Privacy Act of 1974; System of Records, 45076-45079 [2017-20596]

Agencies

• Office of Special Counsel

[Federal Register Volume 82, Number 186 (Wednesday, September 27, 2017)]
[Notices]
[Pages 45076-45079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20596]



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OFFICE OF SPECIAL COUNSEL


Privacy Act of 1974; System of Records

AGENCY: U.S. Office of Special Counsel.

ACTION: Notice of a modified system of records.

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SUMMARY: This system of records contains the U.S. Office of Special 
Counsel's (OSC) case file and other records related to the performance 
of our statutory duties, including: Investigating or reviewing 
allegations of wrongdoing; pursuing corrective action and resolution 
through mediation, litigation, or otherwise; conducting defensive 
litigation; responding to requests for Hatch Act Unit advisory 
opinions; and responding to requests and appeals seeking agency 
information.

DATES: The proposed revisions to the system of records are effective 
upon publication of this notice, except that the revised routine use 
will become effective on October 27, 2017, unless OSC determines 
otherwise based on comments received about the routine use revision. 
OSC will consider comments received by October 27, 2017. OSC's routine 
use ``v.'', as published April 23, 2012 (77 FR 24242), will remain in 
effect until the revised routine use becomes final. In accordance with 
5 U.S.C. 552a(r) and guidance from the Office of Management and Budget 
(OMB), OSC provided a report to OMB and the Congress for a 30-day 
review of the proposed modifications.

ADDRESSES: Submit written comments to: Office of the Clerk, U.S. Office 
of Special Counsel, by mail at 1730 M Street NW., Suite 218, 
Washington, DC 20036-4505; by fax to (202) 653-5151, or by email to 
khendricks@osc.gov. Please mark envelopes, fax cover pages, or email 
subject lines with the words ``Comment on System of Records 
Modification.''

FOR FURTHER INFORMATION CONTACT: Kenneth Hendricks, Clerk of the U.S. 
Office of Special Counsel, at (202) 804-7000, or write to the address 
above.

SUPPLEMENTARY INFORMATION: In accordance with the Privacy Act of 1974 
(5 U.S.C. 552a), as amended, OSC is publishing notice of proposed 
revisions to its system of records entitled ``OSC/GOVT-1, OSC 
Complaint, Litigation, Political Activity, and Disclosure Files,'' last 
published in full in the Federal Register on April 23, 2012 (77 FR 
24242). OSC proposes to modify this system of records with the 
revisions noted below.
    1. OSC clarifies that the purposes for maintaining the system 
include OSC's performance of its statutory duties, and that the types 
of records maintained include records related to advisory opinions of 
OSC's Hatch Act Unit.
    2. OSC provides notice of information technology updates to the 
system's storage location/environment to reflect OSC's use of a 
FedRAMP-approved government cloud environment, to reflect OSC's 
development of a new electronic case management system that will 
provide full-text searching capability for records maintained within 
that system, and to reflect changes to the system manager information.
    3. OSC revises the system location information to clarify that 
OSC's program offices include the agency's field offices.
    4. OSC proposes revisions to routine use ``v'' pursuant to new 
requirements announced by OMB on January 3, 2017, in its memorandum M-
17-12, Preparing for and Responding to a Breach of Personally 
Identifiable Information. The memorandum directs agencies to establish 
two prescribed routine uses by which agencies can disclose information 
as necessary in response to an actual or suspected breach. OSC's 
routine use ``v'' was similar to the first of these two new 
requirements. OSC revised that provision to meet the new requirement, 
and now proposes to codify the revised provision as a sub-element of 
routine use ``v.'' OSC proposes to codify the second required provision 
as a second sub-element of routine use ``v.''
    The revised OSC/GOVT-1 reads:
SYSTEM NUMBER

OSC/GOVT-1

SYSTEM NAME:
    OSC Complaint, Litigation, Political Activity, and Disclosure 
Files.

