[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Notices]
[Pages 5570-5573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2463]


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DEPARTMENT OF JUSTICE

[CPCLO Order No. 001-2012]


Privacy Act of 1974; System of Records

AGENCY: Department of Justice.

ACTION: Notice of a new system of records and removal of five system of 
records notices.

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SUMMARY: Pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, and Office 
of Management and Budget (OMB) Circular No. A-130, notice is hereby 
given that the Department of Justice (Department or DOJ) proposes to 
establish a new Department-wide system of records entitled, 
``Department of Justice Employee Assistance Program (EAP) Records,'' 
JUSTICE/DOJ-015. The purpose of publishing this Department-wide notice 
is to consolidate existing EAP notices published by separate DOJ 
components and provide a comprehensive notice to cover all Department 
EAP records, thereby increasing administrative efficiency and promoting 
consistent maintenance of DOJ EAP records. Accordingly, this 
Department-wide system notice replaces, and the Department hereby 
removes, the following system notices previously published by 
individual DOJ components:
    Executive Office for United States Attorneys (EOUSA), ``Employee 
Assistance Program (EAP) Counseling and Referral Records,'' JUSTICE/
USA-020, 66 FR 15755 (Mar. 20, 2001);
    Federal Bureau of Investigation (FBI), ``FBI Alcoholism Program,'' 
JUSTICE/FBI-014, 52 FR 47251 (Dec. 11, 1987);
    Federal Bureau of Prisons (BOP), ``Employee Assistance Program 
Record System,'' JUSTICE/BOP-014, 65 FR 46739 (July 31, 2000);
    Justice Management Division (JMD), ``Employee Assistance Program 
(EAP) Counseling and Referral Records,'' JUSTICE/JMD-016, 65 FR 36718 
(June 9, 2000); and
    United States Marshals Service (USMS), ``U.S. Marshals Service 
(USMS) Employee Assistance Program (EAP) Records,'' JUSTICE/USM-015, 72 
FR 49015, (Aug. 27, 2007).

DATES: In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is 
given a 30-day period in which to comment. Therefore, please submit any 
comments by March 5, 2012.

ADDRESSES: The public, Office of Management and Budget (OMB) and 
Congress are invited to submit any comments to the Department of 
Justice, ATTN: Privacy Analyst, Office of Privacy and Civil Liberties, 
Department of Justice, National Place Building, 1331 Pennsylvania 
Avenue NW., Suite 1000, Washington, DC 20530-0001, or by facsimile at 
(202) 307-0693. To ensure proper handling, please reference the above 
CPCLO Order No. on your correspondence.

[[Page 5571]]


FOR FURTHER INFORMATION CONTACT: Dr. Leo Shea, Department of Justice, 
Justice Management Division, National Place Building, 1331 Pennsylvania 
Avenue NW., Suite 1055, Washington, DC 20530, or by facsimile at (202) 
514-8797.

SUPPLEMENTARY INFORMATION: The records in this system of records 
document the work performed by the EAP on behalf of the EAP client and 
allow for the tracking of the EAP client's progress and the EAP 
client's participation in the EAP or EAP related community programs.
    In accordance with 5 U.S.C. 552a(r), the Department has provided a 
report to OMB and Congress on this new system of records.

     Dated; January 12, 2012.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer, United States Department of 
Justice.
JUSTICE/DOJ-015

SYSTEM NAME:
    Department of Justice Employee Assistance Program (EAP) Records.

SECURITY CLASSIFICATION:
    Unclassified.

SYSTEM LOCATION:
    Employee Assistance Program (EAP) records are located at the U.S. 
Department of Justice, 1331 Pennsylvania Avenue NW., Washington, DC 
20530, and other Department of Justice (DOJ) offices throughout the 
country. For those components that operate component-specific EAPs, 
records are located at the component's primary location and/or its 
field division sites. The main address for each DOJ component is posted 
on the DOJ Web site, www.justice.gov. EAP records for components that 
utilize contractors in providing EAP services may also be maintained by 
such contractors, on behalf of the Department, at the contractor's 
location. To determine the location of particular EAP records, contact 
the appropriate EAP Privacy Act system manager, whose contact 
information is listed below in the System Managers and Addresses 
section.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
    Current and former employees of the Department, and in limited 
instances their family members, who have sought counseling or have been 
referred for counseling or treatment through the EAP. The remainder of 
this notice will refer to these individuals as ``EAP client(s).''

