POLICY
STATEMENT
Introduction The U.S.
Office of Special Counsel (OSC) is an independent federal investigative and
prosecutorial agency. Its primary
mission is to safeguard the merit system in federal employment by protecting
federal employees, former federal employees, and applicants for federal
employment from prohibited personnel practices (PPPs), especially reprisal for
whistleblowing.[2] OSC also has jurisdiction under the Hatch Act to provide advice and
enforce restrictions on political activity by government employees.
In addition, OSC reviews disclosures of wrongdoing in the federal
government by operating a secure channel for such reports by whistleblowers.
Finally, upon referral by the U.S. Department of Labor, OSC is authorized
to represent federal employees whose rights under the Uniformed Services
Employment and Reemployment Rights Act have been violated.
[3] Given
the nature of OSC’s enforcement mission, its complaint, political activity,
and disclosure files (“program files”) often contain personal or sensitive
information – including information from or about filers of complaints,
disclosures, and requests for Hatch Act advisory opinions, and other information
made or received by OSC during its processing of such matters.[4]
This statement outlines OSC policy on disclosure of information in its
program files. The Privacy Act Because an OSC program file is generally retrieved by the name of, or case number assigned to, a filer or requester, it constitutes a “record” in a “system of records” covered by the Privacy [1]
This policy statement is intended
only to provide general guidance to the public about the circumstances under
which OSC may disclose and use information in its files.
It is not intended to create any right or benefit, substantive or
procedural, enforceable at law by a party against OSC or any other
individual or entity. [2] PPPs are listed at 5 U.S.C. § 2302(b). [3]
OSC is authorized to carry out the
functions described in this paragraph under the following provisions of the
U.S. Code: 5 U.S.C. §§ 1212(f) and 1216(a)-(b) (Hatch Act advice and
enforcement); 5 U.S.C. [4]
This policy statement supplements another issuance entitled, "Policy Statement on Disclosure of Information about Prohibited Personnel
Practice Complaints," available on the OSC Web site (at www.osc.gov,
under "Forms and Publications"), or by request from OSC.
Disclosure and
Use of Information
From OSC Files Act.[5] The act defines conditions under which agencies may disclose information from records retrieved by a person’s name or other personal identifier. As a general rule, OSC may not disclose a record about such a person, except upon a written request by, or with the prior written consent of, that individual. Complainants in PPP matters are required by OSC to designate
the level of consent that they authorize for disclosures of information by
OSC in connection with its processing of their complaint.
Filers of whistleblower disclosures are asked if they consent to
the disclosure of their name outside OSC if it becomes necessary in taking
further action on the matter. Under certain specific conditions, however, the Privacy Act
authorizes disclosure of information in a record, regardless of whether of
not the person to whom the information relates has requested or consented
to disclosure. Those
conditions are outlined below. Government-wide.
The Privacy Act authorizes 12 exceptions to the general rule that
federal agencies may not disclose a record
without a written request by, or the written consent of, the person to
whom the record pertains. None
of the 12 exceptions require
the disclosure of information in a record – they merely permit disclosure, when deemed appropriate or necessary.
Accordingly, authorized OSC personnel may disclose a record in its
program files when disclosure would be: (a)
to those OSC officers and employees who have a need for the record
in the performance of their duties; (b)
when
disclosure is required under the Freedom of Information Act; (c)
to federal
law enforcement agencies for a civil or criminal law enforcement activity; (d)
to a
congressional committee or subcommittee with jurisdiction over the matter
covered in the program file; (e)
required
pursuant to a court order; (f)
to the
General Accounting Office or the National Archives and Records
Administration, for the performance of their duties; (g)
to anyone
showing compelling circumstances affecting an individual's health or
safety; (h)
for certain
statistical purposes (in a form that is not individually identifiable); and (i)
for a
routine use published by OSC in the Federal
Register (discussed further in the next paragraph), describing how OSC
routinely uses information in its program files. Routine Uses.
To carry out their statutory responsibilities, agencies often need
to disclose Information in covered records for purposes other than those
listed in (a) – (h) above. The
Privacy Act, therefore, authorizes agencies to make such disclosures, once
they publish a description of what are called the “routine uses” of
information in their records.
[5]
5 U.S.C. § 552a. Disclosure and
Use of Information
From OSC Files OSC has published 18 “routine uses” of information in its
program files.[6]
Like exceptions (a) - (h) above, publication of routine uses by OSC
does not require it to disclose
information in a record – it merely permits OSC to disclose information when deemed appropriate or
necessary. OSC’s policy is to
carefully exercise investigative and prosecutorial discretion in deciding
whether a disclosure of information permitted by a routine use is
appropriate or necessary, based on the totality of the circumstances. The following routine uses are applied most often by OSC in
disclosing information in program files: 1.
To disclose
the fact that an allegation of a PPP or other prohibited activity has been
filed. For example, OSC may
respond to a request from the Merit Systems Protection Board (MSPB, or the
Board) for confirmation that a whistleblower reprisal complaint was filed
with OSC, to help establish MSPB’s jurisdiction over a complainant’s
Individual Right of Action filed with the Board, involving the same
allegation(s) reviewed by OSC. 2.