SECURITY CLASSIFICATION:
    In nearly all instances, OSC's work related to this system of 
records involves records that do not contain classified information. 
While this system of records generally does not contain classified 
information, it may include a small volume of records containing 
classified information. OSC would maintain such records using methods 
approved for handling classified material. OSC would not maintain or 
transmit those records using the enterprise information technology 
system referenced in this notice.

System Location:
    At OSC's headquarters offices (including program offices and the 
Document Control Branch), U.S. Office of Special Counsel (OSC), 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505; at OSC's field 
offices in Oakland, California, Detroit, Michigan, and Dallas, Texas; 
and within OSC's FedRAMP-approved government cloud. Some records may 
also be located at other agencies. Some FOIA records are maintained for 
OSC in the FOIAXpress system at AINs, 806 W. Diamond Avenue, Suite 400, 
Gaithersburg, MD 20878.

System Manager(s):
    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 Clerk of the U.S. Office of 
Special Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036-
4505. The official responsible for management of the enterprise 
information technology system referred to in this notice is the Chief 
Information Officer and Information Branch Chief, located at the same 
address.

Authority for Maintenance of the System:
    5 U.S.C. 552, 552a, 571-584, 1211-1221, 1501-1508, and 7321-7326; 
38 U.S.C. 4324, Sec. 204 of the Veterans Benefits Improvement Act of 
2004, Public Law 108-454 and Sec. 105 of the Veterans' Benefits Act of 
2010, Public Law 111-175, both codified at 38 U.S.C. 4301 note.

Purpose(s) of the System:
    OSC maintains the records to: (1) Document how OSC handled each 
matter; (2) provide a resource for consistency in interpretation and 
application of the law; and (3) allow for statistical reports and 
analysis of matters processed at OSC.

Categories of Individuals Covered by the System:
    The principal categories of individuals covered by the system are 
persons filing allegations of prohibited personnel practices or other 
prohibited activities; persons identified as engaging or participating 
in improper political activity; persons filing disclosures of alleged 
wrongdoing by federal agencies; persons requesting advisory opinions on 
political activity, or third party subjects of such advisory opinions; 
persons charged by OSC in disciplinary action complaints filed by OSC 
with the Merit Systems Protection Board (MSPB); persons on whose behalf 
OSC seeks corrective action before the MSPB; persons filing allegations 
of wrongdoing in Uniformed Services Employment and Reemployment Rights 
Act (USERRA) matters referred or transferred to OSC; plaintiffs seeking 
remedies or discovery against OSC in litigation or administrative 
claims; and persons

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filing requests for information or administrative appeals under the 
Freedom of Information Act (FOIA) or the Privacy Act.

Categories of Records in the System:
    The principal types of records in the system are complaints 
alleging prohibited personnel practices, improper political activity, 
or other violations of law or regulation; disclosures of information 
about alleged wrongdoing by federal agencies; written requests that 
result in formal advisory opinions on political activity; allegations 
of USERRA violations; litigation documents served on or filed by OSC in 
litigation; correspondence with persons (or their representatives) 
filing such complaints, disclosures, requests, or litigation; 
communications with other agencies, entities, or individuals referring 
matters to OSC for review or investigation; exhibits and other 
documentation received from filers and requesters, governmental 
entities or third parties; interview records, including notes, 
summaries, or transcripts; affidavits; reports or other summaries of 
investigation; factual and legal summaries or analyses; administrative 
determinations; referrals to other governmental entities for 
appropriate action; records created or compiled in connection with 
litigation by or against OSC, or pertinent to OSC operations; records 
relating to attempts to resolve matters as part of OSC's Alternative 
Dispute Resolution (ADR) Program; records of or related to OSC's FOIA 
and Privacy Act Program, including but not limited to, requests, 
appeals, and decisions; information about complaints, disclosures, 
requests and litigation maintained in OSC's electronic case tracking 
system; and other correspondence and documents created or obtained in 
the performance of OSC functions under 5 U.S.C. 1211-1221, 1501-1508, 
and 7321-7326; 5 U.S.C. 552 and 552a; 38 U.S.C. 4324, and other 
applicable law, regulation, or OSC memoranda of understanding.

