Privacy Act of 1974; System of Records

AGENCY:

Department of Veterans Affairs.

ACTION:

Notice of Amendment to System of Records, “Criminal Investigations—VA”.

SUMMARY:

As required by the Privacy Act of 1974, 5 U.S.C. 552a(e), notice is hereby given that the Department of Veterans Affairs (VA) is amending the system of records currently known as “Investigation Reports of Persons Allegedly Involved in Irregularities Concerning VA Laws, Regulations, Etc.” (11VA51) as set forth in the Federal Register at 70 FR 76498. VA is amending the system of records by renaming the system, revising the Categories of Individuals Covered by the System, the Categories of Records in the System, the Purpose(s), the Routine Uses of Records Maintained in the System, including Categories of Users and the Purposes of Such Uses, and Policies and Practices for Storing, Retrieving, Accessing, Retaining and Disposing of Records in the System. VA is republishing the system notice in its entirety.

DATES:

Comments on the amendment of this system of records must be received not later than September 10, 2008. If no public comment is received, the amended system will become effective September 10, 2008.

ADDRESSES:

Written comments concerning the proposed amended system of records may be submitted by: Mail or hand-delivery to Director, Regulations Management (OOREG1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or e-mail to VAregulations@va.gov. All comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT:

Timothy J. McGrath, Attorney Advisor, Department of Veterans Affairs, Office of Inspector General, 810 Vermont Avenue, NW., Washington, DC 20420; or fax comments to (202) 565-8667; or e-mail comments to timothy.mcgrath@va.gov.

SUPPLEMENTARY INFORMATION:

This publication is in accordance with the Privacy Act requirement that agencies publish their amended system of records in the Federal Register when there is revision, change, or addition. The VA Office of Inspector General (OIG) has reviewed its systems of records notices and has determined its record system, Investigation Reports of Persons Allegedly Involved in Irregularities Concerning VA Laws, Regulations, Etc., VA (11VA51) should be amended to reflect evolving technology and procedures and to conform to current practice. The system name is being changed to “Criminal Investigations” to more accurately reflect the mission of the OIG Office of Investigations and the records created.

The Categories of Individuals Covered by the System is amended to include VA beneficiaries other than veterans, as well as private citizens whose actions affect or relate to programs and operations of VA. This section is amended slightly by adding some language to clarify those individuals who are or have been subjects of investigations or are those alleged to have violated criminal laws, either Federal or state either in performance of official duties or related to programs or operations of VA.

The Categories of Records in the System is amended to clarify that the records include allegations of specific wrongdoing or crimes committed as well as case progress reports. In keeping with technological advances, information such as names, dates of birth, social security numbers, and home addresses of subjects are maintained in an electronic database instead of on file cards.

This system of records is also amended by adding a Purposes section. The records are used for identifying criminal offenders and alleged offenders, identifying witnesses and documents relevant to the investigation of the allegations and compiling evidence to prove or disprove criminal conduct. The records and information are used in Federal and state grand jury proceedings, pretrial negotiations, plea agreements, pretrial diversions, court hearings, trials or other administrative action against the subject of the investigation.

There are several changes made to the routine use disclosures. Former routine use numbers 1, 4, and 5 remain the same, and former routine use number 13 is now renumbered as number 14. For clarity purposes former routine use numbers 2, 3, 6, 7, 8, 9, 10, 11 and 12 are deleted in their entirety and new text is substituted. The text changes reflect new routine uses that are consistent with law as well as for the purposes for which the records are maintained. The proposed changes are as follows:

Routine use number 1 remains the same and allows for disclosure of information from the record of an individual in response to an inquiry from a congressional office on behalf of that individual.

Routine use number 2 is a new routine use and is added to reflect that disclosure may be made to the National Archives and Records Administration (NARA). NARA is responsible for archiving records no longer actively used but may be appropriate for preservation, and is responsible in general for the physical maintenance of the Federal government's records. VA must be able to turn records over to NARA in order to determine the proper disposition of such records.

Routine use number 3 allows VA to disclose records to the U.S. Department of Justice. When VA is involved in litigation or an adjudicative or administrative process, or occasionally when another party is involved in litigation or an adjudicative or administrative process, and VA policies or operations could be affected by the outcome of the litigation or process, VA must be able to disclose that information to the court, adjudicative or administrative bodies, or parties involved. This routine use would not constitute authority to disclose records in response to a grand jury or other subpoena under Privacy Act subsection (b) because of the Court's analysis in Doe v. DiGenova, 779 F.2d 74, 78-84 (D.C. Cir. 1985) and Doe v. Stephens, 851 F.2d 1457, 1465-67 (D.C. Cir. 1988).