CATEGORIES OF RECORDS IN THE SYSTEM:
    Records may include any record, written or electronic, which may 
assist in diagnosing, evaluating, counseling, and/or treating an EAP 
client, or resolving an EAP client's complaint or management's concerns 
(management consultation) regarding the EAP client's performance, 
attendance, or conduct issues. Included are client identification data, 
such as name, home and/or work address, email address, employee 
identification numbers, job title/series, telephone numbers, date of 
birth, race, gender, marital status, relationship of family member to 
employee, and emergency contacts; the EAP counselor's intake/
termination and outcome documents; case notes; pertinent personal, 
family, employment, disciplinary, financial, legal, psychosocial, 
medical, and/or employment histories; medical tests or screenings, 
including drug and alcohol tests and information on positive drug tests 
generated by the staff of the Drug Free Workplace Program or treatment 
facilities from which the EAP client may be receiving treatment; 
treatment and rehabilitation plans; insurance data; behavioral 
improvement plans; and records of referrals. Referrals include those to 
community treatment resources and social service agencies that provide 
legal, financial, or other assistance not related to mental health or 
general medical services. Where clinical referrals have been made, 
records may include relevant information related to counseling, 
diagnosis, prognosis, treatment, and evaluation, together with follow-
up data that may be generated by the community program providing the 
relevant services. Other records included in the system are the written 
consent forms used to permit the disclosure of information outside the 
EAP. EAP client records may also include account information, such as 
contractor billings and government payments, when EAP services are 
provided by an EAP contractor to the client.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
    5 U.S.C. 3301, 7361, 7362, 7901, 7904; 42 U.S.C. 290dd, 290dd-2; 44 
U.S.C. 3101; 5 CFR part 792, subpart A; 42 CFR part 2; Sec. 503, Pub. 
L. 100-71, 101 Stat. 391, as amended; E.O. 12564, 51 FR 32889; and DOJ 
Order No. 1200.1.

PURPOSE(S):
    The EAP is a voluntary program designed to assist EAP clients in 
obtaining help in handling personal problems that may affect job 
performance, and to provide emotional support and assistance during 
periods of crisis. Records are maintained to document and track a 
client's participation in the EAP or community programs and the nature 
and effects of the employee's personal problems. If an EAP client so 
consents, these records may also be used to track compliance with 
Abeyance or Last Chance Agreements that include treatment options, in 
which the EAP is an integral part of establishing and/or monitoring 
treatment compliance.

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), relevant records or information in this system may be 
disclosed without EAP client consent as follows:
    (Note: To the extent that disclosure of substance abuse patient 
records is more restricted than disclosure of other EAP records, the 
EAP staff will follow such restrictions. See 42 U.S.C. 290dd-2; 42 CFR 
part 2. Similarly, nothing in these routine uses should be construed as 
authorizing a disclosure which is prohibited under State law; nor may 
any State law either authorize or compel any disclosure of substance 
abuse patient records not encompassed by this notice and governing EAP 
regulations. See 42 CFR 2.20.)
    (a) To appropriate State or local authorities to report, where 
required under State law, incidents of suspected child, elder, or 
domestic abuse or neglect.
    (b) To any person or entity to the extent necessary to prevent an 
imminent crime which directly threatens loss of life or serious bodily 
injury.
    (c) To contractors or authorized EAP community health care 
providers that provide counseling and other services through referrals 
from the EAP staff to the extent that it is appropriate, relevant, and 
necessary to enable the contractor or provider to perform his or her 
counseling, treatment, rehabilitation, and evaluation responsibilities.
    (d) To contractors, grantees, experts, consultants, students, and 
others performing or working on a contract, grant, cooperative 
agreement, or other assignment providing other services to an EAP 
program, when necessary to provide these services. In the case of 
substance abuse patient records, a service provider must meet the 
qualifications established by 42 CFR 2.11.
    (e) To any person who is responsible for the care of an EAP client 
when the EAP client to whom the records pertain