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, disclosures of information, 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.

Routine Uses of Records Maintained in the System, Including Categories 
of Users and Purposes of Such Uses:
    The following routine uses permit OSC to:
    a. Disclose information to appropriate federal entities with 
subject matter expertise to the extent necessary to obtain advice on 
any authorities, programs, or functions associated with records in this 
system;
    b. Disclose information to the Office of Personnel Management (OPM) 
pursuant to Civil Service Rule 5.4 (5 CFR 5.4), or obtain an advisory 
opinion concerning the application or effect of civil service laws, 
rules, regulations, or OPM guidelines in particular situations;
    c. 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. 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. Disclose information to an agency, the MSPB, OPM, or the 
President, 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. Disclose information to Congress in connection with the 
submission of an annual report on activities of the Special Counsel;
    g. Disclose information:
    1. 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 purpose of conducting an investigation; resolving an allegation 
before OSC by settlement or otherwise; or giving notice of the status 
or outcome of an investigation;
    2. to an agency, Office of Inspector General, complainant 
(whistleblower), the President, Congressional Committees, or the 
National Security Advisor regarding violations of law, rule, or 
regulation, or other disclosures under 5 U.S.C. 1213 for the purposes 
of transmitting information or reports as required under that statute; 
or in giving notice of the status or outcome of a review;
    h. 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 
classification of a job; 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. 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. Provide information to a congressional office from the record of 
an individual in response to an inquiry from that congressional office 
(made at the written request of that individual);
    k. 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, or other functions authorized by 
laws, regulations, and policies governing NARA operations and OSC 
records management responsibilities;
    l. Disclose information when consulting with, or referring a record 
to, another Federal entity for the purpose of making a decision on a 
request for information under the FOIA or the Privacy Act; or to the 
Office of Government Information Services established at NARA by the 
Open Government Act of 2007, which amended the FOIA, for the purpose of 
conducting mediation and otherwise resolving disputes under FOIA;
    m. Disclose records to the Department of Justice (DOJ) when:
    1. Any of the following entities or individuals is a party to 
litigation or has an interest in litigation:
    A. The OSC;
    B. Any employee of the OSC in his or her official capacity;
    C. Any employee of the OSC in his or her individual capacity whom 
DOJ has been asked or agreed to represent; or
    D. The United States, where the OSC determines that the OSC will be 
affected by the litigation; and
    2. When the OSC determines that use of the records by the DOJ is 
relevant and necessary to the litigation;
    n. Disclose records in a proceeding before a court or adjudicative 
body, before which the OSC is authorized to appear, when:

