Veteranclaims’s Blog

April 2, 2009

March 2009 amendment to Privacy Act of 1974, VAOGC

Filed under: Privacy Act; 1974; 2009; VAOGC; OGC; — veteranclaims @ 3:44 pm

The VAOGC has published new rules concerning information assimilation, storage, retention and release.

[Federal Register: March 16, 2009 (Volume 74, Number 49)]
[Notices]
[Page 11182-11185]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16mr09-128]

=======================================================================
———————————————————————–

DEPARTMENT OF VETERANS AFFAIRS

Privacy Act of 1974; System of Records

AGENCY: Department of Veterans Affairs.

ACTION: Notice of amendment to an existing system of records.

———————————————————————–

SUMMARY: The Privacy Act of 1974 (5 U.S.C. 552(e)(4)) requires that all
agencies publish in the Federal Register a notice of the existence and
character of their systems of records. Notice is hereby given that the
Department of Veterans Affairs (VA) is amending the system of records
entitled “Litigant, Tort Claimant, EEO Complainant and Third Party
Recovery Files–VA” (16VA026) as set forth in full in the Federal
Register on January 13, 1982 [47 F.R. 1463]. This system was
subsequently amended in the Federal Register on April 25, 1983 [48 F.R.
17687] to add several new routine uses.
VA is amending the system by revising the routine uses of records
maintained in the system, combining three existing uses into one,
deleting five old routine uses, and adding five new routine uses. The
name of system of records is being changed to “Litigation Files–VA”
to more closely encompass the complete scope of matters handled in VA
litigation and administrative investigations carried out by OGC
attorneys. This system contains records of Merit System Protection
Board (MSPB) and Federal Labor Relations Authority (FLRA) disputes,
contract litigation, Privacy Act and Freedom of Information Act
litigation at the appellate level as well as EEO disputes, torts, and
third party litigation. VA is republishing the system notice in its
entirety.

DATES: Interested persons are invited to submit comments, suggestions,
or objections regarding these changes. To assure consideration, written
comments on this revised system of records must be postmarked no later
than April 15, 2009, and written comments hand delivered to the
Department and comments submitted electronically must be received as
provided below, no later than 5 p.m. Eastern Time on April 15, 2009. If
no public comment is received, the system will become effective April
15, 2009.

ADDRESSES: Written comments may be submitted through http://
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202)
273-9026; or e-mail to “VAregulations@va.gov.” Copies of 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) 461-4902 for an appointment. In addition, during the comment
period, comments may be viewed online through the Federal Docket
Management System (FDMS).

FOR FURTHER INFORMATION CONTACT: Susan Sokoll, Privacy Officer, (202)
461-7623, Office of the General Counsel (026H), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

SUPPLEMENTARY INFORMATION:
The system of records, “Litigation Files–VA” (16VA026), was
amended and published in full January 13, 1982, at 47 Federal Register
1460. A subsequent amendment on April 25, 1983, at 48 Federal Register
17687, involved publication of proposed new routine uses.

I. Description of the System of Records

The VA Litigation Files contain the working files for OGC attorneys
representing the agency in cases involving torts, contracts, personnel
and labor issues, patents, real and intellectual property, Veterans’
benefits and claims, and administrative investigations.

II. Proposed Amendments to Routine Use Disclosures of Data in the
System

VA is amending, deleting, rewriting and reorganizing the order of
the routine uses in this system of records. Accordingly, the following
changes are made to the current routine uses and are incorporated into
the amended system of records notice.
Current routine uses 2 through 4 are being combined and revised
into new routine use 4. This routine use is amended to more accurately
reflect the conditions under which VA, on its own initiative, may
disclose information from this system of records for law enforcement
purposes.
New routine use number 2 is being added to authorize disclosure to
the National Archives and Records Administration and the General
Services Administration in records management inspections conducted
under authority of Title 44, Chapter 29, of the United States Code.
New routine use 3 is added to reflect VA’s authorization to
disclose individually-identifiable information to contractors or other
entities that will provide services to VA for which the recipient needs
that information in order to perform the services.
Current routine uses 5 through 8 are maintained as they are. In
determining whether to disclose records under this routine use, VA will
comply with the guidance promulgated by the Office of Management and
Budget (OMB) in a May 24, 1985, memorandum entitled “Privacy Act
Guidance–Update” currently posted at http://www.whitehouse.gov/omb/
inforeg/guidance1985.pdf.
VA is adding a new routine use 9 that authorizes the circumstances,
and to whom, VA may disclose records in order to respond to, and
minimize possible harm to, individuals as a result of a data breach.
This routine use is