[[Page 5572]]

is mentally incompetent or under legal disability.
    (f) To any person or entity to the extent necessary to meet a bona 
fide medical emergency.
    (g) To law enforcement officers to report information directly 
related to an EAP client's commission of a crime on the premises of the 
EAP program or against EAP program personnel or a threat to commit such 
a crime, provided that the disclosure is limited to the circumstances 
of the incident, including the client status of the individual 
committing or threatening to commit the crime, that individual's name 
and address, and that individual's last known whereabouts.
    (h) To a former EAP employee of the Department for purposes of: 
Responding to an official inquiry by a federal, State, or local 
government entity or professional licensing authority, in accordance 
with applicable Departmental regulations; or facilitating 
communications with the employee or contractor that may be necessary 
for personnel-related or other official purposes where the Department 
requires information and/or consultation assistance from the employee 
or contractor regarding a matter within that person's current or former 
area of responsibility.
    (i) To appropriate agencies, entities, and persons when (1) the 
Department 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 the Department or another agency or entity) 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 the Department's efforts to respond to the suspected or 
confirmed compromise and prevent, minimize or remedy such harm.

DISCLOSURE TO CONSUMER REPORTING AGENCIES:
    None.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, 
AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE:
    Information in this system may be maintained in paper or electronic 
format. Records in paper format include hardcopy manual files and index 
cards. Records in electronic format are kept in computerized databases 
and electronic media.

RETRIEVABILITY:
    Records in this system may be indexed and retrieved by the name of 
the EAP client or by an identifying case number or symbol that is 
cross-indexed to the EAP client's name, in accordance with policies and 
procedures outlined in DOJ Order 1200.1.

SAFEGUARDS:
    Internal EAP records are maintained by component EAP staff. In most 
cases, access to Department buildings is restricted by 24-hour guard 
service and electronic identification. EAP records are secured in a GSA 
security-approved safe or equivalent as approved by the component's 
Security Program Office. Safes are locked when staff members are not in 
their offices. Access to these files is strictly limited to approved 
EAP personnel only. Only the case number appears on the file label. The 
file is cross-referenced with a separately secured list with 
corresponding name and case number. EAP case-sensitive information in 
electronic format is only stored on a computer hard drive or equivalent 
device if it is an approved system with firewall and password 
protection. Systems operating on a component's LAN-based system encrypt 
stored EAP sensitive data. Electronic media are accessible only by a 
confidential password and secured in a safe as referenced above, within 
a locked room when not in use. Department contractors that maintain EAP 
records are required to provide adequate file security to prevent the 
theft of client files or inadvertent release of personal health 
information. Adequate file security may include the removal of an EAP 
client's personal information in a payment voucher prepared to effect 
payment for services rendered by the contractor in performance of the 
contract. Further, contractor invoices or documents in support of 
payment which do include specific EAP client information are hand-
carried by local contractors to the component's EAP Administrator when 
feasible.

RETENTION AND DISPOSAL:
    Records are retained during their useful life in accordance with 
records retention schedules approved by the National Archives and 
Records Administration. All records regardless of the storage medium 
are destroyed three years after the date of the last counseling 
session, unless a longer retention period is necessary because the EAP 
has actual notice of an administrative or judicial proceeding specific 
to the client. In such cases, the records are retained for six months 
after the conclusion of the proceedings. Destruction is by EAP 
personnel. Paper records are destroyed through the use of a high-grade 
shredder. Any electronic storage device that was used to store 
sensitive EAP information is degaussed before it is discarded, 
transferred, or donated outside the EAP.