Routine use number 4 remains the same and allows disclosure of information to a Federal, state, or local agency maintaining civil or criminal violation records or other pertinent information such as prior employment history, prior Federal employment background investigations, and/or personal or educational information relevant to the hiring transfer, or retention of an employee, the letting of a contract, the granting of a security clearance, or the issuance of a grant or other benefit.

Routine use number 5 remains the same and allows VA on its own initiative to disclose information, except names and addresses of veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal, or regulatory in nature and whether arising by general or program statute or by regulation, to a Federal, state, local, tribal, or foreign agency charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, regulation, rule or order. VA may also disclose the names and addresses of veterans and dependents to a Federal or state agency charged with the responsibility of investigating or prosecuting civil, criminal or regulatory violations.

Routine use number 6 allows disclosure to attorneys representing clients who are subjects of criminal investigations. This routine use is necessary to allow VA to be able to provide information and records to attorneys representing subjects of criminal investigations, including veterans, Federal employees, retirees, volunteers, contractors or private citizens.

Routine use number 7 allows disclosure to the Federal Labor Relations Authority (FLRA) (including its General Counsel) in connection with the investigation and resolution of allegations of unfair labor practices, in connection with the resolution of exceptions to arbitrator awards when a question of material fact is raised, in connection with matters before the Federal Service Impasses Panel, and to investigate representation petitions and conduct or supervise representation elections. This release of information to FLRA from this Privacy Act system of records is necessary to comply with the statutory mandate under which FLRA operates. This information is necessary to allow the FLRA to properly investigate and resolve allegations of unfair labor practices brought against VA.

Routine use number 8 allows information to be disclosed to the Equal Employment Opportunity Commission (EEOC) in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, compliance with the Uniform Guidelines of Employee Selection Procedures, or other functions vested in the Commission by the President's Reorganization Plan No. 1 of 1978. This disclosure is necessary to allow the EEOC access to relevant information.

Routine use number 9 allows information to be disclosed to officials of the Merit Systems Protection Board, and the Office of Special Counsel, in connection with appeals, special studies of the civil service and other merit systems, reviews of rules and regulations, investigation of alleged or possible prohibited personnel practices, and such other functions, promulgated in Title 5, United States Code, Sections 1205 and 1206, or as may be authorized by law. This disclosure is necessary to allow the MSPB and OSC access to relevant information when properly requested.

Routine use number 10 allows disclosure of information, in the course of presenting evidence in or to a court, magistrate, administrative tribunal or grand jury, including disclosures to opposing counsel, in the course of such proceedings in order to further the interests of justice.

Routine use number 11 allows information in this system of records to be disclosed to any source or person, either private or governmental, to the extent necessary to secure from such source or person information relevant to, and sought in furtherance of, a legitimate investigation, review, or inspection.

Routine use number 12 allows disclosure to Federal, state, or local professional, regulatory, or disciplinary organizations, including but not limited to bar associations, state licensing boards, and similar professional entities, for use in disciplinary proceedings. This routine use is necessary so VA can appropriately provide information about a person's conduct or actions, related to their employment, to an entity that regulates such conduct.

Routine use number 13 allows disclosure of information to individuals or entities with which VA has a contract, subcontract, or agreement to perform services. VA must be able to provide information to its contractors or subcontractors in order for them to perform the services of the contract or agreement.

Former routine use number 13 is now renumbered as routine use number 14. It allows disclosure of information to any official charged with responsibility to conduct qualitative assessment reviews of internal safeguards and management procedures employed in investigative operations. This routine use is necessary in order to comply with the requirements established by the Homeland Security Act of 2002 (Pub. L. 107-296, Nov. 25, 2002), to allow disclosure to authorized officials within the President's Counsel on Integrity and Efficiency, who are charged with the responsibility for conducting qualitative assessment reviews of investigative operations for purposes of reporting to the President and Congress on the activities of the OIG.

Routine use number 15 is a suggested routine use by the Office of Management and Budget (OMB) for all Privacy Act systems of records, in order to allow for the appropriate mitigation of a possible data breach.

The Policies and Practices for Storing, Retrieving, Accessing, Retaining and Disposing of Records in the System section is amended to more accurately reflect the advances in technology from solely a paper environment to an electronic one. Records and information are stored electronically in the VA OIG's MCI database and servers. Backup records are stored on magnetic disc, tape and CD-ROM and may also be maintained in hard copy format in secure file folders.