[[Page 11183]]

promulgated in order to meet VA’s statutory duties under 38 U.S.C. 5724
and the Privacy Act, 5 U.S.C. 552a, as amended.
VA is moving existing routine use 9 to routine use 12. This routine
use allows VA to disclose information to the Equal Employment
Opportunity Commission when requested in connection with investigations
of alleged or possible discriminatory practices, examination of Federal
affirmative employment programs, or for other functions of the
Commission as authorized by law or regulation.
VA is adding new routine use 11 to disclose information to the
Merit Systems Protection Board or the Office of Special Counsel, where
officials of those agencies determine, or VA determines the disclosure
is necessary to perform duties imposed by 5 U.S.C. Sections 1205 and
1206, or as may be authorized by law.
VA is adding new routine use 13 to disclose information to the
Federal Labor relations Authority, where officials of those agencies
determine, or VA determines the disclosure is necessary to perform
duties imposed by the enabling statutes and legislation of that agency.
Existing routine uses 11 through 15 have been eliminated as they no
longer are legally valid.

III. Compatibility of the Proposed Routine Uses

Release of information from these records, pursuant to routine
uses, will be made only in accordance with the provisions of the
Privacy Act of 1974. The Privacy Act of 1974 permits agencies to
disclose information about individuals, without their consent, for a
routine use when the information will be used for a purpose for which
the information was collected. VA has determined that the disclosure of
information for the above purposes in the proposed amendment to routine
uses is a proper and necessary use of the information collected by the
Litigation Files.
The report of intent to publish 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.

Approved: February 24, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

SYSTEM NAME:
Litigation Files–VA (16VA026).

SYSTEM LOCATION:
The system of records is located in the Office of the General
Counsel, Professional Staff Group VI (026), U.S. Department of Veterans
Affairs (VA), 810 Vermont Avenue, NW., Washington, DC 20420.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
The following categories of individuals are covered by this system:
(1) Veterans; (2) their beneficiaries and their dependents; (3) VA
employees; (4) insurance companies; (5) business entities; (6) Veteran
Service Organizations; (7) attorneys representing litigants; and (8)
other litigants.

CATEGORIES OF RECORDS IN THE SYSTEM:
Records (or information contained in records) may include (1)
pleadings; (2) opinions; (3) briefs; (4) decisions; (5) evidentiary and
nonevidentiary matter relating to a case or controversy in an
administrative or litigation proceeding.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
42 U.S.C. 2651 et seq.; 31 U.S.C. 3911; 28 U.S.C. 1346; 29 CFR
1600-1699; 38 U.S.C. 311.

PURPOSE(S):
This system stores VA litigation and administrative investigations
managed by Office of General Counsel, other than Veterans’ appeals
before the U.S. Court of Appeals for Veterans Claims, from the date of
closure of the case to the final expiration of the period during which
an appeal could be filed.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEMS, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
1. VA may disclose information to a congressional office in
response to an inquiry from the congressional office on behalf of and
at the request of that individual.
2. VA may disclose information to the National Archives and Records
Administration (NARA) and to the General Services Administration (GSA)
as required complying with statutory requirements to disclose
information to NARA and GSA for them to perform their statutory records
management activities and inspections under authority of title 44,
Chapter 29, of the United States Code.
3. VA may disclose information to individuals, organizations,
private or public agencies, other entities with whom VA has a contract
or agreement to perform such services as VA may deem practicable for
the purposes of laws administered by VA, in order for the contractor,
subcontractor, public or private agency, or other entity or individuals
with whom VA has contract or agreement. This routine use includes
disclosures by the individual or entity performing the service for VA
to any secondary entity or individual to perform an activity that is
necessary for individuals, organizations, private or public agencies,
or other entities or individuals with whom VA has a contract or
agreement to provide the service to VA.
4. VA may disclose on its own initiative any information in this
system, except the names, home addresses or other personally
identifiable information 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 their dependents to a Federal
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.
5. Pleadings, opinions, briefs, decisions and evidentiary and
nonevidentiary matters may be disclosed to a Federal agency upon its
official request to enable that agency to properly prepare a particular
case or controversy regarding an administrative claim filed under the
Federal Tort Claims Act or a debt collection proceeding under the
Federal Medical Care Recovery Act.
6. Pleadings, opinions, briefs, decisions and evidentiary and
nonevidentiary matter may be disclosed to a Federal agency to enable
the VA to obtain records necessary for the VA to properly prepare a
particular case or controversy under the Federal Tort Claims Act or a
proceeding under the Federal Medical Care Recovery Act.
7. Pleadings, opinions, briefs, decisions and evidentiary and
nonevidentiary matter may be disclosed to a Federal or a State court to
enable the VA to file pleadings, comply with rules and procedures of
the court, or to respond to a request from the court in any case or
controversy.
8. Pleadings, opinions, briefs, decisions and matters of
evidentiary and nonevidentiary matter may be disclosed to a Federal,
State, local, or foreign