SYSTEM MANAGERS AND ADDRESSES:
    EAP records are located at various DOJ-operated and contractor-
operated facilities. Six components of the DOJ operate component-
specific EAPs. The primary Privacy Act system manager and address for 
component-specific EAPs are as follows:
    ATF: EAP Administrator, Human Resources Division, Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE., 
Washington, DC 20226.
    DEA: EAP Administrator, Drug Enforcement Administration, 8701 
Morrissette Drive Springfield, VA 22152.
    EOUSA: EAP Administrator, Executive Office for United States 
Attorneys, 600 E St. NW., Room 2800, Washington, DC 20530.
    FBI: EAP Administrator, Federal Bureau of Investigation, 935 
Pennsylvania Ave. NW., Room 10190, Washington, DC, 20535-0001.
    BOP: EAP Administrator, Federal Bureau of Prisons, 320 First St. 
NW., Room HOLC-871, Washington, DC 20534.
    USMS: EAP Administrator, United States Marshals Service, Room 750, 
CS-3, Washington, DC 20530.
    For all other DOJ components, the primary Privacy Act system 
manager and address is EAP Administrator, Justice Management Division, 
U.S. Department of Justice, 1331 Pennsylvania Ave. NW., Suite 1055, 
Washington, DC 20530.

NOTIFICATION PROCEDURE:
    If you wish to be notified if the system contains a record 
pertaining to you, please follow the Record Access Procedures, below.

RECORD ACCESS PROCEDURES:
    You may request notice about or access to any EAP records 
pertaining to you, request an accounting of any DOJ disclosure of these 
records, or request amendment or correction of these records as 
provided in the Department's Privacy Act regulations set forth in 28 
CFR subpart D, Protection of Privacy and Access to Individual Records 
Under

[[Page 5573]]

the Privacy Act of 1974. EAP records are located at various DOJ-
operated and contractor-operated facilities, and you may make your 
request by writing directly to the Privacy Act Office of the component 
that maintains your EAP records. The appropriate address to use, and 
any additional requirements for submitting a request to a given 
component, are listed in Appendix I of 28 CFR part 16. Further details 
are provided in Attachment B of the Department's FOIA Reference Guide, 
available on the Department's Web site here: http://www.justice.gov/oip/04_3.html. If you cannot determine where within the Department to 
send your request, you may send it to the FOIA/PA Mail Referral Unit, 
Justice Management Division, U.S. Department of Justice, Room 115, LOC 
Building, Washington, DC 20530-0001, and the Mail Referral Unit will 
forward your request to the component(s) that it determines to be most 
likely to maintain your records.
    For the quickest possible handling, both the request letter and the 
envelope should be marked ``Privacy Act Request.'' The request should 
include a description of the records sought and must include sufficient 
information to verify your identity, including your full name, current 
address, and date and place of birth. You must sign and date 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 a form (Form DOJ-361) for use in certification 
of your identity from the FOIA/PA Mail Referral Unit at the address 
listed above, or on the Department's Web site at http://www.justice.gov/oip/forms/cert_ind.pdf.) If you desire to request 
amendment or correction of information maintained in your records, you 
should also comply with the additional provisions in Contesting Record 
Procedures, below.

CONTESTING RECORD PROCEDURES:
    If you desire to contest and request amendment or correction of 
information about you maintained in the system, please follow the 
Record Access Procedures, above. In addition, you should also comply 
with the provisions of 28 CFR 16.46, which include requirements that 
you identify each particular record in question and state clearly and 
concisely what information is being contested, the reasons for 
contesting it, and the proposed amendment or correction that you want.

RECORD SOURCE CATEGORIES:
    Records are generated by EAP personnel, the EAP client who is the 
subject of the record, the personnel office, employee relations/labor 
relations counsel, the EAP client's supervisor, the EAP client's co-
workers, employee bargaining units, EAP contractors, referral 
counseling and treatment programs or individuals, and other outside 
sources. In the case of drug abuse counseling, records may also be 
generated by the staff of the Drug-Free Workplace Program and the 
medical review officer.

EXEMPTIONS CLAIMED FOR THE SYSTEM:
    None.

[FR Doc. 2012-2463 Filed 2-2-12; 8:45 am]
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