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] Given the
nature of OSC’s enforcement mission, its complaint and litigation files
often contain personal or sensitive information – including information
from or about complaint filers, and other information made or received by
OSC during its investigative and prosecutorial activities.
This statement describes OSC’s policy on the disclosure of
information in its PPP complaint files.[3] Consent Statements To
facilitate their understanding and participation in disclosure decisions,
complainants are asked to select one of three “consent statements”
governing communications during an investigation between OSC and the agency
involved. The consent statements
appear in the complaint form (Form OSC-11) that filers must use to submit
PPP complaints to OSC. The three
consent statements are reproduced in the attachment to this policy
statement. As
noted on the complaint form, certain uses of information by OSC are
permitted by the Privacy Act, regardless of the consent statement selected
by a complainant.
For example, in certain circumstances, OSC is authorized by law to
disclose information to pertinent congressional committees and
subcommittees, and to federal law enforcement officials. [1]
Issued pursuant to Public Law 103-424 (1994), codified at 5 U.S.C.
§ 1212 note. This policy
statement (including the attachment) is intended only to provide general
guidance to the public about the circumstances under which OSC may
disclose information about prohibited personnel practice complaints.
It is not intended to create any right or benefit, substantive or
procedural, enforceable at law by a party against OSC, or any other
person or entity. [2] PPPs are listed at 5 U.S.C. § 2302(b). [3]
Another OSC issuance, entitled
“Policy Statement on Disclosure
of Information from OSC Program Files,"
outlines disclosure criteria applicable to OSC complaint,
disclosure, and other program files generally.
That policy statement is available on the OSC Web site (at www.osc.gov,
under "Forms and Publications"), or by request from OSC. Disclosure of Information About PPP Complaints General Disclosure Policies When
someone files a PPP complaint, it is OSC’s policy not
to reveal the identity of the complainant to the agency involved unless: 1) OSC has the complainant’s consent to reveal his or her identity; and, 2) disclosure of the complainant’s identity is necessary to proceed
with OSC action. During
an investigation, and any efforts to resolve a complaint, OSC’s policy is
to disclose only that information deemed reasonable and necessary under the
circumstances to the agency involved. If
OSC concludes that a PPP may have been committed,it
will attempt to obtain corrective action from the agency involved.
When appropriate, OSC may also seek disciplinary action against
agency officials or employees. Consistent
with law, OSC will attempt to resolve complaints through settlement
negotiations with the agency involved before filing correctiveaction
complaints with the U.S. Merit Systems Protection Board (MSPB).
It is OSC’s policy to engage in such negotiations or litigation
only when the complainant has selected Consent Statement 1 in the complaint
form. During such negotiations
with agencies, OSC discloses only the information deemed reasonable and
necessary by OSC to achieve a mutually agreeable settlement of the
complaint. If an appropriate
settlement agreement is not reached, and OSC concludes that the law was
violated, it may, in its discretion, file a complaint with the MSPB seeking
corrective and/or disciplinary action. It
is OSC’s policy to inform a complainant on a timely basis about the
progress of his or her complaint, and to consult the complainant, as needed.
Consistent with law, OSC will also send each complainant: 1) a letter
acknowledging its receipt of the complaint and identifying the agency staff
member assigned to the case; 2) a status report after 90 days, and a status report every 60 days thereafter while the case is active; and
3)
a preliminary determination letter, when OSC proposes to close a
complaint based on a lack of evidence or insufficient evidence, providing
the complainant with one more opportunity for input before OSC makes its
final decision. Disclosure of Information About PPP Complaints Page 3 of 5 Management,
the Federal Bureau of Investigation, or anyone else asks OSC to evaluate the
work performance or suitability of a PPP 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 ____/s/__________________________ Attachment
CONSENT
STATEMENTS (From Form OSC-11, “Complaint of Prohibited Personnel Practice / Other Prohibited Activity”)
OSC asks everyone who files a complaint alleging a
possible prohibited personnel practice or other prohibited activity to
select one of three Consent Statements shown below.
If we do not receive a signed
Consent Statement, we will assume that you have agreed to Consent Statement
1. Please return the
original signed Consent Statement to OSC.