Storage: This section is amended to clarify that the particular Office of Investigations office that conducted the investigation maintains hard copies of the documents and information. That office will maintain all documents, evidence and work papers compiled or collected. Hard copies of reports and certain administrative documents are also maintained at OIG Headquarters. Records and documents are also maintained electronically in the MCI database.

Retrievability: This section is amended to reflect that information and records are now retrieved by MCI case number and the name of the subject of the investigation. Scanned documents, reports and other uploaded information that are made part of the electronic case file cannot be searched or retrieved from the MCI database as part of a general search.

Safeguards: This section is amended to further describe the administrative, physical, and technical safeguards the OIG uses to protect records and information.

Retention and Disposal: This section is amended to reflect that OIG follows retention and disposal authorities approved by the Archivist of the United States.

Record Source Categories: This section is amended to reflect from whom information can be obtained.

The Report of Intent to Amend a System of Records Notice and an advance copy of the system notice have been sent to the appropriate congressional committees and to the Director of the Office of Management and Budget (OMB) as required by 5 U.S.C. 552a(r) (Privacy Act) and guidelines issued by OMB (65 FR 77677), December 12, 2000.

11VA51

SYSTEM NAME:

Criminal Investigations (11VA51).

SYSTEM LOCATION:

Department of Veterans Affairs (VA), Office of Inspector General (OIG), Office of Investigations (51), Washington, DC 20420.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

The following categories of individuals will be covered by the system: (1) Employees, (2) veterans and other VA beneficiaries, and (3) private citizens, such as contractors, who conduct official business with the VA, or private citizens whose actions affect or relate to the programs and operations of VA. The individuals who are or have been the subjects of investigations are those alleged to have violated criminal laws, either Federal or state, either in the performance of their official duties or related to the programs and operations of VA.

CATEGORIES OF RECORDS IN THE SYSTEM:

Records (or information contained in records) in this system include reports of criminal investigations of the OIG, Office of Investigations. These reports may include (1) A narrative summary or synopsis, (2) allegations of specific wrongdoing or crimes committed, (3) progress reports, (4) exhibits or attachments to the reports, (5) internal documentation and memoranda, and (6) affidavits or sworn statements. The name of the subject of an investigation, his or her title, his or her date of birth, his or her social security number, his or her home address, the station at which an investigation took place, the OIG's case number, the time period the investigation took place, and the outcome of the case are maintained in an electronic database and in hard copy files.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Title 5, United States Code, Appendix 3.

PURPOSES(S):

The records and information are used for the purpose of identifying individual criminal offenders and alleged offenders, identifying witnesses and documents relevant to the investigation of the allegations, and compiling evidence to prove or disprove criminal conduct. The records and information in the system are used in Federal and state grand jury proceedings, pre-trial negotiations, plea agreements, pre-trial diversions, court hearings and trials. The records and information in the system may also be used in administrative proceedings when administrative action is taken against the subject of the investigation.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

1. Disclosure may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office that is made at the request of that individual.

2. Disclosure may be made to the National Archives and Records Administration (NARA) in records management activities and inspections conducted under authority of Title 44, United States Code.

3. Disclosure may be made to the Department of Justice including United States Attorneys, or in a proceeding before a court, adjudicative body, or other administrative body when the litigation or adjudicative or administrative process is likely to affect VA, its employees, or any of its components, or when VA, its employees, or any of its components is a party to the litigation process, or has an interest in the litigation or process and the use of these records is deemed by VA to be relevant and necessary to the litigation or process, provided that the disclosure is compatible with the purpose for which the records were collected.

4. Any information in this system, except the name and address of a veteran, may be disclosed to a Federal, state, or local agency maintaining civil or criminal violation records or other pertinent information such as prior employment history, prior Federal employment background investigations, and/or personal or educational background in order for VA to obtain information relevant to the hiring, transfer, or retention of an employee, the letting of a contract, the granting of a security clearance, or the issuance of a grant or other benefit. The name and address of a veteran may be disclosed to a Federal agency under this routine use if this information has been requested by the Federal agency in order to respond to the VA inquiry.

5. VA may disclose on its own initiative any information in this system, except the names and home addresses of veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal, or regulatory in nature and whether arising by general or program statute or by regulation, rule or order issued pursuant thereto, to a Federal, state, local, tribal, or foreign agency charged with the responsibility of investigating or prosecuting such violation, or charged with enforcing or implementing the statute, regulation, rule or order. On its own initiative, VA may also disclose the names and addresses of veterans and dependents to a Federal or state agency charged with the responsibility of investigating or prosecuting civil, criminal, or regulatory violations of law, or charged with enforcing or implementing the statute, regulation, rule, or order issued pursuant thereto.