[[Page 11184]]

agency, insurance carriers, other individuals from whom the VA is
seeking reimbursement and other parties litigant or having an interest
in administrative, prelitigation, litigation and post-litigation phases
of a case or controversy, provided, that the name and address of a
Veteran can only be disclosed under this routine use if the release is
for a VA debt collection proceeding, or if the name and address has
been provided to the VA by the party seeking the information.
9. VA may, on its own initiative, disclose any information or
records to appropriate agencies, entities, or persons when (1) VA
suspects or has confirmed that the integrity 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 embarrassment or harm to the
reputation of the record subjects, harm to economic or property
interests, identity theft or fraud, or harm to the security,
confidentiality, or integrity of this system or other systems of
programs (whether maintained by the Department or another agency or
entity) that rely upon potentially compromised information; and (3) the
disclosure is to agencies, entities, or persons whom VA determines are
reasonably necessary to assist or carry out the Department’s efforts to
respond to the suspected or confirmed compromise and prevent, minimize,
or remedy such harm. This routine use permits disclosures by the
Department to respond to a suspected or confirmed data breach,
including the provision of credit protection services or any risk
analysis services when necessary to respond to, and if necessary,
mitigate damages that might arise from a data breach involving data
covered by this system of records.
10. VA may provide Department of Justice (DoJ) with information
needed to represent the United States in litigation. VA may also
disclose the information for this purpose in proceedings in which DoJ
is not representing the Agency.
11. VA may disclose information to officials of the Merit Systems
Protection Board or the Office of Special Counsel when requested in
connection with appeals, special studies of the civil service and other
merit systems, review 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.
12. VA may disclose information to the Equal Employment Opportunity
Commission when requested 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 for other functions vested in the
Commission as authorized by law or regulation.
13. VA may disclose to the Federal Labor Relations Authority
(including its General Counsel) information related to the
establishment of jurisdiction, the investigation and resolution of
allegations of unfair labor practices, or information in connection
with the resolution of exceptions to arbitration awards when a question
of material fact is raised; to disclose information in matters properly
before the Federal Services Impasses Panel, and to investigate
representation petitions and conduct or supervise representation
elections.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING,
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
Records are maintained in individual file folders organized by the
OGC Professional Staff Group (PSG) handling the litigation.

RETRIEVABILITY:
The individual litigation folders are sorted by the OGC
Professional Staff Group (PSG) handling the matter. Within each PSG
section the records are maintained in alphabetical order by last name
of an individual, business or organization involved in the litigation.

SAFEGUARDS:
Records are maintained in a manned room during working hours.
During nonworking hours, the file area is locked, and the building is
protected by the Federal Protective Service. Access to the records is
only authorized to VA personnel on a “need to know” basis.

RETENTION AND DISPOSAL:
Upon completion of a case, except for precedent-setting cases
(which are maintained permanently), records are treated as follows:
In Central Office, litigation files other than EEO records are
maintained in the OGC Docket Room for two years, retired to the
Washington National Federal Records Center for four years and then
destroyed. EEO complainant records are maintained in the OGC Docket
Room for four years, and then destroyed.
In Regional Counsel Offices, litigation files other than EEO
records are maintained in the respective Regional Counsel Office for
six years, and then destroyed. EEO complainant records are maintained
in the Regional Counsel Office for four years, then destroyed. A
Regional Counsel Office may choose to transfer records to the VA
Records Center and Vault in Neosho, MO.

SYSTEM MANAGER(S) AND ADDRESS(ES):
Assistant General Counsel, Professional Staff Group VI (026),
Office of General Counsel, United States Department of Veterans
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.

NOTIFICATION PROCEDURE:
An individual who wishes to determine whether a record is being
maintained in this system under his or her name or other personal
identifier, or wants to determine the contents of such record, should
submit a written request to the Assistant General Counsel, Professional
Staff Group VI (026), Office of General Counsel, U.S. Department of
Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Such
requests must contain a reasonable description of the records
requested. All inquiries must reasonably identify the information
involved and should include the individual’s full name, return address,
and telephone number.

RECORD ACCESS PROCEDURES:
Individuals, businesses or organizations seeking information
regarding access to VA information maintained by the Office of General
Counsel Central Office or Regional Counsel Offices may send a request
by mail to the Assistant General Counsel, Professional Staff Group VI
(026), Office of the General Counsel, Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420.

CONTESTING RECORD PROCEDURES:
Individuals, businesses or organizations seeking information
regarding access to VA information maintained by the Office of General
Counsel Central Office or Regional Counsel Offices may send a request
by mail to the Assistant General Counsel, Professional Staff Group VI
(026), Office of the General Counsel, Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420.

RECORDS SOURCE CATEGORIES:
Courts, Veterans, beneficiaries and dependents of Veterans,
litigants and their attorneys, Federal and state agencies, insurance
carriers, witnesses, or any other interested participants to the
proceedings.

[[Page 11185]]

EXEMPTIONS CLAIMED FOR THE SYSTEM:
None.

[FR Doc. E9-5596 Filed 3-13-09; 8:45 am]

BILLING CODE 8320-01-P

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