To disclose
information needed by the Office of Personnel Management (OPM) in connection
with inquiries involving civil service laws, rules or regulations, or to
obtain an advisory opinion about the application or effect of civil service
laws, rules, regulations or OPM guidelines in particular situations. For example, OSC may
respond to a request by OPM for information about problems identified by OSC
in an agency’s personnel operations, or may ask for an opinion about the
application of an OPM regulation to a personnel action being investigated by
OSC. 3.
To disclose
information about allegations or complaints of discrimination to agencies or
offices concerned with the enforcement of the anti-discrimination laws. For example, OSC may
provide information needed by the Equal Employment 4.
To the MSPB
upon filing a complaint, or to the President upon referring a matter,
seeking disciplinary action. 4.
OSC may disclose information when exercising its statutory authority to
seek disciplinary action against an individual for having violated a law,
rule, or regulation within OSC's investigative jurisdiction. 5.
To the agency involved the MSPB, OPM, or the President, when there
are reasonable grounds For
example, OSC may disclose information when exercising its statutory [6]
These are described in Federal
Register notices at 66
F.R. 36613 ( Disclosure and
Use of Information
From OSC Files grounds to believe that a PPP has occurred, exists, or
is to be taken; to report its findings and determinations; and to seek
appropriate corrective action. 6.
To disclose
information to Congress in connection with OSC’s annual report. 7.
To disclose
information to third parties (without identifying the complainant unless
OSC has the complainant’s consent) as needed to conduct an
investigation; to obtain an agency investigation and report on information
disclosed through OSC’s whistleblower disclosure channel; or to give
notice of the status or outcome of the investigation. For example, this
routine use enables OSC to conduct investigations into PPP complaints
(consistent with the consent statement selected by the complainant).
It also enables OSC to provide pertinent information to an agency
when referring a whistleblower disclosure for an investigation and report
back to OSC, pursuant to 5 U.S.C. § 1213.
This routine use also authorizes OSC, in appropriate cases (e.g.,
when an agency is aware that a complaint has been filed and that OSC has
investigated the matter), to inform an agency that an investigation has
been completed. 8.
To provide
information from an individual’s record to a congressional office acting
in response to that individual’s request. 9.
To provide
information needed by the Department of Justice (DOJ) for certain
litigation purposes. For example, if OSC is
named as a defendant in litigation arising out of one of its case files,
then DOJ, as counsel for OSC, may have access to the file. 10.
To provide
information needed by courts or adjudicative bodies for certain litigation
purposes. This would occur, for
example, during litigation filed by OSC with the MSPB, pursuant to a
finding by OSC after investigation that an agency or employee has
committed a violation of law, rule, or regulation within OSC's
jurisdiction. 11.
For
coordination with an agency's Office of Inspector General (OIG) or
comparable entity, to facilitate the coordination and conduct of
investigations and review of allegations. For example, OSC may share information with an agency
OIG in joint or parallel investigations of related matters, or to avoid
duplication of effort by OSC and the OIG. 12.
To disclose
information to the news media or the public when a matter has become
public knowledge, or when the Special Counsel decides that disclosure is
needed to preserve public confidence, or when the Special Counsel decides
that there is a public interest, if the Special Counsel concludes that
disclosure would not be an unwarranted invasion of privacy. Disclosure and
Use of Information
From OSC Files For example, if a complainant’s representative
announces that a complaint has been filed, OSC may confirm that fact in
response to inquiries from the media.
The routine use would also permit OSC to issue a press release
announcing that an apparent violation of law has been resolved with
corrective or disciplinary action. 10.
To disclose
information to the U.S. Department of Labor (DOL) and others as needed in
connection with OSC’s referral, receipt, or litigation of matters under
the Veterans’ Employment Opportunities Act of 1998 (VEOA), or the
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),
including information on the status or disposition of such matters. For example, OSC may
notify DOL that it has referred individuals alleging veterans’
preference violations to the department for further action under the VEOA,
or apprise DOL and others of the status or disposition of matters referred
to OSC for disciplinary action or other litigation. If OSC believes that disclosure of information protected by
the Privacy Act is appropriate or necessary in a situation not covered by
a routine use, or by any other exception to the act’s general
prohibition on disclosure, OSC will seek written consent for the
disclosure from the person to whom the record pertains. Other Statutory
Provisions Without
the consent of a complainant who has filed an allegation of a PPP, OSC is
prohibited by law from responding to an inquiry about an evaluation of the
work performance, ability, aptitude, general qualifications, character,
loyalty, or suitability of the complainant for any personnel action
(except in very narrow circumstances involving "exceptionally grave
damage to the national security").[7]
So, for example, if investigator acting on behalf of OPM or the
Federal Bureau of Investigation asks OSC to evaluate the work performance
or suitability of the complainant for any personnel action, OSC will not
respond without a signed authorization by the complainant (or a
declaration meeting the "national security" criterion mentioned
above). Conclusion
This
policy statement replaces and supersedes the previous edition, dated Date:
Sept 9, 2002
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