[Federal Register Volume 66, Number 134 (Thursday, July 12, 2001)]
[Notices]
[Pages 36611-36614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17418]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF SPECIAL COUNSEL


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

[[Page 36612]]

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 (202) 653-8971.
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

[[Page 36613]]

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.

[[Page 36614]]

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.
[FR Doc. 01-17418 Filed 7-11-01; 8:45 am]
BILLING CODE 7405-01-P