6. To assist attorneys in representing their clients, any information in this system may be disclosed to attorneys representing subjects of criminal investigations, including veterans, Federal government employees, retirees, volunteers, contractors, subcontractors, or private citizens, except where VA has decided release is inappropriate under Title 5, United States Code, Section 552a(j) and (k).

7. Disclosure of information to the Federal Labor Relations Authority (FLRA), including its General Counsel, in connection with the investigation and resolution of allegations of unfair labor practices, in connection with the resolution of exceptions to arbitrator awards when a question of material fact is raised, in connection with matters before the Federal Service Impasses Panel, and to investigate representation petitions and conduct or supervise representation elections.

8. Information may be disclosed to the Equal Employment Opportunity Commission in connection with investigations of alleged or possible discriminatory practices, examination of Federal affirmative employment programs, compliance with the Uniform Guidelines of Employee Selection Procedures, or other functions vested in the Commission by the President's Reorganization Plan No. 1 of 1978.

9. Information may be disclosed to officials of the Merit Systems Protection Board, and the Office of Special Counsel, if properly requested, in connection with appeals, special studies of the civil service and other merit systems, reviews of rules and regulations, investigation of alleged or possible prohibited personnel practices, and such other functions, promulgated in Title 5, United States Code, Sections 1205 and 1206, or as may be authorized by law.

10. Any information in this system of records may be disclosed, in the course of presenting evidence in or to a court, magistrate, administrative tribunal, or grand jury, including disclosures to opposing counsel in the course of such proceedings or in settlement negotiations.

11. Any information in this system may be disclosed to any source or person, either private or governmental, to the extent necessary to secure from such source or person information relevant to, and sought in furtherance of, a legitimate investigation, review, or inspection.

12. Any information in this system, except the name and address of a veteran, may be disclosed to Federal, state, or local professional, regulatory, or disciplinary organizations or associations, including but not limited to bar associations, state licensing boards, and similar professional entities, for use in disciplinary proceedings and inquiries preparatory thereto, where VA determines that there is good cause to question the legality or ethical propriety of the conduct of a person employed by VA or a person representing a person in a matter before VA. The name and address of a veteran may be disclosed to a Federal agency under this routine use if this information has been requested by the Federal agency in order to respond to the VA inquiry.

13. VA may disclose information to individuals, organizations, private or public agencies, or other entities with which VA has a contract or agreement or where there is a subcontract to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor or subcontractor to perform the services of the contract or agreement.

14. A record may be disclosed to any official charged with the responsibility to conduct qualitative assessment reviews of internal safeguards and management procedures employed in investigative operations. This disclosure category includes members of the President's Council on Integrity and Efficiency and officials and administrative staff within their investigative chain of command, as well as authorized officials of the Department of Justice and the Federal Bureau of Investigation.

15. Disclosure of any information within this system may be made when it is suspected or confirmed that the security or confidentiality of information in the system or records has been compromised and VA has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by VA or another agency or entity) that rely upon the compromised information; and the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in connection with VA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

Records and information are stored electronically in the VA OIG's MCI (Master Case Index) databases and servers at the OIG's headquarters office at 801 I Street, NW., Washington, DC 20420, in the OIG's Information Technology Division. Backup records are stored on magnetic disc, tape and CD-ROM and may also be retained in hard copy format in secure file folders. Office of Investigations personnel are responsible for electronically inputting records and information into the MCI database. Hard copies of records and information are discussed in the storage section below. Access to electronic records is limited to Office of Investigations personnel and certain other OIG employees with an official need to know the information in the course of their official duties.

STORAGE:

Hard copies of documents and information are maintained by the OIG Office of Investigations office that conducts the investigation. The office that conducts the investigation will maintain all documents, evidence, and work papers compiled or collected in the course of the investigation. Hard copies of reports and attachments and certain administrative documents are also maintained at OIG headquarters. Records and documents are also maintained electronically in the MCI database.

RETRIEVABILITY:

Information and records are retrieved by MCI case number and the name of the subject of the investigation. Scanned documents, reports and other uploaded information that are made part of the electronic file cannot be searched or retrieved from the MCI database as part of a general search.

SAFEGUARDS:

Information in the system is protected from unauthorized access through administrative, physical, and technical safeguards. Access to the hard copy and computerized information is restricted to authorized OIG personnel on a need-to-know basis. Hard copy records are maintained in offices that are restricted during work hours, or are locked after duty hours. The headquarters building is protected by security guards and access is restricted during non-duty hours. Access to the computerized information is limited to VA OIG employees by means of passwords and authorized user identification codes. Computer system documentation is maintained in a secure environment in the OIG, VA Central Office.