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    1. Any of the following entities or individuals is a party to, or 
has an interest in the proceedings:
    A. The OSC;
    B. Any employee of the OSC in his or her official capacity;
    C. Any employee of the OSC in his or her individual capacity whom 
OSC has agreed to represent; or
    D. The United States, where the OSC determines that the OSC will be 
affected by the proceedings; and
    2. When the OSC determines that use of the records is relevant and 
necessary to the proceedings;
    o. 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. Disclose information to an 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; or in notifying an OIG (or 
comparable office) of the disposition of matters referred by the OIG 
(or comparable office) to the OSC;
    q. 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 situation 
that disclosure of specific information in the context of a particular 
case would constitute an unwarranted invasion of personal privacy;
    r. 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; 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 (USERRA); 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 possible litigation under 
38 U.S.C. 4324; or disclose information to DOL or any agency or person 
as needed to develop relevant information about, or to advise on the 
status or disposition of, matters investigated under a USERRA 
demonstration project at OSC (Sec. 204, Pub. L. 108-454; Sec. 105 Pub. 
L. 111-275); or disclose information to the U.S. Department of Defense, 
Employer Support of the Guard and Reserve (ESGR), for the purpose of 
having ESGR mediate USERRA complaints received by or referred to OSC;
    s. To disclose records, when OSC has agreed to represent a USERRA 
complainant under 38 U.S.C. 4324 (a)(2)(A), from the corresponding 
USERRA investigative file to the relevant USERRA litigation file, and 
from the relevant USERRA litigation file to the USERRA complainant;
    t. Disclose information to agency contractors, experts, 
consultants, detailees, or non-OSC employees performing or working on a 
contract, service, or other activity related to the system of records, 
when necessary to accomplish an agency function related to the system;
    u. Make lists and reports available to the public pursuant to 5 
U.S.C. 1219;
    v. Disclose information:
    1. To appropriate agencies, entities, and persons when: (1) OSC 
suspects or has confirmed that there has been a breach of the system of 
records; (2) OSC has determined that as a result of the suspected or 
confirmed compromise there is a risk of harm to individuals, OSC 
(including its information systems, programs, and operations), the 
Federal Government, or national security; and (3) the disclosure made 
to such agencies, entities, and persons is reasonably necessary to 
assist in connection with OSC's efforts to respond to the suspected or 
confirmed breach or to prevent, minimize, or remedy such harm;
    2. To another Federal agency, or Federal entity when OSC determines 
that information from this system of records is reasonably necessary to 
assist the recipient agency or entity in (1) responding to a suspected 
or confirmed breach or (2) preventing, minimizing, or remedying the 
risk of harm to individuals, the recipient agency or entity (including 
its information systems, programs, and operations), the Federal 
Government, or national security, resulting from a suspected or 
confirmed breach.
    w. Disclose pertinent information to the appropriate federal, 
state, or local agency responsible for investigating, prosecuting, 
enforcing, or implementing a statute, rule, regulation, or order where 
OSC becomes aware of a violation or potential violation of civil or 
criminal law or regulation; and to OPM and the OMB pursuant to 5 U.S.C. 
1214;
    x. Disclose information to the Integrity Committee established 
under section 11(d) of the Inspector General Act of 1978, when needed 
because of receipt, review or referral to the Integrity Committee under 
section 7(b) of Public Law 110-409; or as needed for a matter referred 
to OSC by the Integrity Committee; and
    y. Disclose information to the DOJ and/or the Federal Bureau of 
Investigation for inclusion in the National Instant Criminal Background 
Check System (NICS), pursuant to the reporting requirements of the 
Brady Handgun Violence Prevention Act, as amended by the NICS 
Improvement Amendments Act of 2007.

Policies and Practices for Storage of Records:
    These records are stored in a variety of media, primarily 
consisting of file folders, computer storage equipment, and the 
government cloud. Access is limited to those agency personnel who have 
an official need for access to perform their duties. OSC requires new 
employees to read and acknowledge agency directives, including on 
information technology user roles and responsibilities, records 
management, and privacy protection. OSC requires all employees to 
complete annual cybersecurity awareness training.

Policies and Practices for Retrieval of Records:
    Some files in this system of records are retrievable through full-
text search capability, including by the names of key individuals or 
agencies involved (including, complainants or requesters; persons on 
whose behalf OSC seeks corrective action; subjects identified in 
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, 
or the third-party subject of such advisory opinions; (e) the name of 
the person on whose behalf OSC seeks corrective action, or the

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person against whom OSC seeks disciplinary action, in litigation before 
the MSPB; (f) the plaintiff in litigation or administrative claims 
against OSC; persons requesting discovery from OSC; and FOIA and 
Privacy Act requesters and appellants.

