., Suite 200, 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 alleged prohibited activities; persons 
identified as engaging or participating in such practices of 
activities; persons filing disclosures of alleged wrongdoing by federal 
agencies, and persons identified as engaging or participating in such 
wrongdoing; persons charged by the OSC in disciplinary action 
complaints filed by the OSC with the Merit systems Protection Board 
(MSPB); and plaintiffs seeking remedies against the 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 the 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 the 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 
antidiscrimination 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; 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 of which 
the records were collected;

[[Page 63361]]

    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 use 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; and
    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.

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; key witnesses), although 
files are generally retrieved by the name of: (a) The complainant 
alleging a prohibited personnel practice, improper political activity, 
or other activity; (b) the person filing an allegation through the OSC 
whistleblower disclosure channel; (c) the person filing an allegation 
of prohibited political activity; (d) the person charged by the OSC in 
litigation before the MSPB; and (e) the plaintiff in litigation against 
the OSC.

safeguards:
    These records are located in lockable metal file cabinets or in 
secured areas, with access limited to those personnel whose official 
duties require access.

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 agency 
records pursuant to law and regulation.

system manager(s) and address:
    Records Management Officer, U.S. Office of Special Counsel, 1730 M 
Street, NW, Suite 216, 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 the 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 the OSC is responsible.

EXEMPTIONS CLAIMED FOR THE SYSTEM:
    a. Complaint, Litigation and Political Activity files containing 
investigatory material compiled by the 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 the 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. The 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 the 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: November 2, 1999.
Elaine Kaplan,
Special Counsel.
[FR Doc. 99-30180 Filed 11-18-99; 8:45 am]
BILLING CODE 7405-01-M