Also, please keep a copy of the signed Consent Statement and all
documents that you send to OSC for your own records. If you initially choose a Consent Statement that contains restrictions on
OSC's use of information, you may later select a less restrictive Consent
Statement. If your selection of
Consent Statement 2 or 3 prevents OSC from being able to conduct an
investigation, an OSC representative will contact you, explain the
circumstances, and provide you with an opportunity to select a less
restrictive Consent Statement. (Please sign one) Consent Statement 1 I consent to communications between OSC and the
involved agency as deemed necessary by OSC.
I agree to allow OSC to
disclose my identity as the complainant to the agency involved and
information from or about me if OSC decides this is necessary to elicit
information from the agency involved, take further action, or obtain
corrective or disciplinary action. I
understand that regardless of the Consent Statement I choose, OSC may
disclose information as allowed by the Privacy Act. ___________________________________________________ ________________________________ Consent Statement 2 I consent to communications between OSC and the
involved agency as deemed necessary by OSC, but I do
not agree to allow OSC to disclose my identity as the complainant to the
agency involved. I agree to allow OSC to disclose only that information from or about
me, without disclosing my name or other individual identifying information,
if OSC decides it is necessary to elicit information from the agency
involved, take further action, or obtain corrective or disciplinary action.
I understand that in some circumstances (for example, if I am
complaining about my nonpromotion), it would not be possible for OSC to
maintain my anonymity while communicating with the agency involved about a
specific personnel action. In
such circumstances, I understand that my request for anonymity may preclude
OSC from taking further action on my complaint.
I understand that regardless of the Consent Statement I choose, OSC
may disclose information as allowed by the Privacy Act. ___________________________________________________ ________________________________ I do not
consent to communications between OSC and the agency involved even if
OSC decides it is necessary to elicit information from the agency, take
further action, or obtain corrective or disciplinary action.
I understand that if OSC decides that it is not possible to take
further action on my complaint without obtaining additional information from
the agency involved, my lack of consent will preclude OSC from taking
further action on my complaint. I
understand that regardless of the Consent Statement I choose, OSC may
disclose information as allowed by the Privacy Act. ___________________________________________________ ________________________________
PRIVACY ACT
NOTICE (From Form OSC-11,
“Complaint of Prohibited Personnel Practice / Other Prohibited
Activity”)
OSC
may disclose information from its files in the following circumstances: 1.
to disclose that an allegation
of prohibited personnel practices or other prohibited activity has been
filed; 2.
to disclose information needed
by the Office of Personnel Management (OPM) for inquiries involving civil
service laws, rules or regulations, or to obtain an advisory opinion; 3.
to disclose information about
allegations or complaints of discrimination to entities concerned with
enforcement of antidiscrimination laws; 4.
to the MSPB or the President,
when seeking disciplinary action; 5.
to the involved agency, MSPB,
OPM, or the President when OSC has reason to believe that a prohibited
personnel practice has occurred, exists, or is to be taken; 6.
to disclose information to
Congress in 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; obtain an
agency investigation and report on information disclosed to OSC's
whistleblower disclosure channel; or to give notice of the status or outcome
of an investigation; 8.
to disclose information as
needed to obtain information about hiring or retention of an employee;
issuance of a security clearance; conduct of a security or suitability
investigation; award of a contract; or issuance of a license, grant, or
other benefit; 9.
to the Office of Management
and Budget (OMB) for certain legislative coordination and clearance
purposes; 10.
to provide information from an
individual's record to a congressional office acting pursuant to the
individual's request; 11.
to furnish information to the
National Archives and Records Administration for records management
purposes; 12.
to produce summary statistics
and work force or other studies; 13.
to provide information needed
by the Department of Justice for certain litigation purposes; 14.
to provide information needed
by courts or adjudicative bodies for certain litigation purposes; 15.
to disclose information to the
MSPB as needed in special studies authorized by law; 16.
for coordination with an
agency's Office of Inspector General or comparable entity, to facilitate the
coordination and conduct of investigations and review of allegations; 17.
to news
media or the public in certain circumstances (except when the Special
Counsel determines that disclosure in a particular case would be an
unwarranted invasion of personal privacy); and 18.
to the Department of Labor and others as needed to
implement the Uniformed
Services Employment and Reemployment Rights Act of 1994, and the Veterans'
Employment Opportunities Act of 1998. If OSC officials believe that disclosure may be appropriate in a situation not covered by one of OSC's routine uses, or one of the 11 other exceptions to the Privacy Act's general prohibition on disclosure, OSC will seek written authorization from the complainant permitting the disclosure.
|