Policies and Practices for Retention and Disposal of Records:
    Case file records related to allegations of prohibited personnel 
practices and other prohibited activities, including allegations of 
improper political activity, violations of USERRA, and other matters 
under OSC's jurisdiction, including program litigation records and 
records of the ADR Unit and the Disclosure Unit, that are of 
extraordinary importance to the nation or OSC, are permanent records 
when approved by the Special Counsel. Case file records of the 
Disclosure Unit that result in either a referral to an agency head 
pursuant to 5 U.S.C. 1213, or an informal referral to an agency's 
Inspector General, are retained for 10 years after the date of closure. 
Other case file records related to such prohibited activities, 
including program litigation, and the Disclosure Unit are retained for 
6 years after the date of closure. Case file records of Formal Advisory 
Opinions of the Hatch Act Unit are retained for 6 years after the date 
of closure. Litigation case file records relating to the legal defense 
of OSC and its interests in matters and claims filed against the agency 
in courts, administrative tribunals, or other forums, including formal 
and informal discovery requests, and other claims or similar 
proceedings that are of extraordinary importance to the nation or OSC 
are permanent records when approved by the Special Counsel. All other 
such defensive litigation and claim case file records are retained for 
7 years after the date of closure. Additionally, final signed 
settlement agreements are retained for 20 years after the date of 
closure. Personally identifiable information in OSC's electronic case 
tracking system is retained until deleted from the database 25 years 
after the corresponding case file is destroyed. Case file records 
related to OSC's FOIA and Privacy Act Program are retained in 
accordance with NARA's General Records Schedule 14 for Information 
Services Records. Disposal of records is accomplished by shredding or 
by NARA-approved processes. Electronic information is disposed of by 
deletion. OSC is revising its record retention schedule in consultation 
with NARA. Pending approval of the revised records schedule, records 
are maintained for the current or proposed retention, whichever is 
longer.

Administrative, Technical, and Physical Safeguards:
    These records are located in lockable file cabinets or in secured 
areas. Other OSC safeguards include the required use of computer 
password protection identification features and other system protection 
methods. Access is limited to those agency personnel who have an 
official need for access to perform their duties. OSC requires new 
employees to read and acknowledge agency directives, including on 
information technology user roles and responsibilities, records 
management, and privacy protection. OSC requires all employees to 
complete annual cybersecurity awareness training.

Record Access Procedure:
    Individuals who wish to request record access should contact the 
FOIA/Privacy Act Officer, U.S. Office of Special Counsel: (1) By mail 
at 1730 M Street NW., Suite 218, Washington, DC 20036-4505; (2) by 
telephone at 202-804-7000; or (3) by fax: at 202-653-5161. To assist in 
the process of locating and identifying records, individuals should 
furnish the following: Name and home address; business title and 
address; any other known identifying information such as an agency file 
number or identification number; a description of the circumstances 
under which the records were compiled; and any other information deemed 
necessary by OSC to properly process the request. Requesters should 
reasonably describe the records they seek. Rules about FOIA access are 
in 5 CFR part 1820, and rules about Privacy Act access are in 5 CFR 
part 1830.

Contesting Record Procedures:
    Individuals who wish to contest records about themselves should 
contact OSC's Privacy Act Officer, 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. See OSC Privacy Act regulations at 5 CFR part 1830.
    Notification Procedures: Individuals who wish to inquire whether 
this system contains information about them should follow the Record 
Access procedures, noted above.

Exemptions Promulgated for the System:
    OSC will claim exemptions from the provisions of the Privacy Act at 
subsections (c)(3) and (d) as permitted by subsection (k) for records 
subject to the Act that fall within the category of investigatory 
material described in paragraphs (2) and (5), and testing or 
examination material described in paragraph (6) of that subsection. The 
exemptions for investigatory material are necessary to prevent 
frustration of inquiries into allegations of prohibited personnel 
practices, unlawful political activity, whistleblower disclosures, 
USERRA violations, and other matters under OSC's jurisdiction, and to 
protect identities of confidential sources of information, including in 
background investigations of OSC employees, contractors, and other 
individuals conducted by or for OSC. The exemption for testing or 
examination material is necessary to prevent the disclosure of 
information which would potentially give an individual an unfair 
competitive advantage or diminish the utility of established 
examination procedures. OSC also 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. OSC may 
also refuse access to any information compiled in reasonable 
anticipation of a civil action or proceeding. OSC published a final 
rule regarding these exemptions at 72 FR 56617 (Oct. 4, 2017).

History:
    OSC last published a Federal Register notice for this system on 
April 23, 2012, at 77 FR 24242.

    Dated: September 21, 2017.
Bruce P. Gipe,
Chief Operating Officer.
[FR Doc. 2017-20596 Filed 9-26-17; 8:45 am]
BILLING CODE 7405-01-P