RETENTION AND DISPOSAL:

Records will be maintained and disposed of in accordance with a records disposition authority approved by the Archivist of the United States.

SYSTEM MANAGER(S) AND ADDRESS:

Assistant Inspector General for Investigations (51), Department of Veterans Affairs, Office of Inspector General, 810 Vermont Avenue, NW., Washington, DC 20420.

NOTIFICATION PROCEDURE:

An individual who wishes to determine whether a record is being maintained by the Assistant Inspector General for Investigations under his or her name in this system or wishes to determine the contents of such records should submit a written request to the Assistant Inspector General for Investigations (51), at the address listed in the preceding paragraph. However, a majority of records in this system are exempt from the notification requirement under 5 U.S.C. 552a(j) and (k). To the extent that records in this system of records are not subject to exemption, they are subject to notification. A determination as to whether an exemption applies shall be made at the time a request for notification is received.

RECORD ACCESS PROCEDURES:

An individual who seeks access to or wishes to contest records maintained under his or her name in this system must submit a written request to the Assistant Inspector General for Investigations (51). However, a majority of records in this system are exempt from the record access and contesting requirements under 5 U.S.C. 552a(j) and (k). To the extent that records in this system of records are not subject to exemption, they are subject to access and contest. A determination as to whether an exemption applies shall be made at the time a request for access or contest is received.

CONTESTING RECORD PROCEDURES:

(See record access procedures above.)

RECORD SOURCE CATEGORIES:

Information is obtained from VA employees, veterans, private citizens, VA records, private entities, and congressional, Federal, state, and local offices or agencies.

SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS OF THE ACT:

Under 5 U.S.C. 552a(j)(2), the head of any agency may exempt any system of records within the agency from certain provisions of the Privacy Act, if the agency or component that maintains the system performs as its principal function any activities pertaining to the enforcement of criminal laws. The Inspector General Act of 1978, Public Law 95-452, (IG Act) mandates the Inspector General to recommend policies for, and to conduct, supervise and coordinate activities in the Department of Veterans Affairs (VA) and between VA and other Federal, state, and local governmental agencies with respect to all matters relating to the prevention and detection of fraud in programs and operations administered or financed by VA and the identification and prosecution of participants in such fraud. Under the IG Act, whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law, the Inspector General must report the matter expeditiously to the Attorney General. This system of records has been created in major part to support the criminal law-related activities assigned by the Inspector General to the Office of Investigations. These activities constitute the principal function of this staff. In addition to principal functions pertaining to the enforcement of criminal laws, the Inspector General may receive and investigate complaints or information from various sources concerning the possible existence of activities constituting noncriminal violations of law, rules or regulations, or mismanagement, gross waste of funds, abuses of authority or substantial and specific danger to the public and safety. This system of records also exists to support inquiries by the Assistant Inspector General for Investigations into these noncriminal violation types of activities. Based upon the foregoing, the Secretary of Veterans Affairs has exempted this system of records, to the extent that it encompasses information pertaining to criminal law-related activities, from the following provisions of the Privacy Act of 1974, as permitted by 5 U.S.C. 552a(j)(2):

5 U.S.C. 552a(c)(3) and (4);

5 U.S.C. 552a(d);

5 U.S.C. 552a(e)(1), (2) and (3);

5 U.S.C. 552a(e)(4)(G), (H) and (I);

5 U.S.C. 552a(e)(5) and (8);

5 U.S.C. 552a(f);

5 U.S.C. 552a(g).

The Secretary of Veterans Affairs has exempted this system of records, to the extent that it does not encompass information pertaining to criminal law-related activities under 5 U.S.C. 552a(j)(2), from the following provisions of the Privacy Act of 1974, as permitted by 5 U.S.C. 552a(k)(2):

5 U.S.C. 552a(c)(3);

5 U.S.C. 552a(d);

5 U.S.C. 552a(e)(1);

5 U.S.C. 552a(e)(4)(G), (H) and (I);

5 U.S.C. 552a(f).

REASONS FOR EXEMPTIONS:

The exemption of information and material in this system of records is necessary in order to accomplish the law enforcement functions of the Office of Inspector General, to prevent subjects of investigations from frustrating the investigatory process, to prevent the disclosure of investigative techniques, to fulfill commitments made to protect the confidentiality of sources, to maintain access to sources of information, and to avoid endangering these sources and law enforcement personnel.