[Federal Register Volume 73, Number 212 (Friday, October 31, 2008)]
[Notices]
[Pages 64971-64974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25969]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[Docket No. DHS-2008-0018]


Privacy Act of 1974; Department of Homeland Security Employee 
Assistance Program Records System of Records

AGENCY: Privacy Office; DHS.

ACTION: Notice of Privacy Act system of records.

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SUMMARY: In accordance with the Privacy Act of 1974 and as part of the 
Department of Homeland Security's ongoing effort to review and update 
legacy system of record notices, the Department of Homeland Security 
proposes to update and reissue one legacy record system: Justice/INS-
019 INS Employment Assistance Program Treatment Referral Records. This 
system will allow the Department of Homeland Security to collect and 
maintain records on the Department's Employee Assistance Program. 
Categories of individuals, categories of records, and the routine uses 
of this legacy system of records notice has been reviewed and updated 
to better reflect the Department's Employee Assistance Program record 
systems. This reclassified system, titled Employee Assistance Program 
Records, will be included in the Department's inventory of record 
systems.

DATES: Submit comments on or before December 1, 2008. This new system 
will be effective December 1, 2008.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0018 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-866-466-5370.
     Mail: Hugo Teufel III, 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 and privacy 
issues please contact: Hugo Teufel III (703-235-0780), Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to the savings clause in the Homeland Security Act of 
2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November 25, 
2002), the Department of Homeland Security (DHS) and its components and 
offices have relied on preexisting Privacy Act systems of records 
notices for the collection and maintenance of records that concern the 
information relating to DHS's Employee Assistance Program (EAP).
    As part of its efforts to streamline and consolidate its Privacy 
Act records systems, DHS is establishing a new agency-wide system of 
records under the Privacy Act (5 U.S.C. 552a) for DHS EAP records. The 
system will consist of records regarding individuals who have sought or 
been referred to counseling services provided through the EAP. These 
records may include identifying information, information about the 
presenting issue (e.g. relationships, behaviors, emotions, legal or 
financial issues, illegal drug use, alcohol abuse, or the experience of 
a traumatic event), and the actions taken by EAP.
    In accordance with the Privacy Act of 1974 and as part of DHS's 
ongoing effort to review and update legacy system of record notices, 
DHS proposes to update and reissue one legacy record system: Justice/
INS-019 INS Employment Assistance Program Treatment Referral Records 
(63 FR 3349 January 22, 1998). This system will allow DHS to collect 
and maintain records on DHS's

[[Page 64972]]

Employee Assistance Program. Categories of individuals, categories of 
records, and the routine uses of this legacy system of records notices 
has been reviewed and updated to better reflect DHS's EAP record 
systems. This reclassified system, titled Employee Assistance Program 
Records, will be included in the Department's 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 legal 
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 that each agency publish in the Federal 
Register a description denoting the type and character of each system 
of records in order to make agency recordkeeping practices transparent, 
to notify individuals about the use of their records, and to assist the 
individual to more easily find files within the agency. Below is a 
description of the DHS EAP System of Records.
    In accordance with 5 U.S.C. 552a(r), DHS has provided a report of 
this revised system of records to the Office of Management and Budget 
and to the Congress.

System of Records:
    DHS/ALL-015.

System Name:
    Department of Homeland Security Employee Assistance Program 
Records.

Security Classification:
    Unclassified.

System Location:
    Records are maintained at several Headquarters locations, in 
component offices of DHS, in both Washington, DC and field locations, 
and by contractor locations on behalf of DHS.

Categories of Individuals Covered by the System:
    Current and former employees of DHS and members of the families of 
current and former employees of DHS who have been referred for 
assistance or counseling, are being assisted or counseled, or have been 
assisted or counseled by DHS EAP.

Categories of Records in the System:
    Categories of records in this system include:
     Identifying information regarding the person who has 
sought or been referred for counseling, including:
    [cir] Name, social security number, home address, duty station, 
unit name and phone numbers.
    [cir] Date of birth.
    [cir] Job title and grade.
    [cir] Supervisor's name, address, and telephone number (if 
appropriate).
     Clinical information as appropriate, including:
    [cir] Privacy Act and written consent forms.
    [cir] A psychosocial history and assessment.
    [cir] Medical records.
    [cir] Correspondence with the client.
    [cir] Clinical and education interventions.
    [cir] Sessions held.
    [cir] Employee records of attendance at treatment, kinds of 
treatment, and counseling programs.
    [cir] Name, address and phone number of individuals providing 
treatment.
    [cir] Name, address and phone number of treatment facilities.
    [cir] Notes and documentation of internal EAP counselors.
    [cir] Referrals to other providers, include name(s), addresses, and 
contact information.
    [cir] Insurance data.
    [cir] Prognosis of treatment information.
    [cir] Intervention outcomes.
     Work-related information, especially if the client has 
been referred by management, including:
    [cir] Leave and attendance records.
    [cir] Performance records.
    [cir] Documentation of alleged inappropriate behavior including 
records of workplace violence.
    [cir] Documentation of the reason for referral.
    [cir] Documentation of management interventions.
    [cir] Workplace-related recommendations made to supervisors as a 
result of a team meeting.
     Records of illegal drug or alcohol use if the employee has 
been referred for those reasons, including:
    [cir] Verified positive test results for use of illegal drugs.
    [cir] Verified positive test results for alcohol consumption on the 
job above limits as outlined in Department policy.
    [cir] Substance abuse assessment, treatment, aftercare, and 
monitoring records.
     Sexual Assault Prevention and Response Program case 
records. These records are used to facilitate services for victims and 
their family members as appropriate. In addition to information cited 
above these records may contain Victim Reporting Preference Statement, 
case notes, and safety plan. Records may also contain descriptions of 
alleged assaults.
     Victim Support Person or Victim Advocate records. These 
records are maintained in conjunction with efforts to provide 
assistance to victims of crime. Records contain signed Victim Support 
Person or Victim Advocate Statement of Understanding and Victim Support 
Person or Victim Advocate Supervisor Statement of Understanding, 
assignment information, and notes regarding results of screening 
interview, relevant training received, and any other information 
relevant to the Victim Support Person's or Victim Advocate's provision 
of support services to victims.
     Critical Incident Stress Management Peer Volunteers 
records. These records contain statement of understanding, notes 
regarding screening interview, record of related training received and 
any other information relevant to the peer's provision of services when 
deployed after a critical incident.
    If the EAP participant is a family member of a DHS employee, the 
same information may be collected.

Authority for Maintenance of the System:
    5 U.S.C. 301; The Federal Records Act, 44 U.S.C. 3101; The Homeland 
Security Act of 2002; Public Law 107-296; 5 U.S.C. 7361, 7362, 7901, 
7904; 42 U.S.C. 290dd-2; Executive Order 9373; and Executive Order 
12564.

Purpose(s):
    This record system will maintain information gathered by and in the 
possession of the DHS EAP, an internal agency program designed to 
assist employees of DHS and, in certain instances, their families, in 
regard to a variety of personal and/or work-related issues.

[[Page 64973]]

Routine Uses of Records Maintained in the System, Including Categories 
of Users and the Purposes of Such Uses:
    Disclosure of substance abuse records is limited to the parameters 
set forth in 42 U.S.C. 290dd, 290ee, and Public Law 100-71, Section 
503(e). Accordingly, a Federal employee's substance abuse records may 
not be disclosed without the prior written consent of the employee, 
unless the disclosure would be one of the following:
    A. To the Department of Justice (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 the 
Department of Justice 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 the National Archives and Records Administration or other 
Federal government agencies pursuant to records management inspections 
being conducted under the authority of 44 U.S.C. 2904 and 2906.
    C. To contractors and their agents, grantees, experts, consultants, 
and others (e.g. providers contracted to provide EAP services to DHS 
employees) 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 are subject to 
the same Privacy Act requirements and limitations on disclosure as are 
applicable to DHS officers and employees.
    D. To appropriate State and local authorities to report, under 
State law, incidents of suspected child abuse or neglect to the extent 
described under 42 CFR 2.12.
    E. To any person or entity to the extent necessary to prevent an 
imminent and potential crime which directly threatens loss of life or 
serious bodily injury.
    F. To report to appropriate authorities when an individual is 
potentially at risk to harm himself or herself or others.
    G. To medical personnel to the extent necessary to meet a bona fide 
medical emergency.
    H. To medical personnel to the extent necessary to meet a bona fide 
medical emergency;
    I. To qualified personnel for the purpose of conducting scientific 
research, management audits, financial audits, or program evaluation 
provided that employees are individually identified;
    J. To the employee's medical review official;
    K. To the administrator of any Employee Assistance Program in which 
the employee is receiving counseling or treatment or is otherwise 
participating;
    L. To any supervisory or management official within the employee's 
agency having authority to take adverse personnel action against such 
employee; or
    M. Pursuant to the order of a court of competent jurisdiction where 
required by the United States Government to defend against any 
challenge against any adverse personnel action. See 42 U.S.C. 290dd, 
290ee, and Public Law 100-71, Section 503(e).

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:
    Data may be retrieved by an individual's name, social security 
number, date of birth, unit name, and/or other personal identifier 
related to their specific EAP case.

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 being 
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:
    All records with the exception of the Sexual Abuse Prevention and 
Response Program records are destroyed three years after termination of 
counseling for each distinct presenting issue or after the conclusion 
of litigation, in accordance with National Archives and Records 
Administration General Records Schedule 1, Item 26.
    Sexual Abuse Prevention and Response Program records are retained 
until five years after the client has ceased contact or, if later, for 
five years after last disclosure of information from the record.
    All records are retained beyond their normal maintenance period 
until any pending litigation is completed. This will be true whether or 
not the client has terminated employment with DHS. Individual States 
may require longer retention. The rules in this system notice should 
not be construed to authorize any violation of such state laws that 
have greater restrictions.

System Manager and Address:
    For Headquarters of DHS, the System Manager is the Director of 
Departmental Disclosure, Department of Homeland Security, Washington, 
DC 20528. For components of DHS, the System Manager can be found at 
http://www.dhs.gov/foia under ``contacts.''

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 Headquarters' or component's 
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, 
Department of Homeland Security, 245 Murray Drive, SW., Building 410, 
STOP-0550, 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

[[Page 64974]]

perjury as a substitute for notarization. While no specific form is 
required, you may obtain forms for this purpose from the Director, 
Disclosure and FOIA, 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,
     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 originates from personnel seeking assistance, DHS and 
its components and offices, counselors, treatment facilities, and in 
certain cases family members, friends, and coworkers.

Exemptions Claimed for the System:
    None.

    Dated: October 22, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-25969 Filed 10-30-08; 8:45 am]
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